CHAPTER II

RELIGION AS LAW

The feature of Judaism which first attracts an outsider's attention, and which claims a front place in this survey, is its 'Nomism' or 'Legalism.' Life was placed under the control of Law. Not only morality, but religion also, was codified. 'Nomism,' it has been truly said, 'has always formed a fundamental trait of Judaism, one of whose chief aims has ever been to mould life in all its varying relations according to the Law, and to make obedience to the commandments a necessity and a custom' (Lauterbach, Jewish Encyclopedia, ix. 326). Only the latest development of Judaism is away from this direction. Individualism is nowadays replacing the olden solidarity. Thus, at the Central Conference of American Rabbis, held in July 1906 at Indianapolis, a project to formulate a system of laws for modern use was promptly rejected. The chief modern problem in Jewish life is just this: To what extent, and in what manner, can Judaism still place itself under the reign of Law?

But for many centuries, certainly up to the French Revolution, Religion as Law was the dominant conception in Judaism. Before examining the validity of this conception a word is necessary as to the mode in which it expressed itself. Conduct, social and individual, moral and ritual, was regulated in the minutest details. As the Dayan M. Hyamson has said, the maxim De minimis non curat lex was not applicable to the Jewish Law. This Law was a system of opinion and of practice and of feeling in which the great principles of morality, the deepest concerns of spiritual religion, the genuinely essential requirements of ritual, all found a prominent place. To assert that Pharisaism included the small and excluded the great, that it enforced rules and forgot principles, that it exalted the letter and neglected the spirit, is a palpable libel. Pharisaism was founded on God. On this foundation was erected a structure which embraced the eternal principles of religion. But the system, it must be added, went far beyond this. It held that there was a right and a wrong way of doing things in themselves trivial. Prescription ruled in a stupendous array of matters which other systems deliberately left to the fancy, the judgment, the conscience of the individual. Law seized upon the whole life, both in its inward experiences and outward manifestations. Harnack characterises the system harshly enough. Christianity did not add to Judaism, it subtracted. Expanding a famous epigram of Wellhausen's, Harnack admits that everything taught in the Gospels 'was also to be found in the Prophets, and even in the Jewish tradition of their time. The Pharisees themselves were in possession of it; but, unfortunately, they were in possession of much else besides. With them it was weighted, darkened, distorted, rendered ineffective and deprived of its force by a thousand things which they also held to be religious, and every whit as important as mercy and judgment. They reduced everything into one fabric; the good and holy was only one woof in a broad earthly warp' (What is Christianity? p. 47). It is necessary to qualify this judgment, but it does bring out the all-pervadingness of Law in Judaism. 'And thou shalt speak of them when thou sittest in thine house, when thou walkest by the way, when thou liest down and when thou risest up' (Deut. vi. 7). The Word of God was to occupy the Jew's thoughts constantly; in his daily employment and during his manifold activities; when at work and when at rest. And as a correlative, the Law must direct this complex life, the Code must authorise action or forbid it, must turn the thoughts and emotions in one direction and divert them from another.

Nothing in the history of religions can be cited as a complete parallel to this. But incomplete parallels abound. A very large portion of all men's lives is regulated from without: by the Bible and other sacred books; by the institutions and rites of religion; by the law of the land; by the imposed rules of accepted guides, poets, philosophers, physicians; and above all by social conventions, current fashions, and popular maxims. Only in the rarest case is an exceptional man the monstrosity which, we are told, every Israelite was in the epoch of the Judges—a law unto himself.

But in Judaism, until the period of modern reform, this fact of human life was not merely an unconscious truism, it was consciously admitted. And it was realised in a Code.

Or rather in a series of Codes. First came the Mishnah, a Code compiled at about the year 200 A.D., but the result of a Pharisaic activity extending over more than two centuries. While Christianity was producing the Gospels and the rest of the New Testament—the work in large part of Jews, or of men born in the circle of Judaism—Judaism in its other manifestation was working at the Code known as the Mishnah. This word means 'repetition,' or 'teaching by repetition'; it was an oral tradition reduced to writing long after much of its contents had been sifted in the discussions of the schools. In part earlier and in part later than the Mishnah was the Midrash ('inquiry,' 'interpretation'), not a Code, but a two-fold exposition of Scripture; homiletic with copious use of parable, and legalistic with an eye to the regulation of conduct. Then came the Talmud in two recensions, the Palestinian and the Babylonian, the latter completed about 500 A.D. For some centuries afterwards the Geonim (heads of the Rabbinical Universities in Persia) continued to analyse and define the legal prescriptions and ritual of Judaism, adding and changing in accord with the needs of the day; for Tradition was a living, fluid thing. Then in the eleventh century Isaac of Fez (Alfasi) formulated a guide to Talmudic Law, and about a hundred years later (1180) Maimonides produced his Strong Hand, a Code of law and custom which influenced Jewish life ever after. Other codifications were made; but finally, in the sixteenth century, Joseph Caro (mystic and legalist) compiled the Table Prepared (Shulchan Aruch), which, with masterly skill, collected the whole of the traditional law, arranged it under convenient heads in chapters and paragraphs, and carried down to our own day the Rabbinic conception of life. Under this Code, with more or less relaxation, the great bulk of Jews still live. But the revolt against it, or emancipation from it, is progressing every year, for the olden Jewish conception of religion and the old Jewish theory of life are, as hinted above, becoming seriously undermined.

Now in what precedes there has been some intentional ambiguity in the use of the word Law. Much of the misunderstanding of Judaism has arisen from this ambiguity. 'Law' is in no adequate sense what the Jews themselves understood by the nomism of their religion. In modern times Law and Religion tend more and more to separate, and to speak of Judaism as Law eo ipso implies a divorce of Judaism from Religion. The old antithesis between letter and spirit is but a phase of the same criticism. Law must specify, and the lawyer interprets Acts of Parliament by their letter; he refuses to be guided by the motives of the Act, he is concerned with what the Act distinctly formulates in set terms. In this sense Judaism never was a Legal Religion. It did most assiduously seek to get to the underlying motives of the written laws, and all the expansions of the Law were based on a desire more fully to realise the meaning and intention of the written Code. In other words, the Law was looked upon as the expression of the Will of God. Man was to yield to that Will for two reasons. First, because God is the perfect ideal of goodness. That ideal was for man to revere, and, so far as in him lay, to imitate. 'As I am merciful, be thou merciful; because I am gracious, be thou gracious.' The 'Imitation of God' is a notion which constantly meets us in Rabbinic literature. It is based on the Scriptural text: 'Be ye holy, for I the Lord am holy.' 'God, the ideal of all morality, is the founder of man's moral nature.' This is Professor Lazarus' modern way of putting it. But in substance it is the Jewish conception through all the ages. And there is a second reason. The Jew would not have understood the possibility of any other expression of the Divine Will than the expression which Judaism enshrined. For though he held that the Law was something imposed from without, he identified this imposed Law with the law which his own moral nature posited. The Rabbis tell us that certain things in the written Law could have been reached by man without the Law. The Law was in large part a correspondence to man's moral nature. This Rabbinic idea Lazarus sums up in the epigram: 'Moral laws, then, are not laws because they are written; they are written because they are laws.' The moral principle is autonomous, but its archetype is God. The ultimate reason, like the highest aim of morality, should be in itself. The threat of punishment and the promise of reward are the psychologic means to secure the fulfilment of laws, never the reasons for the laws, nor the motives to action. It is easy and necessary sometimes to praise and justify eudemonism, but, as Lazarus adds, 'Not a state to be reached, not a good to be won, not an evil to be warded off, is the impelling force of morality, but itself furnishes the creative impulse, the supreme commanding authority' (Ethics of Judaism, I. chap, ii.). And so the Rabbi of the third century B.C., Antigonos of Socho, put it in the memorable saying: 'Be not like servants who minister to their master upon the condition of receiving a reward; but be like servants who minister to their master without the condition of receiving a reward; and let the Fear of heaven be upon you' (Aboth, i. 3).

Clearly the multiplication of rules obscures principles. The object of codification, to get at the full meaning of principles, is defeated by its own success. For it is always easier to follow rules than to apply principles. Virtues are more attainable than virtue, characteristics than character. And while it is false to assert that Judaism attached more importance to ritual than to religion, yet, the two being placed on one and the same plane, it is possible to find in co-existence ritual piety and moral baseness. Such a combination is ugly, and people do not stop to think whether the baseness would be more or less if the ritual piety were absent instead of present. But it is the fact that on the whole the Jewish codification of religion did not produce the evil results possible or even likely to accrue. The Jew was always distinguished for his domestic virtues, his purity of life, his sobriety, his charity, his devotion. These were the immediate consequence of his Law-abiding disposition and theory. Perhaps there was some lack of enthusiasm, something too much of the temperate. But the facts of life always brought their corrective. Martyrdom was the means by which the Jewish consciousness was kept at a glowing heat. And as the Jew was constantly called upon to die for his religion, the religion ennobled the life which was willingly surrendered for the religion. The Messianic Hope was vitalised by persecution. The Jew, devotee of practical ideals, became also a dreamer. His visions of God were ever present to remind him that the law which he codified was to him the Law of God.