Jewish Ethics Engaged

The renowned scholar of Talmudic Judaism, Jacob Neusner, once characterized the divergence between first-century Judaism and nascent Christianity as fundamentally a divergence of locale. That is, each religion-working from mutually exclusive interpretations of why God formed Israel to be a "light unto the nations"-located the arena where God was working to save the world in two quite different "geographies":

For between Christ, universally known and triumphant, and Torah, the spiritual treasure of a tiny, harassed, abused people, seldom fully known and never long victorious, stands the abyss: mastery of the world on the one side, the sacrifice of the world on the other. Perhaps the difference comes at the very start when the Christians, despite horrendous suffering, determined to conquer and save the world and to create the new Israel. The rabbis, unmolested and unimpeded, set forth to transform and regenerate the old Israel. For the former, the arena of salvation was all humankind, the actor was a single man. For the latter, the course of salvation began with Israel, God's first love, and the stage was that singular but paradigmatic society, the Jewish people.

To save the world the apostle had to suffer in and for it, appear before magistrates, subvert empires. To redeem the Jewish people the rabbi had to enter into, share, and reshape the life of the community, deliberately eschew the politics of nations and patiently submit to empires. The vision of the apostle extended to all nations and peoples. Immediate suffering therefore was the welcome penalty to be paid for eventual universal dominion. The rabbi's eye looked upon Israel, and, in his love for Jews, he sought not to achieve domination or to risk martyrdom, but rather to labor for social and spiritual transformation, which was to be accomplished through the complete union of his life with that of the community. The one was a prophet to the nations, the other, priest to the people. No wonder then that the apostle earned the crown of martyrdom, but prevailed in history; while the rabbi received martyrdom, when it came, only as one of and wholly within the people. He gave up the world and its conversion in favor of the people and their regeneration.

Now one of the great consequences of this empire-submissive, politics- eschewing stance of normative rabbinic Judaism has been the absence of any developed tradition of Jewish social ethics, a point that David Novak explicitly acknowledges in his recent daring book of essays (daring because he senses how much he must build on a foundation meant for another house): "Questions of political policy pertain to areas where the very political marginalization of the Jews made the normative Jewish tradition inoperative and thus cease to develop."

Christianity, however, had to face the challenge of developing a coherent position on a whole array of political and social-ethical issues almost from the outset. I say "almost," for the New Testament is itself remarkably insouciant about social issues: while recommending obedience to established authorities (Romans 13:1-7), it condemns the Roman Leviathan in the harshest possible terms, apparently never envisioning a possible future modus vivendi between Church and Empire (Revelation 18:1-24); yet it tolerates the institution of slavery without much comment (Philemon) and seems to countenance war as part of the expected pattern of things (Luke 14:31-33). But by the time the canon of the New Testament was formed, the challenge could no longer be avoided. For as Christianity began its empire-subverting and world- conquering outreach, it encountered not only the harshness of Roman rule but also a theory of society and politics of immense richness, depth, antiquity, and complexity. Yet nothing in the resources of either the Old or the New Testament seemed immediately applicable to questions raised in Plato's Republic or Aristotle's Politics.

And then, just as the "world" was on the verge of being fully "conquered," the barbarian invasions raised a new challenge, for now Christianity had to answer the pagan charge that these invasions were a direct result of the abandonment of the gods by the Empire. It was left to St. Augustine to answer that challenge with his epochal City of God, and with it Christian political and social theory may be said to have come into full bloom.

This remarkable book determined the political and social worldview of Western Christianity all the way to the Enlightenment (and beyond), answering pagan critics point by point, but more crucially taking such important biblical themes as election, remnant, and God's hidden purposes in history and marshaling them all into a theory of politics, society, and eschatology that could match the visions of Plato, Aristotle, and Cicero.

The Enlightenment, of course, with its thoroughgoing challenge to Christian and biblical dogmas, changed all that, including (and in the context of this discussion, especially) the place of the Jews in that polity. Suddenly (as history judges these things), the Jews emerged from their ghettos, literal and figurative, into what has at times proved to be not so much the "light" as the "glare" of the Enlightenment. Yet however harsh that glare might be, at least now the Jews were, theoretically at least, full participants in the common weal of society, equals in a society of "equal justice under law."

But they emerged, as Novak well realizes, with an etiolated theory of what it all meant. No longer politically marginalized, they too had to face the challenge of the Enlightenment, but without the Augustinian resources of the Western churches. The result was that they never really decided whether to be grateful for the emancipation or resentful at the price it entailed. Yet, as Novak also realizes, the challenge to Jews to respond, however ambivalently, to the Enlightenment invitation to join in civil society as equals became unavoidable with their emancipation from the previous hegemony of Christendom. Indeed, one gets the impression from Novak's book that this challenge has still, in its fundamentals, gone unmet:

The greater integration of Jews in the areas of political and social power in society at large, along with the new responsibilities attending to it, calls for a renewed process of ethical reflection in order to allow the normative tradition to realize its potential more fully and begin to operate in the world [emphasis added].

In most parts of the modern world Jews are surely more active participants in larger political and social orders than the more passive resident-aliens they were in pre-Emancipation times. In the State of Israel Jews are participants in a political and social order of their own, for which they can now claim political sovereignty- although that claim is tempered in an age of increasing international dependence.

The political and social reality of Emancipation has brought two kinds of Jewish irresponsibility, of which the Jewish thinker must be aware in order to overcome them. The first irresponsibility has been the uncritical acceptance of Emancipation, especially by intellectuals enchanted by the Enlightenment, which made Emancipation possible. The more radical intellectuals, from the late 18th century on, have been so enchanted by the Enlightenment that they have been willing to see Judaism as something totally past, something totally overcome by progress: the eager rush of the present away from the past into the attraction of its own projected future. For them, the overcoming of Judaism has been a moral imperative. . . . This radical irresponsibility has called for the spiritual and cultural suicide of the Jewish people.

But as Novak mentions, there is also a second danger-or really a second form of the same danger-which is, the wish to justify the tradition in terms of the more overarching and comprehensive framework of the Enlightenment worldview. Christian theologians will recognize this strategy as the classical stance of Schleiermacher and his numerous and influential epigones. Novak, however, adopts a more "Barthian" strategy (though he might not be happy with the analogue):

Less radical Jewish intellectuals have attempted to justify the continued existence of Jewish tradition by criteria more fundamental than itself. Although not as immediately irresponsible as the more radical advocates of spiritual and cultural suicide, their enchantment is nonetheless ultimately irresponsible to the Jewish tradition. On theological grounds, it is irresponsible to the tradition because it changes the tradition's fundamental claim to be the source of truth into a claim to be simply a partial source of truth in terms of some other criterion of truth itself. On ethical grounds, it is inauthentic because it insists on Jewish particularism-be it "Jewish genius" or "Jewish peoplehood"-even when the universalistic criteria it accepts call for the transcendence of such particularism. Particularism of this kind, unlike the transcendence of the general world by the singularity of the Jewish covenant with God, can be presented only as ethnocentricity or chauvinism [emphasis added].

To regard Jews as the only victims is to assume that Jews are a separate species and genocide is not, therefore, a human issue. But, then, was that not the logic of our murderers? . . . The responsibility of the surviving Jewish thinker is to look to the ontological foundations of Jewish ethics and law to insure that Jews themselves will not make similar misjudgments of truth and be led thereby to inauthentic moral choices of what is good. . . . Now, to many it may seem outrageous that I would even suggest that Jews are threatened with the same temptations as were those who devised our extermination. Yet I would remind such critics that in classical Jewish literature from the Bible on it was vigorously asserted that our suffering did not deprive us of our moral personality, that we are always more concerned with our own capacity to sin than with that of others, primarily because we can make only our own moral choices, not theirs.

[The traditionalists'] antithetical reaction to the modern Jewish radicalism they rightly feared and suspected was to deny the new political and social reality and assume that they would immediately recover the authenticity of the Jewish past, a past they often romanticized, . . . [as] epitomized by the motto of the early 19th-century Hungarian rabbinical leader Moses Schreiber: "The new is prohibited by the Torah."

Even the desire for withdrawal from this order, which has characterized again and again a large segment of traditional Jewry, is one that must be negotiated with this new political and social order. But to do this, anti-modern Jews have had to reconstitute themselves as a political and social special interest group in modern secular societies. In exchange for what they see as the religiously authentic return to the insulation of the Jewish past, they have had to adopt basically secular political and social strategies for what they perceive as their collective survival. Accordingly, in their political and social dealings, and especially in their intense economic dealings with the outside world, they have too often regarded the normative Jewish tradition as something to be protected from the modern world rather than as something to be brought into it. Therefore, they have essentially denied its governance and its guidance in major areas of their own lives. In this sense, they have been irresponsible to the concerns of the Jewish people here and now by living in the modern world, benefiting from it, and simultaneously divorcing political policy and social attitudes from being constituted by a more imaginative theological and ethical reflection on the tradition than they are willing to conduct.

But a close reading of its arguments will alert the reader that in David Novak the Jewish community has the potential for a social and political thinker who could well advance the discussion of Jews' relationship to the modern polity in a way roughly similar to what John Courtney Murray achieved for Roman Catholics in the sixties.

This is a large claim, I realize, and its realization would require a later work from David Novak along the lines of Murray's We Hold These Truths: that is, a full-scale theoretical work setting out in detail all the principles that must be addressed, with an attempt to provide at least a theoretical resolution of the dilemmas that seem to be an inherent part of being Jewish in the modern world. But in the work under review we already have the initial materials for so imposing and challenging an edifice, as well as some indication of what such a theory might begin to look like.

Close readers of this important text will notice certain key features that pervade Novak's analysis and that will undoubtedly prove essential to later efforts, both his and others', to provide a viable Jewish social ethic. In the space afforded here, it is of course impossible to discuss all of these features, but there are at least three identifying traits that provide the terms of Novak's ethical analysis throughout his treatment of specific issues. They are: (1) a hostility to the deductive method, (2) a certain Niebuhrian realism, and (3) a frank openness to grounding his ethic on natural law and not on Torah and its later elaboration in halakhah (traditional legal reasoning).

Let us first take his hostility to mere deductivism. In a moment of real shrewdness, Novak has scored most Jewish ethicists for confusing Jewish social ethics with applied Jewish ethics, something entirely different:

When ethical issues are raised, they assume that immediately practical answers are being sought for particular questions, and they take this as their cue to write what in effect are legal responsa. That is probably why so much of their attention has been confined to medical ethics: it is so much more case-oriented than other areas of contemporary ethics.

Moreover, the method of responsa presupposes that both the questioner and the respondent are members of the same normative community, both regarding themselves as answerable to the same authority. But in the cross-cultural context of ethical (as opposed to strictly legal) discussions today, such a supposition, of course, cannot be made at all [emphasis added]. . . . For what is being asked of Jewish tradition today, along with other normative traditions, is guidance, not governance. The normative Jewish tradition can authentically govern only in its own house. Conversely, the error of most liberal Jewish thinkers who enter cross-cultural ethical discussions is that the normative Jewish tradition governs nowhere for them. What governs nowhere cannot offer consistent guidance anywhere.

To confuse rules with principles is to commit a fundamental category error in ethics. Accordingly, the task of Jewish social ethics is not to deduce conclusions from the rules at hand but, rather, to perform the more imaginative intellectual task of attempting to gain insight into the principles that inform and guide the whole normative Jewish enterprise in dealing with the political and social issues. . . . When situations arise for which there are no real precedents, one cannot simply locate a single rule and deduce a conclusion from it in syllogistic fashion. . . . Justification cannot be strictly legal. Even more than the legal judgment of new hard cases, the moral judgment involved in such legislation cannot be concluded simply by deduction.

[Promethean ethics] overestimates its own effective power in history, for it sees its task as being fulfilled by its agents themselves. By so doing it grossly inflates their capacities and continually ignores their finitude, mortality, and fallibility. It fails to recognize how tentative moral action really is. In the normative Jewish tradition, however, it is recognized that many of our practical decisions are often doubtful, and what we have to do here and now might very well be shown to be wrong at the end of history.

It is only in his discussion of natural law that problems in his analysis start coming to the fore. Novak is of course right when he says that "only when there is a common acceptance of a 'nature' can 'natural' law be rationally persuasive," and that any natural law theory derived from Aristotle demands rethinking. It seems doubtful, however, that these assertions would be disputed by anyone today. There is something about Novak's own "rethinking" of this issue that makes the reader suspect that he has misread the tradition and will need to rethink his own position on natural law if it is to do the kind of duty he expects it to in his own proposals. This becomes particularly evident in one of the most important chapters in the book, "John Courtney Murray, S.J.: A Jewish Appraisal." In this fascinating essay, Novak lets us see some of the presuppositions of his thought that do not otherwise emerge into view in the other essays.

Whether or not one agrees with Murray's particularly Thomist presentation of the relation between human reason and what lies beyond it, one can generally agree with him that human reason cannot sustain itself without being located in a larger context of some kind. The question is: What is that larger context if Aristotelian metaphysical nature can no longer perform that comprehensive function?

What Galileo and Newton did to make this system lose its key physical point of reference was to show that heavenly matter like earthly matter is only intelligible, not intelligent. As such, it thereby loses its exemplary status, leaving the human being as the only intelligent being whom we can identify in ordinary human experience or in any valid abstraction from it. Thus the whole system requires acceptance of a physical paradigm that has been consistently inoperative in physical science since the Renaissance [emphasis added].

Nonetheless, let me add that as a Roman Catholic I found Novak's discussion here not just helpful but also fascinating. The public has of course often identified "natural law" positions in ethics with positions it sees as distinctively Roman Catholic, such as the prohibition of birth control. This has been a source of endless confusion-on both sides. But what often goes unexplored in this too-facile identification- again, by both sides-is the real difficulty that a theory based on natural law poses to a religion of revelation, and vice versa. (At least, it is a peculiarly Roman Catholic dilemma; Protestant theologians urge the point all the time.) But it is perhaps an even more painful dilemma for Judaism, which contains so much positive law that makes little sense outside of the grammar of its own religious traditions (based on revelation!). And that is precisely natural law's challenge: "It seems that the adoption of a natural law position would require the authority of God's will, as the prime authority of the halakhic system, to be subordinated to a higher order of right." Or, in other words, "a natural law doctrine seems to subordinate God to something higher."

Novak's solution to this dilemma sounds rather Thomist to this reviewer's hopelessly Roman Catholic ears, a real irony considering his critique of Murray's Thomism. But for all the irony involved, his solution is perhaps the central lesson to be drawn from this uncommonly intelligent book. In any case, the reader will not fail to notice that Novak must in fact revert, whether he will or no, to the hoary nature- grace distinction so prominent in Roman Catholic social and political ethics in order to resolve his basic dilemma of squaring revelation with natural law, and of preserving halakhic validity inside the Jewish community with an apostolic intent to take the insights of the Bible out into the world:

Nature, constituted as the covenant's general background and horizon, is not overcome [by the covenant]. Hence, it functions as a formal criterion of judgment within the covenant itself and its law.

In his defense of natural law within his rather Barthian view of the revealed status of the Hebrew Bible, Novak also reverts to a crucial passage in the Pentateuch where Abraham challenges the Lord bluntly and directly: "Shall the Judge of the whole earth not do justice?" (Gen. 18:25) This semi-reproach by Abraham to God is startlingly reminiscent of Socrates' dialogue with the Athenian seer Euthyphro, who claimed to be doing the will of the gods in lodging a law suit against his father. To justify his behavior, this oracular priest mentions that the gods too treated their parents pretty abominably. Which prompts Socrates to wonder aloud about these tales of divine immorality. And in doing so he explicitly binds the gods to wider moral norms: "Do you think that is the reason why I am being called to trial, Euthyphro, because when I hear anyone telling stories like these about the gods, I somehow find it difficult to accept them?"

It is really quite remarkable how often Novak cites the Euthyphro. But while working through this volume of essays, I kept thinking of the remarks of the great Israeli historian of the Hebrew Bible, Yehezkel Kaufmann, in his book The Religion of Israel. One of the great virtues of Kaufmann's book is his frank admission of a problem too little noted by Novak:

The Bible ascribes to God actions that, to our way of thinking, lack moral grounds, or even run counter to our moral sense. . . . Our moral sense is repelled by certain religious obligations and the penalties for their violation. Jephthah sacrifices his daughter to fulfill a vow, and Abraham obeys YHWH's command to sacrifice his son. Moses hangs the chiefs of the people "for YHWH" and David surrenders Saul's seven sons to a similar cruel fate to avert YHWH's wrath. . . . Ancient exegetes [including Augustine!] were troubled by many of these matters, and modern apologetes attempt in various ways to lessen their sting. . . . It is true that historical monotheism aspired to raise morality to the level of supreme law. Abandoning the amoral universe of magical forces, it conceived the idea of a moral cosmos, whose highest law is the will of God. But this idea arose out of monotheism, and not the reverse. One can discern, therefore, a primary non-moral or supra-moral element in monotheistic faiths: the will and command of God is absolutely good.

It is perhaps these unresolved ambiguities in the natural law passages that make the topical chapters of this book seem so devoid of concrete policy applications. There is something strangely bloodless, almost bromidic, about many of the chapters dealing with such issues as health care for AIDS patients, responding to violence and crime, the capacity for wanton destruction contained in nuclear weaponry, etc. It is as if Novak is himself making a category mistake: so resolute is he not to confuse applied ethics with the theoretical underpinnings of social and political ethics that one comes away from his book with little idea of what specifically the author holds to be moral or immoral, or what specific policy recommendations he would make in the public forum.

Now it is quite true that one will look in vain for such specificity in Niebuhr's Moral Man and Immoral Society or John Rawls' Theory of Justice. But that in a way is the point. This is a book of twelve topical essays, only four of which (at most) can be considered theoretical, the rest being devoted to some of the most burning issues of our time. And whatever one may think of the theoretical speculations of Niebuhr or Murray, one was never in doubt about their position on the political and moral issues of their day, for whenever the forum was appropriate, they were forthright in making their views known. But one is hard put, for example in Novak's chapter on crime and violence, to know if the author supports capital punishment in his resident state of Virginia or not, and if so, under what circumstances. Nor is there much in the way of a discussion of the roots of so much crime (or much criticism of the romance of liberals, liberal Jews included, withthe formalities of justice in court procedure over the doing of justice in meting out punishment and preserving society from the incorrigibly violent).

Or consider the chapter on the wanton destruction of nuclear war. Here Novak rightly instructs his Jewish readers about the need for them to show special sensitivity when faced with this awesome reality. But he completely finesses the question of whether and how much that horrifying prospect would change, ethically speaking, if a nation were ever to become the victim of first use-and the nature of some of the regimes working toward acquiring such weapons makes such first use not unimaginable, including some nations very much in Israel's neighborhood. In addition, one looks in vain throughout this essay for even a nodding recognition of the fact that the danger of nuclear war decreases or increases proportionally according to the kind of regime that possesses the weapons for it. (Israel bombed Iraq's reactor, not France's; and while the number of nuclear weapons in the world has not noticeably decreased in recent years, we still feel safer because of the collapse of an aggressive Soviet empire.)

All this is compounded by Novak's consistent refusal to engage the issue of deterrence head on. Admittedly, the logic of deterrence is tormenting and demands that one stare into the "black hole" of potential outcomes of apocalyptic destruction. But leaving aside the logical-not to mention moral-complexities of deterrence policy, it is nearly unimaginable that any nation with the power to do so would in fact not respond to a nuclear attack on one of its cities, and this quite independent of the a priori morality of such a response, which we can all discuss to our heart's content avant le fait. For one thing, all the talk of the immorality of bombing civilians would ring a little hollow with one or more of a nation's own cities in embers. Yet there is a vague undercurrent of admonition to Israel in this essay about this issue. But surely what is only humanly natural in the psychology of nations at large must also (and I say this without necessarily endorsing its policies in any particular area) be granted to Israel.

There has long been a tendency in both the Zionist and anti-Zionist left to hold Israel to a special norm. This is not helpful analytically, and it undercuts the first basic reality of Israel: that it is in fact a nation and not some eschatological reality set up for the admiration or contempt of the world. Beyond this, idealization of this kind is also one more example of that "politics of perfection" that Novak has criticized so well earlier. It is not that Novak himself necessarily holds Israel to a higher or different standard than other nations, but there is an undercurrent to that effect in some of his remarks, an undercurrent that never surfaces because the author tends to be so terminally vague about specifics. (That it is only an undercurrent and not an active presupposition can be seen in his essay on "Non-Jews in a Jewish Polity," where he recognizes that being one nation among others must cut both ways: "Greater Zionist commitment can indeed be developed in tandem with a rejection of the subjugation of any other people, even on moral grounds." Indeed, one would add: "must be developed.")

These concluding observations are critical, but they have been included only because of high hopes for what David Novak can accomplish in the future in a more consistently theoretical work. We have in him a scholar who possesses an enviable command of a wide range of literature, especially in the complexities of Jewish law. We have as well a man of humane sympathies and wide philosophical and theological interests, matched again by an admirable command of that literature, both Jewish and Christian. What results from this learning in Jewish Social Ethics is a struggle with ethical issues that is so penetrating, so effortlessly enriched with a wide range of reading, and handled with such finesse, that this book will prove immensely beneficial to Christians as well in their own struggle to right the balance in our increasingly demonic world. At one point Novak quotes Alasdair MacIntyre's Whose Justice? Which Rationality? in justification of his effort to draw on the insights of John Courtney Murray. But it is a remark that can equally apply to all of Novak's non-Jewish readers as well, once they finish reading this remarkable book of essays:

Yet the achievement of the understanding of one tradition by the adherents of another . . . in certainly rare but crucial types of cases . . . may lead to a judgment that by the standards of one's own tradition the standpoint of another tradition offers superior resources for understanding the problems and issues which confront one's own tradition.