In this impressive book, Christine Hayes—highly regarded for her Between the Babylonian and Palestinian Talmuds (1997) and Gentile Impurities and Jewish Identities (2002), among other studies—undertakes to explain why various ancient Jewish thinkers conceive of the law of God in just the ways they do. In contrast to her earlier studies, here Hayes focuses not on particular points of halakhah but on the more basic question how the ancients understood the divinity of divine law. For all the significant differences among, say, the Qumran sectarians, Philo of Alexandria, the apostle Paul, and the rabbis in Palestine and in Babylonia, on Hayes’s account they are all wrestling with the dissonance between two inherited conceptions of law: the biblical and the classical. She summarizes, “It is the claim of this book that this incongruity between the biblical and the Greco-Roman conception of divine law was obvious and troubling to ancient Jews to different degrees and prompted three general categories of response” (4). Some Jewish thinkers (e.g., Philo) try to bridge the gap between biblical and classical conceptions of law, others (e.g., Paul) endorse the classical criticism of biblical law, while still others (e.g., the rabbis) internalise and invert that criticism, valorising the putative deficiency of biblical law.
The argument is complicated but elegant. The book falls into three parts of unequal length. Part I, “Biblical and Greco-Roman Discourses of Divine Law,” comprises two chapters that jointly set up the premise on which the balance of the book rests. Chapter 1 argues that the Jewish scriptures locate the divinity of divine law in the will of the lawgiver: It is divine because God wills it. Chapter 2 argues that Greek and Roman sources locate the divinity of divine law in its independent rationality: It is divine because it exists before, above, and apart from human law. (More specifically, in chapter 2 Hayes identifies ten discourses by which Greek and Roman writers inscribe a dichotomy between divine law and its human counterpart.) The balance of the book presupposes this account of the earliest sources. Part II, “Mosaic Law in the Light of Greco-Roman Discourses of Law to the End of the First Century CE,” comprises two chapters illustrating two different Jewish responses to this conflicted inheritance. In chapter 3, Hayes shows how several Hellenistic Jewish texts (Ben Sira, 1 Enoch, the sectarian scrolls from Qumran, Letter of Aristeas, 4 Maccabees, and above all Philo of Alexandria) try to square the circle, to ascribe to the law of Moses key features of Greco-Roman divine law. In chapter 4, Hayes argues that the Jewish apostle Paul endorses several Greco-Roman criticisms of biblical law in the interest of dissuading his gentile auditors from adopting that law for themselves. Both of these chapters are skilfully argued, but Hayes sees her major contribution lying elsewhere.
Part III, “The Rabbinic Construction of Divine Law,” which is longer than Parts I and II combined, is the centre of gravity of the book. As Hayes explains in her introduction, “It is the goal of this book to give a full account of the rabbinic construction of divine law as a crucial, if often overlooked, partner in the Western conversation about law” (5). She gives this account under four topical headings, comprising chapters 5, 6, 7, and 8. In chapter 5, Hayes argues that, for the rabbis, divine law is not necessarily, nor even optimally coordinated with truth—and that regardless of whether truth is understood in formal, judicial, or ontological terms. The rabbis knowingly adopt a nominalist rather than a realist view not just of human law, as Greeks and Romans did, but of divine law as well. In chapter 6, Hayes makes an analogous argument about the criterion of rationality. Noting in particular how Jewish purity and dietary laws frequently attracted the charge of arbitrariness, she shows how the rabbis sometimes defend the rationality of Torah but more often, especially when addressing Jewish insiders, actually embrace the charge: “They concede but transvalue the trait of irrationality such that that Law’s irrationality is a sign of its divinity” (286). Chapter 7 mounts a related argument about the flexibility of Torah, which contrasts with the Greco-Roman legal ideal of stability and permanence. For the rabbis, divine law can change in response not only to different circumstances but also to moral critique, but it is no less divine for doing so. This lattermost claim raises the question posed in chapter 8, namely, whether there is any rabbinic theory of natural law that could underwrite moral critique of the Torah, to which Hayes’s answer is no. She considers rabbinic texts, first, about the patriarchs living before the giving of the law at Sinai and, second, about the so-called Noahide laws (Genesis 9), concluding that even in these exceptional cases moral norms are understood by the rabbis in positive rather than natural terms. Parts I, II, and III are capped with a six-page peroration pointing forward to medieval and early modern receptions of the philosophical problem described in the book.
The first and most important thing to say about What’s Divine about Divine Law? is that it is a remarkable work of intellectual history. The author’s meticulous exegesis of classical, biblical, Second Temple, and rabbinic sources spanning more than a millennium is matched by her dexterous handling of the history of philosophy of law. The reader marvels at Hayes’s erudition and learns from her all along the way. This is the kind of book about which it is probably true that no single reader will know all the sources that the author knows. Hellenists, Romanists, Hebraists, Qumran scholars, New Testament scholars, and rabbinicists will all find their respective primary texts capably treated by Hayes and will also discover new, illuminating parallels in other corpora. In most of her particular interpretations, Hayes manages to convince. Her reading of Philo (111-124, 134-137), while not particularly groundbreaking, is very well executed and seems to me basically right. Her reading of Paul (140-164), on the other hand, is groundbreaking, flying as it does in the face of much recent interpretation, and also seems to me basically right. (Hayes argues that Paul’s opposition to gentile circumcision is grounded not in a principled libertinism but in a strict genealogical exclusivism.) Her major preoccupation in the book, the four-part account of the rabbis’ valorisation of the untruth, irrationality, flexibility, and unnaturalness of the Torah (166-370), is a tour de force. I expect that it will occasion lively debate, but I have a hard time imagining how it could be overturned.
The one point at which I struggled to be persuaded was not here, in the late antique part of the book, but in the early chapters on the classical and the biblical understandings of divine law. As noted above, Hayes begins by positing a deep difference between the two and then appeals to this conflicted cultural inheritance to explain the various creative moves made by Hellenistic- and Roman-period Jewish writers on divine law. But it seems to me that Hayes’s biblical-versus-classical distinction is undermined by counterexamples on both sides. On the biblical side, as Hayes herself shows, there is a discernible minority strand of Judean thought that identifies the will of Yahweh with a universal moral order (24-41). Meanwhile, on the Greco-Roman side, there is of course evidence for reflection on the philosophical problem of the relation between the good and the will of the gods. As Socrates asks Euthyphro, “Is that which is holy loved by the gods because it is holy, or is it holy because it is loved by the gods?” (Plato, Euthyphro 10a) (Hayes’s generally excellent chapter 2 does not pursue this idea.) Now, Hayes’s claims about the dominant tendency of each tradition are surely right: Judeans grounded law in the will of their god, Greeks in the rational order of things. But if each tradition also acknowledged and reflected upon the alternate possibility—as each, in fact, did—then we need not and perhaps should not assign so much explanatory power to the clash of civilizations wrought by Alexander. Of course, Jews in the late Second Temple and rabbinic periods lived in a world of Greeks and Romans, so naturally that context pressed in upon them, always and everywhere. But they did not need Greeks and Romans (nor, for that matter, did Greeks and Romans need Jews) in order to pose Hayes’s philosophical question to themselves.
From beginning to end, Hayes’s primary text work is, quite rightly, the main event, and it is a manifest virtue of the book that it stands on its own as a powerful constructive account of the issue in question. Even so, I often found myself wishing that Hayes would engage more directly, not to say polemically with other scholars who have worked closely on this issue. Perhaps the most obvious interlocutor is Rémi Brague, whose La Loi de Dieu (2005) Hayes cites approvingly on three occasions but who does not otherwise figure in the discussion. Hayes does level some formidable criticisms against David Novak’s maximalist account of natural law in Jewish sources (idem, Natural Law in Judaism ). She says less about Markus Bockmuehl (Jewish Law in the Gentile Churches ), who, like Brague, makes some appearances in the footnotes but does not receive the direct attention of an interlocutor. Granted, Hayes’s focus is the late antique heyday of the amoraim, whereas Bockmuehl’s is rather earlier and Brague’s and Novak’s later. And on divine law in the rabbinic corpus, Hayes’s treatment will surely now be the standard. But precisely because What’s Divine about Divine Law? is such an ambitious work of intellectual history, one wonders what Hayes would say to some of her similarly ambitious bibliographical counterparts. She may yet have occasion to tell us. At the end of the book, Hayes writes, “It is my hope that specialists in Jewish, Christian, and Islamic divine law discourse in the medieval and modern periods will take up the categories and questions raised by this book and write the next chapters of this story” (371). I expect that they will.