Judaism and Natural Law Jonathan Jacobs

8/3/2019 Judaism and Natural Law Jonathan Jacobs

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JUDAISM AND NATURAL LAW

JONATHAN JACOBS

Colgate University

The question of the relation between Judaism and natural law is important both for scholars and forreflective 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 lawtheorizing in the contemporary period. The topic of the present discussion is of more than historicalinterest; 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 makesclaims to universal validity. The notion of ‘the natural’ in natural law has been intended toapply to all human beings as participants in a common moral order. ‘Nature’ involvesuniversality 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 culturalsettings in which they arose. This is evident in Stoic notions of natural law, medievalChristian notions of it, and early modern conceptions, several of which have powerfullyshaped 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 alwaysbeen universal in its scope of application.

The Hebrew Bible and Judaism are often regarded as having a seminal role in Westernmoral thought, as the widely used expression ‘Judeo-Christian’ tradition indicates.Consider the elements of the Noahide commandments in Genesis 9 and their resonance inso much of Western moral thought. Similarly for the Decalogue, assimilated into Christianthought 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 At the same time, often the ‘Judeo’is included more as a historical reference than as a continuing significant presence, or atleast, it can seem that way. It is probably true that Judaism is widely held to be an originthough, not a significant ongoing source of moral thought.

In fact, however, ideas of equality of moral status, the moral respect owed to theindividual, the moral imperative to aid and protect the poor and defenseless, theimperative of justice – these and other fundamentals of morality have an explicit, centralplace in Jewish thought and attain classic expressions there, both in the Torah and in theProphets, and then in an ongoing, continuously elaborated manner in Talmud andrabbinic literature. These indeed, are key elements of what most people would regard asany plausible morality and they have attained universality as values and ideals. This is soeven though many texts and issues specific to the Jewish tradition may not be widelystudied 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 anilluminating 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 anothersignificant deficiency?

I

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 acknowledgethis 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 iswhy 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 notonly 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, andhas sketched them in our minds in such a way that we classify honourable things as virtues anddishonourable things as vices.3

. . . law in the proper sense is right reason in harmony with nature. It is spread through the wholehuman community, unchanging and eternal; calling people to their duty by its commands anddeterring them from wrong-doing by its prohibitions . . . This law cannot be countermanded, norcan it be in any way amended, nor can it be totally rescinded. We cannot be exempted from this lawby 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, theyheld strong convictions about certain moral principles and ideals but did not develop full-

fledged accounts of their justification or elaborate on them in a detailed way. They had apowerful, compelling moral vision, but natural law theorizing came later though Stoicswere 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 ThomasAquinas’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 thenatural 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 itsbeing 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,

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in so far as it itself partakes of a share of providence, by being provident both for itself and forothers. Therefore it has a share of the eternal reason, whereby it has a natural inclination to itsproper act and end; and this participation of the eternal law in the rational creature is called thenatural law.7

In Aquinas’s view natural law is a reflection of eternal law in the sense that it is throughnatural law that a human being, qua rational being, has some affinity to God andparticipates 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 beingparticipates in eternal law John Finnis writes, ‘For Aquinas, the word participatio focallysignifies two conjoined concepts, causality and similarity (or imitation). A quality that anentity or state of affairs has or includes is participated, in Aquinas’s sense, if that quality iscaused by a similar quality which some other entity or state of affairs has or includes in amore intrinsic or less dependent way’.8

What Aquinas called synderesis is a crucial part of the account. (The term is not owed tohim 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 preceptsof the natural law, which are the first principles of human action’.9 And, ‘The natural law ispromulgated by the very fact that God instilled it into man’s mind so as to be known byhim naturally’.10 Aquinas held that the mind is supplied with habitual knowledge of firstprinciples of practical reason, reason in its action-guiding deployment. Synderesis suppliesfirst principles for moral thought and decision. Natural law makes possible the knowledgeof objective, universal goods, the knowledge of which can guide human beings in actingmorally and leading virtuous, flourishing lives.

The first principle of practical reason – that good is to be done and pursued and evil isnot 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 requirespractical reasoning. Of course, the first principle is significant as an orienting principle; itmay sound platitudinous but it indicates a crucial, stable, guiding direction for practicalreason. And, the secondary principles (‘tell the truth,’ ‘repay debts,’ ‘show gratitude tobenefactors’, and the like) are grounded in the first principle. Moreover, it is a principleavailable to all agents just on account of being rational beings. (The Thomistic firstprinciple of practical reason is not exactly the same as Aristotle’s claim that all humanactivity aims at what we take to be good. Aquinas was making a point about an actualprinciple of practical rationality rather than a point about the overall nature of rationalactivity.)

There are two main variants of the Thomistic approach. Or, we could say that there aretwo influential interpretations of the Thomistic account. One of them is a teleologicalapproach and the other focuses on evident principles. Each of them is consistent withtheistic commitments but each has also been developed independently of suchcommitments. (Whether theological considerations are essential to Aquinas’s view is aninterpretive issue we will not pursue in detail here.)

In the teleological approach there is an essential role for the notion of an intrinsic end (atelos) for human beings. (The view that human nature has an intrinsic end that it is crucialto 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 endorsingnatural law. I will comment briefly on this below.) The central claim is that what isobjectively 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 anature that is actualized or realized in certain determinate ways. There are objectively well-ordered and well-led human lives, and there are the opposites of that. Judgment abouthuman 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 worthwhileto act on the basis of correct moral understanding. For the purposes of the presentdiscussion, 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 trueend or goal of a human existence is set and determined by nature, or by man’s very natureas a human being, if you will. It is thus a natural end in a literal sense’. 11 There is broadscope 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 orderedto the good is a matter of nature does not mean that human beings function in such a waythat unless something impedes or corrupts them, they will attain their proper end. In fact, agreat deal – and a great deal that is contingent and that depends upon choice, luck, andvoluntariness – has to go right. People can be mistaken, foolish or reckless. But the keypoint is that through the exercise of rational capacities human beings can comprehendwhat are genuine goods for them and they can realize those ends. Our telos can beactualized through the self-directed exercise of our own rational causality.

The main implication for morality is that, ‘even though they are laws that human beingsneed to determine for themselves, moral rules and laws are nevertheless at the same timenatural laws, or at least based on natural laws, which nature prescribes as being necessaryto follow if one’s natural human end is to be achieved’.12 ‘Indeed, no human being can everbe said to live well, or to live as a human being ought to live, unless it is on the basis of hisown decisions and choices made in the light of his own understanding of what is best forhim and what the good life demands’.13 There is a deep grounding here in the Aristotelianview 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 humanbeing.14 We ascertain the goods appropriate to us through the use of reason and theexercise 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 naturalend being thus no more and no less than our true human good, which, as Aquinas says, is thatwhich 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 itfor teleological conceptions. It is often claimed that they are archaic and have beendisplaced by a conception that dispenses with ends, goods, and norms in any other than astatistical 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 intrinsictelos to human nature as such. Accordingly, there are differences in how natural law isconceived. 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 bymany thinkers. Given the distinctive capacities of human beings, it makes sound sense tointerpret 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 beunderwritten by a global natural or metaphysical teleology, though Veatch (among someothers) has been willing to defend elements of such a view.

In addition to the teleological conception of natural law there is another that hasattained prominence in recent years and it also claims to be grounded in Thomisticprinciples. In this second approach, the main claim is that there are goods that are evidentto practical reason, and they supply a basis for moral principles. This counts as a naturallaw approach because these goods are objectively relevant to all human beings and they areascertainable by all rational, reflective human beings. They are not restricted to anyparticular 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 aconceptual core that can be intellectually understood’.16 In regard to morality, what we areto do is to judge actions by ‘moral norms that can be justified (and are open to revision) byreference 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 practicalreason,’ I seek to emphasize that this book contains no foundational claims that are based on faithor, alternatively, on theoretical reason. No appeals are made to theological or metaphysical truthsabout God, nature, or the essence of human beings to ground normative principles, guidelines, ornorms.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 bindingon everyone without distinction’.19

Robert George has developed a similar account according to which, ‘objective practicalknowledge (including moral knowledge) is in fact possible, and it is possible preciselybecause of our intellective grasp of truly basic, underived practical principles’.20 He holdsthat there are ‘goods that are intrinsically valuable for human beings (‘basic humangoods’) 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 nofurther reasons. They are intelligible as ends in themselves’.22 Practical reason graspsprinciples and comprehends goods. It does not wait upon theoretical reason to attain anunderstanding 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 basicforms of good and evil and which can be adequately grasped by anyone of the age of reason (andnot just by metaphysicians), are per se nota (self-evident) and indemonstrable. They are not inferredfrom speculative principles. They are not inferred from facts. . . . 23

They are not inferred or derived from anything. They are underived (though not innate). Principlesof right and wrong, too, are derived from these first, pre-moral principles of practicalreasonableness, 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 isreasonable. 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 toethics, rather than facts about our nature being basic in the way they are sometimes takenby 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 practicalreason does not say directly what is morally required. The first principle ‘states a conditionof any coherent practical thinking, viz., that one’s reasoning be directed toward some endthat is pursuable by human action’.26 ‘The practical intellect itself grasps certain ends asreasons for action that require no further reasons. They are intelligible as ends-in-themselves’.27 And, ‘our intelligent grasp of human goods is what makes moral questionspossible’.28

As indicated above, these two approaches to natural law have been offered by theirproponents as interpretations of Aquinas, and as correct accounts of morality. Pursuingthe 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 regardsAristotle’s relation to Aquinas. While Aristotle is a crucial resource for Aquinas, and whilesome interpreters of Aquinas see him as basically developing natural law elements implicitin 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 virtue-centered ethics of practical wisdom; such an approach could surely be elaborated as a formof natural law theory, and indeed, has been so developed. For example, Aquinas usesAristotle’s conception of finding the mean and arriving at a judgment and a decision aboutwhat is required through the employment of practical wisdom, but his inclusion of firstprinciples 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 withan intrinsic good realized through virtue-informed practical wisdom. Also, he makes adistinction between what is just ‘human [enactment]’ and what is just ‘by nature’29 and hesays that ‘[o]ne part of the politically just is natural’ and ‘has the same validity everywherealike, independent of its seeming so or not’.30 Still, while this is congenial to a natural lawapproach 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 psychologyand epistemology of arriving at sound particular judgments and decisions than in showinghow 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 insistthat Aristotle could not be interpreted as a natural law theorist. Still, he seems not to invitethat characterization in the most evident or unambiguous manner. While for Aristotlethere surely are important, general, action guiding moral principles, those are arrived at bygeneralization from what are more basic particular judgments and the ways in which theyfigure in acting well and leading an excellent life. There is not quite a body of principlesthat 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 whollydetached 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 legitimacyas grounded in law have Jewish roots.31 But they were addressing somewhat differentconcerns from those addressed in ancient and medieval natural law theorizing. The latter ismost relevant to our purposes.

II

Much of the debate about natural law in Judaism has focused on Maimonides. This isbecause he is perhaps the most influential Jewish philosopher and because he gave such anextensive treatment of the issue of the relation between reason and revelation, the issue of ‘thereasons 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 (withMaimonides 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 Judaismas well as elsewhere.

Novak’s view is that there are rational presuppositions of Jewish moral thought that areso basic and so universal that they count as natural law. Some of his explication of this hasaffinity with the conceptions presented by some recent defenders of natural law. Forexample, Novak writes:

Rational choice presupposes intelligent judgment (nihil volitum nisi praecognitum). Therefore, itseems to me that the best reason for the choice of the Jewish people to enter into the covenant withGod, as we saw before, was their judgment that God’s knowledge of their needs and his concern forthem 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 samedivine concern first manifest in Egypt . . . In order for people to know that God’s commandmentsare right for them, they obviously have to possess some knowledge of what is right in general. Thisprecondition is simply unavoidable.32

In a remark with affinity with Novak’s view, we saw that Robert George said, ‘ourintelligent grasp of human goods is what makes moral questions possible’.33 Like Novak,but without directly appealing to theological bases, George argues that morality needsnatural law, both in regard to supplying justifying grounds and in regard to supplyingbroad principles through the specific determinations of which we can ascertain moralrequirements. There is an intelligible basis in reason for moral requirements and that iswhat 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 thecommandments, 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 someof the character of evidence, authority, and overall dialectical context. The difference is notso great that it renders Jewish legal thought wholly unlike those other traditions but, andNovak adds, ‘the greater bulk of the halakhic system is not from direct scripturalrevelation 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 alsoindicates what may make for a good deal of distance between them (viz., the covenant, itscharacter, and its function).

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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. Indivinely revealed positive law, natural factors are immediately present only in theconditions 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 theypossibly accept the fuller version of God’s law that comes with historical revelation in thecovenant?’36 Without that, there would be no rational basis for recognizing the normativepoint of what is revealed. ‘Natural law reasons for certain commandments, specificallythose that govern most interhuman relationships, are those reasons that are assumed tohave normative validity universally’.37

And, ‘natural law (which, to be sure, is a term Maimonides does not use, but which canbe applied to his legal theory) means the most general law God has decreed for humancreatures’.38 This could be a way of making a case for natural law that focuses on thereasonableness 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 arevealed body of natural law. Rather, natural law helps explain the moral validity of thecommandments and the moral soundness of the acceptance of the covenant. There is, onthe human side, receptivity to the covenant through acknowledgment of its ethicalsoundness. This, in Novak’s view, reflects the role of natural law as reflected in humanrational 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 ashape and aspect that is not a human invention. In Novak’s view, ‘[t]he most unambiguousexample of a natural law type position in Scripture emerges from the first unmediatedcovenant between persons presented there, namely, the covenant between God andAbraham.’39 What makes this case for Novak is that:

God justifies taking Abraham into his confidence over his plans [for Sodom and Gomorrah] bysaying ‘Abraham will surely become a great and important nation, and because of you will all of thenations of the earth be blessed. For I know him, and it follows that he will command his children andhousehold after him to keep the way of the Lord to do righteousness and justice (tsedaqahu-msihpat) . . .’ (Genesis 18:18–19). Note that the way of the Lord initially is not what the Lorddirectly 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 concernand demand, in Novak’s view, is indicative of natural law playing a role. The rationalmorality 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 arbitrarydivine will. Without natural law human entry into covenant with God would be either amatter of coercion by God or capricious decision by us, and both of those arefundamentally at odds with Jewish ethical thinking. ‘Natural law emerges from the Jewishattempt to discover the ‘reasons of the commandments’ (ta ‘amei ha-mitsvot), especiallyreasons 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) lawsfor 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 projectof specification rendering the broad, overall architecture of natural law more fullydeterminate 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 amongthem)44 argued that there are reasons for the commandments. (ii) Scripture itself puts agreat deal of weight on justice and morality more broadly. (iii) Natural law elements wouldhelp 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 halakhictradition. (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 thatinterprets things quite differently. In Interpreting Maimonides Marvin Fox has made a caseagainst natural law, in large part dependent upon contrasts between Jewish moral thought

and Thomistic natural law theorizing. He argues that according to Maimonides, ‘there isno natural moral law, only the law of God, which teaches us to live our lives in such a waythat we are worthy of our claim to have been created in His image. This, in turn, creates thecircumstances under which we can develop our intellect so as to become as nearly divine asfinite human beings can ever be’.45 He writes:

Maimonides goes to great lengths in his Guide to expound the reasons for the commandments. He isconcerned to show us that all the commandments are useful, in one way or another, as devices forhelping us gain the ultimate perfection that is the true end of humankind (III, 31, pp. 523–24). Noone could ever come, by way of rational reflection alone, to the conclusion that there is someparticular set of moral rules that is correct and binding.46

In large part, Fox makes his case by emphasizing that Maimonides argues against moralrules being demonstrable, that they are not deductive consequences from necessarily truepremises. ‘From his earliest work to the great book of his advanced years, the Guide of thePerplexed , 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 onMaimonides’s claims that morals are matters of what people ‘commonly agree’ (asMaimonides says in ‘Eight Chapters,’ for example) and also his claim that a gentile has aplace in the world to come for following the Noahide commandments, as Maimonides putsit:

only if he accepts them and observes them because God commanded them in the Torah, and taught usthrough our teacher, Moses, that the children of Noah has been commanded to observe them evenbefore 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 heone 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 isthe question of the nature of obligation. In the quoted passage Maimonides does seem toinsist that acknowledgment of a requirement as a divine command is necessary for morallyworthy obedience. That is an important issue but it is not one we will pursue in depth in thepresent 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 animportant justificatory sphere between the conventional (as merely stipulated or a matterof 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 matterthat is demonstrated. Agreement may register convergence of rational understandingwithout the agreed upon proposition being deductively inferred from premises known tobe 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 aproposition is not supported by reason in a substantial sense. If it is objected thatsomething 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 alternativeproposition would be correct, that still does not drain the proposition of its rationalcharacter. 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 toreason.

There is a useful point of comparison here with Aristotelian practical wisdom. Practicalwisdom 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 Practicalwisdom involves knowledge of both the universal and the particular; the universal in thesense that it involves knowledge of general truths about human good, and the particular inthat it involves knowledge of what is required in the details of the actual circumstances thatthe 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 onethat admits of being otherwise, and [hence] about the minor premise. For these last terms arebeginnings 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 forboth Aristotle and Maimonides there is a role for reason in grasping the general and theparticular in ethical thought.52 Moral judgments and decisions are reasoned in the sensethat even if the agent does not rehearse to himself the reasons for the truth of the universalclaims and the particular result of deliberation, there are reasons that ground them. Theexplication and justification of moral judgments involve considerations that are notmatters 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 rationallysubstantive than just being ‘not inconsistent with reason’.

Fox insists that Maimonides’s notion of convention clearly takes morality out of therealm 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 therational-background role assigned to the Noahide commandments in Novak’s view. Foxwrites:




However, even the pre-Sinaitic generations are considered to have been directly commanded byGod, through Adam and Noah, to observe these precepts. Of particular interest is that Maimonidesdeliberately excludes the validity of any claim that these laws are known through reason or thatthey bind us because of purely rational considerations.54

Again, however, this is an opportunity to note that the distinction between demonstrableby reason and understood by reason indicates room for a rational possibility betweendemonstrable and conventional . In the Maimonidean view morality has its ground incommandments for which we can, in many cases, ascertain the reason. Not only that, thereare moral requirements for which we may not succeed in ascertaining the reasons, but theyare still rationally justified. Then it seems that moral requirements are, if conventional,conventional in the more strongly rational, though not rationalistic, sense. Maimonidesheld that acknowledgment of requirements as divine commands both reinforces the statusof requirements by connecting them with divine sanction and that the complete moral

worthiness of action depends upon such acknowledgment. That is an important pointabout moral obligations. But those two conditions do not imply that there are not rationalexplications of moral requirements, just that those explications are not exhaustive andsufficient 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 moralrules are irrational or opposed to nature. He is affirming only that moral precepts are notknown by way of reason and are not capable of demonstration’.55 Fox understandablyseems concerned that to the extent that commandments are rational they obviate the needfor, and possibly diminish the authority of, revelation and obligation grounded in beingdivine commandments.

In addition to the reasons I have indicated for thinking that Fox’s view overstates thecritique of a rational grounding for Maimonides’s moral thought, as part of Fox’s critiqueof seeing it as a natural law position, there are reasons for thinking Novak’s viewoverstates the extent to which Maimonides’s view is an endorsement of a natural lawposition or a position very like one. That the reasons of the commandments render themrationally intelligible does not, in its own right, indicate that the Maimonidean view (or theJewish view in general) implicitly involves natural law elements. Nor does the fact that it ispart of the view that ultimately, the Law can be seen to include fully universal contentspresupposing human rationality. If we very loosely connect rationality with nature it couldbe 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 describedabove is a good example of what is distinctive about natural law. Both views involvefundamental, substantive claims about the ground and accessibility of moral principles.Aquinas’s conception of synderesis and the way in which subordinate principles aredeterminations of it is a good example. There really is not a correlate to this in Jewishmoral thought, even though Saadiah, Maimonides, and others argue that there are reasonsof the commandments. Synderesis is present in us on account of God including it in ournature. 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 forascertaining what morality requires and for ascertaining its general validity. Natural lawhas a transcendental role in such a conception. He argues that natural law, ‘consists of theprinciples 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’ innatural law must be seen as an essentially normative concept, one immediately connectedwith the demands made upon humans in their various historical communities’.56 Novakwants to retain the distinctive features of the revelation to the Jews while embedding it in aset 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 isultimately rational in a way that indicates the aptness of regarding Jewish moral thoughtas 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 uponrevelation for its status as a holy covenant. Also, even if a great deal of the law is rationallyintelligible, 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 lawapproach. While even the medievals (as far back as Philo, for that matter) recognized adistinction between ritual commandments, on the one hand, and more clearly moralcommandments, on the other, a natural law interpretation could relegate the former to asecondary status in a way that threatens the integrity of the Law as a whole, as a single,integrated discipline of perfection.

III

The Fox/Novak debate captures many of the main issues concerning natural law andJudaism. Part of the appeal of finding natural law in Judaism is that it would show thatwhile revelation of the Law is crucial to the identity and destiny of the Jewish people, themoral rationality of the Law is intelligible in its own right. On the other hand, a strongversion of the natural law view seems to constitute a challenge to the very notion of theuniqueness of revelation, covenant, and providence.

The Jewish view does not clearly take something like the Finnis-George-Gomez-Loboline that there are principles of human good that are evident to practical reason (andindependent of theological considerations). Nor does it take a view like Veatch’s, thatthere is a natural telos of human nature that determines certain goods crucial to theshaping of moral principles. Where it seems to agree with Aquinas (if I am right aboutAquinas in this regard) is that ultimately moral law does depend upon theologicalconsiderations.57 Novak certainly takes this view concerning Maimonides. Whether or notJewish moral thought is a version of natural law, for Maimonides and Thomas moralrationality 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 seemsto maintain that Jewish moral thought would be deficient in fundamental respects if it didnot 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 moralthought that (a) is not amenable to interpretation in terms of natural law and (b) does notchallenge the distinctiveness of revelation, covenant, and providence in the way thatMarvin 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 quiteimportant 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 andenacting them. (b) There are similarities in the way in which judgment is involved in goingfrom principles to particular decisions, and so forth. But the moral epistemology of theJewish tradition, at least as represented by thinkers such as Maimonides, is not simply aversion 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 thedimension 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 uponothers, by analogy or derivation or in a relation of particular to general, and in many casesattempting to show how the Oral Law coheres with, and elaborates the Written Law. Thisis 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). Considerthe following passage from Maimonides:

The following positive commands were ordained by the rabbis: visiting the sick, comforting themourners, joining a funeral procession, dowering a bride, escorting departing guests, performingfor 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 torejoice, providing them with all their needs [for the wedding]. These constitute deeds of loving-kindness performed in person and for which no fixed measure is prescribed. Although all thesecommands are only on rabbinical authority, they are implied in the precept: ‘And you shall love yourneighbor as yourself ’ [Lev. 19:18]; that is; what you would have others do to you, do to him who isyour 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 forwhat may seem a blur of highly detailed practical commitments. Asserting the groundingoften occurred without also showing the grounding in a rigorous, systematic way. Thereare few examples of thinkers actually elaborating just how the principles are the basis forthe vast array of specific requirements though there are often unproblematic intuitiverelations between them.

Shubert Spero suggests that in an attempt to exhibit the systematic character of Jewishmorality we might start with the following three principles.

‘P1 Love thy neighbor as thyself P2 Righteousness, righteousness shalt thou pursueP3 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 notclearly privileged in any special way, either normatively or epistemically. Other candidatesare possible. If we wanted to find first principles of natural law in Judaism this would beone 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 whichthey can be explained. But this could almost surely be done in alternative ways with nosingle 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 supremeprinciple of the Torah, but it never attempts to trace the different moral laws to this supremeprinciple 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 variousways. But it may also count against a natural law interpretation. For the latter, it wouldseem 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 secondaryprinciples should follow from, or be specifications of, the basic principles. There wouldneed to be tighter, more systematic connections than just broad coherence. There shouldbe explanatory and justificatory relations that constitute something of a system even if nota tight knit body of axioms and theorems. Jewish law is comprehensive and there areindeed some more basic, and less basic principles, but not constituting a system a formallyrecognizable sense.

Moreover, in the Jewish tradition there is an essential connection between ethical lifeand one’s relation to the Jewish people as a national community and to God. Theconnections make a difference to moral epistemology as well as to the larger, overallconception of the world distinctive of Judaism. Justifications, arguments, and relevantbody of evidence in moral theorizing are rooted in the tradition of interpretation andreasoning that is the living tradition of a covenanted people whose life according to theLaw 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 anessential aspect of the tradition. The intelligibility of the commandments requires morethan 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, thoughthis overall project is thickly rooted in ongoing dialogue and commentary it is not quiteright 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. Theprovidence it describes is the destiny of that particular people. However, according at leastto Maimonides, for example, what is involved in being an excellent Jew, what is involved inmoral aspiration and perfection as presented by the Law, concerns human excellence. Eventhe 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 aremorally 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 betweenwhat 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 dangerto 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 takenthe step of making judgments about the weight and significance of the variouscommandments, as though they did not constitute a single, integrated covenant.61 Whilehe distinguished between commandments clear to reason and those only knowablethrough revelation, Saadiah wrote of the latter:

What is commanded of this group of acts is, consequently, [to be considered as] good, and what isprohibited as reprehensible; because the fulfillment of the former and the avoidance of the latterimplies 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 deeperreflection, 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 sixhundred 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 wardingoff an injustice, or to endowing men with a noble moral quality. Thus all [the commandments] arebound 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 seeminglyarbitrary or irrelevant to (say) post-Temple times.

In considering this issue of how the specificity and particularism of the revelation of theLaw might relate to morality more broadly it is important to take into account that, to alarge extent, knowledge of, and commitment to, even the most universal principles andideals is attained in the concrete details of leading life through the specific practices of acommunity in which there are bonds of affect, mutual responsibility, and intellectualinteraction, or at least critical dialogue. (We should guard against over-intellectualizingmoral 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 moralpsychology and epistemology.) Moreover, values and ideals that are objective anduniversal need not be learned under precisely that description in order for agents to beengaged to them in ways that reflect that status and scope. In acquiring virtues the agentwith the relevant second nature will have a commitment to values that is sufficiently deepand genuine so that the agent’s exercise of virtue will not be selective. There is indeed therisk of narrowness in application but that is not an inevitable consequence of habituationin a certain form of moral upbringing. The world of one’s community and traditions neednot 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 tomembers of one’s community. For example, Maimonides says, ‘It is a commandment forevery man to love every single individual of Israel like his own body. As it is said: ‘And youshall 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 incontrast to Gentiles. However, this is not indicative of a fundamental distinction in moralstatuses, 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 minorityin exile is relevant to the Jewish understanding of moral relations with Jews and with non-Jews. But also, any plausible morality will allow scope for various kinds of partiality thatare not violations of impartiality but reflections of the psychological and moral

significance of certain kinds of attachments, commitments, and concern. A moral theorythat did not recognize the significance of family and community relations as having weightin ways that appropriately merit differential attention, concern, and moral engagementand effort would be defective for just that reason. That kind of partiality can be impartiallydefended. It is not automatically a morally problematic institutionalizing of differentmoral statuses.

IV

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 moralthought in which covenant and commandment are basic and are the basis for theelaboration and articulation of moral reasoning. There is reason ‘all the way down’ insofaras there are reasons for the commandments. But this is not a matter of a priori rationalityor fully evident rational first principles. Yet, while those features together distance Jewishmoral thought from natural law theorizing they are also the resources and instruments forattaining moral understanding and aspiration that reflect objectivity and universalityrather than the opposite.

Two of the main questions concerning Judaism and natural law are (i) whether Jewishmoral thought involves natural law elements and (ii) whether there is anythingfundamentally deficient about it if it does not. The answer to the first is that it involvesmoral content that substantially overlaps with that of natural law theory but it does notseem to be a version of natural law theory. This is to be explicated in part by the answer tothe second question. If Jewish moral thought is looked at as morality only for the Jewishpeople then it does lack the sort of universality and objectivity that is often held to be aproper 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 oruniversality of Jewish values and ideals, even when looked at from inside the Jewishperspective. It is through that covenant and history that those values and ideals are learnedand realized. Natural law is not a necessary condition for that. In the Jewish traditionitself, the moral epistemology and strategies of ascertaining and supplying justifyingreasons often proceed along lines that seem to differ from the contours of natural lawtheorizing, unless we take the latter to be very wide and flexible. It is perhaps more likelythat 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 andreformulated without explicit inclusion of the roots they have in a particular nationalmoral self-conception.

Notes

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. byElliot 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. Maimonidesaddresses the issue of the reasons of the commandments in several places. See esp. Guide of the Perplexed , III 26, 29, and31, 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 idealof intellectual perfection includes an ethical dimension. Imitatio dei involves righteousness, justice, and loving-kindness. 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 needsfor 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 anddirectly 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 theisticcommitments 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 UniversityPress, 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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Judaism and Natural Law Jonathan Jacobs