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JUDAISM AND NATURAL LAW
The question of the relation between Judaism and natural law is important both for scholars and for reﬂective persons with an interest in the grounds of Jewish moral thought. There is a rich history of natural law theorizing that has had considerable inﬂuence, and there has been a revival of natural law theorizing in the contemporary period. The topic of the present discussion is of more than historical interest; it is a live question of real, current relevance.
Part of the interest of natural law theorizing has always been the way in which it makes claims to universal validity. The notion of ‘the natural’ in natural law has been intended to apply to all human beings as participants in a common moral order. ‘Nature’ involves universality of scope in a way that the morality of a nation or a particular culture does not. Granted, different natural law theories have been substantially shaped by the cultural settings in which they arose. This is evident in Stoic notions of natural law, medieval Christian notions of it, and early modern conceptions, several of which have powerfully shaped modern political thought. (Thomas Hobbes, John Locke, and Hugo Grotius – seventeenth and eighteenth century thinkers – were natural law theorists, and their inﬂuence has been enormous and lasting.) Still, the aspiration of natural law has always been universal in its scope of application. The Hebrew Bible and Judaism are often regarded as having a seminal role in Western moral thought, as the widely used expression ‘Judeo-Christian’ tradition indicates. Consider the elements of the Noahide commandments in Genesis 9 and their resonance in so much of Western moral thought. Similarly for the Decalogue, assimilated into Christian thought as the part of the ‘Old Law’ that was preserved. At the same time, often the ‘Judeo’ is included more as a historical reference than as a continuing signiﬁcant presence, or at least, it can seem that way. It is probably true that Judaism is widely held to be an origin though, not a signiﬁcant ongoing source of moral thought. In fact, however, ideas of equality of moral status, the moral respect owed to the individual, the moral imperative to aid and protect the poor and defenseless, the imperative of justice – these and other fundamentals of morality have an explicit, central place in Jewish thought and attain classic expressions there, both in the Torah and in the Prophets, and then in an ongoing, continuously elaborated manner in Talmud and rabbinic literature. These indeed, are key elements of what most people would regard as any plausible morality and they have attained universality as values and ideals. This is so even though many texts and issues speciﬁc to the Jewish tradition may not be widely studied outside it. While natural law’s concern with universality is especially pronounced, that approach to theorizing is not the only one to which universality is a central concern. It could turn out
r The author 2009. Journal compilation r Trustees for Roman Catholic Purposes Registered 2009. Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
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that Jewish moral thought has some important overlap with natural law theorizing even if the former does not involve the latter or is not a version of the latter. It would then be an illuminating project to try to understand how they differ and what explicates the points of overlap and non-overlap. Perhaps Jewish moral thought has closer afﬁnity to some other approach. We will take up that question as we proceed. Our main concerns are (a) whether Jewish moral thought involves natural law elements, and (b) the importance of whether it does or does not. For example, what would be the ‘cost’ to Jewish moral thought if it did not? Would that be indicative of one or another signiﬁcant deﬁciency?
I begin with some quotations from Cicero because they supply such an apt and clear statement of some of the most basic character of natural law thinking.
There is one, single, justice. It binds together human society and has been established by one, single, law. That law is right reason in commanding and forbidding. A man who does not acknowledge this law is unjust, whether it has been written down anywhere or not.1 That is why justice is completely nonexistent if it is not derived from nature, and if that kind of justice which is established to serve self-interest is wrecked by that same self-interest. And that is why very virtue is abolished if nature is not going to support justice.2 But in fact we can distinguish a good law from a bad one solely by the criterion of nature. And not only justice and injustice are differentiated by nature, but all things without exception that are honourable and dishonourable. For nature has created perceptions which we have in common, and has sketched them in our minds in such a way that we classify honourable things as virtues and dishonourable things as vices.3 . . . law in the proper sense is right reason in harmony with nature. It is spread through the whole human community, unchanging and eternal; calling people to their duty by its commands and deterring them from wrong-doing by its prohibitions . . . This law cannot be countermanded, nor can it be in any way amended, nor can it be totally rescinded. We cannot be exempted from this law by any decree of the Senate or the people; nor do we need anyone else to expound or explain it.4
The Stoics tended not to theorize very systematically about natural law. Like Cicero, they held strong convictions about certain moral principles and ideals but did not develop fullﬂedged accounts of their justiﬁcation or elaborate on them in a detailed way. They had a powerful, compelling moral vision, but natural law theorizing came later though Stoics were at home using the idiom of ‘natural law’. Medieval Christian moral thought used the idiom of ‘natural law’ very prominently. One of the most inﬂuential (and still hugely inﬂuential) accounts of natural law is Thomas Aquinas’s. A fundamental aspect of Aquinas’s theory is that, ‘the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the divine light. It is therefore evident that the natural law is nothing else than the rational creature’s participation in the eternal law’.5 And, ‘law denotes a kind of plan directing towards an end’.6 He wrote;
. . . it is evident that all things partake in some way in the eternal law, in so far as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends. Now among all others, the rational creature is subject to divine providence in a more excellent way,
in so far as it itself partakes of a share of providence, by being provident both for itself and for others. Therefore it has a share of the eternal reason, whereby it has a natural inclination to its proper act and end; and this participation of the eternal law in the rational creature is called the natural law.7
In Aquinas’s view natural law is a reﬂection of eternal law in the sense that it is through natural law that a human being, qua rational being, has some afﬁnity to God and participates intellectually in the divine ordering of things, by having an understanding of good. Commenting on Aquinas’s view that it is through natural law that a rational being participates in eternal law John Finnis writes, ‘For Aquinas, the word participatio focally signiﬁes two conjoined concepts, causality and similarity (or imitation). A quality that an entity or state of affairs has or includes is participated, in Aquinas’s sense, if that quality is caused by a similar quality which some other entity or state of affairs has or includes in a more intrinsic or less dependent way’.8 What Aquinas called synderesis is a crucial part of the account. (The term is not owed to him but he did develop the notion in its most inﬂuential form. It is traceable to St. Jerome.) ‘Synderesis is said to be the law of our intellect because it is a habit containing the precepts of the natural law, which are the ﬁrst principles of human action’.9 And, ‘The natural law is promulgated by the very fact that God instilled it into man’s mind so as to be known by him naturally’.10 Aquinas held that the mind is supplied with habitual knowledge of ﬁrst principles of practical reason, reason in its action-guiding deployment. Synderesis supplies ﬁrst principles for moral thought and decision. Natural law makes possible the knowledge of objective, universal goods, the knowledge of which can guide human beings in acting morally and leading virtuous, ﬂourishing lives. The ﬁrst principle of practical reason – that good is to be done and pursued and evil is not to be done and is to be avoided – does not tell us what to do in speciﬁc circumstances. The speciﬁcation of rules of action and the determination of particular decisions requires practical reasoning. Of course, the ﬁrst principle is signiﬁcant as an orienting principle; it may sound platitudinous but it indicates a crucial, stable, guiding direction for practical reason. And, the secondary principles (‘tell the truth,’ ‘repay debts,’ ‘show gratitude to benefactors’, and the like) are grounded in the ﬁrst principle. Moreover, it is a principle available to all agents just on account of being rational beings. (The Thomistic ﬁrst principle of practical reason is not exactly the same as Aristotle’s claim that all human activity aims at what we take to be good. Aquinas was making a point about an actual principle of practical rationality rather than a point about the overall nature of rational activity.) There are two main variants of the Thomistic approach. Or, we could say that there are two inﬂuential interpretations of the Thomistic account. One of them is a teleological approach and the other focuses on evident principles. Each of them is consistent with theistic commitments but each has also been developed independently of such commitments. (Whether theological considerations are essential to Aquinas’s view is an interpretive issue we will not pursue in detail here.) In the teleological approach there is an essential role for the notion of an intrinsic end (a telos) for human beings. (The view that human nature has an intrinsic end that it is crucial to morality, was paradigmatically developed by Aristotle. However, it is at least debatable whether he is a natural law theorist. One can defend teleology without also endorsing natural law. I will comment brieﬂy on this below.) The central claim is that what is objectively good for human beings – what constitutes their real good in contrast to merely
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apparent or perceived good – depends upon distinctive features of human nature as a nature that is actualized or realized in certain determinate ways. There are objectively wellordered and well-led human lives, and there are the opposites of that. Judgment about human good can be correct or mistaken; moral knowledge is possible. The virtuous agent has sound comprehension of good, the habit of acting accordingly, and enjoys acting well. Excellent activity is naturally pleasing. The virtuous agent ﬁnds it pleasing and worthwhile to act on the basis of correct moral understanding. For the purposes of the present discussion, the key point is that there is a genuine human end, an objective condition of human excellence, and that matters of moral value are not matters of cultural convention, individual subjectivity or stipulation. Henry Veatch, who has recently developed an account of this type argues that, ‘the true end or goal of a human existence is set and determined by nature, or by man’s very nature as a human being, if you will. It is thus a natural end in a literal sense’.11 There is broad scope for contingency, deliberation, and diversity in choosing speciﬁc ends and fashioning the contour and details of a life. But that we engage in such activity, and that it is ordered to the good is a matter of nature does not mean that human beings function in such a way that unless something impedes or corrupts them, they will attain their proper end. In fact, a great deal – and a great deal that is contingent and that depends upon choice, luck, and voluntariness – has to go right. People can be mistaken, foolish or reckless. But the key point is that through the exercise of rational capacities human beings can comprehend what are genuine goods for them and they can realize those ends. Our telos can be actualized through the self-directed exercise of our own rational causality. The main implication for morality is that, ‘even though they are laws that human beings need to determine for themselves, moral rules and laws are nevertheless at the same time natural laws, or at least based on natural laws, which nature prescribes as being necessary to follow if one’s natural human end is to be achieved’.12 ‘Indeed, no human being can ever be said to live well, or to live as a human being ought to live, unless it is on the basis of his own decisions and choices made in the light of his own understanding of what is best for him and what the good life demands’.13 There is a deep grounding here in the Aristotelian view that what is distinctive of a human life is the role of self-determining rational activity, one’s own activity as a rational agent is constitutive of the good proper to a human being.14 We ascertain the goods appropriate to us through the use of reason and the exercise of the virtues.
. . . from nature and in the light of our understanding of human nature, we come to recognize what our natural end or telos is simply by virtue of our nature as human beings. Moreover, our natural end being thus no more and no less than our true human good, which, as Aquinas says, is that which is to be done and to be pursued, just as evil is to be avoided, it follows that the natural end of man that is discoverable by nature is an obligatory end for each and every one of us.15
Practical rationality can understand the goods for a human being and it can realize them. That is the central fact about human beings in respect of the foundations of ethics. Currently, it is widely held that the understanding of nature no longer has a place in it for teleological conceptions. It is often claimed that they are archaic and have been displaced by a conception that dispenses with ends, goods, and norms in any other than a statistical sense, or that they have been displaced by a conception of human nature that ‘localizes’ teleology to particular actions and activities, rather than attributing an intrinsic telos to human nature as such. Accordingly, there are differences in how natural law is conceived. We should emphasize, however, that even if teleology’s place in the
understanding of nature and laws of nature is much less central and secure than in the past, its place in the understanding of human action is regarded as plausible and signiﬁcant by many thinkers. Given the distinctive capacities of human beings, it makes sound sense to interpret human action as end-oriented, as purposive, and as aiming at what agents take to be good (though their judgment may be poor). The teleology of human action need not be underwritten by a global natural or metaphysical teleology, though Veatch (among some others) has been willing to defend elements of such a view. In addition to the teleological conception of natural law there is another that has attained prominence in recent years and it also claims to be grounded in Thomistic principles. In this second approach, the main claim is that there are goods that are evident to practical reason, and they supply a basis for moral principles. This counts as a natural law approach because these goods are objectively relevant to all human beings and they are ascertainable by all rational, reﬂective human beings. They are not restricted to any particular culture or period or set of concerns. The notion of being rationally evident does the main work here. Alfonso Gomez-Lobo, a defender of this approach, argues that, ‘human goods have a conceptual core that can be intellectually understood’.16 In regard to morality, what we are to do is to judge actions by ‘moral norms that can be justiﬁed (and are open to revision) by reference to basic human goods and their particular instances’.17 He says of his view:
What I have tried to do is to develop a system of pure practical reason starting from self-evident, practical principles that anyone can understand and accept. By calling it ‘a system of pure practical reason,’ I seek to emphasize that this book contains no foundational claims that are based on faith or, alternatively, on theoretical reason. No appeals are made to theological or metaphysical truths about God, nature, or the essence of human beings to ground normative principles, guidelines, or norms.18
And, ‘[m]y overall aim, then, is to present a version of common, natural law morality that, insofar as it is based exclusively on reason, is accessible to anyone and therefore is binding on everyone without distinction’.19 Robert George has developed a similar account according to which, ‘objective practical knowledge (including moral knowledge) is in fact possible, and it is possible precisely because of our intellective grasp of truly basic, underived practical principles’.20 He holds that there are ‘goods that are intrinsically valuable for human beings (‘basic human goods’) and, precisely as such, provide intelligible (non-instrumental) reasons for action . . .’21 ‘The practical intellect itself grasps certain ends as reasons for action that require no further reasons. They are intelligible as ends in themselves’.22 Practical reason grasps principles and comprehends goods. It does not wait upon theoretical reason to attain an understanding and then deploy that understanding in relation to action. That grasp is itself an operation of practical reason. And John Finnis argues that
Aquinas asserts as plainly as possible that the ﬁrst principles of natural law, which specify the basic forms of good and evil and which can be adequately grasped by anyone of the age of reason (and not just by metaphysicians), are per se nota (self-evident) and indemonstrable. They are not inferred from speculative principles. They are not inferred from facts. . . . 23 They are not inferred or derived from anything. They are underived (though not innate). Principles of right and wrong, too, are derived from these ﬁrst, pre-moral principles of practical reasonableness, and not from any facts, whether metaphysical or otherwise.24
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In Finnis’s interpretation, ‘for Aquinas, the way to discover what is morally right (virtue) an wrong (vice) is to ask, not what is in accordance with human nature, but what is reasonable. And this quest will eventually bring one back to the underived ﬁrst principles of practical reasonableness, principles which make no reference at all to human nature, but only to human good’.25 It is the fact that we are rational beings that is basic with regard to ethics, rather than facts about our nature being basic in the way they are sometimes taken by those who wish to derive normative conclusions from premises about human nature. Being faithful to Aquinas, these theorists point out that what is evident to practical reason does not say directly what is morally required. The ﬁrst principle ‘states a condition of any coherent practical thinking, viz., that one’s reasoning be directed toward some end that is pursuable by human action’.26 ‘The practical intellect itself grasps certain ends as reasons for action that require no further reasons. They are intelligible as ends-inthemselves’.27 And, ‘our intelligent grasp of human goods is what makes moral questions possible’.28 As indicated above, these two approaches to natural law have been offered by their proponents as interpretations of Aquinas, and as correct accounts of morality. Pursuing the interpretive issue would involve us in more than we should take on here. I will, however, comment brieﬂy on the issue of Aristotle and natural law, especially as regards Aristotle’s relation to Aquinas. While Aristotle is a crucial resource for Aquinas, and while some interpreters of Aquinas see him as basically developing natural law elements implicit in Aristotle’s thought, it is not clear that Aristotle should be seen as a natural law theorist. This is not because there is some alleged incompatibility between natural law and a virtuecentered ethics of practical wisdom; such an approach could surely be elaborated as a form of natural law theory, and indeed, has been so developed. For example, Aquinas uses Aristotle’s conception of ﬁnding the mean and arriving at a judgment and a decision about what is required through the employment of practical wisdom, but his inclusion of ﬁrst principles and the intrinsic habit of synderesis seem to me to be signiﬁcant modiﬁcations of Aristotle’s view. Aristotle does indeed have a conception of a common human nature with an intrinsic good realized through virtue-informed practical wisdom. Also, he makes a distinction between what is just ‘human [enactment]’ and what is just ‘by nature’29 and he says that ‘[o]ne part of the politically just is natural’ and ‘has the same validity everywhere alike, independent of its seeming so or not’.30 Still, while this is congenial to a natural law approach we really do not ﬁnd substantial elements of such an approach, in any sort of full-ﬂedged, explicit manner. Aristotle seems to be focused more on the moral psychology and epistemology of arriving at sound particular judgments and decisions than in showing how they reﬂect a set of principles that are appropriately interpreted as natural laws. Granted, ‘natural law’ is open to a quite broad range of interpretation; I would not insist that Aristotle could not be interpreted as a natural law theorist. Still, he seems not to invite that characterization in the most evident or unambiguous manner. While for Aristotle there surely are important, general, action guiding moral principles, those are arrived at by generalization from what are more basic particular judgments and the ways in which they ﬁgure in acting well and leading an excellent life. There is not quite a body of principles that constitutes a system of natural law. Finally, here, I have not said anything about early modern natural law theorizing, mainly because it developed the issues in some different directions. With theorists such as Hobbes and Locke there is much more concern with what a rational agent would agree to, and with what would be the justiﬁed terms of a social contract. That concern is not wholly detached from our concerns. Their notion of a social contract has some roots in the Jewish
notion of covenant, for example, and their notions of nationhood and political legitimacy as grounded in law have Jewish roots.31 But they were addressing somewhat different concerns from those addressed in ancient and medieval natural law theorizing. The latter is most relevant to our purposes.
Much of the debate about natural law in Judaism has focused on Maimonides. This is because he is perhaps the most inﬂuential Jewish philosopher and because he gave such an extensive treatment of the issue of the relation between reason and revelation, the issue of ‘the reasons of the commandments’. Most of our discussion will focus on Maimonides as well. One contemporary thinker who has defended the view that Jewish moral thought (with Maimonides as an especially important example of a Jewish moral thinker) essentially involves natural law is David Novak. He has made the case in his Natural Law in Judaism as well as elsewhere. Novak’s view is that there are rational presuppositions of Jewish moral thought that are so basic and so universal that they count as natural law. Some of his explication of this has afﬁnity with the conceptions presented by some recent defenders of natural law. For example, Novak writes:
Rational choice presupposes intelligent judgment (nihil volitum nisi praecognitum). Therefore, it seems to me that the best reason for the choice of the Jewish people to enter into the covenant with God, as we saw before, was their judgment that God’s knowledge of their needs and his concern for them was sufﬁcient reason for them to choose to accept his authority, to accept laws as continually binding obligations, for the keeping of these laws itself is man’s active participation in the same divine concern ﬁrst manifest in Egypt . . . In order for people to know that God’s commandments are right for them, they obviously have to possess some knowledge of what is right in general. This precondition is simply unavoidable.32
In a remark with afﬁnity with Novak’s view, we saw that Robert George said, ‘our intelligent grasp of human goods is what makes moral questions possible’.33 Like Novak, but without directly appealing to theological bases, George argues that morality needs natural law, both in regard to supplying justifying grounds and in regard to supplying broad principles through the speciﬁc determinations of which we can ascertain moral requirements. There is an intelligible basis in reason for moral requirements and that is what we call ‘natural law’. Of course, Jewish law differs from systems of non-Jewish moral and practical reason – even those based upon revelation – in the centrality of the halakha, interpretation of the commandments, and the great body of rabbinic commentary and elaboration. The body of law in the Jewish tradition differs from that in the Christian and secular traditions in some of the character of evidence, authority, and overall dialectical context. The difference is not so great that it renders Jewish legal thought wholly unlike those other traditions but, and Novak adds, ‘the greater bulk of the halakhic system is not from direct scriptural revelation but from human reason, ultimately operating for the sake of the covenant’.34 This is a way of pointing out a deep continuity between Jewish moral thought on the one hand, and natural law and non-Jewish moral thought, on the other. However, it also indicates what may make for a good deal of distance between them (viz., the covenant, its character, and its function).
JUDAISM AND NATURAL LAW
Novak holds that, ‘Positive rabbinic law, precisely because it is humanly ordained, involves natural law factors in its very initiation, in the setting forth of its grounds. In divinely revealed positive law, natural factors are immediately present only in the conditions for human response to the commandments of God’.35 And, ‘If humans could not discover at least some of God’s law for themselves before revelation, how could they possibly accept the fuller version of God’s law that comes with historical revelation in the covenant?’36 Without that, there would be no rational basis for recognizing the normative point of what is revealed. ‘Natural law reasons for certain commandments, speciﬁcally those that govern most interhuman relationships, are those reasons that are assumed to have normative validity universally’.37 And, ‘natural law (which, to be sure, is a term Maimonides does not use, but which can be applied to his legal theory) means the most general law God has decreed for human creatures’.38 This could be a way of making a case for natural law that focuses on the reasonableness of the commandments rather than their explicit content. In this approach the point is not to show that the six hundred and thirteen commandments constitute a revealed body of natural law. Rather, natural law helps explain the moral validity of the commandments and the moral soundness of the acceptance of the covenant. There is, on the human side, receptivity to the covenant through acknowledgment of its ethical soundness. This, in Novak’s view, reﬂects the role of natural law as reﬂected in human rational recognition of validity. I take it that Novak means (at least in part) that natural law is an acknowledgment of normative limits. What can be properly normatively authoritative for human beings has a shape and aspect that is not a human invention. In Novak’s view, ‘[t]he most unambiguous example of a natural law type position in Scripture emerges from the ﬁrst unmediated covenant between persons presented there, namely, the covenant between God and Abraham.’39 What makes this case for Novak is that:
God justiﬁes taking Abraham into his conﬁdence over his plans [for Sodom and Gomorrah] by saying ‘Abraham will surely become a great and important nation, and because of you will all of the nations of the earth be blessed. For I know him, and it follows that he will command his children and household after him to keep the way of the Lord to do righteousness and justice (tsedaqah u-msihpat) . . .’ (Genesis 18:18–19). Note that the way of the Lord initially is not what the Lord directly commands Abraham but what Abraham commands his people for the sake of the Lord. There is a prior responsibility on Abraham’s part and that responsibility is one of rational morality.40
Abraham’s exchange with God over justice for Sodom and Gomorrah is indicative of Abraham’s antecedent grasp of justice and righteousness and their necessity. That concern and demand, in Novak’s view, is indicative of natural law playing a role. The rational morality Abraham insists upon in relation to God, and the assurance of cosmic justice, reﬂect natural law as the larger context, a context larger than ‘an unnatural invention of ﬁnite, mortal, and fallible human beings’.41 Nor is it a context that is made by arbitrary divine will. Without natural law human entry into covenant with God would be either a matter of coercion by God or capricious decision by us, and both of those are fundamentally at odds with Jewish ethical thinking. ‘Natural law emerges from the Jewish attempt to discover the ‘reasons of the commandments’ (ta ‘amei ha-mitsvot), especially reasons of the commandments in the area of interaction between humans themselves (bein adam le-havero)’.42 The Noahide laws are especially important to Novak’s case because those are (a) laws for all mankind, and (b) as he says, ‘Noahide law functions more as a system of principles
than it does as an actual body of rules’.43 The project of fashioning positive law is a project of speciﬁcation rendering the broad, overall architecture of natural law more fully determinate in a way that has application to the actual circumstances of people’s lives. In a number of senses it is easy to see why Novak would want to make the case for natural law in Jewish ethics. (i) Key thinkers (Maimonides and Saadiah Gaon among them)44 argued that there are reasons for the commandments. (ii) Scripture itself puts a great deal of weight on justice and morality more broadly. (iii) Natural law elements would help show that Jewish ethical thought essentially addresses issues of rational universality. (iv) Natural law ﬁts well with the teleological aspects of Maimonides’s ethical thought. (v) Natural law could be a way of integrating and ﬁnding overall coherence in the halakhic tradition. (vi) There could be other reasons as well. In order to develop a critical perspective on Novak’s view we should look at a view that interprets things quite differently. In Interpreting Maimonides Marvin Fox has made a case against natural law, in large part dependent upon contrasts between Jewish moral thought and Thomistic natural law theorizing. He argues that according to Maimonides, ‘there is no natural moral law, only the law of God, which teaches us to live our lives in such a way that we are worthy of our claim to have been created in His image. This, in turn, creates the circumstances under which we can develop our intellect so as to become as nearly divine as ﬁnite human beings can ever be’.45 He writes:
Maimonides goes to great lengths in his Guide to expound the reasons for the commandments. He is concerned to show us that all the commandments are useful, in one way or another, as devices for helping us gain the ultimate perfection that is the true end of humankind (III, 31, pp. 523–24). No one could ever come, by way of rational reﬂection alone, to the conclusion that there is some particular set of moral rules that is correct and binding.46
In large part, Fox makes his case by emphasizing that Maimonides argues against moral rules being demonstrable, that they are not deductive consequences from necessarily true premises. ‘From his earliest work to the great book of his advanced years, the Guide of the Perplexed, Maimonides consistently denied that moral rules are based upon principles of reason or that they are capable of demonstration’.47 Fox puts a great deal of weight on Maimonides’s claims that morals are matters of what people ‘commonly agree’ (as Maimonides says in ‘Eight Chapters,’ for example) and also his claim that a gentile has a place in the world to come for following the Noahide commandments, as Maimonides puts it:
only if he accepts them and observes them because God commanded them in the Torah, and taught us through our teacher, Moses, that the children of Noah has been commanded to observe them even before the Torah was given. But if he observes them because of his own conclusion based on reason, then he is not a resident-alien and is not one of the righteous of the nations of the world, nor is he one of their wise men.48(Fox, 132, quoting M,. H. Melakhim, 8:11, emphasis added by Fox).
There is the question of the role of reason in ascertaining moral requirements and there is the question of the nature of obligation. In the quoted passage Maimonides does seem to insist that acknowledgment of a requirement as a divine command is necessary for morally worthy obedience. That is an important issue but it is not one we will pursue in depth in the present discussion. Our main concern is with the justiﬁcation of moral requirements. With respect to moral matters being ‘commonly agreed’ I think Fox may be ignoring an important justiﬁcatory sphere between the conventional (as merely stipulated or a matter of custom) and the rationally demonstrable. Common agreement may be a reﬂection of
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reason and shared comprehension of the grounds for something even if this is not a matter that is demonstrated. Agreement may register convergence of rational understanding without the agreed upon proposition being deductively inferred from premises known to be necessarily true. In fact, I think this is Maimonides’s view of the issue. In ‘Eight Chapters’ he does say of certain moral matters that they are:
the things generally accepted by all the people as bad, such as murder, theft, robbery, fraud, harming an innocent man, repaying a benefactor with evil, degrading parents, and things like these. They are the laws about which the sages, peace be upon them, said: If they were not written down, they would deserve to be written down.49
But it is not clear that on account of being generally accepted in the relevant sense a proposition is not supported by reason in a substantial sense. If it is objected that something like the ethical claims mentioned in the passage could only be arrived at on the basis of experience because it is conceivable that in other circumstances some alternative proposition would be correct, that still does not drain the proposition of its rational character. The experience that is its basis is comprehended and organized by reason even if the claim is not rationally evident. Demonstrative reasoning is not the only kind of reasoning and a priori self-evidence is not the only way to acquire premises from which to reason. There is a useful point of comparison here with Aristotelian practical wisdom. Practical wisdom or prudence, Aristotle says, is ‘a state grasping the truth, involving reason, concerned with action about things that are good or bad for a human being’.50 Practical wisdom involves knowledge of both the universal and the particular; the universal in the sense that it involves knowledge of general truths about human good, and the particular in that it involves knowledge of what is required in the details of the actual circumstances that the agent encounters.
In demonstrations understanding is about the unchanging terms that are ﬁrst. [The ﬁrst premises of a proof or explanation.] In [premises] about action understanding is about the last term, the one that admits of being otherwise, and [hence] about the minor premise. For these last terms are beginnings of the [end] to be aimed at, since universals are reached from particulars.51
Maimonides made it clear that he was not developing an ethics of practical wisdom but for both Aristotle and Maimonides there is a role for reason in grasping the general and the particular in ethical thought.52 Moral judgments and decisions are reasoned in the sense that even if the agent does not rehearse to himself the reasons for the truth of the universal claims and the particular result of deliberation, there are reasons that ground them. The explication and justiﬁcation of moral judgments involve considerations that are not matters of convention or ‘mere’ agreement. There can be agreement, and in that sense, there can be convention, that is rationally supported and this is more rationally substantive than just being ‘not inconsistent with reason’. Fox insists that Maimonides’s notion of convention clearly takes morality out of the realm of being known and justiﬁed by reason and he says that, ‘a correct understanding of Maimonides will show why he could not afﬁrm a theory of natural law’.53 Fox argues that man’s grasp of pre-Sinai morality could not have been through reason. He denies the rational-background role assigned to the Noahide commandments in Novak’s view. Fox writes:
However, even the pre-Sinaitic generations are considered to have been directly commanded by God, through Adam and Noah, to observe these precepts. Of particular interest is that Maimonides deliberately excludes the validity of any claim that these laws are known through reason or that they bind us because of purely rational considerations.54
Again, however, this is an opportunity to note that the distinction between demonstrable by reason and understood by reason indicates room for a rational possibility between demonstrable and conventional. In the Maimonidean view morality has its ground in commandments for which we can, in many cases, ascertain the reason. Not only that, there are moral requirements for which we may not succeed in ascertaining the reasons, but they are still rationally justiﬁed. Then it seems that moral requirements are, if conventional, conventional in the more strongly rational, though not rationalistic, sense. Maimonides held that acknowledgment of requirements as divine commands both reinforces the status of requirements by connecting them with divine sanction and that the complete moral worthiness of action depends upon such acknowledgment. That is an important point about moral obligations. But those two conditions do not imply that there are not rational explications of moral requirements, just that those explications are not exhaustive and sufﬁcient in regard to assessing the moral worth of actions. In a passage that complements a point I made above Fox does go on to say, ‘Maimonides’ categorical rejection of natural law does not entail holding that divine moral rules are irrational or opposed to nature. He is afﬁrming only that moral precepts are not known by way of reason and are not capable of demonstration’.55 Fox understandably seems concerned that to the extent that commandments are rational they obviate the need for, and possibly diminish the authority of, revelation and obligation grounded in being divine commandments. In addition to the reasons I have indicated for thinking that Fox’s view overstates the critique of a rational grounding for Maimonides’s moral thought, as part of Fox’s critique of seeing it as a natural law position, there are reasons for thinking Novak’s view overstates the extent to which Maimonides’s view is an endorsement of a natural law position or a position very like one. That the reasons of the commandments render them rationally intelligible does not, in its own right, indicate that the Maimonidean view (or the Jewish view in general) implicitly involves natural law elements. Nor does the fact that it is part of the view that ultimately, the Law can be seen to include fully universal contents presupposing human rationality. If we very loosely connect rationality with nature it could be argued that this makes for natural law, but that would ‘thin’ out the conception of natural law in a way that undoes much of what is distinctive of it. The debate between the ‘philosophical anthropology’ view and the ‘fully evident principles’ view described above is a good example of what is distinctive about natural law. Both views involve fundamental, substantive claims about the ground and accessibility of moral principles. Aquinas’s conception of synderesis and the way in which subordinate principles are determinations of it is a good example. There really is not a correlate to this in Jewish moral thought, even though Saadiah, Maimonides, and others argue that there are reasons of the commandments. Synderesis is present in us on account of God including it in our nature. In that sense it is part of a theistic view, but it supplies a basis for the elaboration of a body of moral principles that is distinct from the sorts of bases accepted by Jewish thinkers. Actually, Novak’s view suggests a third approach to natural law, differing from the teleological approach and the ‘evident principles’ approach,’ and it is more Kantian in
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character than either of those. In his view human reason is the precondition for ascertaining what morality requires and for ascertaining its general validity. Natural law has a transcendental role in such a conception. He argues that natural law, ‘consists of the principles that moral rules presuppose and which offer guidance as to how these rules are to govern human relationships in a historical community . . . Accordingly, the ‘nature’ in natural law must be seen as an essentially normative concept, one immediately connected with the demands made upon humans in their various historical communities’.56 Novak wants to retain the distinctive features of the revelation to the Jews while embedding it in a set of conditions of moral intelligibility that show many of its elements to have universal, rational validity. This, he believes, is a way to show that human receptivity to the Law is ultimately rational in a way that indicates the aptness of regarding Jewish moral thought as a variant of natural law. What seems to me the error in this is the embedding in a broadly Kantian, transcendental conceptual architecture. This runs the risk of diminishing the importance of the concrete, historical character of the giving of the Law and the dependence upon revelation for its status as a holy covenant. Also, even if a great deal of the law is rationally intelligible, that is not to say that it would have been reliably ascertained independent of revelation. A related consideration is that it runs the risk of diminishing those aspects of the Law that do not seem apt candidates for assimilation into a broadly natural law approach. While even the medievals (as far back as Philo, for that matter) recognized a distinction between ritual commandments, on the one hand, and more clearly moral commandments, on the other, a natural law interpretation could relegate the former to a secondary status in a way that threatens the integrity of the Law as a whole, as a single, integrated discipline of perfection.
The Fox/Novak debate captures many of the main issues concerning natural law and Judaism. Part of the appeal of ﬁnding natural law in Judaism is that it would show that while revelation of the Law is crucial to the identity and destiny of the Jewish people, the moral rationality of the Law is intelligible in its own right. On the other hand, a strong version of the natural law view seems to constitute a challenge to the very notion of the uniqueness of revelation, covenant, and providence. The Jewish view does not clearly take something like the Finnis-George-Gomez-Lobo line that there are principles of human good that are evident to practical reason (and independent of theological considerations). Nor does it take a view like Veatch’s, that there is a natural telos of human nature that determines certain goods crucial to the shaping of moral principles. Where it seems to agree with Aquinas (if I am right about Aquinas in this regard) is that ultimately moral law does depend upon theological considerations.57 Novak certainly takes this view concerning Maimonides. Whether or not Jewish moral thought is a version of natural law, for Maimonides and Thomas moral rationality is not undone by arbitrary divine will but neither does it have a ‘stand-alone’ status fully independent of revelation and God’s ordering of the world. One of the main questions is whether the absence of natural law features would be indicative of something defective or incomplete about Jewish moral thought. Novak seems to maintain that Jewish moral thought would be deﬁcient in fundamental respects if it did not include basic elements of natural law. Its rationality and universal validity would be
threatened. However, it may be that there is a rational epistemology for Jewish moral thought that (a) is not amenable to interpretation in terms of natural law and (b) does not challenge the distinctiveness of revelation, covenant, and providence in the way that Marvin Fox’s arguments suggest that a rational moral epistemology might do so. Again, ‘rational’ need not mean rationalistic or excluding theistic commitments. Indeed, the examination of this question of Judaism and natural law may reveal something quite important about moral rationality that has been not adequately recognized as a possibility. It would be a moral epistemology that is different as well from that found in a theory of practical wisdom, such as Aristotle’s, though, here too, there would be some afﬁnities. Among them are that; (a) Leading a life in accord with the Law involves the virtues and enacting them. (b) There are similarities in the way in which judgment is involved in going from principles to particular decisions, and so forth. But the moral epistemology of the Jewish tradition, at least as represented by thinkers such as Maimonides, is not simply a version of practical wisdom. Maimonides is quite explicit about how moral virtue fully subserves intellectual virtue and how the former, while involving reason, does not have the dimension of intellectual virtue that it has, for example, in Aristotle’s conception of practical wisdom. For some of the same reasons it is not just a version of natural law. Medieval Jewish thought was extremely rich in interpretations and explications of commandments, in many cases attempting to show how commandments were based upon others, by analogy or derivation or in a relation of particular to general, and in many cases attempting to show how the Oral Law coheres with, and elaborates the Written Law. This is a body of integrated, rigorous normative thought, but not in the form of a moral theory. It is a project of midrash and employment of middot (measuring or demarcation). Consider the following passage from Maimonides:
The following positive commands were ordained by the rabbis: visiting the sick, comforting the mourners, joining a funeral procession, dowering a bride, escorting departing guests, performing for the dead the last tender ofﬁces, acting as pallbearer, going before the bier, making lamentation [for the dead], digging a grave and burying the body, causing the bride and the bridegroom to rejoice, providing them with all their needs [for the wedding]. These constitute deeds of lovingkindness performed in person and for which no ﬁxed measure is prescribed. Although all these commands are only on rabbinical authority, they are implied in the precept: ‘And you shall love your neighbor as yourself’ [Lev. 19:18]; that is; what you would have others do to you, do to him who is your brother in the Law and in the performance of the command-ments.58(Mishneh Torah, ‘Hilkhot Avel’ 14:1.)
The claim that highly speciﬁc commandments are actually based upon a small number of fundamental principles is a way of pointing out that there is a normative grounding for what may seem a blur of highly detailed practical commitments. Asserting the grounding often occurred without also showing the grounding in a rigorous, systematic way. There are few examples of thinkers actually elaborating just how the principles are the basis for the vast array of speciﬁc requirements though there are often unproblematic intuitive relations between them. Shubert Spero suggests that in an attempt to exhibit the systematic character of Jewish morality we might start with the following three principles.
‘P1 Love thy neighbor as thyself P2 Righteousness, righteousness shalt thou pursue P3 And thou shalt do what is right and good’59
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These are very good candidates for connecting diverse commandments, but they are not clearly privileged in any special way, either normatively or epistemically. Other candidates are possible. If we wanted to ﬁnd ﬁrst principles of natural law in Judaism this would be one way to search for them. We could look at which principles have been suggested as comprehensive and basic principles from which others can either derived or through which they can be explained. But this could almost surely be done in alternative ways with no single cluster emerging as the core set. As Julius Guttmann remarks:
The Talmud is content with the abstract statement that love of one’s neighbor was the supreme principle of the Torah, but it never attempts to trace the different moral laws to this supreme principle or to demonstrate concretely (apart from a few occasional examples) the moral purpose of ceremonial law.60
That fact need not be interpreted as a threat to overall coherence. Instead, it might be evidence of a high degree of coherence because requirements could be integrated in various ways. But it may also count against a natural law interpretation. For the latter, it would seem that basicness should attach in a distinct way to certain principles, given the sort of form that natural law thinking typically brings to moral thought, and that secondary principles should follow from, or be speciﬁcations of, the basic principles. There would need to be tighter, more systematic connections than just broad coherence. There should be explanatory and justiﬁcatory relations that constitute something of a system even if not a tight knit body of axioms and theorems. Jewish law is comprehensive and there are indeed some more basic, and less basic principles, but not constituting a system a formally recognizable sense. Moreover, in the Jewish tradition there is an essential connection between ethical life and one’s relation to the Jewish people as a national community and to God. The connections make a difference to moral epistemology as well as to the larger, overall conception of the world distinctive of Judaism. Justiﬁcations, arguments, and relevant body of evidence in moral theorizing are rooted in the tradition of interpretation and reasoning that is the living tradition of a covenanted people whose life according to the Law will make them ‘a wise and understanding people’. (Deut. 4:6) The ongoing work of reasoning things out, reﬁning explications, extending applications, and so forth, is an essential aspect of the tradition. The intelligibility of the commandments requires more than attending to what is self-evident and neither is it a priori. Much of what constitute the relevant normative considerations and the criteria of sound judgment have to do with the Law being a covenant with a particular people. Yet, though this overall project is thickly rooted in ongoing dialogue and commentary it is not quite right to see it simply as a certain culturally speciﬁc elaboration of practical wisdom – though, it is that, too. This takes us to a central issue, namely, whether a distinctive, particularist covenant and notion of community-history can be the basis for universal, objective values and ideals. The Torah was given to, and accepted by Israel. The providence it describes is the destiny of that particular people. However, according at least to Maimonides, for example, what is involved in being an excellent Jew, what is involved in moral aspiration and perfection as presented by the Law, concerns human excellence. Even the rituals and observances that are most distinctively Jewish are intended to be parts of an overall discipline of perfection that cultivates virtues and motivates actions that are morally sound and that reﬂect ideals in ways that make the excellent Jew an example of excellent humanity.
This issue suggests the difﬁcult question of whether we can draw a bright line between what is morally ‘essential’ and what is not – what is just part of ritual and the like. Certainly thinkers such as Maimonides and Saadiah Gaon thought there was real danger to faith and the covenanted community in doing so. Opening the door to discretion in that regard points to a potentially slippery slope as well as indicating that one has already taken the step of making judgments about the weight and signiﬁcance of the various commandments, as though they did not constitute a single, integrated covenant.61 While he distinguished between commandments clear to reason and those only knowable through revelation, Saadiah wrote of the latter:
What is commanded of this group of acts is, consequently, [to be considered as] good, and what is prohibited as reprehensible; because the fulﬁllment of the former and the avoidance of the latter implies submissiveness to God. From this standpoint they might be attached secondarily to the ﬁrst [general] division [of the laws of the Torah]. Nevertheless one cannot help noting, upon deeper reﬂection, that they have some partial uses as well as a certain slight justiﬁcation from the point of view of reason, just as those belonging to the ﬁrst [general] division have important uses and great justiﬁcation from the point of view of reason.62
Making a similar distinction, Maimonides wrote:
Rather things are as indubitably as we have mentioned: every commandment from among these six hundred and thirteen commandments exists either with a view to communicating a correct opinion, or to putting an end to an unhealthy opinion, or to communicating a rule of justice, or to warding off an injustice, or to endowing men with a noble moral quality. Thus all [the commandments] are bound up with three things: opinions, moral qualities, and political civic actions.63
They all have a purpose within the overall purpose of the Law, however seemingly arbitrary or irrelevant to (say) post-Temple times. In considering this issue of how the speciﬁcity and particularism of the revelation of the Law might relate to morality more broadly it is important to take into account that, to a large extent, knowledge of, and commitment to, even the most universal principles and ideals is attained in the concrete details of leading life through the speciﬁc practices of a community in which there are bonds of affect, mutual responsibility, and intellectual interaction, or at least critical dialogue. (We should guard against over-intellectualizing moral education. Even Aristotle, for whom practical wisdom was an intellectual virtue, guarded against this on the very good grounds of a great deal of plausible moral psychology and epistemology.) Moreover, values and ideals that are objective and universal need not be learned under precisely that description in order for agents to be engaged to them in ways that reﬂect that status and scope. In acquiring virtues the agent with the relevant second nature will have a commitment to values that is sufﬁciently deep and genuine so that the agent’s exercise of virtue will not be selective. There is indeed the risk of narrowness in application but that is not an inevitable consequence of habituation in a certain form of moral upbringing. The world of one’s community and traditions need not become the full extent of one’s conception of the morally relevant world. At the same time, this does not mean that there will not be special responsibilities to members of one’s community. For example, Maimonides says, ‘It is a commandment for every man to love every single individual of Israel like his own body. As it is said: ‘And you shall love your neighbor as yourself ’’.64 To be sure, there are extensive discussions in Talmud and rabbinic literature of the different ways in which Jews are to treat Jews in contrast to Gentiles. However, this is not indicative of a fundamental distinction in moral statuses, as though non-Jews are of lesser moral importance than Jews. For one thing, the
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prevailing historical condition of the Jews as a legally disadvantaged, persecuted minority in exile is relevant to the Jewish understanding of moral relations with Jews and with nonJews. But also, any plausible morality will allow scope for various kinds of partiality that are not violations of impartiality but reﬂections of the psychological and moral signiﬁcance of certain kinds of attachments, commitments, and concern. A moral theory that did not recognize the signiﬁcance of family and community relations as having weight in ways that appropriately merit differential attention, concern, and moral engagement and effort would be defective for just that reason. That kind of partiality can be impartially defended. It is not automatically a morally problematic institutionalizing of different moral statuses.
Perhaps the main point with regard to Judaism and natural law concerns moral epistemology. What we ﬁnd in the Jewish tradition is a continuous history of moral thought in which covenant and commandment are basic and are the basis for the elaboration and articulation of moral reasoning. There is reason ‘all the way down’ insofar as there are reasons for the commandments. But this is not a matter of a priori rationality or fully evident rational ﬁrst principles. Yet, while those features together distance Jewish moral thought from natural law theorizing they are also the resources and instruments for attaining moral understanding and aspiration that reﬂect objectivity and universality rather than the opposite. Two of the main questions concerning Judaism and natural law are (i) whether Jewish moral thought involves natural law elements and (ii) whether there is anything fundamentally deﬁcient about it if it does not. The answer to the ﬁrst is that it involves moral content that substantially overlaps with that of natural law theory but it does not seem to be a version of natural law theory. This is to be explicated in part by the answer to the second question. If Jewish moral thought is looked at as morality only for the Jewish people then it does lack the sort of universality and objectivity that is often held to be a proper aspiration (if not a necessary condition) of sound morality. But the uniqueness of the Jews’ covenant with God and their history does not as such threaten the objectivity or universality of Jewish values and ideals, even when looked at from inside the Jewish perspective. It is through that covenant and history that those values and ideals are learned and realized. Natural law is not a necessary condition for that. In the Jewish tradition itself, the moral epistemology and strategies of ascertaining and supplying justifying reasons often proceed along lines that seem to differ from the contours of natural law theorizing, unless we take the latter to be very wide and ﬂexible. It is perhaps more likely that some of the more clear examples of natural law theorizing are, or centrally include, descendants of currents of thought in the Jewish tradition, abstracted out and reformulated without explicit inclusion of the roots they have in a particular national moral self-conception.
1 Cicero, The Republic and the Laws, trans. by Niall Rudd, (New York: Oxford University Press, 1998), Laws, Book One, 43, p. 112. 2 Ibid., p. 112. 3 Ibid., p. 112.
4 Cicero, Ibid., De Re Publica, Book Three, 33, pp. 68–69. 5 Thomas Aquinas, Summa Theologica, excerpted in Introduction to Saint Thomas Aquinas, ed. by Anton C. Pegis, (New York: The Modern Library, 1948), I-II, Q. 91, Art. 2. 6 Ibid., Q. 93, Art. 3. 7 Ibid., Q. 91, Art. 2. 8 John Finnis, Natural Law and Natural Rights, (Oxford: Oxford University Press, 2005), p. 399. 9 S.T. Q. 94, Art. 1. 10 Ibid., Q. 90, Art. 4. 11 Henry Veatch, ‘Natural Law as the Answer to the Law’s Quest for an Ethics’, in Human Rights: Fact or Fancy?, (Baton Rouge: Louisiana State University Press, 1985), p. 66. 12 Ibid., p. 67. 13 Ibid., p. 67. 14 Ibid., p. 85. 15 Ibid., p. 103. 16 Alfonso Gomez-Lobo, Morality and the Human Goods: An Introduction to Natural Law Ethics, (Washington, D.C.: Georgetown University Press, 2002), p. 37. 17 Ibid., p. 118. 18 Ibid., p. 128. 19 Ibid., p. 129. 20 Robert George, In Defense of Natural Law, (New York: Oxford University Press, 1999), p. 3. 21 Ibid., p. 24. 22 Ibid., p. 38. 23 Finnis, Natural Law and Natural Rights, p. 33. 24 Ibid., p. 34. 25 Ibid., p. 36. 26 George, In Defense of Natural Law, p. 37. 27 Ibid., p. 38. 28 Ibid., p. 38. 29 Aristotle, Nicomachean Ethics, Second Edition, trans. by Terence Irwin, (Indianapolis: Hackett Publishing Company, Inc., 1999), 1135a 4. 30 Ibid., 1134b 19–20. 31 See my ‘Return to the Sources: Political Hebraism and the Making of Modern Politics,’ in Hebraic Political Studies, Vol. 1, No. 3, Spring 2006, pp. 328–342. 32 David Novak, ‘Natural Law, Halakhah, and the Covenant,’ in Contemporary Jewish Ethics and Morality, ed. by Elliot Dorff, Louis E. Newman, (New York: Oxford University Press, 1995), p. 48. 33 George, In Defense of Natural Law, p. 38. 34 Novak, ‘Natural Law, Halakhah, and the Covenant,’ p. 51. 35 Ibid., p. 52. 36 David Novak, Natural Law in Judaism, (New York: Cambridge University Press, 1998), p. 177. 37 Ibid., p. 123. 38 Ibid., p. 119, italics in original. 39 Ibid., p. 39. 40 Ibid., p. 41. 41 Ibid., p. 42. 42 Ibid., p. 184. 43 Ibid., p. 151. 44 See Saadiah Gaon’s The Book of Beliefs and Opinions, esp. Treatise III, Chs. Exordium and 1–3. Maimonides addresses the issue of the reasons of the commandments in several places. See esp. Guide of the Perplexed, III 26, 29, and 31, and ‘Eight Chapters’, Ch. VI. There are also epistemologically relevant passages in Treatise on the Art of Logic, Ch. VIII. 45 Marvin Fox, Interpreting Maimonides, (Chicago: The University of Chicago Press, 1990), p. 150. 46 Ibid., p. 142. 47 Ibid., p. 133. 48 Ibid., p. 132. 49 Maimonides, ‘Eight Chapters’, in Ethical Writings of Maimonides, ed. by Raymond Weiss, Charles Butterworth, (Chicago: University of Chicago Press, 1991), Ch. VI, pp. 79–80. 50 Aristotle, Nicomachean Ethics, 1140b 5–6. 51 Ibid., 1143b 1–6. 52 Maimonides did not regard practical wisdom as a virtue, no less a master virtue. In Aristotle’s view an agent cannot possess the ethical virtues without practical wisdom, and the converse is true as well. It is the action-guiding intellectual virtue For Maimonides all ethical virtues subserve intellectual virtue and as such, they are lesser perfections. Moreover, they are not integrally connected to intellectual virtue in the way they are for Aristotle. Maimonides’s ideal of intellectual perfection includes an ethical dimension. Imitatio dei involves righteousness, justice, and lovingkindness. See Guide, III, 54) But he does not include a virtue of practical wisdom in this conception.
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53 Fox, Interpreting Maimonides, p. 133. 54 Ibid., p. 132. 55 Ibid., p. 141. 56 Novak, Natural Law in Judaism, p. 123. 57 In his Aquinas’s Theory of Natural Law: An Analytic Reconstruction, Anthony Lisska has argued that theism is not essential to the Thomistic conception of natural law. He argues that, ‘the existence of God is, in a structural sense, neither a relevant concept nor a necessary condition for Aquinas’s account of natural law’. (p. 120) He says that, ‘what Aquinas needs for his theory of natural law is a dispositional theory of natural kinds, not a divine being’. (p. 125) There are aspects of Aquinas’s moral theorizing that are broadly naturalistic but Aquinas’s theory seems to me to depend quite substantially and directly upon theological considerations that explain his conception of human nature and our knowledge of natural law. With regard to the content of the law, our grasp of it, and its bindingness, there are essential non-naturalistic features of Aquinas’s account. One could offer a theory of natural law that borrows heavily from it without including its theistic commitments but that would not, I believe, constitute a reconstruction. It would be an alternative. Aquinas’s Theory of Natural Law: An Analytic Reconstruction, (New York: Oxford University Press, 1996). 58 Reprinted in Shubert Spero, Morality, Halakha and the Jewish Tradition, New York: KTAV Publishing House, Inc., 1983, p. 280. From Maimonides’s Mishneh Torah, ‘Hilkhot Avel’, 14:1. 59 Spero, p. 318. 60 Julius Guttmann, Philosophies of Judaism, (New York: Holt, Rinehart and Winston, Inc., 1964), p. 39. 61 At the same time, these very same thinkers acknowledged that the rationales for some of the commandments are much more clear than for others and that many commandments seem archaic and impractical. 62 Saadiah Gaon, The Book of Beliefs and Opinions, trans. by Samuel Rosenblatt, (New Haven: Yale University Press, 1976), pp. 140–141. 63 Maimonides, The Guide of the Perplexed, trans. by Shlomo Pines, (Chicago: University of Chicago Press), 1963, III, 26, p. 524. 64 Maimonides, ‘Laws Concerning Character Traits’, in Ethical Writings of Maimonides, Ch. VI, p. 47.
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