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JOSE FAUR

THE DOCTRINE OF NATURAL LAW IN MEDIEVAL JEWISH THOUGHT

To Dr. Jos Mair Benardete, in an expression of endearment and respect

PROLOGUE In the present study we shall expose Medieval Judaisms posture in regards to natural law. Because this doctrine plays a very important role in not only scholastic philosophy, but also in Roman jurisprudence of the Classic period, we shall endeavor in the first part to analyze this doctrine in the Talmud, which is the source of halakhh or Hebrew jurisprudence. In addition, since the spiritual foundations and constitutive elements that comprise Judaism are found in the halakhh, only after having searched Talmudic literature we can come to know the traditional Jewish position towards natural law. In the remaining parts of this work we shall present the position of Seadya Gan, Bahye ibn Paquda, Yehud haLev and Moses ben Maimn, being that they were the ones to have amply treated the subject of natural law and who exerted the most influence in the philosophical thought of their coreligionists. Because the subject of natural law has been the object of numerous interpretations, it would be convenient to clarify that what we speak here is the way Christian scholastics understand it, just as defined by Thomas Aquinas1. When speaking of it in its legal aspect, we refer to it as the usual concept found in Roman jurisprudence in the Classic period.
1

Natural law is the participation of eternal law in the natural rationality of man.

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The subject that we treat here is of singular importance inasmuch as Judaism and Christianity disagree in such a basic point. 1. THE ABSENCE OF NATURAL LAW IN RABBINIC LITERATURE Despite the fact that natural law plays a most important role in Greek philosophy, Roman jurisprudence and scholastic philosophy, it is completely ignored in all of Rabbinic literature. It is never said in the Mishn or in the Talmud that any law or obligation is derived from natural law. The only source of morality that rabbinic literature recognizes is positive law, the word revealed by God or Torh, be it in its written form, Pentateuch, be it in its oral form, Torh shebeal p or Tradition. Prof. G. F. Moore has repeatedly pointed this out. In his work Judaism2 he emphasizes time and again that for Judaism the only source for morality is the revealed law, not natural morality. As a consequence, wanting to define Judaism as a moralist religion is the aim of modern apologetics, not historical observations.3 Jewish ethics is essentially nomist or legalist: the Law of Moses, only that Law, is the source of good and evil. In this, there is a radical difference between Jewish and Christian ethics, given the fact that to certain commandments of the Torh, for example the Ten Commandments, Christians attribute an intrinsic goodness. For Christians, even though God might not have imposed them as positive law, they oblige because of natural law. As rabbinic literature does not recognize natural law as a constitutive norm for intrinsic morality, that human acts might adjust to such natural law do not make them good, intrinsically good, or that they might violate such natural law do not make them evil, intrinsically evil. The absence of natural law becomes evident in certain halakhic and logic concepts in rabbinic literature. Rabbinic theology, accommodating itself to the Pentateuchal text, does not admit a formal distinction among the diverse commandments of Mosaic Law: Formally all commandments the moral, ceremonial and judicial are equal, of

2 3

GEORGE FOORMORE, Judaism, 3 vols. Cambridge (Mass).1927-1930. Ibid. vol. II, pp. 3, 15, 70 and pages to follow, and specially, vol. III, p. 167.

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the same category, and they oblige only because they were revealed in the Torh and are sanctioned in the same manner.4 Since none of the commandments of the Torh, not even those considered moral, are imperative in natural law, these do not obligate universally. According to rabbinic theology, only the Jews were graced with the privilege, and have the moral obligation, to perform the commandments of the Torh.5 The only universal law that rabbinic theology knows, and which links both Jew and non-Jew, is the Noahide law that is positive law given by God, not natural law.6 Even though rabbinic tradition agrees that the Noahide commandments are seven, it is divided over what commandments these are.7 The most accepted opinion is that of the Tosefta,8 according to which those commandments are: the prohibition of idolatry, blasphemy, homicide, robbery, certain sexual relations, eating flesh from a live animal, and the obligation to establish courts of justice with the end to supervise those laws.9 As we can glean, despite the fact that these commandments are universal, these do not belong to natural law, especially the one that forbids eating flesh cut from a live animal. On the other hand, incest, whose prohibition is from natural law, is not universally forbidden. According to Noahide law the only incest that is forbidden is that with the mother, the wife of the father, and the uterine sister.10

Cf. TB Qiddushn 39b; ISAAC ABARBANEL, Rosh Aman, cap. 23. TB Sanhredrn 59a, MT Melakhm, VIII, 10. Therefore, if a non-Jew were to observe the Mosaic commandments because he considers them obligatory, it will lack merit before God and a sin shall be imputed to him for having appropriated commandments that are an exclusive patrimony of the Jewish people, cf. TB Sanhedrin 58b-59a; MT Melakhm X, 9. The only case when a non-Jew can observe a Mosaic commandment is when he performs it with the objective to obtain divine reward, not because he considers it binding, cf. MT Melakhm X, 10 and Maimonides commentary to the Mishn Hulln, chap. VII. 6 According to Philo of Alexandria, the Noahide precepts are, in regards to their aim, identical to natural law; see H.A. Wolfson, Philo, 2 vols. Cambridge (Mass.). 1948, vol. II, pp. 183-187. 7 Cf. TB Sanhedrin, 56a-60a. 8 Abod Zar, chap. 8 (0); TB Sanhedrn 56a, 74b. 9 MT Melakhm, IX 1: cf. Moses ben Nahman in his commentary to the Pentateuch, Gen. 34, 13. 10 TB Sanhedrn 58a-b; MT Melakhm, IX, 5; cf. TB Yebamt, XI, 2. Therefore, for example, a non-Jew could have sexual relations with his non-uterine sister (Gen. 20, 12), or with his daughter, as did Lot without having being chastised.
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Just as rabbinic literature does not know natural law, neither does it know the task of natural reason in the subject. According to rabbinic logic, natural reason cannot define, deduct, or determine the commandments of positive law. Natural reason can only explain to us, help us to understand, the commandments of positive law, but, note this well, this explanation does not oblige or forms part of the revealed law. Therefore, while for Christians many detailed obligations are deduced by moralist via the natural logic of the divine positive precepts or by natural law, for normative Judaism the only authority with power to define the divine positive commandments is the oral Tradition or Torh shebeal-p.11 The above-mentioned departs from the hermeneutic rules used in rabbinic literature, which are not authoritative if these do not come accompanied by the Tradition that sanctions them.12 The rabbis never considered these norms as logical rules with which to infer laws or deduce details from the text of Sacred Scripture. According to rabbinic mentality, the hermeneutic norms they utilized were not more than expositive rules that served to expose laws or details known by Tradition. As Prof. Saul Liberman has demonstrated, in this aspect the rabbis emulated the magistrates of the ancient Middle East.13 This does not implicate that the hermeneutic rabbinic rules lacks all logic. Eusebius, for example, confirms that the Hebrews possess their own system of logic, which is superior to Greek sophism.14 But the rabbis never ascribed

About the authority of Tradition see Judaism, vol. 1, pp. 251-262. The existence of Tradition is reflected in several Biblical passages and in the Hellenistic Jewish literature: Cf. II, ALBECK, Introduction to the Mishna (Heb.). Jerusalem 5720-1959, pp. 3-24. The classic opus regarding this subject is Matt Dan, written by the distinguished rabbi DAVID NIETO in Hebrew and Spanish; our quotes proceed from the bilingual edition of London, 5474-1714. The guardians of Tradition are the elders the sages and judges of Israel of whom the Law ordains to obey (Deut. 17, 8-13), a basic commandment in Judaism (MT Mamrim, I, 1), which is at the same time an article of faith (Rosh Aman, chap. 16). 12 TB Pesahm, VI, 1 (cf. Saul Lieberman: Hayerushalmi Kiphsut, Jerusalem, 5695-1934, pp. 206-467); TB Sanhedrin 51b; Maimonides en Sefer haMiswot., Principle II, and in his introduction to the Mishn: Matt Dan, III, 159-160 fol. 87. 13 Hellenism in Jewish Palestine, New York, 5711-1950, pp. 58-68. A similar posture is found in Matte Dan, II, 166. fol. 50. 14 Hellenism in Jewish Palestine, pp. 57-58, footnote 83. Cf. Matt Dan, III, 161-189, ff. 87-96.

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those norms to be from nature nor consider them authoritative if these were not supported by Tradition. The closest thing to natural reason that rabbinic literature recognizes is sebar (lit. opinion), which is close to common sense. But the rabbis never attributed to sebar the authority that the Roman jurists give to natural law. In last instance, sebar, like the rest of the hermeneutic norms, can only expose what it is known by Tradition, but it cannot interpret the text of Sacred Scripture according to its whim, nor infer new commandments or obligations, and much less to oppose what is known by Tradition. From here we learn why, being that rabbinic tradition does not consider it licit to consult a case with a rabbi after another rabbi had decided the case; if such decision is not supported by Tradition. But if it was derived by sebar, it is considered licit to consult the same case with another rabbi and reverse the decision.15 This negative attitude of traditional Judaism towards the doctrine of natural law and reason is explained in part,16 because the said doctrine has its origins in Greek philosophy. We should not be surprised, therefore, that Judaism, considering itself a revealed religion, completely ignores this doctrine. It is important to remember that despite Hellenistic culture being deeply implanted in Palestine, as recorded in Greco-Jewish documents and inscriptions,17 like all the numerous Greek terms dispersed in all of rabbinic literature, such Hellenization, as pointed out by Prof. H. A. Wolfson, never took place in the philosophical arena. The terms that in Greek literature are used in a philosophical sense are never employed in rabbinic literature in such sense. Neither do we know of any Greek philosophical term by the rabbis.18 In a recent study about Greek influence in Palestine, Prof. Saul Lieberman points out that there is

TB Hulln, 44b. Cf. MOSES ISSERLES: Shulhan Arukh Yore Dea, CXVI, 7 y CCXLII, 31: TB Nazir 39a: Zebahim 96, b: Hiddush haRishb leMsket Abod Zar. Jerusalem 5726, pp. 7-8. 16 Vide infra, section 5. 17 The recently discovered letters of Bar Kozeba show that in Palestine Mishnaic Hebrew, Aramaic, and Greek were spoken. DIZ MACHO wrote an excellent study about this subject: La lengua hablada por Jesucristo, Buenos Aires, 1983. 18 Philo, vol. 1, p. 41.

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not a single Greek philosophical term in all of ancient rabbinic literature.19 He also shows that in the Palestinian Talmud20 does not mean natural law, as Prof. I. F. Baer maintains.21 2. THE DOCTRINE OF NATURAL LAW IN THE WORKS OF SEADYA GAN AND BAHYE IBN PAQUDA From the dogmatic point of view, the Jewish negative posture towards Greek philosophy persisted through all the middle Ages. Halakhh was considered the only constitutive element for morality.22 Nonetheless, historically it is not precise to affirm that Medieval Judaism did not recognize more implicit values within the halakhh. Especially after the conquest of Babylonia by the Arabs, and the establishment of the Karaite sect, diverse philosophical concepts strange to Judaism and sometimes as we will show later contrary with its halakhic foundations, penetrated the Hebrew mind and served to modify or to reinterpret and give a new modality to traditional Jewish concepts. Seadya Gan introduced the concept of natural law and reason into normative Judaism. As previous section shows, Seadya Gan could not have found this concept in rabbinic literature. The doctrine of natural law and reason by Saadia has its origin in the Arab and Karaite philosophical and theological treatises of his time. In order to clearly appreciate

How Much Greek in Jewish Palestine? Biblical and Other Stories, Cambridge (Mapages to follow), 1963, p. 30. 20 Rosh haShan, I, 3, 57b. The correct text of the cited phrase is found in L. GINZBERG; The Yerushalmi Fragments of the Genizh, New York, 1909, p. 145. 21 How Much Greek in Jewish Palestine?, pp. 128-130. It is important to note that the Talmudic passage (TB Erubn 100b), which affirms that if God had not revealed the Torh, one could learn certain norms of conduct from beasts, it does not allude to the natural law of the scholastics as CHAIM TCHERNOWITZ pertains: Toledoth Ha-Holka, vol. 1, New York, 1945, p. 158, but only that there are certain norms of conduct that are common to man and beasts, cf.. I, Husik, The Law of Nature, Hugo Grotius, and the Bible, Hebrew Union College Annual, II (1925), p. 391. 22 LEO STRAUS: Persecution and the Art of Writing, Glencoe (Illinois), 1952, p. 19.

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Seadyas philosophical position and that of the rest of Jewish thinkers in regards to natural law and reason, it is necessary to offer a slight sketch of the role that this doctrine played in Arab and Karaite theology. According to orthodox Mohammedanism, the hadit, or the orally transmitted sayings of Mohammed, is the source of sunna, or religious legislation.23 Given the numerous hadit that circulated since the first century of the Hgira, many faithful began to doubt the authenticity of Mohammed sayings. Over time, the number Mohammeds sayings increased to alarming levels, until the second century of the Hgira there rose the muatazila, or separatist, sect, whose objective was to put a stop to those sayings and stripped them of any authority. Since the muatazila sect does not admit the supreme authority of the hadit, they had to formulate the principle that the aql, or natural reason, is the supreme authority in questions of religion.24 Even the Creator is conditioned and subjected to the decisions of the Supreme Justices and, as a result, cannot act freely: Divine behavior and its plural activity are determined and necessitated by reason or justice.25 According to muatazila theology, the norms of justice and the precepts that God revealed to His prophets and messengers are nothing more than rational precepts and laws contained in the supreme reason and justice.26 The muatazila sect acknowledges therefore natural law. Good and evil objectively exist in and of themselves and are not the result of divine legislation. From here, the obligations of the precepts contained in rational law precede and are independent to revelation.27 Since the muatazila sect admits natural law, it also admits the function of natural reason, and as a result it accepts the al-ray, opinion, and the al-qiyas, analogy, as sources for the al-fiq, religious jurisprudence.28

23

The concept of hadit has been explained by the eminent Arabist L. GOLDZIHER, Vortensungen ber den Islam, Heidelberg, 1910, chap II. Our quotes and paginations proceed from the Hebrew edition, Jerusalem, 1951. 24 Vortensungen, chap. III, p. 75. 25 Ibid., pp. 77-78. 26 Ibid., p. 79. 27 Cf. CRAFIT CHEBATA, Logique juridique et droit musulman. Studia Islamica, XXIII (1965), Paris, pp. 7,10, 11. 28 Cf. L. GOLDZIHER, Fikh, Encyclopedia of Islam, London, 1927, vol. II, pp. 103-4.

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There is no doubt that the concepts of natural reason and law, which have an important role in Karaite treatises, proceed from the muatazila doctrine that we just explained. Since antiquity the similarities of religious ideas have been noted between the muatazila sect and of the Karaites.29 Such similarity of religious concepts has been object of an excellent study by Prof. A. S. Yahuda.30 Both sects, for example, reject the authority of tradition over morality and religion and adhere to the literal meaning of their respective sacred texts. Since the Karaites do not admit the authority of tradition, they had to accept aql as authority and criteria to interpret the text of Sacred Scripture and define their precepts. From here we get the exaggerated rationalism patently clear in Karaite treatises.31 It is worth noting that Karaites also admit the ray and the qiyas as a source of jurisprudence.32 Once we have established the role natural law and reason played in muatazila and Karaite theology, we can expose the concept of natural law and reason in the thought of Seadya Gan. Seadya mentions rational law in his commentaries to the

29

In an very interesting apologetic treatise, whose fragments were discovered and published by J. MANN, A Polemical Work Against Karaite and Other Sectaries, J. Q. R. XII (1931), pp. 123-150, Karaites are accused of imitating the mutaziles (140). Cf. M. VENTURA: La Philosophie de Seadya Gaon, Paris, 1934, p. 66 and pages to follow. 30 Ereb we-Arab, New York, 5706-1946, pp. 151-164. 31 Cf. La Philosophie de Seadya Gaon, pp. 65-74; S. PINSKER: Likute Kadmoniot, Vienna, 1860, pp. 9, 20, 34, 50-63. 32 See DR. M. ZUCKER: Fragments from Rav Saadya Gaons Commentary to the Pentateuch from Mss, (Heb.), Sura, II (1955-56). Jerusalem, pp. 323-331. It is important to point out that Seadya accuses Karaites of employing qiyas so not to depend on tradition; see A. S. HALKIN: A Fragment to Saadyas Introduction to his Commentary on the Pentateuch. Louis Ginzberg Jubilee Volume (Heb.), New York, 1915, p. 154; besides, Seadya wrote a treatise where he combats the use of qiyas (ibid. , pp. 132-134, 147 and pages to follow). We should note that Seadya argues that qiyas partisans must maintain that the divine commandments are co-eternal with God, and that God cannot leave from revealing them (ibid. pp. 151155). It is interesting to note, therefore, that in the name of Anan, founder of the Karaite sect, it was said that all Mosaic commandments were prescribed to Adam; see M. ZUCKER: Rav Saadya Gaons Translation of the Torah (Heb.), New York, 1959, p. 449, footnote 6. These ideas have parallels in Christian literature; cf. Hand Joachim Schoeps: Restitutio Principi as the Basis for Nova Lex Jesus. J. B. L. LXVI (1947), pp. 457-460.

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Bible33 and in his philosophical treatise Al-Amant wab-ltiqadt.34 According to this thinker, the Mosaic laws proceed from four universal imperatives of reason (waybat al-aql al-kalliyyt). At the same time, the Mosaic laws are divided in rational laws (saraye al-aqlayt), and the revealed laws (saraye al musmayt). God implanted the so-called rational laws in mans natural reason (aql). Following we translate an Arabic text where Seadya develops this concept:
After having finished with this preliminary observation I say, as an introductory title, that our blessed Lord has made us know, through the words of his prophets, that He has a Law so we can serve Him, whose commandments He prescribed, and to which we have the duty to observe and perform with honesty Thereafter we discover that the intelligence (al-nazr) prescribes that we are to be commanded (by God) and that we were not to be abandoned without guide Reason (al-aql) prescribes to return the favor to anyone who has benefited with any favor if he has the means for it or that he thanks him, in case he did not have means to reward him. Since this is a universal imperative of reason (wabt al-aql al-kalliyyt), it would not be according to our Creator to leave without prescription such matters in reference to Him. Therefore, He prescribed to His creatures how to serve and thank Him for having us created. Reason also prescribes that it is not allowed for a judge35 to be insulted or blasphemed. As a result it became necessary that the Creator were to prohibit that His servants were to blaspheme Him. Reason also considers proper for a judge to reward the prescribed labor with the end to (increase) well being, because this way the one who performs (the prescribed labor) and the one who commanded are not injured. If we add these four groups (of commandments), we shall obtain the totality of the laws commanded by the Lord.36
33 34

Introduction to the Commentary to the Book of Proverbs, and in the Commentary to Job, 1, 6. Al-Amant wab-ltiqadt, Leiden, 1880, p. 115. Our quotes and pagination comes from this edition. Our translation. 35 IBN TIBBN and S. ROSENBLAT: The Book of Beliefs and Opinions, New Haven, 1948, translate al-hakim as sage. However, we believe our translation fits better to the sense of the text. For the word hakim in the sense of judge, see sura XCV, 8 and the commentaries ad. loc. 36 Al-Amant, pp. 113-114.

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In regards to all kinds (of laws) that have been imposed on us, God implanted his goodness in our reason; and in regards to all classes (of laws) that (God) forbid us He implanted their evil in our reason, as Wisdom said what is Reason: My mouth pronounces truth and the abomination of my lips is evil. (Prov. 8, 7).37

It is important to underline that Seadyas rationalism is very limited, and despite having admitted that rational law does not accept all of his philosophical implications. For Seadya natural reason cannot deduce nor know how to make rational laws precise, and for this reason it needs of positive law.38 Besides, the division it makes between rational laws and revealed or positive laws looks to be a distinction that Scholastic philosophy calls a purely material distinction, since the so-called revealed laws also proceed from a rational principle and pursue a rational finality.39 Looking into their intimate essence, rational and revealed laws have the same nature and form part of the Mosaic commandments. Bahye40 ibn Paquda was the first Jewish thinker who accepted natural law with all its philosophical consequences. In his work Al-HidayaIlla Faraid41 al Qutb42, Guide to the Duties of the

Ibid. p. 115. Ibid. p. 118 and pages to follow. 39 Ibid. p. 117 and pages to follow. 40 This is the correct pronunciation, and not Bahya. This is proven by the fact that in the majority of mss. it appears as BHYY, with two ending yod. It appears in the same way in the ms. preserved in the Biblioteca Nacional de Madrid; cf. CARLOS RAMOS: Algunos aspectos de la personalidad y obra de judo zaragozano Bahya ibn Yosef ibn Paquda. Archivo de la Filologa Aragonesa, III (1950), p. 132. Besides, among Arab and Spanish speaking Sephardim, as well as with Oriental Jews, it is pronounced Bahye. 41 This term that generally is translated duties, rather means laws, that is, halakhh. In a fragment coming from the Cairo Geniz that we published, Hilkhot Shehit shel Ribbi Yehudai Gan Talphiot, IX (1964), p. 198, it is translated hilkht (plural of halakhh), for the word faraid. Therefore, the exact translation must be Laws (i.e. hilkhot) of the Hearts. This fits into the ethic conception of Bahye, according to which, the duties of the heart are ethically binding, in the same strict and salvific sense that halakhh is for normative Judaism. 42 Prof. A. S. Yahuda, Leiden, 1912, has edited the Arabic text. Our quotes proceed from said edition. Our translation.
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Theology44 is divided in two parts. The first (part) is the science of the duties of the members, and it is an exterior knowledge. The second (part) is the science of the duties of the hearts, which are interior (duties), and it is of interior knowledge. At the same time, the duties of the members are divided in two classes. The first (class) is the duties that reason prescribes (faraid yuubha al-aql), even though they were not prescribed in Sacred Scripture. The second class is the one of revealed duties (faraid samayit) that reason neither prescribes or rejects, for example but all the principles of the duties of the hearts are rational.45

Hearts, he develops the concept of natural law through which he bases his moral doctrine. The moral doctrine of Bahye distinguishes between two types of duties: duties of the members and duties of the hearts.43 The duties of the members can be revealed (faraid samayt) or rational duties, which reason prescribes (faraid yuubha al-aql). The duties of the hearts are purely rational:

But Bahye is not content with classifying the commandments in duties of the members and duties of the hearts; thus accepting the ethical consequences of such classification. Bahye conceives two classes of service to God or interior life: One founded in reason, and the other founded in revelation or Sacred Scripture. According to Bahyes morality, both classes of service or interior life are necessary and compliment each other, but the service founded on reason is the final cause and the ultimate perfection of man. Only in the interior life founded on reason salvation is possible.
Definition of service, exposition of its classes and qualities that each one of its classes must have. The definition of service is the submission of the beneficiary to whom he received benefit from (giving him in turn) another benefit or thanking him for the favor. Submission is divided in two classes. The first (class) is the submission (founded) on fear, hope, need or power. The second (class) is the submission (founded) in duty and justice is the praise and servitude to whom one becomes subject. The first class is the submission

The classification of the duties of the hearts and the duties of the members is of mutazil origin; cf. A. S. YAHUDA, in the Introduction to Hidaya, p. 59 and pages to follow. 44 Lit. science of the law. 45 Al-Hidaya, pp. 5-6.

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to God that is founded in the acquired warning,46 previously mentioned,47 and whose obligation is founded in reward and punishment on this life and in the beyond. The second class is the submission, whose warning is centered in reason and has been implanted in mans nature when uniting soul and body. These two (classes) of submissions are praiseworthy, and lead to the path of salvation and eternal abode. However, (one class of submission) is the (final) cause of the other, which is (only) a step by which to take another step; this is the warning of the Law.48 Submission founded on warning of reason is closer to God and it is more acceptable and superior in seven aspects.49

These seven aspects are: a) The submission inspired by the Law could be self-interested. The submission inspired by reason is absolutely disinterested. b) The submission inspired by the Law is founded by divine reward and punishment. The submission inspired by reason is a spontaneous decision of the soul.50 c) The submission inspired by the Law is centered in most part in the performance of the duties of the members. The submission inspired by reason is exclusively centered in the duties of the hearts. d) The finality of the submission inspired by the Law is the submission inspired by reason. e) The commandments of the Law (faraid as-sharyt) are 613, while the rational commandments (faraid al-aqlyt) have no limit. f) The service inspired by the Law can be performed without divine assistance.51 g) In the service of the Law man can sin, while in the service of reason man is safe from sin.52
46 47

In contradistinction to the innate and natural warning that proceeds from reason. Al-Hidaya, p. 130. 48 E. d. the acquired warning; see footnote 46. 49 Al-Hidaya, pp. 132-133. 50 Lit. the generosity of the soul; cf. G. VAJDA: La Teologa Asctica de Bahya ibn Paquda, MadridBarcelona, 1950, p. 43 and footnote 6. 51 One cannot avoid thinking of the doctrine of Grace in Christian theology. Cf. footnote 52. 52 Al-Hidaya, p. 133 and pages to follow. This last aspect seems to be of Christian origin; cf. Letter to the Romans, 7, 7 and pages to follow. Regarding the Christian influence on this work see the Introduction to Hidaya, p. 77 and pages to follow.

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Once admitting this doctrine, we should not be surprised that Bahye considers the study of halakhh and judicial casuistry superfluous.
Once someone asked a sage a strange question (that is, little common) in reference to divorce legislation. He (the sage) replied: You ask something, if ignored, does not injure us; perhaps you do know your duties that you cannot leave to know or allow yourself become inattentive, to occupy yourself in strange things and their minutia. This knowledge will not provide you with any perfection in your religion or faith. Neither it will correct any vice your soul may possess. I swear that it has been thirty-five years since I occupy my mind (exclusively) to what my soul needs in regards to the duties of my religion. You know of my dedication (to these studies) and the great number of books I possess; nonetheless, I never wanted to investigate what you just asked. And I chastise and reject it in great manner.53

Let us end this section noting the main differences between Saadya and Bahye in regards to natural law. According to Saadya, the rational commandments are not intrinsically superior to the revealed commandments. According to Bahye they are, because the interior life is exclusively centered in this class of commandments. In addition, Seadya strongly underlines that the rational commandments have been revealed in the Torh and form part of the 613 Mosaic commandments. But Bahye, even though he conceives that some Mosaic commandments are according to their rational matter, their performance do not lead to the ultimate perfection, because this kind of service or spiritual life is inspired in the revealed law or Torh. Lastly, it should be mentioned that for Seadya salvation resides in the Torh,54 while for Bahye the commandments of the Torh, while revealed, do not possess any salvific value; the salvation of man resides in reason, outside the confines of the revealed Law or Torh. In the structuring Bahyes ethical and theological system, natural law completely displaces the halakhh. Tradition leaves to be the supreme authority of morality; in its place we have Reason. From this position it would not be
Al-Hidaya, p. 14. As we have made to note, for Seadya reason is insufficient without revelation. More that justifying the role that revelation plays in spiritual life, Seadya wants to make battle with those who maintain that reason itself, without divine assistance, leads to salvation. Even though Seadya requires that the articles received by tradition are to be corroborated by the intellect (Al-Amanat, p. 21 and pages to follow), this only compliments revelation; cf. H. MALTER: Life and Works of Saadia Gan, Philadelphia, 1921, p. 175.
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absurd to ask as Thomas Aquinas would later do if besides philosophies we should also have revealed doctrines.

3. YEHUDH HALEV AND NATURAL LAW Modern researchers have pointed the great bard Yehudh haLev from Tudela to be the antirational Jewish philosopher par excellence. In order to appreciate the nature and significance of said anti-rationalism one must have in mind the different philosophical currents then in vogue among the Jews of Spain and very specially, the posture of our poet before reason and natural law. Despite the scarce bibliographical data known of Bahye ibn Paquda, we know with certainty he lived before the poet Mosh ibn Ezra from Granada,55 and as a consequence before Yehudh haLev. From the previous discussion one gathers that Bahyes ethics entails a radical change in regards to traditional Jewish values and its spiritual constituents. In essence, Bahyes doctrinal position is nothing more than a midway point between muatazila and Karaite doctrine on one side, and rabbinic doctrine on the other. The conflict between the Rabbanites and the Karaites is summarized to see whether tradition or reason is the superior authority in matters of religion and morality. On one side, Bahye, as all Rabbanites do, maintains the authority of tradition. But this authority and in this Bahye fundamentally distances himself from rabbinic theology is exclusively limited to the duties of the members and has no authority over the other class of duties, the duties of the hearts, where perfection and salvation are centered. On the other hand and here Bahye comes together

55

PAUL KOKOZOFF: The Date of Life of Bahya ibn Pakuda, in the volume honoring S. Poznanski, Warsaw, 1927, pp. 13-21.

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with muatazila and Karaite thought reason is the authority in the duties of the hearts and the life of perfection.56 Because this class of duties is specifically superior to the duties of tradition, and only in this class resides the only possibility to reach perfection, Bahye relies more on the Karaite position than the Rabbanite one. Without a doubt, Bahyes doctrinal position represented a serious menace to traditional normative Judaism in Spain. We should not forget that Spain also had Karaite adherents, even though they were considered a serious danger and were fiercely fought against.57 The suspicion of heresy fictitious or real fell on many. It would be sufficient to mention the famous poet Menahem ibn Saruq, who was put in jail by order of the celebrated Jew from Cordoba Hasdai ibn Shaprut, who was accused of Karaism.58 There is no doubt that the religious crisis suffered by the Judaism of that epoch was due in part to a thought of Bahye ibn Paqudas genre; and because of this it awakened a contrary reaction. The first Jewish thinker to have made battle against this ultra-rationalist position was Yehudh haLev. The anti-rationalism of Tudelas bard is nothing more than a steep and penetrating critique to natural and rational law as foundations for moral and spiritual life.59 Due to he fact that Yehudh haLev treated the subject of natural and rational law several times, we can have quite clear of an idea what he thought in the particular. It can be summarized as follows: According to the philosophers, natural and rational law is neither obligatory nor universal; therefore, it cannot be considered as foundation for morality and spiritual life. According to the philosophers in Yehudh haLevs thought

Al-Hidaya, pp. 15-17. As G. VAJDA has noted: La Teologa Asctica of Bahya ibn Paquda, p. 18, footnote 11, this ideas made its entrance through the agency of Karaites. 57 About Karaism in Spain, see the bibliographic information in F. BAER: Toledot ha-Yehudim Bisfarad haNosrit, Tel-Aviv, 1959, p. 478, footnote 45. 58 S. D. Luzzato: Bet haOsar, 1847, p. 17 and pages to follow. In an excellent study, doctor N. ALLONY has shown that there is Karaite influence in Ibn Saruqs dictionary: Vistas caraistas en el Mahberet de Menahem (Heb.), Tesoro de los judos sefarades, V. (5722-1962), pp. 21-49. 59 This subject has been object of an excellent study by Prof. L. STRAUSS, from which we have benefited greatly: The Law of Reason in the Kuzari, in Persecution and the Art of Writing, pp. 95-141.

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the finality of natural law is not moral, but political and social: To govern men adequately. It is natural, not because of its origin, because a human authority promulgates it, but because of its finality; the masses have a natural need for laws that govern them. As a result, those types of laws lack any spiritual value. The philosophers consider it rational, not because it has been implanted in reason, but because its finality and general principles can be understood by reason. From the first dialogue in his work The Kuzari, Yehudh haLev allows us to see what he understands by rational law. The king Kuzari, after having dreamt with an angel who repeatedly warned him that even though his intentions are good, his actions the way he worships God were not the proper choice, consulted with a philosopher to find out what actions were pleasing to God. The philosopher then proposes rational laws to the king (or as Yehudh haLev calls them: al-nuamis al-aqlayt, rational nomos60). But the philosopher suggests them only as an alternative from other laws. Let us hear what he says:
Do not notice what religion you are to follow, nor what law, what works, what words and what language: or invent yourself a law or govern yourself through the positive intellectual Laws (al-nuamis al-aqlayt) that the Philosophers commanded.61

When the philosopher presented the rational laws or as Abendana translates it, positive intellectual Laws only as an alternative with other laws, he indicates that he does not consider them obligatory. In another passage, when defining the finality of rational laws, he expressly says that these classes of laws are not obligatory for the philosopher:

and they commanded the intellectual laws (al-nuamis al-aqlayt62), which are the political ordinances of good government63 for the conservation

60 61

This Greek term appears in rabbinic literature. All quotes proceed from the Spanish translation made by the celebrated JACOB ABENDANA, El Cuzary, 1910. The Arab transliterations proceed from the bilingual edition (Hebrew-Arab) by H. HIRSCHFELD, Das Buch Al-Chazari, Leipzig, 1887. El Cuzary, I, 1, p. 12. 62 In the Arab text al-aqyt does not appear, however there is no doubt that it belongs to the original text, because in Ibn Tibbns translation its Hebrew equivalent ha-siklyim appears. 63 Our italics.

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of men; which are not necessarily obligatory,63 but conditional, which are convenient to preserve, except as temporal or occasional need64.

Being that rational laws are just ordinances of good government, these cannot obligate spiritually, nor constitute the foundation for the perfection of life. Besides, for the philosopher perfection resides outside the moral environment, in contemplative life. Therefore, morality performs only a secondary role: It regulates the activities of men and specially those of the philosopher in relation with society, so the philosopher can reach his perfection in intellectual contemplation. The philosopher is, as a result, as unsocial being and his doctrine fundamentally reclusive:
What I said is the foundation of his belief, that the height of mans happiness consists only of contemplative science and man knows such end pretended by this science, he does not have to notice the works that he ought to do.65

But Yehudh haLev is not satisfied to rid rational laws of all spiritual value: For him those laws are identical to magic and superstition; both as product of practical reason, both have as their finality to govern the masses, both lack any spiritual value. The only difference is that some underline magic and superstition with greater emphasis than others, but definitely, both belong to the same genre.66 According to our philosopher, rational laws are called natural, not because of having being implanted in nature and not for being promulgated by any authority, but because man has a natural need of laws that govern him, because these are indispensable for the maintenance of society the same way as eating, sleeping and drinking, these are indispensable for the body to survive. Precisely the natural need of such laws strips all spiritual value, being that even the most vile of societies, as a gang of wrongdoers and outlaws, must observe certain laws of equity and justice among its members in order to survive. Even the ideal proposed by the Prophet Micha (6, 8) is a low value morally, because it is reduced to observe necessary norms for the
El Cuzary, IV. 19, p. 257. El Cuzary, IV, 19, pp. 256-257. 66 Cf. ibid., I, 79 and 89; Persecution and the Art of Writing, p. 122 and pages to follow. Maimonides maintains a similar posture: cf. La Gua de los Perplejos, III, 29, and Persecution and the Art of Writing, p. 124 and pages to follow.
65 64

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sustenance of society; one of them: To worship God. There is a natural need that is, social need67 of religious laws. These laws have a social and political value for men who need them, but these do not have a spiritual value to God. Before transcribing the text from our philosopher, it is important to note the circumstance that led the Haber, or Jewish sage, to make battle against king Kuzaris doctrine of rational and natural law, and expose his own mind over the same. The king Kuzari asks to Haber why among Jews there is no sect of ascetics exclusively dedicated to the service of God, as in the rest of the religions.68 To that the Jewish sage responds that before God the only obligations are what He has commanded.69 To demonstrate the exactness of his thesis, that God commanded ascetic life, the king Kuzari addresses some Biblical passages.70 This is when the Jewish sage decides to explain his own doctrine about natural law and reason. What deserves particular attention is that the thesis proposed by our poet on the lips of the king, and what he prepares to refute, looks identical to the ascetic doctrine of Bahye ibn Paquda.
Haber. These, and other like them, are intellectual statues (al-nuamis alaqlayt), and these are principles and preparations for the Divine law, which are previous to her by nature and time, without which one cannot preserve a congregation of men; so much so, that even for a company of burglars is impossible to attain if they were not to admit justice among each other,

Also SHEM TOB IBN FALAQERA, Ha-Mebaqqesh, The Hague, 5532-1772, f. 29b, maintains that religion and morality are indispensable for the commandment of society, and, as a result, when these are not revealed they lack any spiritual value. JOS ALBs position is identical: Sefer ha-Iqqarim, I, 5. 68 El Cuzary, II, 45, p. 104. 69 Ibid., II, 46, p. 104. For Yehudh haLev ascetics is a useless exercise; doubly useless, in regards to abstaining from creatures as if they were morally or pathologically injuring or impeding for the union with God when, in reality, they are not, and in regards to the pretension to reach the union of the soul with God through other ways outside those determined by the law; cf. El Cuzary, II, 50, pp. 107-110; III, 1 pp. 137139. 70 El Cuzary, II, 47, p. 105.

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without which, its company could not preserved; and the rebellion of the children of Israel having reached a state where they were negligent of the intellectual laws (ashsharaye al-aqlayt) and politics, without which is not possible to preserve any congregation; in like manner that it is not possible to preserve anything without the natural things of sustenance, drink, movement, rest, sleep and abstinence; and with everything they observed the services and sacrifices and the rest of Divine laws received from God; and they satisfied themselves with the least, and said: it would be a hope you kept the laws kept by lesser congregations, to observe justice and the good path, and provide goodness to the Creator!: Because the Divine laws are not perfected but after having observed to perfection the political and intellectual laws (as-sayast wal-aqlyt): and intellectual laws (ash-sharyt al-aqlyt) are to observe justice and provide the goodness of the Creator; and whoever does not observe these, as he observes the sacrifices, the Shabbat, and the circumcision among others like them, which human understanding nor affirms them (lam yubha al-aql) or denies them, and in this sense it was said (Deut. 10, 12): and it is what the Lord wants from you, etc., and this is what is said (Jeremiah 7, 21): Add your burnt-offerings unto your sacrifices, etc., and other similar to these: it would be possible for the Israelite to do justice and love mercy leaving circumcision, the Shabbat, the laws of Passover and other laws, and prosper.71

Although natural laws are not written in human reason as Bahye and Christian scholastics think , they are called rational because man can understand them. But reason Yehudh haLev opines only reaches the socalled rational laws in regards to their general and abstract formulation; vg., that one must do good and avoid evil, but it is wholly incapable to determine such general formulations for concrete and practical cases. But, since in order to govern a society is necessary to concretely determine what is good and what is evil, the just and unjust, it proceeds that reason and the so-called natural laws are insufficient to govern the concrete and real life of society. To govern society one needs of positive law, the revealed law of God.72
The moral and political works, and the intellectual statues (ab-nuamis alaqlayt) are notorious; nor political or intellectual works are perfectly notorious, while we know of their substance, we do not know of their quantity; because we know that humility is an obligation; and the doctrine of the soul in penance
71 72

Ibid., II, 48, pp. 105-106. Cf. Al-Amant, p. 118 and pages to follow.

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and submission is an obligation ; but determining these things and their quantity, in a way that they may bee good for all, cannot be reached without Gods (law).73

4. NATURAL LAW IN MAIMONIDES TREATISES In the previous section we displayed the mind of the anti-rationalist Jew par excellence and we have explained the philosophical character and meaning of said anti-rationalism. Now we shall display the mind of another Jewish thinker, Moses ben Maimn, considered by modern researchers to be the rationalist par excellence. Here we pretend to demonstrate, despite his rationalism, that Maimonides maintains the same negative attitude as Yehudh haLev towards natural and rational law. In order to form an exact idea of the mind of this thinker in regard to natural law, we shall examine not only his philosophical treatises, but also his juridical ones. Maimonides posture in respect to rational law becomes patently clear in his legal code the Mishnh Torh. Maimonides declares that a non-Jew who performs the Noahide commandments is considered a hasid, a pious man, and he will have a share in the world to come, in other words, he will be saved. Now, when the Talmud discusses if the non-Jewish hasid is saved, it does not define hasid, nor it says that the hasid is a non-Jew who observes the Noahide commandments.74 As a result, Maimonides could have well interpreted the word hasid quite liberally according to his own criteria, he could have defined it as one who performs the rational commandments. However, Maimonides stipulates as a sine qua non condition for the pious or hasid non-Jew to reach salvation to perform the Noahide commandments because they were commanded by God, as witnessed by Mosaic tradition, not
El Cuzary, III, 7, pp. 143-146. Toseft, Sanhedrin, XIII, 2: TB Sanhedrin, 105a. It important to note that the commentators do not indicate what source is Mainonides using in this particular. Nonetheless, in Responsa, ed. J Blau, vol. I, Jerusalem, 1947, p. 282, Maimonides alludes it is from a pre-Talmudic source. The Mishna of Rabbi Eliezer (Heb. Text), ed. II, G. Enelow, New York, 1933, p. 121, as the source of his concpept of a nonJewish hasid. Despite this source, this thought was not shared by no other rabbi before Maimonides. Vide infra, footnote 75.
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because reason thus commands it. This condition is not found in the Talmud.75 In addition: Maimonides declares that the non-Jew who observes the Noahide laws, because these are commanded by reason, not only he is not a hasid and he will not be saved, but neither he is a hakham, sage. This last detail is not to be found anywhere in rabbinic literature, which proves that Maimonides was displaying his own ideas, what he thinks about the subject. Of the just exposed we obtain, from Maimonides point of view, the inexistence of rational law. Following we translate his words:
Anyone who accepts the seven (Noahide) commandments, and toils to perform them, is considered a pious non-Jew (hasid) and will have a portion in the world hereafter (he will be saved). This is, only, when he accepts and observes them because God prescribed these in the Torh and because we have been informed, via Moses, that the descendants of Noah had been previously commanded to perform them. But if he only performs them because reason dictates them to do so, he is not considered a ger toshab,76 or a pious non-Jew, and neither a sage.77

Maimonides maintains the same posture in his philosophical writings. In a strictly Aristotelian sense natural law is a collection of norms that have not been promulgated by any authority, inscribed in mans nature, about which everyone agrees to without the need to communicate or accord them through consensus.78 Thomas Aquinas, in the Aristotelian line, defines natural law as the participation of the eternal law
Cf. JOS CARO: Ksef Mishn, Melakhim, VIII, 11, who does not know Maimonidessource. As we have indicated in the previous footnote, Maimonides alludes to the Mishn of Rabbi Eliezer as the source for his opinion. However, the text of that work in our possession does not say, as Maimonides underlines, that the non-Jew must perform the Noahide laws because Moses thus commanded it. 76 Lit. resident alien, that is, a non-Jew with the right to reside on the Holy Land; cf. TB Abod Zar, 64b. 77 Melakhm, VIII, 11; cf. Maimonides commentary to the Mishn Hulln, VII. It is convenient to clarify these words: neither as a sage appears in the famous Spanish Ms. (beginnings of the 15th c.) J. T. S. ENA, 1962, in the famous incunabula of Rome, in the Constantinople, Venice, Amsterdam and Vilna editions. There are some who read, however, but it is one of their sages; Mosh Al-Ashqar, Teshubot, CXVII. This last text appears to be the correction of some copyist, who did not find the original verision of Maimonides rationalism appropriate. 78 Retrica, I, 13, 1373b.
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in the rational creature (participatio legis aeternae in rationali creatura79). Maimonides, like Yehudh haLev, ignores this Aristotelian sense of natural law. The natural law that Moses admits is a law promulgated by an authority in order to satisfy the natural need of man to live in society. Maimonides does not conceive natural law in regards to its origin. Maimonides natural law is natural only in the secondary80 or metaphoric81 sense. It cannot be natural in regards to its origin, since it is promulgated by a human authority and is, strictly speaking, conventional.82 The law can be natural in regards to its finality: to order it as a provision to the natural needs of regulating laws for social life. Man needs them: (a) because his nature is the most varied in the animal kingdom, and (b) because his nature demands to live in society. As a result, every law that serves to establish a harmonic society is, in regards to its finality, natural. We translate Maimonides words:
It has been clearly exposed that man is by nature a social being and that his nature demands to live in society, as a result, he is different from the rest of the animals who do not have the need to group themselves (in society) And since his nature (that is, human nature) allows for such a degree of variation among all individuals, it is absolutely impossible that society maintains itself in harmony without a leader capable to regulate his behavior, substituting the defects and moderating the excesses, and that he legislates, with uniform and determining laws, the actions and norms that all should practice so to make disappear the natural variation and thus society ends up being well ordered.83

From this passage, H. A. Wolfson infers that according to Maimonides all promulgated law by prudent legislators with the end to establish a well-ordered society is considered natural.84

79 80

Summa Theologica, I, 2, p. 91, art. 2. Philo, II, p. 310. 81 Persecution and the Art of Writing, p. 97, footnote 5. 82 Vide infra, footnote 105. 83 The English translation is ours, it comes from the Arabic text Dalalt Al-Hayarin, ed. Joel-Munk Jerusalem, 1931, II, 40, p. 270. 84 Philo, II, p. 370.

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Joseph Alb follows Maimonides footsteps:

Given that society, as a group, is necessary for life and maintenance of the human specie, the sages have said that man is by nature a political being. With this they mean that is almost necessary that man, because of his nature, dwells in the city with a great group of people so he can obtain what is indispensable for his life and maintenance. It is evident, therefore, that any grouping (of individuals who inhabit) in a city, district or region, or for instance that all men of the world must have order to conduct themselves, protect justice in general and suppress injustice, so to avoid fights with one another in his relations and commercial associations. This order should include the protection against murder, theft, burglary and similar things, and, in general, everything that helps to maintain the political community and improves it so in this manner men can live in harmony. This order was called by the sages natural law, by which they mean that which is necessary for man due to his own nature,85 whether this law proceeds from a sage or a prophet.86

Further down he adds:

The end of natural law is to impede injustice and promote righteousness, that men become distanced from theft, burglary and murder and in this manner they can subsist in society and mens maintenance, and that each one should be saved form oppression and injustice.87

According to this concept of natural law, Maimonides observes that the Torh is not natural in regards to its origin, since a human authority promulgates natural law and the Torh has been revealed and created88 by God; but it can be considered natural in regards to its finality, since it maintains society in harmony:
Therefore, I declare since the Torh is not natural (in regards to its origin), it is in harmony with nature.89

It is illustrative how our commentators see the phrase: since the Torh is not natural.
85 86

The Italics are ours. Sefer ha-Iqqarim, I, 5. The translation is ours. 87 Ibid., I, 7. 88 Dalalt al-Hayarin, I, 65, p. 108. 89 Ibid., II, 40, p. 270; cf. Philo, II, p. 372.

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Moses of Narbonne observes: If languages are not natural, how could the Torh be natural and be written in the nature of man so (supposedly) he acts according to everything written in it and he adheres to its principles?90 Shem Tob says: The Teacher (Maimonides) affirms since the Torh is not natural (he means) impressed in the nature of man91 In another place, Maimonides expresses with absolute clarity his thought on natural law: when he points as apparent but wrong the opinion in favor of natural law that one may form from Biblical and rabbinic literature:
It has been mentioned in several places that justice is necessary, in other words, that (God) rewards any pious person who performs the pious and righteous acts despite them not being commanded by a prophet; and likewise, that (God) punishes all bad deeds done by an individual despite these not having been forbidden by a prophet, since it is a forbidden thing by the natural sense that forbids injustice and evil.92

It is important to clarify and this will allow us to understand the rationalist character of Maimonides that once natural law in its Christian scholastic sense has been denied, rational law also must be denied. Already since the beginning of The Guide of the Perplexed, Maimonides asserts that moral acts are derived from the positive conventional laws,93 given that the intellect can only distinguish between truth and falseness, but not between moral good and evil:
Through the intellect man can distinguish between truth and falseness but the good and evil belong (to the class of) conventional (laws).94

90 91

Edicin de J. Goldenthel, Vienna, 1852, f. 44b. Commentary, ad. loc. 92 Dalalt Al-Hayarin, III, 17, p. 399. Shem Tob says this is a mere opinion, ad. loc., and S. Munk, (French text), III, p. 126, footnote 2. 93 Vide infra, note. 94 Dalalt Al-Hayarin, I, 2. p. 16.

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In Maimonides ethics, the only Torh rational commandments are the ones about believing in the existence and unity of God. All the rest, the moral, ceremonial and judicial commandments, although in harmony with reason, are not rational commandments, but conventional laws. When exposing the rabbinic opinion according to which during the theophany at Sinai the people of Israel received directly from God only the first two commandments (to believe in the existence and unity of God), and the rest through Moses intercession, Maimonides comments that this is due to the fact that the first two commandments are rational. For the same reason, the people of Israel did not need prophetic assistance to be able to receive them. But the rest of the commandments belong to the said conventional positive laws and cannot be perceived without prophetic assistance.
This means to say that those (the first two commandments) came (directly from God to the people) as they came to Moses our Teacher. Our Teacher Moses did not (have the need) to deliver them, because these two principles, which are (to believe) in Gods existence and unity, can be perceived by the human intellect, and everything else that can be known apodictically, the prophet and the one who knows (apodictically) are on the same level, the prophet having no advantage. These two principles were not only known through revelation (but apodictically through reason) The rest of commandments belong to the class of conventional (laws).95

It is important to note that, according to Maimonides, these two rational commandments obligate for being Divine and positive, not because reason prescribes them. This is Maimonides thesis. Let us review it: In his treatise Shemon Peraqm, Maimonides asks himself if any Torh commandment should be performed with the rational faculty of man, and he gives his conclusion in the affirmative.96 In the Sefer haMisswt97 and in the Mishnh Torh98(98) he considers the belief in the existence and unity of God as Mosaic commandments. Now then, many Jewish theologians do not consider the belief in Gods existence as a commandment, as a thing that one must perform, but as an article
95 96

Ibid. II, 33, p. 256. Sf. Persecution and the Art of Writing, p. 96, footnote 4. Shemon Peraqim, II. 97 Sefer ha-Misswt, positive commandment 1 and 2. 98 Yesod ha-Tor, I, 6,7.

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of faith, a thing one ought to believe.99 The famous Saragossan philosopher Hasdai Crescas made a main objection to Maimonides thesis. In the Introduction to his work Or Adonay100, The Light of the Lord, Crescas points out that within Judaism the performance of a commandment presupposes the recognition of God as an authority who commands such performance. Therefore Crescas argues it is an absurd to consider the existence of God as a commandment, since before performing the commandment to believe in God one must recognize the authority of God and as a consequence His existence that commands to believe in Him. Crescas objection is only valid if we consider the rational commandments to be obligatory because commanded by reason, because once reason has recognized God, one performs the said commandment. But if the rational commandments are not obligatory because reason commands it, as Maimonides maintains, Crescas objection disappears. According to Maimonides, the commandment to believe in Gods existence obligates and as a result, it is only performed as a Divine positive commandment. According to Maimonides theology, that who believes in God because reason thus dictates it has not performed the Mosaic commandment that commands to believe in Him.101 Since for Maimonides the belief of Gods existence and unity are rational commandments, and the rest conventional, he violently102 opposes those who classify the Mosaic commandments in rational (ash-sharaye al-aqlyt) and revealed (sharaye as-samayt).103 In Maimonides mind, none of these commandments are rational in the Aristotelian sense. In everything, the Mosaic commandments, even those ceremonial ones where reason cannot discover any finality, are in harmony with reason and nature, and have, besides their net spiritual value, a practical

Cf. Sfer ha-Misswt, positive commandment 1, and Nahmanides commentary, ad. loc. Tel-Aviv, 5723-1909, f. 8a. 101 Maimonides posture in regards to this commandment is identical to the one he adopts in regard to Noahide commandments. 102 About what motivated Maimonides to violently attack such classification, see the following section and footnote 106. 103 Shemon Peraqim, VI.
100

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useful side, because these promote the social, corporal well-being, or these provide knowledge that will help the individual with life in this world.104 Because of this, in his work Shemon Peraqm undoubtedly the most rationalist of all his works he pauses to attack certain sages (no doubt Seadya and Bahye ibn Paquda) who classify the moral commandments as rational commandments, and those ceremonial ones as revealed commandments. He says that these sages suffer from the sickness of the mutakallimn (Muslim scholastics).105 According to Maimonides, the rational commandments belong in reality to the commandments that the philosophers call conventional (al-mashkurt).106 From these to latest sections we are able to see that Yehudh haLev and Maimonides coincide in the concept of natural law, because they admit to a natural law, not in regards to its origin as admitted by Bahye and Christian scholastics , but in regards to its finality. 5. THE DOCTRINE OF NATURAL LAW AND THE JEWISH SPIRITUAL CONSTITUENTS In the previous sections, we have discussed the doctrine of natural law in three different epochs of the Hebrew people. In the Talmudic age, the nucleus of the Hebrew people lived in the ancient Parthian empire. Far from cultural centers, the Hebrew communities cultivated their own spirituality without interference or strange influences. During this age, the Jews do not know of or admit to natural law as a source for morality.

104 105

Cf. Dalalt Al-Hayarin, III, 27. Shemon Peraqm, V. It would be convenient to note that also Abraham ibn Daud, Emun Ram, Frankfurt, 1852, p. 75 maintains that the so-called natural laws are in reality conventional laws. 106 In an article by I. Efros, The Approach of Reason to Ethics according to Seadya and Maimonides (Heb.), Tarbiz, XXVIII (1959), pp. 323-329, he tries to analyze why Maimonides severely attacks Seadyas thesis (p. 325) and concludes they are not divided in any philosophical question; the only thing separating them is a terminology controversy from the Middle Ages (p. 329). We do not believe that Efros captured the meaning of this controversy. It is implausible that Maimonides would have bothered to severely attack someone just for having employed a term incorrectly if he were not to mediate the background of these philosophies.

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The second age after Babylonias conquest by the Arabs, when Jews get in touch with Islamic culture, they become familiarized with its literature and philosophical thought, and participate in its cultural movements. In this age some Jewish sages introduce the concept of natural law as a factor for morality and interior life. The third age is that of the Spanish Golden Age. When Arab-speaking Sephardim lifted Judaism to a level without parallel in history and men of the stature of Gabirol, the ibn Ezras, Yehudh haLev, Abraham ibn Daud and many others emerge. During this age of great cultural production, age where all sorts of rationalist ideologies effervesced, two of the greatest philosophers from Arab-speaking Sephardim emerge, Yehudh haLev and Moses ben Maimn, and despite each represented different schools of thought, both oppose natural and rational law as a factor for moral life. To what do we owe such opposition? At the end of the first section we suggested that the reason Judaism did not accept natural law is because Judaism considers itself a revealed religion, bearer of a revelation that will last forever. Christianity, which considers itself also as a revealed religion, admits the existence of natural law. This is due to the fact that Christianity also admits the ancient Torh as revealed, but not eternal. According to Christian theology, Jesus abrogated the Torh, except for those precepts that are by nature 107 In the Christian theological system, the eternal the moral precepts . doctrine of natural law is indispensable to be able to justify its negative attitude before the Torh, in order to distinguish between non-abrogated commandments those of natural order and abrogated commandments: The judicial and ceremonial commandments. In the Jewish theological system the doctrine of natural law is, on the contrary, absolutely unnecessary.108 Lets add that besides it being totally unnecessary, the doctrine

In classic jurisprudence the natural law is inviolable: Cf. Cicero, De republica, 3, 22, 33; while the rest of the laws can be abrogated; cf. VICENZO ARANGIO RUIZ: La regle de droit et loi dans lantiquit, Rariora, p. 255 and the following pages, Rome, 1946. 108 Cf. H. A. WOLFSON: Philo, II, p. 312.

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of natural law (in the Aristotelian sense of scholastics, likewise in classic Roman jurisprudence) is incompatible with the basic principles of Judaism. In Hebrew thought, the Supreme Being is not part of the world; it is not even subject to that eternal and immutable order that Pagan thought considered preexisting in matter or the initial chaos. God is a being absolutely free of any external coercion that conditions Him, and of any determination or necessity internal to His own being; Divine liberty is absolute, His plural activity could have been something completely different of what is or has been. Although man is casually related with God, in the sense that God is the Creator and man was created by Him, this is a relation of origin. Once created, man and God are distinct categories and, contrary to what scholastic theodicy says, completely unlinked. Since man and God are categories absolutely different and unlinked from each other, the distance between man and Him is absolute. Therefore, Judaism cannot accept the concept of religatio of man with God. For the Jew, the only foundation of religion is the free and mutual election of God and man, reason being why the two parts concert a pact, an alliance, a berit. This pact has existed: It is the pact of Sinai, completed on the fields of Moab. This berit is the only plinth of Hebrew spirituality, the only link between Israel and God.109 On the other hand, in scholastic theology natural law obligates because it is the participation of the eternal law in the rational nature of man.110 This eternal law is identical to Gods essence.111 He reveals, be it in nature (natural law), or be it in revelation (positive Divine law).

We have expanded these basic Jewish concepts in the first three chapters of our thesis, La espiritualidad juda, presented in June of 1962 at the Univesidad de Barcelona to obtain the degree on Semitic Philology. 110 Summa, I, 2. Q. 91, art. 3. 111 Idem, I, Q. 93, art. 4.

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Also in Roman jurisprudence of the classic era natural law has its origin in Gods essence112 and He implants it in nature.113 But for Judaism it is inadmissible to have a law ontologically related to God, particularly a law identical to the essence and nature of God. For the Hebrew mind such eternal law becomes confused with the eternal order that Pagan divinities were subject to, be it by external coercion, or be it for an internal necessity or ordainment.

Published in La doctrina de la ley natural en el pensamiento Judo del medioevo, Sefarad 27 (1967), 218-224. Translated from the Spanish by David Ramrez Edited by David Shasha

112 113

Cicero, De legibus, 1, 6, 20; and ibid. 1, 13, 35. Ibid., 1, 6, 18; De republica, 3, 23, 33.