Understanding the Evolving Meaning of Reason in David Novak's Natural Law Theory 9004504354, 9789004504356

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Understanding the Evolving Meaning of Reason in David Novak’s Natural Law Theory

Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

Philosophy of Religion world religions

Editor-in-Chief Jerome Gellman (Ben Gurion University) Editorial Board Imran Aijaz (University of Michigan-Dearborn) Alan Brill (Seton Hall University) Alan Padgett (Luther Seminary, St. Paul) Galia Patt-Shamir (Tel-Aviv University)

volume 10

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Understanding the Evolving Meaning of Reason in David Novak’s Natural Law Theory By

Jonathan L. Milevsky

leiden | boston

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Cover illustration: Fall by Sam Heinemann, 2007. The Library of Congress Cataloging-in-Publication Data is available online at https://catalog.loc.gov LC record available at https://lccn.loc.gov/2021058004

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2210-481X isbn 978-90-04-50435-6 (hardback) isbn 978-90-04-50436-3 (e-book) Copyright 2022 by Jonathan L. Milevsky. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau Verlag and V&R Unipress. Koninklijke Brill NV reserves the right to protect this publication against unauthorized use. Requests for reuse and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

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To my dear wife, Yocheved. “What is mine and yours is hers.” (b. Ketubot 63a)

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Contents

Introduction 1 1 David Novak’s Two Accounts of Natural Law 1 2 The Significance of Natural Law to Novak’s Thought 4 3 The Purpose of this Text 7 4 Previous Scholarship 8

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The Changing Content of Natural Law 15 1 Introduction 15 2 A Chronology of Novak’s Natural Law Theory 16 2.1 Law and Theology in Judaism 16 2.2 The Image of the Non-Jew in Judaism 24 2.3 Halakhah in a Theological Dimension 32 2.4 “Natural Law and Normative Judaism” 36 2.5 “The Commandments: Divine Will or Divine Wisdom” 40 2.6 “Natural Law, Halakhah, and the Covenant” 42 2.7 Jewish Social Ethics 43 2.8 Review of Menachem Elon’s “Jewish Law” 46 2.9 “Religious Communities, Secular Society, and Sexuality” 47 2.10 Natural Law in Judaism 48 2.11 Talking with Christians 57 2.12 “The Universality of Jewish Ethics: A Rejoinder to Secularist Critics” 58 2.13 The Sanctity of Human Life 61 2.14 Natural Law: A Jewish, Christian, and Islamic Trialogue 64 2.15 Zionism and Judaism: A New Theory and Jewish Justice: The Contested Limits of Nature, Law, and Covenant 66 2.16 “Does Natural Law Need Theology?” 68 3 Analysis 70 4 Conclusion 71

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The Context of Novak’s Natural Law Theory 73 1 Introduction 73 2 The Philosophical Impact 74 2.1 Is Natural Law a Legal or Theological Concept? 74 2.2 Is Natural Law Autonomous or Heteronomous? 78 2.3 Is There any Content to the Natural Law? 83 2.4 Is the Noahide Code Aufgehoben by the Mosaic Law? 89 3 Conclusion 92 Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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The Theological Impact of a Changing Natural Law Theory 94 1 Introduction 94 2 The Significance of Redemption for Novak 95 3 The Context for this Analysis 97 4 A Chronology of Novak’s Treatment of Redemption 98 4.1 Halakhah in a Theological Dimension and “The Role of Dogma in Judaism” 98 4.2 Jewish-Christian Dialogue 99 4.3 Jewish Social Ethics 100 4.4 The Election of Israel 102 4.5 Natural Law in Judaism 107 4.6 Covenantal Rights 109 4.7 Talking with Christians 110 4.8 Natural Law: A Jewish, Christian, and Islamic Trialogue 111 4.9 “Does Natural Law Need Theology?” 112 5 Analysis 113 6 Can a Passive Messianist be a Natural Law Theorist? 118 7 Considering Leora Batnitzky’s Question 120 8 Conclusion 127



Conclusion 128

Bibliography 131 Index 144

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Introduction 1

David Novak’s Two Accounts of Natural Law

David Novak, a philosopher and theologian at the University of Toronto, is widely recognized as one of the most prominent Jewish thinkers in North America today.1 In a recent interview, Novak states that his most important contribution to philosophy has been his work on natural law.2 He has written 1 See Randi Rashkover and Martin Kavka, “Introduction,” in Tradition in the Public Square, eds. Randi Rashkover and Martin Kavka (Grand Rapids, MI: W.B. Eerdmans, 2008), xi; R. Kendall Soulen, review of David Novak, Talking with Christians: Musings of a Jewish Theologian, The Christian Century 123, No. 4 (2006): 67. Novak won the American Academy of Religion Award for Best Book of Constructive Religious Thought for his Covenantal Rights in 2000. In 2005, Princeton held a symposium on Novak’s Jewish Social Contract, and in 2014, the University of Toronto held a conference in his honour. At the 2014 conference, Markus Bockmuehl, a New Testament scholar at Oxford University, called Novak’s Image of the Non-Jew “unparalleled in its achievements.” Markus Bockmuehl, “David Novak’s Theology of Jewish Christian Dialogue: From Polemics to Joint Enterprise,” paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak, Toronto, Canada, September 14–15, 2014. Two recent useful intellectual profiles on Novak should be mentioned. One is by Aaron Hughes; the other is by Martin Kavka and Randi Rashkover, with whom I engage later on. Aaron W. Hughes, “David Novak: An Intellectual Portrait,” in Natural Law and Revealed Torah, 1–18; Rashkover and Kavka, “Introduction,” xi–xxxiv. 2 Novak, Natural Law and Revealed Torah, eds. Hava Tirosh Samuelson and Aaron W. Hughes (Leiden: Brill, 2013), 138. For a useful introduction to Novak’s natural law theory, see Louis Newman, “The Law of Nature and the Nature of the Law,” in Ethical Imperatives, Past and Future Essays in Honor of Wendell S. Dietrich, eds. Theodore M. Vial and Mark A. Hadley (Providence, RI: Brown Judaic Studies, 2001), 259–277, and Gregor Scherzinger, Normative Ethik aus jüdischem Ethos: David Novaks Moraltheorie (Friburg: Freibourg Academic Press, 2014). In his book, Scherzinger constructs a theological-political profile of Novak’s thought and then assesses its suitability for the dialogue between religion and state. The book begins with a brief biographical and bibliographical overview (16–29). That part is followed by a general discussion about the question of creating a “just” or “good” life for citizens and the problem of constructing a universal ethic based on a particularistic tradition (30–44). In the first section, Scherzinger introduces Novak’s theory in the context of the debate over natural law in Judaism, with a particular focus on the critiques of Fox, Faur, and Bleich (49–89). In the second section, Scherzinger constructs Novak’s theory based primarily on Novak’s In Defense of Religious Liberty, but drawing on earlier books as well. And a general discussion begins with an ontology of Novak’s theory and an analysis of the way Novak sees the imago Dei as a limitation to human pretension. According to Scherzinger, Novak’s natural law cannot be separated from his political thought. This view is supported by reference to Novak’s communitarian

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extensively on the topic, arguing that the concept is inherent to the Jewish tradition and found in particular in the legal corpus of Maimonides.3 In his monograph on natural law in the Jewish tradition, Novak locates the concept in the Noahide code,4 the rabbinic legal system, which is intended for non-Jews and prohibits idolatry, adultery, and the like; and he also finds the idea in the reasons for the commandments,5 as well as the rabbinic enactments.6 A brief overview of Novak’s writings on natural law – beginning in the 1960’s until his most recent treatment on the subject in 2014 – reveals a significant change both in the way he applies the concept and in the meaning he assigns to it. Novak first mentions natural law in his dissertation, which concerns the morality of suicide. The brief reference to the concept appears in relation to the tendency to preserve life, which Novak describes as a foundational point

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views (97–218). In the third section, Scherzinger discusses the impact of natural law on the public square, drawing on the question of abortion as an example (219–384). Novak’s opinion on the matter, to Scherzinger’s mind, appears to emerge from rabbinic thought, rather than from a universal moral norm. It is at this point that Scherzinger formulates his most thorough critique of Novak, and it is based on epistemological, ontological, and teleological grounds. The epistemological issue is that there is no independent moral perspective. The ontological issue is Novak’s misappropriation of particularistic beliefs as universal truths. The teleological issue is that there are general dos and don’ts rather than normative prohibitions arising from the concept of personhood (324–325). In his final section, Scherzinger contextualizes Novak within the history of American political thought. According to Scherzinger, Novak conflates a secular foundation with a religious one. Scherzinger’s argument is that the freedom guaranteed by the founding fathers was not a religious freedom, even if that became the consequence. Following Arkush, Scherzinger also questions the amount of protection available to minorities in Novak’s system. Scherzinger concludes by offering a Kantian approach that keeps Novak’s ideas on the table by seeing them as socially necessary (385–448). I engage with Scherzinger’s work later in this book. This view is in stark contrast to the positions of modern scholars such as Leo Strauss, Yeshaya Leibowitz, and Jose Faur. See Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953). Leibowitz’s famous claim that there are no Jewish ethics and no room for nomos outside of divine command precludes a notion of natural law, as noted by Tamar Rudavsky, “Natural Law in Judaism: A Reconsideration,” in Reason, Religion, and Natural Law: From Plato to Spinoza, ed. Jonathan A. Jacobs (Oxford: Oxford University Press, 2012), 84, fn. 5. See also The Yeshayahu Leibowitz Book (Hebrew), eds. Asha Kasher and Jacob Revenger (Tel Aviv: Tel Aviv University Press, 1997), 90–98; Jose Faur, Studies of the Mishneh Torah: The Laws of Kings (Hebrew) (Jerusalem: Mossad Ha-Rav Kook, 1978). David Novak, Natural Law in Judaism (Cambridge: Cambridge University Press, 1998), 149ff. Ibid., 72ff. Ibid., 75ff.

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of Thomas Aquinas’s natural law theory.7 Novak’s next reference to natural law is in the context of the thought of Philo of Alexandria. In that particular article, Novak rejects the notion that Noahide law can be equated with natural law, due to the specificity of the former and the generality of the latter.8 Yet when he first locates natural law within the Jewish tradition, in his Law and Theology in Judaism, Novak does not use the Thomistic terms that he used when he first touched on the concept. In a responsa pertaining to abortion, Novak refers to the Noahic prohibition against murder and draws on natural law, which he defines as inherently rational and widely accepted.9 Given the question’s obvious connection to the preservation of human life, Novak’s decision to link the commandment against spilling blood with natural law on the basis of its reasonable and universally valid principles is surprising, particularly since the Thomistic view would be well-suited to explain why this particular Noahic prohibition is connected with the concept.10 Indeed, the same view could also potentially serve as a defense of Novak’s reference to natural law in a halakhic discussion, since the question pertains to human life, which is at the heart of Thomistic natural law theory. Novak’s explanation for drawing on the concept, however, is that murder belongs in “the proper range of human reason.”11 If Novak’s earlier references to natural law in the context of Jewish law are a means for him to discuss the universal relevance of certain laws, his more extensive treatments of it, early in the 1980’s, seem to serve a different function. In his Halakhah in a Theological Dimension, Novak writes that natural law governs the relationship between Jews and non-Jews.12 While it can be argued that this idea is related to the earlier notion, inasmuch as what is perceived as rational is likely to be seen that way universally – thus explaining why it pertains to non-Jews – it is nevertheless clear that the function of natural law changes in Novak’s thought from a way of reasoning about

7 Novak, Suicide and Morality: The Theories of Plato, Aquinas, and Kant and their Relevance for Suicidology (New York: Scholars Studies Press, 1975), 49. 8 Novak, “The Origin of the Noahide Laws,” in Perspectives on Jews and Judaism: Essays in Honor of Wolfe Kelman (New York: Rabbinical Assembly, 1978), 307–308. 9 Novak, Law and Theology in Judaism (New York: KTAV, 1974), 115. 10 That is to say Novak initially associates only the prohibition of murder with natural law, suggesting that the two concepts can be identified with one another, arguably on the basis of what Novak later calls the sanctity of human life. 11 Ibid., 115. 12 Novak, Halakhah in a Theological Dimension (Chico: Scholars Press, 1985), 88.

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the universality of particular laws to thinking about the interrelation of legal systems. At the same time, Novak also broadens his conception of natural law. In an article written in 1984, Novak argues that the concept of natural law exists in Jewish thought because Israel accepted the divine law on the basis of “rational motives,” by which he means the relationship that she had with God prior to the revelation at Sinai. Novak further supports his claim by reference to the fact that rabbinic interpretation depends on an understanding of the Torah’s intentions.13 In this way, even as natural law still refers to using reason, the sense in which Novak uses rationality starts to shift. Specifically, the laws which he defines as understandable by reference to natural law become dependent on what Novak earlier calls a “cultural heritage,” that is to say a belief in a God who gives them.14 This development can also be seen from the fact that the ground of moral law begins to change. A comparison between Novak’s study of the Noahide laws in 1979 and his introduction to The Election of Israel illustrates this point. In the former source, Novak posits that Judaism is defined by the normative limits of the Noahide; in the latter he suggests that the law cannot define Judaism, for it must recognize a prior ontology. Although Novak does not define that ontological antecedent, he later identifies it as the imago Dei.15 Thus, the divergence between the first and second accounts of natural law becomes fully evident. And while the superficial expression of that change can be detected in the shift from discussing natural law in the context of one commandment to discussing it in relation to the reasons for the commandments and the process of rabbinic enactments, the deeper change can be seen in the fact that Novak ultimately furnishes his natural law with a metaphysical basis. 2

The Significance of Natural Law to Novak’s Thought

In his monograph on Novak, Gregor Scherzinger contextualizes Novak’s theory solely within his view of election.16 That is to say Scherzinger locates

13 Novak, “Natural Law and Normative Judaism,” Vera Lex 6.2 (1986): 4. 14 Novak, Law and Theology in Judaism, 116. 15 Novak defines the imago Dei as the capability of a relationship with God, and the human ability to respond to God. Novak, Halakhah in a Theological Dimension, 96ff. 16 Scherzinger, Normative Ethik aus jüdischem Ethos, 71ff.

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natural law in Novak’s theology within the normative precondition for Israel’s reception of the Torah. It is not difficult to see the basis of Scherzinger’s political interpretation of Novak’s theory. Restricted to moral preconditions, which are located primarily in the Noahide code, Novak’s natural law theory can be described as limits placed on human freedom – limitations which make social co-existence possible.17 But this interpretation radically downplays the theological component of Novak’s theory. The most obvious proof for this claim is the fact that Scherzinger’s interpretation does not account for the two other areas in which Novak locates natural law – the rabbinic enactments and the reasons for the commandments. Simply put, the fact that the commandments can be understood by reference to created human nature and the insights with which the rabbis make decrees, both of which Novak associates with natural law, is not consistent with a political conception of his theory. More evidence comes from a closer look at Novak’s treatment of the reasons for the commandments. In one instance in particular, Novak explains that, “In commandments governing interhuman relationships, God is most often the indirect source of the commandments themselves inasmuch as most of these commandments would qualify as natural law, thus mediated by our rational reflection on created human nature.”18 What Novak means by that statement is that the moral norms are grounded by the imago Dei, which he sees as the capacity for a relationship with God.19 And to replace the human objective for commandments with their divine purpose would undermine the commandment. Thus, Novak writes, “to confuse the direct human object with the ultimate divine object could very well lead to poor performance of the specifics of the commandments.”20 Based on this statement, a political interpretation of the reasons for the commandments simply will not do. Moreover, the norms are not sustainable without their theological ground.21 Along these lines, Novak writes that it is “Only when man is seen as acting within a cosmic theology can the purposeful action of humans be presented 17

Ibid., 259–260. See also 28, 198–199, 323–324. On this point, Scherzinger follows Rashkover and Kavka and also Hughes. See Rashkover and Kavka, “Introduction,” xxvii; Hughes, “David Novak: An Intellectual Profile,” 6. 18 Novak, Natural Law in Judaism, 67. 19 Ibid., 169; Novak, Law and Theology in Judaism, 2, 108ff. 20 Ibid. 21 Further, natural law allows us to wait for God in human community. Novak, Natural Law in Judaism, 173. To see natural law merely as political is to miss “what connects it to the law of God.” Ibid.

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as more than the projection of human will.”22 What that means is that if the norms are not seen as belonging to a “larger order,” there is nothing that enforces them. To understand these moral imperatives simply as human limits would not only be a misrepresentation but would make them ineffective in the long run. According to this explanation, it would therefore be more accurate to say that Novak’s natural law is a theological concept that has political manifestations. It should also be noted that Scherzinger overlooks the role that natural law plays in other areas of Novak’s thought. Specifically, the concept serves as Novak’s source for the relationship between Jews and non-Jews and the basis for Jewish ethics as a whole. As we have already seen, Novak begins by describing natural law as a way to think about the universality of commandments, and later furnishes it with metaphysical content, but he also evokes the idea to explain how revelation is possible, meaning, how divine law can be grasped by human beings;23 he regularly refers to natural law in his engagement in Jewish-Christian dialogue; he uses it as the basis for his disagreement with Rosenzweig about election;24 he claims it as the ground for a “Jewish social contract” that allows Jews to live in democratic societies;25 and it is upon a foundation of natural law that Novak develops conservative stances on such issues as homosexuality and abortion. Natural law can thus be said to be the lynchpin of Novak’s thought; and if that is so, it stands to reason that a change in Novak’s conception of natural law would have to reflect a profound shift in his views.

22 Novak, Natural Law in Judaism, 136. 23 He even uses it to understand Hannah Arendt. In “Interview with David Novak,” in ­Natural Law and Revealed Torah (Leiden: Brill, 2013), 137, Novak explains that the Banality of Evil is based on a natural law argument – that banal people can be evil, or how basic the u ­ niversal moral laws really are. 24 Novak frames the point of disagreement with Rosenzweig as a natural law argument, even as some scholars believe that Novak oversteps some boundaries in his opposition to Rosenzweig’s view. See David Novak, The Election of Israel: The Idea of the Chosen People (Cambridge: Cambridge University Press, 1995), 104–105. Martin Kavka and Randi Rashkover, “A Jewish Modified Divine Command Theory,” Journal of Religious Ethics 32 (2004): 387–414. 25 Novak, The Jewish Social Contract: An Essay in Political Theology (Princeton: Princeton University Press, 2005), 91–123.

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The Purpose of this Text

In this book, I will explore the shift in the content and context of Novak’s natural law theory, analyze that change within the framework of Novak’s covenantal theology, and assess its contribution to the continuing debate over the role of natural law in Judaism. While the development in the content of Novak’s theory will emerge from the parallel between the shift in his understanding of rationality and the way in which he begins to associate natural law with metaphysical truths, the change in the context of his theory will be seen from his attempt to reconcile the legal basis of the Noahide code with the metaphysical ground of the covenant. The impact of Novak’s covenantal views on his natural law theory will be seen most clearly from the fact that the shift in his view of redemption corresponds to the metaphysical basis with which he later furnishes his natural law theory; and the contribution to the debate over natural law will be seen from the fact that he fuses two strains of natural law theories within Judaism. In the first chapter, I will illustrate the change between Novak’s earlier and later accounts of natural law, through a careful chronological study of Novak’s reference to rationality, beginning from his earlier writings on natural law in his Law and Theology in Judaism series up until his most recent texts on the subject. By reference to Novak’s distinctions between internal and external relations and between inherently rational and widely known ideas, I will show how the ideas that underpin his later account have a metaphysical basis that one typically learns through one’s faith-based community. Further, I will demonstrate that this content is unknowable outside of one’s religious tradition; and even within the tradition, it is only known fully by a select few. This epistemological change will be shown to be consistent with the content that Novak incorporates into his theory. In the second chapter, I study the role that Novak’s theory plays in his thought and the areas in Judaism which it helps him explain. I do so by reference to Novak’s changing position on several questions, all of which relate to the Noahic and Mosaic covenants and the relationship between them. The questions include whether natural law is autonomous or heteronomous, if it is a legal or theological concept, and whether it is sublated, or aufgehoben, by Mosaic law. For each of these questions, I illustrate how Novak resolves them in the context of his theory, how his position changes, and how he attempts to bridge the gap between his views. These efforts at reconciliation, which I critique individually, include the argument for the necessity for law as well as command, the combination of autonomy

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and heteronomy, the introduction of minimal and maximal claims, and the mediating concept of personhood. In the third chapter, I analyze the theological impetus behind Novak’s changing natural law theory. I do so by studying Novak’s account of redemption over the course of his writings. Through this chronological analysis, I show that there are parallels between his view of redemption and his natural law theory, a connection which I build upon to challenge the view of Jody Elizabeth Myers that natural law theorists are by definition active messianists. Then, by reference to Novak’s view about the status of moral law at the time of redemption, I consider the question of Leora Batnitzky regarding the compatibility between natural law, which is based on reason, and covenantal thought, which is grounded in faith. In responding to Batnitzky’s question, I will explain that Novak’s changing theological view forms the basis of the shift in his natural law theory and is also the reason why he moves from a stronger presentation of natural law to a somewhat weaker one. In the conclusion, I will show that Novak’s later account of natural law fuses the two primary strains of natural law theory in Judaism, namely, the rationality of the commandments and the role of reason. In this way, I argue that Novak’s natural law theory is a valuable contribution to the debate over the role of natural law in Judaism. 4

Previous Scholarship

Novak’s natural law theory is a dialogue with both ancient and modern scholars who have predated him in arguing for the presence of the concept in Judaism. These include Saadia Gaon,26 Maimonides,27 Joseph Albo,28 Moses Mendelssohn,29 Elija Benamozegh,30 and Hermann Cohen.31 As Jonathan Jacobs has noted, among medieval thinkers who make natural law-type 26 R. Saadia, Emunot Ve-De’ot 3:1. 27 Maimonides, Guide to the Perplexed 3:32–49. 28 Joseph Albo, Sefer Ha-Iqqarim 4:1. 29 Moses Mendelssohn, Jerusalem: Or on Religious Power and Judaism, trans. Allan Arkush (Waltham: Brandeis University Press, 1983), 93–95. 30 Elijah Benamozegh, Israel and Humanity, ed. and trans. Maxwell Luria (New York: Paulist Press, 1995), 118–136. 31 Cohen, Hermann. Religion of Reason Out of the Sources of Judaism, trans. Simon Kaplan (New York: Frederick Ungar, 1972), 122–123. Steven Schwarzschild suggests that Cohen does not subscribe to natural law. See Steven S. Schwarzschild, “Do Noachites Have to

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arguments, the reasonableness of the Noahic or Mosaic commandments is a central theme.32 It is also the case that more modern thinkers, such as Moses Mendelssohn and later J. David Bleich, have made that claim by stipulating a role for reason within Judaism.33 To my knowledge, however, none of these figures address both aspects of natural law. Nor do they broaden their argument to include the acceptance of the Torah or the rabbinic enactments. To that extent, Novak’s theory is not entirely compatible with, and cannot be fully understood by reference to, these approaches.34 There are several modern scholars who have engaged with Novak in areas to which his natural law theory pertains. Those areas include Jewish law,35 the

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Believe in Revelation,” Jewish Quarterly Review 53 (1962): 60. I thank Paul Nahme for this point. Jonathan Jacobs, Law, Reason, and Morality in Medieval Jewish Philosophy: Saadia Gaon, Bahya ibn Pakuda, and Moses Maimonides, 201. Moses Mendelssohn, Jerusalem: Or on Religious Power and Judaism, 93–95; J. David Bleich, “Judaism and Natural Law,” Jewish Law Annual 7 (1988): 5–42. Natural law’s relation to election lies in its function as a precondition for revelation. Novak, The Election of Israel, 104–105. For the connection between natural law and the public square, see Novak, In Defense of Religious Liberty (Wilmington: ISI Books, 2009), 150–154. For Novak’s argument that natural law can serve as the common basis for Jewish-Christian dialogue, see Novak, Jewish-Christian Dialogue, 141–142. Scholars who have taken issue with Novak on matters of Jewish law include Eugene Borowitz, Michael Walzer, Bernard Jackson, Steven Windmueller, and Andrew Gluck. Their view is that Novak is too stringent in his application of Jewish law. Eugene Borowitz, “Im Ba’et Eyma – Since You Object, Let Me Put it This Way,” in Reviewing the Covenant: Eugene B. Borowitz and the Postmodern Renewal of Jewish Theology (Buffalo: SUNY Press, 2012), 165; Andrew Gluck, Various Theories Explaining Why the Jewish People are Special: A Response to Jerome Gellman, David Novak, and Michael Wyschogrod’s Understanding of the Chosen People (Lewiston, New York: Edwin Mellon Press, 2016), 170; Bernard S. Jackson, “The Jewish View of Natural Law,” review of David Novak, Natural Law in Judaism, Journal of Jewish Studies 52.1 (2001): 136–145; Steven Windmueller, “Jewish Rights: What is Normative?” review of David Novak, Covenantal Rights: A Study in Jewish Political Theory, Menorah Review (2011): 8–10. Two notable critiques of Novak’s stance against homosexuality are put forth by Martha Nussbaum and Louis Newman. Martha Nussbaum, “Reply” in California Law Review 98.3 (2010): 735–747; Louis Newman, “Constructing a Jewish Sexual Ethic: A Rejoinder to David Novak and Judith Plaskow,” in Sexual Orientation and Human Rights in American Religious Discourse, eds. Saul M. Olyan and Martha C. Nussbaum (New York: Oxford University Press, 1998), 46–54.

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debate over the role of religion in the public square,36 Zionism,37 the idea of

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Alan Mittleman, Martin Kavka, Alan Arkush, and William Galston all construct significant critiques of Novak’s position on this issue. Three of these scholars question whether minorities have protection under Novak’s Jewish social contract and suggest, or explicitly state, that there may not be any incentive for people who belong to those minorities to join society. Alan Mittleman, “David Novak’s Social and Political Thought: An Appreciation and Critique.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak; Mittleman, The Sceptre Shall not Depart from Judah (Lexington: Lanham, 2000), 124; Martin Kavka, “The Rights of Citizens in a Covenanted Polity.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak; Kavka, “The Perils of Covenant Theology: The Cases of David Hartman and David Novak,” in Imagining the Jewish God, eds. Leonard Kaplan and Ken Koltun-Fromm (Lanham, MD: Lexington, 2016), 227–253. (I am grateful to Professor Alex Green for this reference); Allan Arkush, “Theocracy, Liberalism, and Modern Judaism,” The Review of Politics 71 (2009): 650, fn. 45. William Galston, “Religion and the Limits of Liberal Democracy,” in Recognizing Religion in a Secular Society, ed. Douglas Farrow (Montreal, Kingston: McGill-Queens University Press, 2004), 41–50; ­William Galston, “Response.” Paper presented at Rabbi David Novak’s in Defense of Religious Liberty, Washington, D.C., January 21, 2010. It should also be noted that Michael Broyde has made the case that, since there is no Jewish precedent for enforcing Noahide law upon non-Jews, the agenda of the Jewish community should be shaped by what serves the Jewish people, not the values of society. Michael J. Broyde, “Jewish Law and American Public Policy: A Principled Jewish Law View and Some Practical Jewish Observations,” in Religion as a Public Good, ed. Alan Mittleman (Lanham, MD: Rowman and Littlefield, 2003), 161–184. Scholars that have debated with Novak on this topic include Robert Morgan, Noam Zohar, and Walter Brueggemann. Morgan raised doubt if Novak’s book on Zionism “succeeds” in resolving the tension between a Jewish state and a democratic one. Michael Morgan, “Response.” Paper presented at David Novak’s New Theory of Zionism, February 4, 2016, Toronto, Canada. Zohar questions if conversion needs to be seen in religious terms, raising the possibility of there being a sense of rebirth in an “ethnic collective,” which differs from the religious undertones Novak gives the term. Noam Zohar, “Judaic Visions of a Shared World,” in Contested Boundaries: Diverse Ethical Perspectives, eds. David Miller and Sohail H. Hashmi (Princeton: Princeton University Press, 2001), 237–248. Brueggemann calls Novak’s book a “disappointment” and accuses Novak of lacking any “self-critical reflection.” Brueggemann also sees Novak as repackaging religious Zionism, without offering any new perspective. Walter Brueggemann, review of David Novak, Zionism and Judaism: A New Theory, The Christian Century, January 22, 2016.

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election,38 redemption,39 and ­Jewish-Christian Dialogue.40 With the exception of election, Jewish-Christian dialogue, and the public square, however, the scholarly debate in these areas does not touch directly on Novak’s theory. Typical of those scholars who do engage with Novak’s natural law theory are the following three approaches. The first is to challenge Novak’s 38

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Novak’s position on election has been compared to that of Karl Barth, Franz Rosenzweig, and Michael Wyschogrod. George Hunsinger, “The Election of Israel in David Novak and Karl Barth.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak, Toronto, Canada, September 14–15, 2014; Rashkover, Freedom of Law: A Jewish-Christian Apologetics (New York: Fordham University Press, 2015), 227; Batnitzky, “Reconciling Chosenness and Natural Law in David Novak’s Theology of Covenant.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak; Scott Bader-Saye, “Aristotle or Abraham? Church, Israel, and the Politics of Election” (Ph.D. diss., Duke University, 1997), 79ff. Only Menachem Kellner has engaged with Novak on this issue, but in a fairly limited way. Kellner, “A Suggestion Concerning Maimonides’ Thirteen Principles and the Status of Gentiles in the Messianic Era,” in Tura: Oranim Studies in Jewish Thought – Simon Greenberg Jubilee Volume, ed. M. Ayali (Tel Aviv: Ha-Kibutz Ha-Me’uhad, 1988), 253; Kellner, Maimonides on Judaism and the Jewish People (Albany: SUNY Press, 1991), 125, fn. 9, 43–45. There are five notable encounters with Novak’s thought on this issue. They come from Aaron Hughes and Leora Batnitzky, John Levinson, Yiftach Fehige, John Goyette, and Stanley Hauerwas. Hughes and Batnitzky separately raise the question of whether Novak bases his dialogue between Jews and Christians on a historical precedent. Levinson argues that Novak is less than forthcoming about his personal leanings. Fehige analyzes the tension between the multiplicity of religious faiths in dialogue and the individual faiths’ beliefs in singular divine revelation. Goyette questions how Novak can base dialogue on natural law, given the incompatibility between Maimonides and Thomas Aquinas on natural theology. Hauerwas argues against Novak’s emphasis on law. Hughes, “Was There Interfaith Dialogue in Medieval Jewish Philosophy?” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak; Gordon Schochet, Leora Batnitzky, Michael Walzer, David Novak, “Symposium on David Novak’s The Jewish Social Contract,” Hebraic Political Studies 1.5 (2006): 593–622; Levenson, “Must We Accept the Other’s Self-Understanding?” review of David Novak, Jewish-Christian Dialogue, Journal of Religion 71.4 (1991): 558–567; Fehige, “Circumcising Revelation Based Thinking? On the Rationality of Inter-religious Dialogue in the Encounter Between Jews and Christians,” Toronto Journal of Theology 29.2 (2013): 351–367. See also Fehige, Das Offenbarungsparadox: Zur Dialogfähigkeit von Juden und Christen (Paderborn: Ferdinand Schöningh, 2012), 26ff, 29–30. Goyette, “Natural Law and the Metaphysics of Creation,” in St. Thomas Aquinas and the Natural Law Tradition, eds. John Goyette, Mark S. Latkovic, and Richard S. Myers (Washington: The Catholic University of America Press, 2004), 75; Hauerwas, “Christian Ethics in Jewish Terms: A Response to David Novak,” Modern Theology 16:3 (2000): 293–299.

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assertion that there can be a natural law theory in Jewish thought.41 The case is g­ enerally made on the basis that what is beneficial in keeping the commandments does not make them rational, or on the grounds that Judaism is a revelation-based theology that does not acknowledge reason as a source of law;42 but it is also made on the basis that Novak’s natural law theory cannot be reconciled with the Platonic or Aristotelian view of law.43 Other scholars construct a similar argument but from a narrower standpoint, focusing on 41

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Like Novak, Lenn Goodman writes that the rabbis were sensitive to “the moral and spiritual thematics” of the Bible. Lenn Goodman, The God of Abraham (New York: Oxford University Press, 1996), 132. Goodman also sees the rabbis as expanding the laws of the Torah (ibid., 229). His most extensive support for Novak in this text can be seen in his critique of Marvin Fox’s position, which Goodman formulates when he defends R. Saadya against the charge of inconsistency (ibid., 175–185). Lenn Goodman, “Getting Clear and Getting Real about Natural Law - in Honor of David Novak.” Paper presented at Rethinking the Covenant. Mark Washofsky takes a more measured approach, saying that if reason alone is what is meant by natural law, the idea becomes compatible with Judaism but the debate becomes far less controversial. A similar view is expressed by Daniel Statman who suggests that much of the debate over natural law in Judaism depends on what is meant by the term. Mark Washofsky, review of David Novak, Natural Law in Judaism, AJS Review 26.2 (2002): 384–385; Daniel Statman, “Natural Law and Judaism,” in The Jewish Legal Tradition (New York: Yeshiva University Centre for Jewish Law and Contemporary Civilization), forthcoming. José Faur, Iyunim Be-Mishneh Torah leha-Rambam (Jerusalem: Mosad Ha-Rav Kook, 1978), 63. J. David Bleich argues that certain prohibitions only lean towards reason, which is why only murder can be seen as a prohibition based on natural law. J. David Bleich, “Judaism and Natural Law,” 5–42. In a useful introduction to Novak’s natural law theory, Newman assesses the strength of Novak’s arguments about the rationality of the law, and shows that other nations have survived without a Noahic code. In his review of Jewish Social Ethics, Newman expresses misgivings about Novak’s claim that the truths of Judaism are rational. Elsewhere, Newman argues that Israel’s moral norms are grounded in a “communal religious experience,” and so framing the law as rational is a misrepresentation. Louis Newman, “Covenantal Responsibility in a Jewish Context,” review of David Novak, Jewish Social Ethics, Journal of Religious Ethics 25.1 (1997): 194–195; Louis Newman, “The Law of Nature and the Nature of the Law,” in Ethical Imperatives, Past and Future Essays in Honor of Wendell S. Dietrich, eds. Theodore M. Vial and Mark A. Hadley (Providence, RI: Brown Judaic Studies, 2001), 259–277. The latter argument is made by Martin Yaffe in the context of a discussion of the differences between Novak and Aquinas. Yaffe, “Natural Law in Maimonides?” in St. Thomas Aquinas and the Natural Law Tradition, 66–7. Jacobs highlights what he sees as the significance of the debate over natural law in Judaism, namely, the existence of natural law in Judaism would prove that Judaism is universal in scope. Jacobs, Law, Reason and Morality in Medieval Jewish Philosophy, 190. In a chapter of his book as well as in an article on the topic, Jacobs challenges Fox’s viewpoint that social conventions cannot be known through reason. If true, Fox would thereby undermine Novak’s argument for a reason-based universal morality in Judaism. Jacobs argues that Fox is mistaken on this matter: “Common agreement can itself reflect rationality.” Ibid., 192. Nevertheless, Jacobs’ own view is that natural law does not play a substantial role in Jewish thought. Ibid., 221. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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the work of Maimonides.44 The second way in which scholars engage with Novak on natural law is by offering different formulations of the concept.45 The third way in which scholars challenge Novak’s natural law theory is by questioning Novak’s association of the Noahide code with natural law. These scholars make the case that the specific prohibitions in the code are not borne out in the Bible,46 that the rabbis appear to be unfamiliar with natural 44

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Marvin Fox makes the case that, for Maimonides, authority and not reason is a source of law. Fox, Interpreting Maimonides: Methodology, Metaphysics, and Moral Philosophy (Chicago: University of Chicago Press, 1990), 142. Fox, however, also makes the case more generally that natural law cannot exist within Judaism. Ibid., 125–126. A similar argument is made by Joseph David. Joseph David, “Maimonides, Nature and Natural Law,” Journal of Law, Philosophy and Culture 5.1 (2010): 67–82. This approach is often taken by Christian scholars, such as Levering, VanDrunen, and Budziszewski. In his Biblical Natural Law, Levering expresses a general agreement with Novak on a number of points, in particular the theological dimension of Genesis 1–2 and its indication of the “intrinsic norms” necessary for “human flourishing.” Levering, Biblical Natural Law: A Theocentric and Teleological Approach (New York: Oxford University Press, 2008), 60. Elsewhere, following Novak, Levering argues that natural law is seen within the content of the covenant. Jews and Christians ought to discuss what the life of wisdom does for the sake of the world, but also for the sake of their salvation. Levering, Jewish-Christian Dialogue and the Life of Wisdom, 132. Levering differs, however, with regard to imago Dei, a key part of Novak’s teleological view of natural law. Unlike Novak’s understanding of the image of God as shadow of God or as a capability for relationship with the divine, Levering argues that the imago Dei is a reference to human reason. He also suggests that the imago Dei can be distorted but argues that that in itself is not sufficient to prove that Novak’s “shadow” approach is better. Levering, Jewish Christian Dialogue and the Life of Wisdom, 86-87; Thomas Aquinas, Summa Theologica, 1/2, q100, a/2, in Basic Writings of Thomas Aquinas, ed. A Pegis, vol. 1 (Indianapolis: Hackett, 1945), 939. VanDrunen acknowledges a similarity between his natural law theory and that of Novak. The only significant difference between VanDrunen’s account of natural law and the Jewish interpretation of the Noahide law is that the Noahic covenant obligates everyone even today, whereas Jews believe that they are not directly bound by the Noahide laws. For VanDrunen, Novak “does not ground his natural law in the Noahic covenant.” Explaining this point, VanDrunen says that for Novak natural law is bifurcated from revelation, history, community and covenant. VanDrunen adds, however, that Novak has more appreciation in his later work for the Noahic covenant but that it is still underdeveloped. VanDrunen, Divine Covenants and Moral Order: A Biblical Theology of Natural Law (Grand Rapids, MI: Eerdmans, 2014), 544, 545, fn. 8, 545. Here I will also mention the work of Tamar Rudavsky, a scholar who has written in support of Novak’s position that natural law can be seen in medieval Jewish thought but differs with him in one respect. Specifically, Rudavsky contextualizes natural law in Maimonides within what he sees as commandments that benefit the soul rather than the body — the former being nobler — whereas Novak locates the concept in the interpersonal commandments. Rudavsky, “Natural Law in Judaism: A Reconsideration,” in Reason, Religion, and Natural Law: From Plato to Spinoza, ed. Jonathan A. Jacobs (New York: Oxford University Press, 2012), 83–105. J. Budziszewski, Written on the Heart: The Case for Natural Law (Downers Grove, Illinois: Intervarsity Press, 1997), 183–207. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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law ideas, and/or that the laws of the code are particularistic rather than universal.47 To my knowledge, however, none of the scholars address both the role of reason and the reasonableness of the commandments in Novak’s theory. They also do not treat his incorporation of the Sinaitic revelation into his theory. Finally, because they analyze his theory primarily in a political context and always in relation to rabbinic and/or medieval thought, they have not devoted serious consideration to the change in Novak’s account of natural law.48 In this book, I address this oversight by not only studying the change in Novak’s thought but contextualizing it within his covenantal theology. I also demonstrate the way in which Novak’s natural law theory combines two strands of the theory that had never before been fused. In this way, this book will reflect Novak’s importance as a natural law thinker. 47

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Even as he agrees with Novak about the historical setting of the code, Klaus Müller argues that the code is particularistic and that it is based on God’s will, rather than reason. Klaus Müller, Torah für die Volker (Berlin: Institut Kirche and Judentum, 1994), 123, fn.169, 22, 36, 47, 102–103. Matthias Morgenstern shows that the laws are first and foremost rabbinic and only subsequently derived through exegesis. Matthias Morgenstern, “Eine Talmudische Ethik für die Menschheit: Die Noachidischen Gebote und das Problemeines jüdischenVerständnisses des Naturrecht,” in Sein und Sollen Des Menschen: Zumgöttlich-freien Konzept vom Menschen, eds. Cristoph Böttigheimer, Norbert Fischer, Manfred Gerwing (Münster: Aschendorf, 2009), 261–264. For Christine Hayes, the fact that the laws are linked to an authoritative text and that they are prescriptive, in the sense that they prohibit actions such as eating a limb from a live animal, militate against Novak’s view. She also points to the fact that the laws are not applicable to Jews and non-Jews in the same way to indicate that the laws are not universal in scope. Hayes further strengthens her case by showing that in a talmudic discussion about the need for the Bible to repeat certain prohibitions, there is an implicit assumption that certain Noahide laws can be overturned by Mosaic law. According to Hayes, even the rabbinic discussion praising the rational commandments cannot be brought as evidence, since those rational laws are typically juxtaposed with the irrational laws. Thus, the laws are being depicted as the “arbitrary decree of a sovereign divine will.” Christine Hayes, What’s Divine about Divine Law? (New Jersey: Princeton University Press, 2015), 335, 366–369, 248–249. In some respects, Hayes follows the work of Devora Steinmetz, who sees the rabbis as putting forth differing accounts of Noahide law, only some of which are consistent with natural law. Devora Steinmetz, Punishment and Freedom: The Rabbinic Construction of Criminal Law (Philadelphia: University of Pennsylvania Press, 2008), 20–39. In her presentation at the conference in Novak’s honour, Rashkover suggested that she will focus on a specific period in Novak’s thought, implying that his views have changed. Andrew Gluck also implies that Novak’s views develop over time, as does David VanDrunen. Rashkover, “From Text to Philosophy: Reconsidering David Novak’s Account of Reason and Revelation.” Paper presented at Rethinking the Covenant; Gluck, Various Theories Explaining Why the Jewish People are Special: A Response to Jerome Gellman, David Novak, and Michael Wyschogrod’s Understanding of the Chosen People (Lewiston, New York: Edwin Mellon Press, 2016), 198; VanDrunen, Divine Covenants and Moral Order: A Biblical Theology of Natural Law (Eerdmans: Grand Rapids, 2014), 13, fn. 24.

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Chapter 1

The Changing Content of Natural Law 1 Introduction In Novak’s first treatment of natural law in Judaism,1 he already makes it clear that the rationality of the moral law is what lends itself to a natural law perspective. He says, for example, that the prohibition of murder is considered jus naturale because it is “evidently rational.”2 The problem is that Novak does not often explicitly define what he means by the word rational.3 But in order to understand the change in the content of Novak’s natural law theory, it is imperative to develop a clear understanding of what constitutes rationality throughout Novak’s earlier and later accounts of natural law. And to do so, we need a baseline of sorts for Novak’s conception of rationality. Drawing on his Law and Theology in Judaism series, as well as on his Halakhah in a Theological Dimension, we can get a fairly accurate understanding of what Novak means by reference to what he associates with rationality. What we find is that he tends to associate rationality, at least as it pertains to human beings, with what he calls an “internal relation” rather than an external relation, meaning that what is rational concerns the “relation between mind and body” rather than “one’s status in society.”4 In other words, rational ideas must pertain to human thought, or what humans can discover by reason, rather than social interaction.5 Novak also distinguishes between two types of rational ideas, those that are known independently of any other factors (ratio per se) and those that are widely accepted (ratio quo ad nos).6 In both definitions, however, that which is rational corresponds to that which is internal. 1 As noted earlier, Novak does mention natural law in relation to Philo, but he rejects the possibility that the idea can be identified with the Noahide law. Novak, “The Origin of the Noahide Laws, 307–308. 2 Novak, Law and Theology in Judaism, 115. 3 At this point, Novak equates rationality and universality, since they both apply to human beings. Novak, The Image of the Non-Jew in Judaism: An Historical and Constructive Study of the Noahide Laws, 2nd edition, ed. Matthew LaGrone (Oxford: Littman Library of Jewish Civilization), 32. Unless otherwise indicated, I cite this edition of this text. 4 Novak, Halakhah in a Theological Dimension, 99; Law and Theology in Judaism, 2nd Series (New York: KTAV, 1976), 109. 5 For Novak, that is a category associated with human freedom. Novak, Halakhah in a Theological Dimension, 98–99. 6 Novak, Law and Theology in Judaism, 115, 116. © Jonathan L. Milevsky, 2022 | DOI:10.1163/9789004504363_003 Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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In this chapter, I will consider Novak’s various discussions of rationality in the context of his treatment of natural law. As I will show, there is a tension in Novak’s thought between that at which one arrives through reason and that which is learned through one’s community. This idea manifests itself in Novak’s suggestion that some inherently rational ideas are learned through one’s historical tradition. The tension can also be seen in Novak’s refusal to define human beings by their rationality. In both cases, what is internal to the human mind cannot be fully separated from what is external to it. What this study will show is that Novak’s conception of human rationality becomes increasingly dependent on external considerations; and that means that rationality cannot be identified fully with what human beings can discover on their own. It will also become clear that not all the inherently rational explanations for the commandments are available even to the members of a historical community. This discovery will raise the possibility that there is a privileged epistemology in Novak’s natural law theory, meaning that an understanding of the basis of the norms is available only to a select few. 2

A Chronology of Novak’s Natural Law Theory

2.1 Law and Theology in Judaism Novak’s first sustained treatment of natural law in Judaism is found in the first of two books belonging to his Law and Theology in Judaism series.7 In these texts Novak introduces two key distinctions in rationality. The first is an epistemological one, between ideas that are known in themselves and those that are widely accepted.8 The second is a taxonomic one, between ideas that pertain to the relationship between mind and body and those that relate to one’s status in society.9 According to Novak, only the former of these two categories is considered to be rational, as it pertains to human beings. The former distinction can be found in his treatment of abortion in Jewish law.10 Novak discusses 7

These were written in 1974 and 1976 respectively. Both books of the series contain essays similar in structure to halakhic responsa. In Novak’s own words, the essays demonstrate that “Halakhah (law) and Agaddah (theology) are not only indispensable elements of Judaism in and of themselves, but that their interrelationship is equally important.” Novak, Law and Theology in Judaism, xiv. In the second book in the series, Novak describes its objective as showing “how the Halakhah reacted to various nonhalakhic factors: religious, psychological, cultural, political and economic.” Novak, Law and Theology in Judaism, 2nd Series, xv. 8 Novak, Law and Theology in Judaism, 115, 116. 9 Novak, Law and Theology in Judaism, 2nd Series, 109. 10 Novak, Law and Theology in Judaism, 114–124. Emphasis mine. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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the issue in the context of the Noahide code, the rabbinic legal framework that includes the prohibition of murder, theft, adultery, and the like, and is seen as binding on all descendants of Noah, including the Israelites before Sinai and non-Jews even after Sinai. Novak argues that abortion is included in the prohibition of murder: While later medieval theologians debated the scope of reason in relation to revelation, virtually all of them agreed with [R.] Saadya [Gaon] [sic] that violence (hamas) and bloodshed (shefikhat damim) are rationally discernable as prohibitions for all human beings. Even such ‘nonrationalists’[sic] as R. Judah Halevi and Nahmanides are included. Therefore, the question before us is whether or not abortion is bloodshed. Since there is virtual unanimity that reason is the source of the prohibition of bloodshed, we can conclude that the prohibition of bloodshed for Noahides is not only jus gentium – that is, valid by universal consensus – but also jus ­naturale  – that is, a norm that is valid because it is evidently rational (ratio per se). Since, as we will see below, normative Judaism considers abortion for Noahides within the context of bloodshed, abortion is a question which, Jewishly speaking, is within the proper range of human reason.11 A fairly important point concerning the rational discernability of the prohibition emerges from this excerpt.12 Namely, that subsets of rationally discernable law belong in the realm of reason and could be ruled upon halakhically. This 11

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Ibid., 115. Cf. Novak, “Reply to Critics of ‘Exclusionary Rule’ with Judge Herbert A. Posner,” New York Law Journal 188.81 (1982): 2. In that article, which pertains to the insights that the Noahide law can offer to the American legal system, Novak calls the code the “law of nations” (jus gentium) rather than “natural law” (jus naturale). Novak does not maintain that position elsewhere. By highlighting Novak’s emphasis on rationality, this study counters the approach of Rashkover and Kavka, who posit that Novak develops an account of human personhood when he introduces natural law: “Novak’s account of natural law, when it first appeared in the 1970s, emerged out of his inquiry into rabbinic anthropology as it derives from the dynamic exchange between halakhah and extra-legal accounts of the human person. In an essay from this period, ‘Noahide Law: A Foundation for Jewish Philosophy,’ Novak points to the rabbinic category of the ben Noah, or the Noahide, the non-Jew who according to the biblical story of the flood is by definition a son of Noah, as the category by which the tradition develops an account of personhood in general.” Rashkover and Kavka, “Introduction,” in Tradition in the Public Square, xxv. This excerpt has shown, however, that Novak’s earliest description of natural law is associated with inherent and universal rationality. No mention is made of personhood, and more importantly there is no reference to the imago Dei, which is at the heart of Novak’s concept of personhood. Therefore, Kavka and Rashkover’s characterization of Novak’s thought in the 1970’s as an inquiry into the anthropological view of human beings in rabbinic thought is premature. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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emphasis on rational discernability is strengthened by the fact that only murder, or the most rational of the Noahide commandments, is linked to natural law: none of the other commandments included in the code are associated with the idea at this point. By linking abortion to this rational prohibition, Novak justifies his application of deductive reasoning to arrive at normative applications.13 If those points bring out the significance of rationality for Novak’s early treatment of natural law, the epistemological distinction that he introduces here reveals a certain ambiguity in his understanding of the term. The terms used for this distinction are ratio per se and ratio quo ad nos. The former is defined by Novak as an idea that is known only by reference to itself; the latter is explained as an idea that is widely accepted.14 To understand what he means by the former, it is useful to highlight his description of the reason for the commandment against murder: Recognizing the essentially rational nature of the prohibition of ­bloodshed is the moral meaning of the general truth that human life is structured towards its own self preservation and enhancement.15 What makes this explanation rational in itself is that it does not depend on the benefits of not committing murder, which would make the explanation understandable by reference to an external factor. The appeal is to the law’s inherent rationality – namely, it denies life, which is itself intended to continue. On occasion, however, it is difficult to determine to which of the two categories he is referring: If the prohibition of bloodshed is rationally evident to all (ratio quo ad nos), a fact emphasized as early as Saadia and as late as Hermann Cohen, including virtually all the rationalists and nonrationalists [sic] in between, then is it possible to permit wanton bloodshed of any kind and still affirm the irreducible dignity of human life?16 It is not entirely clear what Novak means here. Is it the fact that the prohibition is “rationally evident to all,” or is it the “dignity of human life,” that prevents 13 14 15 16

The reasoning process often needs to be preceded by what Novak calls “selective prioritization.” Novak, Halakhah in a Theological Dimension, 1–10. In this text, Novak refers to both categories. Novak, Law and Theology in Judaism, 115, 116. Ibid., 115. Cf. Novak, Jewish Social Ethics, 154, fn. 30, in which Novak notes that, for Aquinas, inclinatio naturalis is “the weakest moral ground,” that must be combined “with grounds theologically and metaphysically constituted.” Ibid., 116.

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us in actu from engaging in bloodshed? Stated differently, there appears to be some ambiguity about the source of the commandment’s u ­ niversality. The same ambiguity can be seen in Novak’s explanation for the connection between the prohibition of murder and the notion of equality: Maimonides, too, in another text, emphasizes the fact that our principle of the equality of human life is one of natural reasoning, something universally common. ‘It is a matter of rational inclination [dabar shehadaat noteh lo] not to destroy one life for another.’17 Now, rational inclination is the very term Maimonides uses elsewhere in referring to the seven Noahide commandments, which for him are the Torah in potentia.18 In using the term “natural reasoning,” does Novak mean that everyone is aware of the prohibition, or does he mean that everyone knows the value of human life, which is why no one would replace one life for another? The difficulty in making that determination serves as an early indication that the distinction between what is knowable in itself and what is widely accepted does not always hold up. The same can be said of the second distinction used by Novak in the subsequent book of the series. The distinction is introduced in a discussion about euthanasia. According to Novak, the various opinions that exist on the issue of assisted dying reflect a tension between the Hellenic and Hebraic views of man.19 The former reduces human beings to their rational component, whereas the Hebraic view defines mankind by its relationship with God. According to Novak, a rational account of human beings is insufficient, since it does not take the other facets of human life into consideration. In making this argument, Novak makes a distinction between internal and external relations. Relations are of two kinds: external and internal. For example, to say, ‘man is a rational animal’ is a definition based on an internal relation. Man has both rational and nonrational [sic] components, mind and body. To define him as rational, then, implies that the rational component within him is predominant and the nonrational [sic] is subordinate.20 17 Maimonides, Mishneh Torah: The Foundations of Torah, 5:7. 18 Novak, Law and Theology in Judaism, 133. 19 Novak, Law and Theology in Judaism, 2nd Series, 108ff. 20 Ibid.,109.

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Novak suggests that what is rational about human beings accounts solely for their internal component. But in order to capture the complexity of human beings, who are by their nature political, one must account for their external relations as well.21 Along similar lines, Novak’s argument against euthanasia is based on what he sees as a “different definition of human nature,”22 namely, a “transcendent” one.23 Even as he undermines the importance of his distinction by suggesting that “internal relations” do not account for the totality of human experience, it is clear that the line Novak draws between what is and what is not rational bears a similarity to the earlier distinction. In this distinction as well, something that relates to society, which therefore corresponds to what is widely known, has no impact on the “relation between mind and body,” which corresponds to that which is discoverable through reason, that is to say something rational in itself.24 Even without that parallel, it seems to follow from both distinctions that one’s community is at best unnecessary for the transmission of “rational” ideas. This inference can be shown in the following way. Inherent to the epistemological distinction is the notion that only that which is discoverable on its own, i.e. without reference to any other concept, is rational in itself. It follows that one’s community is unnecessary for the transmission of inherently rational ideas; those can be discovered independently. The implication of the second distinction, however, goes even further. Based on the difference between internal and external relations, ideas that one learns through one’s experience in society cannot properly be called rational; rational ideas must be discovered on one’s own. The problem with this implication is that it conflicts with Novak’s emphasis in this text on cultural heritage. We can see that emphasis in a statement I cited earlier. I cite it in its larger context now: Man is not only a rational being but a historical being as well. Therefore, his cultural heritage informs him about his moral obligations, for law, which has been historically preserved, carries the assumption of its rationality unless proven otherwise. Our sages had great respect for those cultures which they believed were morally constituted, and, conversely, great contempt for those who were not.25 21 Ibid. 22 Ibid., 114. 23 According to Novak, man is thereby defined, “in terms of his whole presence before God.” Ibid. 24 Ibid. 25 Ibid., 116. Novak’s reference to “cultural heritage” is of a piece with his broader emphasis on community. For example, Novak offers a treatment of the often quoted midrash that

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Novak implies that a law – presumably even one that relates to human interaction, since the discussion pertains to the prohibition of bloodshed – can be described as rational, provided it is transmitted through a historical tradition. Indeed, the fact that the law has been transmitted and accepted lends it a status of rationality. Returning to Novak’s taxonomic distinction, we can conclude that he must identify rationality with “external” considerations as well, inasmuch as the rationality to which he refers is determined by the historical acceptance of the law, which one does not experience by themselves.26 This dependence on “external considerations” can be seen even when Novak discusses the norms of the Noahide code, which he identifies with human reason. To prove this point, let us take a close look at the way Novak prefaces one of his responsa. He begins his remarks by trying to identify the ground of the Noahide code: I think the times require of Jewish theology that it determine whether the seven commandments are essentially grounded in man’s reason, or in universal consent, or in the direct revelation of God’s will. Surely such determination will throw deeper light on how Judaism views moral judgement.27 Earlier on the same page, Novak writes that there are three possible ways to classify Noahide law, namely, jus naturale, jus gentium, and jus divinum. Those three possibilities seem to correspond to the three options for the ground of the seven commandments. “Man’s reason” corresponds to jus naturale, “universal consent” corresponds to jus gentium, and “direct revelation of God’s will” corresponds to jus divinum.28 The distinction between the first two possibilities is that the first type of ground pertains to matters decided by human conscience, while the second type of ground relates to decisions made by r­ eference to their God offered the Torah to the other nations of the world before he offered it to the Israelites, but that the other nations refused it out of their distaste for the laws that God chose to enumerate as examples of what the Torah contains: “In other words, the acceptance of the Torah by the Jewish people was conditioned by their prior acceptance of the universal Noahide law, such as the prohibition against murder, adultery, and theft.” Novak, Law and Theology in Judaism, 26. By speaking about the Jewish people as a whole, Novak implies that morality before Sinai, which is the precondition of the reception of the Torah, is dependent on a communal, rather than individual, acceptance of the code. 26 It remains unclear at this point whether the idea of human dignity is available to human reason even without a “cultural heritage.” I return to that question later. 27 Ibid., 127. 28 Ibid.

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impact on society.29 Each of those two possible grounds is also respectively consistent with ratio per se and ratio quo ad nos, inasmuch as that which is based on human reason corresponds with what is inherently rational, and what relates to universal consent corresponds to what is widely accepted.30 Novak then proves that the Noahide laws are based on human reason, a point he demonstrates by citing a source which states that the law of the land is considered valid law for Jews (dina de-malkhuta dina),31 adding that Rashi understands the statement to mean that non-Jews are commanded to practice justice. Whereas the former talmudic statement could only be referring to consensus, inasmuch as what the government decides does not seem to be bound by any other “standard of judgement to determine whether these laws are right or wrong,”32 Rashi’s statement implies that the “state’s right to rule is directed to the conscience of man.”33 According to Novak, it follows from Rashi’s statement that Jews should weigh the merits of a state’s policies on “standards intrinsic to Judaism,”34 by which he means conscience. Although it is implied that these possible grounds are not mutually exclusive, insofar as something can be beneficial for society and inherently rational as well, the bridge upon which Novak forms the moral connection, and consequently the ground of the commandments, is moral reason. As we have seen, moral reason is associated with what is ratio per se, inasmuch as that term is synonymous with the norms of natural law that are grounded in “man’s reason.”35 In his treatment of abortion, however, Novak’s argument is based on the law of the rodef – the pursuer, according to which one who poses an unprovoked, immediate, and direct threat to the life of another can be killed even extrajudiciously.36 To the extent that he is making an argument about the life of the mother by reference to obscure laws pertaining to one specific facet of Jewish law, Novak’s reasoning is based on a concept that is transmitted through one’s 29

Novak does not entertain the possibility that these are known through revelation. It should be noted, however, that Novak later refers to the Noahide code as “indirect revelation.” Novak, The Image of the Non-Jew in Judaism, 24. 30 More evidence for the fact that natural law is grounded by inherent rationality can be found in Novak’s earlier statement that only what is “evidently rational” can be identified with jus naturale. Novak, Law and Theology in Judaism, 115. 31 b. Batra, 54b; Novak, Law and Theology in Judaism, 129. 32 Ibid., 129. 33 Ibid. 34 Ibid., 130. 35 It is worth noting that, at this point, Novak finds this answer to be satisfactory. A few years later, the ground of natural law changes in Novak’s thought. Novak, Halakhah in a Theological Dimension, 94ff. I take up that issue later. 36 Novak, Law and Theology in Judaism, 117–124.

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community. The same type of reasoning can also be found in the way Novak formulates a ruling on the Vietnam War, which pertains to the prohibition of murder.37 Not unlike Novak’s earlier discussion of abortion, this ruling is also based on the biblical law of the pursuer. Novak argues that because it is not clear that the Viet Cong has the status of a pursuer, the Vietnam War is unjustified, and that a “religiously committed Jew” should voice concern and oppose the government’s policy.38 Both arguments are based not on an idea at which one can arrive through contemplation, but on a branch of legal thought known through the Jewish tradition. Thus, from Novak’s argumentation, we can see that even matters that pertain to internal relations are not easily separated from external ones.39 The implication for this study is that what Novak means by natural law must extend beyond the boundaries of what humans can arrive at on their own. Before moving on to Novak’s next major text, I also want to note that his “transcendent definition” of human beings is not captured by either set of distinctions, at least as he originally presents them. That is to say that which is internal cannot capture a human being’s presence before God, which is by definition external, to say nothing of the fact that one’s status in society does not incorporate that definition. Similarly, that which is rational in itself (ratio per se) does not capture the transcendent definition, which is by its 37

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Reinforcing our difficulty, the first step Novak takes before formulating his ruling indicates that the ground of the Noahide code is nevertheless inherently rational. Specifically, Novak first locates “a moral connection between the individual Jew and the non-Jewish (not anti-Jewish) society.” Novak, Law and Theology in Judaism, 127. The purpose of this step is to make sure that any statement about morality made by Jews reflects more than an apparent similarity which is “rooted in a subjective bias.” Ibid. The implication is that if the code were based on consensus, there would be no moral connection between the two parties. Since a consensus need not be based on judgements of right and wrong, there can be no “inference” from Jewish law. Ibid., 129. That statement is true not only because there would be no standards to judge the morality of those decisions, but also because it would inherently depend on the opinion of the society in question rather than on any other factors. Accordingly, a connection can only be established if the basis for the code is reason, or more accurately, moral reason. It is also relatively clear that Novak is not at this point presenting any account of human personhood or philosophical anthropology. To my knowledge, that only occurs after 1992. Novak, Jewish-Christian Dialogue, 141. Ibid., 134–135. In this context, it is also interesting to note that Novak does not return to the third possibility for the ground of the Noahide code, namely, the “direct revelation of God’s will.” Ibid., 127. Novak appears to reject that possibility, since he later identifies Noahide law with a “natural morality.” Novak, Law and Theology in Judaism, 2nd Series, 77. The question becomes even more pressing in light of Novak’s emphasis on community later in his writings. Novak, The Jewish Social Contract, 12–21; In Defense of Religious ­Liberty, 51–52.

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essence external to that description; and that which is widely known (ratio quo ad nos) cannot capture that definition either, because the human relationship with God is not widely communicable. We would need to see more to make any assertions, but this is an early indication that human rationality is not entirely related to cognition. In any case, if Novak’s definition of human beings changes, that development needs to be seen in the context of the shift in his natural law theory. Anticipating Novak’s subsequent steps, it seems that he has to move towards a new model for rationality, one which is more inclusive and represents external relations as well, but also one that is more in line with a natural law theory that can no longer be grounded solely in reason.40 2.2 The Image of the Non-Jew in Judaism In Novak’s next major work, written in 1983, he forms a conceptual link between the rational commandments of the Noahide code, which we originally associated with natural law, and the rational commandments of the Torah. In so doing, Novak offers more insight into what he means by ratio per se and raises the possibility that the adherence to the Noahide laws can be based on more than one level of understanding. The purpose of this book is to answer two questions he poses earlier in his writings, namely, why the doctrine of the Noahide commandments was formulated and what function is served by those laws.41 Responding to the first question, Novak begins with a historical survey of the formulation of the code, arguing that it is an Amoraic idea, made at the time when “minimal, indispensable laws for Jews” were specified.42 This perspective challenges a number of scholarly theories, including the view that the Noahide law was developed at the time of the Bible; that the laws are based on Hittite law; that they were formulated at the time of the Maccabees; or that they were created for the “fearers of the Lord,” a group of quasi-Jews.43 Novak also suggests that the creation of those indispensable laws followed the institution of the ger toshav, that is, the sojourner who has the status of a resident, provided he or she adheres to the minimal legal standards. 40

It should be noted, however, that at this point Novak does not yet directly link his statement to natural law. I return to this point when I treat Novak’s Halakhah in a Theological Dimension. 41 Novak, “The Origin of the Noahide Laws,” 310. Even the question itself is revealing. It indicates that the rabbis were formulating specific laws for a fairly specific political purpose, rather than simply articulating basic claims that human beings have upon one another. Novak only frames the laws in those terms later in his writings. See for instance Novak, The Sanctity of Human Life (Washington: Georgetown University Press, 2007), 7. 42 Novak, The Image of the Non-Jew in Judaism, 31. 43 Ibid., 11–35.

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Novak argues that the formulation of this idea led to philosophical reflection about the minimal conditions for Jews, namely, the laws of idolatry, murder, and adultery. These prohibitions are considered to be so severe, that one is supposed to give his or her life rather than transgress any of them. According to Novak, the defining feature of these laws, which were formulated as the Noahide code was being developed,44 is the following: The choice of these three commandments as obligatory appears to be based on the notion that they are ratio per se, that is, their prohibition is immediately evident and not the result solely of divine fiat, unlike the majority of the 613 commandments.45 In what Novak frames as an intersection of regulations for the ger toshav and minimal conditions for Jews, the reason why these specific laws are identified is because one can discover them on one’s own. For the same reason, there is no need to warn those threatening to transgress even one of the other N ­ oahide laws about the consequences of doing so, since the laws are taken to be knowable rationally.46 More evidence for what Novak sees as the discoverability of the laws in the Noahide code can be seen from the tension between the 44

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Ibid., 31. It should be noted that this view of the code is in tension with Novak’s responses to the questions that served as the catalyst for this text, namely, the purpose and function of the laws. Novak, “The Origin of the Noahide Laws,” 310. In his earlier account, Novak draws upon the code to establish a broad halakhic precedent against murder, enabling him to adduce further laws pertaining to abortion, bioethics, and suicide. The historical background offered by Novak in the beginning of his Image of the Non-Jew reveals that the Noahide code had an entirely different purpose. According to Novak, the rabbinic construct was the way in which the rabbis normalized relations with non-Jews. Novak, The Image of the Non-Jew in Judaism, 31. While those views do not appear to contradict each other on the surface, that is not the case upon closer review. In the earlier presentations, the norms are seen as binding because of their rationality. In that case, they are not formulated as much as they are expressed. But, when Novak explains why the rabbis formulated the laws, namely, to have a jurisprudential concept that enables them to interact with non-Jews, he implies thereby that the rabbis created the system de novo. Stated differently, the later formulation implies that the rabbis created the laws for a practical purpose, that is, in order to have a common legal framework with non-Jews. Therefore, these two formulations are not easily reconciled with one another. Ibid., 31. Novak gets this idea from Elijah Benamozegh, Israel and Humanity, ed. and trans. Maxwell Luria (New York: Paulist Press, 1995), 260ff. See also Novak, The Image of the Non-Jew in Judaism, 105. Other differences, such as the variation in punishment for Jews and nonJews, are seen by Novak as a reflection of the conditions of the period in which the laws were formulated. Ibid., 32.

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s­ pecificity and generality of Novak’s description of its commandments. In a contemporaneous piece on the Noahide laws, Novak writes as follows: The understanding of the Noahide is fundamentally legal before it is theological, and certainly before it is historical or sociological. Therefore, Jewish philosophy begins at the boundary of Judaism with a fundamentally legal datum.47 In other words, the elements encompassed by the laws are fairly specific legal doctrines.48 Thus, the commandment against murder includes abortion because the latter is an act which inhibits the “self-preservation” and “enhancement” of life, and thus bears the hallmarks of the general prohibition.49 At the same time, the specificity implied in the aforementioned description of the code is in tension with the generality of this representation: The concept of the seven Noahide laws appears to be a theological-juridical theory rather than a functioning body of laws administered by Jews for gentiles actually living under their authority at any time in history.50 This broader perspective can be shown to relate to the way in which the norms of the Noahide code are discovered, namely, through rational consideration. The conceptual connection lies in the fact that human beings are more likely to discover broad directives than specific laws. Here, Novak makes the connection between generality and rational attainability explicit: 47

Novak, “Noahide Law: a Foundation for Jewish Philosophy,” in Tradition in the Public Square, 122. Emphasis mine. 48 Novak calls them “specific laws.” Novak, Law and Theology in Judaism, 115. As I show in the second chapter, Novak moves away from this view in his later writings. 49 Ibid. The same idea seems to be behind Novak’s question of why the commandment to honour one’s parents is not included in the Noahide laws. Novak, Law and Theology in Judaism, 2nd Series, 76. Novak explains its omission based on the fact that the laws are generally negative commandments and the fact that it would constitute a complete morality, which would obviate the need for a fuller morality. Ibid, 77. The question itself, however, indicates that Novak views the laws in specific terms. It is difficult to imagine that the Noahides would be expected to honour their parents under some broad directive. 50 Novak, The Image of the Non-Jew in Judaism, 35. It should be noted, however, that the case for the recognition of gentile normativity by Jewish authority would be stronger if the Noahide code could be presented as a specific set of laws not unlike the Torah. In other words, the idea that non-Jews have specific laws meeting predetermined criteria, just as the Jewish law does, would bolster the argument that non-Jewish jurisprudence is recognized by the Jewish legal tradition.

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This greater generality of Noahide law makes it more rational because general categories are more evidently intelligible than specific norms, which inevitably involve historically contingent factors.51 Thus, the attainability of the laws is directly related to the fact that they are general in nature.52 But even as Novak emphasizes the rational attainability of the moral law, the meaning he assigns to that feature of the Noahide code, as well as its significance, differs from what we have seen earlier. In line with Novak’s original presentation of the Noahide code, he explicitly states here as well that the Noahide laws are rational both in themselves and widely. The difference in this text, however, can be seen in a detail Novak adds to his explanation of Maimonides’ treatment of the code: Noahide law is natural law in its most immediately evident manifestation. Its generality enables us to see full correlation of divine wisdom and will. It is both knowable itself (ratio per se) and known by all rationally moral persons (ratio quo ad nos).53 Wisdom, as we will see later in this chapter, is a reference to the fact that commandments have explanations; will is a reference to commandments that have no explanation, other than being a directive from God. While the thought is not yet fully formulated, Novak is suggesting that the simple fact that the commandments can be understood is indicative of a source beyond those immediate laws. If that inference is accurate, it would mean that rationality gestures towards something other than the reasonableness of the law or its knowability to many. It is as if Novak is implicitly asking how it came to be that the commandments are rational, which is to say that Novak is concerned both with the reasonableness of the commandments and with the purpose for that reasonableness. It follows that the latter component broadens the meaning

51 Novak, The Image of the Non-Jew in Judaism, 148. It is important to note that even as he no longer describes the Noahide commandments as a “functioning body of laws,” Novak still makes a halakhic argument to show that universal norms bind Jews and non-Jews equally. 52 In a subsequent chapter, I deal in part with Novak’s attempt to reconcile the general and specific facets of the Noahide code. 53 Novak, The Image of the Non-Jew in Judaism, 172. An earlier version reads, “Its generality and its lack of obscure details enable us to see full correlation of divine wisdom and will.” Perhaps Novak is more critical in his later version, acknowledging that some of the code’s details are indeed obscure. Novak, The Image of the Non-Jew in Judaism (Lewiston, New York: Edwin Mellen Press, 1983), 300.

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of rationality, particularly at this point, when the distinction between the wisdom and rationality of the commandments is not yet explicit. To illustrate this point, we can look at Novak’s comparison between the way that non-Jews used to adhere to divine law versus how they follow it now and the implications of that change: This descent of gentiles from an original condition of consciously living under divine law to a present condition of merely living under law as a human institution has had two implications. First, it implies that Noahide law is capable of being perceived rationally, that is, it can be observed, however inadequately on the level of the sacred, by human beings enlightened by their own reason.54 We note that, in Novak’s earlier account, there is no indication that the laws can be kept in more than one way. Particularly if the ground of the commandments is human reason, the earlier account seems to suggest that the laws are kept because they are reasonable. In this account, however, it seems that arriving at the laws by way of reason is somehow inadequate. From here it would appear that ratio per se includes knowledge at which one arrives through other means.55 It is unclear, however, if it would therefore be insufficient to keep the Noahide commandments solely on the basis of their reasonableness. The wider context of this excerpt helps us clarify this point. At issue is an explanation of the talmudic saying that the non-Jews have rejected the Noahide code. In an addendum to the midrash cited earlier about God offering the Torah to the other nations of the world before he offered it to the Israelites, it is stated that even the Noahide code was rejected by the non-Jews. Addressing this point, the Talmud raises the question of what would happen if the non-Jews would continue to keep the Noahide laws; and the answer given is that they would not receive a heavenly reward for it.56 According to Novak, the Talmud means that before Sinai, the laws that were kept had the status of mitzvot; but those commandments became mere laws when they were kept only as a human institution.57

54 Novak, The Image of the Non-Jew in Judaism, 147. Emphasis mine. 55 It may be useful to see Novak’s view of ratio per se as a balance that is maintained between wisdom and human rational ability. Any deficiency in the human understanding of what is ratio per se is supplemented by wisdom. 56 b. Avodah Zara, 2b-3a. 57 Novak, The Image of the Non-Jew in Judaism, 147.

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Novak’s treatment of this gentile “rejection” of the Noahide laws is revealing. It marks the first time that he knowingly discusses the two ways in which the Noahide laws can be kept, namely, based on their rationality alone or based on their deeper ground as well. The independence of these two modes of adherence, at least in theory, is confirmed by the way Novak links the code to the place of rationality within Judaism. If one views the rational component in Judaism to be central, then the fact that rational law is found among gentiles will enable Jews to intellectually, at least, interact with gentiles on the basis of a real, enduring, common moral ground. On the other hand, if one considers reason as peripheral in Judaism, then they will regard gentile rejection of the divine Noahide law as making for a fundamental separation between Jews and non-Jews because they essentially have nothing in common.58 Novak proves that there is a relationship between the rational component in Judaism and the Noahide code by bringing an example from the kabbalists. Those who belong to the Jewish mystical tradition and habitually suppress the rational facet of Judaism see the Noahide laws as a “dead-end.”59 They also hold a generally negative attitude towards non-Jews.60 By drawing on the code as an expression of the importance of the rational component of Judaism, Novak is implicitly reaffirming the possibility of keeping the code solely on the basis of its rationality. At the same time, if the rational component of the Noahide code would be inseparable from its non-rational component, the code would not necessarily reflect on the importance of rationality. It follows that there are two possible changes that would upset this relationship between the Noahide code and Judaism. The first is if the laws of the code were to no longer be attained solely by reason. In that case, as I have just explained, the relationship with non-Jews who keep the laws would not reflect on the question of reason more generally. The second way in which this relationship can be undermined is if the role of reason in Judaism were seen to be less prominent than is being assumed here. In that case, the rationality of the Noahide laws would be of no great import to Judaism as a whole, and an adherence to the code based on rational reasons would be of little or no merit. There are indications in this text that Novak’s views admit of the first of these two changes. To cite one example, Novak explains why Maimonides 58 Ibid.,147. 59 Ibid., 152. 60 Ibid., 51.

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suggests that only the first two commandments of the Decalogue, namely, “I am the Lord, your God” and “you shall have no other gods besides me” (Exodus 20: 2, 3) were received by the entire nation of Israel: What Maimonides does intend, I think, is that only these two commandments are immediately intelligible per se because they deal with the essence of God that is the unchanging foundation of all intelligibility. The intelligibility of these two commandments, then, requires no external point of reference. They are ends in themselves.61 The descriptions that Novak provides for the first two commandments, which refer to the exclusive belief in God, correspond with the definition of ratio per se, inasmuch as they are known without reference to anything else. Evidence for this reading of Novak’s statement can be seen from the fact that Thomas Aquinas, from whom Novak learns this distinction, uses God as an example of something that is ratio per se.62 Further, Novak explicates the distinction between those commandments and the rest of them by drawing on the two types of perfection in Maimonides’ thought, namely, physical and intellectual. For Novak, the latter perfection, which corresponds to the first two commandments, is identified with ratio per se.63 That distinction further suggests that the first two types of commandments can be known independently of an external source. The sense with which Novak imbues ratio per se in this case seems unrelated to what he meant by the term in Law and Theology in Judaism. In that text, it simply referred to an inherently logical legal concept. In contrast to that definition, here Novak associates ratio per se with a “foundation of all intelligibility,” suggesting that he now refers to the purpose for rationality, rather its self-evidence. If that is what Novak now means, it would explain why the discovery of rational norms without recourse to a covenantal 61 Novak, The Image of the Non-Jew in Judaism, 168. Outside of these two commandments, however, it is unclear what other commandments are known in themselves, that is, with the exception of lying. Novak, Talking with Christians: Musings of a Jewish Theologian (Grand Rapids: Eerdmans, 2005), 200. 62 Aquinas, Summa Theologica, 1/1, q.2, a.1, in Basic Writings of Saint Thomas Aquinas, 6. 63 According to Maimonides the two types of perfection are interrelated. Following Aristotle, Maimonides notes that man is social by nature. Maimonides, Guide to the Perplexed, 3:27. Therefore, through the commandments that pertain to social coexistence, one develops physical perfection. Nevertheless, the Torah intends intellectual perfection as well. As Novak explains, Maimonides believes that if a person keeps the Noahide laws solely for their political reason, rather than their rational function – thereby ruling out intellectual perfection – he or she would be living in a “theologically lacking” manner. Novak, The Image of the Non-Jew in Judaism, 164–165.

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tradition is “inadequate.” In other words, Novak makes the argument that since the law is not being perceived in reference to its divine source, it is not entirely understood. In light of this view, it becomes possible to speak of a spectrum or continuum with which Novak begins to view the rationality of law. When Novak originally speaks about rationality, he means what one can discover through reason.64 He does not speak qua irrational law, or law that is not immediately evident or widely known. And Novak offers no indication that the standard of comparison for this rationality is Mosaic law. In The Image of the Non-Jew in Judaism, however, Novak explicitly compares the Noahide commandments to the Mosaic laws: These rational commandments, five of the seven Noahide laws, are contrasted with uniquely Jewish commandments such as the dietary laws and the clothing restrictions, prohibitions that ‘the evil inclination and the nations of the world’ ridicule as irrational.65 To the extent that the Noahide commandments are rational, they can be distinguished from those laws of the Torah that subject Jews to ridicule.66 It therefore appears that Novak is offering a new comparative standard for the rationality of the Noahide commandments. Along the same lines, he writes that even as the greater generality of the Noahide code makes it less historically contingent and more rational,67 its laws cannot be seen as greater than those of the Torah: Greater rationality, however, does not mean that Noahide law is superior. On the contrary, the greatness of the Mosaic law is precisely its specificity, a specificity that speaks to the greater insight of the divine author into the existential particularities of the Torah’s recipients. Such insight is not as evident in the Noahide law because of its generality.68 Thus, the broader understanding of rationality – its meaning here seems to relate to the various ways in which the law is suited to human existence, rather than the sensibility of each law – allows Novak to compare the Noahide 64 Novak, Law and Theology in Judaism, 115, 117. 65 Novak, The Image of the Non-Jew in Judaism, 32. 66 Ibid. 67 Novak, The Image of the Non-Jew in Judaism, 148. 68 Ibid., 148–149.

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commandments, which are rational, with the commandments of the Torah, many of which are non-rational.69 And the newfound meaning of the term lets Novak defend the superiority of Mosaic law. In this way, Novak is responding to Moses Mendelssohn and later, Herman Cohen. On Novak’s reading, both thinkers privilege the Noahide code over the Mosaic law, since the former is universal and the latter is particular.70 For Novak, however, the Mosaic law is based on “deeper insight” that makes it greater than the Noahide code on account of the needs which it fills. The obvious implication of this view is that the reasoning behind at least some of the Mosaic laws is not widely known. Nevertheless, Novak continues to describe the commandments as rational. One example can be seen from his interpretation of a midrashic gloss on the first case of blasphemy recorded in the Bible.71 According to the rabbis, what prompted the blasphemy, spoken by a man with an Egyptian father, was an unfair law related to the restriction on land-ownership based on ethnicity. Novak takes that statement to mean that rabbis were concerned with the rationality of the law.72 Since this case pertains to Mosaic law, however, it is clear that Novak describes the Mosaic covenant as rational.73 Thus, the argument that there is a shift in Novak’s view of rationality gains ground. 2.3 Halakhah in a Theological Dimension In this text,74 Novak carefully considers the relationship between human beings and rationality, and once again draws upon the internal/external distinction. 69 In Jewish Social Ethics, Novak illustrates the difference between the Noahic and Mosaic law in the following way: “Their point of difference is that the norms of natural law, by virtue of their very generality, are more easily known, whereas the norms of the divine positive law, by virtue of their greater specific obscurity, are assumed to be intelligible even if that intelligibility is only partially perceived by us.” Novak, Jewish Social Ethics, 37. 70 Novak, “Universal Moral Law in the Theology of Hermann Cohen,” Modern Judaism 1.1 (1981): 102, 112. 71 Leviticus 24:10–16. 72 Novak, The Image of the Non-Jew in Judaism, 62. 73 Nevertheless, as Novak develops this idea, it will become clear that the rationality Novak ascribes to Torah law cannot be identified as ratio per se but only ratio quo ad nos. An early indication of that point is the evidence Novak brings for the rationality of the commandments as perceived by the rabbis. He cites the Talmud’s proof that one may not take another’s life to save his own, because one’s blood is not redder than another’s. Based on that argument, Novak shows that the ground for the prohibition must be rational. Novak, The Image of the Non-Jew in Judaism, 32. However, the principle of equality which seems to be in play here is not an idea that is known in itself, but by reference to other human beings. 74 This text is written two years later, in 1985. In it, he treats many of the same issues as he does in the two Law and Theology in Judaism volumes. Indeed, Novak writes that this text is a continuation of his project in that series. Novak, Halakhah in a Theological Dimension, ix.

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Building on his earlier point that “universal consensus” is not sufficient to validate natural law, but that it needs to be validated by a historical criterion,75 he argues that both the rational and social elements of human beings need to be taken into consideration in the context of natural law. According to Novak, that idea is what drives Justinian to state that slavery is against natural law, even though it is rational: What was recognized here was that human freedom is determined by an external relation, namely, one’s status in society. Rationality on the other hand is determined by an internal relation, the relation between mind and body....Therefore the assertion that human freedom is humaneness allows for the permission of even more acts that traditional ethics has prohibited than the older assertion that humanness is rationality.76 Novak treats this issue in a broader context that he describes as “an area of halakhah which is universally significant in the ethical sense; that is, it deals with man qua man as both the subject and the object of an area of law.”77 In the endnotes, where Novak refers to the verse that the Talmud draws upon in its exposition of the Noahide laws, he explicitly connects this discussion to the Noahide code.78 We can already see that Novak takes external considerations into account when he speaks about ethics, even if he does not yet define that component as rational. At the same time, Novak becomes more explicit that Torah law is rational, even as it relates to those laws that are typically seen as non-rational.79 That point comes in the midst of a question of why it is necessary to have universal ethics in Judaism. Novak raises the possibility that the universal ethics can be attributed to God’s will, a view he rejects because that would only ground ethics and not explain them. In the process of making that argument, however, he adds that God’s will does not necessarily exclude rationality, and that is for two reasons. The first is that God’s will is not capricious and is therefore not irrational; and the second is that the laws that precede the Mosaic law are rational.80 A proper understanding of the second reason shows that Novak is reasoning by analogy: he is demonstrating that one set of divine – albeit 75 Novak, Law and Theology in Judaism, 2nd Series, 92. 76 Ibid., 99. 77 Ibid., 94. 78 Ibid., 155, fn. 33. 79 Ibid., 95. 80 Ibid. Novak already intimates that the Noahide law is divine, otherwise, whence the comparison?

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indirect – laws admits of rational consideration, and so God’s will cannot be said to be irrational. The last point appears to bankrupt Novak’s epistemological distinction. The rationality of God’s law, as it is understood here, is not common knowledge. One arrives at such a determination by inference. However, this rationality is also not discovered on its own: one discovers the rationality of Torah law by inferring from a divine law that is external to it. Thus, the rationality in question is neither ratio per se nor ratio quo ad nos. Along the same lines, Novak becomes more conservative about what can be assumed to be self evident knowledge: Nevertheless, I believe it is more humanly realistic, as well as more theologically correct, to assume that the absolute sanctity of human life is by no means self-evident. If it were, it would be hard to accept the miserable and dangerous situation human beings find themselves in this last part of the twentieth century, a situation epitomized by the threat of nuclear war. When we assume that it is self evident that all human life is sacred, we are actually engaging in a very dangerous type of utopian thinking.81 The basis for the argument here is the claim that the Jewish perspective on matters pertaining to medical ethics has to be persuasive to hold any sway. The reason that Novak rejects the sanctity of human life as a basis for his argument is the fact that the world is facing nuclear war.82 By looking out the window, as it were, Novak perceives that the inherent rationality of the dignity of human life is not widely recognized.83 Novak’s preferred solution to the threat of 81 Novak, Halakhah in a Theological Dimension, 113. A similar case could be made about Novak’s purpose in his In Defense of Religious Liberty. Novak’s clearest summary of the book’s objective comes at the conclusion of the book, where he writes the following: “Without such prior obligation [‘divine morality’] and its protections, our human rights cannot trump the power of the state, because they are derived from that very power, which without a true covenant standing over it can easily take away what it has given. So those who would interpret Grotius’s dictum literally, that we can have law ‘even without God,’ and who claim that the de facto atheism is the only cogent basis for commitment to a democratic polity, have no basis for rationally challenging the unjust exercise of state authority, which is the very antithesis of constitutional democracy.” Novak, In Defense of Religious Liberty, 182. See also ibid., 181. 82 This book is written in the mid 1980’s. 83 Novak will draw the opposite conclusion later in his writings by looking at society. It is also interesting to note that Novak himself makes a rational determination by what he encounters rather than through pure reasoning. In that way, he demonstrates a different conception of rationality that is starting to emerge from his writing.

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nuclear war is to affirm “our messianic hope for the coming of God’s kingdom of peace.”84 The advantage of that approach is that it overcomes the despair that idealists have “when they realize that their dreams are only dreams.”85 It may be suggested that this solution is similarly based on something that is not self evident. Perhaps Novak sees the benefit of waiting for a solution to present itself, rather than taking any radical steps, as an approach that is more widely understandable. Be that as it may, Novak’s argument shows that a gap begins to form in his thought between what he considers to be widely known and what he sees as knowable in itself. In light of this trend, we need to take a closer look at what Novak means by “self-evident.” Novak is not denying the concept of the imago Dei; he is only limiting the groups for whom that concept is evident. As he puts it, God’s command to choose life, “seems to limit absolute concern with the sanctity of human life to those who base their faith on Scriptural revelation.”86 In other words, the imago Dei is evident to those who belong to a scripturally based faith. However, the same idea is not evident to those who do not belong to such groups and do not share the same concerns. Thus, what Novak means by “self-evident” is a concept that society at large may not recognize or accept; but he nevertheless describes the idea as an inherent truth. Unlike Novak’s earlier statements about inherent rationality being transmitted through one’s community, the implication of which is that there are inherently rational concepts which are widely known, here there is a complete break between ideas that are rational in themselves and those that are widely recognized. It is therefore difficult to understand how Novak can speak about the knowability of the norms when he grounds the prohibition of murder in the imago Dei.87 84 Novak, Halakhah in a Theological Dimension, 115. 85 Ibid. 86 Ibid., 113. 87 Ibid., 97. Cf. Novak, review of Menachem Elon, Jewish Law: History, Sources, Principles, Vera Lex 14.1–2 (1994): 52–53, where he argues for a substantial role for natural law in Judaism, calling it a notion of law “grounded in reason, rather than will.” In a later section, I will refer to another novel approach Novak introduces in this text which may reconcile this problem. Further complicating the issue is that Novak ultimately grounds the entire Noahide code in the imago Dei. A far more persuasive case can be made for the knowability of the norms when they are treated individually. Each law pertains to a different facet of social-coexistence, and most can be presented as rationally understandable in their respective context. Thus, in Image of the non-Jew in Judaism, Novak makes a case for the rationality of at least four of the commandments. Novak, The Jewish Social Contract, 233. Here, however, Novak argues for a unified moral ground for laws as diverse as blasphemy on the one hand and eating the limbs of live animals on the other. That is certainly a more difficult case to make.

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2.4 “Natural Law and Normative Judaism” A similar question arises in connection with this article, as Novak begins to associate the rationality of the Torah with an acceptance based on faith. Of particular interest in this paper, written in 1986, is Novak’s explanation of the way two of the earliest Jewish thinkers reconcile the apparent contradiction between natural law, which is seen as both universally necessary and exoteric, and Judaism, which is believed by its followers to espouse esoteric knowledge. According to Novak, these thinkers justify their position in the following way: Some (for example, Philo and Saadya, [sic] in the first and ninth centuries respectively) have argued that although natural law is universally necessary it is not immediately exoteric (ratio quo ad nos), but was apprehended by Moses, who taught it to his people Israel, and that gradually it will be apprehended by more and more intelligent human beings during the course of history.88 Therefore, Judaism’s apparent parochialism is only relative; actually it is the vanguard of universal truth. It only appears to be parochial to those who have not yet apprehended that truth, as, for example, the universal laws of science appear to be the exclusive domain of the minority of cognoscenti known as scientists, even though they obtain universally in and of themselves.89 Novak goes on to argue that the fideist view, which counters the opinion that Judaism admits of natural law, does not account for four points. The first is that Judaism includes the belief in a Divine Lawgiver who must have a standard of justice; the second is that the human acceptance of divine law assumes a rational motive; the third reason is that the understanding and application of the laws presupposes a “criteria of human nature”; the fourth reason is the existence of rabbinic law, which even the opponents of natural law in Judaism recognize as rational. A closer look at the second reason Novak provides indicates the shift in emphasis: Since the context of the law is a covenant between God and a people, the acceptance of the law by the people must proceed from rational motives. One could not enter such an agreement from motives of fraud or coercion or sentiment and still be morally bound to uphold it. In biblical and 88 89

If this statement sounds messianic, that is not coincidental. I devote a later chapter to Novak’s view of redemption and its impact on his natural law theory. Novak, “Natural Law and Normative Judaism,” 3.

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rabbinic texts the assumption is made that the people of Israel accepted God’s law because they judged this overall covenantal relationship it concretized to be good and “righteous” (tzedaqah) for them.90 According to that statement, the Israelites arrive at the goodness of the law by reasoning based on their previous relationship with God. It is difficult to determine what type of rational argument this is: is it widely known because it is based on the Israelites’ experiences or because it is inherently rational, even if it is not known as such? Before resolving this difficulty and taking up a few other concerns, it should be noted here that from the discussion thus far, it is apparent that Novak is using the terms ratio per se and ratio quo ad nos in fairly exact ways, which are more or less consistent with the way he originally defines the terms. Ratio per se is being used to mean an idea that is known by reference to nothing but itself. Ratio quo ad nos, however, is used by Novak to refer to a concept that is widely accepted, as can be seen from the evidence with which he supports his claim. The two thinkers Novak cites, namely, R. Saadya and Hermann Cohen, lived a millennium apart from one another, and both have different perspectives.91 However, both figures take the prohibition to be widely known. Thus, the way Novak formulates his argument indicates that what he means by ratio quo ad nos is not an idea that makes a prohibition rational, but the fact that it is widely accepted. The difficulty arises from the context in which Novak refers to ratio per se. Since he writes that the “natural law” is first apprehended by Moses who teaches it to Israel, it seems that Novak no longer espouses the view that the inherent rationality can be discovered by everyone.92 On the contrary, it seems that only a select few can obtain that knowledge, and it is up to those few figures to transmit that information.93 Among those who receive this knowledge, 90 91

92 93

Ibid., 4. Emphasis mine. R. Saadia Gaon, Emunot Ve-De’ot 3:1. Hermann Cohen says as follows about the mitmensch: “Only now, after (nachdem) man has learned to love man as fellow man (mitmensch), is his thought turned to God, and only now (jetzterst) does he understand that God loves man.” Hermann Cohen, Religion of Reason Out of the Sources of Judaism, trans. Simon Kaplan (New York: Frederick Ungar, 1972), 146ff, quoted in Novak, Natural Law in Judaism, 84. R. Saadia begins with the premise that man must respect God’s plan in order for God’s creation to survive. What is not clear, however, is if Novak believes that Moses grasps the law on the exoteric and immediately necessary level, or on the esoteric level as well. Conversely, however, it would be difficult to accept the view that Moses’ understanding is no different from anyone else’s, since it is widely accepted that Moses had a superior grasp of the law. A closely related question, which illustrates this point, is whether Jews are required to promulgate the Noahide laws. Given that Novak presents the Noahide

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however, there may be some who are not convinced about the goodness of the law. How can they discover the value of the commandments? According to Novak, that can be accomplished on the basis of an analogy: Even if one is unconvinced of the goodness of a particular law (that is, what its beneficial purpose really is), one can still be convinced of the goodness of the Law per se, based on a relationship with its Giver in nature and history.94 Thus, on a particular level of action, a law is deontological; but that particular deontology is relative to a general and larger teleology.95 From this statement it would appear that the Israelites can only take God’s law to be rational based on a presupposition, namely, a relationship with God in nature and history.96 The point echoes Novak’s earlier discussion of the historical component of human beings, which means that they learn certain ideas from their community.97 In this context, it is significant to note that Novak stops using the internal/external distinction. As we have seen, the ground of the Noahide code is now based on an idea at which one cannot arrive by reason alone. To access that idea, one needs a “cultural heritage.” That is to say some of the norms that are necessary for a “relationship with God”98 are based on ideas that can only be learned in society. As a result, rationality in Novak’s thought can no longer be described in terms of internal or external relations. Thus, the distinction between the rational domain of the mind and the social domain that is external to it becomes meaningless. Nevertheless, rationality remains a crucial component of Novak’s argument. A case in point is his emphasis on the “rational motives” necessary in order for commandments as ratio per se, it would stand to reason that non-Jews should be able to arrive at that knowledge on their own. However, Novak later writes that it is up to Jews to publicize the laws. Novak, The Jewish Social Contract, 234; “Genesis and Morality,” Azure 15 (2003): 125. That statement would appear to suggest that there are insights into the law which are not widely available. 94 Cf. Novak, The Election of Israel, 151, where Novak bases the decision of the Israelites to accept God’s law on the goodness God showed them by taking them out of Egypt. On the question of Novak’s conflicting views on why Torah law should be kept, see Scherzinger, Normative Ethik aus jüdischem Ethos, 133. 95 Novak, “Natural Law and Normative Judaism,” 4. 96 As we will later see, the fact that Novak’s natural law theory includes an account of the acceptance of the Torah distinguishes him from scholars who have previously argued for natural law in Judaism. 97 Novak, Law and Theology in Judaism, 116. 98 Novak, The Image of the Non-Jew in Judaism, 148.

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God to involve himself in human history and enable his law to be received and interpreted.99 What that idea is said to prove is that the covenant only holds water if there is a rational acceptance of it.100 Seen in this way, the context for rationality changes, inasmuch as the crux of Novak’s argument here is not the rational validity of the law, but rather the objective factors that need to be in place for God’s law to be received. Further, rationality itself is no longer taken to mean that which is readily understandable but rather that which human beings are expected to know and how they are expected to respond to that information. Thus, “rational conditions” does not mean an inherently logical concept that precedes revelation; it refers to what the Israelites must know before the reception of the Torah and why that requires an acceptance of the law. In that sense, this article represents the first time that Novak explicitly rejects his original application of rationality, viz. the reasonableness of given commandments, in favour of a broader usage, namely, the reason for accepting the commandments.101 This change reflects the way that Novak begins to 99

Novak, “Natural Law and Normative Judaism,” 4. Perhaps more than in any other source, this idea of “rational motives” indicates that covenantal thought and reason are not mutually exclusive. That is to say a faith-based concept can still have a rational framework, such as a reasoned acceptance of God’s authority. By extension, I disagree with Aaron Hughes, who argues that reason for Novak is something that cannot be discussed outside of the framework of tradition: “While Novak will maintain that natural law is available by way of ‘reason,’ and therefore does not require revelation, he also maintains that one will only [sic] find articulations of the use or findings of such reason save for how they are expressed within a ‘tradition.’” Hughes, “David Novak: An Intellectual Portrait,” in Natural Law and Revealed Torah, 6. Based on the distinction I have highlighted, that which is ratio per se can only be known inside a covenantal tradition, but that which is ratio quo ad nos can be known outside of it as well. Note also what Novak himself writes in 1974: “By emphasizing the will of God, Judaism is accused of providing an authoritarian rather than intelligible foundation for human action: the person is told what to do rather than discovering what is to be done. This critique found its most famous spokesman in Immanuel Kant, who rejected heteronomy (external standards) in ethics in favor of autonomy (internal standards). Nevertheless, this rejection of theological ethics falsely assumes that the revelation of the Torah is the same as the presence of an oracle. The difference between them, however, is considerable. Revelation is God’s approach to man at a point in history. After that event, man must attempt to comprehend the meaning of revelation as the fundamental ethical datum; that is, he must intelligently approach God...Therefore, the theological process of discovering God’s will is as intelligent a human enterprise as the psychological process of discovering the nature of the self or the sociological process of discovering the nature of society.” Novak, Law and Theology in Judaism, 81. 100 Elsewhere, Novak writes that God would be the equivalent of a tyrant if that were the case. Novak, “The Commandments: Divine Will or Divine Wisdom,” Hawaii Jewish News, Special Supplement, November, 1987, 4. 101 As we will see in the second chapter, this change in content also corresponds to the change in the context in which Novak discusses natural law. It is here that Novak begins drawing

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include the Jewish people’s metaphysical assumptions into the content of his natural law theory. 2.5 “The Commandments: Divine Will or Divine Wisdom” In an article written for the Hawaii Jewish News, Novak sheds more light on the epistemology pertaining to the rational basis of the commandments. If it emerges from Novak’s Halakhah in a Theological Dimension that inherent rationality is based on a concept that is not widely known, here it becomes clear that only certain individuals are privy to that knowledge. The article relates to a conflict between Biblical verses detailing why one must fulfil the commandments. In some verses, the Torah implies that one should follow God’s command because of divine authority; in others, it is because God’s laws are “good.”102 Even taken individually, however, the verses raise theological questions. The former verse implies that the laws are to be followed simply because they have been commanded, making God appear as a tyrant. The latter verse, which suggests that the laws are to be followed because they are “good,” implies that God is subservient to a higher idea or cause. Novak writes that the way Jewish Neoplatonists have resolved this problem is by explaining that God, who created the world, also created a Torah that conforms to it. In other words, God chooses to be bound by justice. Thus, the Bible advocates following the commandments on the basis of their “goodness” only because God chooses to be faithful to that criteria. It can be argued that the rational discovery of this “goodness” corresponds to the widely accepted form of rationality, the reason being that only a widely accepted explanation would enable a comparison between commandments and allow them to be ordered “in a structure of values.”103 Stated differently, were Novak to base his argument on an inherent rationality, it would leave him with no way to compare two different commandments. The only way to compare commandments is by reference to their benefit, which of course cannot be known a priori. At the same time, Novak maintains that there is an inherent rationality in the commandments, but he implies that one’s knowledge of it is not guaranteed. This point can be seen from his concern with the purpose of the on the idea to explain the relationship between divine law and human acceptance, rather than referring to it as a way of explaining the legal preconditions of the Torah. 102 Deuteronomy 6:16, 18; Deuteronomy 4:6; Novak, “The Commandments: Divine Will or Divine Wisdom,” 4. 103 Ibid.

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commandments. Citing Philo’s statement that the fulfilment of the commandments themselves are a key to achieving the ends they intend, Novak makes it clear that the reasons for the commandments can only be understood through the adherence to them.104 This idea gives rise to the question of whether there is a component of fideism within what Novak presents as the inherently rational explanations for the commandments. The logic is as follows: if the purpose of the commandments cannot be achieved in any other way but through adherence to the commandments, then there is another benefit associated simply with following God’s law – a benefit that is not correlated with the ultimate purpose of the commandment. Giving more urgency to this question is Novak’s statement that one’s knowledge of the inherent rationality of the commandments is by no means assured. Initially, because of this, the commandments must be accepted simply as God’s will, just as the creation of existence is the result of God’s will. The developing insight of the seriously committed and intelligent student of nature and the Torah will enable one, however, to see more and more of the Divine wisdom in the Law as one comes to recognize the aptness of that law to human nature and the divine goal of perfecting human nature – or rather, allowing us to perfect it ourselves.105 According to Novak, only the enlightened student will gradually come to recognize the suitability of the commandments to human nature. Indeed, the initial acceptance of the commandments is taken on faith, meaning, as Novak explains elsewhere, that the laws are accepted on the basis of “the goodness of the Law per se based on the relationship with its Giver in nature and history.”106 From that point on, only those “seriously committed and intelligent” recipients of the Torah, however, will arrive at deeper – albeit limited – insights.107 If that is the case, then the deeper insight into the law, 104 105 106 107

According to Novak, this idea influences the distinction in Aquinas’s writings between ratio per se and ratio quo ad nos. Ibid. Ibid. Emphasis mine. Novak, “Natural Law and Normative Judaism,” 4. Seen in this way, the distinction between ratio per se and ratio quo ad nos balances the wide acceptance of God’s law with the abilities of the few enlightened students. Reinforcing the relationship between ratio per se and ratio quo ad nos is a parallel to Novak’s treatment of Torah in an article written a decade later. The context for this reference is a discussion of the potential of seeing the discussions in the Talmud as philosophical speculation. Novak’s starting point is the differing approaches of Rabbi Ishmael

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that is, an understanding of its inherent rationality (ratio per se), is simply out of reach for most recipients of the Torah. It would therefore appear that Novak’s natural law theory now admits of a privileged epistemology. Unlike his earlier treatments of natural law, in which he describes both the inherent and accepted reasons for moral norms as widely recognized, in this account Novak seems to admit that there are reasons that are known only to some individuals. Making this matter more difficult is the fact that the normative component of natural law stems directly from the fact that is it knowable through human reason. And even if Novak is only speaking about certain facets of Mosaic law, rather than Noahic law, it does not explain why Jews are obligated by those laws, since they cannot ever achieve a full understanding of the reason behind them.108 2.6 “Natural Law, Halakhah, and the Covenant” Building on Philo’s concept, Novak suggests in this subsequent article that the appreciation of the inherent reasons for the commandments depends on the adherence to them. The context for this discussion is Novak’s defense of his Jewish natural law theory against the likes of José Fauer and Marvin Fox.109 and Rabbi Akiva. For the former, the Torah has general and specific principles; for the latter, the only principles that can be established are done so on the basis of interpretation alone. This understandably gives Rabbi Akiva more interpretative flexibility. Nevertheless, “Like nature, the object of philosophical reflection, nothing in the Torah is seen as being superfluous or of arbitrary significance. The Torah is wholly and consistently intelligible (ratio per se), even if that intelligibility is only partially grasped by finite human intelligences (ratio quo ad nos). Therefore, the underlying meaning of the text must be worked out speculatively.” Novak, “The Talmud as a Source for Philosophical Reflection,” in The History of Jewish Philosophy, eds. D. H. Frank and O. Leaman (London: Routledge, 1997), 53. 108 To explain this, one could possibly suggest that, on Novak’s view, the responsibility on Jews is not to know the reason for the commandments, but to be a part of the community that carries with it the tradition that explains them. Correspondingly, the normative obligation would be coming from the fact that one lives within a covenantal community rather than the fact that those ideas can be accessed individually. 109 Ibid., 40–50. Novak devotes less than a page to Fox in his The Image of the Non-Jew in Judaism, and only in connection with the claim that Maimonides favoured revelation over reason, which Novak disputes. Novak, The Image of the Non-Jew in Judaism, 173. The article also includes a response to Leo Strauss. That section pertains to the question of whether the Bible has a notion of ‘nature.’ Novak sees justice (mishpat) in the Bible as the equivalent of nature. That discussion does not have an immediate bearing on our study. Novak, “Natural Law, Halakhah, and the Covenant,” in Jewish Law Annual, vol. 7, ed. Bernard Jackson (London: Harwood, 1988), 43; Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1983), 81.

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Against Fox’s claim that the benefits from God’s commandments are not perceived rationally before they are performed – Fox posits that only their usefulness can be detected, and only after they are performed110 – Novak writes as follows: Does not our experience of society and our need for society indicate to us in advance of any promulgated prohibition that murder is the most fundamentally antisocial act, that the permission of murder would destroy social intercourse? In other words, this commandment does not introduce us to a new experience whose meaning is only subsequently inferred: rather, it itself is inferred from an experience the rabbis considered to be universal.111 The fairly obvious implication of this statement is that, without the experience of living in society, one cannot arrive at the basis of the prohibition against murder. Thus, we might say that Novak makes explanations that are ratio per se dependent on the experience of reasons that are ratio quo ad nos. As we have already seen, however, it is far from certain that one will arrive at the deeper understanding of those commandments, even if he or she does experience those deeper benefits. 2.7 Jewish Social Ethics In his Jewish Social Ethics, written in 1992,112 Novak forms a connection between two of the three areas in which he now locates natural law in Judaism, namely, the reasons for the commandments and the rabbinic enactments.113 That is to say he further develops his natural law theory. As he does so, it becomes clear that Novak’s changing notion of rationality is closely related to the shift in his natural law theory. This point can be seen when Novak invokes the distinction between what is ratio per se and ratio quo ad nos, and then uses the latter term as a comparative measure between the reasons for the commandments and

110 Fox, Interpreting Maimonides, viii. 111 Novak, “Natural Law, Halakhah, and the Covenant,” 41–42. For a discussion of the phenomenology employed in this response, see infra, p. 59–60, fn. 184. 112 In this text, Novak’s focus turns to the ethics of issues facing “the larger world.” Novak, Jewish Social Ethics, 4. 113 These expressions of natural law were introduced in 1986. The book includes an essay on natural law, but much of the content of that section (22–44) is based on the article “­Natural Law, Halakhah, and the Covenant,” which was reviewed earlier.

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the rabbinic enactments.114 The contrast between them appears in a section on the rabbinic view of economics. The section is worth citing at length: Based on the theological principle “My thoughts are not your thoughts” (Isaiah 55:8), it was always assumed that whatever reasons for God’s commandments could be inferred from the formulae of their promulgation, the basic fact that they are God’s revealed will always takes precedence. Thus, even if one could infer the reason/telos of a commandment, and even if one could judge that the commandment no longer served its original purpose, such a judgement was deemed invalid and the commandment could not be repealed based on such a judgement. The assumption is that God’s revealed will has absolute authority because it is wholly sufficient. Human reasoning, conversely, has only relative authority, because it is never wholly sufficient. Human reason is never foundational but only conformational at best when interpreting divine law. Hearing God’s voice takes precedence over reading God’s mind when that seems possible.115 Novak, however, adds: With rabbinic legislation, however, the assumption is that humans can fully understand why other humans have legislated as they have. To be sure, it was not at all easy for later Rabbis to repeal the legislation of earlier Rabbis, even when the original reason for the original legislation called for such a repeal.116 The two categories compared here by Novak are cognates of the ratio per se and ratio quo ad nos categories. That is to say the rabbinic enactments must be persuasive to the community they serve and therefore universal, whereas the commandments are not contingent on their universally known purpose. The difference between them is that, to the extent that they have their own inherent purpose, the commandments apply even if their purpose is deemed irrelevant. In contrast to the commandments, however, the reasons for the enactment must be “convincing,” in order to take hold. Based on that 114 Novak, Jewish Social Ethics, 83, fn. 41. It is interesting to note that in an article dating to 1993, Novak equates ratio per se with judgement (din), which is the traditional term for God’s unquestioned judgement, and he says that the basic Noahide laws fall under the same category. Novak, “What is Jewish about Jews and Judaism in America,” in Tradition in the Public Square, 197. 115 Novak, Jewish Social Ethics, 216. 116 Ibid., 217.

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comparison, and the emphasis on the purpose that drives the enactments, it might equally be said that the enactments are judged by reference to their purposes, while the commandments are judged by reference to their source. From this comparison, or rather from that which makes this type of comparison possible, we can see that the meaning that Novak assigns to rationality corresponds to the shift in his natural law theory. As that which is widely accepted, or ratio quo ad nos, becomes categorically different from that which is ratio per se, the former being associated with widely recognized benefits and the latter with what is learned through one’s “cultural heritage,”117 the commandments themselves become explainable by reference to two different types of reasons: they can now be justified by their widely accepted benefits but also by their metaphysical basis. Thus, when Novak discusses the prohibition of murder, he offers two explanations for that commandment. In one section of the text, in which he responds to Fox’s claim that the benefits of the commandments can only be known after the fact, Novak says that murder would destroy “social intercourse.”118 In this case, the explanation for the inclusion of the prohibition of murder is known by reference to social existence. Later in the very same text, in the context of a chapter on crime in our society, Novak explains the commandment in the following terms: The sanctity of human persons as the image of God is the foundation of human equality, which is, in turn, the basic ethical norm. It means that all humans are sacred entities requiring respect and protection.119 This second argument cannot be seen as an appeal to that which is widely known; quite the opposite is the case. And, suffice it to say, Novak’s basis for treating every human being equally, even those that are “psychotic” or “senile,”120 cannot be described as readily apparent either. Even for those who believe in the doctrine of imago Dei, it is at best only upon consideration of one’s beliefs that hurting another human being could be represented as harming God’s image. Thus, Novak’s two explanations for the prohibition of murder, which is where he originally locates natural law in Judaism, corresponds to the two types of rationality to which he has been referring all along. What this suggests is that his conception of rationality is in complete consonance with his natural law theory. 117 Novak, Law and Theology in Judaism, 116. 118 Novak, Jewish Social Ethics, 26. 119 Ibid. 165. 120 Ibid.

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All of this is not to suggest that the two natural law-type explanations are at odds with one another. As his appraisal of John Courtney Murray’s natural law theory shows, one could only successfully argue for moral norms on the basis of widely known rationality. According to Novak, Murray’s theory falls short in this regard, since it is not based on a “definable human nature” that can be referenced even outside of a religious framework.121 The key to a more convincing natural law theory is the following: Jus naturale will have to give way to jus gentium, namely, not what the community accepts as a priori universal truth but only what it itself constitutes as generally normative in and for the world beyond the immediate pale of its own adherents. Here one will have to appeal to historically evident data, rather than to the type of metaphysics Murray suggested.122 A close look at this statement shows that Novak aligns jus naturale with “a priori universal truth” and jus gentium with what is constituted as normative and thus accepted by consensus. In this formulation, natural law in Novak’s view refers to the acceptance of universal truth, but that is subordinated to what is widely known.123 Be that as it may, what emerges here is that, in what corresponds to the distinction between the categories of rationality, Novak’s natural law theory now encompasses two types of explanations for moral law. 2.8 Review of Menachem Elon’s “Jewish Law” To the extent that the inherent reasons for moral laws are not widely known, it follows that explanations which are ratio per se would become less effective for Novak’s purposes. It is therefore not surprising that, in a review of Menachem Elon’s magisterial work on Jewish law, wherein Novak defends the prominence of natural law in Judaism, he does not use that term. In fact, Novak only uses the term ratio quo ad nos when he refers to the superior explanation for the Noahide laws, which he brings as evidence that the concept of natural law can be found in rabbinic texts. That term is one of a few other mishnaic and talmudic expressions that Novak sees as the equivalent of natural law: Yes, what this misses is that a concept is not confined to a particular name for it. As such, such terms as mishpat (“justice”), tikkun ha’olam 121 122 123

Ibid., 76. Ibid., 77. It must be noted that this interpretation is not entirely consistent with what Novak originally calls ratio quo ad nos, since the term is generally associated with normative implications rather than universal truths. Cf. Novak, Natural Law in Judaism, 153, where he mediates between the earlier and later interpretations. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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(“bonum commune”), mitsvot sikhlliyot (“rational commandments”), hamitsvot ha-nikarot (“ratio quo ad nos”), and hekhrekh ha-da’at (“inclinatio rationalis”) are the conceptual equivalents of the term “natural law.”124 Novak’s main argument in this review is that Elon unduly minimizes the role of natural law in Jewish law and arbitrarily focuses just on the “interhuman” law rather than on the laws governing the relationship between man and God. Placing the two arguments in tandem, Novak seems to be grounding Jewish law as a whole in natural law.125 Given the level of prominence that Novak attaches to natural law, and the reasoning that is at the core of its norms, it is significant to note that he omits the term ratio per se and the word that would best represent it, namely, “understanding” (binah). Instead, his list of words appears to show that only what is generally known is associated with natural law.126 2.9 “Religious Communities, Secular Society, and Sexuality” While the term ratio per se begins to fall out of use, Novak nevertheless locates the same idea in the concept of wisdom. And although Novak has mentioned the term earlier,127 it is not until this article that the concept is developed further. When Novak uses wisdom here, he does so to refer to explanations for both rational and non-rational commandments. Since that wisdom is not readily apparent, however, One may only affirm what is rational as being the wisdom of God. For Jews, that means that among ourselves we must affirm the authority of both those commandments that do not have general reasons (like the dietary prohibitions) and those commandments that do have general reasons (like the prohibition of murder). However, in secular society we may affirm the wisdom of only those commandments (like the prohibition of murder) that apply to everyone for good reasons. All we require is that the wisdom of these commandments be capable of discussion; we do not require that the divine source of these wise commandments be affirmed by anyone else.128 124

Novak, review of Menachem Elon, Jewish Law: History, Sources, Principles, Vera Lex 14:1–2 (1994): 51–54. 125 Ibid., 53–54. It should be noted that, in this article, Novak grounds natural law in reason, which is a view that he tends to move away from. Ibid., 52–53; cf. Novak, Halakhah in a Theological Dimension, 97. 126 Alternatively, Novak means only jus gentium, as we have just seen. 127 Novak, The Image of the Non-Jew in Judaism, 172 128 Novak, “Religious Communities, Secular Societies, and Sexuality,” in Tradition in the Public Square, 286–287. Emphasis mine. Novak first discusses this concept in detail in 1996. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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What Novak implies here is that there are limits to the concept of wisdom, since Jewish insight into societal norms is only relevant to the extent that it offers a supplementary explanation for them. In what he calls an “ontological constitution” of natural law, Novak explains that this wisdom draws on a theology of creation to base the norms in something more fundamental than society.129 The similarity between this concept and ratio per se can be seen from the fact that this wisdom is unavailable to anyone outside covenantal communities, for without insight into a theology of creation, there would be no framework for recognizing moral norms as a violation of an inherent truth.130 Nevertheless, the widely accepted benefits of moral norms are still held to be valid, even as their deeper reasoning can still be explained by reference to a divine source, suggesting that the inherently rational component of natural law works alongside the widely accepted one. As Novak develops this idea further, it will become clear that he employs wisdom as a way of maintaining the metaphysical and widely accepted facets of natural law. 2.10 Natural Law in Judaism The ideas we have seen, in particular those pertaining to the reasons for the commandments and rabbinic interpretation and decrees, set the theme for much of Novak’s most complete account of his natural law theory, written in 1998. Central to the text is Novak’s robust defence of the view that natural law is inherent to Judaism, a defence which he begins by citing scriptural evidence of natural law-type ethics.131 For Novak, these biblical episodes seem to show that, long before the rabbinic formulation of the Noahide commandments, Novak, “Law of Moses, Law of Nature,” First Things (February 1996): 48: “And yet, there is a way we can speak of the wisdom of God in a social context in which only wisdom is immediately intelligible. For to assert any wisdom is ultimately, for Jews, the wisdom by which God creates, structures, and sustains the world.” It should be noted that Novak hints at the concept in his Halakhah in a Theological Dimension. Novak, Halakhah in a Theological Dimension, 83. 129 Novak, Natural Law in Judaism, 26. 130 Novak also calls this knowledge “historical.” Novak, Law and Theology in Judaism, 116. Scherzinger argues that the political setting of Novak’s natural law theory allows him to argue for the universalizability of what are actually particular norms without offering an account of the epistemology of arriving at those norms. Scherzinger, Normative Ethik aus jüdischem Ethos, 323. This discussion of wisdom constitutes a challenge to that understanding. Novak does not argue that the norms themselves should be practiced by everyone; he states that they already are practiced by society. Instead, as we will see, what wisdom offers for Novak is an explanation of why those norms are universal. And as such, it is more accurate to say that Novak is offering what he sees as the significance of the norms. 131 Ibid., 31–61.

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there was a “universal precondition” to the covenant.132 This exegesis brings further support to what we have already seen, namely, that the meaning Novak assigns to natural law now goes beyond his original interpretation of it, specifically as it pertains to norms which can be discovered through reason. The clearest indication of this change is the fact that Abraham’s covenant with God, and their mutual recognition of a standard of justice, is described by Novak as an example of natural law in the Bible.133 The episode that Novak has in mind, viz. Abraham’s questioning of God’s intentions of destroying Sodom – despite the fact that righteous civilians will die – does not fit into any of the Noahide laws, at least with any measure of ease. If Novak locates natural law in that narrative, it is clear that the term now refers to a deeper concept than rationally discoverable norms. Indeed, the only definition of natural law that would place this idea within its boundaries is that, by virtue of being created, human beings are commanded by God to respond to the just demands of other human beings in our society.134 Along these lines, Novak explains that we constitute the other’s claim upon ourselves before we have a notion of who we are.135 Human beings are therefore expected to respond to these demands: As moral beings we humans have the ability to be either responsible or irresponsible to the just demands of those other persons to whom we are related in our natural society.136 An important point to note here is that the imago Dei, which is originally described as the direct relationship between human beings and God, and the ability of human beings to respond to God,137 is now described as mediated by human beings: “[I]t requires the other participant or participants for its realization.”138 Stated differently, the discovery of the imago Dei is made through other human beings.139

132

Ibid., 61. Pace Scherzinger, Normative Ethik aus jüdischem Ethos, 254. See also Novak, Natural Law in Judaism, 60–61. 133 Ibid., 39ff. 134 See Jonathan Milevsky, “Reason with Baggage,” Journal of Religious Ethics 47.4 (2019): 696–715. 135 On this point, Novak is indebted to Levinas. Novak, Natural Law in Judaism, 166. 136 Ibid., 44. 137 Novak, Halakhah in a Theological Dimension, 99. 138 Ibid. 169. 139 This point will be developed further when we look at Novak’s subsequent writings.

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Be that as it may, in order to respond justly, human beings must have a way of discovering justice on their own.140 This point can be seen in Novak’s explanation for Cain’s culpability in his killing of Abel: So why is he guilty anyway? The only cogent answer is that it is already assumed that he knows murder is a crime. And how if not by his own reason? And what is that reason? Is it not the fact that he and Abel are brothers, that is, minimally, they are equal enough by virtue of ultimately common ancestry so that neither of them has the right to harm the other for his own individual advantage.141 The question Novak is asking is based on the fact that the text in the first few chapters of Genesis gives no indication that murder is prohibited.142 Although the rabbis base that law, and most of the other Noahide commandments, on an earlier verse in the Bible in which God commands Adam not to eat from the fruit of the tree, Novak suggests elsewhere that that verse is only a mnemonic device for the law rather than its actual source.143 Thus, Novak uses the fact that Cain is held responsible for the murder of Abel, despite the absence of any explicit warning against such an act, to show that Cain should have arrived at the prohibition on his own. The argument hinges on two points: the first is that God would not punish Cain for doing something that has not been explicitly prohibited, or for something he could not have known; the second is that murder is something that humans could recognize as a crime. Both points in turn hinge on the knowability of the prohibition. That is to say that God would explicitly warn Cain against murder if it were not something he could have discovered. Thus, Novak’s argument hinges on the discoverability of the norms.144

140 They can also expect God to act by the same standards, which is why Novak includes Abraham’s discussion with God into his example of natural law in the Bible. 141 Ibid., 33–34. 142 Meaning, even if one overlooks the fact that God never explicitly warns Cain not to murder Abel. Ibid., 34. 143 Novak, Covenantal Rights, 189, re: b. Sanhedrin, 56b; Genesis 2:16. 144 This view differs from that of Scherzinger and Newman. They divide Novak’s natural law into four parts, which are as follows: natural law in the Bible, specifically, the instances of biblical figures being aware of, or held responsible for, commandments that were not directly given to them; the rabbinic interpretation of the reasons for the commandments; the Noahide laws; and creation theory, by which Scherzinger means Novak’s teleology. From what I have shown, it is evident that Novak does not argue that the Bible is a separate source of natural law in Judaism, but rather that the episodes recorded in the Bible reinforce the role that the Noahide law plays in the lead-up to the Sinaitic ­covenant.

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However, Novak’s discussion of rationality has shown that he places constraints on what one can discover independently: according to Novak, one needs access to a historical community to gain insights into some rational explanations. And as Novak fleshes out the way in which he locates natural law in the reasons for the commandments, we learn that similar limitations exist with respect to that area of the Jewish tradition as well.145 These constraints can be seen from Novak’s explicit warning against what he calls “totalizing rationalism” when considering the reasons for the commandants.146 We cannot assume that the discovery of the particular reason for a given commandment will help us understand the various details involved in carrying out that commandment; and that is because the details of every commandment are irreducible to the reason behind it.147 Nevertheless, it is possible to provide reasons for the commandments without offering comprehensive explanations. According to Novak, Maimonides did so successfully: By emphasizing the rationality of the law without resorting to the totalizing rationalism characteristic of some modern Jewish thinkers, Maimonides saves revelation from being reduced to reason, and he saves the law from being reduced to divine caprice.148 To understand Novak’s meaning, a little clarification is necessary. There are details within commandments that can be explained quite easily by reference to the general purpose of the commandment to which they belong. So, for example, there are a number of organic species that cannot be mixed with one another.149 The basic details of the commandment that are specified in the Oral Law, such as the list of species that are included in that prohibition,150 follow from the basic purpose of the commandment, namely, keeping apart

­Scherzinger, Normative Ethik aus jüdischem Ethos, 254; Louis Newman, “The Law of Nature and the Nature of the Law,” 264. 145 According to Novak, the commandments are only a “further specification” of the Noahide law. Novak, The Image of the Non-Jew in Judaism, 148. Novak’s treatment of the commandments is heavily influenced by Maimonides’ discussion of the purposes of the commandments (ta’amei ha-mitzvot). Novak argues that Maimonides’ discussion of the reasons for the commandments has a talmudic precedent in Rava, the Babylonian sage who speaks of the ta’ama, or reason, of the commandments. Novak, Natural Law in Judaism, 98. 146 Ibid., 97. 147 Ibid. 148 Ibid. 149 Leviticus 19:19. 150 M. Kilayim, chap. 1.

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the various species that God has separated at the time of creation.151 Other details, however, such as how distant the seeds have to be from one another to fall outside of that prohibition, are also described by the Oral Law.152 But those details are not necessarily understandable by reference to the general purpose of the commandment. Consequently, the rational explanations are essentially kept in check by the minutiae of the commandments. In Novak’s treatment of both the Noahide code and the reasons for the commandments, then, there are limitations to what human beings can discover, even if those limits do not apply to everyone equally. It follows that, just as Novak’s dual conception of rationality informs the two explanations he offers for the Noahic prohibition of murder, it also shapes his treatment of the reasons for the commandments. As we have seen in an earlier article, however, the limits of human reason do not impinge on one’s adherence to the commandments.153 On the contrary, Novak states that the rational explanations for the norms can be a motivating factor – and can be acted upon – even if they are not entirely understood. Indeed, according to Novak, rationalists see a purpose even in the so-called nonrational laws, inasmuch as adhering to them is attaining what God i­ ntended.154 The meaning behind that statement is that these thinkers are motivated by an idea that they perceive to be rational.155 However, they can only suppose the idea to be rational; they have no knowledge of the Ding an sich. In this case, the deciding factor for the acceptance of the non-rational commandments is achieving their intended benefit, even as that benefit is not knowable in itself; it is known by virtue of God’s promise.156 While this explanation of the reasons for the commandments is fairly consistent with Novak’s treatment of it in Jewish Social Ethics,157 his discussion of the rabbinic enactments, which he sees as closely related to the reasons for the commandments, differs from the way he originally describes it. Earlier, Novak speaks about the persuasiveness of the rabbinic enactments as the locus for

151

This interpretation follows that of Nahmanides. Nahmanides, Commentary on the Torah, Leviticus 19:19, ed. C. Chavel (Brooklyn: Shilo, 1974), 195. According to Maimonides, however, mixing species is an idolatrous practice. Maimonides, Guide to the Perplexed, 3:37. 152 M. Kilayim, chap. 2–6. 153 Novak, “The Commandments: Divine Will or Divine Wisdom,” 4. 154 Novak, Natural Law in Judaism, 65. 155 Aquinas, Summa Theologica, 1/1, q.2, a.1, in Basic Writings of Saint Thomas Aquinas, 6. 156 Novak, Natural Law in Judaism, 65. 157 Novak, Jewish Social Ethics, 216. This text is where Novak first makes the connection between the various areas in which he locates natural law.

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natural law factors.158 Here, however, Novak locates natural law factors in the process of the enactments, rather than what it takes to enforce them. This latter point is based on the prerequisites for the enactments, as described by Maimonides: (1) The authorities must deliberate ‘according to what seems proper in their eyes (ke-fi mah she-nir’eh); (2) they must discern the likelihood whether the proposed legislation will be accepted by the majority of the law abiding members of the community.159 In this process, Novak detects a rabbinic teleology, which he closely associates with the teleology of the commandments.160 This teleology is in evidence in the first prerequisite, for the rabbis could only uproot earlier enactments (or make new ones, for that matter) through “rational/teleological grounds,” which Novak defines as new or better ways of arriving at their original purpose.161 While the likelihood that a given decree will be accepted is still important, that is only to ensure that the enactment will not be in vain. Thus, there seems to be a different emphasis in this conception of the rabbinic enactments. Here, the natural law factors that Novak locates in the enactments relate to the teleology that drives rabbinic thinking in these matters, rather than to the wide acceptance of their decrees. The contrast between the earlier and later interpretations can be illustrated by looking at the divine purpose of some of the enactments. Those types of purposes can be seen here: Obviously, for such approval to be won, the enactment itself had to be based on a consideration of the purposes of the Torah in general, one of which is surely to directly relate all instances of great deliverance to the awareness of the presence of God and to thus affirm that nothing is accidental.162 In the case that is mentioned here, an enactment could be the institution of a new holiday, one which recognizes “great deliverance.” The ultimate purpose of such a gezerah would be to create a long-lasting tribute to a miraculous 158 Novak, Jewish Social Ethics, 38. 159 Novak, Natural Law in Judaism, 107. 160 Ibid., 68, 96ff. 161 Ibid., 108. 162 Ibid., 99.

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event.163 In other words, it is the recognition of God’s intervention. As a result, that enactment cannot be easily understood by reference to a widely accepted reason, even if the rabbis gain universal acceptance for their decision. That example illustrates the difference between Novak’s earlier and later formulation. In the earlier description, the focus is on what the community would accept; in the later one, the attention is directed to the ability of the rabbis to align their thinking with the “purposes of the Torah.”164 Crucially, the basis of these enactments is “human personhood” which Novak grounds in the imago Dei.165 While that ground seems to be at odds with the purposes of the Torah, Novak reconciles them elsewhere by saying that “that which pertains to interhuman relationships (bein adam le-havero) is of ultimate significance in the relationship between God and man (bein adam le-maqom).”166 This ground upon which the rabbis base their enactments – regardless of whether those two purposes can be reconciled – can therefore be identified with what Novak calls an inherently rational idea rather than a widely known one. But as the validity of the enactments depends on their wide acceptance, it seems that, here as well, widely publicized explanations take on a greater import. In this text, the concept of “God’s wisdom” is fully developed. Following his earlier discussion of the concept, the explanations that are defined as wisdom are only available to those within a covenantal tradition. To demonstrate this point, some further clarification is necessary. Novak further develops the concept of wisdom by contrasting it with divine will. When taken as a transitive verb, God’s will is an object that cannot be separated from its subject. That is 163 164

The holidays of Hannukah and Purim are two prominent examples of such an enactment. A further contrast remains between Novak’s position here and his statement in Jewish Social Ethics concerning the difference between the purposes of the commandments and the purpose of rabbinic enactments. Novak originally presents the enactments as requiring an immediately evident purpose, the reason being that the purpose of each enactment is what makes it valid. Suffice it to say that that requirement is absent from the divine commandments, which are valid regardless of their purposes. Novak, Jewish Social Ethics, 216–217. The practical difference is that an enactment would not hold when its purpose is no longer evident, while a commandment would be valid regardless of whether its apparent reason is still relevant. According to this formulation, however, the enactments are similar to the divine commandments, inasmuch as it is assumed that the rabbis have an insight into human personhood that enables them to make decrees. Indeed, that type of insight would explain why only the rabbis are “empowered” to make those decrees. Novak, The Election of Israel, 172. 165 Ibid., 164, 167. 166 Novak, The Election of Israel, 174. I challenge this point in a subsequent chapter.

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to say the term refers to obedience to God’s command. Thus, in the prohibition against eating pork, not eating it is a response to God’s will. Wisdom is different: But to speak of the wisdom of God, when “wisdom” functions as a predicate, is to speak of a state which can be spoken of, at least initially, apart from the subject of whom it is predicated. For when we speak of something as being the product of the wisdom of God, we can see its meaning, at least initially, in and of itself. Thus, for example, we can appreciate the wisdom of the commandment, “you shall not murder” (Exodus 20:13) before we eventually understand that its prescription is part of God’s wisdom as creator of the universe and its nature in which moral law is an inherent ingredient.167 Novak elucidates the concept further by explaining wisdom in reference to the human process of understanding God’s commandment, rather than simply reacting to it. Seen in this way, “God’s wisdom,” as a concept, concretizes the component of inherently rational ideas. And since such ideas are only understood after an acceptance of divine commandments, it is clear that these explanations are out of reach for anyone outside a covenantal tradition. The difference in this discussion of wisdom, however, is that it is described as affirming something that is already recognized as normative. Stated differently, because wisdom serves as an explanation for an existing phenomenon, the idea is in essence a descriptive rather than normative one. Earlier on in Novak’s thought, however, that is not the case. Speaking about the prohibition of murder in the context of war, Novak draws upon the Noahide laws as his frame of reference and claims: The rabbis made it quite clear that gentiles domiciled under Jewish jurisdiction were expected to conform to their seven commandments as enforced by their Jewish authorities.168

167 Novak, Natural Law in Judaism, 17–18. See also Novak, “Law and Moses: Law of Nature,” 45–49: “All of this is why Jews can speak persuasively in secular public space about the prohibition of murder in a way we cannot (and should not) speak about the prohibition of eating pork. And it is why the prohibition of murder is taken to be immediately universal and rationally perceivable.” 168 Novak, Law and Theology in Judaism, 128.

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Novak then shows that the laws are used as a measure to determine whether a Jew can participate in society. If these principles are kept, then Jews can recognize the state de jure not just de facto.169 Thus, it was not assumed that the laws were already being kept. Further, in his Image of the Non-Jew in Judaism, Novak states that “the Noahide was judged bound by Noahide law regardless of formal acceptance.”170 That statement, which is clearly formulated as a desideratum, implies that the concept of the Noahide is normative, rather than descriptive. Further, in response to critics of an article Novak writes about the criminal defence system, he makes reference to the “immutable principles” in Judaism from which he argues that the American legal system can learn.171 Could it be that Novak simply blurs the distinction between that which is normative and that which is descriptive? That does not appear to be the case. Indeed, quite early on, Novak already shows clear-headedness about the difference between the two: Jewish law is essentially divided into two realms: (1) Jewish law for Jews living in a society governed by that law; (2) the law governing all peoples as seen by the rabbis either as the actual state of affairs in the world (similar to the Roman ius gentium), or as seen as a legal desideratum (similar to the medieval lex naturalis).172 In this section, Novak responds to the criticism that admissions are not accepted in Jewish law by showing that there are exceptions to that rule. The immediate relevance of the introduction is that, in the case of the N ­ oahide laws, which he identifies as laws that apply to everyone, some admissions are accepted. The point that emerges here is that Novak clearly recognizes a difference between the normative and descriptive elements of natural law, even if he does not yet formulate the criteria to distinguish between them. Nevertheless, in the context of the public square, we see a shift in the type of argument Novak is making: what begins as a normative claim when Novak advocates for the norms, later becomes a descriptive claim, as he provides a metaphysical basis for them.173 I return to this point in my treatment of Novak’s Sanctity of Human 169 Ibid., 129. 170 Ibid., 146. 171 Novak, “Reply to Critics of ‘Exclusionary Rule’ with Judge Herbert A. Posner,” 2. 172 Ibid. 173 On this point, Novak disagrees with Richard Rorty, “Religious Communities, Secular Society, and Sexuality: One Jewish Opinion,” in Tradition in the Public Square, Novak, 287– 288. On this debate, see Jacob Goodson, “Contingency, Irony, and Vulnerability: Richard Rorty and Scriptural Reasoning,” in Rorty and the Religious: Christian Engagements with a

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Life, in which Novak becomes more explicit about the type of argument he is making in the public square. 2.11 Talking with Christians We have seen that, in his later accounts of natural law, Novak is more likely to use ratio quo ad nos than ratio per se, the reason being that the knowledge associated with the latter is generally out of reach. Correspondingly, Novak’s natural law theory is likely to be convincing only if it is argued on the basis of widely accepted norms, especially given the insights we gain from this text into the meaning of ratio per se. In one particular chapter, Novak outlines the influence of Martin Buber on Paul Tillich and proposes a way in which Buber’s thought could be enriched by that of Tillich.174 The discussion centres on the exegesis of Exodus 3:14, “And G-d said unto Moses: I am that I am; and he said: ‘thus shalt thou say unto the children of Israel: I am hath sent me unto you.’” Novak prefers the Hellenistic interpretation of the verse, namely, that the text refers to “being per se,” and that enables Novak to posit that the verse refers to an objective and subjective knowledge of God: Hence, the relationship is always present as an object is always present. Its absence is only an experience due to a subjective lack in the human knower. To borrow from Aquinas’s language: God is always “ratio per se” (intelligible in himself) with regard to human noetic potential; God is only “ratio quo ad nos” (intelligible to us) with regard to actual human knowledge. The actualization of human knowledge is essentially an issue for humans as temporal existences in the process of becoming; it is not essentially an issue for the eternal, unchanging God.175 Novak follows Aquinas in associating God with what is ratio per se, and in so doing reinforces here his earlier idea that ratio per se is not necessarily knowable through human cognition. In a corresponding footnote, however, Novak complicates the efforts to determine the relationship between ratio quo ad nos and ratio per se in his thought.176 The issue is Novak’s reference to Plato’s allegory of the cave. Since Plato’s allegory refers to human beings who perceive only an

174 175 176

­Secular Philosopher, eds. Jacob L. Goodson and Brad Elliot Stone (Eugene: Wipf and Stock, 2012), 123–128. Novak admits that there is no evidence that Tillich influenced Buber. Novak, Talking with Christians, 91. In this chapter Novak nevertheless shows how Tillich’s thought can be enriching for Buber’s theology. Ibid., 94. Ibid, fn. 15; Plato, Republic, 514Aff.

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approximation of reality, Novak’s reference to it can be taken to mean that the noetic potential can include knowledge that is objectively different than actual human knowledge. However, from what we have seen, the two types of explanations for moral law are not as distant from one another as they appear to be here. On the surface, at least, the knowledge of the benefit of not killing other human beings cannot be seen as differing categorically from the knowledge of why it is inherently unjust. The latter may require more ­cogitation, but the two rationalizations are then known in the same way. Further, the two reasons are not opposed to one another: murder can be seen as socially destructive and also inherently unnatural. Those ideas can coexist in a way that cannot be said of the display in Plato’s cave, inasmuch as shadows are only an approximation of reality, not simply a different perspective. It is unclear if Novak is suggesting that there is indeed a categorical difference between ratio quo ad nos and ratio per se, or if the chasm between what is rational in itself, on the one hand, and widely known, on the other, only pertains to the knowledge of God.177 According to either interpretation, the meaning Novak attaches to ratio per se, in his final reference to that term, would be in keeping with the rarefied realm in which he places that category of essential ideas. 2.12 “The Universality of Jewish Ethics: A Rejoinder to Secularist Critics” Earlier we raised the question of how one can be obligated by a law whose reason is generally beyond reach.178 Novak’s answer to this question emerges from this article, in which he defends Judaism against the charge of particularity. Indicating the direction of his argument, Novak posits that a norm that is based in a religious tradition can be universalized only if the reason behind it applies to everyone.179 Novak’s main challenge is from Kant, from whom he learns that the question of the universality of norms needs to be addressed in light of their subject, object, context, and source.180 The norms must therefore be universalizable for all of these factors. Novak initially argues for the universality of moral norms with respect to the first three categories, on the grounds that the laws pertain to anyone to whom they are directed and based on the fact that non-covenant members are only excluded from the law due to partial egalitarianism. Thus, Novak suggests that Judaism is “universal enough.”181 177 178 179 180 181

Even if the latter is the case, according to Maimonides, divine law is only compatible with reason, but not fully accessible by it. Supra, p. 42. Novak, “The Universality of Jewish Ethics,” 183. Ibid., 188. Ibid., 196.

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Because the last of Kant’s factors depends on the equality of subject and object, however, which of course cannot be the case when the source of the commandment is God, it is difficult to argue for the universalizability of Jewish law in that regard. But Novak argues later in the same article that Judaism is more universal than Kantian ethics in that regard, for the law includes even those who are mentally incapacitated: That is why expanding our view of the moral universe through a theory of divine creation of the universe helps us overcome the estrangement from the rest of creation (Nature) that is inherent in Kantian like autonomy with its elevation of the ideal of autonomy to the level of the absolute.182 This last point connects the dots between Novak’s formulation of the imago Dei as a term implying a capacity for a relationship with God and his argument for the universality of the norms. Because the relationship with God is at the heart of the commandments, those obligated by the commandments include anyone capable of that relationship.183 This connection illustrates the radical change in the content of Novak’s natural law theory over the course of his writings. When Novak originally grounds natural law in reason, the norms associated with it are first seen as obligatory by virtue of the fact that they are rationally attainable. As Novak’s theory is furnished with a metaphysical ground, however, the norms become dependent -- in both their point of origin and, as we will see, their intention -- on a relationship with the God of creation.184 182 183 184

Ibid., 203. Novak adds that only an infused teleology, concerned as it is with God’s active interest in the world, rather than inherent teleology, whose subject is the striving to be like God, offers a satisfying reason why one should pursue peace and avoid violence. Ibid., 202–204. Novak can be seen as addressing this issue with phenomenology. In Halakhah in a Theological Dimension, for instance, Novak explains that the experience of society shows that murder “destroys social intercourse.” Novak, “Natural Law, Halakhah, and the Covenant,” 41–42. That description is a reference to the widely known explanation that murder is destructive. In later texts, however, the phenomenological approach pertains to a metaphysical explanation for murder, namely, the damage that such an act inflicts upon the imago Dei. Thus, Novak explains that we do not harm others because we have an “inchoate notion” of the “special status” of human beings. Novak, Natural Law in Judaism, 172. In a similar vein, Novak then explains that human beings can experience the imago Dei through “hearing the mediated voice of God through the world,” Novak, “The Human Person as the Image of God,” in Personhood and Healthcare (Dordrecht: Kluwer Academic Publishing, 2001), 52, 54. Here Novak is using phenomenology to arrive at ideas that he presents as rational in themselves. The same idea can be seen when Novak revisits his notion of the precondition of the covenant: “For Jews, that means we were living under

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the more general Noahide law before we came to live under the more specific and more concrete Mosaic law (as we shall soon see). This is best understood when we look at what might be considered the beginnings of general moral experience in any human culture, employing phenomenology as our method of enquiry.” Novak, “Natural Law and Judaism,” in Anver Emon, Matthew Levering, and David Novak, Natural Law: A Jewish, Christian, and Islamic Trialogue, (Oxford: Oxford University Press, 2014), 19. Elsewhere, Novak makes a similar point: “Indeed, human sociality presupposes a physical order surrounding it, upon which it can depend for its own continuity. But humans discover their own essential order, their own essential law, from their own social experience. Only thereafter do they discover the order of the nonhuman realm by analogy.” Novak, Natural Law in Judaism, 38. In this example, Novak is arguing why even the non-rational law ought to be kept, namely, because of one’s experiences of having to listen to authority figures based on their authority alone. In this case as well, phenomenology is linked to normative implications. Similarly, when he articulates the position of the would-be murder victim, the experience of his cry not to be harmed translates into a prohibition against violence towards him or her. Novak, “Natural Law and Judaism,” 37. This phenomenological approach gives Novak the advantage of circumventing the rational categories that are a mainstay of his earlier account. Novak makes this point explicitly here: “As such, I see a middle road theologically between a reduction of reason to revelation, which seems to characterize the opponents of natural law, and a reduction of revelation to reason, which seems to characterize the proponents of natural law in Judaism, especially in modern times, as we shall see in the next chapter. I think that a proper phenomenological constitution of Judaism will bear this out.” Novak, Natural Law in Judaism, 28. Emphasis mine. Novak thereby resolves the problem we encountered earlier in this section, namely, that the rational basis of the norms is unavailable to those outside of the covenant. This approach can therefore be seen as a consequence of the metaphysical ground he introduces in his later treatment of natural law. It stands to reason that Novak’s introduction of a new method is related to the other change – his new position on the ground of ethics. Evidence for that assertion can be brought by looking back at Novak’s first treatment of the question of the ground of morality. As I have already suggested, Novak develops his phenomenology later in his text, and shows how the experience leads directly to the inherently rational ground of the prohibition. In the earlier formulation, the experience only pertains to the widely known benefits of the Noahide commandments. Nevertheless, the primary argument, namely, that the new ground leads Novak to find a substitute for rational argumentation, still stands. In response to the earlier version of that question, concerning the ground of the Noahide commandments, Novak posits that there are three possibilities for the ground of the Noahide code – reason, consensus, and God’s revealed will. The first two possibilities are available to human reason, at least inasmuch as one could arrive at consensus through a rational decision, or can recognize the rationality of a specific commandment by way of ratiocination. The third possibility, however, would not be directly accessible by reason. Since Novak rejects the first two possibilities in Halakhah in a Theological Dimension, his alternative is not likely to be accessible through reason, for he exhausts the two forms of rationality, namely, reason and consensus. As a result, it can be reasonably argued that the introduction of a new ground of ethics is directly related to the new method of inquiry. The problem with Novak’s general statements about this phenomenology, which are addressed to the public square, is that he has not accounted for those who have never experienced injustice. Taken one step further,

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2.13 The Sanctity of Human Life In Novak’s next treatment of natural law, he is more explicit than he is earlier about the fact that society generally adheres to the laws of the Noahide code, even if its reason for doing so is not always obvious: We are already acting in a certain way: doing this but not doing that, consciously and wilfully. When we reflect on why we are doing this but not that, we see retrospectively that we act this way because of the way we regard both our own nature and the nature of those with whom we interact – a nature that is freely affirmed or denied by the way we act.185 Because Novak assumes that the norms are widely known and thus kept by consensus, it follows that the only pertinent argument he can make, as it relates to those norms, is one that is based on the wisdom that underpins them. In other words, Novak can only offer further support for those practices based on the metaphysical content of his natural law theory. In this way, it

what about those who have suffered at the hands of others to the point where they have had to use violent means to defends themselves? Would that experience not lead to the opposite conclusion, that violence is necessary as a response to other human beings? In what way can Novak explain the inherent rationality of the prohibition against treating other people unjustly to individuals who have had that experience? Is Novak not, in other words, pre-determining where the phenomenology leads – to seven specific commandments? Further, particularly as it pertains to the experience of Israelites, how can Novak speak of it as monolithic? On the contrary, in rabbinic literature, it is clear that every Jew has a personal and unique relationship with God. See for example M. Rosh Hashanah 1:2. While obligations can and are described in the aggregate, every human being’s situation is seen as unique. For this reason, every person is expected to make a personal accounting of his or her life. b. Shabbat 31a. 185 Novak, The Sanctity of Human Life, 8. Here I disagree with Scherzinger and at the same time with Rashkover and Kavka. For Scherzinger, Novak does not clarify whether he means his natural law descriptively or prescriptively. For Rashkover and Kavka, Novak bases the moral obligation of Jews towards democracy on the norms within the Noahide commandments, “since it is a rabbinic category that can test the moral legitimacy of the state on rational grounds.” Scherzinger, Normative Ethik aus jüdischem Ethos, 299; Rashkover and Kavka, “Introduction,” in Tradition in the Public Square, xxx. As I have shown, the norms are already practiced in society; Novak is only concerned with the universal basis for those norms. Thus, unlike Scherzinger, I argue that Novak is making a clear descriptive case for the basis of the norms, not the norms themselves. And, unlike Rashkover and Kavka, the argument put forth by Novak is not one that can be tested rationally. It is a question of the ground of the norms; and, provided that society acknowledges a transcendent source for the law, that would be sufficient.

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becomes possible to parse his meaning in the following excerpt, which relates to the public square: Whereas Mosaic law is the direct decree of God, given to a single human community at a certain point in history, Noahide law is not the direct decree of God but a rational human inference that God stands behind norms that seem to oblige all humans at all times. These commandments, especially, have been most often called rational commandments (mitzvot sikhliyot). They are the equivalent of what has been called natural law (jus naturale), which is law discovered by humans when they rationally discern the authentic needs and justifiable claims of their human nature.186 There are two types of law being discussed here, Mosaic and Noahide. But unlike the former, which is explained solely by reference to its covenantal framework, the latter is justified not only in light of its divine source but also on the basis of its immediately evident norms. In the second part of this paragraph, then, Novak is discussing not only the universal knowability of the Noahide commandments but their inherent “rationality” as well. Along the same lines, Novak draws on this deeper ground in order to provide a Jewish point of view in the public square about issues such as stem-cell research, universal healthcare, and physician assisted death. Given these deeper explanations, Novak argues that his message is relevant even to those outside of covenanted communities: Nevertheless, they can appreciate that human life alludes to more than merely being a thing in the world that can be destroyed or exploited.187 This appreciation often comes out of their experience of injustice. That is, they cannot accept the reduction of human beings to the status of mere things, which is what injustice assumes. Even though they cannot or will not offer any positive reasons that are otherworldly to counter the reductive assumption underlying all injustice and what is invoked to rationalize it, they refuse to be persuaded by these rationalizations.188 186 Novak, The Sanctity of Human Life, 32–33. 187 Cf. Novak, “Buber’s Critique of Heidegger,” in Natural Law and Revealed Torah, 53–69. 188 Novak, The Sanctity of Human Life, xiii. Emphasis mine. Cf. Novak, Jewish Social Ethics, 165. Here I part ways with Aaron Hughes, who frames The Sanctity of Human Life as Novak’s answer to the question of the Jewish response to issues that pertain to the public square. In support of that statement, Hughes cites Novak, The Sanctity of Human Life, 29, where he writes that anyone who identifies as Jewish could not permit abortion. Aaron Hughes, “David Novak: an Intellectual Portrait,” in Natural Law and Revealed Torah, 13. Hughes’s

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The experience to which Novak refers in this phenomenological argument is of encountering the other as the image of God. That assertion can be supported by a similar association Novak makes elsewhere. Speaking about Rabbi Akiva’s statement about mankind being beloved because they are made in God’s image, Novak writes: Following Rabbi Akibah’s line of thought, we could say that even before revelation, humans have some inchoate notion of their special status, and that is beyond anything one could get from the world.189 Crucially, this argument is still defined as rational. Indeed, elsewhere in the text, Novak states in no uncertain terms that only rational argumentation is sufficient when addressing the public square: Even if the subjects of the prohibition (and the warrant) are taken to be all humankind, there is no reason for any non-Jew to accept either the prohibition or the warrant simply because the Jewish tradition says so. In other words, only when the Jewish tradition can represent such prohibitions and warrants rationally rather than prescribing them do the prohibition and the warrant have enough universal validity to be given to all rational persons who are ethical subjects on behalf of all persons (even those who are prerational, such as fetuses, or postrational, such as persons who are senile or irreversibly comatose) who are ethical objects.190

presentation gives the impression that the book is meant for Jews who want to know how the Jewish tradition responds to these questions. That does not represent the book, however. The statement cited by Hughes is made in the context of a discussion of Jewish ethicists. The book as a whole is intended to share a Jewish view in the public square, but at the same time offer a reason why the Jewish perspective concerns non-Jews. Novak is advocating that Jews should have a voice in the debate, using knowledge from the Jewish tradition. Novak, The Sanctity of Human Life, 4. 189 Novak, Natural Law in Judaism, 172. 190 Novak, The Sanctity of Human Life, 30. Emphasis mine. Novak later rules out explanations that are dependent on ratio per se in a chapter of Natural Law: A Jewish, Christian, and Islamic Trialogue. The context for the discussion is an overview of the natural law principles he formulated in his “Natural Law and Judaism”: “To simply advocate that an act be done because it is good per se is to ignore the relational context in which designating an act to be “good” can be rationally justified. To judge an act to be essentially good requires that one show its essentially personal character, i.e. one must show the act is a benefit for someone by someone from someone.” Novak, “Natural Law and Judaism,” 22–23. See also Novak, Jewish Justice: The Contested Limits of Nature, Law, and Covenant (Waco, Texas: Baylor University Press, 2017), 7.

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Thus, in an argument addressed to the public square, Novak refers to the basis of the “transcendent definition,” which he originally introduces in Halakhah in a Theological Dimension,191 and frames it as a rational representation of the Jewish prohibition against murder. 2.14 Natural Law: A Jewish, Christian, and Islamic Trialogue While the broader shift in Novak’s understanding of rationality is readily apparent by this point, there is another slight change that can be seen in one of Novak’s most recent treatments of natural law, namely, Natural Law: A Jewish, Christian, and Islamic Trialogue, which is co-written by Matthew Levering and Anver Emon.192 The first change is that Novak describes even those commandments that fall within the parameters of rational law in slightly different terms: 191 Novak, Halakhah in a Theological Dimension, 99. 192 From the perspective of Novak’s natural law theory, the book contains some interesting points of agreement, as well as disagreement, between Novak’s theory and some of the more prominent strains of natural law in Christianity and similar ideas in Islam. These comparisons can be seen, for instance, in Levering’s chapter, which is generally in agreement with Novak’s point of view, except for the fact that he posits that Novak needs to have a clearer account of sin and its consequences on natural law. Levering, “Response to David Novak’s Natural Law in Judaism,” in Anver Emon, Matthew Levering, and David Novak, Natural Law: a Jewish, Christian, and Islamic Trialogue, 57–65. Emon does not offer much by way of engagement and instead speaks about the philosophy of law in the Islamic tradition as being a more fruitful source for natural law. Anver Emon, “Response to David Novak’s Natural Law in Judaism,” 45–55. Levering’s section discusses Romans 2:14–15 in the thought of the Church Fathers of the Christian East and West, explaining the interpretations of Origen, Chrysostom, Ambrosiaster, Pelagius, and Augustine of the notion of law before Christ. Levering, “Christians and Natural Law,” 66–109. Novak does not directly engage Levering in his response, instead highlighting a point of agreement between them: in both Christian and Jewish thought, natural law is only a component of morality. Novak then discusses the debate over the status of Christianity in the Jewish tradition and refutes the position that it is idolatrous. Novak, “Response to Matthew Levering’s Christians and Natural Law,” 126–143. In Emon’s response to Levering, Emon notes that temporality has a level of significance for Levering’s writing but not so in Novak’s thought. He also discusses how Levering’s question of whether non-Christians can participate in natural law is unlike the Islamic emphasis on obligation. Anver Emon, “Response to Matthew Levering’s Christians and Natural Law,” 111–126. Emon’s section pertains to the Hard and Soft theories of natural law. The former constitutes seeing the world as having been created for “good,” a proposition which then allows human beings to reason based on nature; the latter is closer to voluntarism and sees the world as imbued with God’s grace. Emon also speaks about the relevant ideas and terms in the Islamic tradition and posits that the impact of this discussion pertains to agency and authority even in spite of a temporal and spatial existence within a religious tradition. Anver Emon, “Islamic Natural Law Theory.” Ibid, 144–187. Novak responds that a Jewish natural law theory cannot be reconciled with a Hard natural law theory, inasmuch as it leaves little room for election.

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Maimonides says they are known by “rational compulsion,” or that “reason inclines towards them,” both terms which could be translated into the scholastic term inclinatio rationalis.193 Novak refers to the norms associated with the Noahide code, which are said by Maimonides to be known through the mind (da’at). Instead of using ratio quo ad nos, which, given his line of argumentation, would be the appropriate word, Novak uses inclinatio rationalis.194 The term should be seen in its original context, namely, Thomas Aquinas’s natural law theory. The expression appears in connection with Aquinas’s definition of natural law as a “participation of the eternal law in the rational creature.”195 By that, Aquinas means that, through their use of reason, human beings partake in eternal law; and by choosing this term, Novak knowingly provides a metaphysical basis to the process of human thought.196 Novak finds his own theory closer to the Soft natural law theory. Novak, “Response to Anver Emon’s Islamic Natural Law Theories,” 196–210. In Levering’s response to Emon, Levering suggests that natural law needs to account for human nature and the relationship with other human beings. Levering, “Response to Anver Emon’s Islamic Natural Law Theories,” 188–195. 193 Novak, “Natural Law and Judaism,” 32. We encountered this term in Novak’s thought one other time, but in conjunction with other terms he uses to show that there are equivalent terms for natural law in rabbinic thought. Novak, review of Menachem Elon, Jewish Law: History, Sources, Principles, 52. 194 Ibid. Cf Novak, Jewish Social Ethics, 25, where he translates it as “reason inclines.” See also Novak, “Maimonides and Aquinas on Natural Law,” in St. Thomas Aquinas and the Natural Law Tradition, 49. Novak acknowledges that the Noahide code is meant as a set of principles not a legal framework, something that sharpens the argument I am making. Novak, Shabbat Class, Shaarei Shomayim Synagogue, February 4, 2017. 195 Thomas Aquinas, Summa Theologiæ, 2/1, q. 91. a. 2, in Basic Writings of Saint Thomas Aquinas, 749. 196 Novak’s preference for Aquinas’s formulation is also of a piece with his choice of the word hokhma for rational consideration. To understand the significance of this specific term, it is necessary to define the possible words for knowledge, based on the definitions offered by Meir Leib ben Yehiel (known as the Malbim, d. 1879). The three possibilities are hokhma, bina, and da’at. The first is taken to mean knowledge learned through one’s encounter with the universe, the second is taken to mean the capacity to build on prior knowledge to acquire more of it, while the third is a reference to divine wisdom. Based on Maimonides’ description of those that arrive at natural law norms on their own, in which Maimonides uses the same word, Novak says that the appropriate term is hokhma. See for example Meir Leibush Malbim, Nevi’im U-ketuvimim Miqraei Kodesh, Proverbs 30:1–3 (Vilna: Widow and Brothers Rahm, 1891), 93–94. Novak, Shabbat Class, Shaarei Shomayim Synagogue, Toronto, Canada, July 16, 2016. That is to say that the ­rational capacity is equated with attaining readily knowable information, rather than arriving at new concepts through deductive reasoning. From the passage I have cited, it appears that Novak

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It is also in this text that Novak further develops how the imago Dei is mediated by other human beings. This explanation is offered in the context of a discussion of communities that do not claim to be founded on revelation. Novak suggests that the way human beings in those communities can discover just claims is by being faced with other human beings and confronted by a declaration of “do not harm me.”197 What he means is that the claim that another has upon us is based on our shared creation in God’s image, and that forms the basis of our responsibility to respond to him or her. This interpretation differs from his original presentation of the imago Dei as the direct relationship between God and human beings. This point is in keeping, however, with the shift in Novak’s thought with respect to what is rationally attainable by human beings. As we have seen, later in his thought, Novak is of the view that only what is ratio quo ad nos can be taken to be widely known. In contrast, that which is ratio per se is seen as knowledge that is not generally available. It is therefore understandable why Novak would want to make the metaphysical discovery of the imago Dei dependent on the encounter with other human beings, or an ordinary experience, rather than on the attainment of metaphysical wisdom, which would be an extraordinary achievement. 2.15 Zionism and Judaism: A New Theory and Jewish Justice: The Contested Limits of Nature, Law, and Covenant In his book on Zionism, written in 2015, Novak makes the case for the religious, rather than secular or political, version of the movement. Arguing against the views of those, such as Theodor Hertzl, who posit that Israel is necessary to is more concerned with human thought than he is with human nature itself. The general direction of Novak’s approach, however, seems to align with what Jacobs describes as Novak’s move from basing natural law on “rational principles” to framing it as “an intrinsic end for human nature,” “Aristotle and Maimonides on Virtue and Natural Law,” Hebraic Political Studies 2.1 (2007): 73. Along the same lines, one of Jacobs’ main contributions to the scholarship on Novak’s natural law is the distinction he makes between Novak’s view and the “evident principles” as well as “philosophical anthropology” approaches of the past. As Jacobs explains, Novak’s view is that, “human reason is the precondition for ascertaining what morality requires and for ascertaining its general validity.” Jacobs, “Judaism and Natural Law,” Heythrop Journal 50 (2009): 940–941. It should nevertheless be noted that Novak himself uses the term “philosophical anthropology” in reference to his imago Dei. Novak, Natural Law in Judaism, 171, which is presumably why Kavka and Rashkover support a reading of philosophical anthropology in Novak’s thought, arguing that Novak’s notion of the imago Dei connects his natural law with his teleology. Rashkover and Kavka, “Introduction,” xxvi-xxvii. 197 Novak, Natural Law: A Jewish, Christian, and Islamic Trialogue, 37.

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defend Jews, a claim made in particular after the Holocaust, as well as those, such as Ahad Ha-Am, who see Israel’s survival as being based on Jewish culture rather than religious ideas, Novak argues that the justification for Israel’s existence, and subsequently its future, depends on religious Zionism. The second book contains previously published material on matters such as capital punishment, torture, marriage and civil law, and a number of thematic essays. I mention these texts here because they both include references to natural law ideas, most prominently in his book on Zionism, where Novak makes the case for an Israeli constitution based on Noahic principles. The desideratum is formulated in this way: Can we find in the Jewish tradition an affirmation of a secular realm that is based neither on dogmatic secularism nor on the particular revelation in the Torah (i.e., Jewish religion) to the Jewish people claiming both the people collectively and each and every Jew individually? In other words, can we find in the Jewish tradition grounds for asserting a theistically based polity, which is presupposed by, yet not identical with, the optimal theocratic polity the Torah seems to be intending for Israel.198 Novak frames the laws as “theistically based,” meaning that they cannot be separated from their divine origin. He acknowledges, however, that some human beings keep the laws for different reasons: To be sure, there are those who live this way only because it is accepted tradition; and there are those who live this way only because it seems to be reasonable in a pragmatic way. And there are those who live this way because it is commanded by God in revealed scriptures. Yet, as Maimonides emphasizes, the most astute humans realize that what they were doing is because of the rational commandment of God, which would hardly be universal if no particular tradition taught it. Therefore, each one of these three levels of moral understanding reinforces the other and no one of them contradicts the others.199 It is important to note here that this other form of adherence to the law is not entirely secular. While individuals committed to this alternative might say that they adhere to those norms because of their reasonableness, according 198 Novak, Zionism and Judaism: A New Theory (Cambridge: Cambridge University Press, 2015), 171. 199 Ibid., 173.

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to Novak, they do so “because of the rational commandment of God.” In fact, upon closer inspection, it becomes clear that Novak leaves no room for a completely secular adherence to the law. This claim can be supported by the fact that each option merely “reinforces” the other one. A completely secular commitment to the law cannot exist on its own. More important for our purposes is the fact that neither text includes the distinction of ratio per se and ratio quo ad nos. Even in the book on justice, which includes essays that are based on the implicit and explicit argument that Judaism does not have a separate sense of justice200 – an idea that strongly correlates to natural law – Novak makes no mention of the distinction.201 Novak does, however, explicitly define the idea that is at the heart of his natural law theory: Therefore, natural religion consists of our love of God (rather than God’s love of us), which is our free response to God’s benevolence as our creator and sustainer in nature or as our benefactor in history. It is not a matter of natural duty, much less a matter of contract. It is only a matter of more general acknowledgement and gratitude. From nature we know all we have to know about God’s omnipotence and God’s selfless ­beneficence to humans.202 The idea, to which he refers as “natural religion” but clearly means his natural law theory, is that it is our responsibility to respond to our divinely created human nature, which, as he already explained, can be recognize by being confronted by other human beings.203 2.16 “Does Natural Law Need Theology?” In his most recent article on the topic,204 Novak contextualizes natural law in a broader way: 200 Novak, Jewish Justice, 1–2. 201 He does, however, draw on wisdom, calling it something that human reason could identify with. As we have seen, wisdom corresponds to that which is unknowable to anyone outside a covenanted community, and it pertains to a ratio per se explanation. Ibid., 148, 38. 202 Ibid., 216. 203 Milevsky, “Reason with Baggage,” 701–702. 204 Novak has subsequently published another book, entitled Athens and Jerusalem: God, Humans, and Nature (University of Toronto Press, 2019). The book is mainly concerned with the interaction between philosophy and theology and focuses on the respective engagements between Philo and Plato, Maimonides and Aristotle, and Hermann Cohen and Immanuel Kant, all of which are framed in the context of four relationships,

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Our relationship with God is with the God who purposefully created the whole universe, and who gives us humans our portion therein. Part of that portion is our ability to discern by means of practical reason what is just and what is unjust in our relations with other humans. What we rightly discern here is natural law.205 Following his earlier reference to Aquinas, Novak appears to suggest here that the use of reason is itself divine. The logical implication is that natural law cannot be separated from that theological basis. Later, Novak confirms this point: Natural law is aided by theology in that theology shows natural law its origin and ultimate end; it does not show natural law’s intelligibility, nor its practicality.206 According to this formulation, natural law can be described as one’s perception of reality, provided by a creator who both underwrites its significance and namely, humans and God, humans with other humans, God and nature, and humans and nature. As Novak explains in his first chapter, the purpose of the text is to respond to Leo Strauss’s discourse on the tension between philosophy and theology. Novak first shows the commonalities between the two spheres and broadly sketches out how they can engage with each other while leaving the integrity of either sphere intact (15–54). The rest of the book is dedicated to Jewish thinkers who have exemplified this balance. Thus, with respect to Philo, Novak shows that the Alexandrian thinker accepts many of Plato’s ideas but places a greater emphasis on praxis and God’s concern with the world than Plato did (120–139). On Maimonides, Novak states that, while the medieval philosopher incorporated Aristotelian metaphysics into his thought, he believed human fulfilment is achieved not in the contemplation of God apart from the world, but in the contemplation of what God does in the world (173–177). It is in the final chapter on Kant, where Novak explains the difficulty that Judaism has with Kant’s views, such as the issue of autonomy with respect to commandments – and for Kant’s disciple Hermann Cohen specifically, the fact that God appears subservient to “goodness” – that natural law plays a role, albeit a limited one. Following what we have already noted, Novak states that natural law needs a divine referent to be valid and that humans are not obligated directly by God but are “commanded into existence” (213). This point parallels the createdness and commandedness in Novak’s theory that we have alluded to earlier. Finally, as we have seen in connection with the imago Dei, which is the ground of natural law, in relation to Kant’s categorical imperative, Novak says that humans must respond “to the rightful or just claims humans make upon us” (262). These statements are fairly consistent with what we have seen thus far in Novak’s writings and do not develop his theory further. 205 David Novak, “Does Natural Law Need Theology,” First Things (2019). 206 Ibid.

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sets its purpose. Thus, if what Novak has written up to this point gradually incorporates metaphysical content into his natural law, this statement shows that his theory cannot be fully understood without it. 3 Analysis Novak begins to include metaphysical content in his natural law theory, just as his conception of rationality admits of a change. Thus, as he starts to question the rational basis of moral law, he states that natural law is validated by historical criterion;207 and as rationality starts to mean the suitability of law to human nature, Novak begins to define even the non-rational laws of the Torah as rational.208 The former correlation is especially important, because it shows that the ideas that Novak later describes as rational are originally described as historical, by which he means transmitted through one’s covenantal community. Along these lines, Novak calls humans rational beings but also “historical” beings, and he writes that one’s “cultural heritage” informs him or her of their moral obligations, which in this case is the dignity of human life.209 The implications of this shift go beyond the fact that faith-based values, which are typically learned through one’s community, are treated as rational: Novak seems to suggest that human reason takes on the characteristics of a covenantal community. In support of this claim we can highlight the fact that Novak originally describes the community as responsible to inform individuals of their moral obligation, but he later places that obligation on humans, which is what Novak means when he describes human reason as a “faculty for a transcendent end.”210 In other words, the human ability to reason is a tool for ­discovering what he later calls the “claims of human nature” upon human beings and the response to it.211 Similarly, Novak describes Israel’s “rational motives” to accept God’s law at Mount Sinai not as a logical conclusion but as a responsibility resulting from a historical obligation. In other words, the decision was not made on the basis of the sensibility of the law – which is what we would expect if we take rationality to mean discovery through reason – but rather because of the community’s relationship with God. That is to say human 207 Novak, Law and Theology in Judaism, 127; Law and Theology in Judaism, 2nd Series, 92. 208 Novak, The Image of the Non-Jew in Judaism, 148–149, 62. 209 Novak, Law and Theology in Judaism, 116. At that point, the ideas learned from one’s community are only assumed to be “rational.” Ibid. 210 Novak, Law and Theology in Judaism, 2nd Series, 116–117. 211 Novak, Talking with Christians, 199–200.

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reason functions as the community and takes on the obligations that pertain to it. In a similar vein, Novak interprets the imago Dei, which is the ground of natural law, to be “the context for man’s response to the commandments of God.”212 That is, through the discovery of the imago Dei, human reason does not simply arrive at a logical conclusion about the best way to relate to others. In recognizing another’s “transcendent orientation,” one discovers a state of commandedness shared by all human beings; and one is expected, just as other human beings are, to respond in kind. If the term rationality for Novak takes on the meaning of what is transmitted by the community, we can confidently suggest that his natural law theory, which cannot be separated from his understanding of rationality, can no longer be identified simply with the reasonableness of moral law. 4

Conclusion

In this chapter, I have analyzed the development in Novak’s conception of rationality and its reflection on the content of his natural law theory. The shift in what Novak means by reason has been shown to be best understood through the tension that was highlighted between the two types of rationality, namely, ratio per se and ratio quo ad nos. Specifically, although Novak suggests that the Noahide code can be discovered on one’s own, as evidenced by the fact that, in Law and Theology in Judaism, he identifies only the most immediately rational commandments with natural law, he also writes that the explanations of such a prohibition are necessarily transmitted through one’s community. Strictly speaking, those two ideas should contradict one another, since a “historical” community should not be necessary to transmit ideas that one can learn on one’s own. That contradiction also raises the possibility that an explanation which is ratio per se is based on something that cannot be known outside of one’s community. As we have seen, this shift informs the change in Novak’s natural law theory from being grounded in reason, and then universal consensus, to being based on the imago Dei. That is to say the idea which forms the core of Novak’s theory, which is that it is the human responsibility to respond to divinely created human nature, is informed by the fact that rationality goes beyond the human experience. Moreover, we have seen that the same distinction between the two types of rational ideas also corresponds to what Novak later presents as two explanations for natural law, those being the widely accepted and inherent ones. 212 Novak, Halakhah in a Theological Dimension, 100.

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The connection that we have established in this chapter between the way that Novak discusses rationality and his moral theory is better understood by reference to the way Novak conceives of the human rational ability and the role played by natural law in Novak’s thought. In Law and Theology in Judaism, 2nd Series, Novak is reluctant to define human beings by their rational ­abilities – he prefers a “transcendent definition.” To clarify what Novak means, we need to look back at the way he incorporates historical knowledge into rational concepts. That is to say since “rational” comes to mean something beyond what human beings discover on their own, humans can no longer be defined by their rational capacity, since that includes more than their own experience. Stated differently, since rationality comes to be associated with faith-based concepts, human reason ceases to be a defining marker for individual human beings. In the same way, while natural law begins as the context in which Novak d­ iscusses individual moral norms, it becomes the context for him to explain the reasonableness of the Mosaic law and the role of human rationality in Jewish law. In other words, just as rationality begins to refer to concepts that are dependent of tradition, natural law, which is shaped by Novak’s conception of rationality, becomes the way in which Novak explains the human role within that tradition. Nevertheless, the issue of the source of that knowledge raises several questions, the first of which is how the Jews are held responsible for commandments whose rationality is only discoverable by a select few. That is to say, putting aside the issue of the reasonableness of those commandments, how can an ordinary human being be fully responsible for a law he or she cannot fully understand? If the answer is that the fact that a norm is widely accepted is sufficient to have a bearing on members of the community, what purpose is served by the deeper ground and what is the nature of its relationship with the moral norms? Finally, why does Novak move from a stronger presentation of natural law to a weaker one, inasmuch as a metaphysically grounded natural law is less convincing both in the public square and to Christian interlocutors who do not necessarily share the same metaphysical views? In the next ­chapter, we will address the former two questions. There, we will gain insight into the way Novak addresses these issues when we study the context of Novak’s theory in Jewish thought and his attempt to reconcile his accounts of natural law; while, in the third chapter, we will show that the change in the context of Novak’s theory can be explained by his developing view of redemption.

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The Context of Novak’s Natural Law Theory 1 Introduction In the previous chapter, I identified a shift in Novak’s natural law theory by reference to the change in his conception of rationality. In this chapter, I study the context of his natural law theory in Jewish thought with respect to the questions Novak addresses by recourse to the concept, including whether moral law is autonomous or heteronomous, if it is a legal or theological concept, whether it has any content, and the nature of the relationship between Noahide and Mosaic law. For each of these issues, I show how Novak’s views shift, and I illustrate the way in which he attempts to bridge the gap between his positions. These changes are identified by reference to the chronology I introduced in the first chapter, to the extent that, in Novak’s earlier writings, his natural law theory admits of the features of autonomous ethics, he describes the ­Noahide code as a legal concept, he suggests that no specific laws stem from it, and he writes that the laws of the code take on a new form after the Sinaitic revelation; whereas in his later account, he describes natural law in heteronomous terms, treats it as a theological concept, identifies its content as the imago Dei, and argues that it retains the same form within Mosaic law. I then show how Novak tries to reconcile those contradictory views, and I critique each of those attempts. These efforts at reconciliation include the argument for the necessity for law and command, the combination of autonomy and heteronomy, the introduction of minimal and maximal claims, and the mediating concept of personhood. In my critique of Novak’s position on the content of natural law, I show that only positive rabbinic law can be said to have substance, but that its content can be identified as the laws of the Torah. As for the matter of whether natural law is legal or theological, I show that the Noahide code is plainly described by the rabbis as a legal system for which non-Jews are responsible. With regard to the issue of autonomy versus heteronomy, I illustrate that the Talmud makes no distinction between the Noahide code and Mosaic law as it relates to the respective obligation to adhere to those legal systems. Finally, I demonstrate that the minimal/maximal claims are incongruous with Novak’s earlier account of natural law.

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The Philosophical Impact

2.1 Is Natural Law a Legal or Theological Concept? In his Jewish-Christian Dialogue, Novak suggests that natural law is a border concept in the Kantian sense of a Grenzbegriff, inasmuch as the idea mediates between Judaism and the wider world.1 The question Novak is addressing, which to some extent he already takes on in his The Image of the Non-Jew in Judaism,2 is the nature of the relationship between the Jewish and non-Jewish legal systems; and the argument he is making is that the norms of the Noahide code can be found in either system, meaning that to the extent that basic morality is located in the non-Jewish legal system, it is recognized by Jewish law. The question raised by this presentation is whether that border is of a legal or theological sort. In other words, is it sufficient for those moral norms to be seen in legal terms, or can they only be understood in theological terms, in which case they would be intelligible only by reference to their ground? In his earliest treatment of Noahide law, Novak makes it clear that, as a subject of study, the code is a legal concept: The understanding of the Noahide is fundamentally legal before it is theological, and certainly before it is historical or sociological. Therefore, Jewish philosophy begins at the boundary of Judaism with a fundamentally legal datum.3 The context of this statement is Novak’s argument that a philosophy of Judaism is best constructed by beginning with the normative limits of the Noahide law. The underlying idea is that natural law is Judaism’s encounter of the human being in the form of the ben noah, meaning a human being who is bound by the Noahide code. This point is made explicit when Novak writes that “this person is recognized as a special category of law.” Based on this concept, it is clear that natural law is configured through its normative implications.4 It follows that human beings that are bound by legal systems that include basic moral norms are recognized as b’nei Noah regardless of their beliefs. Later on, however, Novak writes that the norms have an impact on the cosmos.5 Discussing the way the sons of Noah understood their adherence to the moral law, Novak writes as follows: 1 Novak, Jewish-Christian Dialogue, 26. 2 Novak, The Image of the Non-Jew in Judaism, 30. 3 Novak, “Noahide Law: A Foundation for Jewish Philosophy,” 122. Emphasis mine. 4 Ibid., 114. 5 Novak, “Natural Law, Halakhah, and the Covenant,” 52. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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[T]hey had to see moral law as their inclusion in the law by which God governs the cosmos, and that divine law itself would prevail in heaven and on earth no matter how much some humans might ever violate it again.6 And just as God’s part in the covenant has a cosmic element – God makes pledges not to annihilate the earth – in keeping their side of the covenant, the sons of Noah are including themselves in the law of the cosmos. In a recent text, Novak scales back on the cosmic impact of this idea, but he still describes the adherence to the Noahide laws to be a response to God’s creation of man in his image: The fact every human person is created in the image of God calls for an appropriate response from any other human person encountering that other human person.7 On this view, moral norms cannot be described merely in legal terms; and by extension, the adherence to those norms is not linked to their inherent reasonableness. Instead, keeping the law is a form of response to God, one with cosmic “consequences.”8 Novak makes this point explicit when he compares the way the norms were observed before they were “rejected” by the gentiles: Rather, the change has been in terms of the transcendent status of the Noahide laws as observed by gentiles. Prior to the rejection at Sinai, the laws were accepted as direct commandments, and as such were immediately involved in human responses to God’s authority, a response having cosmic consequences.9

6 Novak, The Jewish Social Contract, 38. 7 Novak, “Natural Law and Judaism,” 40–41. It should be noted that earlier in the text, Novak rejects the view that human beings participate in the law of the cosmos. Ibid., 8. 8 Novak, Jewish Social Ethics, 37; Natural Law in Judaism, 17; Novak, The Image of the Non-Jew in Judaism, 146. 9 Novak, The Image of the Non-Jew in Judaism, 146. Similarly, although he originally described natural law as moral norms at which human beings arrive on their own, meaning that human beings can discover them regardless of their religious orientation, Novak later writes that natural law can be constituted only within one’s religious tradition. Novak, Law and Theology in Judaism, 116; Novak, Natural Law in Judaism, 140; Natural Law and Revealed Torah, 97; Natural Law: A Jewish, Christian, and Islamic Trialogue, 5. In light of this view, it is difficult to understand how the forefathers lived by the precepts of natural law, since they did not yet live in a religious community, and were therefore by Novak’s definition not able to constitute natural law on their own. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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Both statements seem to indicate that Novak’s later account of the Noahide code becomes more theological than it is legal.10 Along these lines, Novak later makes the Mosaic law dependent not only on an adherence to the norms but on a prior relationship with God.11 This tension can be seen most clearly when Novak treats Martin Buber’s reconstruction of Jesus and its bearing on Jewish law. For Novak, Buber does not mean the Christian acceptance of Jesus as the messiah, nor does he intend the rejected image of him by the Jews. Instead, Buber sees Jesus as representing the I-thou relationship. The relevance to Jewish law emerges from Jesus’ abrogation of the law, which places him outside of the Jewish requirements for the messiah. For Novak, Buber’s account must therefore offer insight into the law. What Novak learns from Buber specifically is that, since law emerges from the I-it relationship, it does not have the immediacy of command, which comes from the I-thou relationship. Only the former is mediated by the tradition, unlike command.12 In contrast to this position, Novak contends that both law and command are necessary: In dealing with Buber’s objection, we must look at the relation between commandment (Gebot) and law (Gesetz), the relation between mitzvah and Halakhah as basic categories in Judaism. According to Buber, the two terms are mutually exclusive. A commandment, as a direct call from the divine Thou to the human I, cannot become a law. It cannot become a prescription to a collective entity whose duration is structured by tradition. And a law ceases to be law if taken as a commandment....For me, the question is: How does a commandment become part of a legal system 10

This presentation is in part a response to Scherzinger, who sees a tension in Novak’s thought between what appears to be a non-metaphysical natural law on the one hand and a natural law theory based on metaphysics on the other, and it is also a critique of Yaffe and Jacobs, who argue that Novak removes natural law from its metaphysical framework. I have shown that Novak does draw on a “theology of creation,” but he does not do so arbitrarily; the metaphysical aspect of his natural law is introduced by way of “God’s wisdom.” Scherzinger, Normative Ethik aus jüdischem Ethos, 109–113; Martin Yaffe, “Natural Law in Maimonides?” in Saint Thomas Aquinas and the Natural Law Tradition, eds. John Goyette, Mark S. Latkovic, and Richard S. Myers (Washington: Catholic University of America Press, 2004), 70; Jacobs, Law, Reason and Morality in Medieval Jewish Philosophy, 203. 11 Novak, “Natural Law and Normative Judaism,” 4. This tension can be understood, in part, as a consequence of the scope of Novak’s natural law theory. Jacobs has noted that the case for natural law in Judaism is undermined by the relationship with God, since that cannot be explained by reference to reason. Jacobs, Law, Reason, and Morality in Medieval Jewish Philosophy, 203. Because Novak’s later account locates natural law not only in the reasonableness of the law but in the rational acceptance of the covenant, there is an inherent tension in his theory. 12 Novak, Jewish-Christian Dialogue, 81–83. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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(that is, how does it become generic) and still not lose its capacity to carry the original voice of God, who ordained it?13 Two points emerge from Novak’s description of this problem. The first is that the legal component of natural law cannot exist without the theological one. As Novak explains, It would thus seem, then, that although ethics certainly does have a role in authentic Jewish discourse, that role must eventually lead to the deeper level of theology. For even such rabbinic notions as ‘human dignity,’ which must be derived from scriptural notions of the imago Dei, eventually require a theological grounding. That is, the dignity of human beings is their being the imago Dei, and that requires the theological constitution of the covenant as the fullest locus of the divine-human relationship.14 In other words, if law would exist without command, it would serve to “make human reason rather than divine wisdom the measure of all things.”15 But the other important point that emerges from the earlier excerpt is that the reverse is also true: without the law, there is no continuity in the relationship with God. Classical Judaism certainly does not regard commandment and law as mutually exclusive, but as necessary components of a continuum. Therefore, the question to ask is: What would a commandment be without law? I would answer that a commandment without law could only be an individual’s relationship with God at a single time and place, a relationship to the exclusion of all others across time and space.16 Law is a necessity, in other words, because it ensures that the relationship with God is not confined in this way. Nevertheless, this attempt to reconcile the legal and theological aspect of the law seems to expose a deeper tension between 13 14

Ibid., 88–89. From Novak, “Jewish Ethics and Natural Law,” Journal of Jewish Thought and Philosophy 5 (1996): 217; Covenantal Rights, 116. 15 Novak, Talking with Christians, 80. By extension, a law which is purely based on reason would be categorically different from a law which is based on an acceptance that is dependent on a relationship with God. Assuming the Noahide law is an example of the former, it cannot be seen as belonging on the same “spectrum” as the Mosaic law. Conversely, if Novak treats them equally, that must mean that he grounds the Noahide law in whatever it is that he bases the Mosaic law. 16 Novak, Jewish-Christian Dialogue, 88–89. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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Novak’s conception of the covenant and his presentation of natural law: given that Jewish law cannot be defined by reference to the limitation that the experience of the natural order places on us,17 meaning that the covenant belongs outside the cosmic order, nothing that is incorporated into the covenant can be seen as mediating between Judaism and the rest of the world. If that is so, then when the Talmud states that any commandment that is repeated at Mount Sinai, even one that was included in the Noahide code, applies to both Noahides and Israelites,18 the moral law would take on its own status within the Mosaic law and hold an entirely different meaning for N ­ oahides. It follows that the tension between law and theology should be found in both systems, to the extent that, as is the case with the Mosaic law, the metaphysical ground of the Noahide code prevents human beings from making the law for themselves; and, much like the laws of the Torah, the norms themselves guarantee that the relationship with God, which is enabled by the code,19 is not limited in space and time. A related question is as follows: Novak describes the Noahide code as leading to a fuller relationship with God. At the same time, he writes that the code is merely grounded by that relationship with God, and that keeping its laws does not offer the same fulfilment in that regard as the Torah.20 The question, however, is why the Torah is necessary at all, particularly if the ethics that p ­ recede the Torah are already grounded by the imago Dei, meaning that the purpose one has in mind in performing those commandments is that r­elationship. Stated differently, building on the tension we have uncovered in this section, we are not only asking what role natural law can play in a covenant that cannot be defined by the natural order, but also, given that Novak’s natural law theory adds cosmic significance to moral law, what is fulfilled by the Torah. 2.2 Is Natural Law Autonomous or Heteronomous? In Novak’s original treatment of natural law, the obligation to keep the moral law stems from the fact that it is “evidently rational.”21 That is to say human beings legislate for themselves based on what is considered to be rational, a position Novak later identifies with Kant.22 Accordingly, Novak’s first treatment of natural law includes an explanation of what makes moral law bind17 Novak, “Natural Law, Halakhah, and the Covenant,” 41. 18 b. Sanhedrin 59a. 19 Novak, The Image of the Non-Jew in Judaism, 148. 20 Novak, Law and Theology in Judaism, 2nd Series, 77; The Image of the Non-Jew in Judaism, 148. 21 Novak, Law and Theology in Judaism, 115. 22 Novak, Jewish Social Ethics, 52.

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ing, and that appears to be human reason itself. In his later account, however, natural law “can be discerned as God’s will by universal human reason understanding the claims of human nature per se.”23 In other words, revelation itself, rather than human reason, which is secondary to it, is what has a normative bearing on us. This point can also be seen in Novak’s discussion of the theological preconditions for revelation: What the proposal of natural law should say to its detractors among the theologians is that it is required for the intelligibility of the theological claim (certainly in Judaism) that God’s revelation is of immediate normative import. That can only be accepted by the intended recipients of that revelation when they already have an idea of why God is to be obeyed.24 It follows from this idea that the norms are not legislated by human beings but by God. As support for this interpretation, we can cite Novak’s query as to whether natural law is grounded by reason, universal agreement, or God’s will.25 Just the question itself implies that those categories are mutually ­independent. Thus, when Novak implies that the laws are to be accepted because revelation itself has a normative bearing upon us, he thereby rules out the alternative, namely, that those laws are to be obeyed because of their reasonableness. Similarly, in Jewish-Christian Dialogue, Novak identifies natural law with heteronomy.26 This feature of Novak’s later thought can be seen most clearly in his explanation for the acceptance of non-rational laws by medieval rationalists. On Novak’s view, the basis for their choice is their perception that the law meets an external criterion of goodness: Although there have been those in the history of Judaism who have seen all the commandments being obeyed only because they are the decrees of God, those of a more rationalist frame of mind have also thought that the commandments are to be obeyed because to obey them is to attain what the wisely beneficent creator has intended as good for us.27

23 Novak, Talking with Christians, 199. 24 Novak, Natural Law in Judaism, 176. 25 Novak, Law and Theology in Judaism, 127. 26 Novak, Jewish-Christian Dialogue, 146. This idea is found earlier – in Novak, The Image of the Non-Jew in Judaism, 224 – but that is before Novak lays out his natural law theory in its entirety, and it is certainly not the natural law theory that appears in his Law and Theology in Judaism series. 27 Novak, Natural Law in Judaism, 65.

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Along the same lines, Novak later defines natural law as an understanding of human beings by those with authority, by which he means the rabbis, who are aware of human needs.28 It is this deep insight into human beings, the type of insight that goes beyond what ordinary people can discover on their own, which makes the rabbinic law binding on the community. Seen in this way, natural law becomes a way for Novak to explain why basic moral obligations can be described as commanded by God, or at least by those who have an insight into divinely created human nature. Nevertheless, Novak later tempers this heteronomy with human judgement.29 In other words, in his later formulation, the heteronomy of natural law is mediated by what is discerned by human rational thought. Along these lines, in his article, “Philosophy and the Possibility of Revelation,” Novak explicitly makes the case that there ought to be a blend of heteronomy and autonomy, so as to prevent tyranny on the one hand and anarchy on the other.30 Novak’s efforts to reconcile these two extremes can also be seen in the following statement: Asserting that natural law is discovered rather than invented by human reason means that natural law is not a displacement of divine law; it is the singularly rational discovery of divine law in its most universal manifestation. Therefore, the acceptance of natural law is not at odds with acceptance of divine law; it is the beginning of human acceptance of divine law....assuming that natural law comes from divine creative wisdom is to give an irreducible metaphysical reason for the justifiable human claims that deserve to be codified into positive law.31 Novak’s reconciliation between heteronomy and autonomy can be better understood by reference to a crucial difference between this statement and a similar one found earlier in his writings. In his “Natural Law and Normative Judaism,” Novak draws on natural law to show that the acceptance of divine law must be

28 Novak, Covenantal Rights, 115. 29 Cf. Novak, The Election of Israel, 150–151, where he explains that it is the fact that God took the Israelites out of Egypt that allowed them to draw conclusions about God’s goodness. Based on that statement, one might suggest that, for Novak, the Exodus later replaces the Noahide code in providing the Israelites with a standard for measuring goodness. On the question of Novak’s conflicting views on why Torah law should be kept, see Scherzinger, Normative Ethik aus jüdischem Ethos, 133. 30 Novak, “Philosophy and the Possibility of Revelation,” in Tradition in the Public Square, 10–11. 31 Novak, The Sanctity of Human Life, 33.

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based on “rational conditions.”32 That is to say that we must assume that there is a rational reason why humans would accept God’s law, in this case because of a prior relationship with him. The implication, however, is that the law itself is not binding because it is understandable, but that it is simply impossible to make sense of the Sinaitic revelation without a rational framework. Here, however, Novak invokes natural law to explain why the laws ought to be followed, namely, because of their divine source. What this difference demonstrates is that the role of reason in natural law is not to discover what is rational about the law but to rationally discover the metaphysical ground that makes us bound by it. A similar approach to reconciling the two extremes can be seen in Novak’s introduction of the minimal and maximal claims of natural law. Novak ostensibly incorporates these two types of claims into his theory in order to explain how ordinary human beings can discover the norms of natural law if their basis is unknowable outside a covenantal community. One example of this approach can be found in his Natural Law in Judaism: Although teleology is necessarily connected to natural law theory...the more minimal view of natural law that I propose requires that we first look at the more negative rather than the more positive character of Noahide law.33 It appears that Novak incorporates the negative limits of his earlier account into his later view, which includes positive rabbinic law. The former is represented by minimal claims, and the latter is constituted by the maximal claims. A more extensive definition of the two types of claims is found in his “Natural Law and Jewish Philosophy”: The human actions with which ethics-politics is concerned are all human interactions of which each and every human person is both subject and object, both means and end. Minimally, that means not harming anybody else just as nobody else is to harm you. Maximally, that means benefiting whoever requests your aid (without entailing great harm to yourself) just as you have the right to be aided similarly by somebody else. The minimal relationship involves justice as the criterion of restraint; the maximal relationship involves peace (shalom) as the criterion of beneficence.34 32 Novak, “Natural Law and Normative Judaism,” 4. 33 Novak, Natural Law in Judaism, 152–153. 34 Novak, “Natural Law and Jewish Philosophy,” in Judaic Sources and Western Thought: Jerusalem’s Enduring Presence, ed. Jonathan A. Jacobs (New York: Oxford University Press, 2011), 163–164.

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It can be demonstrated that the minimal criterion of natural law, found in the restraint that enables society to function, is autonomous, inasmuch as human beings arrive at those limitations on their own, through the requirements of coexistence. In contrast to these restraints, the maximal criterion of natural law corresponds to external criteria, meaning that it is heteronomous. In support of this position, we can point to the fact that Novak calls the maximal manifestation of natural law a “response” specifically to the fact that other human beings are created in God’s image, rather than a “preparation” of an encounter, which is how he defines the minimal component.35 Along the same lines, Novak writes elsewhere that harming human beings prevents them from doing what God intends them do so.36 What that means is that the basic obligation towards other people is ultimately divine in origin. More evidence for this interpretation comes from another text, in which Novak writes that the minimal view of natural law is concerned with the question of “good,” while the maximal view pertains to the question of “truth.” What Novak means by the former is the way human beings are supposed to live; and what he means by the latter is the fact that humans must not act as if they are “infinite.”37 Correspondingly, the minimal claim can only be understood by reference to created human nature and its intended end, while the maximal claim belongs in the realm of human decision making and the limits of that process. In other words, in determining their actions, humans must choose to act by reference to external criteria. Thus, the maximal claim of natural law must be heteronomous. The problem with this attempt at reconciliation, however, is that there seems to be only one way to fulfil the Noahide commandments in rabbinic literature. Absent from the discussion in Sanhedrin is any form of minimal obligation, typically indicated by the word ‫( יצא‬yatza) which is the term used for fulfilling commandments in a minimal sense.38 The most obvious reason that there is no such expression in relation to the Noahide laws is because they are primarily negative, which is why they are subject to a strict binary of acceptance or non-acceptance. Stated differently, you cannot partially abstain from theft. By extension, it is perplexing that Novak can propose a minimal and maximal form of those laws. Moreover, if we are to assume that Novak’s theory is consistent across the areas in which he locates natural law in Judaism, one would expect these two forms to be detectable in the reasons for the commandments and rabbinic 35 Novak, “The Human Person as the Image of God,” 45. 36 Novak, “Natural Law and Judaism,” 37. 37 Novak, Natural Law in Judaism, 153. 38 See for example M. Megillah 4:1; M. Rosh Hashanah 4:6.

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enactments as well. But that is not the case, however. Although the explanations for the commandments work on two levels, to the extent that the fuller understanding of the commandments is available only to a select few and the widely recognized benefits are known to everyone, the rabbinic enactments do not seem to accommodate two levels. While the enactments have to be made in the community’s best interest, the only choice that ordinary Jews have is whether or not to follow those enactments.39 In that sense, Novak’s theory is not entirely consistent. 2.3 Is There any Content to the Natural Law? In our first chapter, we demonstrated that Novak ultimately furnishes his natural law theory with metaphysical content. What we have not yet shown is how Novak first defines natural law with respect to the laws that he associates with it. In other words, given that Novak first defines only the prohibition of murder as an example of natural law,40 does he view that prohibition as the content of natural law? If that were the case, natural law would not simply be a method of arriving at moral precepts: the prohibition of murder would be its content. From Novak’s earlier account – even when he considers the rest of the laws of the Noahide code to be an expression of natural law – it would appear that the theory has no content. In support of this claim, we can mention his description of the code as that which enables human beings to judge the goodness of the Mosaic law.41 This idea builds on a point he makes in his original formulation, specifically, that the Torah needs to be given to a community that is able to interpret the law.42 What that means is that the community that receives the Torah requires a way to contextualize it. But the members of this community do not need specific laws to do so; they only need a method of interpretation. Or, framed in the terms we used earlier, the community needs to know that God ought to be obeyed. Along the same lines, in his review of Menachem Elon’s book on Jewish law, Novak writes that “specific statutes” are not derived from natural law.43 These ideas lead one scholar to locate examples of “finite rationality” in the thought

39 Novak, The Jewish Social Contract, 87. 40 Novak, Law and Theology in Judaism, 115. 41 Novak, The Election of Israel, 76; The Image of the Non-Jew in Judaism, 149. See also Novak, “Natural Law and Normative Judaism,” 6. Novak’s point about the essentially negative nature of the Noahide code is also of a piece with this idea. Novak, Law and Theology in Judaism, 76–77. 42 Novak, Law and Theology in Judaism, 26. 43 Novak, review of Elon, Jewish Law, 54.

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of the rabbis.44 Paul Nahme argues that, rather than attempting to universalize the norms, the rabbis are instead preoccupied with the status that the various laws assign within that system.45 In other words, Nahme seems to agree that Novak’s natural law has no specific content. Nevertheless, that is not true of Novak’s second account, in which the content of natural law is the relationship with God, which is how Novak interprets the imago Dei.46 It can be suggested, however, that Novak’s use of personhood as a “mediating concept” is a response to this problem. The pertinent discussion can be found here: So it seems to me that the best mediating concept for this interrelation is a concept of human personhood inasmuch as human persons are the subject of both natural law and positive law. To assume that positive law, specifically the positive law of revelation, makes its addressees a new species (rather than members of a new culture) would make any notion of natural law irrelevant to a tradition like Judaism that bases itself on such a revelation. Thus, the mediating concept must be a concept of human personhood in which the subject of natural law and the subject of positive law, even positive divine law, retain enough in common to still be considered human persons in a real sense, that is, members of the same species.47 In his attempt to mediate between the law of the Noahide code and rabbinic law, Novak makes an implicit admission that the heuristic guidance provided by the code and the positive divine law are not immediately compatible. If that were the case, Novak could just say that the divine law builds upon the Noahide commandments. More to the point, the issue of the positive nature of rabbinic enactments and the essentially negative characteristic of the Noahide code hides a discrepancy about content, namely, that specific, positive law is given content by its purpose, while negative commandments are merely a form of limitation. And so what Novak is doing is introducing the content that is missing from his earlier account. Indeed, in Novak’s earlier account, there is no mention of this underlying concept.

44

Paul Nahme, “Noahide or Natural Law? Toward a Theory of Normative Agency in a Post-Secular World.” Paper presented at Rethinking the Covenant. I respond to Nahme in Milevsky, “Reason with Baggage,” 117. 45 Nahme uses this framework to explain what seems to be a double standard in Jewish law: a Jew is only responsible if his ox gored the ox of another Jew, but not of a non-Jew. On this issue, Nahme argues that the rabbis were concerned with the legal status of Jews and non-Jews, but not the universal morality of that law. 46 Novak, Halakhah in a Theological Dimension, 96ff. 47 Ibid., 164–165. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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Moreover, in its treatment of the Noahide code, the Talmud implies that it does not have any specific content. That is to say the rabbinic statement about the “seven commandments” that were given, and the subsequent teachings, which add other prohibitions using the words “[they were] also [commanded] upon,” all seem like general guidelines.48 Moreover, the disagreements found in the Talmud over the nature and scope of the commandments, and the absence of the typical case-based discussion of those laws, also lend itself to the same interpretation. More importantly, there is no sign of Novak’s mediating idea in the primary discussion (sugya) about the Noahide code, found in tractate Sanhedrin. That discussion is based on the following teaching in the Tosefta. On seven commands the sons of Noah were commanded: on the laws, and on idol worship, and on adultery, and on murder, and on theft, and on [eating] a limb from a live animal. On the laws, how so? Just as Israel is commanded to establish houses of judgement in their cities, so too are the sons of Noah commanded to establish a house of judgement in their city.49 There is no mention here, or any hint, of an underlying concept, to say nothing of the idea of personhood. Further, the fact that the terminology employed by the Tosefta to express the notion that the Noahides are “commanded” is no different than the word used for the commandments that are unique to Israelites also suggests that the two legal frameworks have a similar basis.50 A more obvious difficulty is the fact that although Novak correctly notes that the Noahide code is focused, in the main, on the interaction with other human beings, it also includes at least one commandment that does not have any human beneficiary. Meaning, even if the commandment against blasphemy protects human beings who would be offended by those words, the commandment against eating flesh from a live animal would surely be difficult to relate to personhood. Perhaps not surprisingly, Maimonides, who draws heavily on rabbinic texts in his legal rulings, also makes no mention of an underlying concept for the Noahide commandments. Not unlike the Talmud’s formulation, he begins the section of the code by stating that Adam was given six commandments.51 It should also be noted that Maimonides never makes any connection between the Noahide code and the enactments. If the same basis serves for both areas 48 49

b. Sanhedrin 56a-b. T. Avodah Zara 9:4. Translation mine. It should be noted that the law of blasphemy is missing from this pericope. 50 For example, see b. Sotah 41a. 51 Maimonides, Mishneh Torah: The Laws of Kings, 9:1. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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of Jewish law, one would expect Maimonides, who Novak sees as further developing the ideas of natural law in Judaism, to have made note of that connection. It is equally difficult to suggest that the rabbinic enactments are grounded by the concept of personhood. According to Novak, the idea that drives the enactments is that other human beings are not treated as means to something else but as their own ends.52 On that basis, and by reasoning that the Noahide law ostensibly protects human beings from harm, Novak makes a connection between that positive law and the Noahide code.53 According to this argument, the ultimate purpose of both kinds of law is the preservation and protection of human life. But while the Torah does seem to provide some basic protection for human beings, as Novak argues quite convincingly,54 the same idea does not feature in classic rabbinic law. Simply put, is the rabbis’ concern not ultimately the Torah, first and foremost, and the community as a whole secondarily? It would seem that way from the Talmud in Yevamot, where it is explained, based on the verse in Leviticus 18:30, “Therefore shall you keep my charge,” that the rabbis ought to create fences to protect against the violation of the commandments.55 Further, in rabbinic texts, the most prominent reason given by the rabbis for the requirement to follow their enactments is that the rabbis have been granted the authority to make them, as per the verse, “according to the law which they shall teach thee, and according to the judgement which they shall teach thee, thou shalt do” (Deuteronomy 17:11). The same idea is also expressed by the rabbinic statement, “guard what I am guarding.”56 Along the same lines, the classic formulation of “make a fence,”57 which refers to protecting the Torah from being trampled upon, if we follow the metaphor, is silent on serving the community or its individuals. Indeed, Novak himself is explicit that the purpose of the enactments is to protect the laws of the Torah, as can be seen when he explains Maimonides’ ruling against those who make a blessing on Torah study by saying, “Blessed is He who teaches the Torah,” rather than, “Blessed is He who gives the Torah”:

52

Ibid., 165–166. As Novak admits, this idea comes from Kant. Following Martin Buber and Emmanuel Levinas, Novak also argues that one must constitute the other before one constitutes the self. Ibid., 166. 53 Novak also writes that, in their creation of law, the rabbis are imitating God, for they too are concerned with perfecting the body and the soul. Novak, Natural Law in Judaism, 106. 54 Novak, “Is there a Concept of Individual Rights in Jewish Law?” in Tradition in the Public Square, 104–110. 55 b.Yevamot, 21a. 56 Ibid. 57 M. Avot 1:1.

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Thus, for Maimonides, the authentic human response to revelation is the free inquiry of the intellect into its deepest truths. This, then, is the authentic amor Dei intellectualis. And, this same free inquiry of the intellect, which enables the sages of Israel to perceive the transcendent ends of the Torah and to enact programs which enable the people to affirm these ends and act for their sake.58 More evidence about the nature of rabbinic enactments comes from Maimonides. Based on the precedents in the Talmud, Maimonides describes the obligation to listen to rabbinic rulings in the following terms: Whoever does not act in accordance with their ruling transgresses a negative commandment....whether matters that they learned through a report, which is Oral Torah, or whether matters that they learned through their knowledge through one of the methods with which the Torah is interpreted and it seems in their eyes that this matter is a certain way. Or, whether it is something they enacted as a fence to the Torah and according to what the time requires, and those are the rulings, enactments, and customs. In all these three matters, there is a commandment to listen to them.59 According to Maimonides, rabbinic rulings encompass the Oral Torah, interpretation, and enactments for the purposes of the Torah. And all three of those categories emerge directly from the Torah rather than a concern for human beings. Based on this statement, we might even suggest that the only content that the rabbinic enactments can be said to contain is the torah law itself. And so, if natural law is in evidence here, it is in the process of rabbinic enactments, but not in their content. Moreover, the enactments that relate to fixing the world (tiqqun olam), which Novak sees as an example of universal reason,60 do not seem to be 58

Novak, “Maimonides and the Science of the Law,” in Jewish Law Association Studies 4 (Atlanta: Scholars Press, 1990), 133. Emphasis mine. Along these lines, Novak writes that the explanations that the rabbis must provide in order for the enactments to take purchase are often explicitly theological: “All rabbinic legislation requires rational justification (ta’ama), namely, it must be argued prior to legislation just how a proposed decree or enactment fulfils an agreed-upon purpose. As a means to an end, the proposed means is conditional; it requires a rational argument to persuade others of its theological (in the case of a matter between humans and God) or its ethical (in the case of a matter between humans themselves) value.” Novak, The Jewish Social Contract, 87. 59 Maimonides, Mishneh Torah: The Laws of Transgressors, 1:2. Translation mine. 60 Novak, “Natural Law and Judaism,” 44.

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consistent with natural law. On the contrary, the specific examples of those enactments, which pertain to divorce, slavery, and even loans, are in contravention of natural law.61 Further, the fact that the rabbis made enactments that fall under that category in an ad hoc fashion and out of necessity is not consistent with what Novak describes as a deep rabbinic concern with human personhood.62 But even the rabbinic notion of human dignity, which Novak makes much of,63 is limited in its application.64 The concept does not create its own law; it only limits the application of Torah law in some circumstances. If human personhood would be as central as Novak makes it seem, it would feature more prominently in the enactments. That being the case, how can rabbinic enactments reflect a concern with human beings? A further problem is that the reasons for the commandments, another area in which Novak locates natural law, similarly do not have any content. To state the obvious, there are no specific laws that emerge from those explanations, particularly those that are strained to begin with. Moreover, there is not one specific purpose to speak of, a point that can be seen from an apparent contradiction between statements that Novak makes about the intention one must have in fulfilling the commandments. With regard to interhuman law, Novak states as follows: In the commandment to love one’s neighbor as oneself, the neighbor needs full and immediate attention of the one acting on his or her behalf.65 Later, Novak makes a seemingly conflicting statement: The authoritative halakhic conclusion is that all of the commandments minimally require intention of their divine source (whether immediate or ultimate) in order to qualify as mitsvot.66 It may be argued that Novak incorporates both of these positions. Indeed, Novak writes elsewhere that the nature of any commandment can only be known by reference to a number of factors, including the subject of the command, the outcome of the commanded act, the entitlement of the beneficiary, 61

As we saw earlier, Justinian believes it is against nature to enslave human beings. Taking interest was historically seen by many as against natural law. Charles Geisst, Beggar Thy Neighbor, (Philadelphia: University of Pennsylvania Press, 2013), 54–56. 62 They are more consistent with Hobbesian measures than a divinely backed natural law theory. 63 Novak, “On Human Dignity,” in Natural Law and Revealed Torah, 72ff. 64 Even as the concept is described by the Talmud as “great.” See for example b. Menachot 37b. 65 Novak, Natural Law in Judaism, 67. 66 Ibid., 68. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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and the appropriateness of its time and place.67 Nevertheless, the variance in each of those measures is such that one would be hard-pressed to locate any consistent content within the reasons for the commandments. And so, it is difficult to see how the content of the reasons for the commandments is the relationship with God, given that only some of them are done with the purpose of other carriers of God’s image.68 2.4 Is the Noahide Code Aufgehoben by the Mosaic Law? As Novak makes the transition from discussing natural law solely in the context of the Noahide code to locating natural law-type ideas in the Mosaic law as well, he is faced with a difficulty. Namely, how do the laws of the Noahide code, which he defines as rational and universally applicable, figure into the Mosaic law, which is of course a covenant with a specific group of people? In both his earlier and later treatments of this question, Novak prefers to frame this issue in Hegelian terms; and he asks if the laws of the Noahide code are aufgehoben by the Mosaic law, in the sense of an idea being sublated by another,69 or if they are simply incorporated into it, and the legal system to which they belong is left unchanged. In the first series of his Law and Theology in Judaism, where Novak identifies only the Noahide code as an expression of natural law, he writes the following: Our inheritance from Noahide law is reverence for life. But our system is now improved upon, in the German sense of aufhebung...something lifted from a lower level and included on a higher level.70

67 68

Novak, “Natural Law and Judaism,” 22–23. It should also be noted that, since Novak includes the reasons for the commandments as one of the expressions of natural law in Judaism, it follows that the search for the reasons of the commandments should be encouraged by the Talmud. But when the Talmud discusses the reasons for the commandments, however, the human desire to seek them out is associated with antinomianism and sin. See for instance b. Sanhedrin 21b. It should also be noted that, in the pertinent section, the word used for the reasons for the commandments is ‫ טעמא‬or reason (literally taste). b. Sanhedrin 21a. Further, the only place in the Talmud that discusses the Noahide laws uses the term ‫נצטוו‬, meaning commanded, which is an indication that the rabbis themselves see a categorical difference between the reasons for the commandments and the pre-Sinaitic laws. Ibid., 56b. The discussion of the enactments, however, features the word for fixed or established (‫ תקן‬or ‫)גזר‬. Both can be seen in b. Shabbat 14b. There are numerous other examples. This linguistic difference gestures towards the idea that only the former has a purpose that can be identified as its content. 69 See for example G.W.F. Hegel, Hegel’s Phenomenology of Spirit, trans. A.V. Miller (Oxford University Press, 1977), 81. 70 Novak, Law and Theology in Judaism, 56; Law and Theology in Judaism, 2nd Series, 26. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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The implication is that the laws of the code are not simply incorporated into the Mosaic law; they differ in some way. In the second series of his Law and Theology in Judaism, Novak offers more insight into that transformation: In other words, the acceptance of the Torah by the Jewish people was conditioned by their prior acceptance of the universal Noahide law, such as the prohibitions against murder, adultery, and theft. What was unconditional was the acceptance of the new form of lawfulness: after revelation, morality is now personal obedience to God, that is, a mitzvah.71 This statement comes in the midst of what Novak presents as a novel construct of revelation, his argument being that the Torah has preconditions – that is, the Noahide laws.72 The point he is making is that, although the norms must be practiced before revelation, once the precondition has been met, those laws do not feature in Judaism in the same way. And that change manifests in their new devotional form. However, in his Natural Law in Judaism, written in 1998, Novak insists that the code is not aufgehoben: In other words, to use Hegelian language, natural law must not be aufgehoben by positive law. It must not be so transformed by it that it eventually loses its former identity altogether.73 Here Novak takes the view that a fundamental change in the code would mean releasing its adherents from their earlier agreement.74 And if that were the case, “that would entail a separation from the justice that God requires of the human world.”75 Read in the context of Novak’s original statement on the issue, the implication is that transforming the code to an act of obedience would disconnect the laws from their original sense of justice. To understand the significance of this issue, I return to Novak’s discussion of natural law as the border concept between Judaism and Christianity. In order to argue that Jewish-Christian dialogue is possible on the basis of the Noahide code, it is necessary for the norms of the Noahide code to exist on the margins of both traditions. This argument would be severely undermined if the N ­ oahide 71

Ibid. This point also reinforces the non-metaphysical nature of the Noahide code earlier in Novak’s thought. I return to this point later in the chapter. 72 Novak, Law and Theology in Judaism, 2nd Series, 26. 73 Novak, Natural Law in Judaism, 164. 74 They are “subsumed,” as he writes elsewhere. Novak, Covenantal Rights, 86. 75 Ibid.

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commandments do not remain in a recognizable form after the Sinaitic revelation. On a deeper level, that would mean that, after the Sinaitic revelation, the sense of justice that is at the heart of the code is no longer found in any recognizable form. It is perhaps with this issue in mind that Novak attempts to show that inherent to the view that the Noahide code is a precondition to Judaism is the view that something of the precondition must remain in that which is subsequent to it. Thus, in Natural Law in Judaism, Novak explains the continuing presence of Noahide law by stating that a true precondition is present even after the terms have been met: A true precondition always accompanies what it has enabled to appear; it can never be left behind as finished.76 The sharpest critique of this idea emerges from a point made by Christine Hayes. Referring to the fact that the Talmud determines the status of any given law for non-Jews based on whether it is repeated in the Bible after the revelation at Sinai, Hayes writes the following: The Mosaic Law can, and sometimes does, overturn Noahide law. Since one of the defining features of natural law is that no law can cancel or contravene it, the ability of the Mosaic law to contravene a Noahide law is further evidence that the rabbinic conception of Noahide law does not conform to prevailing notions of Greco-Roman natural law.77 It can be suggested, based on Hayes’s point, that Novak’s view only holds if he is of the opinion that the Noahide code is aufgehoben by Mosaic law. The reasoning is as follows: Hayes’s point is only true of the Noahide code vis à vis the Mosaic law, that is, within the Mosaic law, or once the Sinaitic revelation occurred. However, that is not necessarily the case when the code is seen independently of the Mosaic law, or what Novak would call its chronological precondition. In other words, the rabbis may still grant the Noahide code the status of natural law when it is viewed independently of the Mosaic law. Once the Noahide code gets incorporated into Mosaic law, however, it experiences a change. This shift can best be understood by Novak’s earlier point, namely, that within the Mosaic law, the Noahide code takes on a form of “obedience,” rather than simple lawfulness.

76 Novak, Natural Law in Judaism, 187. 77 Hayes, What’s Divine about Divine Law?, 360.

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Therefore, in light of Hayes’s point, it can be argued that the Noahide law retains its universal status only before it is incorporated. And the reason why the code can be abrogated by the Mosaic law is because it becomes subject to a new standard, inasmuch as those laws only remain in place when a greater act of obedience cannot be fulfilled in their absence. For, when that is the case, their universal orientation is teleologically suspended.78 Stated differently, once the Torah is given, the laws of the Noahide code attain a new status within the Mosaic law. But this description can only work within Novak’s original formulation, wherein the Noahide code is aufgehoben. As a result, Novak’s subsequent position is untenable. 3 Conclusion The primary takeaway of this chapter is the problem Novak faces in locating natural law within diverse areas of Judaism, namely, the legal system primarily intended for gentiles, the reasons for divine commandments, and the process of rabbinic enactments. It stands to reason that a natural law theory within Judaism that is based on one facet of the tradition will differ significantly from a natural law that seems to be expressed in multiple parts of Jewish thought and practice. In the case of Novak’s natural law theory, the difference is more pronounced because, unlike Novak’s first account, which pertains only to the Noahide code, a legal system which is minimal in scope, Novak’s later treatment, which relates to a more elaborate system of practice and belief, must offer a theological basis that stretches his original definition of natural law. That is to say a theory which explains why particular laws are expected to be binding universally, and by extension why those laws, which govern the relationships with those outside the covenant, cannot easily be applied towards the purpose of the Torah, which guides rabbinic enactments, and also serves as the reason why even nonrational laws ought to be kept. And even after Novak introduces the minimal claims, with which he tries to explain why ordinary human beings are responsible for the laws, it remains unclear how anyone can be held responsible for concepts they cannot fully understand on their own. A related point that this chapter impresses upon the reader is that Novak’s earlier formulation of natural law is the stronger one. As we have seen, in Novak’s most lengthy treatment of the Noahide code, The Image of the Non-Jew 78

Here I deliberately echo the words of Søren Kierkegaard. See Kierkegaard, Fear and Trembling 3.106, ed. and trans. Howard V. Hong and Edna H. Hong (Princeton: Princeton University Press, 1983), 56.

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in Judaism, he frames the rabbinic legal-framework as an innovation that enables Judaism to recognize non-Jewish legal systems. By expanding natural law to include metaphysical truths, however, the “normative commonalities” which form the basis of that argument,79 are undermined, for the metaphysical ground of the imago Dei is certainly not found in the Roman legal system and is not convincing in the context of the public square either. Stated differently, as soon as Novak begins drawing on natural law to explain the acceptance of divine law, and later the process of rabbinic enactments, thereby making moral law understandable only by reference to God’s wisdom, they lose much of their relevance. In the following chapter, I will explain why Novak gravitates towards what appears to be a less convincing account of natural law. 79

Novak himself uses this term in Novak, Talking With Christians, 36.

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The Theological Impact of a Changing Natural Law Theory 1 Introduction In this chapter I analyze Novak’s natural law theory in the context of his view of redemption.1 I begin by explaining the significance of redemption to Novak’s thought. I then introduce the initial context in which I analyze the connection between Novak’s natural law theory and redemption, namely, his treatment of the Noahide code; and I offer two reasons why this specific expression of natural law in Judaism is the appropriate area to study it.2 I then assess Novak’s conception of redemption over the course of his writings. From this analysis a few parallels will emerge between the shift in Novak’s view of redemption and his changing account of natural law theory: as Novak begins to place limits on human activity, he starts adding constraints on human knowledge; and as Novak moves the goal of universality out of the realm of human achievement and into God’s domain, his conception of the universality of natural law becomes dependent on God. I then show that these parallels are suggestive of an underlying link between Novak’s covenantal views and 1 Very little has been written about Novak’s views on redemption. For a recent treatment of Novak’s views on the relationship between Jews and Christians in the future, see Stuart Dauermann, Converging Destinies: Jews, Christians, and the Mission of God (Eugene, OR: Cascade Books, 2–17), 74–76. Dauermann compares Novak, for whom both Jews and Christians play a role in the coming age to Sholem Asch, for whom Jesus actualizes Israel’s historical ideal and to Irving Greenberg, for whom Israel and the Church are “partners.” Ibid., 72–78. For the purposes of this chapter, I will not make a distinction between the world to come (olam ha-ba), the resurrection of the dead (tehiyyat ha-metim), and messiah (meshiah), which are three closely related components of Jewish eschatology. Novak discusses each of these components in Novak, “Jewish Eschatology,” in The Oxford Handbook of Eschatology, ed. Jerry L. Walls (New York: Oxford University Press, 2008), 114–126, but he generally uses the term ‘redemption’ without distinguishing between those three components. See also David Novak, “Judaism, Zionism and Messianism — Telling Them Apart,” First Things 10 (1991): 22–25. 2 It should be noted that there are two reasons why we would expect that there should be a parallel between the two concepts. The first is that, if natural law is a precondition for redemption, and the notion of redemption changes, natural law should be affected by that development. The second is that if the relationship between mankind and God is the ground of moral law, a change in the view of how that relationship develops must have an effect on the moral law itself. © Jonathan L. Milevsky, 2022 | doi:10.1163/9789004504363_005 Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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his natural law theory. In the second section of this chapter, I draw on Jody Elizabeth Myers’ research on the relationship between messianic views and natural law perspectives,3 and I show that despite the change in his thought from a position that is consistent with Myers’ definition of active messianism to a view that corresponds to what she calls passive messianism, Novak continues to assign a prominent role to natural law. This feature of Novak’s theory will be used to demonstrate the impact of Novak’s view of redemption on his account of natural law. The relationship between these concepts will be explored further in the third section, where I will take up Leora Batnitzky’s challenge, namely, that Novak’s covenantal theology, which is based on faith, cannot be reconciled with his natural law theory, which is based on reason. I will first consider the possibility that Novak’s later position, namely, that the natural laws remain in minimal form at the time of redemption, indicates that the covenant is indeed compatible with natural law. I will then show, however, that Novak’s views about the law at the time of redemption are not in keeping with the general direction of his thought. Finally, by reference to Cicero’s classic definition of natural law, I will illustrate that Novak’s subsequent position on redemption explains why he moves away from his initial presentation of natural law. My methodology differs slightly from that of the first chapter. While I include a chronology of Novak’s albeit brief treatments of redemption, the focus here will be less on the meaning of the terms he uses to describe that time and more about the interrelation of ideas. That is to say this chapter pertains to the question of how the concept of redemption is contextualized within Novak’s view of the covenant and the impact of that idea on his natural law theory. In particular, the role that redemption plays in the context of a shift in Novak’s natural law theory is important, as it allows us to assess the way Novak relates created human nature to the ultimate purpose of the covenant. 2

The Significance of Redemption for Novak

I intend to show here not only why redemption holds significance to Novak himself, as a Jew and theologian, but also why it is a significant subject of study given my broader interest in this book, which relates to Novak’s earlier and later accounts of natural law. Demonstrating the former can be accomplished 3 Jody Elizabeth Myers, “The Messianic Idea and Zionist Ideologies,” in Jews and Messianism in the Modern Era: Metaphor and Meaning, ed. Jonathan Frankel (New York: Oxford University Press, 2013), 3–13.

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by looking at Novak’s background and orientation. As a Jew, the concept of redemption is ingrained in his tradition.4 Indeed, from the Jewish Bible to the Mishnah and Talmud and through the Middle Ages and early modern Jewish writings, there has been an almost unending current of the idea that history as we know it will have a definitive end-point.5 Beyond that, as a covenantal theologian, redemption is an inseparable part of Novak’s Weltanschauung. The link between the covenant and the redemption can be seen from Novak’s view, following Franz Rosenzweig, that the covenant remains incomplete until an event in the future will mark its completion.6 The belief in redemption must therefore play a role in any completely formed covenantal theology such as Novak’s. The connection between redemption and natural law can be best illustrated by reference to a point Novak makes in his The Image of the NonJew in Judaism, namely, that the relationship between Jews and non-Jews is directly related to the significance of rationality in Jewish law. Novak writes that, “if one considers reason as peripheral in Judaism, then they will regard the gentile rejection of the divine Noahide law as making for a fundamental separation between Jews and non-Jews because they essentially have nothing in common....”7 Because that it so, the relationship between Jews and nonJews, which is a central question in Novak’s treatment of redemption,8 must be connected to his account of natural law.

4 The significance of redemption to Novak’s thought can be seen when he writes that “all political, economic, and intellectual pursuits are for that aim,” meaning the end of history. Novak, The Jewish Social Contract, 20. I should also clarify that I am not referring to messianic Judaism in my analysis. Unlike messianic Jews, Novak is not a believer in Jesus as the promised messiah. He addresses messianic Judaism, however, in a 1991 article. Novak, “When Jews Are Christians,” First Things 17 (1991): 42–46; Jewish-Christian Dialogue, ix. A recent book on the topic is Richard Harvey’s Mapping Messianic Jewish Theology (Bletchley, Milton Keynes: Authentic Media, 2009). Harvey briefly mentions Novak when he discusses Kinzer’s use of the “eschatological horizon” in comparing the low eschatological horizon he finds in Christianity and the higher horizon in Judaism. Harvey also sees Kinzer’s mention of Novak as evidence of Kinzer’s dissatisfaction with current dispensationalist thought. Ibid., 250, 255, 259. I mention Kinzer briefly later in this chapter. 5 See for instance Micah 4:1–5:15; Isaiah chap. 2; Ezekiel 40:1–48:35; b. Sanhedrin 96b-99a; b. Sukkah 52a-b; R. Saadia Gaon, Emunot Ve-deot, viii; Maimonides, Mishneh Torah: The Laws of Kings, ch. 11–12. 6 Novak, The Election of Israel, 152–153; Franz Rosenzweig, The Star of Redemption, trans. W. W. Hallo (New York: University of Notre Dame Press, 1970), 38ff. 7 Novak, The Image of the Non-Jew in Judaism, 147. 8 Novak, The Election of Israel, 253–255.

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The Context for this Analysis

Before studying the connection between Novak’s treatment of redemption and his natural law theory, it is necessary to identify the initial expression of natural law in which I will conduct this analysis.9 The strongest connection to redemption in Novak’s thought emerges from his treatment of the Noahide code.10 The most obvious explanation for this connection is that, among the three areas of Judaism in which Novak identifies natural law-type notions, the Talmud discusses the redemption in the context of the Noahide code. The concept emerges from a talmudic debate about the status of non-Jews at the time of redemption. The argument is between Rabbi Eliezer, who believes that there is no salvation outside of Israel, and Rabbi Joshua, who believes that the righteous among the nations have a share in the world to come.11 The latter opinion is only applicable for non-Jews who keep the Noahide laws. On a normative level, therefore, redemption leads to a discussion of the Noahide laws. Further, just as Novak sees the Noahide code as a precondition for revelation, he also expresses the belief that the Noahide law must be kept universally for the ultimate fulfilment of the covenant to occur, creating bookends for the 9 10

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As we will see, the context for his treatment of redemption changes from the Noahide code to the reasons for the commandments. That change will prove to be significant later in this chapter. The connection between the Noahide code and redemption also comes through in Novak’s references to teleology. In chapter six of his Natural Law in Judaism, Novak discusses his preferred teleology, one which neither ignores the difference between commandments that correspond to the relationship between man and God and those that correspond to the relationship between man and his fellow man, as R. Saadia’s teleology does, nor is silent on the covenant, which Novak finds to be the case in Maimonides’ teleology. Novak then writes as follows: “Only in human community can we properly wait for God. That is why natural law is manifest to us as moral law, which orders our interhuman relationships. That is what connects it to the law of God.” Novak, “Persons in the Image of God,” in Tradition in the Public Square, 153. According to this statement, the teleology of human personhood, the driving factor for rabbinic enactments, which is one of the areas where Novak locates natural law in Judaism, is itself a penultimate one. While that teleology enables a human community, the human community does not stop there, as it were. Rather, the community then awaits God, by which Novak means the time of redemption. The term “waiting,” in reference to the messianic age, famously occurs in Maimonides’ thirteen principles of faith as well as in the Talmud and subsequent Jewish liturgy as well. Maimonides, Mishnayot ʻIm Perush Ha-Rambam on Sanhedrin, chap. 10 (Mantua, 1562), 53a–54a; b. Shabbat 31a. Tosefta, Sanhedrin 13.2. Not surprisingly, Novak offers a detailed treatment of this rabbinic text. Novak, “Jewish Eschatology,” 119–120.

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covenant that are suggestive of a deep connection between the two concepts. Finally, Novak’s treatment of redemption is at its fullest in the context of his analysis of the Noahide code, and it therefore presents the richest source material from which to understand his view on the subject. 4

A Chronology of Novak’s Treatment of Redemption

4.1 Halakhah in a Theological Dimension and “The Role of Dogma in Judaism” In two of Novak’s earliest mentions of redemption, it seems to be part of a continuum which begins at Sinai. Indeed, the only difference between the present time and redemption appears to be the current need for temporary rabbinic enactments. In Halakhah in a Theological Dimension, Novak uses the example of prozbul, which is the rabbinic enactment that allows someone to lend money on the seventh year of the Jewish cycle by transferring the rights of collection to the courts.12 The need for this decree is articulated by Novak as a “regrettable fact of living in an as-yet-unredeemed world.”13 But that is not to say that the rabbinic enactments are an afterthought. Instead, Novak perceives the rabbinic project as part of a continuum that connects the reception of the Torah and the end of days: The halakhic process stands between the revelation of Sinai and the full redemption of the days of the messiah. The affirmation of revelation (an adequate theory of which is almost always absent from both fundamentalist and liberal rhetoric), as mediated by Jewish history, means that the halakhah is in substance the commandments of God as men and women attempt to fulfil them.14 The fact that Novak identifies the rabbinic project with the period leading to redemption also emerges from a statement he makes a few pages later in which he interprets a teaching by Hanina the Tailor, namely, that the commandments will be nullified in the future, to mean that they are “already open for radical interpretation.”15 In other words, the rabbis thought of themselves as already 12 So Rashi b. Makot 3b, s.v. moser; but see Tosfot ad loc., s.v. ha-moser. 13 Novak, Halakhah in a Theological Dimension, 7. 14 Ibid., 9. 15 Ibid., 12–13.

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being a part of that future. Along the same lines, in an article entitled “The Role of Dogma in Judaism,” Novak connects the need for temporary rabbinic enactments with redemption: It is important to comprehend, moreover, that the recognition of the essential finitude involved in this process of making temporally c­ onditioned normative judgments is itself an issue of faith. It saves theology from arrogant triumphalism, from the oftimes blasphemous impression that its voice is God’s last word. When theology does that, attempting to permanently subsume the transcendent within its own immanent utterances, it thereby denies its own doctrines of redemption.16 In this excerpt, Novak emphasizes the fact that the enactments are temporary. In both instances, however, he frames the need for rabbinic enactment as an outcome of the current unredeemed state. By extension, the enactments will not be needed at that time, and that seems to signify that Novak associates redemption with a more ideal setting for the covenant. 4.2 Jewish-Christian Dialogue If Novak’s first reference to redemption dealt with its general form, in this text he offers a glimpse into its content and its bearing on Jewish and Christian communities. The impression one gets from this treatment of redemption is that Novak associates it with greater human knowledge. This connection can be found in a response Novak formulates to non-believers: It seems that such a person must choose either to listen to other voices or to wait. If he or she chooses to listen to other voices—and they are always there—there is nothing we can say to him or her. But if that person chooses to wait, then he or she must be silent, for silence precedes the speaking of the voice. “And the Lord is in His holy abode, be silent before Him all the earth” (Habbukuk 2:20). And we who have heard it must be silent with them, for we need to hear it once again.17 Novak seems to be suggesting that, at the time of redemption, we will hear the voice of God. It is difficult to understand what he means exactly, but Novak 16 Novak, “The Role of Dogma in Judaism,” in Tradition in the Public Square, 83. 17 Novak, Jewish-Christian Dialogue, 155.

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appears to mean a form of prophecy. More to the point, in this relatively early account of redemption, Novak states that this experience will be widely shared: There can be no talk here of God the creator and sustainer of the universe, God’s election of a singular community and revelation to it of unique covenantal responsibilities, God’s judgment of both fidelity and infidelity to the covenant, or God’s redemption of the world in an act radically transcending finite human accomplishment. This type of secular agreement, which is certainly necessary for the minimal continuity of life and civilization on this planet, seems to require that Jews and Christians bracket the historical character of their respective faiths for the sake of some broader international consensus.18 Seen in this way, redemption will reflect on God’s relationship with the world and on his covenant as well. By implication, at the current time, the notion of God as creator and sustainer of the universe is not fully understood, and neither is his will. As a result, this historical background of the covenant, as it is imperfectly perceived by Jews and Christians, is something that both communities cannot discuss with each other. Thus, in addition to informing his readers about the substance of redemption, Novak also begins hinting at the possible implications on Israel’s environment. 4.3 Jewish Social Ethics In his Jewish Social Ethics, Novak becomes somewhat more specific about the content of redemption, writing for example that it will offer universality. The context for his reference to redemption is a discussion of the basis for engagement with other faiths. According to Novak, because the views of religious traditions are built on a “respective transcendent object,”19 by which he means faith-based concepts that are unique to each tradition, its proponents can only speak about truths that overlap with other traditions. These are what Novak calls specific truths. As per the more universal truths, however, [O]ther than some basic logical truths, universal truth in theology or even in philosophy will have to wait for the final redemption of the world.20 18 Ibid., 11. 19 Novak, Jewish Social Ethics, 80. 20 Ibid.

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In the corresponding footnote, Novak says as follows: Ultimately, this lex devina is seen by each covenantal community as being universal law; but it cannot be considered to be intelligible either immediately (ratio quo ad nos) or even by inference (ratio per se) without historical revelation.21 The implication here is that Christians have a role to play in the redemption, meaning that Christians will be incorporated into that universal reality.22 Nevertheless, the purpose of redemption seems to pertain specifically to God’s covenant with the Jews. As evidence for this point, we turn to Novak’s statement about redemption, which he makes in the context of the superiority of divine decrees: Indeed, part of the messianic hope is that we will fully understand God’s law, so that it will immediately persuade us and require no external coercion. At this time we will fully and immediately understand the law of God in all of its manifestations.23 Biblical decrees, unlike rabbinic ones, are backed by particularly convincing reasons; but in our current period, we are not always able to understand those reasons. At the time of redemption, however, that will change: the explanations will be widely available. The redemption, then, relates specifically to the covenant, inasmuch as the purpose of that time is to ensure that the law will be fully accepted. Thus, in this conception of redemption, that period is seen as having a limited bearing on the rest of the world.24 21 22

Ibid., 83, fn.41. For the time being, however, the concept of redemption keeps Jews and Christians apart. Along the same lines, Novak warns about the false universalism of certain ideologies and social movements. Speaking about nationalism, particularly in the United States, Novak states that Jewish enthusiasm towards the United States has to be qualified, or it can transform into pseudo-messianism. Novak, Jewish Social Ethics, 237. Similarly, Novak writes that “social construction” can slip into messianism: “Neither the Jews nor the gentiles can be seen to have come to any consensus that this interhuman social construction should be either the beginning or the end of authentic human community.” Novak, The Jewish Social Contract, 123. This idea even applies to unity, an engagement in which Novak calls a dangerous thing. The desideratum of human kind to be united for the sake of a transcendent goal becomes an “eschatological desideratum only God can and will realize.” Novak, Zionism and Judaism, 125. 23 Novak, Jewish Social Ethics, 38. 24 One other interesting insight into Novak’s treatment of redemption in this text emerges from his discussion of the meaning of the Jewish Sabbath. The traditional interpretation

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4.4 The Election of Israel Novak’s most extensive treatment of redemption is found in his Election of Israel, which will also explain the length of this section. In this text, there is a significant change in Novak’s description of redemption.25 To understand his view, however, it is necessary to get a firm grasp of the disagreement in the Talmud between the two views of the time of redemption and to clarify which of those opinions he prefers. The first view is that the time of redemption will differ dramatically from the time before it; the second view is that the time of redemption will only be different from the standpoint of Israel’s political independence.26 While the second view is directly attributed to one person, namely, the second century Babylonian sage, Shmuel, the first view is not attributed to any one person in particular. There are, rather, a number of Talmudic sages who seem to subscribe to that view. Among them are Rav Hisda, Rabbi Eliezer, Rabbi Shimon ben Elazar, and Rav Hiyya bar Abbah.27

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of the Sabbath, a key part of Jewish practice, is of it being a “foretaste of the world to come” (m’ayn olam ha-bah), as noted in a poem written by the eleventh century poet Menahem ben Makhir, quoted in The Koren Siddur, ed. and trans. Jonathan Sacks (­Jerusalem: Koren, 2009), 389. That is to say, by observing the Sabbath rituals and abstaining from work, one experiences the peaceful serenity of the time of redemption. Novak has a starkly different interpretation, however. In the context of his view on technology, Novak argues that the Sabbath symbolizes the continuity of creation. Indeed, according to Novak, it cannot be the case that the Sabbath symbolizes the world to come. If that were so, the laws of that day would be different; they would take precedence even over life and death matters. Jewish law stipulates the opposite, however. In other words, human life takes precedence over the Sabbath. Novak, Jewish Social Ethics, 150–152. Novak’s interpretation can be seen as the antithesis of the traditional view cited earlier. His idea is that mankind is not a helpless victim of nature. Here Novak subverts a traditional interpretation of the ­Sabbath – a day marking a complete cessation of human endeavours – to support his view of redemption, which is not in itself inconsistent with the notion that humans have control over nature. For the historical setting of the rabbinic view of redemption that he presents in this text, see Novak, “Jewish Eschatology,” 113–131. Maimonides famously sides with this first view. Maimonides, Mishneh Torah: The Laws of Kings, 12:1. I will discuss his view of redemption later in the chapter. Usually by reconciling conflicting Biblical verses about the extent of the changes anticipated at the time of redemption, each of these sages say that the verses which are more fantastical refer to what will occur during the redemption. The variance between verses can include topics ranging from the opinion that the moon will be equal in size to the sun at that time, or the view that weapons will no longer be necessary, or the notion that there will be no merit or blame during that age. Those who subscribe to the apocalyptic view typically also assume that the farfetched prophecies in the Bible describe the messianic age, not the world to come, which is subsequent to it. b. Sanhedrin 91b, 99a; b. Brakhot 34b; b. Shabbat 63a, 151b; b. Pesahim 68b. The two descriptions of redemption, namely, the apocalyptic and extensive view, correspond to what Mark Kinzer calls the excessively low

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Maimonides famously sides with Shmuel and writes that the world at the time of redemption will function as it is used to functioning (olam ke-minhago noheg).28 And since Novak rejects Maimonides’ strict rationalism, it is hardly surprising that Novak disagrees with Maimonides when it comes to redemption, at least to some extent. That is to say between the two opinions mentioned in the Talmud – Novak refers to Shmuel’s opinion as the extensive view and to Rav Hisda’s opinion as the apocalyptic view29– Novak sides with the apocalyptic view, unlike Maimonides. Novak explains that his preference for the apocalyptic view is based on two reasons; the first is theological, and the second is philosophical. The theological reason is that the apocalyptic view prevents the mistake that “Israel possesses within herself the power to carry the covenant from the present into its future completion.”30 According to that explanation, the alternative view would fool Israel into thinking that she can bring about the redemption on her own.31 The philosophical reason for this choice is the fact that the apocalyptic and excessively high eschatological horizons for Jews. Kinzer sees the middle alternative, the excessively low eschatological horizon for Christians, as being radically different than either Jewish alternative, as it spiritualizes this world as well, rather than emphasizing the change in the next world. Kinzer finds this critique in the work of both Novak and Soulen R. Kendall. Mark S. Kinzer, Israel’s Messiah and the People of God: A Vision of Messianic Jewish Covenant Fidelity, ed. Jennifer Rosner (Cambridge: The Lutterworth Press, 2011), 93–94, 113–114. For an analysis of Kinzer’s view with respect to Novak’s covenantal theology and the issue of Christian supersessionism, see Levering, Jewish Christian Dialogue and the Life of Wisdom, 27–46. It should also be noted that the two views of messianism continued in the medieval era. Dov Schwartz, Hara’ayon Hameshihi Behagut Hayehudit Bimei Habeinayim (Ramat Gan: Bar Ilan University, 2005), 1–2. 28 In Maimonides, The Laws of Kings 12:5. It is interesting to note that, in the same context, Maimonides continues to speak of the importance of the knowledge of God, using the same term (da’at) that he uses for those who arrive at the precepts of Noahide law by reason alone. Ibid., 8:11. 29 Novak, The Election of Israel, 154, 253. Novak consistently maintains this view, as can be seen in one of his most recent publications, in which he writes that redemption will only be brought about by God himself. Novak, Zionism and Judaism, 239. Carlo Aldrovandi calls this notion political quietism and says that religious Zionism, the competing movement, blurs the distinction between that which for Novak is the “finite task of the Jewish people” with the “infinite task of God.” Carlos Aldrovandi, Apocalyptic Movements in Contemporary Politics (London: Palgrave Macmillan, 2014), 70ff, 80. Novak also speaks about what he labels “projective messianism,” which separates the days of the Messiah from the time of resurrection by making the Messiah a politically effective leader who will restore Jewish independence,” such as Bar Kokhba, the failed messiah. Novak, “Jewish Eschatology,” 125. 30 Novak, The Election of Israel, 154. 31 Ibid.,153–154. Along these lines, Novak explains that the rabbinic tendency to speak about redemption in fantastical terms is in order to prevent Israel from thinking that it can bring the redemption about on her own. Novak, “Jewish Eschatology,” 118.

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view helps us “appreciate the finite fragility of the present through the affirmation of the future that transcends it.”32 To clarify the first reason, it is helpful to look at Novak’s statement elsewhere that the misguided belief that one must be Jewish to be a citizen of a democratic order leads to messianism.33 In other words, on Novak’s view, the concept of redemption serves as a reminder that Israel cannot take its tradition to be an indication of its superiority or its selfsufficiency. Indeed, the ultimate form of such hubris is proselytism, and the belief in redemption prevents such “conquest and domination of others.”34 In light of this point, the first reversal from Novak’s earlier position comes into view. Whereas on Novak’s earlier position, the concept of redemption prompts human activity, viz. the need for the rabbis to implement enactments, here the redemption is a form of limitation that undermines human ability. This idea is also reflected in the broader terms Novak uses to describe ­redemption, framing it as a “divine trajectory into history and nature.”35 The implication is that, in our current time, nature and history are to be seen as separate realms,36 and there is nothing human beings can do to bridge these two realms together. Further, as a result of this fusion, there will be cosmic effects.37 All of this goes to show that the redemption pertains to more than 32 33

Ibid., 154. Along these lines, Novak later warns against the view that, since the messiah enforces law, the rabbis can bring the messiah by enforcing law, because that “virtually obscures the covenantal thrust of Jewish theology.” Novak, Talking with Christians, 65. 34 Ibid., 161. In this way, this view has a practical application as well. Unlike the alternate conception of redemption, in which the task of converting non-Jews would fall upon Israel — since that view includes the belief that humanity progresses until it achieves redemption — in the apocalyptic view, it would be God’s task to attract the other nations, rather than Israel’s. Along the same lines, Novak says that if Jews would enforce natural law, it would be seen as an expression of a messianic agenda. Novak, “Noahide Law: A Foundation for Jewish Philosophy,” 113–144, 127. A similar concept can also be seen when Novak writes that the Jews cannot be Herrenvolk. If God were to exercise this option, it would put redemption in human hands. Novak, “Persons in the Image of God,” 146–147. Instead, Novak advocates that every nation should enforce its own laws. Novak, Jewish-Christian Dialogue, 34ff. 35 Novak, The Election of Israel, 253. 36 Elsewhere Novak states that, “This world and the world to come are essentially incomparable.” Novak, “Jewish Eschatology,” 118; Talking with Christians, 7. Cf. Novak, The Jewish Social Contract, 234. According to Novak, the separation of these two realms is what enables us to have a philosophically constituted doctrine of election. Novak, The Election of Israel, 12–13. 37 These effects are not specified. Ibid., 157. Martin Kavka cites Novak as saying that the Jewish tradition associates the apocalypse with justice, but I cannot find where Novak makes that suggestion. Martin Kavka, Jewish Messianism and the History of Philosophy, 187, fn. 84. Cf. Novak, The Election of Israel, 152–156.

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just Israel. Somehow or another, the covenant will be expanded to include other nations and there will be an end to the estrangement between them and God.38 Along these lines, Novak states that God’s redemption of Israel will be central to cosmic redemption, but that it will not be about the hegemony of covenant, for “the Torah in toto is concerned with more than Israel.”39 Two points emerge from this fuller description of redemption: The first point is that this concept of redemption pertains to the world, and even the universe, as a whole; it is not just about Israel or the rabbis. The second point is that the redemption relates primarily to the human relationship with God rather than human interaction.40 Both ideas stand in stark contrast to Novak’s earlier conception of redemption, which amounts to a need for temporary rabbinic enactments to address communal requirements. On Novak’s later view, redemption relates to all nations rather than just Israel, and it holds the promise of universality rather than relief from temporary needs. From both points it follows that human beings cannot bring about the redemption. With respect to the expansion of the covenant, the limits placed on Israel’s ambitions can be seen in the way Novak interprets the famous prophetic statement about Israel’s light. For Novak, Isaiah’s words indicate that there is interplay between Israel’s light and God’s light: It is not that Israel’s task is to bring her light to the nations but, rather, that God will bring them to his light that is to shine on Israel as a beacon. ‘For your light has come and the glory of the Lord will shine on you... nations will go towards your light’ (Isaiah 60:1, 3). That light will be universally irresistible in the future. In the present God’s incomplete light on Israel is only capable of attracting random individuals.41 This passage is helpful in illustrating that there is nothing Israel can do to draw the other nations in, the reason being that the light shines directly from God 38

Ibid., 253. The difference between Israel and the rest of the world, however, will be that, “Israel’s relationship will be one without the need for any external coercion; the heteronomous aspect of the covenant will be absent from the covenant of the future. The future, then, will be much more than the extension of the authority found in the present, even the authority of the Torah and its sages.” Novak, The Election of Israel, 154. 39 Ibid. The same impression is given by Novak when he states that the covenant is situated between nature and the end of days, and that eventually it is meant for humankind as a whole. Novak, Covenantal Rights, 85. 40 As Novak writes elsewhere, redemption is a “fundamental divine concern.” Novak, “Jewish Eschatology,” 114. 41 Novak, The Election of Israel, 160.

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onto Israel; it is not Israel’s light. And so, the covenant will be expanded exclusively by God. The same idea also follows from the second point, which can be proven from a parallel Novak makes between the redemption and the Exodus. The statement is made just after Novak writes that ultimate change in the covenant will not be related to the rational commandments but to those between man and God: Furthermore, the fundamental point of reference for the commandments that pertain to the relationship between humans and God will be changed in the future. As we have seen, that point of reference is the Exodus. ‘Assuredly a time is coming – says the Lord – when they will no longer say, ‘as the Lord lives who brought the children of Israel up out of the land of Egypt,’ but rather as the Lord lives who brought the offspring of the house of Israel from the land of the north and from all the lands whereto I have dispersed them.’ (Jeremiah 23:7–8).42 What Novak means to say is that the change expected at the time of redemption does not relate to the rational laws, which human beings can discover on their own, in the sense that they would become more reasonable or easier to understand. Rather, the change relates to the commandments that are grounded in a historical relationship with God. Be that as it may, the fact that Novak draws a parallel between the redemption and the Exodus suggests that, like the Israelites in Egypt, human beings are powerless to bring it about.43 42

43

Ibid., 155. It is telling that Novak switches the context in which he discusses redemption from the Noahide code to the reasons for the commandments. As explained earlier, the Noahide code is not only the context in which the Talmud treats the redemption, it is also taken by Novak to be the necessary condition for the redemption. According to that view, humans can play a part in meeting the requirements for the redemption to occur. The fact that Novak now treats redemption in the context of the reasons for the commandments, upon which humans can have no impact, suggests that redemption moves out of the human sphere of influence and into that of God. Given these changes in his account, particularly as it pertains to the rest of the world, it is reasonable to ask whether Novak’s position on the impact of redemption on Jewish and Christian communities also undergoes a shift. From his discussion of that relationship, which emerges from his critique of Rosenzweig’s view of redemption, it seems that the two communities are closer to each other than he describes initially. Novak, JewishChristian Dialogue, 100–101. The problem Novak has with Rosenzweig is his Hegelianism. Novak finds it ironic that someone who philosophically constitutes man, God, and world as separate entities, could blur those distinctions in the redemption. Novak is specifically referring to Rosenzweig’s suggestion that man and God will be immanent in one another. Novak, The Election of Israel, 102. Novak’s objection to this idea could be influenced by

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That being the case, it is unclear what, if any, role Novak assigns to natural law. In particular, the fact that Novak discusses redemption solely in the context of what he calls the nonrational laws, raises the question of how natural law features in Novak’s more developed view of redemption. 4.5 Natural Law in Judaism A partial answer to our previous question is provided in Novak’s first philosophical treatment of redemption. According to Novak, natural law figures into “the interrelation of revelation and redemption, namely, when the universality of nature and the substance of history finally become one.”44 What this implies is that the time of redemption includes elements of both history and nature. But what does that mean? Some insight comes from Novak’s rebuke of Jewish liberal thinkers who include only nature in their account of redemption. Their position is described as follows: This modern world is taken to be what human reason (or consciousness for those thinkers less rationalistic) can readily bring to presence. Revelation, then, becomes the epitome of human effort itself. But that has fundamentally confused what we can learn for ourselves with what God alone can teach us. Further, liberal Jewish thought has reduced revelation to redemption by constituting it as potential for human progress. But that conflation has confused what we can do for ourselves with what only God can do for us....Thus, by identifying revelation essentially with natural law...liberal Jewish thought has confused the necessary distinctions and interrelations between all three prime events Judaism affirms.45

Hermann Cohen. Ibid., 60. Contextualising this critique, Novak says that Rosenzweig locates the relationship between Jews and non-Jews at the juncture of “revelation and redemption,” whereas it should be located at the juncture of creation and revelation. What Novak means by this point is that the common ground for Jews and Christians is not their participation in the redemption, but rather in the precondition they both share for revelation, namely, natural law. In this sense, the continued role of natural law, even as it prevents the blending of Jews and Christians with one another that would otherwise occur at the time of redemption, is something they share in common. 44 Novak, Natural Law in Judaism, 143–144. 45 Ibid., 144. The three prime events to which Novak refers are creation, revelation, and redemption. By not locating natural law at the “juncture of revelation and creation,” the liberal Jewish thinkers essentially remove God from the equation.

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A sober analysis of this excerpt shows that the two mistakes, namely, confusing revelation with reason and reducing redemption to human progress, happen in sequence. Support for this claim comes not only from the juxtaposition of both errors, but from the fact that the revelation in the second mistake is identical to the revelation mentioned in the first one. In other words, the revelation reduced to redemption is the mistaken one that precedes it, that is, the one that holds too highly of human reason. Novak also summarizes both mistakes by referring to the first one, further implying that the first mistake leads to the second one. Moreover, there is a parallel in the words he uses to describe the first and second reduction – both concern humans doing what “God alone” is supposed to do.46 Seen in this way, redemption will include nature in its “eschatological consummation.”47 But this union of history and nature will be accomplished by God, unlike the view of Hegel for whom it is done by “the self development of reason.”48 It follows that nature is a necessary component of redemption, but that it is kept apart from history, so that redemption should not be seen as something that human beings can bring about independently. Elsewhere in the text, Novak makes this point even more clearly: And redemption as the ultimate end of history is neither the experience of humans nor even of God because it has not happened at all to anyone yet. It is only within the reach of God’s action. No one is or has ever been contemporaneous with it. Creation is humanely irretrievable past; redemption is humanely unattainable future.49 If that is so, it would seem that redemption is completely distinct from reality, serving only to limit the current arrangement. Novak seems to say as much when he writes, That redemption would be in a time un-ending, when sacred space would encompass all, when all of the outsiders would finally and permanently find themselves either in that space or nowhere at all.50 46

In other words, a parallel develops between what human beings can know about nature – Novak writes just a few years later that nature cannot be accessed outside the covenant – and what human beings can accomplish by recourse to nature alone. Novak, “The Doctrine of Creation and the Idea of Nature,” in Judaism and Ecology: Created World and Revealed Word, ed. Hava Tirosh-Samuelson (Cambridge: Harvard University Press, 2002), 167. 47 Ibid., 143. 48 Ibid., 144, fn.59. 49 ibid., 143. Emphasis mine. 50 Novak, Natural Law in Judaism, 3. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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Nevertheless, the fact that nature features in redemption is an indication that human beings have a role to play at that time. It remains to be seen what that is. 4.6 Covenantal Rights Novak’s next sustained treatment of redemption is again found within the context of the reasons for the commandments, specifically, the intentions that are necessary in the fulfilment of positive commandments. According to Novak, the acts in which Israel engages will be brought by God to their fulfilment, so that they have a “lasting outcome in the future.”51 Thus, they will meet their immediate ends and their ultimate ends as well.52According to Novak, the latter is actually a claim Israel has upon God: It would seem that the reason for this extrinsic requirement is because our commanded acts are ultimately for the sake of cooperation with God’s purposes for his created cosmos. Maximally, this means that our good acts, our acts that respond to God’s creative rights, should share in the lasting effects of what God has created and for what he has created.53 The purpose Novak mentions here is clearly beyond the practical benefits of the commandments. That much is obvious from the fact that they somehow have an impact on the cosmos. It would be unreasonable to expect this desired effect through any social development. The same can be said for the personal fulfilment that Novak reads into the redemption: Only in the messianic community, promised as the final human redemption on earth, will the needs of every individual person and those of the community itself be so completely fulfilled that neither will have to be kept separate from another. At present, every society and every individual person is incomplete; hence all their respective claims on each other can be only partial.54 According to this view, God’s role at the time of redemption is to bring the work not only of the community but of individual human beings to fruition.55 51 Novak, Covenantal Rights, 71. 52 Ibid., 73. 53 Ibid. A similar role for the end times can be found in Kant, Critique of Practical Reason, 1.2.2.1, quoted by Novak in ibid., 74, fn. 86. 54 Ibid., 217. 55 Novak, Halakhah in a Theological Dimension, 7. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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This focus on the individual also comes across when Novak states that the issue of theodicy (tzadik ve-ra lo) will be resolved at that time: As such, God has not yet brought about the full effect of the acts of the righteous or the acts of the wicked in this world (olam ha-zeh), this “vale of tears” (Psalms 84:7). That will have to wait for the world-to-come (olam ha-ba), which still lies even beyond the historical horizon.56 Thus, as is the case with Israel as a whole, there are limits to what individuals can accomplish. Just as the community cannot generate the cosmic consequences of its acts, so too are individuals incapable of producing the full effects of their righteous acts. This parallel gives rise to the following question: given that nature refers to the human realm at the time of redemption, and assuming that humans are powerless to produce any of the effects expected at that time, in what way will nature be represented at that point? The answer comes from a statement Novak makes about the Noahide code: The Noahide covenant involves the generality of nature; it does not supply historical content. It presents negative limits but not the positive claims that can only be presented in a community by persons with a historical identity. Nevertheless, no matter how singular this covenant appears here and now, it is ultimately meant for all humankind, when all the separate histories have run their course.57 According to Novak, the covenant subsumes the justice entailed by the Noahide covenant.58 By reference to this idea, it becomes possible to understand how nature can play a role in the redemption without compromising God’s role in bringing it about. What Novak means to suggest is that the sense of justice which is represented by the moral law, and which humans can only conform to rather than produce, will be carried into redemption. That feat will not be accomplished by humans, however, but by God. 4.7 Talking with Christians The meaning that Novak assigns to nature also helps explain a slight change in Novak’s position on Jewish-Christian dialogue. Earlier in his writings, Novak expresses the view that members of both faiths must bracket the “historical 56 Ibid. 57 Ibid., 85. 58 This point is confirmed when Novak states that “the just claims of human persons” are not “overcome by the covenant” but are rather subsumed by it “intact.” Ibid., 86. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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character” of their faiths when they engage in dialogue with each other. In this text however, he writes that Jews and Christians can still share a “mutually hopeful anticipation,”59 which seems to suggest that they need not bracket their respective covenantal histories. A partial explanation for this shift comes from the change we have highlighted. Since all humans must have an understanding of justice in order to conform to it, the sense of justice which will be completely subsumed into the redemption will represent a continuation of what they already know. It follows that Jews and Christians, who are familiar with justice, can share in the hopeful anticipation of that continuation. ­Nevertheless, the difficulty is not completely resolved, especially given Novak’s statement e­ lsewhere in the book that rival assertions will “remain with us” until then.60 4.8 Natural Law: A Jewish, Christian, and Islamic Trialogue Marking another shift from his earlier position, in this text Novak begins treating the universality at the end of days as a reality, rather than just a concept. Unlike his earlier view, in which redemption is associated with universal truths,61 here he writes that the universality of that time is something that will be experienced. This point can be seen from his critique of the Stoic view of natural law. According to that view, humans belong in the human community and in turn in the “world order.” There are two problems with this view: One, it assumes that we have actual experience of living within such a cosmic “community,” which includes all rational beings (humans being 59 Novak, Talking with Christians, 217. 60 Ibid., 10. The difficulty can be more satisfactorily resolved by reference to the broader change we have seen in Novak’s understanding of redemption from one that puts an emphasis on human knowledge to one that stresses what God will bring about. In Novak’s earlier account, when the focus is on human knowledge, the anticipation of that which will be known at the time of redemption can be described as a zero sum game. That is to say either Jews or Christians have the right conception. Evidence that Novak’s earlier account is influenced by this type of binary formulation can be seen from his discussion about the truth upon which Jews and Christians ground their existence. Novak, Jewish-Christian Dialogue, 11. Later, however, Novak’s emphasis is on what God accomplishes at the time of redemption. In that context, both Jews and Christians can have more in common. In that sense, the anticipation of the end times for Jews and Christians can be described as mutually hopeful. Even within Novak’s later view, Jews and Christians are kept apart because of the commandments, and each community waits alone. Novak, Talking with Christians, 165. Natural law thus represents a form of insurance against Rosenzweig’s view of redemption in which Jews and Christians will be united. Novak, Jewish-Christian Dialogue, 100. 61 Novak, Jewish Social Ethics, 80. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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the only such rational beings we can recognize in our world anyway). But, the fact is, we have no such experience of this kind of universal world actually peopled by all human beings. That seems to be some kind of romanticized past or idealized future.62 Novak’s second problem with this view is that it assumes that human beings have access to an ordinary experience of a “cosmic Sovereign” relaying his command, meaning revelation; but human beings generally do not have access to it. The structure of this argument is similar to that of the first: Novak is suggesting that a universal world does not yet exist, implying that it will at some point. Like revelation, in other words, there will be a time for that “universal world,” which is the “idealized future.”63 Thus, although Novak originally equates universality with rationality, on the basis that they both “pertain to human beings per se,”64 here he appears to be describing universality as something of a desired reality, one which is independent of human understanding.65 Although Novak does not fully unpack his reference to redemption, his meaning is relatively clear: this universality only becomes a reality through God. 4.9 “Does Natural Law Need Theology?” In one of Novak’s most recent references to redemption,66 he once again makes an explicit connection between redemption and natural law, framing the former as a corrective measure to the excesses of the latter: For true human flourishing, it is necessary but not sufficient for humans to be homo politicus. When politics is deemed self-sufficient, and when homo politicus proclaims his autonomy – often loudly, in our faces – religious natural law thinkers need to acknowledge our commitment to God 62 63

Novak, “Natural Law and Judaism,” 36. Emphasis mine. Along these lines, Novak writes that the Mosaic law allows humans to “experience a small part of the final redemption already,” as if to say that the universality of the future is a reality to be experienced, rather than an idea to be known. Novak, The Sanctity of Human Life, 34. 64 Novak, The Image of the Non-Jew in Judaism, 32. 65 Novak refers to the question of whether universals are real entities in Novak, Law and Theology in Judaism, 2nd series, 24. Based on the statement I have cited, it would appear he now answers in the affirmative. 66 Novak mentions redemption in his Athens and Jerusalem; but the context of the discussion, which pertains to Novak’s response to Hermann Cohen’s view that Zionism is pseudo-messianistic, is not pertinent here. Novak, Athens and Jerusalem, 250–251.

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the Creator behind all this, and our commitment to God the Redeemer ahead of all this...In the words of my late theological mentor Abraham Joshua Heschel, ‘Our task is to conquer evils one by one, until the One comes and conquers all evil.’67 According to what Novak writes here, it is not enough to recognize that the political existence made possible by natural law is itself enabled by God; it is also necessary to recognize that God has a purpose for political existence. Subscribing to only the first of these beliefs would imply that God is uninterested in human affairs, but the notion of redemption militates against such a view. However, given that this recognition is unlikely to change the self sufficiency of politics, Novak can only mean that recalling a commitment to God the Creator will prevent these feelings of autonomy from having an influence on religious communities. Following this logic, it seems that the impact of redemption is limited to religious communities. 5 Analysis From this study, three parallels emerge between Novak’s treatment of redemption and his accounts of natural law: the two concepts include limits on what human beings can know and accomplish; they change from originally pertaining just to Israel to having an impact on the rest of humanity; and both are universalized by reference to God. The first of these parallels can be seen in the connection between the limitations on our knowledge of nature, which can only be grasped “abstractly” through revelation,68 and the fact that wrongly identifying revelation as what human beings can “bring to presence” through rational discovery leads to mistaking redemption for human progress.69 The second of these parallels can be seen from the fact that Novak originally describes redemption as a period in which Israel will accept divine law but then refers to the cosmic consequences of that period, just as he first describes natural law as norms that are rationally evident but then calls them a condition for redemption. The third parallel can be seen from the fact that the universality of natural law is realized by the relationship with God which grounds it,70 in the same way that ultimate universality can only be provided by God, 67 David Novak, “Does Natural Law Need Theology.” 68 Novak, “The Doctrine of Creation and the Idea of Nature,” 167. 69 Novak, Natural Law in Judaism, 144. 70 Novak, “The Universality of Jewish Ethics: A Rejoinder to Secularist Critics,” 181–211.

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who will do so at the time of redemption. This last parallel can be seen more clearly in a paragraph in which Novak juxtaposes ethical universality and the universal reality that he anticipates at the redemption: That direct relationship with God can be fully consummated only in eschatological redemption, which is a universal reality that revelation intends rather than presupposes, unlike ethical universality, which revelation does presuppose. As such, humans can only hope for this concrete universal redemption; they cannot suppose it lies in their background as they can suppose universal ethics lies in their cultural background. Being the ultimate divine project, this redemption can only be brought about by God eschatologically.71 Thus, by reference to God, both ethical universality and universal redemption becomes possible. The former is true for Novak, because, unlike the three levels of the universal moral order – the first is a form of mutual agreement, the second is a non-reciprocal realm, and the third includes extending care even to non-human objects, who can nevertheless be exploited – when there is a command from God, universality includes everyone.72 The latter is explained by Novak by reference to the fact that redemption is a divine, rather than human, project. Having highlighted these three parallels, let us contextualize them within the broader shift in Novak’s view of redemption. In Novak’s first reference to redemption, the period leading up to it is defined by the need for rabbinic enactments and is called a “halakhic process.” The implication of that statement is that redemption is part of a continuum which begins at Sinai. And since the only significant feature of this period is the need for enactments, it is fair to suggest that, for Novak, the redemption does not differ significantly from the current time but that the enactments somehow carry Israel over from the current period to the next. If so, then an understanding of the role played by the rabbis can provide a glimpse into what can be expected at the time of redemption. For Novak, the rabbis seem to play a political role, as can be seen from the need for prozbul, the document which prevents loans from being nullified during the jubilee year.73 The fact that Novak uses this example in particular indicates that what he means by the “halakhic process” is overseeing the 71 72 73

Ibid., 207–208. Ibid., 205–207. It is also the case that most of the rabbinic enactments pertain to the Jewish community’s needs as a whole.

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community’s socio-economic needs, which will not be necessary at the time of redemption. It can therefore be suggested that Novak originally subscribes to a political view of redemption. We detect a change in Novak’s position, however, when he challenges the extensive view of redemption, according to which the End of Days is a continuation of the world as it functions now. For Novak, the alternative view is dangerous because it fools Israel into thinking that she can bring about the redemption on her own.74 This development also goes hand in hand with Novak’s rejection of the Hegelian view that redemption can be achieved through reason. Indeed, Novak goes on to argue that redemption can only be understood in the context of the purposes that God has for the covenant and the world. A closely related point is that the redemption is not only concerned with humanity but with the covenant itself. In what seems to be a direct response to Hermann Cohen, for whom the ultimate goal of redemption is the “unique unity (einzigen Einheit) of mankind,”75 Novak’s later view of redemption puts the focus on God’s relationship with Israel and the rest of the world. In Novak’s latest book, he makes this explicit: Indeed, one can say that both God and humans are waiting for the end time, which will be the final consummation of God’s relationship with His people and along with them all humankind.76 By reference to this change in Novak’s conception of redemption, we begin to arrive at the reasoning behind the three parallels we have recognized. In line with his view of rabbinic enactments as filling temporary political needs, Novak originally frames the rabbinic innovation of the Noahide code as a method of facilitating the relationship with non-Jews.77 Much like any other enactment, this legal framework is simply an ad hoc necessity brought about by the political climate. But as Novak develops his account of redemption, the relationship enabled by these common norms begins to overlap with the purpose that God has for both communities, and that can lead to humans believing that they can achieve these goals on their own. It is in this sense that the prophylactic role of

74 Ibid.,153–154. 75 Cohen, “Religion of Reason out of the Sources of Judaism,” 253; Novak, The Election of Israel, 68. 76 Novak, Athens and Jerusalem, 252. 77 See for example Novak, The Image of the non-Jew in Judaism, 48.

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redemption, a constant “not yet,” to use Martin Kavka’s formulation,78 needs to be seen. Novak puts it as follows: Can one think of a better prophylactic against the idealistic and ideological pretentions of all the great movements of modernity, be they secular or religious?79 For Jews and Christians, the awareness of the power they now have can lead to idealistic pretensions. At its root, this power comes from what they can discover on their own. Novak makes this explicit in the following excerpt: [W]e must see how natural law in Judaism is the Jewish discovery of the law of God as it applies to all humankind – law that also is discoverable by any rational human being. Human reason or wisdom is primarily heuristic....human reason can discover only the aspect of divine law that is necessary for a decent human life in a decent human society; it cannot discover the fuller aspect of divine law that is by itself sufficient for a communal life...80 Here, Novak explicitly links the extent of what can be discovered through natural law to what human beings require for their community to flourish. It stands to reason that divinely imposed limitations on what human beings can accomplish through their communities would have a bearing on what they can discover through reason. Accordingly, as Novak expands God’s role at the time of redemption, he begins to limit what human beings can both discover and accomplish through natural law. The second parallel we discovered can be explained by reference to a similar point. Just as the various covenantal communities are limited in what they can accomplish, Israel must recognize her boundaries. That is to say she cannot build a human community without waiting for God to finish the task. In this way, much like the message of redemption 78 Kavka, Jewish Messianism and the History of Philosophy, 6. For Novak this idea also manifests itself in everyday things such as blessings. As Novak describes them, blessings are a celebratory anticipation of a messianic event “[W]hen God will directly feed a redeemed humankind.” Novak, The Jewish Social Contract, 49. Novak’s understanding of blessings differs from the traditional Talmudic interpretation. According to the Talmud it is logical that, since everything belongs to God, one cannot enjoy or partake of the world without first thanking Him. b. Brakhot 35a. 79 Novak, Talking with Christians, 66. This idea is closely related to Novak’s views on the folly of the belief in the self-sufficiency of history and nature. Novak, The Election of Israel, 103. 80 Novak, The Sanctity of Human Life, 31.

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to Israel herself, natural law has inherent limitations that prevent Israel from discovering too much. Having explained the first two parallels, we now move on to the third. As we have seen, there is a fundamental shift behind Novak’s changing description of redemption: Novak first defines it as a fulfilment of the covenant but then characterizes it as that which will facilitate mankind’s relationship with God. As a reflection of this foundational change, Novak writes that redemption has an effect on the cosmos as well. Given that natural law is a necessary, albeit not sufficient, condition of redemption, it is reasonable that these features of redemption would be reflected in moral law, and that is exactly what we find: natural law becomes grounded by a relationship with God, and the impact of its normative expression extends beyond human community. In the case of natural law, since the relationship with God includes everyone, the universality is not limited to those capable of reason. As such, moral law, grounded as it is by the relationship with God, becomes universal. The parallels that we have highlighted can also be understood by reference to the two types of natural law theories identified by Jacobs. The first relates to “rational principles”; the second relates to what Jacobs describes as intrinsic ends for human nature.81 We can use these terms to explain the relationship between Novak’s changing view of redemption and his two accounts of natural law. In Novak’s original account of natural law, when he locates the idea within Judaism by reference to rational principles, human beings have a greater rational capacity for understanding and more power to make enactments than in his later account, even if those abilities are only necessary because the world is not yet redeemed. In the later account of natural law, however, when he makes the connection on teleological grounds, and thus by reference to ends for human beings, human knowledge is limited and, correspondingly, the human capacity to reach those ends is diminished. On that view, redemption carries the balance, as it were, and assists human beings in attaining the ends that they are incapable of reaching on their own. In this way, Novak’s view of redemption changes from being an extension of the political role that the rabbis play at this time to a reflection of the maxim that “all human utterances must be tentative” until that time.82 Delving deeper, we can also posit that the underlying shift behind the change in both concepts is the role of moral law in God’s plan for the world, which in 81 82

Jacobs, “Aristotle and Maimonides on Virtue and Natural Law,” 73. Novak, “The Role of Dogma in Judaism,” 83. Emphasis mine. Later in this chapter I revisit Jacobs’ definitions, and I question whether they adequately describe Novak’s theory.

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Novak’s later view gives way to God’s direct involvement in the world. Along the same lines, the divine ground of natural law, which is the relationship with God, rather than the moral statutes themselves, is what ultimately saves Israel and the world as a whole. Based on this relationship between the concepts, it can be suggested that Novak moves from a stronger conception of natural law to a weaker one because of the limitations that he later places on human progress. Nevertheless, these parallels and the reasoning behind them are only suggestive of a causal relationship between Novak’s covenantal view and his natural law theory. To establish that connection, we must delve deeper into the bearing that various messianic orientations have on natural law theories, and to do so, we turn to the work of a scholar who has studied that connection. 6

Can a Passive Messianist be a Natural Law Theorist?

According to Jody Elizabeth Myers, there are two types of messianism, namely, active and passive. Passive messianism holds a belief in the following: [M]aximal divine and minimal human control over history. The fate of the Jews is not in their own hands. As a punishment for their sins, God decreed their exile from the land of Israel and subjected them to the nations of the world. Only God can reverse this decision.83 Crucially, Myers adds that while active messianism is “not diametrically opposed” to the passive kind and “shares similar assumptions,” it “allows greater latitude for natural law, chance and human initiative in determining the end of the exile.”84 To illustrate Myers’ point, I refer to Maimonides’ view. It has already been shown that Maimonides subscribes to the extensive view of redemption, inasmuch as he sees the end times as a natural continuation of the current period. Since that view puts a greater emphasis on human agency in achieving redemption, to the extent that God does not need to interfere with human history to bring it about, it would follow according to Myers that 83 84

Jody Elizabeth Myers, “The Messianic Idea and Zionist Ideologies,” in Jews and Messianism in the Modern Era: Metaphor and Meaning, ed. Jonathan Frankel (New York: Oxford University Press, 2013), 4. Ibid., 5. Included in the belief in active messianism is also the view that the redemption will occur, at least at first, in a natural way. Novak subscribes to the apocalyptic view, as we have seen, and so he is firmly in the passive messianism camp. Novak’s belief is not consistent with what Myers calls non-messianistic religious Zionism, since he does not endorse simply pragmatic means for the return to Zion. Ibid, 8.

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Maimonides gives more leeway to natural law. And indeed, according to the accepted reading of his text, Maimonides believes that one can keep the Noahide laws without believing in revelation, and can still be considered a wise human being.85 Stated differently, Maimonides’ view allows for human beings to discover natural law on their own. Transposing these types of messianistic views onto Novak’s categories, it would seem that Myers’ active messianism can be identified with Novak’s extensive view, since in both terms the emphasis is on the human ability to affect change. This position can be identified with Novak’s earlier view. Thus, the rabbis seem to exercise control over history, to the extent that their enactments bridge the gap between Sinai and revelation. Conversely, passive messianism is consistent with the apocalyptic view, for they both are based on the assumption that redemption is in God’s hands. This conception of revelation is clearly the one that Novak espouses in his later writing. Assuming those parallels hold, Myers’ classification should indicate that Novak affords less status to natural law. Nevertheless, Novak is a natural law theorist who finds expressions of natural law in multiple areas of Jewish thought but still subscribes to a passive messianism. Showing the extent of Novak’s views on redemption, he states that even the advocates of the apocalyptic view of redemption were on the lookout for human pretension, since those who subscribe to that view also believe that mankind has no control or bearing on the coming of the ­messianic era: Needless to say, however, even the proponents of this apocalyptic view were on guard against any pseudo-messianism that declared the kingdom of God to be now with us and that much of the present Torah, therefore, is to be presently abrogated.86 85

In some manuscripts, Maimonides states that those who keep the laws based solely on reason are “among the wise ones.” In other manuscripts, however, he states that they are “not among the wise ones.” On this issue, see Steven S. Schwarzschild, “Do Noachites Have to Believe in Revelation,” Jewish Quarterly Review 52 (1962): 305–306. 86 Novak, The Election of Israel, 155. The reference here is to Jewish political independence, which is what the Jews falsely assumed for themselves under Bar Kokhba in the second century CE. Novak believes that the experience taught them a valuable lesson, namely, that the messiah will be appointed by God and redemption will come about only through him. Novak, The Jewish Social Contract, 94–100. Novak also speaks about nationalism as a pseudo-messianistic endeavour. Ibid., 237. Similarly, Novak cautions against seeing redemption as utopianism, since that too would turn redemption into something human beings can accomplish for themselves, instead of seeing it as something only God can bring about. Novak, Natural Law in Judaism, 144. Elsewhere Novak writes the following about utopianism: “At the present time, then, Jewish eschatology functions as a negation

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On the surface, it appears that Novak’s view upends Myers’ argument.87 However, by reference to the connection Myers makes between messianic views and natural law theories and the parallels drawn earlier, it can be shown that Novak shapes his natural law theory to adjust to his view of redemption. We have seen from Myers’ work that one’s view of messianism is ultimately an expression of their perspective on what human beings can accomplish on their own. Based on the connection between these concepts, it becomes possible to suggest that a change in one’s view of redemption will have an impact on one’s position on natural law. If that is so, we can posit that that is the case with Novak’s natural law theory. As he begins identifying redemption with God’s accomplishments for the world, that is, as Novak becomes a passive messianist, he starts restricting what human beings can accomplish on their own, meaning that his natural law admits of limitations. This view of natural law is therefore directly shaped by his view of redemption, which emphasizes that only God can bring human acts to fruition. 7

Considering Leora Batnitzky’s Question

In light of this interpretation, it also becomes possible to respond to Leora ­Batnitzky’s question about the apparent incompatibility between natural law and covenantal theology. We have shown that Novak’s view of redemption, which is the consummation of the covenantal relationship with God, does not

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more than anything else. The hope for redemption functions as an antidote to Utopianism, just as the acknowledgement of creation functions as an antidote to naturalism, and just as the acceptance of revelation functions as an antidote to autonomy. All of these human projects are ultimately idolatrous in their denial of the prime authority of God: naturalism in declaring the self-sufficiency of nature; autonomy in declaring the self-sufficiency of human morality; and Utopianism in declaring the self-sufficiency of history.” Novak, The Election of Israel, 103; The Jewish Social Contract, 50; Jewish-Christian Dialogue, 37–38. Novak also warns about the tangible consequences of messianism and pseudo-messianism. He believes those types of movements will lead to a community member’s rights being distorted. Novak, Covenantal Rights, 83–84. Novak also expresses concern that messianism leads to despair. Novak, Jewish Social Ethics, 18. According to Myers, the passive messianists are opposed to “forcing the end” (to paraphrase the Talmudic references to those who try to breach Jerusalem’s walls in hopes of re-establishing Jewish political independence. b. Ketubot 111a), while the active messianists believe in a greater latitude for “natural law, chance, and human initiative” in bringing about the end of exile. Following this classification, it can be said with confidence that Novak is a passive messianist, since he is vehemently opposed to active messianism. Jody Elizabeth Myers, “The Messianic Idea,” 4–5; Novak, Talking with ­Christians, 66.

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in any way negate his conception of natural law, which relates to what human beings can discover and accomplish on their own; it only helps to shape it. We can therefore ask whether Batnitzky’s question is similarly resolved: does Novak’s more developed treatment of redemption, and his later account of natural law, demonstrate that covenantal theology, which is based on faith, is indeed ­compatible with natural law, which is grounded in reason? I would like to address this issue by reference to the role of natural law at the time of redemption as well as to the expression of natural law in Judaism in which Novak discusses redemption. The choice of the first area of study can be explained by reference to the fact that, by assessing whether the Noahide commandments still apply at the time of redemption, we gain insight into the significance of the normative component of natural law in the context of a fulfilled covenant. Stated differently, if the commandments still exist at the time of redemption, it stands to reason that natural law is compatible with the ultimate purpose of the covenant. The choice of the second area of study is explained by reference to the difference between the two expressions of natural law. The Noahide code is originally described by Novak as a rabbinic construct, whereas the commandments are divine. And while the former is seen as discernable through human reason, at least in its widely accepted sense, the latter is the product of revelation. With this difference in mind, we can understand why redemption takes on a different meaning in either area of Jewish thought. When Novak treats redemption in the context of the Noahide code, he is doing so in reference to human normative obligations, and that indicates that even if there are limits to what human beings can accomplish, redemption is simply a continuation of those efforts. However, if redemption is contextualized within the commandments, which are not initiated by human beings, and for which the outcome is outside of human control, then it stands to reason that, on Novak’s view, redemption is the culmination of a divine project. By reference to Novak’s position on these two areas, especially in relation to each other, we gain insight into how Novak conceives of redemption and what he imagines the role of human normative obligation to be in that context. On the first issue, namely, whether the natural law will exist at the time of redemption, Novak makes conflicting statements.88 In Halakhah in a Theolog88

Novak is faced with some difficulty when offering specific details about the redemption. Saying something about redemption is ostensibly postulating about the future based on what we know about the world today. But if redemption is seen as radically different from the current period – see Novak, Talking with Christians, 7, Novak, “Natural Law and Judaism,” 36 – it is impossible to make any claims about it. Novak gets

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ical Dimension, he writes that the rabbinic dictum that the commandments will be abolished someday is originally meant to be taken literally.89 Novak implies thereby that, at the time of redemption, a radical transformation will occur – there will no longer be any law. Elsewhere, however, Novak describes redemption as a time “where we will fully and immediately understand the law of God in all its manifestations.”90 The obvious implication is that the law does remain, at least in some form, at that time. Later, in his Talking with Christians, Novak says so explicitly, arguing that it would be ridiculous to suggest that “those who did not commit adultery in this world will have their pick of sexual partners in the next world.”91 Thus, Novak cleverly applies reductio ad absurdum reasoning to show that the basic moral law must remain.

around the ­difficulty in two ways. The first is by describing the time of redemption using the words of the prophets, at least without any significant deviation. This approach can be seen when Novak justifies the political relationships that Jews had with Christians and Muslims by suggesting that they were “tentative,” adding that the Jews saw redemption as a “sacred space,” which would encompass all. Novak, Natural Law in Judaism, 3. This description closely follows the words in Psalm 72:19: “[A]nd let the whole earth be filled with his glory.” Following the JPS Translation. Another example can be found when Novak says, “The estrangement between God and Israel and God and the world will ultimately be overcome.” Novak, The Election of Israel, 253. In this case, Novak’s wording parallels the words of Jeremiah and Isaiah. See Jeremiah 31:20; Isaiah 49:6. See also Novak, Talking with Christians, 7, re: Isaiah 64:3; Novak, Natural Law in Judaism, 144, fn. 59, citing Zecharia 14:9. Novak’s second method of speaking about the redemption emerges from his treatment of the question of whether the study or practice of the commandments is more important. The discussion is based on the Sifri to Deuteronomy ed. Finkelstein, 85. In that discussion, Rabbi Jose the Galilean argues that learning is more important, a view which Novak takes to mean that Torah study has chronological priority over the fulfilment of the commandments. Novak adds that, with learning alone, one can even imagine what will be done at the time of redemption. The Talmud calls this hilkhata le-meshicha; Tosfot to b. Zevachim, 45a, s.v. “hilkhata.” Stated differently, that feat is accomplished by thinking in a practical halakhic way. Novak, “The Dialectic between Theory and Practice in Rabbinic Thought,” in Tradition in the Public Square, 30–31. The sheer power of that type of study is such that one can even imagine the law in the distant future as well. The same kind of practical thinking is seemingly in effect when Novak says that in the time of redemption there will be an “original Jewish polity,” as opposed to a society whose values are simply consistent enough with Jewish ones for coexistence. Novak, Natural Law in Judaism, 182. Novak seems to reason – perhaps based on the minimal definition of redemption held by Maimonides – that it is inconceivable that the Jewish people will still be beholden to any other nation when God himself redeems them. 89 Novak, Halakhah in a Theological Dimension, 12–13 90 Novak, “Natural Law, Halakhah, and the Covenant,” 65. 91 Novak, Talking with Christians, 57.

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To fully appreciate this point, it is useful to recall a distinction Novak makes earlier, in reference to the types of natural law theories: There are two ways of engaging in natural-law thinking. One way, which is epitomized by Saadia [sic] and Maimonides, is to speculate ­teleologically – namely, to reflect on what the ends of law are and how natural-law precepts are the proper means to fulfil them. The “nature” in natural law in this way of thinking is an all-encompassing whole, each of whose parts is a good attracting intelligent human action. The other way is to reflect on the inherent negative limits and to see law as the way of practically affirming the truth of that limitation of a finite creature, a limitation apprehended by its intelligence. The “nature” in natural law in this way of thinking is internal structure – that is, what limits personal and communal pretensions.92 Based on this distinction between the purpose of moral law and its minimal limitations, Novak’s views can be reconciled with one another in the following way: when Novak states that there will be no need for the law, he is r­ eferring to the “ends of law,” since those will have been accomplished through the redemption. When he writes that natural law will remain, however, he is referring solely to the actual norms, which are ultimately irreducible. But while this approach indicates that the covenant is indeed compatible with natural law, it raises a bigger question, namely, that Novak’s views about natural law at the time of redemption undermine the consistency of his natural law theory. This point will emerge from our second area of study. We have seen that Novak first treats natural law in the context of the Noahide code. And in a number of instances, he warns that those norms cannot lead to a fully constituted morality.93 This word of warning implies that the moral law is a foretaste of the redemption, which is a fuller instantiation of it. However, in his later treatment of redemption, as we have seen, he discusses it in the context of the reasons for the commandments. His point there is that the divine purpose of the commandments will be fulfilled at the time of redemption, and its significance can be seen when read alongside Novak’s view of the moral norms. In the context of an argument for a divine basis for natural law, Novak writes that “the immortality of God is the only power that can possibly contain 92 93

Novak, “Natural Law, Universalism, and Multiculturalism,” in Tradition in the Public Square, 154. See for example Novak, The Election of Israel, 145; The Jewish Social Contract, 123; Sanctity of Human Life, 31.

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the human violence that would destroy the law itself.”94 This statement stands in stark contrast to two earlier discussions, the first about society’s need for a divine source of law and the second about what the rabbis left out of the Noahide code. In his In Defense of Religious Liberty, Novak posits that society needs God to have a genuine commitment to moral ideals. In Novak’s words, A society that recognizes that the rights it is enforcing are unalienable divine endowments rather than its own revocable entitlements will be able to perform its social duty with maximum cogency because it has earned the rightful trust of its members. As such that society can in good faith call upon its members to rightly pursue justice (Deuteronomy 16:20).95 What about a society that does not, as a whole, share that recognition? Novak implies here that there may be a lack of trust in other human beings, but an adherence to moral norms is not precluded by definition. In the above-mentioned excerpt, however, Novak is suggesting that human morality is ultimately unsustainable. This position is even more remarkable in light of an earlier statement relating to the question of why the respect for one’s parents is not included in the Noahide code. The first reason Novak gives is that the laws are primarily negative, so a positive commandment such as that would be out of place. More relevant for our purposes is the second reason: Second, although the rabbis surely recognized a natural morality, they did not seem to want it to be fully constituted. For if so it might well lead to questioning the need for a revealed morality. This was indeed the case in the Middle Ages, which led to the theological defenses of revealed morality and religion by Saadya, Maimonides, and Albo, among others.96 The implicit suggestion here is that the Noahide code has a partially constituted divine morality. Indeed, what emerges from this statement is that the Noahide code only needs a commandment about respecting one’s parents to be a complete revealed morality. In contrast to this view, Novak’s words about violence show that he later finds moral law to be inherently insufficient.

94 Novak, “Law: Religious or Secular?” in Tradition in the Public Square, 173. 95 Novak, In Defense of Religious Liberty, 112. See also 176–177. 96 Novak, Law and Theology in Judaism, 2nd Series, 77.

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A similar point in Novak’s thought can be seen in the words he uses to describe redemption. In his The Election of Israel, Novak offers the following description: Israel’s relationship with God will be one without the need for any external coercion; the heteronomous aspect of the covenant of the present will be absent from the covenant of the future. The future, then, will be much more than the extension of the authority found in the present, even the authority of the Torah and its sages.97 Crucially, the proof for this concept is a verse in Jeremiah 30:33: “I will place my Torah within them and write it on their heart.” Novak’s choice of this verse is fairly significant, because it is seen as the inspiration for Paul’s reference to the “law written in their hearts,” a locus classicus for natural law.98 By deliberately interpreting this text in this way, Novak is supplanting the reasoning of natural law with God’s authority. In other words, Novak is suggesting that human beings will not arrive at the law through their moral intuition but rather through God’s authority. Here, again, Israel’s ability to fulfil the moral law is called into question. Placed in the context of his natural law theory, this change reveals a crack in the uniformity of Novak’s theory. Unlike the commandments, whose divine purpose will ultimately be fulfilled, in Novak’s later account of natural law, the Noahide commandments are inherently limited. On their own, they at best lead to mistaken human pretensions and can be undone by violence. The same can be said of the rabbinic enactments. As we have seen, unlike his earlier view of rabbinic enactments as bridging the gap between Mount Sinai and redemption, Novak later writes that the rabbinic enactments, or what Novak calls normative judgements, are temporary.99 Thus, given Novak’s subsequent view, namely, that human actions are ultimately futile, the unchanging law of nature, with which human reason is endowed in the classical expression of natural law, is perhaps reflected in the reasons for the commandments, but not in the Noahide code or the rabbinic enactments. Before concluding this chapter, I will comment on what this change in the account of redemption reveals about Novak’s natural law theory, particularly

97 Novak, The Election of Israel, 154. 98 Romans 2:15; Colin G., Kruse, Paul’s Letter to the Romans (Grand Rapids: Eerdmans, 2012), 132. 99 Novak, “The Role of Dogma,” 83.

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in comparison to the classic definition of natural law. I begin with Cicero’s description of the idea: But what is more divine, I will not say in man only, but in all heaven and earth, than reason? And reason, when it is full grown and perfected, is rightly called wisdom. Therefore, since there is nothing better than reason, and since it exists both in man and in God the first common possession of man and God is reason.100 This definition is seemingly compatible with the natural law that Novak locates within Judaism. The most obvious example is the divine basis, which is essential to Novak’s theory, and is evident in Cicero’s conception of the idea. Further, not unlike what Novak finds in the rabbinic equivalent of natural law, the norms themselves are an expression of a deeper concept.101 Here as well, Cicero’s interest is not in the shape the laws take but in their source – namely, reason, which human beings and God share in common. Thus, Cicero’s definition of natural law is compatible with Novak’s conception of it. What about the reverse? That is to say is Novak’s later account of natural law consistent with Cicero’s classic definition? That does not appear to be the case. For Novak, as we have seen, reason itself is insufficient for human ends. Far from a feature that human beings share in common with God, reason itself often leads human beings to serve as their own God.102 More importantly, the fact that God needs to intervene in order to contain human violence, despite humanity’s most reasoned efforts, indicates that, on Novak’s view, the divine project is somewhat antithetical to human reason. Seen in this way, Novak’s definition does not resemble either of Jacobs’ types of natural law, namely, “rational principles” and ends for human beings.103 In the first chapter of this book, we saw how Novak’s definition of natural law is grounded by the imago Dei, which is why human beings only have access to those ideas by reference to their historical communities. This definition is clearly not compatible with “rational principles.” But Novak’s definition is not 100 Cicero, De Legibus, 1:22–23, trans. Clinton W. Keyes (Cambridge: Harvard University Press, 2014), 321. 101 Novak, Talking with Christians, 115. 102 Novak, Jewish Social Ethics, 71–74. 103 Jacobs also makes the helpful point that Novak’s natural law theory does not quite meet either definition, but Jacobs does not develop that point further. Moreover, Jacobs describes Novak’s theory as being Kantian, inasmuch as his natural law is a “precondition for ascertaining what morality requires.” Based on what I have presented, however, it seems that that definition misses the significance of the necessity for God’s involvement. Jacobs, “Judaism and Natural Law,” 940–941. Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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quite consistent with ends for human beings either, since that description is based on the assumption that humans have the ability to achieve those ends on their own. However, according to Novak’s later view of redemption, which has been demonstrated to inform his natural law theory, human beings cannot ultimately arrive at those goals independently. Thus Novak’s natural law theory seems to be far afield of any basic definition of the idea. 8 Conclusion In this chapter, I have shown that Novak’s treatment of redemption changes over the course of his writings on the topic. The turning point in Novak’s understanding of the concept occurs in his The Election of Israel, wherein redemption becomes an apocalyptic event. Based on this analysis, I highlighted three parallels between Novak’s treatment of redemption and his accounts of natural law, namely, the limitations on human knowledge and abilities, the expanding impact of both ideas, and the universality by reference to God. These parallels have been placed in the context of Novak’s understanding of God’s plan for human beings, which requires law, but ultimately depends on God’s intervention. Thus, redemption cannot be left in human hands, just as the ultimate purpose of law is something only God can fulfil. This idea was also used to explain why Novak moves towards a weaker presentation of natural law, since a stronger, reason-based form of it would simultaneously give human beings too much control. I then drew on Jody Elizabeth Myers’ work on the correlation between views of messianism and natural law theories, in order to support the connection between Novak’s view of redemption and his conception of natural law. I also touched on Leora Batnitzky’s question relating to the compatibility of natural law and covenantal theology in Novak’s thought. From the fact that natural law continues to play a role at the time of redemption, a position which was shown to be consistent with his minimal view of natural law, I demonstrated that his natural law theory works hand in hand with his covenantal views. Finally, by reference to Cicero’s classic definition of natural law, I raised the broader question that Novak’s view of redemption destabilizes his natural law theory, ­particularly in light of its dependence on God’s involvement.

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Conclusion In this book, I have analyzed the shift in the content of David Novak’s natural law theory, its changing function, and the impact that his covenantal views have upon it. The first and third chapter of this book were a chronological study of two aspects of Novak’s thought. In the former, I analyzed the content of Novak’s account of natural law by reference to his varying conception of rationality; in the latter, I explored his developing view of redemption and how it impacts his definition of natural law. The analysis of his natural law theory yielded two separate accounts of natural law: the earlier account is of specific moral norms discoverable by reason, and the later account is of the human responsibility to respond to divinely created human nature. The study of Novak’s view of redemption yielded a shift from it being seen as a political development to it being envisioned as a time of God’s salvation. The parallels that I highlighted between these two areas of Novak’s thought were contextualized by reference to the fact that God’s plan for the world includes law – ­witness the precondition of both revelation and redemption – but goes beyond it as well. Thus, Novak’s changing conception of redemption, from a time in which Israel’s political needs will be met to one in which God’s ultimate plan for the world will be fulfilled, has been shown to explain the change both in the meaning and the purpose of natural law. And the fact that Novak moves from a stronger form of natural law to a weaker one has been demonstrated to be the result of the shift in his covenantal views. What this book has shown is that Novak’s natural law theory is a valuable contribution to the natural law tradition. Since Joseph Albo, Jewish thinkers have engaged with natural law theory as such and have outlined its role in Jewish law. Novak’s theory is a continuation of that discussion, but it is also a novel reconstruction of it. The latter is seen from the fact that Novak’s theory brings together two strains of natural law, namely, those that emphasize the rationality of the law and those that emphasize the role of reason in Judaism. The first strain is represented by Maimonides, famously in his ta’amei hamitzvot, where he explains the rational basis of the commandments, while the latter is represented by thinkers such as Moses Mendelssohn, for whom God gives all human beings the means of attaining “felicity.”1 The way Novak fuses these two approaches can be seen from his transition in the 1980’s between locating natural law exclusively in the Noahide code and finding it in Mosaic law 1 Moses Mendelssohn, Jerusalem: Or on Religious Power and Judaism, 93–95. © Jonathan L. Milevsky, 2022 | doi:10.1163/9789004504363_006 Jonathan L. Milevsky - 978-90-04-50436-3 Downloaded from Brill.com 03/02/2024 06:43:00PM via University of Wisconsin-Madison

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and rabbinic enactments as well. In drawing on natural law to explain rabbinic interpretation and enactments, Novak persuasively argues that the use of reason is not only important to the Jewish tradition in discovering moral norms but continues in the Mosaic law as well, to the extent that human reason plays a part in the creation of rabbinic law. Indeed, Novak is the only natural law thinker to locate the concept in the rabbinic enactments. Further, unlike Moses Mendelssohn and Hermann Cohen, who privilege the Noahide code over the Mosaic law, Novak places a greater emphasis on the commandments. The way he does so is by making the rationality of the law dependent not on human understanding but on the reason why Israel would accept the law ab initio, that is to say because of the “deeper insight” of the Mosaic commandments. This idea is confirmed by the expansion of the covenant in Novak’s later account of redemption, a view which testifies to the continuing importance of the particularity of Mosaic law. This view is unique for a natural law thinker, since those who subscribe to natural law are inclined to emphasize the universalistic elements of Judaism, often at the expense of its particularism. Moreover, Novak expands his theory to account for election, revelation, and redemption. He does so by showing that the foundational concepts of natural law, such as the ability for humans to discover moral norms, are inherent to election, inasmuch as God’s choice of Abraham is motivated in part by the latter’s commitment to righteousness. Similarly, by arguing that God does not reveal himself to communities that do not adhere to moral norms, just as he will not redeem humankind without a commitment to moral conduct, Novak demonstrates that the covenant is inherently dependent on natural law. In the second chapter, I have shown that the way Novak integrates his theory, particularly with respect to the relationship between the Noahide code and the Mosaic law, manifests in his writing as the struggle to reconcile his two accounts of natural law, inasmuch as the legal view of natural law is shaped by his locating the concept solely in the Noahide code, while his theological view of natural law is informed by his seeing it as the precondition for revelation. As we have seen, however, the latter broadens the meaning that Novak assigns to the concept. Finally, we have seen how crucial the concept of rationality is to Novak’s theory. Even as the meaning of the word changes in his thought, it speaks to the consistency of his theory that the terminology which he uses to explain the moral epistemology of the Noahide code, where he originally locates natural law, is the same terminology that he uses to explain the Mosaic law and that the change in one is identical to the change in the other. Using the terms that scholars such as Jacobs and Statman have used to describe the debate of

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Conclusion

natural law in Judaism, the natural law of Novak’s Jewish philosophy is not simply an expression of the role of reason within the commandments but a key to understanding foundational elements in Jewish thought. It therefore will not do to contextualize Novak’s theory within his view of election, since that minimizes the bearing of Novak’s theory on the other areas of his thought. At the same time, the change in Novak’s account of natural law raises several questions. The first is based on an article by Stanley Hauerwas, where he suggests that the Christian account of law differs from the Jewish one.2 Particularly in light of the fact that his natural law theory incorporates the Mosaic law as well, we ask how can Novak engage in Jewish-Christian dialogue given his Jewish understanding of law. A related question pertains to the fact that the wisdom which underpins the norms assumes a particular kind of theology, which is not necessarily shared by Christians. This point is true not only of Novak’s later account of natural law but of his earlier account as well.3 With reference to such scholars, we ask if Novak would consider an adherence that is grounded in an alternate theological view to be a sufficient response to “God’s authority.”4 A final question relates to other interlocutors, specifically in the public square. In Novak’s earlier account, as we have seen, the norms are grounded in reason. It follows that those who adhere to the norms strictly on the basis of rationality can still have a “relationship with God”?5 Later on, however, Novak grounds the norms in the imago Dei. Although he seems to accommodate other levels of adherence and advises agnostics to “wait,”6 it would be worthwhile to analyze Novak’s position with respect to those who reject this metaphysical basis ab initio. Questions such as these represent avenues for future work on Novak’s thought. 2 Hauerwas, “Christian Ethics in Jewish Terms,” 293–299. 3 See for example Levering, “Christians and Natural Law,” 108. 4 Novak, The Image of the Non-Jew in Judaism, 146. 5 Novak, The Image of the Non-Jew in Judaism, 148. 6 Novak, Zionism and Judaism, 173; Jewish-Christian Dialogue, 155.

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Bibliography

Novak’s Works



Books

Novak, David. Covenantal Rights: A Study in Jewish Political Theory. Princeton: ­Princeton University Press, 2000. Novak, David. Halakhah in a Theological Dimension. Chico, California: Scholars Press, 1985. Novak, David. In Defence of Religious Liberty. Wilmington: ISI Books, 2009. Novak, David. Jewish Christian Dialogue: A Jewish Justification. New York: Oxford ­University Press, 1989. Novak, David. Jewish Justice: The Contested Limits of Nature, Law, and Covenant. Waco, Texas: Baylor University Press. 2017. Novak, David. Jewish Social Ethics. New York: Oxford University Press, 1992. Novak, David. Law and Theology in Judaism. New York: Ktav, 1974. Novak, David. Law and Theology in Judaism, 2nd Series. New York: Ktav, 1976. Novak, David. Natural Law: A Jewish, Christian, and Islamic Dialogue, co-authored with Anver Emon and Matthew Levering. New York: Oxford University Press, 2014. Novak, David. Natural Law in Judaism. New York: Cambridge University Press, 1998. Novak, David. Suicide and Morality: The Theories of Plato, Aquinas, and Kant and their Relevance for Suicidology. New York: Scholars Studies Press, 1975. Novak, David. Talking with Christians: Musings of a Jewish Theologian. Grand Rapids, MI: Eerdmans, 2005. Novak, David. The Election of Israel: The Idea of the Chosen People. Cambridge: Cambridge University Press, 1995. Novak, David. The Image of the Non-Jew in Judaism: An Historical and Constructive Study of the Noahide Laws. New York: Edwin Mellen Press, 1983; 2nd edition, ed. Matthew LaGrone. Oxford: Littman Library of Civilization, 2011. Novak, David. The Jewish Social Contract: An Essay in Political Theology. Princeton: Princeton University Press, 2005. Novak, David. The Sanctity of Human Life. Washington: Georgetown University Press, 2007. Novak, David. Zionism and Judaism: A New Theory. Cambridge: Cambridge University Press, 2015.

Articles

Novak, David. “Beyond Supersessionism.” First Things 81 (1998): 57–60. Novak, David. “Buber’s Critique of Heidegger.” In Natural Law and Revealed Torah, eds. Hava Tirosh Samuelson and Aaron W. Hughes, 53–69. Leiden: Brill, 2014.

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132

Bibliography

Novak, David. “Can We Be Maimonideans Today?” In Maimonides and his Heritage, eds. Idit Dobbs-Weinstein, Lenn E. Goodman, and James Allen Grady, 193–209. Albany: SUNY Press, 2009. Novak, David. “Creation and Election.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 46–65.Grand Rapids, MI: ­Eerdmans, 2008. Novak, David. “Gentiles in Rabbinic Thought.” In Cambridge History of Judaism 4 [The Late-Roman Rabbinic Period], ed. S. T. Katz, 647–652. Cambridge: Cambridge ­University Press, 2006. Novak, David. “Heschel’s Phenomenology of Revelation.” In Abraham Joshua Heschel: Philosophy Theology and Interreligious Dialogue, eds. A. Krawjewski and S. Lipszyc, 36–46. Wiesbaden: Harrassowitz Verlag, 2009. Novak, David. “Is Natural Law a Border Concept Between Judaism and Christianity?” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 213–230. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “Is There a Concept of Individual Rights in Jewish Law?” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 88–110. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “Jewish Eschatology.” In The Oxford Handbook of Eschatology, ed. Jerry L. Walls, 113–131. New York: Oxford University Press, 2008. Novak, David. “Judaism and Natural Law.” American Journal of Jurisprudence 43 (1998): 117–134. Novak, David. “Judaism, Zionism and Messianism — Telling Them Apart.” First Things 10 (1991): 22–25. Novak, David. “Law of Moses, Law of Nature.” First Things 60 (1996): 45–49. Novak, David. “Law: Religious or Secular.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 163–186. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “Maimonides and Aquinas on Natural Law.” In St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives, eds. John Goyette, Mark S. Latkovic, and Richard S. Myers, 43–65. Washington: The Catholic University of America Press, 2004. Novak, David. “Maimonides and the Science of Law.” In Jewish Law Association Studies, vol. 4, 99–134. Atlanta: Scholars Press, 1990. Novak, David. “Mitsvah.” In Christianity in Jewish Terms, eds. Tikva Frymer-Kensky, David Novak, Peter Ochs, David Fox Sandmel, and Michael A. Signer. Boulder: ­Westview Press, 2000. Novak, David. “Natural Law and Jewish Philosophy.” In Judaic Sources and Western Thought: Jerusalem’s Enduring Presence, ed. Jonathan A. Jacobs, 153–174. New York: Oxford University Press, 2011.

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Bibliography

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Novak, David. “Natural Law and Normative Judaism.” Vera Lex 6.2 (1986): 3–6. Novak, David. “Natural Law, Halakhah, and the Covenant.” In Jewish Law Annual, vol 7, ed. Bernard Jackson, 43–67. London: Harwood, 1988. Novak, David. “Natural Law, Universalism, and Multiculturalism.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 154–159. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “Noahide Law: A Foundation for Jewish Philosophy.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 113–144. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “On Human Dignity.” In Natural Law and Revealed Torah, eds. Hava Tirosh-Samuelson and Aaron W. Hughes, 71–88. Leiden: Brill, 2014. Novak, David. “Persons in the Image of God.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 145–153. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “Religion and Science: Maimonides and Neoplatonic Cosmology.” Hawaii Jewish News, Special Supplement(November 1987): 5, 8. Novak, David. “Religious Communities, Secular Societies, and Sexuality.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 283–303. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “Reply to Critics of ‘Exclusionary Rule’ with Judge Herbert A. Posner.” New York Law Journal 188.81 (1982): 2. Novak, David. “Response to Anver Emon’s ‘Islamic Natural Law Theories.’” In Natural Law: A Jewish, Christian, and Islamic Trialogue, 196–210. New York: Oxford ­University Press, 2014. Novak, David. “Response to Matthew Levering’s ‘Christians and Natural Law.’” In ­Natural Law: A Jewish, Christian, and Islamic Trialogue, 126–143. New York: Oxford University Press, 2014. Novak, David. “The Book of Genesis and Natural Law” (Hebrew). Techelet 14 (2003): 89–117; English translation: “Genesis and Morality.” Azure 15 (2003): 109–129. Novak, David. “The Commandments: Divine Will or Divine Wisdom.” Hawaii Jewish News, Special Supplement (November 1987): 4. Novak, David. “The Dialectic between Theory and Practice in Rabbinic Thought.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 21–33. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “The Doctrine of Creation and the Idea of Nature.” In Judaism and ­Ecology: Created World and Revealed Word, ed. Hava Tirosh Samuelson, 155–175. Cambridge: Harvard University Press, 2002. Novak, David. “The Human Person as the Image of God.” In Personhood and Healthcare, eds. David C. Thomasma, David N. Weisstub, and Christian Hervé, 43–53. Dordrecht: Kluwer Academic Publishing, 2001.

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Bibliography

Novak, David. “The Jewish Kosher Tradition.” Highlight Journal of the Institute of ­Sanitary  Management (1967): 20–22. Novak, David. “The Origin of the Noahide Laws.” In Perspectives on Jews and Judaism: Essays in Honor of Wolfe Kelman, ed. Arthur Abraham Chiel, 301–310. New York: ­Rabbinical Assembly, 1978. Novak, David. “The Role of Dogma in Judaism.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 73–87. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “The Talmud as a Source for Philosophical Reflection.” In The History of Jewish Philosophy, eds. D. H. Frank and O. Leaman, 49–63. London: Routledge, 1997. Novak, David. “The Universality of Jewish Ethics: A Rejoinder to Secularist Critics.” Journal of Religious Ethics 36.2 (2008): 181–211. Novak, David. “Universal Moral Law in the Theology of Hermann Cohen,” Modern Judaism 1.1 (1981): 101–117. Novak, David. “What is Jewish about Jews and Judaism in America.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, 37–45. Grand Rapids, MI: Eerdmans, 2008. Novak, David. “When Jews Are Christians.” First Things 17 (1991): 42–46.



Book Reviews



Works on Novak



Books

Novak, David. Review of Clark M. Williamson, A Guest in the House of Israel, Pro E­ cclesia 4.4 (1995): 486–489. Novak, David. Review of Menachem Elon, Jewish Law: History, Sources, Principles. Vera Lex 14.1–2 (1994): 51–54. Novak, David. Review of Russell Hittinger, A Critique of the New Natural Law Theory. This World 26 (1989): 137–140.

Gluck, Andrew L. Various Theories Explaining Why the Jewish People are Special: A Response to Jerome Gellman, David Novak, and Michael Wyschogrod’s Understanding of the Chosen People. Lewiston, New York: Edwin Mellon Press, 2016. Levering, Matthew. Jewish-Christian Dialogue and the Life of Wisdom: Engagements with the Theology of David Novak. London: Continuum, 2010. Scherzinger, Gregor. Normative Ethik aus jüdischem Ethos: Eine Rekonstruktion und ­Diskussion von David Novaks Moraltheorie und Gesellschaftkritik in Studien der ­theologischen Ethik. Freiburg: Fribourg Academic Press, 2014.

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135

Articles

Batnitzky, Leora. “Beyond Sovereignty? Modern Jewish Political Theory.” In The ­Cambridge History of Modern Jewish Philosophy, ed. David Novak and Martin Kavka. Cambridge: Cambridge University Press, 2012. Borowitz, Eugene. “Im Ba’et Eyma – Since You Object, Let Me Put it This Way.” In Reviewing the Covenant: Eugene B. Borowitz and the Postmodern Renewal of Jewish Theology, ed. Peter Ochs, 145–170. Buffalo: SUNY Press, 2012. Broyde, Michael J. “Jewish Law and American Public Policy: A Principled Jewish Law View and Some Practical Jewish Observations.” In Religion as a Public Good, ed. Alan Mittleman, 161–184. Lanham, MD: Rowman and Littlefield, 2003. David, Joseph E. “Maimonides, Nature, and Natural Law.” Journal of Law, Philosophy, and Culture 5.1 (2010): 67–82. Douglas, Mark. “Democratic Structures and Democratic Cultures: A Response to Paul Hanson and David Novak.” CrossCurrents 59.2 (2009): 241–253. Fehige, Yiftach. “Circumcising Revelation Based Thinking? On the Rationality of Interreligious Dialogue in the Encounter Between Jews and Christians.” Toronto Journal of Theology 29.2 (2013): 351–367. Fox, Marvin. “Maimonides and Aquinas on Natural Law.” In Marvin Fox. Interpreting Maimonides: Studies in Methodology, Metaphysics, and Moral Philosophy, 125–152. Chicago: University of Chicago Press, 1990. Goodson, Jacob L. “Contingency, Irony, and Vulnerability: Richard Rorty and Scriptural Reasoning.” In Rorty and the Religious: Christian Engagements with a Secular Philosopher, eds. Jacob L. Goodson and Brad Elliot Stone, 118–138. Eugene: Wipf and Stock, 2012. Goyette, John. “Natural Law and the Metaphysics of Creation.” In St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives, eds. John Goyette, Mark S. Latkovic, and Richard S. Myers, 74–78. Washington: The Catholic University of America Press, 2004. Hughes, Aaron. “David Novak: An Intellectual Portrait.” In Natural Law and Revealed Torah, eds. Hava Tirosh-Samuelson and Aaron W. Hughes, 1–18. Leiden: Brill, 2014. Jackson, Bernard S. “The Jewish View of Natural Law.” Review of David Novak, Natural Law in Judaism. Journal of Jewish Studies 52.1 (2001): 136–145. Jacobs, Jonathan. “Judaism and Natural Law.” Heythrop Journal 50.6 (2009): 930–947. Jacobs, Jonathan. “Aristotle and Maimonides on Virtue and Natural Law.” Hebraic Political Studies 2.1 (2007): 46–77. Kavka, Martin. “The Perils of Covenant Theology: The Cases of David Hartman and David Novak.” In Imagining the Jewish God, eds. Leonard Kaplan and Ken KoltunFromm, 227–253. Lanham, MD: Lexington, 2016. LaGrone, Matthew. “Afterword.” In David Novak. Image of the Non-Jew, 2nd edition, 231–240. Oxford: The Littman Library of Jewish Civilization, 2011.

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Bibliography

Levering, Matthew. “Response to David Novak’s Natural Law in Judaism.” In Natural Law: A Jewish, Christian, and Islamic Trialogue, 57–65. New York: Oxford University Press, 2014. Levering, Matthew. “The Imago Dei in David Novak and Thomas Aquinas.” The Thomist 72 (2008): 259–311. Morgenstern, Matthias. “Eine Talmudische Ethik für die Menschheit: Die Noachidischen Gebote und das Problem eines jüdischen Verständnisses des Naturrecht.” In Sein und Sollen Des Menschen: Zum göttlich-freien Konzept vom Menschen, eds. Cristoph Böttigheimer, Norbert Fischer, and Manfred Gerwing, 253–273. Münster: Aschendorf, 2009. Newman, Louis. “Constructing a Jewish Sexual Ethic: A Rejoinder to David Novak and Judith Plaskow.” In Sexual Orientation and Human Rights in American Religious ­Discourse, eds. Saul M. Olyan and Martha C. Nussbaum, 46–54. New York: Oxford University Press, 1998. Newman, Louis. “The Law of Nature and the Nature of the Law.” In Ethical Monotheism, Past and Future Essays in Honor of Wendell S. Dietrich, eds. Theodore M. Vial and Mark A. Hadley, 259–277. Providence, RI: Brown Judaic Studies, 2001. Nussbaum, Martha. “Reply.” California Law Review 98.3 (2010): 735–747. Rashkover, Randi and Martin Kavka. “Introduction.” In Tradition in the Public Square: A David Novak Reader, eds. Randi Rashkover and Martin Kavka, xi-xxxiv. Grand ­Rapids, MI: Eerdmans, 2008. Rashkover, Randi and Martin Kavka. “A Jewish Modified Divine Command Theory.” Journal of Religious Ethics 32.2 (2004): 387–414. Rudavsky, Tamar. “Natural Law in Judaism: A Reconsideration.” In Reason, Religion, and Natural Law: From Plato to Spinoza, ed. Jonathan A. Jacobs, 83–105. Oxford: Oxford University Press, 2012. Thiessen, Elmer J. “Christians and Jews Proselytizing: A Response to David Novak.” ­Religious Studies and Theology 22.2 (2003): 55–63. Yaffe, Martin. “Natural Law in Maimonides?” In St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives, eds. John Goyette, Mark S. Latkovic, and Richard S. Myers, 66–73. Washington: The Catholic University of America Press, 2004. Zohar, Noam. “Judaic Visions of a Shared World.” In Contested Boundaries: Diverse ­Ethical Perspectives, eds. David Miller and Sohail H. Hashmi, 237–248. Princeton: Princeton University Press, 2001.



Book Reviews

Arkush, Allan. “Drawing up The Jewish Social Contract.” The Jewish Quarterly Review 98.2 (2008): 255 – 271. Arkush, Allan. “Theocracy, Liberalism, and Modern Judaism.” The Review of Politics 71 (2009): 637–658.

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Brueggemann,Walter. Review of David Novak, Zionism and Judaism: A New Theory. The Christian Century. January 22, 2016. Hamilton, Mark. Review of David Novak, The Jewish Social Contract. Reviews in Religion and Theology 13.3 (2006): 406–409. Konvitz, Milton. Review of David Novak, Natural Law in Judaism. Journal of Law and Religion 17.1/2 (2002): 155–58. Levenson, Jon D. “Must We Accept the Other’s Self-Understanding?” Review of David Novak, Jewish-Christian Dialogue. Journal of Religion 71.4 (1991): 558–567. Mackler, Aaron. Review of David Novak, Natural Law in Judaism. Religious Studies Review 27.2 (2001): 121–126. Newman, Louis. “Covenantal Responsibility in a Jewish Context.” Review of David Novak, Jewish Social Ethics. Journal of Religious Ethics 25.1 (1997): 191–195. Segal, Eliezer. Review of David Novak, Natural Law in Judaism. Studies in Religion 29.2 (2000): 246–247. Washofsky, Mark. Review of David Novak, Natural Law in Judaism. AJS Review 26.2 (2002): 384–385. Windmueller, Steven. “Jewish Rights: What is Normative?” Review of David Novak, Covenantal Rights: A Study in Jewish Political Theory. Menorah Review 52 (2001): 8–10.



Conference Papers

Batnitzky, Leora. “Reconciling Chosenness and Natural Law in David Novak’s Theology of Covenant.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Bockmuehl, Markus. “David Novak’s Theology of Jewish-Christian Dialogue: From Polemics to Joint Enterprise.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Diamond, James. “Philosopher as Talmudist and Talmudist as Philosopher.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Feller, Yaniv. “The Covenant after Auschwitz: Reflections on Fackenheim and Novak.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Galston, William “Response.” Paper presented at Rabbi David Novak’s in Defense of Religious Liberty. Washington, D.C. January 21, 2010. Gibbs, Robert. “Theology and Philosophy.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Goetschel, Willi. “Out of Judaism Inside Philosophy: Are Jewish Philosophers Outsiders, Insiders, or Just Marginal?” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014.

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138

Bibliography

Goodman, Lenn E. “Getting Clear and Getting Real about Natural Law – in Honor of David Novak.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Gordon Schochet, Leora Batnitzky, Michael Walzer, David Novak. “Symposium on David Novak’s The Jewish Social Contract.” Hebraic Political Studies 1.5 (2006): 593–622. Hughes, Aaron W. “Was There Interfaith Dialogue in Medieval Jewish Philosophy?” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Hunsinger, George. “The Election of Israel in David Novak and Karl Barth.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Kavka, Martin. “The Rights of Citizens in a Covenanted Polity.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Kellner, Menachem. “Maimonides and Halevi Redivivus: Contrasting Views on the Nature of the Jewish People in Contemporary Israel.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Levering, Matthew. “Creation and Election: David Novak and Thomas Aquinas.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Mittleman, Alan. “David Novak’s Social and Political Thought: An Appreciation and Critique.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Morgan, Michael. Comment. Paper presented at David Novak’s New Theory of Zionism. Toronto, Canada. February 4, 2016. Nahme, Paul. “Noahide or Natural Law? Toward a Theory of Normative Agency in a Post-Secular World.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Ochs, Peter. “Covenantal Relations: Novak, Scripture, and the Other.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Rashkover, Randi. “From Text to Philosophy: Reconsidering David Novak’s Account of Reason and Revelation.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014. Scherzinger, Gregor. “Idolatry and the Public Square: A Political Theology Engaging with David Novak’s Thought.” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014.

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Trigano, Shmuel. “From Rousseau to Moses: Democratic and Judaic Transcendances,” Paper presented at Rethinking the Covenant: Engagements with the Theology of David Novak. Toronto, Canada. September 14–15, 2014.



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Index Abraham 49,113, 129 Adultery 2, 17, 25, 85, 90, 122 Albo, Joseph 8, 128 Anthropology, philosophical 23n37, 66n196 Antinomianism 89n68 Aquinas. See Thomas Aquinas, Saint Atheism 34n81 Aufgehoben 7, 89–92 Authority 40, 44, 47, 76, 80, 86, 125, 130 Autonomous or heteronomous 7, 73, 78–83 Batnitzky, Leora 8, 95, 120–127, 127 Blasphemy 32, 85 Bleich, J. David 9 Border concept 74, 90–91 Buber, Martin 57, 76–77 Cain and Abel 50 Categorical imperative 70n204 Choice 25, 80, 83, 103, 121, 125, 129 Christianity/Christians 57–58, 72, 76, 99–100, 101, 110–111, 116, 130. See also non-Jews Cicero 95, 126, 127 Claims, minimal and maximal 73, 82, 92 Cohen, Hermann 8, 18, 37, 115, 129 Commandments Rational 8, 12, 18, 24, 27–28, 31–32, 40–43, 47, 62, 64, 67–68, 71, 72, 106, 128 Reason for (ta’amei hamitzvot) 2, 5, 22, 28, 44, 45, 48–49, 51, 51n145, 52, 82, 88, 89, 89n68, 106n42, 109, 123, 125, 128 Community 20, 23, 35, 38, 44, 46, 51, 53, 54, 62, 80, 83, 86, 99–100, 110, 111, 115–116, 117 Covenantal 70–71, 81, 101 Faith-based 7 Historical 16, 51, 71 Messianic 109 Cosmos/cosmic 5, 74–75, 78, 104, 109–110, 112, 113, 117 Covenant 31, 32, 36–37, 39, 42–43, 48, 49, 48, 54–55, 62, 66–68, 70, 75, 77–78, 81, 89, 92, 94, 97–98, 99, 100, 101, 103, 105, 106, 109–110, 115, 116, 118, 128, 129 Rights 109–110

Theology 7, 8, 14, 94–95, 96, 120–127 Creation 40, 41, 48, 52, 59, 66, 75, 108 Cultural heritage 4, 20, 38, 45, 70 Dialogue, Jewish-Christian 6, 11, 74, 79, 90, 99–100, 110–111 Dina de-malkhuta dina 22 Ding an sich 52 Egypt 32, 38n94, 80n29, 106, 107 Eliezer, Rabbi 97 Elon, Menachem 46–47, 83 End of Days 98, 111, 115, 118 Enlightened students 41, 41n107 Epistemology 16, 18, 20, 34, 42 Eschatology 108, 114 Ethics 6, 33, 34, 58–59, 100–101, 113–114 Euthanasia 19, 20 Fideism 41 Freedom 5, 33 Fundamentalism 26, 29, 43, 48, 74, 91, 96, 98, 106, 107, 117 God 33–34 Human relationship with 5, 19, 30, 47, 49, 57, 66, 68, 69, 77, 89, 105, 106, 117 Israel’s relationship with 57, 70, 105–106, 109–110, 113–114, 115, 116, 125 Good/goodness 37–38, 38n94, 40, 41, 63n190, 64n192, 68–69n204, 79, 80n29, 82, 83, 109, 123, 124 Grenzbegriff 74 Halakhah 3, 15, 32–35, 40, 42, 64, 76, 98–99, 114, 121–122 Hauerwas, Stanley 130 Hegel, G.W.F. 89, 90, 108, 115 Heschel, Abraham Joshua 113 Heteronomous or Autonomous 7, 73, 78–83 Homo politicus 112 Human Dignity 18, 34, 70, 77, 88 Nature 5, 20, 36, 41, 46, 62, 68, 70, 71, 79, 80, 82, 95, 117, 128

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index Personhood 8, 54, 73, 84, 85, 86, 87, 88 Sexuality 47–48 Ideal/Idealism 35, 59, 99, 112, 116, 124 Idolatry 2, 25, 85 Image of God/imago Dei 4, 5, 36, 45, 49, 54, 59, 63, 66, 71, 73, 77, 82, 84, 89, 93, 126, 130 Intention 4, 49, 59, 88, 109 Intrinsic ends 117–118 Israel, people/nation 4, 5, 17, 29, 30, 36–37, 38, 39, 57, 70, 78, 85, 87, 103–106, 109–110, 113, 114–118, 125, 128 Israel, State of 66–67, 97, 102 Jacobs, Jonathan 8–9 Joshua, Rabbi 97 Jus divinum 21 Jus gentium 21, 46 Jus naturale 21, 46, 62 Justice 22, 36, 40, 46, 49, 50, 66–68, 81, 90–91, 111, 124 Kabbalah/Kabbalists 29 Kant, Immanuel 39n99, 58–59, 68n204, 70n204, 74, 78 Kavka, Martin 116, 117 Law Aristotelian 12 Civil 67 Criminal 56 Divine 4, 6, 28, 34, 36–37, 40, 41, 44, 70, 75, 80, 84, 93, 113, 116 Jewish 3, 9, 16, 22, 46–47, 56, 59, 72, 74, 76, 86, 96, 128 Moral 4, 8, 15, 27, 46, 55, 58, 70, 71, 73, 75, 78, 110, 117, 123 Mosaic 7, 9, 31–32, 33, 42, 62, 72, 73, 76, 78, 83, 89–92, 128, 129, 130 Natural 83–89, 95, 128, 130 Noahidic 2, 3, 4, 5, 6, 7, 9, 13, 17, 21. 22, 24–32, 33, 38, 42, 46, 49–50, 52, 55, 56, 61, 62, 65, 67, 71, 73, 74–76, 78, 81, 82, 83, 84–86, 89–92, 94, 96, 97, 110, 115, 119, 121, 123–124, 125, 128, 129 Rabbinic 17, 36, 37, 73, 80, 81, 84 Roman 93 Levering, Matthew 13n45, 64, 64n192

Maimonides 2, 12, 19, 27, 29–30, 51, 53, 65, 67, 85–87, 103, 118–119, 123, 128 Marriage 67 Mendelssohn, Moses 8, 9, 32, 128, 129 Messiah 76, 98 Messianism Active 8, 95, 118–120 Apocalyptic versus extensive 103–104, 119 Passive 95, 118–120 Metaphysics 7, 46, 56, 59, 61, 66, 70, 72, 93 Mishpat 46 Moses 36, 37, 57 Murder 3, 15, 17, 18–19, 25, 26, 35, 43, 45, 50, 52, 55, 58, 64, 90 Murray, John Courtney 46 Myers, Jody Elizabeth 8. 95, 118–120, 127 Nations of the world 28, 31, 97. See also World Noah 17, 74–75, 85 Non-Jews 2, 3, 6, 9, 17, 22, 24–25, 28, 29, 55, 58–59, 91, 96, 115. See also Christians Ontology 4 Peace 35, 82 Phenomenology 63 Philo 3, 36, 41, 42 Philosophy 74, 80, 81, 107–109, 130 Plato 12, 57–58 Political context/existence 14, 20, 66, 81, 102, 112–113. 114–115, 128 Prophecy 100, 105 Prozbul 98, 114 Public square 10, 57, 62–64, 72, 93, 130 Rabbinic enactments 2, 4, 5, 9, 17, 43–45, 52–54, 82–83, 84, 86–87, 92, 99, 104, 114, 115, 119, 125, 129 Rabbis 13, 32, 63, 80, 84. 97, 98, 102–103, 117 Rashi 22 Ratio quo ad nos 15, 18, 22, 24, 27, 34, 36, 37, 43, 44, 45, 46, 47, 57–58, 65, 66, 68, 72 Ratio per se 15, 17, 18, 22, 23, 24, 25, 27, 28, 30, 34. 36, 37, 42, 43, 44, 45, 46, 47, 48, 57–58, 66, 68, 72

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146 Rational 15, 16, 18, 26–27, 38–39, 51, 63, 68. 70, 78, 81, 113 Attainability 26–27 Principles 117, 126 Rationalism, totalizing 51 Rationality 7, 8, 15, 18, 39, 40, 45, 128 Human beings and 16, 19–20, 23–24, 32–33, 40–41, 44, 70–71, 72, 106 Reason 14, 19, 22, 79, 81. 96, 107, 116, 126, 128, 129 Redemption 7, 8, 72, 94–96, 97–98, 98–101, 102–107, 107–109, 112–113, 113–119, 120–125, 127, 128 Relation External 7, 15, 16, 19, 20, 21 Internal 7, 15, 16, 19, 20, 23 Resident (ger toshav) 24, 25 Revelation 4, 6, 17, 21, 35, 39, 51, 63, 66, 67, 79, 84, 87, 90, 91, 97, 100, 101, 107–108, 112, 113–114, 119, 121, 127, 129 Rights Covenantal 109–110 Human 34n81 Robbery/theft 17, 90 Rosenzweig, Franz 6, 96 Saadia Gaon 37, 123 Scherzinger, Gregor 4–5, 6 Secularism/secularity 47, 58–59, 67–68, 100, 116 “self-evident” 34–35 Sinaitic revelation 4, 14, 15, 17, 28, 70, 73, 78, 81, 91, 98, 114, 119, 125 Slavery 33, 88 Social contract 6

index Society 15, 16, 20, 22, 23, 33, 35, 36, 38, 43, 45, 47–48, 124 Talmud 28, 33, 73, 78, 85–87, 92, 96, 97, 102 Teleology 38, 53, 81, 92, 117, 123 Theology 5–6, 7, 12, 14, 16, 30, 48, 68–69, 73, 77, 112–113, 130 Thomas Aquinas, Saint 3, 30, 57, 65 Tiqqun olam/tikkun ha’olam 46, 87 Torah 4, 5, 24, 28, 31–32, 33, 34, 36, 39, 40, 54, 70, 73, 78, 83, 86, 86–87, 88, 90–92, 98, 125 Tradition 2, 3, 7, 16, 21, 23, 29, 31, 51, 67, 72, 76, 129 Transcendence 20, 23, 64, 70–71, 72 Truth 7, 18, 35, 36, 46, 48, 82, 87, 93, 100, 111, 123 Understanding (binah) 47 Universal/universality 3, 6, 13, 19 32, 36, 43, 44, 46, 54, 58–60, 62, 63, 67, 79, 84, 87, 92, 94, 97, 100–101, 107, 111, 112, 113–114, 117, 127, 129 Consensus 17, 21, 22, 33, 71 Precondition 49 Truth 46, 111 “Unique unity” (einzigen Einheit) 116 Wisdom 47–48, 55, 116 World 34, 40, 46, 46, 62, 74, 78, 87, 90, 98, 100–101, 103, 105, 107, 110, 111–112, 115, 117–118, 120, 122, 127 World to Come (olam ha-ba) 97, 110 Zionism 10, 10n37, 66–68

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