Modernity has been largely shaped for Jews by three momentous experiences: the acquisition of citizenship by individual Jews in secular nation-states, the destruction of one-third of Jewry in the Holocaust, and the founding of the State of Israel. All three of these experiences are essentially political rather than religious. And they thus compel Jewish thinkers to face the question of natural law, for natural law—understood at least initially as the universally valid and rationally discernible norms of human conduct—is inextricably bound up with all political thought.
The acquisition of citizenship by Jews in modern nation-states was an enormous change from earlier political situations. During the Middle Ages, Jews were members of a semi-independent polity within a larger polity. The political status of the Jewish communities was determined by some sort of contract with the larger host societies by which they were allowed to live, as it were, as imperium in imperio. Since these larger host societies, whether Christian or Muslim, were as religiously constituted as the Jewish community, their relations with the Jews were largely determined by religious criteria grounded in their respective revelations.
For the Christian or Muslim hosts the task was to find some religiously tolerated status for a community of nonbelievers living in their midst. For the Jewish guests, the task was to find some religiously tolerated status for a society of non-Jews under whose general rule Jews had to live. The task was made somewhat easier for both sides by the fact that Jews are not an ordinary group of nonbelievers in the eyes of Christianity and Islam, and Christians and Muslims are not ordinary gentiles in the eyes of Judaism.
The terms of the political relation between the Christian or Muslim hosts and the Jewish guests were largely theological and historical. The presence of Jews in larger, foreign societies had to be justified by the criteria of revelation, which enabled Christians or Muslims to regard Jews as a community somewhere in between the believers inside sacred space and the nonbelievers outside. Jews had to justify their presence in these societies to themselves by quite similar criteria.
All of this was viewed by both sides against an eschatological horizon in which present political relations were only tentative and would ultimately be subsumed in a world totally redeemed. And yet, where the general constitution of their relations was evaluated by both sides from the perspective of revelation, its specifics were negotiated very much within the historical situation at hand. Usually, these historical specifics were economic—the most ephemeral criteria of all. Jewish presence in these societies was usually justified at this level of Realpolitik by their economic usefulness to their hosts.
Natural law is both less exalted than direct divine revelation and more exalted than merely local human arrangements. Although, occasionally, the question of natural law did enter into medieval negotiations between Christian or Muslim hosts and Jewish guests, for the most part they were conducted either at the level of God's revealed law or human law. These societies could confine their self-definition to the historically immediate categories of Jew, Christian, or Muslim, and thus rely very little on the abstract category of “human person,” with which natural law is concerned.
All of this changed, however, with the breakdown of the medieval world. With the new constitution of European society into nation-states, the issue of natural law arose in the form of natural rights. The view of society that came in the wake of the social contract theorists of the sixteenth and seventeenth centuries was one that posited in one way or another the notion that human beings construct society from the beginning, with certain rights already in hand. Unlike the medieval view, in the modern view the individual human does not come from society but to it. The task of society is to facilitate the exercise of the natural rights of these human beings. In this view, all human beings begin from zero, so to speak, and everyone enters society (in theory anyway) at the same point in time and space.
This new notion of human personhood and human society provided the necessary theoretical conditions for the political emancipation of the Jews into European society and culture. But the concessions required from both sides were far more radical than the theological interpretations and economic adjustments required by medieval society. Here both sides had, in effect, to assume a primary and public identity as rational, ahistorical human beings, and reserve their secondary and private identity as Jews or Christians for more domestic spheres. (At this point in history, the Jewish-Muslim relationship becomes quite different from the Jewish-Christian one.) The early-nineteenth-century Jewish Enlightenment poet Judah Leib Gordon coined the slogan (in Hebrew) for Jews: “Be a Jew in your tent and a human being when you go out of it.” The new relation between Jews and the larger world was negotiated by philosophical, not theological, means.
At least in theory, Jews were now offered their admission ticket to European society and culture; and, seemingly, it did not require that they abandon their Judaism by any detour through Christianity, as had been the case in the past. It is little wonder, then, that the vast majority of Jews regarded this as a very good offer whenever it was made to them, or promised to them, or even hinted at. And, although this process of admission took various forms and had various levels of success, at the theoretical level, at least, it required Jews to justify their political presence by the criteria of natural law, especially in its modern version as “natural rights.” Indeed, much of Jewish thought—from Baruch Spinoza in the seventeenth century to Moses Mendelssohn in the eighteenth century to Hermann Cohen in the late nineteenth century—was a Jewish justification of natural rights and the liberal society. This explains the persistent loyalty of large numbers of Jews in Europe and America to quite stringent notions of secular social space as an absolute desideratum. And in justifying their own admission to a larger society, these Jewish thinkers had to constitute an opening for Judaism on the horizon of a new universal order—whether Judaism was to be deconstructed as Spinoza suggested, or tolerated as Mendelssohn asserted, or be the historical source of true universalism as Cohen speculated.
The second momentous experience that determined Jewish modernity is the Holocaust. Here the question of natural law enters the discussion by either its affirmation or its denial. For the great debate among Jews who ponder the Holocaust is whether it is to be interpreted along general or singular lines.
For those who argue that its significance is singular, the introduction of any universal element into the discussion only serves to dilute the Holocaust as a uniquely Jewish tragedy: to explain the Holocaust in universal terms, even universal moral terms, is ultimately to explain it away. If this view is carried to its logical conclusion, however, and any universal point of reference eliminated, the tragedy of the Jews can only be presented as the tragedy of a race of angels rather than a human people, and any connection with the victims has to be one of imaginary projection. (Of course, isn't it easy to turn a superhuman species, with which one shares nothing essential, into a subhuman species? Do not romanticization and demonization have much in common?) In other words, the explicit elimination of natural law makes any reasoned attempt to come to grips with the Holocaust harder.
The slogan “Never Again!” that emerged after the Holocaust implies that the Holocaust has a universal moral meaning, which, if properly learned, can provide at least a theoretical prophylactic against its repetition against anyone. I would argue that to present the Holocaust as a human tragedy no more dilutes its uniqueness than does the demand that the murderer of one's child be tried before a general tribunal. The deeper need for mourning and consolation does not eclipse the general need for the justice of retribution and prevention.
Despite a tendency of contemporary Jewish thought about the Holocaust to take a stand against natural law, another tendency upholds natural law (whether aware of its philosophic underpinnings or not). This line of thought is surely what is behind contemporary Jewish interest in the whole issue of human rights in the world, and which makes itself manifest in such attempts as the international drive against racism and terrorism to which many Jews have been so dedicated. In these attempts, Jews have had to present their own victimhood against a universal horizon: Jewish suffering as epitomized by the Holocaust has had to be presented as the most poignant example of the violation of human personhood and its essential rights. If such presentations are to rise from the level of special pleading to the level of truly rational reflection and argument, the perspective of natural law must make an essential entrance into the discussion.
The third momentous experience that determined Jewish modernity is the establishment of the State of Israel. Here the question of natural law has entered into the discussion by way of the debates about what sort of a polity the new Jewish state is to be. These debates began with the birth of modern Zionism at the end of the nineteenth century, and they have continued unabated since the reestablishment of Israel in 1948. And as has been the case with contemporary Jewish thought about the Holocaust, natural law has entered the discussion both by affirmation and by denial.
For those who have envisioned the State of Israel to be a democracy, which although primarily a Jewish polity for Jews is one in which non-Jews can become citizens and enjoy equal civil rights with the Jewish majority, the question of natural law is the question of human rights. Because Israel has from her inception allied herself with the West, she has had to justify her existence to the West (primarily the United States) as a constitutional democracy guaranteeing personal liberty and the protection of minorities.
There has also been, however, what might be called a revisionary type of Zionism, based on a philosophical denial of natural law in which the sole purpose of the State of Israel is to enhance the power of the Jewish people, with no concessions made to non-Jews or to the idea of common humanity rooted in common human nature. This type of Zionism argues for the cultural isolation of the Jewish people from the larger Western civilization in which they find themselves and with which they have had to cast their lot, like it or not. Where such isolation is less of a political possibility in our increasingly interconnected world, this form of Zionism admits Realpolitik common interests with the non-Jewish world only of the most specific and ephemeral kind.
Advocates of this position are not merely uninterested in pursuing philosophical discussions of commonality: they are often hostile to them, for such discussions would force them to admit a commonality deeper than that of momentary interests. Occasionally, at moments of great political stress, less sophisticated Jewish elements explictly, dramatically, and vehemently deny any common humanity between Jews and non-Jews. Because of their sensationalism, these outbursts frequently attract wide media attention, and the embarassed colleagues of those who have made them will usually utter some half-hearted denials. But the embarassment is typically more rhetorical than philosophical, for it almost always comes from those who recognize that such outbursts, whether philosophically justified or not, will make diplomacy in the larger world more difficult.
In reflections on the three determining experiences of Jewish modernity, the invocation of natural law largely presupposes the historical value of the Enlightenment. The political emancipation of the Jews from the confines of the ghetto is seen as philosophical liberation, the Holocaust as a denial of Enlightenment values of liberty and equality, and the State of Israel as the great historical opportunity for the Jewish people to build a Western—type democracy.
Nevertheless, Enlightenment thought has been attacked, especially since the Holocaust, as a betrayal of the Jewish people. The Holocaust and what is perceived as the continuing political isolation and vulnerability of the State of Israel are supposed to have taught us that Jews have been asked to give far more than they have gotten from Western civilization. And this has been used to argue, retroactively, that the Enlightenment itself (certainly as regards the Jews, and possibly in and of itself) has been a failure. Since almost all modern Jewish thinkers have assumed that the question of natural law is identical with the modern idea of natural rights, any assault on post-Enlightenment modernity would seem to entail the elimination of the question of natural law.
Even if one does not hold such a negative view of the Enlightenment, the question of natural law as it has been raised for modern Judaism is nonetheless a great problem. The universality essential to the idea of natural law seems to imply that Judaism must be justified by the criteria of something greater than itself. And even if the admission of a greater universe does not destroy continuity with the Jewish past, Judaism will seem to have played merely a secondary role in the larger scheme of things. How can a tradition like Judaism admit any such thing? Whatever role Jewish tradition has allowed universal human reason, it has been unwilling to allow any guest in its house to undermine the foundation of revelation. A traditional Jewish thinker already believes in a universal reality called “creation.” Commitment to Jewish tradition compels the assertion that revelation grasps more of the truth of creation than human reason, with its natural law, could ever begin to know.
A Jewish thinker thus seems to have only two options when it comes to natural law. He can either affirm natural law and seemingly allow Judaism to be swallowed up by something greater and more universal than itself, or he can deny natural law and leave all issues of the relations of Jews and non-Jews on the level of pure power politics, where concern for truth is precluded. But in fact there is a third option, grounded in philosophy, available to Jewish thinkers.
The philosophical solution requires radical criticism of a key political idea of the Enlightenment: the theory of a social contract in which human beings construct their own primary society autonomously—a society that requires the permanent bracketing of all prior commitments, especially commitments to the revelations of a transcendent God. The idea runs from Locke to Kant to Rawls to Habermas, but it was presented to me by a well-known contemporary “autonomist”—the philosopher Richard Rorty. Now Rorty happens to be my colleague at the University of Virginia, and a little over a year ago he and I engaged in a public discussion there. (Because of its cordiality I hesitate to call it a “debate.”) The discussion was essentially an exchange over Rorty's assertion that the invocation of God's will in a democratic conversation is unavoidably a “conversation stopper.” As someone who believes in the authority of God's will as revealed to the Jewish people, and as someone who is convinced that there are no acceptable alternatives to democracy in the world today, I could not allow myself to leave such a challenge unanswered. The success of my answer depends on the answer to three more precise questions: Must democracy be one's primary community if it is to function well? How does God's will function for a Jewish believer? Is God's will the only basis for relationship with God?
A modern democracy might well be defined as a secular society that presupposes the natural rights of its members and bases its operations on the fulfillment of their prior rights. Democracy so defined cannot be based on revelation, inasmuch as revelation is a historical rather than a natural phenomenon. As historical, revelation is always to a singular, uniquely elected community. The identity of natural rights and history would require a universal human history, something that for Jews at least belongs to the humanly irretrievable antiquity of Adam or the humanly unattainable future of the Messiah. At any point in between these two unreachable temporal limits, nature is constituted generally and revelation singularly. The question, therefore, is whether those who base their morality on a revelation and its tradition can be members of a modern democracy apart from mere political and economic expediency.
Many have thought the answer to this question to be “no.” Their answer, however, presupposes that democracy must be one's primary community in order for it to function well. Nevertheless, it can be argued that democracy actually functions better when it is, rather, one's secondary community. If that is the case, then those committed to a revelation and its tradition, like religious Jews, can indeed be members of a modern democracy in good faith.
Richard Rorty is right about the invocation of God's will being a “conversation stopper,” that is, in a conversation within the confines of a democratic society and its constitution. For God's will has meaning only in a community explicitly related to that God, where it stimulates the ongoing exegetical conversation essential to the community's transmission of revelation. For Jews, that revelation is a historically real covenant with God, a covenant whose law has the ultimate authority of being God's will. This covenant does secondarily include the will of its human participants, but in a democratic society there is only the interplay of human wills. For God to be a participant in such a polity would require the impossible admission of the political primacy of revelation. Democratic thinking quickly eliminated the Deistic notion that the natural order that it presupposes (however sketchily) requires positing the will of a primordial being to explain its origins: taken as a rational construct, society requires no such primordial origin at all. Natural rights do not need natural theology.
So, if God's will were all that religious persons had to bring to democratic society, there would be no opening there for such a gift. But God's will is not all that religious persons have to say about their God. They also speak of the wisdom of God. And the wisdom of God has a public significance in a secular democracy that the will of God cannot and should not have. If religiously committed Jews are going to be able to participate in democratic conversation, they will have to speak of the wisdom of God. The difference between speaking of the will of God and the wisdom of God is the difference between a theology of creation and a theology of revelation.
To speak of the will of God is to speak of an object that cannot be separated from its subject. To say, for example, “The Lord spoke to Moses and Aaron saying, . . . and the pig . . . from its flesh you shall not eat” (Leviticus 11:1–7) is to assert that the meaning of the prohibition of eating pork is a direct response to the will of God as revealed in the Torah. Whatever wisdom we perceive in this commandment is subsequent to our obedience to it.
But to speak of the wisdom of God is to speak of what can stand, at least initially, apart from the subject who speaks it. 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. 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.
An objection as old as Plato's “Euthyphro Problem” remains, however. If God has willed something because it is wise, and that wisdom is accessible to any rational person, then what difference does it make who has willed it? Is it not something that is always to be willed by anyone? The assertion of practical wisdom on any moral issue in secular, public space seems to eliminate the requirement that it be ultimately predicated of God. What does “of God” add to the discussion? Is it not a distraction, after all?
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. Even if the assertion that this wisdom is God's might not have immediate meaning in a democratic conversation, it can, minimally, be asserted in that context as a statement of where one is coming from. That statement of origin is only irrelevant when one is required to affirm society as the primary locus of one's human association. Such an assertion, however, ultimately requires that we speak as though we were atheists. That price is simply too high to pay for any member of a traditional religious community, whatever the benefits of democratic society happen to be: “There is no wisdom, there is no understanding, and there is no counsel that can be set up against the Lord” (Proverbs 21:30). But the price is only required by the questionable assumption that democracy itself must be both one's society and one's community. It is based on the erroneous notion that democracy must create its own culture rather than drawing upon the practical wisdom of more primary cultures, cultures like Judaism that inevitably trace their wisdom back to the God who has created all and who has revealed Himself to them.
The issue is whether one is required to be a secularist in order to be a participant in secular space. And here is where the religious have a clear advantage over the secularists in a democratic conversation, for the religious are actually better able to constitute the secular as an abstraction from out of their own traditions of revelation than the secularists are able to postulate religion by deduction from a transcendental base. That constitution of the secular by the religious includes such attractive modern institutions as natural science and rights-based jurisprudence. But when the secularists postulate “religion,” they must remove its cosmic dimension. A religion like Judaism, shorn of its cosmic dimension, is quickly unrecognizable. Jewish secularists who often call themselves “cultural Jews”—that is, Jews who want some of the substance of Jewish life (often called “Jewishness”) without its form (better called “Judaism,” best called “Torah”)—not only distort the meaning of Jewish life, they also distort the meaning of culture. In the deepest sense, there is no “secular culture.” I know of no historically transmitted culture that does not ultimately depend on some transcendent reality as its source.
Finally, here is the point where the idea of natural law must replace the idea of natural rights, at least in its modern version. Proponents of natural rights have usually assumed that basic human rights can be posited, without any ontology, by the construction of an elaborate fiction originally called the “social contract”—the artificial notion that society can be seen as the agreement between self-constituted individual persons who come to it from a “state of nature” or “original position.” Of course, the argument is circular inasmuch as a contract presupposes a social context already in place.
If persons are seen as existing in traditional communties founded by revelatory events, however, then the social contract need not be an artificial construct. Society is founded when members of various communities have to come together to work out certain commonalities between them in order to live in peace. But they come as real bearers of older cultures, not as hypothetical historyless individuals from nowhere. Democracy works best when demands for totality are not placed upon it, but instead when the members of the respective communities can affirm the finite value of the social arrangement they have contracted and are always allowed to affirm the primary community from which they come and to which they must ever return. In John Rawls' helpful term, such intercultural political discourses are “overlapping consensuses.” Even when democracy only attempts to function relatively, however, what might be termed the “cosmic” needs of its members frequently lead them to construct totalizing ideologies to satisfy those forgotten needs. For the “overlapping” to be more than just procedural, liberals will have to admit the reality of cosmic needs and the probability that historical religions provide the best context for their satisfaction.
Natural law in this context can be seen as what Kant called a “border concept.” On the surface, it functions like the idea of natural rights, that is, it proposes rules, procedures, and principles for the governance of civil society. But unlike the idea of natural rights it does not claim to be self-constituting. By its real assertion of nature, it indicates that it is rooted in an order that transcends civil society.
The usual constitution of natural law in Western philosophy has been metaphysical. That is, the cosmic order in which natural law is rooted has been presented as something that is itself rationally evident. I think, though, that for a variety of reasons, both philosophical and theological, metaphysics is not the way to constitute natural law. It seems to me that it is better constituted by theological means out of a religious tradition itself, specifically out of the doctrine of creation and the wisdom of God.
David Novak is the Edgar M. Bronfman Professor of Modern Judiac Studies at the University of Virginia and author most recently of The Election of Israel (Canbridge University Press.) An earlier version of this essay was presented as one of the Yarnton Lectures at Oxford University in January 1996.