I From the Hebrew Bible to the Late Middle Ages
The words we use in a given language change their meanings and contexts throughout the ages, being influenced by ever-changing social, cultural, and intellectual circumstances; some disappear, and are replaced by other words, which are better suited to transmit the meaning which the speaker and writer attempts to convey. One of the main methodological errors in reading texts from previous periods is the anachronistic assumption that the current usage is the only possible meaning of a given word. This meaning is superimposed on the reading of such texts, thus completely distorting their meaning. When reading a text from a given period, one should ask, first of all, what has been the specific meaning of a given word in the particular period when the text was written? We should also notice that some words are barely used in a given period, and become popular in other periods; this is also of importance, and has a meaning. Charting the changing meanings of key words in the history of a given culture is a useful means for the understanding of the intellectual transitions this culture went through.
Many key words in the long history of the Hebrew language, such as ummah (originally religious community, now nation), goy (originally people, now gentile), and mofet (in biblical Hebrew, miracle, in the middle ages, scientific proof, now model), for instance, changed their meaning throughout the ages. The history of the evolution of the meanings of the key word dat, throughout more than two millennia, is maybe the best, and most important, example of this phenomenon. It exemplifies, in a nutshell, the changes which the meaning of Judaism itself went through throughout the ages. This chapter will focus on this momentous change, as it evolved since early modern times, when the meaning of the term dat was transformed from law to religion, and Judaism became a religion.Footnote 1
The term dat first appears in the Scroll of Esther, of the late biblical period. It is a Persian word, adopted by the Jews dwelling there. The original meaning of the Persian datan is to give, and by inference to decree a law.Footnote 2 Its original meaning is law, every law, mostly human law; not particularly divine law, or Jewish law. Every people has a particular dat, so do the Jews.Footnote 3 It is quite ironic that a Persian word which originally denotes pagan law, eventually came to designate Judaism, and it is used today more than in any other period, but now in a completely different meaning.
The Sages Judaized this term, mainly in the coinage concerning laws of matrimony: ke-dat Moshe ve-Israel, that is “In accordance with the laws of Moses and Israel.” They however barely used this term; it appeared about twenty times only in the voluminous Babylonian Talmud.Footnote 4 To designate law in general, and divine law in particular, the Sages preferred to use biblical words such as hukkim, torah, and mizvot. They seemed to have managed very well without using the word dat. Today we cannot envision any talk about religious beliefs and practices in general, and Judaism in particular, without the ample usage of this particular term, but its meaning has dramatically changed.
While the sages barely used this term, it became popular from medieval Hebrew on, but its meaning varied. This was the result of the momentous encounter between the biblical and rabbinic traditions with the Muslim cultural environment in which the major Jewish cultural centers existed until about the early thirteenth century. Jewish scholars inherited the new meaning imbedded in the word dat in post-biblical Jewish literature, and connected it to the Muslim-Arabic terminology. The Muslim distinction between din – creed, faith, and sharia – religious law, was translated by some scholars into Hebrew as dat and torah or mizvot, respectively. The term dat, thus received, for the first time, a distinct theological meaning, and denoted belief, not law in particular. This development is mostly apparent in Maimonides’ usage of this term, and was congruent with his revolutionary attempt to turn Judaism into a system based on true beliefs, first of all. Other Jewish scholars of this period, however, continued with the rabbinic usage of dat as law, thus equating it with sharia. Moreover, some, such as Judah ha-Levi and Abraham ibn Daud, did not hesitate to use it in the plain meaning of law in general, including human law, devoid of any theological connotations, as it originally appears in the Scroll of Esther.Footnote 5
This last meaning of the term became dominant in the philosophic-theological literature produced in Hebrew by Jewish scholars active in Christian Southern Europe in the late Middle Ages. Most scholars adopted the reading of dat as law, even human law. They rejected the Maimonidean usage, which will surface again only in early-modern times, due to completely different influences. The term dat became more and more synonymous to another popular term, nimus, an originally Greek word (nomos) which was transplanted into medieval Hebrew through its Arabic usage (namus). Nimus generally means strictly human law.Footnote 6 There are numerous examples of this usage of the term dat in late-medieval Hebrew literature. It climaxed with Joseph Albo’s famous definition and classification of law at the beginning of his Book of Roots (Sefer ha-Ikkarim, Castile, mid-fifteenth century).Footnote 7
Albo consistently used the term dat for every kind of law: from divine law, through natural law,Footnote 8 to human law. He was apparently already influenced here by Thomas Aquinas, who adopted the Latin lex to the Christian definition of Divine law (lex divina); Albo did the same with the Hebrew dat.Footnote 9 The Christian-Latin legal vocabulary started to influence the manner by which Jewish scholars read, interpreted, and used the word dat, a phenomenon which will increase in subsequent centuries.
Albo’s new definition and classification of dat as law had a profound influence upon late medieval and early modern Jewish scholars. They started more and more to use this term to denote law, every kind of law, not specifically divine law or Jewish law, and often plain human law of every nation. We can find the influence of Albo’s definition and classification among many Jewish scholars, up to the late Jewish Enlightenment in the nineteenth century.Footnote 10
Moreover, various Jewish scholars systematically started to translate the Latin lex, and vernacular terms for law (such as legge, loi, legal) into the Hebrew dat; they preferred this term to other available Hebrew terms, which were often more appropriate, such as hok, nimus, and din. A later, fascinating example is the usage of this term in the Hebrew translation of the Declaration of Human Rights of the French Revolution, published in The Hague in 1794, after the French conquered the Netherlands and emancipated the Jews. Here the Hebrew dat was systematically used for the French loi. For instance, the famous sentence: “la loi est l’xpression de la volunte general,” was translated into: “The law (ha-dat) speaks for the whole people.”Footnote 11
Moreover, the term dat started more and more to specifically denote human law (dat enoshit) only. Quite a few scholars of this period refused to use it in any specific Jewish-theological context. They used it only to denote human and natural law. For divine law, they preferred to use terms such as torah and mizvot, but never dat. This was in order to sustain and amplify the inherent distinction between human and divine law. This shows that the usage of dat to denote only human law became commonplace in their environment, thus their refusal to use it for divine law.Footnote 12
The main example for this phenomenon is Isaac Abravanel (Portugal-Spain-Italy, late fifteenth century), who not only, like others, systematically used this term only as human law, he also emphatically argued that only the Mosaic Law should be called Torah, while human law of the various nations should be called dat or nimus, never torah, otherwise the inherent difference between them might be blurred, thus undermine the pure divine essence of the Mosaic Law.Footnote 13
II The Early Modern Period
Particularly when the term dat was used as strictly law, mostly human law, devoid of any Jewish-theological contexts, the next revolutionary transformation of the meaning and usage of this term occurred. Dat started to acquire the meaning in which it is universally used today, as a religion, a set of theological beliefs and rituals, where the practical commandments are considered a derivation thereof. The legal components this term contains are weakened, and in any case, it started to relate to divine law only. While late medieval Jewish scholars used this term to denote human law, as distinct from divine law (Torah), in the modern usage it acquired a distinct theological meaning: dat became religion in its modern sense; nobody uses it to denote law anymore, definitively not human law. While Maimonides was quite unique among medieval Jewish scholars in his usage of this term as a set of theological beliefs, first of all, this particular meaning became ubiquitous in modern times. It is not translated any more into lex, loi, or law, but into religion, belief, creed, or confession, another term borrowed from Christianity. The evaluation of this momentous transformation is the focus of this chapter.This revolutionary transformation of meaning and usage was directly influenced by the earlier transformation which occurred in early modern Christian thought, following the Reformation, in the meaning of the old Latin term religio. This term, which originally denoted God fearing, was used through the Middle Ages to describe strictly Christian worship. Now it was transformed into religion, a set of theological beliefs, first of all, and was applied to every so-called religious phenomenon, Judaism included. Christian scholars started to identify Judaism as a religion, and applied Christian terms when describing Jewish beliefs and ritual.Footnote 14 See for instance the following classification of world religions by a Seventeenth Century English scholar, Richard Baxter, in his The Reasons of the Christian Religion (London, 1667):
Four sorts of Religions I find only considerable upon earth: The meer Naturalists, called commonly Heathens and Idolaters; the Jews; the Mohametans; and the Christians. The Heathens by their Oracles, Augures and Auspices, confess necessity of some supernatural light; and the very Religion of all the rest consisteth of it.Footnote 15
Judaism had become a religion, just like any other, seen and described from a Christian vantage point.
Jewish scholars, especially those who started to write in the vernacular since the seventeenth century, were influenced by this new trend. The changing terminology influenced their discussion of Jewish beliefs, rituals, and commandments. Consequently, they adopted the Protestant emphasis of religion as belief or creed, first of all. Later on, nineteenth-century Jewish scholars who wrote in Hebrew followed in their footsteps, and directly equated between the Hebrew dat and the vernacular “religion,” and even used a transliterated form in Hebrew letters. The identification of dat and “religion” was finalized.
Judaism was traditionally identified as an unbreakable combination of three components: Halacha (Jewish Law), theological beliefs, and ethnic identity. Following early modern processes, such as the Reformation, the Enlightenment, secularization, the emergence of the modern nation-state, and emancipation, this combination started to disconnect, and the new religious aspect became more and more dominant. Some Jewish scholars, especially those who were more absorbed into early modern European culture, adopted the new Protestant vision of religion. They applied it to the Jewish context, and attempted to disconnect the new religious component from the old legal and ethnic components of Judaism, which they deemed to be less and less relevant to their modern existence and identity, and thereby purify it. They attempted to convert Judaism into a religion based on rational monotheism and universalistic ethics. More moderate scholars, and even those who apparently rejected this process, for halachic or national reasons, were also influenced by this transformation in due time, in various ways, albeit unconsciously; nobody could escape its powerful influence.
This process first started with Jewish scholars who dwelt in big urban centers, and were more integrated into the surrounding Christian-European culture, such as Simone Luzzatto in Venice, Manasseh ben Israel and Spinoza in Amsterdam, and Moses Mendelsohn in Berlin, and culminated with German-Jewish scholars of the nineteenth century.Footnote 16 The fact that some of these scholars, such as Manasseh ben Israel and Spinoza, came from a Maranno background, intensified this process. Marrano Jews rejected Christianity, but their religious mentality originated from it, thus their tendency to identify religion, Judaism included, with belief, not law. All the more so, since they were forced by circumstances to hide their Judaic tendencies, they turned the inner subjective religious experience in to a central component of their mentality. The emphasis on both theological beliefs and the inner subjective religious experience thus became the cornerstones of this new identification of Judaism as a religion. They took this mentality with them when they returned to Judaism. They were the first ones who redefined their Jewish identity, and they did it with Christian tools.Footnote 17In his Discorso supra il state degli Ebrei in Venezia (Venice, 1638), Luzzatto was the first Jew, known to me, who directly identified Judaism as religion (religione in Italian), just like any other:
Although the Jews were different in their religion (religione) from any other people, they were not allowed to declare war on a neighboring people for religious purposes. … Religion is the strongest partnership which binds human society together …. This is why the Jews consider all those foreign to their religion (loro religione) to share in a common humanity, as long as they follow the rules of natural morality (naturale moralita) and have a certain understanding of the cause of causes.Footnote 18
Luzzatto was the first Jew who used the phrase: “The Jewish religion” (religione hebrea).Footnote 19 He relates to the old Latin meaning of religio, as God fearing and Divine worship, but charged it with the new Christian meaning which evolved in Europe during his period, and superimposed it on his understanding of Judaism; religio was transformed into the Italian religione, and religione was now applied to Judaism.
The context of Luzzatto’s discussion is clearly universalistic, not particular-Jewish. The term religione is used here for every faith, Judaism included. He argues that Judaism is the one and only true religion (la vera religione),Footnote 20 since more than any other religion it is based not only on the particular commandments (riti), which obligate Jews only, but also on universal moral laws (legge), which obligate all humanity (li precetti della naturale moralita), that is, natural law. The example he brings is that Jews are forbidden to wage war on other people not because of their particular commandments, but because of the moral universal laws which are imbedded in the Mosaic legal system (legge Mosaica). Judaism is described by him as the only religion which takes care of the well-being of the entirety of humanity.Footnote 21
Luzzatto emphasizes that the Jews were commanded to teach the gentiles only the basic moral and monotheistic percepts, and forgo delivering them any knowledge of the particular divine revelation of their nation, and definitely nothing concerning their particular commandments.Footnote 22 The emphasis clearly shifts to a universal moral-theological worldview, which is typical of the modern understanding of religion. He empathetically uses for God the old Aristotelian term una causa superiore (cause of causes), a universal God, not the particular Jewish deity.
Moreover, he insists on the willingness of the Jews to fully obey the laws of the countries in which they dwell. This principle, of Dina de-malchuta dina (the law of the state is a [biding] law), is a well-ingrained ancient rabbinic dictum, and Luzzatto emphasizes it here in order to quell the suspicion of the Venetian authorities concerning the loyalty of its Jewish inhabitants to the republic. Still, it clearly shows that he embraces here the evolving concept of the modern state, that demands from its inhabitant’s full public obedience to its laws, while religious commandments and beliefs became more and more a private matter of the believer, based upon internal persuasion. The judicial power of coercion gradually moved from the religious authorities to the secular state. This is another facet of the evolving modern definition of religion which Luzzatto adopted and applied to the Jewish context.
All the more so, Luzzatto adopted the revolutionary Machiavellian view which considered religious belief and ritual a useful means for the sustenance of an ordered political community. Religion was delegated from its lofty state of a spiritual end to a utilitarian means, in contradistinction with the traditional medieval view which considered temporal political life as subordinate to spiritual ends. This influence is apparent in Luzzatto’s forceful refutation of Tacitus’s vicious defamation of the Jews in the Fifteenth consideration of the Discorso.Footnote 23 Tacitus argued that the Jewish religion caused the Jews to behave in an immoral and politically destructive manner, which brought upon the demise of their independent existence. Luzzatto refuted his accusations by arguing that the opposite is true; Judaism is the only true religion (vera religione) particularly because it is a rational religion, based on human initiative, and not on superstitions, which are contrary to natural laws and reason, and lead humans to lazy and passive existence, just as Machiavelli so boldly insisted, referring to the medieval Catholic experience. These are the ingredients he identified in the false religions; the Jewish vera religione, on the other hand, ensures the well-being of the people and the efficient functioning of the state. While Machiavelli complained that Catholicism created passive humans, detached from political reality, Luzzatto argues that the Mosaic law creates active and industrious people, who benefit the body politic.Footnote 24
Luzzatto thus followed the Machiavellian revolution which rejected the medieval Catholic view that the state should be subordinated to religious authorities and purposes, and argued the contrary, that religion has to serve temporal political ends. Thus, Luzzatto first internalized the new Christian meaning of religion as faith. Still he continued to describe the Mosaic law as a religion of the law, but this time in its new Machiavellian transformation, as a utilitarian political means. From both vantage points, he embedded the Italian religione, as applied to Judaism, with a new modern meaning.Footnote 25
What Luzzatto did in Italian, Manasseh ben Israel and Spinoza did in Amsterdam later in the century, both in Latin, Spanish, and English, and later on, in the late eighteenth century, Moses Mendelssohn in Berlin, writing in German. Luzzatto’s influence upon Manasseh ben Israel is well known,Footnote 26 and he probably influenced him also here. There is a difference between the meaning in which the word dat appears in Manasseh ben Israel’s Hebrew writings and the meaning in which the word “religion” appears in his non-Hebrew writings. In his Hebrew Nishmat Hayyim, he clearly distinguishes between the terms torah and dat. Like Abravanel, and many others previously, torah is specifically identified with Jewish law, while dat means human law, thus not associated with Judaism specifically.Footnote 27
In his non-Hebrew writings, however, the word “religion” starts to appear in its new meaning. Manasseh ben Israel’s Esperanza de Israel (The Hope of Israel), was originally published in Spanish (Amsterdam, 1650), and almost immediately appeared also in Latin and English editions. It discusses the then popular issue of the whereabouts of the lost ten tribes of Israel, and attempts to find them somewhere in America.Footnote 28 He based this hypothesis on the testimony of a Portuguese Jew who claimed to have encountered them (apparently some native-American tribes in whose traditions he fancied to find some resemblance to Jewish rituals), when visiting South America. This person is described as: “Portugues de nacion, Iudio de religion”;Footnote 29 Portuguese by his nationality, a Jew by his religion. At such any early stage in the development of the modern nation-state, his national identity and his religious identity are already separated.Footnote 30 In another place, Manasseh ben Israel relates to a testimony on a meeting between a Jesuit and a Jew in China. The Jew confused between Judaism and Christianity, considering them to the same religions (su misma religion);Footnote 31 while a certain Spanish nobleman who converted into Judaism is described by Manasseh ben Israel as he “who adopted our religion” (nuestra religion).Footnote 32
The same phenomenon can be found in Manasseh ben Israel’s English writings. His Vindiciae Judaeorum (London, 1656) was published in an effort to persuade the English authorities to permit the resettlement of the Jews in England. Judaism is repeatedly described here as a “religion,” just as Christianity and other religions.Footnote 33 The same goes for his famous letter to Cromwell, the Humble Addresses, where Manasseh ben Israel proudly calls Judaism “Our Religion,” but, with the same pride, also: “The Nation of the Jews.”Footnote 34 He makes a clear distinction between the religion of the Jews and their laws,Footnote 35 and uses the expression “Judaical laws” when referring to the permission the Jews received to live according their laws from the various governments in the countries in which they dwell.Footnote 36 The new distinction between religion and law was thus very clear in his mind.
Spinoza, Manasseh ben Israel’s contemporary, and fellow resident of Amsterdam, continued this process. In his revolutionary Theologico-Political Treatise (Tractatus Theologico Politicus), written in Latin, he consistently distinguished between religio and lex; religio denotes beliefs, customs, and rites,Footnote 37 while lex, legis, denotes law, divine, natural, or human.Footnote 38 Only when he relates to the specific laws of the Biblical Hebrews (Tractatus, ch. 17), Spinoza connects between the two, but he makes it clear that in his view these laws are not applicable any more after the Hebrew state ceased to exist.The last in this series of early modern Jewish scholars who adopted the new term religion and applied it to Judaism, is Moses Mendelssohn, already on the eve of the Jewish Enlightenment. In his Jerusalem or on Religious Power and Judaism (Jerusalem oder uber religiose macht und Judentum) (Berlin, 1783) he brought this process to fruition. At the very beginning of this treatise Mendelssohn boldly declares:
State and religion – civil and ecclesiastical constitution – secular and churchly authority – how to oppose these pillars of social life to one another so that they are in balance and do not, instead, become burdens on social life, … this is one of the most difficult tasks of politics.Footnote 39
Mendelssohn uses the same German term (verfassung) for both civil and religious legislation, but it is clear that in his view they denote two entirely kinds of laws, thus cannot be in a state of competition, but should exist parallelly in peace:
Here we already see an essential difference (ein wesentlicher unterdhied) between state and religion. The state gives orders and coerces, religion teaches and persuades. The state prescribes laws (gesetze), religion commandments (gebote). The state has physical power and uses it when necessary; the power of religion is love and beneficence.Footnote 40
These are not just two sub-kinds of the law, but two completely different legal entities. For him the term gesetze (law) covers every kind of law, the law of reason (gesetze der vernunft), the law of nature (gesetze der nature), and human law. Religious commandments (gebote) are something else altogether; they are no law. Unlike state laws, they have no compulsory status; they should be followed only by voluntary choice. The emphasis that religion is a matter of love and beneficence, and not of binding laws, is of course Protestant in essence, and is now superimposed of his concept of Judaism. In the Medieval Jewish communal organization, the power to excommunicate (herem) was essential in order to force members to follow Jewish law and obey its official interpreters; the case of Spinoza is one late famous example, which did not work anymore. Now, when Mendelssohn rejects this coercive power as not relevant anymore, the traditional identification between law and religion in Judaism is eliminated.
Mendelssohn had to confront the Christian allegation that Judaism is an essentially political religion (religioser regierung), based on the duty to follow its biding laws, where religious authorities have the power to enforce obedience (macht und recht der religion).Footnote 41 Thus, they concluded, it competes with state laws, a situation the state cannot allow. Mendelssohn did agree that Judaism is essentially different from Christianity, being based on practical commandments and not on binding beliefs. However, he contended, following the commandments is essentially different from obeying state laws, since the former is based on voluntary choice and the power of loving persuasion, while the latter is based on coercion. Like Spinoza, he argues that the political nature of Judaism and the power of legal coercion were abolished long ago, in the early biblical period. When monarchy was established, the power of coercion was transferred from the religious authorities to the king, and they retained only the right to persuade by love and kindness. The traditional connection between Judaism and legal coercion is thus severed by Mendelssohn, enabling the Jew to become a true citizen in the modern state, where only one system of the law is binding. Judaism was transformed into a religion of universal monotheistic beliefs and ethical values, where obeying the commandment became a completely voluntary matter.
The distinction these early modern Jewish scholars made between law and religion, and the weakening of the connection between them, follows the Spinozian tendency to separate religion and the state. The Christian distinction between the spiritual and temporal authorities was secularized, and transmuted into the modern separation between religion and the state. Theological beliefs and rituals were now left to the realm of religion, while the laws, which regulate social life, fell under the authority of the state. Whatever religion represents became the matter of the religious community, while whatever the law represents became the matter of the state. While membership in a religious community and obedience to its rules became voluntary, the obedience to state law was now binding. Judaism, now a religion, like any other, was gradually dismantled from its abiding legal component, and became a matter of private voluntary beliefs and rituals.
III The Jewish Enlightenment
The identification of Judaism as “religion,” and consequently the radical change in the meaning of the Hebrew word dat, will fully ripen with scholars of the Jewish Enlightenment who wrote in Hebrew, all the more so those who wrote in other European languages, mainly German. This change is expressed on two levels: first, the final identification of the term dat as religion, in its new Protestant meaning; second, and following it, the usage of this Hebrew term became widespread, in dimensions unheard of hitherto, and gradually replaced traditional popular terms, such as Torah. These scholars not only purified Judaism from its strict halachic component, but also tended to reject its ethnic (now turned national) definition. They now tended to define it as a purely rational monotheistic religion, based on universal ethics. This tendency was later enhanced by Romantic Protestant influences which described religion as an amorphous feeling of awe and veneration of the sublime. All in order to enhance their own integration as equal citizens in the new nation-state, as German, French, or English citizens of the Jewish faith.This can be clearly demonstrated by a series of new definitions of Judaism made by early nineteenth-century Jewish scholars. The very fact that they found it useful to make such new definitions, is clear proof of the need they found to redefine Judaism, under the pressure of their new circumstances. Most premodern Jewish scholars never bothered to define Judaism: its meaning was self-understood as far as they were concerned; now nothing was self-understood anymore. Let’s look at a few typical examples. Gotthold Salomon, a German-Jewish scholar with reform tendencies, who was already influenced by the new romanticism, defined the Jewish religion in 1801 as follows:
Religion means to us the holy owe and reverence with which the infinite fills us …. It means for us the conviction and that way of thinking with which the human being expresses his own relation … to the fullness of creation.Footnote 42
In the opening statement of the new Jewish-German periodical Sulamith (1806), we read the following:
Religion is the most essential intellectual and moral need of the cultured person. The purpose of Sulamith is to describe this religion in the most exalted manner. Sulamith strives to rouse the nation (nazion) to respect religion. This means those truths which alone are worthy to be called religion. It aspires to revive the urgent need for the religious feelings and concepts, but, at the very same time, it strives to pay attention to the truth – that the concepts and commandments which are included in the Jewish religion are not harmful in any way to the individual or to society at large.Footnote 43
One of the radical Jewish Maskilim, Yehudah Leib Ben Ze’ev, published in 1811 a bilingual (Hebrew and German transliterated in Hebrew letters) Jewish catechism for youngsters. In the opening statement, he defined the term dat as follows: “What is divine religion (dat elohi, religion)? It is the teaching of beliefs (emunah, gloibens) and the practical laws (mishpat, gezetzen), which God gave humans, according to which they should act during their lifetime in order to achieve eternal bliss.”Footnote 44 In another Jewish catechism, A Manual of Judaism (London, 1835), this time in English, Joshua van Oven defined Judaism as follows: “Religion is an inward feeling of awe and veneration, induced by the knowledge of the existence of an omnipotent and eternal God, the creator, preserver, and regulator of the universal, whom we strongly feel bound to worship and adore.”Footnote 45 All these definitions, something between pietist Protestantism and Enlighted Deism, are completely universal. The direct influence of the Protestant-originated German philosophy of the time – from Kant to Hegel – is strongly felt here. This influence caused the so-called “Protestantisation” of Judaism, from a religion of law into a religion of personal awe and veneration of an amorphous God. These tendencies strongly influenced the formation of Reform Judaism. With the Americanization of Judaism later in the Nineteenth century, it was even more emphasized. This process culminated with the Reform Pittsburgh Platform (1885), which proclaimed Judaism to be a pure universal religion, devoid of any ethnic component, and almost eradicated any legal- halachic component from it. Judaism is defined as “a progressive religion ever striving to be in accord with the postulates of reason.”Footnote 46 Judaism was transformed into one of the legitimate American creeds.
Moreover, from now on, and practically until today, we can find an abundance of newly created hyphenated terms, which add a descriptive word to the vernacular “religion” or the Hebrew dat, in order to make clear the specific meaning that a given scholar ascribes to it, such as Menschenreligion (Human religion), Religion des vernunft (Religion of reason), Religion der that (Religion of actions), or Religion des geistes (Spiritual religion) in German, or dat ivrit (Hebrew religion), dat ha-ruah (spiritual religion) in Hebrew, and many more. The plain word dat was not sufficient anymore to express the new specific meaning now ascribed to religion or dat. Traditional terms such as dat Israel (the law – or religion – of Israel) or dat ha-Torah (the law – or religion – of the Torah), which served so well many generations of Jews, were not sufficient anymore to capture the many nuances the Jewish identity acquired in modern times. Franz Rosenzweig succinctly called this phenomenon: “Hyphenated Jews,” a typical phenomenon of the so-called modern hyphenated identity: “This is a problem of one generation, mostly a century; there are Christian Jews, national Jews, religious Jews … emotional Jews, traditional Jews. In short, various hyphenated Jews shaped by the nineteenth century.”Footnote 47 Additional creative combinations, such as “religious beliefs,” “religious experience,” “religious meaning,” “religious values,” and so forth, continue to appear as time goes by. They are all created in order to suit the needs of the modern believer, who identifies dat as a set of theological beliefs or a vague religious experience, no more as strictly law. The traditional dat Israel is not sufficient anymore to capture such nuances.
Likewise, many of these scholars also rejected traditional terms for Jews and Judaism, which acquired a negative meaning in the surrounding Christian environment, and preferred to use other terms, neutral or positive in their view, which seemed to be more respectable, such as Mosaische Religion (the Mosaic religion), Israelitische religion (the religion of Israel), over such terms as Judische religion (Jewish religion). They preferred to call themselves de confession Israelite (of the Israelite confession) or de confession mosaique (of the Mosaic confession) instead of the negatively loaded Jude or Juif, while American Jews preferred to call themselves “Hebrews,” instead of the loaded “Jews.”Footnote 48By the early nineteenth century this new definition of Judaism and the Hebrew dat as “religion,” started to influence also East European Jewish maskilim, such as the above mentioned Yehudah ben Ze’ev, maybe the first Jew to directly equate religion and dat. Appropriately, he clearly moved the emphasis of Judaism from obeying the practical commandments to theological beliefs:
Even if a person will transgress any of the commandments by mistake, he will not cease to be a member of the religion (dat). However, if he will be ignorant of one of the principles of religion and mistakenly hold unto a false view, he will cease to be a member of the said religion. Whoever does not believe in the unity of God or will attribute corporality to his creator, will not be a member of the Hebrew religion (dat Ivrit), even if he will fulfill all the commandments of the Torah.Footnote 49
ben Ze’ev strongly criticizes the abundance of commandments in Judaism and the severity of the halachic restrictions, which suffocate the believer. He insists that following the commandments automatically, without understanding them, and without the right intention, is futile. What is essential is the intention of the heart (kavanat ha-lev) and the understanding of the heart (havanat ha-lev).Footnote 50 This emphasis on right beliefs and the inner religious experience is clearly influenced by the new Protestant-Romantic views, now dressed in Jewish garb.
In his Teudah be-Israel (The Mission of Israel, Vilna, 1828), Isaac Ber Levinson makes ample use in the new term dat Ivrit (Hebrew Religion), coined by ben Ze’ev, and in addition uses traditional terms, such as dat ha-Torah, and dat Yehudit, in their new meaning, as religion. Levinson charged dat Ivrit with a broad national-cultural meaning, in his struggle to fulfill the aims of Jewish Enlightenment, especially the reform of Jewish education, to include also secular studies, the modernization of the Hebrew language, and the productization of Jewish economic life. He distinguishes between dat ha-Torah, which is based on the authority of revelation, and dat Ivrit, which is based on what reason teaches us.Footnote 51 Judaism is transformed from a theological system into a broad national culture which combines the authority of the Torah with the teachings of reason. Influenced by the emerging national movements in Europe, he identifies Judaism not just as religion, but primarily as a national-cultural entity which contains a religious component.
This tendency is strengthened in Levinson’s later Beit Yehudah (House of Judah, Vilna, 1839). In the very beginning of this treatise he directly equates the Hebrew dat with the vernacular “religion” (in Hebrew transliteration), and later on, he translates it into dat toratit (dat of the Torah) and dat Elohit (Divine dat) specifically.Footnote 52 From among the various kinds of dat (as law), this is the only kind which is directly equated with religion. Moreover, he even identified the Hebrew emunah (belief, equated with the German glaube in Hebrew transliteration), as specifically religion, and admits that this identification was influenced by Christianity.Footnote 53 Levinson concludes that the Mosaic religion is the only one which is a philosophical religion (eine phlosofishe religion, in Hebrew transliteration),Footnote 54 since it is the only one which combines all three kinds of law as classified long ago by Albo: human law (dat nimusit), natural law (dat tiv’it), and divine law (dat elohit).Footnote 55
This attitude was typical of various Enlightenment and Reform Jewish scholars in Germany, and those East European scholars who were influenced by them.Footnote 56 An exceptional figure is Shmuel David Luzzatto who was active in Italy in the first half of the nineteenth century. He was a typical Italian rabbi, who easily combined strict orthodoxy with openness to the general culture. Luzzatto was unique in his critical attitude towards various facets of the Enlightenment, which German Jewish scholars so enthusiastically embraced. He rejected the anti-religious and anti-traditionalist tendencies of the radical Enlightenment, and what he viewed as its ultra-rationalist and individualistic tendencies. Following his pessimistic view on human life, Luzzatto was skeptical of the optimistic theory of human progress. He was strongly opposed to the effort to modernize Judaism, and argued that it would necessarily lead to assimilation. Luzzatto’s emphasis on Jewish tradition over reason was clearly influenced by Romantic anti-Enlightenment tendencies of his period.
His religious views crystalized on the background of these influences. Although he was a strict orthodox Jew, and fiercely rejected reform tendencies, still also Luzzatto was influenced by the new Protestant concept of religion, albeit unconsciously. This was the outcome of his imbedded ambivalence towards the Enlightenment project. Although he wrote in Hebrew, and did not have to use vernacular terms at all, still Luzzatto chose to consistently use the term “religion,” in Hebrew transliteration, instead of using the Hebrew dat, which should have been his natural choice. Still, the Hebrew term does not appear even once in his Yesodei ha-Torah (The Foundations of the Torah), nor in his other Hebrew writings; It is consistently replaced by “religion.” This only shows how deeply he internalized the Christian religious vocabulary.Moreover, it was not only a matter of the term Luzzatto chose to use, this is also clear from the views which he expressed. The whole texts open with this term; It is anachronistically applied to Judaism from its very inception: “This religion was bequeathed to the people of Israel from their fathers Abraham, Isaac and Jacob.”Footnote 57 And later on:
This religion was sufficient for the people of Israel as long as they were only one family. However, when they became a people, and it was time to bring them to the land that God promised their fathers to give them, God decided that they need laws and ordinances to guide them in the right path, for the amelioration of their values, for the perfection of their society, and for the preservation of the religion. So that they will not leave it and follow the gentiles who surround them, and remain without a religion. This is why He gave them this Torah which Moses placed in front to the people of Israel.Footnote 58
In doing so Luzzatto practically gave a traditionalistic justification for the usage of this originally Christian term, with all its Protestant connotations. It is clear from this that in his view, this religion was originally a matter of monotheistic belief. The need for laws came only later, when they became a people and settled in the promised land. The Mosaic laws are presented as a necessary means to sustain and preserve the religion itself. By doing this, Luzzatto practically adopted the Christian definition of religion as primarily belief, and superimposed it upon his image of traditional Judaism. Thus, not only Enlightenment Jews, but even so-called orthodox Jews started to internalize and use the Christian term “religion,” with all the connotation attached to it, albeit unconsciously, and reinterpreted their image of Judaism thereby; the influence of the surrounding culture was so powerful. This phenomenon will only increase in the forthcoming generations, as we shall see in the following; nobody could escape modern religion.
IV Early Twentieth Century
The last scholar who championed the definition of Judaism as rational monotheism, of the Kantian kind, was Hermann Cohen, who created the famous hyphenated term “religion of reason” (religion der vernunft), in his great theological system, published already at the beginning of the twentieth century.Footnote 59 It was the epitome of the so-called “Protestant Judaism.”Footnote 60 Scholars of the next generation, such as Franz Rosenzweig, Martin Buber, and Aharon David Gordon, will lead the concept of Judaism as religion to new and different directions: from reason to subjective personal experience, from religion to religiosity. They will continue with the criticism of halachic Judaism as oppressive, and identify the core of Judaism in the religious experience of the individual, but now this experience will no more be rational, Cohen style, but existential. As they rejected halachic orthodoxy, they also rejected the alternative of a rational religion; both were deemed to be oppressive and subjugate the creative spirit of the individual believer.
Franz Rosenzweig was strongly influenced by Cohen in his process of return to Judaism, but developed a system of existential Judaism, which was very remote from Cohen’s rational Kantian views. He was the one who practically completed the process of the Protestantization of Judaism. Rosenzweig almost converted to Christianity in his youth, and considered it to be a true divine religion, alongside Judaism (so unlike his blatant negative view of Islam!). However, more than Judaizing Christianity, he Christianized Judaism. Due to his assimilatory education, he was better cognizant of Christianity than of Judaism. He read the Hebrew Bible from a distinct Christian point of view, and his knowledge of the rabbinic teachings was very limited at best. The very fact that he preferred the Bible over the oral Torah is in itself proof of a clear Christian orientation. His view of Judaism was anchored in a Christian vocabulary.Footnote 61 Rosenzwig’s very ambivalent attitude towards Jewish law also fits very well into this description.
Rosenzweig rejected Zionism, and considered Judaism to be a religion, in the distinct meaning he applied to it, and not a nation. Turning Judaism from a revelation of the divine law or a revelation of reason – both of which reject Christianity, into a revelation of love, in a distinct Protestant-Pietist sense, is clear indication of this attitude. For Maimonides, the Knowledge of God was the first and most important commandment; for Rosenzweig it was the Love of God. While in the Jewish tradition revelation occurred foremostly at Sinai, for Rosenzwing it is exemplified in the dialogue of love in the Song of Songs, in its allegorical-Midrashic interpretation, which turned it into a tale on the love between humans and God. Loving God, the most significant religious duty, necessitates in his view also the love of our fellow humans, henceforth the connection to Buber’s Dialogical philosophy which was taking shape at that very same time. His was a distinct existential tendency, which emphasized the inner experience of the individual and his relationships with others – human and divine, as he says in one of his letters: “Jews and Christians alike deny the basic ethical-religious idea (the love of God and the love of your friend), which is common to both.”Footnote 62This tendency culminated with Martin Buber. Buber was the first one to introduce the term “religiosity” (religiositate, datiyut in Hebrew) to the Jewish context. This is yet another example of the need to create new conjugations and hyphenated terms in order to express the changing meaning of Judaism. Buber made a clear distinction between religion and religiosity:
Religiosity (religiositate) is a human emotion, which is forever renewed. … The feeling of amazement and admiration in a person, which is beyond his ever-changing mode and dependence, there is something absolute …. Religion is the culmination of all customs and rules by which the religiosity of a specific period in the life of a people is expressed. It regulates the halachic rules and commandments given to all subsequent generations, as an ever-binding law, without any regard to religiosity, which is perpetually renewed. … Religiosity is the creative force; Religion is the organizing principle.Footnote 63
Buber identified this religiosity with the perpetual renewal of the authentic inner feeling of awe for some absolute entity a person desires to connect with. This in contrast with “religion” (dat), which is identified by him as the external organizing facet of this religiosity, which tends to be fossilized in time; he identified this with Halachic Judaism. Buber transferred the focus of Judaism from religion, which he deemed to be its formal, external, and institutionalized manifestation, to religiosity, which is its inner, spontaneous, vital, and individualistic true expression. He identifies the new hyphenated term he created – Jewish religiosity – as “A pure divine feeling,”Footnote 64 and anachronistically reinterpreted the whole Jewish history on the basis of this idea, in order to legitimize it as an authentic Jewish creation, albeit its clear Protestant sources which he tended to overlook. In many respects, he adopted here Kierkegaard’s religious-Christian existentialism, and dressed it in Jewish garb. Although he understood that this religiosity cannot be a matter of individualistic experience only, and needs some kind organized expression, still Buber was reluctant to make clear rules lest it would degrade into an oppressive system like rabbinic Judaism. He was very conscious of the human need to live in an organized community, but instead of the oppressive rabbinic system, he preferred the new national Jewish entity which was developing in Palestine.
Religion as the spontaneous experience of the individual is also at the core of Aharon David Gordon’s thought. It is ironic that the hyphenated term Dat ha-avodah, that is, “the religion of labor,” which is so associated with him, never appears in Gordon’s writings, and he himself rejected it. Yet, it well illustrates the centrality of human labor in his thought, and the strong relationship between his religious orientation and the concept of labor, especially working the land, as the supreme human value. Influenced by Romantic-Tolstoian ideas, he described labor, and through it the direct connection with nature, religiously, as the true worship of God. Tilling the Land of Israel became for him a substitute for the exilic-halachic existence. The Kibbuz movement adopted this religious interpretation of labor.Footnote 65
The very fact that Gordon’s views were defined as dat (despite his indignation), the fact that the hyphenated dat ha-avodah was quickly absorbed, and became popular among Hebrew speakers, well illustrate the amorphous, fluid nature the word dat acquired, so much that it became possible to use it in order to define and illustrate ideological tendencies which are very remote from its original meaning, even secular views which are completely detached from it. This tendency increased as time went by, as we shall see in the following.Like Buber, Gordon also grew up in the Halachic world, but rejected it as an oppressive institution. Still, although he stopped following it, he was full of empathy to the world he left behind, and tried to inject religious components, a certain kind of religiosity, into the life of the Haluzim of the Second Aliyah. Like Willian James, he identified the powerfulness of the religious experience in the very fact that humans are never indifferent to it; they adopt it enthusiastically or reject it ferociously. Gordon defined it, however, in a distinct Deist-Pantheistic manner, which identifies God as a natural force. This is a subjective, authentic, and spontaneous personal experience; it is the direct instinctive bonding the individual and community with existence and nature, without the belief in divine providence, or obeying halachic norms:
Religion (ha-dat) is the feeling of the full unity of the whole existence and its supreme and complete harmony. … Religion has no other basis, no other expression, and no other proof but emotions and their modes of expression. … Religion is completely subjective, but this is a unique subjectivism.Footnote 66
While Buber made a distinction between religion and religiosity, Gordon distinguished between the form of religion and its content. The content is the inner subjective experience, while the form is the external ritual expression of religion, which cannot follow the authentic flow of the experience, and tends to be fossilized and subjugate the soul:
This is why the form of religion (dat) always stays behind the ongoing thinking and the purified spirit; It was always backward. There is no wonder then that it lately completely fossilized. … until the content became completely superfluous. … There is no wonder that lately the living thought, which seeks and surveys, in which the soul lives, which always seeks to be renewed, distanced itself from religion completely.Footnote 67
In the formal religion, Gordon distinguishes between the historical religion and the philosophical religion; both were in his view a “dried-up abstraction.”Footnote 68 As far as he was concerned, Jewish renewal meant both the rejection of the oppressive halachic religion, and the dry formal religion of reason, and their replacement with the living experience, which he, like Buber, identified in biblical prophecy. In his view, Judaism was closer than Christianity to this authentic religious experience, since it is by essence a national religion. In the national component, he identified not only an ethnic framework, but, more importantly, a vehicle which enables the mystical bonding with existence and nature in the Land of Israel. Both religion and nation are an expression of the human bonding with what he phrases as the “soul of the world,” the unity of existence. He aspired Zionism to become a movement of religious renewal, in a Deistic-Pantheistic sense, which would enable the Jew to bond again with his land, thereby with nature and the wholeness of being.Footnote 69 Here is where dat and avodah (labor) coalesced, and enabled his followers to create the hyphenated dat ha-avodah (religion of labor), as the supreme expression of the revival of the nation in the Land of Israel. On this basis, they created an oxymoronic secular religiosity, so typical of the Kibbuz movement in its formative years.Footnote 70
V The Orthodox Reaction
So far, we have encountered the views of nineteenth- and early twentieth-century Jewish scholars who were influenced in various ways by the new meanings Judaism acquired in modern times, as a dat which is a religion. Whoever wrote in Hebrew continued to label Judaism as dat, but invested it with the new Protestant meaning of religion they acquired from the surrounding culture; all the more so those who wrote in various European languages, mainly German. However, other currents in Judaism and their scholars, who encountered the challenge of modernity, voiced strong reservations and rejected the process of turning Judaism into a religion, this from different and contrasting motives. Some acted from religious-orthodox motives, others on the basis of a secular, national, or cultural orientation. The very fact that such a fierce resistance evolved from so many different directions, only proves how deeply this new definition of religion penetrated the Jewish environment, and gradually dripped from Germanic Central Europe into Jewish centers in Eastern Europe. One never rejects, albeit so forcefully, a phenomenon which is nonexistent or is negligible; the powerfulness of rejection is a clear indication of how deeply this new concept of religion penetrated.
However, many among those who resisted were so deeply influenced by this modern concept of religion, and the Christian religious vocabulary which was used in the surrounding culture, that they imposed it on their reading of Judaism, even against their own will or unconsciously, so powerful was the influence of the new concept of religion.Footnote 71
The Orthodox rejection of the identification of Judaism as religion, and the translation of the Hebrew dat into “religion,” should be subdivided between Ultra-Orthodoxy (Haredim) and Neo-Orthodoxy. Paradoxically, the Ultra-Orthodox quest to freeze Judaism in its present condition (i.e. that of the early nineteenth century), as a means to combat modernism, created a new current in Judaism, just like the appearance of Reform Judaism. The creators of Ultra-Orthodoxy were unconscious of this fact, and in any case denied it vehemently.Footnote 72 Their contention that they are the one and only authentic inheritors of traditional Judaism is an invented tradition created to legitimize their claim. They were a new current in modern Judaism, just like any other, they were a response to modernity; the difference was in the nature of the response. Their response to the appearance of Reform Judaism was quite compatible, even in the terms used, to the reaction of the Catholic establishment to the Reformation. The irony is that the famous slogan of Hatam Sofer, the founder of Ultra-Orthodoxy, a freely interpreted Mishnaic dictum: “Anything new is strictly forbidden by the Torah,” was in itself a major halachic innovation. Previous rabbinic authorities, who were not forced to confront the challenges of modernity and reform, had no need for such a radical theory about the unchangeability of the Halacha. Orthodoxy had to invent a tradition in order to defend its very existence.
Orthodox Jews continued to use traditional terms. This is clearly apparent from the collection of letters, known as Eleh Divrei ha-Berit (These Are the Words of the Covenant, 1818), a reaction to the formation of the first reform congregation in Hamburg.Footnote 73 The rabbis whose letters were published in this volume continued to use traditional terms, such as dat Moshe ve-Israel (The law of Moses and Israel), dateno ha-kedosha (our holly law), and so forth, all in the plain meaning of the commandments of the Torah. Judaism for them was dat, in the plain legal meaning, never a religion.
However, even here the new definition of dat as religion started to penetrate, albeit unconsciously. At the beginning of a letter by a rabbi from Alsace, a French seal appears, indicating that he was a member of the consistoire, the official organization of French rabbis established by Napoleon. At the center of this seal appear the French words: Patrie-Religion (Homeland-Religion).Footnote 74 This rabbi fiercely rejected religious reform, but ironically, his seal identifies Judaism as a religion, recognized by the secular state, which give it official status. Thus, also he had to practically accept the modern separation between state and religion, and recognize the fact that the power to enforce the law belongs to the state, and the religious establishment lost the right to enforce its rulings. This is a fascinating example of how even orthodox Jews were left with no other choice but to recognize the authority of the modern state, thereby practically adopting the identification of Judaism as religion, in the modern sense of the term.Footnote 75
It is no coincidence that this appears in a letter by a French rabbi. Eastern European Orthodox Jews barely came in touch with these modern influences, and in any case, this happened much later. They were quite oblivious of the appearance of modern religion and its influence on the concept of Judaism. They will continue to use the Hebrew dat, in its traditional legal meaning, deep into the twentieth century, quite unconscious of the “Protestant” connotations it acquired. However, as already indicated, even they had with time to reconcile with the fact that the rabbinic authorities lost their autonomic judicial power, and were subjected now to the coercive authority of the modern state. They lost their most lethal tool, the right to impose a herem (excommunication) on a Jew; membership in a congregation and obedience to rabbinic authority became completely voluntary. As Hatam Sofer himself wrote in a famous conditional sentence, concerning the attitude towards reform Jews: “Had we had the legal authority, I would have decided to expel them from us.”Footnote 76 The key phrase here is the conditional “Had we had;” he was already clearly conscious of the fact that this authority was taken away. Orthodox Jews thus attempted to leave the organized Jewish congregation whenever it became dominated by reform Jews, and form a separate congregation (teilung); they had to pressure the state to agree to such move. Thereby they practically accepted the new reality, in which Judaism became a religion, just another confession in the modern state.Footnote 77
Neo-Orthodoxy, however, was already a conscious response to modernism and the reform tendencies, in Germany in particular. An acute observer already remarked that neo-orthodoxy pretended to be an authentic continuation of traditional Judaism (Urjudentum), but in reality, was nothing more than the Judaism of the hour (uhrjudentum).Footnote 78 It was described as “The Counter-Reform,” just like the Catholic Counter-Reformation.Footnote 79
Shimshon Raphael Hirsh, the founder of Neo-Orthodoxy, and the one who famously adopted the Mishnaic mantra: “Torah with Derech Eretz (Derech Eretz can mean both good manners and occupation),” illustrates his attitude very well. Like the Ultra-Orthodox, he rejected any changes in the Halacha (this is what Torah stands for in this equation), but unlike them, he added Derech Eretz, which means restricted openness to the general culture, both in education and occupation, and endeavored to find some delicate equilibrium between the two. Hirsh consciously avoided the usage of the term dat, this because of the strong association which already existed in his period, around the mid-nineteenth century, between the Hebrew dat and the Christian “religion.” He insisted that Judaism is not a dat, but a Torah; the usage of the term dat distorts its meaning and practically Christianizes it. He criticized great Jewish philosophers – from Maimonides to Mendelssohn – of imposing alien concepts on Judaism, thereby distorting its very essence; while Maimonides imported Aristotle, Mendelsohn was influenced by Kant. Judaism should be defined only by its inner authentic criteria:Footnote 80 “Comparisons [=with Christianity] are useless. Judaism is not a religion, the synagogue is not a church, the rabbi is not a priest. Judaism is not some addition to life, it encompasses life.”Footnote 81 Hirsh repeated this assertion in various places, and accused reform Jews of Christianizing Judaism by turning it into a religion.Footnote 82 However, even he was practically forced to identify Judaism as a confession, a religion based primarily on belief, just like the various Christian sects, and not as a separate ethnic component. Like emancipated Jews, also he wanted the Jews to become equal citizens in the German homeland. He refused to identify Judaism as dat (religion), and likewise rejected its identification as a separate ethnic group (volk), as German anti-Semites started to define it. Such Jews preferred to call themselves “German citizens of the Jewish belief” (deutche staatsburger Judichen glaubens), like any other.Footnote 83 In order to make themselves indistinct they preferred to use the word glaubens (belief, faith), and not religion (or dat). This also concurred with their new concept of religion as belief, in the Protestant sense.
In the last count, even Hirsh has to accept in practice the designation of Judaism as religion, although the contents of this religion were of course quite different from the Reform view. In his view that Jews should participate in German society as equal citizens, he also practically accepted the fact that religious practice should be confined to the private sphere, and that practicing the mizvot, and membership in a Jewish congregation, became a voluntary matter. The emphasis moves to the private religious life of the individual in the congregation he chooses to become a member of. The emergence of the modern state necessitated this development.Footnote 84 This is the background of Hirsh’s struggle to get permission from the German authorities to secede (austritt) from the Jewish congregation in Frankfurt, which was dominated then by reform followers. This also shows how reality forced him to identify Judaism as a confession, and the fact that Jews, just like Christians, split into different sects, recognized by the state. In his request to the government he used as arguments the precedent of the Christian schism, and the right to religious freedom. He apparently used these arguments in order to persuade the authorities, but there is no doubt that he also internalized them.Footnote 85Later orthodox scholars who followed in Hirsh’s Neo-Orthodox path, rejected his refusal to identify Judaism as a volk, and adopted national-religious views (Religious Zionism), but continued to evolve the view of Judaism as a dat which is a religion. Rabbi Yehiel Michal Pines, one of the founders of Religious Zionism, rejected reform Judaism, but nevertheless expresses a religious sentiment that even radical reformers could identify with. Consequently, despite Hirsh’s reservations, he did not hesitate to apply the loaded term “religion” to Judaism, and even used it in Hebrew transliteration. Since he wrote in Hebrew, Pines could just use the term dat, or its equivalencies, but he deliberately chose the use “religion,” and this at the very beginning of his book:
The religia (in Hebrew transliteration), has a secure place in the heart, and its roots are deeply planted in the essence of life. This is why it will never die …. This is a deep feeling among humans, which eternally whispers to them, and rings in their heart, just like a bell. There is a sublime and hidden force which cannot be seen; there is a cause for our existence and that of the universe, humans must give tanks to this force. … This feeling is common to all the children of Adam and Eve, and it is embedded in us as a natural orientation.Footnote 86
This is a typical universalistic and Romantic, even Deistic, concept of religion that is no different from the list of such definitions we found above among early reformers. Pines distinguished among three kinds of religion (dat): “The positive civil dat” (dat mehuievet ezrahit), which is the application of the universal religious belief to the social distinction between good and evil, applied in different manners in different societies; “the positive dat of the individual” (dat mehuievet l-adam ha-prati), which is the individualistic bonding with the sublime. When this religious feeling goes through the prism of reason, the “dat of the philosophers” (dat ha-filosofim) evolves.
Here Pines finds the great advantage Judaism has over other religions, especially Christianity.Footnote 87 In Christianity, which is based primarily on a set of necessary beliefs, scientific discoveries undermine the foundation of religious beliefs, and cause a massive shift to secularism. Judaism, however, is essentially different, since it is not based on necessary beliefs, but on the obligation to follow the Halacha. This is the fourth kind of dat, “the Divine dat” (dat Elohit). Therefore, there is no danger, in his view, that Jews will abandon their religion. Here his national views come to the fore; the appearance of Zionism was for him a clear proof of the ongoing vitality of the Jewish people. Unlike Hirsh, Pines simultaneously defined the Jews as a volk and Judaism as a religion; these two ingredients coalesced in his view into one ever-lasting whole.Pines’ collaborator in the creation of religious Zionism, Rabbi Hayyim Hirshenzon, developed a system which tried to create a synthesis between Judaism and democracy, this under the influence of his encounter with the American political system in the long years he lived in the USA. Unlike Pines, Hirshenzon did make a clear distinction between the Jewish dat and the gentile “religion”:
Dat Israel is superior to the religions (datei) of other nations, which are called religion (in Hebrew transliteration). This is because they are obligated to a few practical commandments (mizvot) only, which are based on belief, while we received an abundance of commandments, which obligate us not by command, but through the tradition which we accepted upon ourselves, like any constitution (Hebrew transliterated), which was voluntarily accepted by a people. This is why our law (dinenu) is “A national dat” (dat leumi), while theirs is “A religious dat” (dat religiosi). The gentiles have a religion, while we, the Jews, have a Torah, and dat, just laws (hukim) and ordinances (mishpatim).Footnote 88
In order to define the Christian’s religion Hirshenzon created the oxymoronic combination: “religious dat.” The difference between this dat and the Jewish dat is twofold: While the Christian religion is based on necessary beliefs, the Jewish one is based on the practical commandments. Second, while the Christian dogma is imposed upon the believers, the obedience to Jewish law is a voluntary matter. He defined the Halacha as a constitution which the people voluntarily agree to uphold, in the spirit of the American republican ethos.
While religious thinkers rejected the identification of Judaism as a “religion” from halachic reasons, secular Zionists rejected it from national reasons. Religious thinkers attempted to return to the original legal definition of Judaism, and eradicate the foreign influences, which have defined it as a “religion,” thus practically Protestantized it. Secular Zionists, on the other hand, strived to belittle, even eradicate, the religious facets of Judaism, which they identified with the exilic existence, while emphasizing the national-cultural nature of Jewish existence. They also considered the modern definition of Judaism as religion to be a foreign influence, which should be abolished, but forgot to notice that the national idea itself was also a foreign import.One of the first scholars to identify the Jews as a nation was the Historian Heinrich Zevi Graetz. Like Hirsh, his teacher, he also rejected the definition of Judaism as “religion,” but this from a clear national-cultural point of view. He defined Judaism as a political entity, thus rejected its modern definition as religion. As he says:
Even after the Talmud was closed, the national character remained embedded in the history of Israel, … It never became a sect or a religious church (Kirchengeschichte), since it is not based only on the Torah, the principles of faith and the moral values, but is a living people.Footnote 89
Graetz’s shift to Jewish nationalism was influenced by Moses Hess’s famous Rome and Jerusalem (Leipzig, 1862), one of the first proto-Zionist treatises. Hess empathetically argued that “Judaism is a nation (nationalitat).”Footnote 90 He completely rejected the identification of Judaism as a religion (religiose confession), and argued that the reform movement endeavored to turn Judaism into a kind of rationalistic Christianity (ein zweites Christentum); he labeled the reform movement as “Our Jewish Protestants” (unseren Judishen Protestanten), who emphasize the salvation of the individual, Protestant style, at the expense of any congregational-national obligation.
Hess distinguished between two kinds of religions: “Natural Religion” (Naturkultus), which is the Greek religion, based on natural phenomena, and “Historical Religion” (Geschiehtesreligion), which is the Jewish religion, based on the appearance of God in nature and history. To these he added the Christian “Religion of Love” (Religion der Liebe), in its German variant. This is yet another manifestation of the abundance of new hyphenated terms which were coined in an effort to capture the ever-changing fluid meanings of modern Judaism.
Early Zionist thinkers, such as Judah Leib Pinsker and Theodor Herzel, both argued that Judaism is primarily a national entity, and de-emphasized its religious component. In their view, in the future Jewish state, religion should become the private matter of the individual, religious functionaries should serve the needs of the state, and have no independent power whatsoever. Ahad ha-Am strongly criticized Herzel’s Political Zionism, which in his view diluted the Jewish cultural identity, but still argued that Judaism is a nation with a distinct culture, not a religion. He criticized Western-European Jews of Christianizing Judaism by turning it to nothing but a religious sect in the modern state. Religious Zionists (yet another newly coined hyphenated term), rejected secular-Zionism, and insisted on an integration between the national and religious facets of Judaism.
On the other hand, anti-Zionist Jews in Central and Western Europe, who endeavored to integrate in their respective countries as equal citizens – in the whole spectrum between Orthodox and liberal Jews – vehemently rejected the Zionist claims, and insisted that Judaism is nothing but a religion, like any other, in the modern sense of the term, of course. This debate was carried on in the twentieth century, both in Europe and the nascent Jewish entity in Palestine.Footnote 91
VI Contemporary Trends: Religiosity and Secularization
These trends are currently continuing at an accelerated rate. Modern religiosity – and Judaism is no exception – is a religious conversion of a secular cultural and political phenomenon, which in itself was a conversion of a Christian phenomenon. In its revolt against Papal coercion and corruption, Lutheranism emphasized the personal religious experience of the individual, his direct connection to his God, without the need for the mediation of any ecclesiastical authority. These concepts later went through a secular political conversion towards the principles of the centrality of individual, his rights and liberties in the modern state.Footnote 92 Now these secularized concepts are superimposed back onto the religious arena, and modern religions are going through a conversion to a religiosity based on the subjective spiritual experience of the individual in his private space, without the need for any binding authority and mediated interpretation of the Scriptures.
For Christianity, this was quite a natural process, since it was always based on the individual’s duty to accept the right beliefs. In Judaism (and Islam) this conversion has a revolutionary impact. Traditional Judaism was always based on the duty to obey Halacha, first of all, and it has a strong ethnic and congregational component. The conversion from the emphasis on the duty to follow Halacha in an ethnic congregation, to the personal subjective religious experience in the private space, is revolutionary indeed. This process of diffusion, the privatization of religion, and the concentration on the individual believer, is nowadays moving from the level of the division of Judaism into different religious currents, which occurred since the early nineteenth century, to the division of these currents into endless voluntary congregations and individuals (the so called “sovereign self”), who adopt various shades, dosages, and combinations of beliefs, values, rituals, texts, and commandments, they choose from the enormous reservoir of the Jewish tradition, which they deem relevant and meaningful for themselves; these they constantly and creatively reinterpret to suit their liberal-pluralistic views, and the current gender attitudes.
Despite the myth that Orthodoxy is still trying to implement, Judaism was never a monolithic entity; it was always an evolving multi-lanyard culture, which went through endless theological and halachic disputes. Still, there was always a strong common denominator, created by the Sages, which lasted until the early nineteenth century approximately. This was the common obligation to follow the Halacha, at least in the public sphere. In premodern circumstances, halachic authorities had the power to enforce obedience. This power was eliminated with the advent of modernity. The majority of the Jews stopped following the Halacha, and the rabbis lost the power to enforce it. Judaism was divided into various currents, and now they are subdividing at an accelerated rate. One cannot speak of “Judaism” as one entity any more, there is an abundance of “Judaisms.” Not only the word dat or “religion” is being hyphenated, Judaism itself is being hyphenated. We now have “Orthodox Judaism,” “Haredi Judaism,” “Conservative Judaism,” “Reform Judaism,” “Humanistic Judaism,” “Secular Judaism,” and so on. These processes are now accelerating in American Jewry with the appearance of the so-called “Post-Judaism,” and its influence also reverberates among Israeli Jews, regardless of their religious orientation.Footnote 93
As a consequence of these processes, the terms dat and “religion” became so amorphic, that today, any particular view, on any subject – religious or secular – which a person adopts is labeled “religion” (or dat). This labeling includes also completely secular phenomena, even belatedly anti-religious views.Footnote 94 Thus, we use today hyphenated terms such as “Humanistic Religion” (dat humanistit), or “Civil Religion” (dat ezrahit), which relate to the common rituals and norms of a given political culture.Footnote 95
Radical ideologies are especially prone of semi-religious connotations, due to their totalitarian characteristics, their hero worship and tendency for indoctrination. Communism, a blatantly anti-religious ideology, used to be called a “religion,” and now various extreme environmental and vegan ideologies are being labeled by the very same terms, such as: “The Dark Green Religion.”Footnote 96 Psychoanalysis was called “a new religion” already in Freud’s life.Footnote 97
This usage proliferates now at an accelerated rate, as we can easily find in contemporary newspapers, which are a great source for detecting new meanings and usages of the terms and words we use. The belief that modern science replaced traditional religions as the source of all knowledge, is labeled as “the religion of science” (dat ha-madah), the religion of liberal secularism.Footnote 98 The enormous influence of the internet on our lives today is called: “the religion of information.” In an article published a few years ago in the Israeli daily newspaper Ha-Aretz we find the following assessment: “We envision today the ascension (aliyah) of a new religion (dat), the religion of information (dat ha-meidah). The religion promises to improve our lives …, this under the condition that we will sanctify (nekadesh) the supreme value of the flow of information.”Footnote 99 It is no incident that besides the repeated usage of the term dat, we find in these excerpts a collection of traditional religious components, now converted to a secular context: “Ascension” (aliyah), “improvement” (shipur), “sanctification” (kidush), “supreme value” (erech elyon), “the spirit of God” (ruah Elohim), “commandments” (mitzvot), and “holy war” (milhemet kodesh). Also, the manner by which we cope with the memory of the Holocaust, obsessive in the view of some, and the pilgrimage to Auschwitz, were recently labeled as: “the religion of the Holocaust”: “This is a religion (dat), the religion of Holocaust (dat ha-Shoah), this is a symbolic and metaphysic act, in which the nation is united with the object of its belief (emunatah).”Footnote 100 The centrality of the army in Israeli life was recently labeled as: “the religion of the I.D.F.” (dat zahal).Footnote 101 Likewise, the centrality of children in Israeli culture was recently labeled as: “the religion of the children” (dat ha-yeladim): “The child is holy, he is sublime, he is a little Buddha, he bestows you with a sense of meaning and purpose, you don’t raise him, you worship him as if he was God. Secular people are looking for something to believe in. …. We are all devotees of the religion of the children.”Footnote 102 Also here we find a collection of converted religious terms, even Buddhism, used to describe a secular sociological phenomenon.
Dat, a Hebrew term borrowed from the Persian, which originally denoted human law, was transformed to mean religion, creed, or fate. Now it has been re-secularized again, and acquired an elastic and amorphic meaning, which is being used to denote any social or intellectual trend in which people deeply believe in, with no necessary connection to religious beliefs anymore. This is alongside the traditional religious usages, which also acquire new meanings with the advent of modern religiosity. Thus, when we use this term now, it is essential to clarify which possible meaning of it is implied precisely; it does not stand by itself anymore. This is why we find so many hyphenated terms, in which an additional word is added to dat or “religion,” in order to clarify the intended meaning, and various conjugations of this word, from datiut (religiosity) to hadata (to influence somebody to become religious). This is an ongoing process. What we call dat is going through a radical process of change in contemporary culture: secularization, on the one hand, and religiosity on the other. In any case, its original meaning as law has been eliminated altogether.
The title of this project, “Law As Religion, Religion As Law,” no doubt deliberately begs several vitally important conceptual and methodological questions. Are the terms “law” and “religion” to be understood as conceptual absolutes, universally applicable to any culture, or are they to be regarded as themselves cultural constructs? My starting point will assume the latter. But then we are faced with further questions: From whose viewpoint may we debate whether, in any particular culture, “law” is to be regarded as a form, or an essential part, of “religion,” and from whose viewpoint may we debate whether “religion” is to be regarded as a form, or an essential part, of “law”? And what is the relevant data? In the Jewish context, we may seek to explore what particular conceptions of “law” and “religion,” and what type of interrelationships between them, we find in the whole range of traditional data of the halakhah.
But the issue turns out to be more complicated. The cultural world which we inhabit is not exclusively Jewish, nor should it be. Ḥareidim may give a different answer, and may even interpret differently the famous dictum of Ben Zoma in Pirke Avot 4:1: “Who is wise? He learns from all men” – stressing the proof-text which follows: “As it is written (Psalm 119:99) I have gained an understanding from all my teachers.” But can we be sure that, even within Jewish discourse, the very concepts of law and religion are exclusively Jewish? I would argue not. It may, therefore, be necessary to distinguish between internal and external viewpoints on the matter, not only as an historical exercise, but also in order to clarify some of the conceptual issues involved. Yet even this, I would argue, will suffice only if we are not able to identify some neutral viewpoint from which to address the issues.
In this paper I argue for the use of a particular version of semiotics as providing such a neutral viewpoint. In Sections II–IV, I outline much of the work I have done over the years addressing these issues from more traditional internal and external (particularly jurisprudential) viewpoints, and the present chapter draws heavily on those earlier publications. Thereafter, I sketch both the general theoretical claims of the version of semiotics which I have used, and its applications to secular law, with a view to its use both in the context of halakhah, and more generally in discussing the relationship between law and religion.
This is an issue with which I have had to grapple for much of my career. My undergraduate degree was in secular (English) law; my doctorate was on early Jewish law, supervised by David Daube. Between 1968 and 1997, I taught in law faculties but with increasing opportunities to teach Jewish law, especially biblical law, for comparative purposes. From the early 1980s I began to explore interdisciplinary approaches to legal study, and quite quickly adopted the semiotic approach which I describe in this chapter. At that stage, I made little attempt to apply this to Jewish law, though I continued to research in Jewish law. I published four books on legal semiotics, the last being Making Sense in Jurisprudence of 1996.Footnote 1 At that stage, I felt that I had exhausted what I had to say in relation to secular law, and in 1997 I took up a chair in Jewish studies at the University of Manchester. I explained this to myself on the grounds that Jewish law was more central to teaching and research in Jewish studies (even in a theology department primarily oriented towards Christianity) than it was to any law faculty outside Israel. Increasingly, I applied semiotic approaches to biblical law.Footnote 2 I later became interested in the agunah problem (the “chained wife,” whose divorce is blocked by her husband), and in 2004 established a research unit in Manchester in which I collaborated with four colleagues (including two PhD students). We worked together until 2009, and I have since published six books and over twenty working papers.Footnote 3 These publications adopted in part an analytical approach sufficiently “external” to disinterest the halakhic authorities, but they remained immune from semiotic analysis. Increasingly, however, I began to realise the relevance of semiotic analysis to some of the fundamentals of that research, and to Jewish law research more generally, and this is reflected in the present chapter.
Despite the title of Hart’s classical work, The Concept of Law (including the definite article), there is no such universal concept (unless, perhaps, we are Platonists), nor, indeed, is it clear that we need one. In fact, even Hart’s book deals very little with such a concept; rather, its concern is with legal rules and the legal system. Much the same could be said in the Jewish context. Amongst the plethora of terms used in the Bible and later, it is hard to identify one which uniquely denotes the concept of law. And when we speak of “the halakhah,” we too have in mind a particular system of rules rather than an abstract concept.
In the secular context, the positivist paradigmFootnote 4 dominates our understanding of the legal system – arguably, for the citizen as much as the academic. This paradigm is often described as a “sources” theory: law is defined (or recognized) in terms of its sources, and these sources are human and political. While Austin and Bentham in the nineteenth century understood this primarily in terms of power (sovereignty and the imposition of sanctions), both Hart and Kelsen introduced the necessity of legitimacy, understood as sources of law defined by the legal system itself.Footnote 5 This movement on the part of Hart and Kelsen had a twofold purpose: on the one hand, to distinguish the rule of law from any illegitimate power source (a tyrant or gangster); on the other, to guard against abuse of power by legitimate political authorities and to ensure that citizens always had the capacity to choose their course of action in the light of its known legal consequences. This generated (for Hart, in particular) the “demonstrability” thesis: the (“secondary”) rules of the system should be such as would enable “demonstrable” judgments to be made regarding the legitimacy (and, wherever possible, also the meaning) of any “primary” rule of the system.Footnote 6
Such emphasis on the value of certainty is reflected in various ways in the methodology of reading legal texts in modern, positivist legal systems. Law is expressed in language and that language ought to be accessible to the citizen, albeit often advised by a professional. The starting point for interpretation is thus literalism: the law “covers” every situation within the syntax and semantics of the particular legal rule. Moreover, if the statute lays down conditions for any particular legal consequence, those conditions are regarded as not only sufficient but also necessary for that consequence. To put it differently, “If … ” means “If and only if … .”Footnote 7
The political ideology underlying the positivist paradigm entailed a negative view regarding the relationship between law and morality.Footnote 8 On the one hand, morality (whether from religious or other sources) did not count as an independent source of law; on the other, it did not count either as a criterion of the validity of law: an unjust law could not, on those grounds alone, be regarded as invalid, unless such criteria of validity were explicitly adopted by the system of positive law itself. But this prompted attention to a more fundamental question: Does the law consist only of the rules themselves, or also the reasons for the rules? Kelsen took a very strong line on this: the law consisted only of the norms of the system, not the arguments for or against those norms.Footnote 9 Attention thus turned to the status and role of legal argument, and in particular “legal principles.” Dworkin, in particular, argued that law consisted in both rules and principles; that the latter could be implicit in the system as a whole; and that they reflected the political morality implicit in that system.Footnote 10
Important aspects of the positivist paradigm have been adopted by some Jewish law scholars, particularly those in the mishpat ivri movement, often for the pragmatic motive of advancing the adoption of Jewish law in the State of Israel.Footnote 11 Menachem Elon, in particular, adopted a version of the “sources” theory, and Lamm and Kirschenbaum followed the lead of Dworkin in stressing the role of principles in the halakhah.Footnote 12 Neither, of course, accepted the basic assumption of legal positivism that sources had to emanate from human, political institutions. We may note, however, that both Austin and Kelsen made some concessions to the idea of a system of religious law.Footnote 13
There are, however, major conceptual problems involved in such a strategy of conceptualizing Jewish law. Radical change (from rules regarded as having “biblical” status) is virtually excluded in Jewish law: there can be no revolution against divine law; indeed in recent centuries (partly in reaction against progressive forms of Judaism), Orthodoxy has proved increasingly reluctant to make any changes in halakhah, as may be seen from a particular problem in the Jewish law of divorce.Footnote 14 Elon himself had to accept a significant qualification: in a religious system based on revelation, the Constitution is unamendable.Footnote 15 Moreover, there is an acute ideological problem at the very foundation of the application of Jewish religious law within the State of Israel. The State, whose own legal system is secular, in that ultimate authority belongs to a democratically elected legislature (the Knesset), may delegate certain powers to religious courts (Jewish, Muslim, and Christian), but that itself delegitimizes those courts in the eyes of some religious circles, who claim that the ultimate authority is divine, and therefore should operate solely through religious institutions rather than through the State. It is the religion, they would claim, which should define the powers of the State, rather than vice versa. This is a fundamental issue for “law and religion” issues everywhere, and may be regarded as defining the distinction between theocracy and democracy.
But this is not the only conceptual problem. The history of Jewish law shows that charismatic rather than rational sources have played an important role from biblical times. It is striking that a series of instructions to judgesFootnote 16 fail to mention written sources of law: rather, they tell the judges to avoid partiality and corruption and apply their intuitive sense of justice (in the context, no doubt, of orally transmitted custom). Their authority was charismatic. Thus, the ninth century BCE King Jehoshaphat of Judah charges his judges to avoid partiality and corruption and assures them that “(God) is with you in giving judgement” (2 Chronicles 19:6), rather than their referring to written sources.Footnote 17 This survived in a residual power (explicit in talmudic sources but increasingly submerged since then) for the judge to depart from the strict law when intuitions of justice demanded it. Ben-Menahem has studied some thirty cases recorded in the Babylonian Talmud where it is said that the rabbinic judge decided the case “not in accordance with the Halakhah.”Footnote 18 Indeed, the halakhah is regarded as a minimum standard, and the judges are expected to go beyond it, wherever possible, in pursuit of justice. Thus, the Talmud quotes R. Yoxanan as saying (Baba Mezia 30b): “‘Jerusalem was destroyed only because they gave judgements therein accordance with Torah law …’ Where they then to have judged in accordance with untrained arbitrators? – But say thus: because they based their judgements [strictly] upon Torah law, and did not go beyond the requirements of the law.”
Much the same critique may be addressed to the concept of religion as to that of law. There is no single, universal concept and every reason to doubt whether we really need one.Footnote 19 Just as it may suffice to judge whether particular rules and courses of action are “legal,” so too it may suffice to judge whether particular rules and courses of action are “religious.” The sense of both the “legal” and the “religious” may be constructed without presupposing any metaphysical concepts of “law” or “religion.”Footnote 20 And in both cases, the meanings of “legal” and “religious” are culturally contingent.
Equally variable is the role which any system of religious thought may attribute to law. In the Judeo-Christian tradition, this is discussed in the context of the divine-human relationship (covenant), including, but not restricted to, reward, punishment, and salvation both in this world and in the eschatological context.Footnote 21 Such matters are, indeed, much discussed in the context of Jewish theology, far less in the study of Jewish law (here too implicitly reflecting the positivist paradigm).
There has been much debate in academic departments of religion and theology as to the conceptualization and methodology of religion. “Religious Studies” are nowadays often presented as the study of “World Religions.”Footnote 22 But does such a comparative approach imply a single, external criterion of religion, or admit the primacy of internal conceptions within any particular system?Footnote 23 The latter may appear the more authentic, but a neutral standpoint is required for comparison. Recourse is often made to social science approaches, or more philosophical approaches informed by phenomenology,Footnote 24 where much attention is paid to the experiential dimension.Footnote 25 But can religious experience be isolated from the broader religious culture concerned?Footnote 26 In fact, some aspects of the phenomenological critique of the study of religions share points in common with the semiotic approach I elaborate below, while other aspects radically diverge.The most explicit Jewish application of the phenomenological approach known to me is that of Rabbi Joseph Soloveitchik in his Halakhic Man, where his concern was to explore the experience of Halakhah, and this not from the (“public”) vantage point of the judge but rather from the (“private”) vantage point of the ordinary Orthodox Jew who is observant of the Halakhah.Footnote 27 Soloveitchik sought “to penetrate deep into the structure of halakhic man’s consciousness” (p. 4). Halakhic man seeks to fashion mundane reality in accordance with the halakhic model, and this creative activity has an emotional (or spiritual) as well as a cognitive dimension: “Both the halakhist and the mathematician live in an ideal realm and enjoy the radiance of their own creations” (p. 25). Indeed, the mundane world of halakhic man is, from this vantage-point, even more desirable than is the world-to-come:
The Halakhah is not at all concerned with a transcendent world. The world to come is a tranquil, quiet world that is wholly good, wholly everlasting, and wholly eternal, wherein a man will receive the reward for the commandments which he performed in this world. However, the receiving of a reward is not a religious act; therefore, halakhic man prefers the real world to a transcendent existence because here, in this world, man is given the opportunity to create, act, accomplish, while there, in the world to come, he is powerless to change anything at all. … When the righteous sit in the world to come, where there is neither eating nor drinking, with their crowns on their heads, and enjoy the radiance of the divine presence …, they [can only] occupy themselves with the study of the Torah, which treats of bodily life in our lowly world.Footnote 28
Thus, the reward for observance of the halakhah is conceived by Soloveitchik as the capacity (merely) to contemplate the application (in the empirical world) of halakhah from the (nonempirical) domain of the world-to-come. The reward is thus less satisfying than the act by which the reward is merited, for it is the latter which transforms, which is creative.
The ideal of halakhic man is the redemption of the world not via a higher world but via the world itself, via the adaptation of empirical reality to the ideal patterns of Halakhah. If a Jew lives in accordance with the Halakhah … then he shall find redemption. A lowly world is elevated through the Halakhah to the level of a divine world.Footnote 29
IV Jewish Law
In various respects, the practice of justice in Jewish law differs from that typical of secular law, in that (1) Jewish law functions through a system in which rationality is a function of revelation;Footnote 30 (2) its system of rule-making institutions exhibits a far less clear hierarchy, as indeed do its courts;Footnote 31 (3) adjudication functions in the private, rather than the public, domain, its operation not being, in principle, subject to public accountability;Footnote 32 (4) it frequently lacks enforcement powers in order to give effect to its decisions.Footnote 33
In approaching these issues, it is important to address an underlying theoretical issue: In what sense is Jewish law to be regarded as a “religious system of law”?Footnote 34 For this purpose, I suggest, one may distinguish between “dualistic” and “monistic” models of Jewish law.Footnote 35 Is it conceived as a separate system from the direct operation of divine justice, operating under delegated authority from God in some semi-autonomous manner, and sharing significant elements in common with secular models of human justice (the “dualistic” model), or is it to be regarded as an integral part of a single system of divine justice (the “monistic” model)? I have argued that there is much biblical support for the monistic model, although rabbinic sources (increasingly) tend to follow the “dualistic” model, as does most modern scholarship on Jewish law. The mishpat ivri movement, which seeks the incorporation of Jewish law within the law of the State of Israel, strongly advocates it for ideological reasons. The two models, however, may not be mutually exclusive.
The Torah contains many rules, but it is far from clear that they were intended for judicial application in the manner of a modern statute in secular courts. Indeed, most of the pentateuchal sources which describe the judicial role make no reference to the application of written sources, but rather commit the resolution of disputes to the sense of justice of the judges, sometimes with a direct hint that their intuitive sense of justice will be divinely guided.Footnote 36 It is noticeable that two sources relating to the reign of the ninth-century Judaean King Jehoshaphat have him, on the one hand, appointing local judges to whom he says: “Consider what you do, for you judge not for men, but for the Lord; and he is with you in giving judgment” (ve’imakhem bidvar mishpat):Footnote 37 no mention here of recourse to any written law, nor is it clear that the Superior Court in Jerusalem (whether of Jehoshaphat or as conceived in other sources)Footnote 38 has such recourse either; on the other hand, the same king sends out a commission including princes, Levites, and priests to teach the people from the “book of the law of the Lord” (sefer torat adonai, 2 Chron. 17:7–9). The implication would appear to be that the first step in any dispute would be for the parties to try to resolve it themselves,Footnote 39 guided by torah laws, failing which they should have recourse to local judges applying a divinely guided sense of justice, and only thereafter should they refer to the central court in Jerusalem. In a study of the mishpatim of Exodus 21:1–22:16 which I published in 2006, I argued that there was considerable evidence from the substance of the rules that they were designed for “self-execution” rather than third-party adjudication.Footnote 40 I called them “wisdom-laws.”
The situation becomes even more complicated in rabbinic law. On the one hand, the talmudic cases of adjudication “not in accordance with the halakhah”Footnote 41 may represent a survival of the divinely guided intuition of which we read in the bible. More generally, the “secondary rules” (Hart) allowing one to identify binding halakhah have many areas of doubt and controversy, as we found in the work of the Agunah Research Unit. Even such a basic rule as that of majority decision generated controversy as to whether it applies only to opinions expressed within the contemporary generation, or trans-generationally.Footnote 42 Indeed, the doctrines of safeq and sfeq sfeiqa (“doubt” and “double doubt”) both attest to the significance of doubt within the halakhic system, and provide considerable discretion in dealing with such cases.Footnote 43
The orthodox understanding of revelation goes beyond the conferment of divine authority on that which is revealed. The medium itself is understood to have divine features. Thus, the bible is written in Hebrew, the lashon hakodesh,Footnote 44 the language of creation, which has special properties of multiple signification. Moreover, the torah is normally regarded as a single discursive whole, complete, consistent, and without redundancy – any apparent deviations from these standards being resolved in the oral law.Footnote 45 I have argued that the forms of analogy in Jewish law are distinctively religious rather and secular, insofar as they depend very often upon literary rather than substantive features of the biblical text.Footnote 46
Does all this lead to the conclusion that we are able to reach (objective) truth via halakhic argumentation? Some halakhic authorities argue that we can.Footnote 47 I fear that they are unduly influenced by the modern secular model. There is much in the tradition which points in a different direction:Footnote 48 thus, famously, the Talmud records that a divine voice intervenes in a long-standing dispute between the Schools of Hillel and Shammai with the words: “These and these [contradictory opinions] are [both] the words of the living God” (Erubin 13b), but with an instruction to follow Beth Hillel on pragmatic grounds: pragmatic, both in the sense that we need such a decision for communal consistency, and in the sense that the grounds for preferring Beth Hillel are pragmatic in the linguistic sense: their speech behavior was respectful to the opinions of their opponents, and they took the views of the latter into account.Footnote 49 Indeed, the very concept of truth (and its possible application to law)Footnote 50 is hotly debated in philosophy, and there is no reason to assume that its meaning is identical cross-culturally. As for early rabbinic sources, discussion must now commence with the remarkable chapter 5 of Christine Hayes’ What’s Divine About Divine Law,Footnote 51 in which she concludes that “divine law does not always align with formal logical proof”; that “the value placed on peace and mercy rather than truth … shows that divine law did not always promote judicial truth”; and that “divine law does not always align with mind-independent ontological reality” (p. 243). In short, the rabbis “did not embrace a broader conception of divine law that assumes the latter’s verisimilitude and correspondence to some kind of objective truth” (pp. 243 f.). In Jewish philosophy, the relationship between emet and emunah, truth and trust (the latter understood in interpersonal terms) is often discussed.Footnote 52 One possible conclusion of our agunah study is that much depends on which contemporary authorities one chooses to trust (and what, in turn, are the sources of trust of those contemporary authorities themselves). I shall argue in the next section that there are strong semiotic reasons for such a conclusion (not only in religious, but also in secular law).
Finally, we may pose the question whether all rules of Jewish law are equally “religious.” It is not difficult to make the case for the religious nature of the rules in the areas of ritual, life and death, and sexual relations, and the language of the biblical sources often reinforces this. But what of those “secular” rules which have direct counterparts in the civil law of other jurisdictions? I have addressed this question in relation to the mishpatim of Exodus 21–22.Footnote 53 Whatever the origins of the collection, we now find them incorporated into the Sinaitic covenant. But why, I asked, should God be interested in goring oxen (and many other aspects of the mishpatim)? I made some suggestions, but left the matter without any comprehensive substantive answer. Perhaps it represents an endorsement not merely of the necessity but also the value of negotiated settlement of civil disputes, on the basis of divinely endorsed wisdom-laws.Footnote 54 When we proceed beyond the biblical period, to a period when institutional adjudication has become available also for monetary matters (dine mamonot), we do find that they are treated, in significant respects, differently from the “more religious” categories of “prohibition and permission” (issur veheter). There is much more freedom to contract out of rules of dine mamonot,Footnote 55 to modify them by custom (minhag), and even to override them in favor of the law of the State (dina demalkhuta). Yet all these freedoms may be taken to manifest the same value, that of human autonomy and responsibility, as was represented by the underlying values of the biblical wisdom-laws themselves.
A great deal of this section is in line with the argument of an article of Hanina Ben-Menahem, on Talmudic Law as a Religious Legal systemFootnote 56 – in particular, his preliminary remarks under the headings: “The Notion of a ‘Religious Legal System’ Is Not Given in Nature, but Is a Product of Reflection”;Footnote 57 “Religiosity is a Relative Concept: Whether a System is Religious is a Matter of Degree, as Opposed to an Either-Or Determination”;Footnote 58 “A Legal System May Use Specialized Tools to Advance an Ideology”;Footnote 59 and “Self-Reported Accounts of Legal Practice Are Not Necessarily Veridical,”Footnote 60 as well as his account of many of the features of a legal system which justify its designation as a religious legal system.Footnote 61 He concludes: “In my view, governance by judges rather than by rules is the primary feature of the talmudic legal system. Of the various elements of the judicial process that, as we have seen, may attest to the religious nature of a legal system, it is by far the strongest.”Footnote 62 I shall argue, however, that adoption of a semiotic methodology in discussing these matters leads to an even more radical conclusion: it treats “the legal system” as a set of separate discursive practices rather than as a unified system in which one particular practice is dominant.Footnote 63
V An Introduction to Greimasian SemioticsFootnote 64
“Semiotics” is the name given to the research field which asks whether we can construct any general theory of sense construction: one which will not be confined to language or behavior, but which will both provide a common theoretical foundation for the different disciplines of sense-construction, and contribute to their hypotheses and methodologies. If so, it provides a neutral model for the comparison of sense construction in different areas and disciplines.Footnote 65
Contemporary semiotics is dominated by the thought of two “schools,” one inspired by the work of the American philosopher Charles Sanders Peirce (1839–1914), the other based upon the structural linguistics of Saussure, as most systematically developed in the work of Algirdas J. Greimas, the founder of the “Paris School” of semiotics. While the former remains philosophical in its orientation (Peirce was a leading logician, and this is reflected in his work on signs) and is concerned with the history, structure, and interrelations of concepts, the latter leans towards linguistics and to the analysis of empirical data. It is to this latter school of semiotics that my work in this area belongs.
The Saussurean basis of Greimasian semiotics, and particular its understanding of sense and reference,Footnote 66 has profound implications for ontology. Despite the claim that there exist universal processes of sense construction, Greimasian semiotics is fiercely empirical, in that it insists on starting with something accessible to our senses, such as a text (whether oral or written). While legal positivism also commences from an empirical claim – that there exists something that has been laid down (“posited”) by a (normally human) authority – it goes on to assert the ontological existence (independent from any text) of laws and the legal system. The legal norm is claimed therefore to have an existence distinct from its linguistic expression.Footnote 67 This form of legal positivism thus makes ontological claims; semiotic positivism, on the other hand, seeks merely to explain how such ontological claims are constructed and make sense to those who accept them. It does not, and cannot, validate those claims; it can only show how, within legal discourse, such claims are validated through processes of recognition (an essential part of the “narrative syntagm”).Footnote 68 This follows from the basics of Saussurean understanding of the relationship between sense and reference. The sense of terms used in language (its semantics) is not a function of its relationship (correspondence) to the empirical world outside, but rather its relationship to other terms within that linguistic system.Footnote 69 But when such language is used in the context of an assertion, a claim is thereby made that the language does indeed point to something in the outside world. This, however, is a speech act, and can itself be analyzed in terms of the narrative syntagm. It is, no more and no less, the performance of a speech act communicated by a sender to a receiver, in which the sender makes a claim about the outside world, to which the receiver accords some form of recognition. This referential skepticism entails the understanding that truth cannot be established merely within language; the recognition of truth claims, rather, most commonly depends upon interpersonal trust.Footnote 70
My most recent work in this area has reinforced my view of the importance of a number of basic epistemological positions of Greimasian semiotics: its referential skepticism (better: its understanding of reference within pragmatics rather than semantics) and its methodology of approaching texts – these leading to what I would take to be its (universally relevant, if implicit) view of the relationship between truth and trust. All of this, in different ways, involves the relationships between syntactics, semantics and pragmatics.
For Greimasian semiotics, “is” and “ought” are simply different modalities applied to accounts of behaviour patterns (whose sense is constructed in narrative terms).Footnote 71 When we affirm the modality of “is,” we are making a truth claim; when we affirm the modality of “ought” we are making a validity claim (just as when we go to an art gallery and affirm the beauty of a painting, we are making an aesthetic claim). When we affirm that something is “divine” (or, for that matter, “legal”), we are similarly attributing a linguistically constructed “modality” to it. We may therefore question whether the secular/religious distinction (or, for that matter, the “legal/moral” distinction) is ontological or itself a social construction of sense. But this is neither to deny nor to affirm the reality of either legal or religious experience. Greimasian semiotics is purely descriptive; its position on sense and reference (the latter being the concern of pragmatics rather than semantics) means that it cannot validate (or invalidate) truth claims within linguistic resources.
The Greimasian school looks for “basic structures of signification,” and finds them in a “deep” level of sense construction based upon a particular model of narrative. The concept of narrative has become popular in the social sciences in recent years, albeit in the form of a range of different particular conceptions of what narrative is. In legal studies, too, narrative models of different kinds have been used for a number of different purposes. The semiotic approach of Greimas and his followers proceeds from first principles. It stresses the role of narrative in the deep structure of signification of any form of discourse. Thus, it is equally applicable to both legal and religious discourses; it also provides a methodology for explaining how we make sense of particular discourses as “legal” or “religious.”Footnote 72Greimas sought to extend the ideas of Saussure regarding the semantic structure of individual sentences by applying them also to “discourse.” We have to make sense not merely of individual sentences, nor even of the relations of contiguous sentences, but also of texts as a whole. The folklorist Vladimir Propp had analyzed one hundred Russian folktales, and identified some thirty-one narrative themes in them, recurring in different forms. Through a reanalysis of this material, Greimas derived a much more abstract, general (and, as he claimed, universal) model in which his “basic structures of signification” (“structures élémentaires de la signification”) consist of two axes:
(a) the syntagmatic axis of Saussure generated an “actantial” model, in which discourse makes sense in terms of underlying patterns of intelligible action. This is worth stressing: our sense-making capacities are primarily oriented towards making sense of human action, and in particular making sense of elements of human action which appear in a diachronic sequence.
(b) the associative (or “paradigmatic”) axis generates choices (often structured as oppositions) of story elements which are used in the story-sequence (or “syntagm”).
The combination of these two levels, Greimas claimed, represents the “deep level” of all discourse. We make such sense by understanding the data in terms of meaningful sequences of action. What is a “meaningful sequence of action” can be specified (the “syntagmatic axis,”). Thus the Greimasian theory claims to provide an account of the construction of the sense of behaviour (including speech behaviour), and not merely of the language we use to tell stories. In subsequent work, members of the Parisian school have applied the Greimasian scheme to many different forms of discourse and behaviour. And psychologists of perception endorse this approach, as when they note the phenomenon of “confabulation” – “fake perception” (my phrase) to make an otherwise non-meaningful sequence meaningful.Footnote 73The syntagmatic axis (the discursive version of the syntax of a sentence) is “semio-narrative”: we can thus speak of a “narrative syntagm.” Every human action, for Greimas, begins with the establishment of a goal, which thereby institutes someone as the subject of that action, with the goal of performing it. In realizing the action, the subject will be helped or obstructed by other actions of other social actors. This help or obstruction will affect the “competence” of the subject to perform the action. The desired action itself will be achieved, or not achieved. But it is a characteristic of human action that the sequence does not finish there. Human beings reflect upon past actions. As a consequence, the syntagmatic axis of Greimas concludes with the concept of recognition (otherwise, “sanction”). Human action (whether real or fictional) thus appears meaningful in terms of a basic three-part “narrative” sequence, for which Greimasians have adopted the following technical vocabulary:
(1) “Contract”: the institution of the subject through the establishment of goals and competences. The goals of action may be of any kind: they may include communicative goals.
(2) “Performance” (or nonperformance) of those goals.
(3) “Recognition” of that contract and performance (or nonperformance).
Any narrative involves a set of interactions, in the course of setting goals, performing them, and assisting or obstructing their accomplishment. At the “deep level,” the theory sees these interactions as involving a set of abstract actors, termed actants, which appear in pairs: Sender-Receiver, Subject-Object, Helper-Opponent. A Sender invests a Receiver as Subject of the story, by communicating a goal to him/her (though the actual Sender and Receiver may be the same; in other words, the Subject may be self-motivated). In achieving this goal (normally involving action upon an “Object”), or performing this task, the subject may be assisted by a “helper,” or obstructed by an “opponent.” The figures of “helper” and “opponent” were derived from the plots of Propp’s Russian folktales. Later, the “helper” and “opponent” disappeared from the model as independent actants, and were replaced by a more abstract notion of the presence or absence of the competences – the savoir-faire and pouvoir-faire – required to perform the action. In “recognition,” too, a Sender sends a message to a Receiver, which produces the sense that the task is recognized as having been performed, not performed, well performed, badly performed, etc. The scheme may be represented diagrammatically as seen in Figure 5.1.
The paradigmatic axis is based on Saussurian and Lévi-Straussian foundations. At every point on the syntagmatic axis (as in the single sentence), there are choices to be made. But such choices are limited to things which may be substitutable, one for the other. At each point in the narrative syntagm, there exist conventionally defined semiotic constraints, as to what elements are substitutable for each other without altering the meaning of other elements in the syntagm. These constraints may reflect binary oppositions (analyzed in terms of the “semiotic square”) or larger groups of substitutable elements, as in relations of “hyponymy.” Discourse elements, just as individual words, have similar relations, and may similarly be substituted (or not substituted). Greimas, however, offers a more formal description of how this works. Binary oppositional relationships, in particular, reflect a structure called the “semiotic square,” in which “contradictories” and “contraries” are distinguished. Where two terms are contradictory, not only does the assertion of the one entail the negation of the other; the negation of the one entails the assertion of the other. In a conventional opposition (contrariety), on the other hand, the assertion of one term entails the negation of the other, but the negation of one term does not entail the assertion of the other. Black v. White is such a relationship: if something is black, it cannot be white, but if it is not black, it is not necessarily white, as seen in Figure 5.2.
“Opposites” like black and white, cat and dog, guilty and innocent may be analyzed in this way. Thus, in the conventional understanding of black and white as “opposites,” we go up the sides of the square, in treating “white” as the privileged manifestation of “not black” (the contradictory of “black”) and “black” as the privileged manifestation of “not white” (the contradictory of “white”). This may be illogical, but it aids considerably the construction of sense within social interaction (where we are not all logicians). It is this same process which prompts the lay assumption that a person found “not guilty” (the contradictory of guilty) is in fact “innocent,” choosing to privilege that particular choice from amongst the possible senses of “not guilty.” This also illustrates the proposition that the meanings of terms depends upon their internal sense relations rather than their referents in the outside world. “Not guilty” has different meanings in the English and Scottish legal systems, since the latter also provides the possibility of a “not proven” verdict.Footnote 74
In the sending and receipt of messages regarding performance, which constitutes the “Recognition” part of the narrative syntagm, the evaluations thus communicated are often termed “modalities.” They are not, however, confined to “evaluations” in the normal (judgmental) sense. They may include aesthetic and emotive evaluations. The behavior of a lawyer, for example, may be accompanied by such modalities as helpful, formalistic, polite, and efficient. Modalities may also be “deontic,” expressive of different types of normativity: in Western legal systems, behavior may be permitted, required, or prohibited, while in Islamic jurisprudence it may also be recommended or disapproved.Footnote 75
“Above” the “deep level,” there is a level of construction of meaning contributing more directly to the meaning of the surface data (for Greimas, the “level of manifestation”), which may be termed “thematic.”Footnote 76 Early in my career (and before my exposure to semiotics) I reviewed George Fletcher’s Rethinking Criminal LawFootnote 77 and was particularly struck by his use of the notion of “collective images.”Footnote 78 Fletcher argued that the technical intricacies of the common law of larceny, particularly in the seventeenth and eighteenth centuries, were best understood in terms of the relationship of different fact situations to the “collective image of acting like a thief.” That collective image served as a kind of paradigm: if one asked people what their typical image of the activity of a thief was, the response was likely to be the nocturnal burglar. (Of course, collective images are temporally and culturally contingent.) From this it does not follow that the daytime pickpocket would not be regarded as within the collective image of acting like a thief (though it might generate its own independent collective image – thus burglar versus pickpocket). Clearly, there will be cases closer to or more distant from the paradigm: the daytime burglar, the nighttime thief who puts his hand in the window but not his body, etc. But the collective image was not merely a description of typical action; it also included a tacit social evaluation. This collective image of acting like a thief involved a particular frisson, a fear of the intruder, a horror of the crossing of territorial boundaries, with all the attendant danger which, socially, such boundary-crossing is thought to entail. We may translate such tacit social evaluations into our semiotic model, as the transfer of modalities: the activity of the thief is recognized as (though here, perhaps, not necessarily performed as) dangerous.
In my version of semiotic theory, I call such paradigms “narrative typifications of action.”Footnote 79 From this example, three important elements of the notion of a “narrative typification” emerge. First, a narrative typification is not a definition in terms of necessary and sufficient conditions; as a model which informs our perception, it does not generate (as the positivist might wish) “demonstrable” judgments as to what is “within” or “outwith” the image. But it is capable of generating judgments of relative similarity. Second, such a typification is not a neutral description; it comes, always, laden with a form of evaluation (for even “indifference” is a form of evaluation). Third, some typifications belong to particular social and/or professional groups – “semiotic groups,” distinguished one from another by the (often overlapping but still distinct) systems of signification operating within them.
However, there is no complete divide between semiotic groups, even those of the laity and professionals. Even though (institutional) Law and Religion are forms of secondary symbolization (using the primary, natural language in a particular, specialized way), they remain (being human constructs) parasitic upon social understandings, despite any ideological claims to autonomy, such as the notion of the “artificial reason of the law.” It is a primary claim of the work I have done in legal semiotics that even lawyers cannot escape their own humanity and social settings. Underneath every legal formulation, the primary social understanding may be submerged, but not eliminated.
Greimasian semiotics stresses that both the narrative syntagm and narrative typifications of action are applicable not only to the content of a narrative (semantics), but also to the act of enunciation (or communication) of that narrative (pragmatics). Indeed, no complete understanding of the sense of the message itself is complete without making sense of the purpose of communicating it. I have called this the narrativization of pragmatics.Footnote 80 The enunciation of messages is as much an action as anything else which human beings do (as speech act theory has recognized). It is generally assumed to be meaningful action. We therefore have to ask whence derives its meaning. A Greimasian would claim that the very act of communication of a message is equally analyzable according to the model of the Greimasian and narrative syntax, and thus reflects (at the “deep level”) the semio-narrative syntagm. But within any particular society or social group, what counts as a successful enunciation, and what type of enunciative meaning is attributed to it (assertion, threat, play, irony, etc.) are matters of internalized social knowledge (at the “thematic level”),Footnote 81 as indeed are the signs (at the “level of manifestation”) of successful performance.
Application of the Greimasian model to issues of law and religion thus requires us to pose the following questions:
Who is the Subject of the act (whether linguistic or not) in question?
How is that Subject constructed, which entails:
(1) Who sends to (or invests with) the subject the appropriate modalities?
(2) What are the appropriate modalities in this particular case?
What is the act which the subject performs?
Who performs the recognition of that act?
How is that recognition constructed, which entails:
(1) Who sends to whom the appropriate modalities?
(2) Who receives them?
(3) What are the appropriate modalities in this particular case?
Crucial to the application of this model is the understanding of the existence of different semiotic groups, defined by their distinctive ways of constructing and communicating sense.Footnote 82 Thus, the same act may be understood (recognized) in quite different ways within different semiotic communities, not least because of their adoption of different semantic relations within the same natural language.
Space does not permit the giving here of a systematic account of the application of all aspects of the Greimasian model to “law,” “religion,” or “religious law.” But it is not difficult to locate within the model the nature of the differences between secular law and religious law. Two issues may here be highlighted. First, the identity of the sender who invests the subject with the desire/obligation/competence/authority to act. In secular legal theory this would normally be the state or constitution; generally, in religious law it would be God.Footnote 83 But our very use of the terminology of State, Constitution or God raises the very same (Saussurian) questions of sense and reference, to which there can be no objective answer within language.Footnote 84 A second issue is the forms of recognition which may be accorded, whether the act be one of a legal institution or a private individual. As noted above,Footnote 85 in western legal systems, behavior may be permitted, required, or prohibited, while in Islamic jurisprudence it may also be recommended or disapproved. The Halakhah does not have a formal typology of such modalities, but it is clear that there are forms of recognition which reflect the recommendedFootnote 86 or disapproved, rather than the permitted, required, or prohibited.
VI Greimasian Semiotics Applied to Law (Secular and Religious)
In what follows, I attempt to summarize some of my earlier work on the application of semiotics to secular law and apply the same type of analysis to the halakhah, in order to clarify the areas of commonality, and those of difference.Footnote 87 It also provides an opportunity to show the interaction of various aspects of the semiotic model described in Section V, and even to add one or two refinements to it.
A The Discursive Basis
A fundamental starting point is the realization that “law,” whether secular or religious, is in fact a collection of quite distinct discursive practices, linked by a set of inter-discursive claims. There is legislation, adjudication (which includes both decision-making and justification), and doctrine. Legislation puts forward rules applicable in general; adjudication seeks to resolve the disputes of individuals in the light of both legislation and whatever other sources of general rules are accepted by the particular system; doctrine encompasses both commentary on the reasons for particular areas of legislation and adjudication, and theorizing about the nature of the particular legal system or systems in general. When assessing the inter-discursive claims made in both adjudication and doctrine, we must start by examining how the “other” discourse is constructed in the discourse under consideration (typically, how the sense of a statute is constructed in the course of adjudication). And this involves not only an examination of the syntagmatic and paradigmatic structures of the “home” discourse, but also (so far as may be possible) its pragmatics: Who is communicating this message to whom, and for what purpose? Indeed, this emphasis on the individual discourse may be applied, reflexively, to the present exercise, and the particular senses of the “legal,” “secular,” and “religious” used in it, even if that discourse is thought to have incorporated a sense originating elsewhere (whether in literary or other sources).
There is no single, “natural,” relationship between these different discursive practices. Different “legal systems” may construct them differently. For example, “doctrine” plays a far more important normative role in civil law systems than in the common law. For the halakhah, “doctrine” may take the form of aggadah, including, in biblical literature, narratives. Thus, for example, in studying the Book of Ruth, we must start by examining how the levirate and women’s inheritance rights are understood in that narrative, before considering any possible relationship with the relevant pentateuchal laws.Footnote 88
Of course, the Torah bears little resemblance to any modern legal document. The laws, even those found in the Pentateuch, are embedded in a wider narrative; they do not claim to be the enforceable law of a state, but are presented as divine revelations (or teachings)Footnote 89 of what such a law ought to be. They consist largely in concrete, individual rules rather than legal concepts and institutions. Biblical scholars have highlighted the “casuistic form” as typical of Biblical law. This form comprises two elements: a protasis (a conditional clause: “If … ”) and an apodosis, stating the expected (“normative”) consequences of such an action. The protasis contains the first two elements of the narrative syntagm: the “contract” (instituting the subject) and the “performance”; it does not indicate the third element (the “recognition”) explicitly; instead, the apodosis provides a normative form of recognition. In the Jewish tradition, the latter may be either religious or sanctions of the type expected by nineteenth-century positivism (though in the religious tradition we cannot ignore the religious connotations of the death penalty). The religious forms of recognition are not confined to the ritual sphere, as may be seen from the responsum discussed below.Footnote 90
There is a tendency among some commentators, both academic and rabbinic, to downplay the role of the biblical Torah text in their understanding of Jewish law: at most, the text of the Torah is to be understood through rabbinic eyes. But this in itself has major consequences. The Rabbis recognize the foundational character of the biblical text for the later tradition. In so doing, they have to grapple with the problems posed by the literary character of the biblical text (including its frequent linguistic ambiguity regarding modalities, particularly between permission and obligation). They construct the text as presumptively perfect in terms of human rationality, and thus adopt a hermeneutics which most commonly assumes comprehensiveness, consistency and lack of redundancy, reserving the residual safety net of superior divine cognition for difficulties which appear to defy human resolution.
The distinctiveness of the discourses of legislation, adjudication and doctrine has occasionally been recognized in both secular jurisprudence and the literature of the halakhah. For the former, we may cite in particular the work of Hans Kelsen. From the beginning, his basic conception of the norm had a distinctly semiotic tone: the norm, he argued, was to be understood as the meaning of an act of will.Footnote 91 It was thus a form of sense attributed to an act of human behaviour. In his later work, he stressed that the justification of the norm (even in terms of reference to other legal sources) was not part of the norm itself, and should not be treated as part of the science of jurisprudence.Footnote 92 He even abandoned the use of logical subsumption (of the particular case within a general norm) as a form of justification, on the grounds that both the general norm and the particular norm were the meanings of acts of human beings (legislators, judges) but there could be no logical connection between one such act of will and another. I have debated logical subsumption in linguistic terms with Neil MacCormick, stressing that the judge always has to make a decision as to the meaning of the general norm s/he is applying, even if that is endorsement of its conventional meaning.Footnote 93 On less philosophical grounds, both Scandinavian and American legal realism are also skeptical about the relationship between legislation and adjudication.Footnote 94
In the literature of the halakhah, Elon cites a story of regarding a poseq (R. Ḥayyim of Brisk) who wished not to hear the reasoning of a colleague charged with deciding a case (R. Isaac Elḥanan of Kovno), on the grounds that he respected the authority of the latter to make the decision, but did not wish to hear his reasoning, in case he disagreed with it.Footnote 95
I have analyzed the Hart/Dworkin debate in terms of the discursive structures presupposed by each, using the semiotic square and Blanché’s development of the square of logic into a hexagonFootnote 96 and concluded that the focus of Hart was on legislation (which could have gaps, reflecting Blanché’s hexagon) while that of Dworkin was on adjudication (which could not have gaps, reflecting the semiotic square, with its conventional closure rule): for legislators, gaps could always be filled in the future; for judges, a decision had to be made in each particular case reflecting the best possible construction of the respective rights of the parties.Footnote 97 In the light of all this, I would argue that the conclusion of Ben-Menahem that “governance by judges rather than by rules is the primary feature of the talmudic legal system”Footnote 98 is no mere oddity of a particular religious system, but rather reflects the nature of the relationship between of decision-making and justification in general. I have argued, moreover, that decision-making is a private mental activity often involving subconscious invocation of particular forms of social knowledge,Footnote 99 while justification is a public communication to a particular audience, using the conventions and closure rules of that audience.Footnote 100
B The Modalities of RecognitionA full analysis of the “not guilty” verdictFootnote 101 indicates the following:
(1) People are not restricted to attributing a single modality to the action they are evaluating. “Guilty” and “not guilty” may be understood in terms of either “fact” or “proof” – or both: actually not guilty (= innocent) or not proved guilty (whether or not actually innocent).
(2) While the structure of particular modalities may be “binary,” as in “Guilty” versus “Innocent,” reflecting the most common form of sense, other, more sophisticated sense constructions are also possible, as in the Scottish triadic structure of verdicts, which is structured as a hyponomy.Footnote 102
(3) Both the structure (binary or hyponomic) and the substance of modalities may vary between different semiotic groups (reflecting their particular discursive structures), this in itself reflecting the different narrative syntagms in which they are involved.Footnote 103 In general, binary structures are a feature of orally communicated “common sense” (the sense we share in common), while hyponomic are more characteristic of and derive from literacy-based discourse.Footnote 104 But even this, as other aspects of semantics, is subject to socio-environmental factors, as the great variety of words for “snow” in Eskimo languages shows.Footnote 105
(4) In some cases even the semantic choices made at the paradigmatic level may themselves evoke narrative images.
I have stressed the link of narrative typifications of action (at the “thematic” level) with “tacit social evaluations.”Footnote 106 The latter also function as manifestations of the “recognition” element of the narrative syntagm,Footnote 107 specifically by the sending of nonlegal modalities in relation to aspects of the “Contract” and/or “Performance.”Footnote 108The nature and variety of institutional recognitions available within the halakhah, despite the absence of the typical sanctions available in a national legal system, is illustrated by a remarkable fifteenth-century responsum by R. Israel b. Ḥayyim of Brunn, which shows the weakness of the distinction between the legal and the religious in this context. A murder, of one Nissan, had occurred in the German town of Posen, committed by two people: “Simḥah” (in a state of drunkenness) and Naḥman (described by a witness as “ignorant and illiterate”). The latter had shown no remorse or penitence, and R. Israel indicates that there is nothing he can do about him. Nevertheless the responsum opens with a strong religious condemnation: “I name them both murderers, utterly guilty before the divine tribunal, but, (alas), beyond the jurisdiction of the human court!”Footnote 109 On the other hand, “Simḥah” was reported to have been “filled with remorse and seeks to repent.” For him, R. Israel recommends as follows:
He shall journey about as an exile for a full year. Every day he shall appear at a synagogue – or at least on every Monday and Thursday. He shall make for himself three iron bands, one to be worn on each of his two hands, which were the instruments of his transgressions, and one to be worn about his body. When he enters the synagogue, he shall put them on and pray with them on. In the evening he shall go barefoot to the synagogue. The ḥazan shall seat him (publicly) prior to the Vehu Raḥum prayer. He shall then receive a flogging and make the following declaration: “Know ye, my masters, that I am a murderer. I wantonly killed Nissan. This is my atonement. Pray for me.” When he leaves the synagogue he is to prostrate himself across the doorsill; the worshipers are to step over him, not on him. Afterwards he is to remove the iron bands … After one year he shall continue his fasts on Mondays and Thursdays. He shall, for the rest of his days, carefully observe the anniversary month and the anniversary date of the killing. He shall fast at that time (the date) three consecutive days if he is healthy or only two days, the day of the wounding and the next day, the day of Nissan’s death, if he is infirm. He shall, for the rest of his days, be active in all enterprises to free imprisoned Jews (i.e., hostages held by gentiles), charity, and the saving of lives. He shall work out an arrangement with his (Nissan’s) heirs to support them properly. He shall ask their pardon and the widow’s pardon. He shall return to God, and He shall have mercy on him.Footnote 110
Here, it is the “sentencing” which constitutes the form of communal (or institutional) recognition which the respondent proposes. The regime includes a physical mirroring punishment, elements of public humiliation, and the public confession and acceptance of the punishment as an atonement. But that is not the only form of recognition provided within the responsum: The question and answerFootnote 111 both also use moral condemnation: both perpetrators are “wicked.” This would be the primary form of recognition for the wider community: a social modality which evokes an image of a typical murder.Footnote 112 Indeed, R. Israel commences: “You have called Naḥman by his name Naḥman; you have called Simḥah a murderer. I name them both murderers.”Footnote 113 Moreover, R. Israel concludes with reintegration within the community: “And since Simḥah has expressed remorse and seeks repentance and atonement, immediately upon his submission to the program of public degradations, he becomes our brother once again for every religious purpose.”
Generally, we may think that the classification of the institutional sanctions, by the attribution of the modalities of the legal (in the secular sense) or the religious, represent a quite separate recognition process, of purely academic interest.Footnote 114 If so, this case provides an exception: the whole point of this regime, applied to Simḥah but not Naḥman, is that the offender must understand the religious significance of the regime, and indeed the community as a whole is being taught an important religious lesson in terms of how to treat offenders. Moreover, “legal” and “religious,” as applied to the sanctions, are not here constructed in a relationship of “contrariety”:Footnote 115 there are clear communal sanctions, partly of the physical nature, but they have a religious purpose, and depend upon the religious point of view of the recipient of those sanctions himself.
C Drafting, Decision-Making, and Narrative Typifications
The distinction between decision-making and justification is well illustrated in the legal context. Narrative structures underlie judicial decision-making, and frequently explain why a decision has been made in an area of legal difficulty and where the purely legal justification appears problematic, or eminently contestable. I have applied such an analysis, inter alia,Footnote 116 to Riggs v. Palmer,Footnote 117 the American case which Dworkin used in Taking Rights Seriously to demonstrate the need to use legal principles (and not merely legal rules) in deciding hard cases,Footnote 118 even though such principles might have to be inferred from the legal tradition, and would not pass Hart’s “demonstrability” test.Footnote 119 Here, the courts agonized, in doctrinal terms, over whether a grandson who – knowing that he had been named his grandfather’s heir in his will – had murdered him in order to secure and accelerate his inheritance, should be allowed to inherit, in the absence of any exclusion of such cases from the New York statute on wills. Ultimately, the New York Court of Appeals decided (by a majority of 2–1) that there was a principle of law, to be applied in this case, that “A person should not profit from his wrong.” Dworkin rejected the view of Hart that the legal system consisted of rules only, so that if there was a gap in the law, it could only be filled by creation of a new rule by the exercise of judicial discretion. Against this, Dworkin argued that there was always a correct, or at least a best available, answer in the existing law, if the judges looked hard enough, even though only a “Hercules,” a “lawyer of superhuman skill, learning, patience and acumen,”Footnote 120 might be able to persuade his colleagues of such. But once one looks at the facts in “common sense” social rather than purely legal doctrinal terms, one realizes that this narrative is so distant from the typical situation of testamentary succession, which presupposes peaceable if not loving (a “tacit social evaluation”) family relationships, that it would “stink” (a nonlegal modality) to give the inheritance to the murderer. That means that we privilege the peaceable versus violent opposition in the narrative, and regard its deviation from the typical as sufficiently important to justify not applying the legal consequence normally associated with (peaceable) testamentary succession. In short, and despite the naive legal assumption that reasons stated by judges in their judgments represent fully and accurately the very bases of their decisions, we have to make a distinction between the private, mental processes of decision-making on the one hand, and the public, discursive processes of justification on the other. The “artificial reason of the law” may dominate in the latter, but the (no doubt culturally contingent) sense we have in common cannot be excluded at the psychological level.Footnote 121
Both the syntagmatic axis and the paradigmatic (through narrative typifications) were prominent in the famous “Brother Daniel” caseFootnote 122 decided under Israeli (not Jewish) law on who counted as a Jew for the purposes of Israel’s Law of Return 1950.Footnote 123 The petitioner, Oswald Rufeisen, was born in Poland of Jewish parents, reared as a Jew, and was active as a youth in a Zionist Youth movement. When the Germans occupied Poland he managed to infiltrate a German police station and was able to pass information to the local Jewish population, thus saving them from deportation (and worse). He then fled to the forest and joined a group of Russian partisans. There came a stage when he had to take refuge in a small Catholic nunnery. There, he converted to Catholicism, while still regarding himself as a Jew and adopting the name of “Brother Daniel.” After the war he maintained his earlier commitment to emigrate to Israel and ultimately arrived there in 1958, claiming his right to Israeli citizenship as a Jew under the Law of Return. By a majority of 4–1, the Israel Supreme Court denied his petition, while allowing him to enter and ultimately obtain citizenship by naturalization. Rufeisin’s story combines elements from different Jewish narrative stereotypes. We commence with an unremarkable narrative of a Jewish boy seeking to fulfil a Zionist ideal, proceed to the quite remarkable story of a war hero, and then to the story of a Jew who has converted (deserted) to Christianity. To make sense of all this, we need either to select and privilege some aspects of the story and suppress others, or to create a new synthesis and with it a new evaluation. We do not normally find the hero and the deserter united in a single person. Justice Silberg, for the majority, described his own “psychological difficulty” in the case and speaks in terms of conflicting evaluations: “But this sense of profound sympathy and obligation [to Rufeisen] must not be permitted to mislead us and to justify our profaning the concept of ‘Jew’ both in name and in meaning.” The differences between the majority and minority on the court as to whether a Jew who had adopted Christianity could still be regarded as a Jew, I argued, depended on whether “Jew” and “Christian” were contraries within a semiotic square or whether they admitted of further possibilities (in accordance with the logic of Blanché). For the majority, they were contraries: a Jew could not be a Christian (and this, in the light of the malign history of Jewish-Christian relations, rather than on theological grounds).
But the differences between the majority and minority went beyond their conceptions of “a Jew” and extended to the Jewish nature of the State itself – whether it should be viewed simply as a continuation of the Diaspora experience (which maintained tradition in a defensive way) or as representing a rebirth, a fresh start. This latter issue, I suggested, reflects differences in constructing the relation between Past and Future, which could also be analyzed in terms either of the square or the hexagon. Justice Cohn, the one judge finding in favor of Rufeisen, contrasted the petitioner’s openness on arrival at the Port of Haifa (observing: “Had he folded his gown, hidden his cross and concealed his creed, the gates would have been opened wide without protest”) with the historic position of Diaspora Jews who, “loyal to their ancestral faith, donned the outward garb of the Christian religion so that they might continue to dwell in the lands beloved to them and harvest the fruit of their toils.” Citing Isaiah xxvi, 2, “Open ye the gates that the righteous gentile which keepeth the truth may enter in,” Justice Cohn argued that it was such openness which the State of Israel should now display, showing its own liberation from the constraints of the past.There is much scope for examining the role of narrative typifications in both general norms and adjudication in Jewish law, but the issue presents itself differently according to the period, literature, and semiotic groups concerned. I confine myself here to the early period. In any legal system, the earlier we go back the more their general norms reflect ordinary speech rather than technical formulations. I have argued that many of the laws of the mishpatim of Exodus 21–22 reflect socially understood narrative typifications, even when those narratives are not fully stated. A simple but clear example is Exodus 22:2–3 (MT: 1–2),Footnote 124
2 If a thief is found breaking in, and is struck so that he dies, there shall be no bloodguilt for him;
3 but if the sun has risen upon him, there shall be bloodguilt for him.
The biblical provision has appeared to many as badly drafted: the first verse, which allows self-help, makes no explicit mention of the time of the incident; the only explicit reference to the time occurs in the second verse, which denies the legitimacy of self-help during the day. It is in the light of that qualification, apparently, that the permission of self-help has to be restricted to the nocturnal incident. This would appear at first sight to be a very strange type of drafting. Apparently, the audience is first given the impression that self-help is always available, then this is qualified by denying its availability when the incident occurs during the day. Indeed, some scholars have wondered whether the second verse may be a later addition: originally the householder was entitled to kill the intruding thief at any time of day or night; later this form of self-help was restricted to the daytime intruder.Footnote 125 But if we pose the question of meaning of v.2 not in the (semantic) form of: “what situations do the words of this rule cover?” but rather in the (narrative) form of: “what typical situations do the words of this rule evoke?” then we are entitled to take into account the image of typical thieving presented in the book of Job:
Job 24:14, 16
This indicates that nocturnal activity was the primary image of acting like a thief. Exodus 22:2 did not have to make that explicit: it was part of the narrative image evoked by the words.
As regards decision-making, it may be tempting to suggest that many of the thirty talmudic instances of decision-making “not in accordance with the Halakhah” collected and analyzed by Ben-Menahem,Footnote 126 may repay analysis in this light. And indeed, some of them bear substantive comparison with Riggs v. Palmer, insofar as a party is penalized for immoral conduct which is technically legally valid.Footnote 127 More generally, it is not easy to elicit the social understandings underlying the talmudic sources. Later responsa appear to be a more fruitful ground, as in the murder case on which R. Israel b. Ḥayyim of Brunn was asked to advise,Footnote 128 and in which a host of socio-religious understandings are explicit. But here we are dealing with the equivalent of a modern “sentencing” decision, in which considerable discretion, within legal parameters, may be given to the judge. Jewish family law, however, continues to use narrative typifications of female behaviour, with social evaluations influencing legal outcomes: “it is better (for a woman) to dwell in grief than to dwell alone” (literally: in widowhood);Footnote 129 and the fear that a woman seeking divorce may in fact have “cast her eyes upon another man.”Footnote 130
D The Narrativization of Pragmatics
It is not only in the spheres of the content of adjudicatory decisions that the notion of narrative typifications comes into play. I have applied it to the secular trial process, distinguishing within it the “story in the trial” from the “story of the trial,” the latter manifesting the narrativization of pragmatics.Footnote 131 We can ask about the Subject, Performance, and Recognition of each of the plethora of different communicative acts within the trial process. In principle, the same model is applicable to religious institutions and discourse, and to the components of “religious law.” Nor is recognition of the speech behavior of participants in any formal legal process restricted to legal modalities. In 1992, a case was reported of an American judge deciding to convict for speeding on the toss of a coin.Footnote 132 The case was not appealed, and so the conviction stood as legally valid. However, the judge was subsequently censured by the Judicial Conduct Commissioner of the State of Washington, on a complaint charging him with violating judicial canons governing the integrity of the court, the avoidance of impropriety and the impartial performance of duties.Footnote 133 Similarly, in an English case, R. v. Langham and Langham,Footnote 134 the defense appealed on the grounds that the judge “was, or appeared to be, asleep during part of the trial and thus justice was not seen to be done.” The Court of Appeal refused the application for leave to appeal on the grounds of lack of evidence that the judge was actually asleep. Nevertheless it commented that if it was true that the judge appeared to be asleep, that “was a matter which the court would certainly deplore but was not a sufficient grounds for saying that justice was not seen to be done.” Given the essentially private nature of proceedings of rabbinical law courts, official parallels to such adverse social recognitions are unlikely to be found. However, there is much in unofficial media sources deploring judicial behaviour in relation to women, particularly in divorce cases.
E Authority, Truth, Trust, and Objectivity
We may turn to semiotics for assistance also in understanding the notion of authority in the legal system. It is part of the competence – pouvoir-faire – with which the Subject (whether of the legislative or adjudicatory act) is invested. But what is the appropriate legal modality of recognition of that Subject’s act? Normally, we would use the language of validity (the legal appropriation of true). But here as elsewhere, the argument advanced above about the relationship between truth and trustFootnote 135 becomes relevant, and is justified by the understanding that semantics are necessarily mediated via pragmatics. In short, the legal system cannot objectify itself so as to eliminate the dominance of persons over ideas. Of course, notions of political and legal authority are inculcated through education from an early age. But why do we trust in education? Because we trust our teachers, the delegates of our parents. Is the authority of the gedolim, regarded as the supreme halakhic scholars of the age, constructed through analysis of their works, or through trusting the judgements of others? Inevitably, for the most part it must be the latter, since intellectual access to such scholarship is restricted.
Modern secular law prides itself on its objectivity. The classic account of how this works is that of the legal philosopher H. L. A. Hart, for whom legal systems were characterized by the “union of primary and secondary rules.” “Primary rules” were the rules of substantive law; “secondary rules” were the rules which determined how the legal system worked, and included in particular “rules of recognition” formulated so as to provide a “conclusive affirmative indication” as to whether a purported primary rule was (recognized as) valid or not. This model thus generated the “demonstrability thesis”: with little exception, one could always know, objectively, what the law was.Footnote 136 One might, perhaps, expect a system of religious law to be even stronger (“more objective,” if that were possible). But this turns out, in the case of Jewish law, not to be the case. The end result, in my view, is that the system depends on trust rather than truth, and what it “demonstrates” is the mediation of semantics via the narrativization of pragmatics.
In the course of a five-year research project which I directed at ManchesterFootnote 137 on the vexed, practical problem of the “chained wife” (agunah) whose husband refuses to cooperate with the court in granting his wife a divorce (a get), thereby preventing her remarriage and rendering adulterous any subsequent relationship into which she may enter and the children thereof “illegitimate” (mamzerim), we discovered that what modern legal philosophers call the “rules of recognition” of the legal system remain, in Jewish law, subject to significant controversy. This, we found,Footnote 138 applied to (1) the rule of majority decision itself (often regarded as the most basic “secondary rule” of Jewish law); (2) the rule that, as amongst post-talmudic authorities, later opinions are followed in preference to earlier ones (hilkheta kebatra’ei), but leaving a discretion to the contemporary judge not to follow the later authority when that the latter’s decision might have been different had he been aware of a (later discovered) earlier authority; (3) uncertainties also exist in such areas as the status of newly discovered MS sources; (4) the status and identification of the “leading authorities of the day” (gedoley hador).
Indeed, doubts as to what is authoritative in the system are so extensive that a (creative) doctrine of doubts has developed, granting discretion to be lenient in various types of case given the existence of different levels of doubt (safeq): a single doubt relating to an issue of rabbinic status is sufficient to justify exercising leniency; a single doubt relating to an issue of biblical status is not sufficient to justify exercising leniency, but a double doubt is sufficient.Footnote 139 Yet reliance on these rules regarding doubt is discretionary. In the absence of any universally accepted central rabbinic authority, different rabbinic courts will exercise that discretion in different ways. Some may even deny that the discretion exists. Can there then be any objectively correct answer in such a situation? Despite the continuing endorsement by some influential rabbinic voices of a positivist-inspired objectivity, the better answer – and one, I would maintain, itself supported by Jewish tradition – is that the halakhah is based at least as much on the concept of trustFootnote 140 as on that of truth.Footnote 141
We should not, moreover, assume a universal conception of “truth.” The Rabbi, philosopher and theologian Steven Schwarzschild wrote: “In Judaism truth is primarily an ethical notion: it describes not what is but what ought to be,”Footnote 142 citing the association of truth with ethical notions in the BibleFootnote 143 and rabbinic literature.Footnote 144 Hermann Cohen designated the normative unity of cognition and ethics as “the fundamental law of truth.”Footnote 145 And Martin Buber is said to have identified faith (emunahFootnote 146) with truth, here conceived as interpersonal trust.Footnote 147 And such conceptions derive support from classical rabbinic sources, as is shown by the already citedFootnote 148 talmudic passage where a heavenly voice (bat qol) affirms apparently contradictory opinions of the rival rabbinic schools of Hillel and Shammai (Erubin 13b) in the words “these and these are the words of the living God,” but concludes that in practice one should follow the views of the School of Hillel. The Talmud then asks: “what was it that entitled Beth Hillel to have the halakhah fixed in agreement with their rulings? – Because they were kindly and modest, they studied their own rulings and those of Beth Shammai, and were even so [humble] as to mention the action of Beth Shammai before theirs.”
Though my conclusion regarding the relationship between truth or trust was arrived at largely through the above research project on contemporary Jewish divorce law, there is reason to suspect its pertinence also to secular law. Critical theorists have long maintained that the objectivity of the legal system is an ideological construction, designed to preserve while concealing the play of power, through invoking logic and in other ways.Footnote 149 Dworkin’s invocation of Hercules as a “lawyer of superhuman skill, learning, patience and acumen”Footnote 150 may appear to be a giveaway, but even Hercules seeks to base trust in himself on rationality rather than intuition or other personal characteristics. But there are good semiotic reasons to prioritize trust: trust is an interpersonal relationship, thus integrally involved in pragmatics; truth (on the Saussurean approach to reference) is merely a claim, which must take account also of the narrativization of pragmatics.
F The Medium: Orality and Literacy
No semiotic account may properly ignore the media through which the message is communicated. Even where this is language, there remains an important distinction between orality and literacy. There are (associated) diachronic and cognitive aspects to the relationship, as seen in the important work of Walter Ong and Basil Bernstein.Footnote 151 We can trace the process by which oral norms of behaviour increasingly assume a literary form. In the Bible itself, Daube pointed to what is there an unusual feature of drafting. Num. 35:16–19 commences: “But if he struck him down with an instrument of iron, so that he died, he is a murderer; the murderer shall be put to death.” As far as the (punitive) consequences (“recognition”) of the act of striking are concerned, “he is a murderer” (rotseax hu) is logically redundant,Footnote 152 although verse 19 does add a further consequence of being “a murderer,” allowing the avenger of blood to kill him when he meets him. So we have here a classification of the act, or more accurately the actor, to which a further normative consequence is attached. Daube called it the “diagnosis form,” on the analogy of medicine.Footnote 153 Similarly, in commentingFootnote 154 on the development from the use of verbal forms (“if a man steals”) to nominal forms, particularly the use of “action nouns,”Footnote 155 Daube, observed: “there has been some reflection on the activity in question, there is some trend towards instruction, systematisation, classification, perhaps, and the thing is becoming more of an institution” while stressing that such a development was by no means restricted to law but rather characterizes “much of the intellectual history of civilization.”Footnote 156 But then, we must ask, cui bono? In whose discourse (in which “semiotic group”) is such a development useful? We very quickly arrive at the (surely, obvious) conclusion that there is no single “legal” discourse: we need to distinguish between laity and professionals, and indeed subgroups within each.
One consequence of this is that there is no single, or privileged, form of “legal” interpretation. The closer a written text may be to its oral (social) origins, the more important the “oral residue” which remains submerged, in the form of “narrative typifications of action.” It is not that the written form necessarily “defines” such typifications; rather, such typifications may be evoked by example.Footnote 157 This requires a different form of reading/understanding from that of modern law. In particular, there is no warranty whatsoever for applying the logic of “necessary and sufficient conditions” (“If” = “if and only if”). Rather, it becomes a matter of assessing the relative similarity of other cases to that offered in the text and to judge the utility of deciding similarly.Footnote 158 To take an example from my recent work on the Book of Ruth: the institution of levirate may be typified by Deuteronomy’s “when brothers live together … ” (Deut. 25:5) but should certainly not be restricted to that situation.
VII ConclusionsFootnote 159
In one important respect, our semiotic analysis makes a difference to the way in which we understand the relationship between law and religion, at least as regards religions which include a doctrine of revelation. The starting point of the narrative syntagm, the “Contract,” involves the construction of a (human) subject, who in the legal context may be legislator or judge. In each case, it presupposes the transfer, through communicative means, of a “competence.” For orthodox Judaism, the Sender of that competence is God. Revelation (in its various forms)Footnote 160 thus cannot be confined to theology;Footnote 161 it plays an integral part in the way we make sense of actual legal practices. Of course, human understanding of God as the source of revelation requires, from a semiotic point of view, the human attribution of particular modalities of competence and reliability to God, as Subject of the communicative act of revelation. “God” in human discourse is necessarily a human discursive construction, even though in so using it the claim is made that it refers to a real God. The existence of this God, not to mention its nature, is beyond human proof, notwithstanding the (largely anthropomorphic) heuristic devises which we use to get close to it. And essentially the same argument may be applied where “the Law” is personified as the Sender.
A sceptic may wish to go no further, and say that much of the “religious” discourse is an exercise in fictions. But even if we accept that human language cannot “refer” (in the strict sense) to matters which are not sensory and about which deictic (in the strict sense) statements cannot be made, this cannot prove the non-existence of such phenomena, any more than positive statements about them can prove their existence. On this argument, truth cannot be established by discursive means, even though the credibility or force of such statements can be explained in terms of interpersonal trust.
But there are issues where the tension is more acute. Take the example of a “cultural Jew,” brought up in a household of moderate observance, who continues to observe some of the rituals, such as the Pesach seder, but without any sense of religious obligation. How do we characterize such a practice? Do we recognize it through the modality of “religious” or not? And can we make that judgment independent of the religious politics of any particular community (or semiotic group)? I am reminded, in this context, of the famous observation of Maimonides (in what appears to be its most authentic version) in relation to the eschatological fate of Noahides. They do merit the world to come, says Maimonides, but only if their observance of the Noahide commands is because they believe that they were given by God; otherwise, such Noahides (who observe those commands because of their rationality) may be regarded only as wise men.Footnote 162 All the more so, it may be argued, in relation to cultural Jews? But they too have an internal point of view, that of their own semiotic group, and if that group qualifies such behaviour as “Jewish,” even if not as “religious,” who are we to quarrel with the sense of Jewish identity which they construct? That, I may observe, was certainly the approach adopted by the late Justice Haim Cohn in the Shalit case and in his (wonderful) dissenting judgment in the case of Oswald Rufeisin (“Brother Daniel!”).Footnote 163
The overall effect of the argument of this paper may be a simple affirmation, at least in the following sense: the basics of sense construction, as understood by the Greimasian model, are the same for both law and religion. At the same time, the model allows for the identification of differences. But it also problematizes the value of the concepts themselves: who, we may ask, needs to talk about either “law” or “religion” as such? – a very different question from that of the characterization of particular acts or norms as “legal” or “religious.” “Law As Religion: Religion As Law” is thus a secondary (or meta-) question addressing the relationship between institutional concepts rather than human behaviour in either its factual or normative dimensions. It may, however, figure large in the rhetoric of religious politics, whose full understanding requires us to narrativize the pragmatics (speech behaviour) of its participants.
The theme of this volume – the affinity between law and religion – may be productively analyzed at a range of resolutions, from a microhistorical focus on specific religio-legal phenomena, to a broader perspective on how law and religion interact within particular societies or cultures, to an overarching comparison of law and religion as cultural discourses. However, the broader the scope of the analysis, the more pressing the issue of methodology becomes. Specific phenomena may be examined using any number of academic disciplines (history, sociology, cultural studies, gender or race studies, etc.), while a broader analysis demands a sure grasp of philosophy of religion, philosophy of law, or both. At its most all-encompassing, a study of the affinity between law and religion requires a methodology distinct from both philosophy of law and of religion which is able to analyze both fields using a single set of tools.
The field of semiotics is particularly well suited to this task, as it offers a technically precise definition of a discourse which can serve as a model for both religion and law. Following a brief survey of key concepts in semiotic theory, we will analyze some of the distinctive features of legal and religious discourse and then narrow our focus to an important feature that they share, namely their conservative character. Our goal is to develop a methodological framework for analyzing this common feature of law and religion. We will define conservativism in terms of the general properties of semiotic systems, and argue that this characteristic is an intrinsic feature of both religion and law, rather than a function of particular social or cultural circumstances.
II Defining Discourses
The proper subject of semiotics is the sign – any discrete, repeatable representational form. A sign may be simple, which is to say irreducible – a phoneme, a letter, a physical movement; or it may be compound, which to say composed of smaller sign-units – a statement, a text, a ritual, a painting or photographic image. One of the key principles of semiotics is that meaning is not inherent in the form of the sign, but rather the product of relationships between signs. (Umberto Eco proffers that “properly speaking there are not signs, but only sign-functions.”Footnote 1) Hence an important aspect of semiotic analysis is the way that the meaning of any sign is determined by the system of signs within which it is situated. Language is one example of a semiotic system, but any system that conveys information through the medium of discrete, repeatable forms may be treated as the object of semiotic analysis. Semiotics is relevant to law not only because it is articulated using language, but more fundamentally because legal systems consist of a range of physical forms – terms, texts, images, practices, and procedures – which generate meaning and facilitate communication. The same is true of religion, science, the arts, or other material cultures – any of the systems of meaning that constitute human society.
An essential aspect of any sign system is the fact that its structure is that of a network rather than a hierarchy. Ferdinand de Saussure posits that sign systems generate meaning through patterns of difference between the component signs of the system, and it is only these patterns which divide the amorphous mass of semiotic space is into discrete units of signification. Thus, the most basic element of a sign’s meaning is its value – its position within the semiotic network, as defined by the way its semantic range is demarcated from that of other signs in that network.Footnote 2 As Eco explains, semiotic values issue from within the system itself; “they are not defined in terms of their content … but in terms of the way in which they are opposed to other elements of the system and of the position which they occupy within it.”Footnote 3While Saussure demonstrates the concept of value with regard to simple signs, such as phonemes and words, later semioticians such as A. J. Greimas, Julia Kristeva, and Michel Foucault explain that compound signs are also defined by their position within a network of similar signs. The difference between simple and compound signs is that a compound sign invariably has at least two layers of meaning, the first determined by the rules of a particular code regarding the combination of individual units, the second determined by the sign’s position within the network of other compound signs within which it is situated. Foucault articulates the difference between these two layers in his distinction between a sentence and what he refers to as a “statement” (énoncé):
[T]here is no statement in general, no free, neutral independent statement … : it is always part of a network of statements, in which it has a role, however minimal it may be, to play. Whereas grammatical construction needs only elements and rules in order to operate … the same cannot be said of the statement. There is no statement that does not presuppose others; there is no statement that is not surrounded by a field of coexistences, effects of series and succession, a distribution of functions and roles. If one can speak of a statement, it is because a sentence (a proposition) figures at a definite point, with a specific position, in an enunciative network that extends beyond it.Footnote 4
Analyzed as a sentence, a series of words derives its meaning from the grammatical rules of a given language; analyzed as a statement, the same series of words derives its meaning from its position within a network of other statements – what Foucault refers to as an “enunciative field” or simply as a discourse.Footnote 5 Foucault’s model thus explains how a given sentence may take on a range of meanings beyond its “literal” (i.e., grammar-determined) meaning depending on the discourse within which it is situated. At the risk of oversimplifying, we may say that semiotics as a field takes the set of tools designed to analyze language and uses them to analyze higher level discourses,Footnote 6 a discourse being nothing more than a structured network of compound signs. This is an important aspect of Kristeva’s celebrated concept of intertextuality: the meaning of a literary text is determined not only by its internal structure but also by its relationship to other texts within a literary canon.Footnote 7
Semiotics provides not only a technical definition of a discourse, but also an explanation of what it means for two discourses to be distinct from one another. Consider the relationship between law and morality, two discourses with a particularly complicated relationship. It is tempting to think of law and morality as part of an integrated normative system, in which moral precepts function as the overarching principles for legal adjudication – a position that has been articulated in various forms within modern legal theory.Footnote 8 Yet it is obvious that we frequently assign different moral and legal values to the same action: an act can be morally good but legally prohibited, or morally wrong but legally permissible. In contrast, an act cannot have two antithetical values within the same system: it cannot be simultaneously legal and illegal, or moral and immoral.Footnote 9 Hence to conflate law and morality with one another is to undermine a basic dimension of what it means for something to have legal or moral significance.
We can make the same point with regard to the relationship between religion and science. Peter Berger notes that if one defines religion (following Thomas Luckman) as reflecting the “human capacity for self-transcendence,” one could conceive of modern science as a sort of religion.Footnote 10 Yet Berger rejects this as patently unhelpful, since “[i]f one does that, one is subsequently forced to define in what way modern science is different from what has been called religion by everyone else.”Footnote 11 To wit, we instinctively categorize certain types of propositions about the world as scientific and others as religious. The discourses of religion and science constitute different sets of values (again in the semiotic sense of the term) that do not always correlate with one another.Footnote 12
It is important to state that our concise definition of a discourse does not do justice to the vast internal complexity of each of the discourses we have mentioned. Any legal, religious, moral, or scientific system is made up of many different types of signs – not only spoken and written language, but also actions (practices, procedures, rituals, etc.) and two- or three-dimensional representational forms: art, architecture, food, clothing, etc. Even if we limit our definition of “discourse” specifically to linguistic elements, we are still faced with an enormous variety of terms, statements, texts, and formulae that are part of any cultural system. That is to say, closer analysis reveals each of these discourses to be further divided and subdivided into countless smaller networks of signs.Footnote 13 A fuller analysis of such internal divisions is beyond the scope of this study. However, below we will argue for the heuristic value of a simplified schematic of each of these discourses notwithstanding their internal complexity.
We should also note that value is only one element of a sign’s meaning, reflecting the oppositional relationships between signs. Cultural scholars have often focused exclusively on the semiotic structures created by these oppositional relationships (hence the movement known as structuralism), thereby preventing a full appreciation of what semiotics has to offer to the study of human culture. After all, much of the semiotic functioning of cultural discourses – the way representational forms generate meaning and facilitate communication – comes from positive relationships between signs,Footnote 14 what Charles Sanders Peirce aptly describes as “the translation of a sign into another system of signs.”Footnote 15 We will not address this dimension of semiotic theory, since this chapter is less concerned with the way individual discourses function as systems of meaning than with the differences between distinct discourses and their positions relative to one another within the broader array of contemporary society.
III The Semiotic Concept of Canonicity
The notion that meaning is dependent on a network of individual signs affects how we analyze the evolution of languages and other discourses over time. One of Saussure’s major contributions to linguistics was his insistence that language must be studied first and foremost synchronically as a network of mutually defining signs before it can be analyzed diachronically. This is not because languages are static (they are not), but rather because “language is a system of pure values, determined by nothing else apart from the temporary state of its constituent elements.”Footnote 16 That is to say, from a semiotic perspective, any system of meaning is all structure; without a clear picture of the patterns of difference among the components of the system at a given point in time, there is no “thing” to analyze. Thus the existence of any language or higher-level discourse necessarily depends on there being an accumulated body of signs to constitute it and to ensure its stability over time. For the same reason, Saussure insisted that linguistic evolution can be analyzed only in terms of changes to individual elements, not to the system as a whole: in order to for us to able to speak of change to the system, the structure that is the system cannot be destabilized.Footnote 17
This property of semiotic systems – the fact that signs must inhere within the system in order for it to function – is an important aspect of what we refer to as canonicity. We often speak of a canon in terms of a set of exemplary units in a specific discourse: a body of outstanding works of literature or art, a collection of cases and statutes that are most often cited or studied in legal contexts,Footnote 18 a set of iconic experiments in scientific discourse.Footnote 19 In contrast, canonicity in the sense we are using it is a property of all units of a semiotic system: once a sign is accepted as an element of the system – a word is recognized as meaningful within a given language, a ruling is endorsed as legally authoritative, an experiment is recognized as scientifically significant – it becomes part of the internal structure of that system, and tends to inhere within it over time. Moshe Halbertal has referred to this as “formative canonicity,” the way that terms and texts that have already been incorporated into a discourse continue to be “taught, read, transmitted, and interpreted” over time, effectively functioning as the “shared vocabulary” of a given society or profession.Footnote 20 In effect, the property of canonicity changes the shape of a semiotic system in relation to the axis of time: even when signs enter the system at different points in its history, their relationship to one another may be analyzed synchronically so long as they are in use at the same time. As Krsiteva explains regarding the significance of a literary canon, “Diachrony is transformed into synchrony, and in light of this transformation, linear history appears as abstraction.”Footnote 21
Our use of the term canonicity to refer to the way that semiotic systems retain their constituent elements over time is different than the way the term has been defined elsewhere in contemporary scholarship. For instance, Jonathan Z. Smith defines a religious canon as a structured catalog of religious objects or texts that has undergone “closure,” which inevitably leads to its interpretation and application to a much broader range of phenomena.Footnote 22 Smith is certainly correct that the concept of canon is integral to the use of a set of signs as the basis for a far-reaching exegetical agenda. Yet his association of canonicity with closure is too simplistic: it is true that the initial process of canon-formation requires some sort of closure, roughly meaning a distinction between those forms that are “in” and those that are not, but there are many systems that we think of as canons that do not remain closed, and continue to accrue additional forms over time. For example, a canon of legal texts – those texts that are considered authoritative for legal practice and adjudication – may be expanded though various processes of recognition (executive or legislative actions, judicial rulings, etc.), some of which are invariably part of any legal system.Footnote 23 What distinguishes canons is not their closure to new elements, but rather their tendency to retain their constituent elements once they have been inducted.
While this tendency to retain sign elements is a defining characteristic of systems that we think of as paradigmatically canonical, the fact that any semiotic system depends on the existence of an accumulated body of signs indicates that all such systems must have this tendency to some extent; to wit, canonicity as we have defined it is a universal semiotic property, albeit a variable property. Strongly canonical discourses are conservative in the sense that existing elements to the system are preserved: they tend not to be displaced by new additions to the system nor do they become obsolete on their own. Weakly canonical discourses, on the other hand, may be characterized as progressive, in the sense that the component signs of those systems are frequently – and often actively – either displaced by new signs or simply discarded. However, even weakly canonical discourses are far more conservative than we normally assume them to be. To take the example that is the subject of Saussure’s own work, language is not a system of meaning that we normally think of as canonical, and indeed it tends to be progressive in the way that it jettisons words and grammatical features over time: even texts from fifty years ago frequently strike us as dated. Yet the concept of formative canonicity accurately expresses the fact that the vast majority of any given language remains extremely stable over time, and must remain stable in order for the language to function. Saussure ascribes the inflexibility of language to a number of factors, among them the size and complexity of the networks of relationships between signs, as well as the large number of members of the linguistic community who use them. But regardless, he concludes that language’s potential for change is appreciable only from a longitudinal perspective.Footnote 24
Just as the essential property of canonicity is an inevitable corollary of the mechanisms by which semiotic systems operate, so, too, we may propose that the degree of canonicity of a given semiotic system is determined by its specific semiotic function, the particular type of meaning it generates. The central claim that we will make in this chapter is that legal and religious systems are strongly canonical relative to other human discourses (language, the arts, material culture, science, and morality), and that this aspect of law and religion stems from the essential character of these discourses rather than from contingent factors, such as the political functions that these systems often serve. Obviously we do not mean to say that political authority is irrelevant to the dynamics of religion or law; on the contrary, authoritative bodies are frequently decisive in the process by which religious or legal signs become formally recognized. However, we will propose that once a sign has been integrated into a legal, religious, or any other discourse, its longevity is largely independent of that authority, and dependent instead on the specific character of that discourse and its broader, apolitical function within human society.
In and of itself, the notion that law and religion are conservative discourses is admittedly rather intuitive. The innovative elements of our analysis are our definition of canonicity as a variable property of all sign systems, and the notion that the degree of canonicity of a given discourse is determined primarily by the kind of meaning it serves to convey rather than by contingent factors such as the presence or absence of institutional authority. Our assertion about the strongly canonical character of law and religion is obviously extremely broad, and probably impossible to defend solely through an accumulation of data. Hence instead of focusing on historical or contemporary examples of legal or religious conservativism, we will take the opposite approach: examining the essential elements of both legal and religious discourse to understand why we would expect each of them to retain its constituent elements over time. Our purpose in doing so is not to prove this thesis conclusively, but rather to develop an analytical framework to serve as the basis for future research.
IV A Digression: Two Methodological Objections
However, before we proceed, we need to address two methodological objections that our analysis may raise. First, is it really possible to generalize about so many different types of religions and legal systems? Surely any system’s degree of canonicity is affected by the particular historical context in which it is situated and the specific nature of its component signs. Indeed, given our assumption that canonicity is a variable property of semiotic systems, it would seem reasonable to assume that just as different types of discourses may be strongly or weakly canonical, so, too, different discourses of the same type might not be canonical to the same degree. For example, there may be significant differences in the longevity of different modes of signs – performative (practices and rituals), material (art, architecture, food, clothing, etc.), or verbal signs (words and texts), as well as between oral and written verbal signs. Yet we will propose that these factors are secondary to the overall differences between law and religion on the one hand and other societal discourses on the other, such that religious and legal systems are conservative relative to other discourses within a particular society. If there is one set of contextual parameters that we must place on our analysis, it is that the concept of religion as we will analyze it is distinctive to the modern age, not because modern religion isn’t contiguous with premodern systems of meaning, but because the relationship between religion and other societal discourses – or rather the extent to which religion and other discourses can be considered separate from one another – has changed so drastically in the modern era.
A second, more fundamental objection may be articulated as follows: It is a prevalent view in contemporary scholarship that discourses are not anchored in any sort of context-independent foundation, be it rational, epistemic, or metaphysical. From this methodological starting point, some scholars have asserted that in the absence of another basis for discursive meaning, it is only the dynamics of power that provides a given discourse with its substance or legitimacy. The notion that meaning is a function of power has been asserted in philosophy of religion by Talal Asad,Footnote 25 in philosophy of science by Paul Feyerabend,Footnote 26 and is a prominent strain of thought among critical legal theorists.Footnote 27 According to these scholars, it is not possible to describe a set of principles or characteristics that defines these discourses apart from the political structures that utilize them. The thesis we have formulated specifically downplays the significance of political authority in determining the character of these and other discourses, hence prompting the question: in the absence of reason, metaphysics, or even power as the basis for meaning, what factor allows each of these fields to function as a discrete, coherent discourse?
As we suggested above, the key to understanding the way discourses function is the concept of difference, which Saussure posits as the most basic element of meaning. Just as the meaning of individual signs is generated most fundamentally by patterns of difference within a structured network of signs, so, too, individual discourses acquire meaning through patterns of difference between distinct discourses within a broader cultural framework. Our analysis going forward will be devoted to identifying some of the key characteristics that distinguish between different discourses in contemporary society.
The notion that something as firm as meaning is ultimately rooted in something as amorphous as patterns of difference seems deeply counterintuitive. Depending on one’s inclination, this makes it either a pivotal contribution of semiotics to critical analysis or a reason to be skeptical of semiotic theory. To readers who find themselves in the latter category, and who might still be inclined to view law, for example, simply as a veiled expression of power, we may note that more nuanced analyses of contemporary legal discourse have complicated the picture painted by critical legal scholars, showing how legal devices may also be used to challenge political authority and protect the disenfranchised.Footnote 28 This strongly suggests that the law has an independent dimension of meaning, which in turns allows it to be used for a variety of political ends.
V The Semiotic Character of Legal and Religious Discourse
Because semiotics analyzes any discourse as the amalgam of its constituent signs, understanding how discourses such as law or religion function differently from one another requires us to examine the kinds of individual statements and texts that we consider to be legal or religious in nature. Here we return to the problem of the internal complexity of each discourse: How can we characterize the system based on its constituent components if each discourse is comprised of so many different kinds of linguistic forms?
An instructive example for approaching this sort of problem is R. M. Hare’s analysis of morality in his book, The Language of Morals.Footnote 29 Hare’s approach is not explicitly semiotic, but he grapples with the same basic difficulty we have outlined here: how to articulate a unified definition of morality given the variety of statements within moral discourse. In the face of a pronounced bias among logicians toward indicative propositions (which can be measured against reality for their truth value), Hare argues that all moral judgments – even those formulated as indicative statements – necessarily entail prescriptive statements insofar as their purpose is to regulate behavior: “to guide choices or actions, a moral judgment must be such that if a person assents to it, he must assent to some imperative sentence derivable from it.”Footnote 30 To wit, the function of moral discourse can be fulfilled only if ostensibly descriptive phrases are taken as implicitly prescriptive. In effect, Hare reduces the semiotic variety of moral discourse to a single type of form.
In the course of his analysis, Hare addresses two counterarguments for why indicative statements may independently be considered moral propositions. One counterargument is the concept of moral naturalism, broadly speaking the idea that moral values are a function of the natural world, or at least of human nature, such that morality may be reduced to a set of indicative statements about what is “good” or “right.” Hare makes a compelling case that such statements are never merely descriptions of an ontological state, since the terms “good” and “right” necessarily reflect an evaluative dimension. Less convincing is Hare’s analysis of a second type of indicative statement: moral assessments which allude – descriptively – to what others consider to be moral without the speaker herself offering any evaluative judgment. Hare refers to these as “inverted comma moral judgments,” and rejects them as genuine value judgments.Footnote 31 Yet Hare’s critics point out that his definition would exclude from moral discourse any statement by an amoralist, a moral hypocrite, or even a weak-willed individual regarding moral behavior, since none of these individuals are actually committing to the moral standards they describe; to exclude such a wide range of individuals as not true participants in moral discourse seems rather artificial. It is clear that the relationship between indicative and imperative statements within moral discourse is far more complex than Hare makes it out to be.
Nonetheless, Hare’s assertion regarding the irreducibly prescriptive nature of morality is hard to dismiss entirely. Even if prescriptive statements cannot be implicated in the meaning of every individual moral proposition, we may conclude that they are essential to the semiotic constitution of moral discourse as a whole: the type of meaning we associate with any discourse called “morality” requires it to include a set of directly prescriptive statements, even as it may also include descriptive statements.Footnote 32 The relationship between these essential prescriptive statements and other, descriptive, statements is not one that can be reduced to logical deduction, or even one-to-one correspondence, but Hare is correct that a purely descriptive system cannot serve the basic function that morality does, namely to regulate human behavior. To wit, to claim that a certain statement has no prescriptive implications for anyone is to remove it from the realm of moral discourse. This formulation makes no claim about the source or basis for morality; it simply expresses how language we regard as moral operates as a system of meaning and communication.
This analysis provides a model for a simplified analysis of other types of discourses. For example, even though legal discourse, too, involves many different types of statements, we may say that law is irreducibly prescriptive in the sense that a set of directly prescriptive statements regulating human behavior – what H. L. A. Hart refers to as primary rules – is a necessary (though perhaps not sufficient) characteristic for a discourse to be called “law.”Footnote 33 Alternately, if we follow Lon Fuller’s thought experiment of an embryonic society developing social institutions de novo (he imagines a group of castaways afflicted by collective amnesia),Footnote 34 we might consider even a rudimentary regulatory system – consisting solely of directly prescriptive statements about the kind of behavior permitted, obligated, or prohibited in that society – to be identifiable as “law.” Again, this analysis does not address the source or basis for the law, only the minimum necessary conditions for legal language to be meaningful: all legal statements that are not directly prescriptive are in some sense dependent for their meaning on directly prescriptive statements.
Religion presents a more complex problem than law, given the range of systems that we might choose to include under that heading and the variety of modes of expression found within them: there is hardly an aspect of human culture that has not been touched in some way by religion. This complexity is reflected in the wide-ranging (and often amorphous) definitions that have been proposed by philosophers of religion. One may appreciate the sentiment that formulating a concise definition of religion – one that not only describes religion but also demarcates it from other related discourses – is a fool’s errand.Footnote 35 Yet few would deny that a discourse would not be considered religious without some conception of reality and of humanity’s place in it. This point is underscored by one of the most influential definitions of religion, that of Clifford Geertz: “[A] religion is (1) a system of symbols (2) which acts to establish powerful, pervasive and long-lasting moods and motivations in men (3) by formulating conceptions of a general order of existence and (4) clothing these conceptions with such an aura of factuality that (5) the moods and motivations seem uniquely realistic.”Footnote 36 Or to return to our imagined embryonic society, we might consider a rudimentary system of prescriptive statements to be a legal system, but we would not consider it to be a religion unless it also contained a set of descriptive statements about our existence.Footnote 37 Hence we may define religion as irreducibly descriptive, at least relative to law.
VI Canonicity in Religion and Science
The upshot of delineating religion in this way is that for all of the similarities between religion and law, there are essential aspects of religion that are best appreciated by contrasting it with another irreducibly descriptive discourse, namely science. Scientific discourse, too, consists of many different types of statements, yet it, too, must minimally consist of a set of descriptive statements about the natural world. If religion is strongly canonical in the sense that we defined it above, science constitutes a perfect foil of a descriptive discourse that is weakly canonical: it tends not only to change over time, but to change specifically by discarding of elements of the system. The most famous articulation of this idea is Thomas Kuhn’s analysis of scientific revolutions as paradigm shifts – the rejection of one conceptual framework in favor of another. But Kuhn’s idea merely reflects a broader trend within philosophy of science: since the middle of the last century, scholars have ceased advocating for a strictly cumulative model of scientific development. Rather, scientific progress invariably involves disposing of elements of the regnant paradigm – terms and theories, models, experimental procedures, and even observations – that do not fit with new data collected and outstanding problems solved.Footnote 38
The reason for this dynamic of scientific discourse may be attributed to one of the basic functions that science serves, to describe the workings of nature as accurately as possible; any element that does not fill this function is therefore abandoned. But regardless of the reason, the propensity of scientific discourse to discard elements of the system is reflected in the very different outcomes of scientific and religious upheaval. When fundamental elements of a given religion are called into question, it quite frequently results in the founding of a new religion, sect, or denomination alongside the old one. In contrast, while challenges to fundamental aspects of a given scientific paradigm invariably meet resistance, challenges which stand the test of time end up transforming the field rather than dividing it. Despite the many scientific debates and revolutions that have occurred over the past five hundred years, we still think of the scientific community as overwhelmingly unified (or rather, divided by field of interest rather than by ideology).
The notion that scientific progress is not strictly cumulative was articulated most forcefully by Karl Popper, who identified it as one of the defining elements of science. According to Popper, scientific inquiry is best characterized not by its use of inductive logic but rather by its use of falsification as a criterion for validity: “it must be possible for an empirical scientific system to be refuted by experience.”Footnote 39 It is this element that makes scientific systems so prone to revision and upheaval: “What compels the theorist to search for a better theory … is almost always the experimental falsification of a theory, so far accepted and corroborated.”Footnote 40 Popper’s proposal has been subject to extensive critique and refinement over the past half century. The most significant revision was offered by Imre Lakatos, who asserts that falsification results in the rejection of a theory only when a new, improved theory (one which “offers any novel, excess information compared with its predecessor”)Footnote 41 is available to replace it. (He calls this “sophisticated falsificationism.”Footnote 42) Moreover, Lakatos maintains that falsifiability is meaningful only in the context of an overall “research programme,” consisting of a “hard core” of theory surrounded by auxiliary hypotheses; it is these auxiliary elements that are most subject to rejection due to falsification.Footnote 43 Yet regardless of the weaknesses in Popper’s original thesis, it is difficult to deny that he has identified a critical aspect of scientific discourse. Whether we assess falsifiability on the level of an individual theory, a data set, or an integrated research program, a key element of what makes that unit of discourse meaningful in a scientific sense – what legitimates it as a point fit for discussion and debate within the scientific community – is the possibility that it will be rejected based on contradictory empirical evidence. Simply put, falsifiability is a property of the kind of meaning that we instinctively associate with modern science, and it is this element of science that makes it weakly canonical.Popper proposed falsifiability not only as a positive description of scientific inquiry, but also as a criterion to demarcate science from pseudoscientific disciplines, such as Freudian psychoanalysis or Marxist historiography. In this regard, too, Popper’s thesis has proven to be insufficient; philosophers of science now doubt that there is a single attribute that we can use to verify a given discipline as a science.Footnote 44 Yet again, Popper’s thesis captures one important element of what distinguishes science from other disciplines, and particularly from modern religious discourse. A key attribute of many religious propositions – those statements we instinctively identify as religious in character – is that they are fundamentally unfalsifiable. Although this point is rarely found in formal scholarly definitions of religion, it is famously the subject of Antony Flew’s 1950 essay, “Theology and Falsification”:
Now it often seems to people who are not religious as if there was no conceivable event or series of events the occurrence of which would be admitted by sophisticated religious people to be a sufficient reason for conceding “There wasn’t a God after all” or “God does not really love us then.” Someone tells us that God loves us as a father loves his children. We are reassured. But then we see a child dying of inoperable cancer of the throat. His earthly father is driven frantic in his efforts to help, but his Heavenly Father reveals no obvious sign of concern. Some qualification is made God’s love is “not a merely human love” or it is “an inscrutable love,” perhaps – and we realize that such sufferings are quite compatible with the truth of the assertion that “God loves us as a father (but, of course …).” We are reassured again. But then perhaps we ask: what is this assurance of God’s (appropriately qualified) love worth, what is this apparent guarantee really a guarantee against? Just what would have to happen not merely (morally and wrongly) to tempt but also (logically and rightly) to entitle us to say “God does not love us” or even “God does not exist”? I therefore put to the succeeding symposiasts the simple central questions, “What would have to occur or to have occurred to constitute for you a disproof of the love of, or of the existence of God?”Footnote 45
Flew’s analysis of religion is quite obviously meant to be critical, based on the assumption that falsification is a feature of all rational discourse: “Some theological utterances seem to, and are intended to, provide explanations or express assertions. Now an assertion, to be an assertion at all, must claim that things stand thus and thus; and not otherwise. Similarly an explanation, to be an explanation at all, must explain why this particular thing occurs; and not something else.”Footnote 46
That is to say, Flew considers an explanation to be substantive only if it can be tested against another possible explanation; he endorses falsificationism (as Lakatos defines it) as a standard for all meaning. Popper himself rejected this point in the same breath that he declared falsifiability central to scientific discourse: recognizing a particular statement as unfalsifiable does not render it meaningless, only meaningful in a different way.Footnote 47 The original respondents to Flew’s essay, R. M. Hare and Basil Mitchell, demonstrate that human knowledge is comprised of an enormous variety of propositions, many of which, such as expressions regarding one’s personal security (or insecurity) or faith in others (or lack thereof), are fundamentally not subject to empirical falsification.Footnote 48
If we turn Flew’s critique of religion on its head, we may offer a positive description of religions as systems designed to organize propositions that are not subject to empirical assessment.Footnote 49 And while they are hardly the only social systems to serve this function, they are among the most extensive and elaborate systems to do so. As Peter Berger observes, religion is more all-encompassing than other social nomoi in that it is nearly always cosmic in scope.Footnote 50 This is a critical point: as we mentioned above, Saussure posits that one of the factors which contributes to the invariability of a language over time – what we have called its canonicity – is the number of signs necessary to constitute the system, yielding a highly complex internal structure based on patterns of difference between the signs. Thus compared to other similar discourses (e.g., pseudosciences, superstitions), we would expect religions to be the least inclined to discard their constituent signs, since religious signs are more tightly enmeshed in the web of relationships that is a semiotic system.
As we indicated above, this division between science and religion is primarily a modern phenomenon. As our ability to make precise and uniform empirical observations has dramatically improved over the past half millennium, the distinction between falsifiable and unfalsifiable propositions has become increasingly relevant in the organization of human knowledge, and falsifiable propositions have coalesced into a distinct discourse with a different dimension of meaning.Footnote 51 Yet even if this distinction is contingent to our own historical period, it is critical to understanding the way that science and religion function in relation to one another within our time. The resistance of religion to change has become an increasingly pressing issue in the last generation with the rise of religious fundamentalism on the international stage. The perspective we have proposed explains why religion’s resistance to change is inherent to religious discourse as it exists within modern society, rather than merely reflecting external (i.e., social, cultural, or political) forces.
VII Canonicity in Law and Morality
Following our proposal that legal systems be analyzed as irreducibly prescriptive, we may posit that the strong canonicity of law stems from the paramount importance of consistency in legal behavior and adjudication.Footnote 52 Consistency is an element of law that has not been well studied within philosophy of law, in part because it is so self-evident (what is a rule if not something applied consistently?), and in part because consistency in-and-of itself does not suffice to explain the many different purposes that law may have. Consistency may reflect the sociological need for order and stability, the religious value of consonance with the divine will or other cosmic forces, or moral concerns such as justice and fairness. But it is eminently clear that all systems that we refer to as “law” share this common feature.
One consequence of legal consistency is the predominance of rigid categories within legal discourse: cases deemed to be similar for purposes of legal behavior are grouped together and assigned the same legal value (permissible/prohibited, obligatory/optional, liable/exempt, guilty/innocent, etc.). However, consistency demands not only that the legal system assign the same value to all similar cases at any one point in time, but also that any given case be treated the same as comparable cases that have been decided previously. This diachronic axis of consistency is reflected in the fact that, once established, legal rules are considered to remain in effect until formally amended or overturned (by what H. L. A. Hart refers to as the rules of change),Footnote 53 and behavior not governed by legal rules tends to remain ungoverned until formally addressed. Moreover, the way that those legal rules are applied is also expected to remain consistent over time: any legal subject may expect the outcome of her case to be the same as that of equivalent cases in the past. For the same reason, when existing laws are deemed not be relevant to the case at hand, law accords significance to an appeal to tradition, convention or the status quo: it is meaningful – though not always decisive – to claim before a legal authority, “But it has always been done this way.” In sum, the paramount value of consistency determines that conservativism is hard-wired into the nature of legal discourse, rather than merely a product of the personal intransigence of judges or other legal authorities.
We may underscore this aspect of legal discourse by contrasting it with another irreducibly prescriptive discourse, namely morality. As with religion, the definition of morality is a highly contentious point, but the moral philosopher Bernard Gert convincingly posits that one of the key features of morality is that it is informal, meaning that it has “no authoritative judges and no decision procedure that provides unique answers to all moral questions.”Footnote 54 In effect, Gert is observing that consistency in decision-making is not a central feature of moral discourse, since there is no context in which the moral values assigned to different cases need to be resolved with one another. This reflects a fundamental truth of moral reasoning: the moral value of a particular action is measured primarily by its accordance with broad moral principles and with its consequences for the well-being of those creatures that it impacts, and to a far lesser degree by its consistency within a category of comparable cases.
Gert’s assertion has numerous implications for the nature of moral discourse. For our purposes, however, the key implication of Gert’s thesis is the way that moral discourse relates to its own past. The relative unimportance of consistency within moral discourse means that, in contrast with law, arguments from tradition, convention or the status quo do not carry significant moral weight; in assessing the moral value of an action that will unambiguously benefit or harm another, coherence with past moral judgments tends not to be influential. This facet of moral discourse makes it far more responsive to shifting societal perspectives: without the need to cohere with past decisions, moral decisions can reflect what society presently considers to be right or good.
Analysis of the way that moral systems evolve over time is largely absent from major works in moral philosophy. When this aspect of morality is analyzed, it is almost always in reference to the idea of moral progress, the notion that humanity is advancing toward a more enlightened moral state. This idea is expressed in the abstract in Hegelian and Marxist historiography, and has been advocated in more concrete terms by Peter Singer.Footnote 55 Yet the notion that moral discourse is evolving in a positive direction remains highly controversial, caught up in disagreements as to whether there has been an improvement in overall human well-being,Footnote 56 as well as ideological debates over whether modern Western society’s more permissive attitudes toward practices such as abortion or assisted suicide constitute progress or regress. The argument we are making avoids these controversies by putting forth a more modest position, namely that moral discourse is constitutionally prone to evolution, but not necessarily in a positive direction. Even if one rejects the idea of moral progress specifically, it is difficult to make sense of the ways that common morality has dramatically changed over the past several hundred years – on issues as varied as religious and racial diversity, slavery, gender roles, sexual mores (including but hardly limited to homosexuality), and treatment of animals – without acknowledging that the propensity for change is a central aspect of moral discourse.
More relevant to our thesis, this evidence for moral change underscores the relatively conservative nature of law. On nearly every one of these issues, changes to the law (e.g., banning slavery or discrimination) were most often responses to shifts in popular sentiment that had destroyed the moral consensus on that issue.Footnote 57 These are examples of law fulfilling one of its standard societal functions: to provide resolution on issues of irresolvable moral debate.Footnote 58 But the legal changes in these areas have frequently been preceded by the use of law to enforce the morally controversial status quo. To wit, not only does law change more slowly than morality, it also serves to constrain the implementation of moral change.
As with religious intransigence, legal intransigence is often attributed to extralegal – especially political – forces, but this assumes that law is merely a tool for the exercise of power, devoid of any independent dimension of meaning. Our analysis of legal discourse offers a more nuanced explanation. Law is a discourse distinct from politics that is intrinsically predisposed to favor existing patterns of behavior and the attitudes and beliefs that attend them. This aspect of law makes it a useful tool for political authorities to maintain the status quo, but more generally makes it unsuited to serve as a vehicle for initiating social or cultural change.
The semiotic property of canonicity refers to the extent to which systems of meaning such as languages and higher-level discourses retain their constituent elements over time. We have proposed that the discourses of religion and law have intrinsically strong degrees of canonicity, such that they function as predominant forms of “institutional memory” within human culture. While our analysis has mainly been a general, programmatic discussion, we have alluded to some of its specific implications, both for the internal dynamics of law and religion themselves, and for the frequent points of tension between law and religion and other cultural discourses. Although a fuller analysis is beyond the scope of this chapter, a further set of implications is the way that legal and religious terminology and concepts are frequently used within other discourses to express rigidity or durability, such as the way that sociologists analyze secular political commitments in modern society as “civil religion.” It is our hope that the methodological framework that we have developed here will prove useful for discussing this phenomenon and conducting future research.