The Code of Maimonides. Book Eleven: The Book of Torts, translated by Hyman Klein
Halachah as the Reason of God and Man
The Code of Maimonides. Book Eleven: The Book of Torts. Translated from the Hebrew
by Hyman Klein.
Volume IX in the Yale Judaica Series. Yale University Press. 299 pp. $6.00.
The Book of Torts is the eleventh in the Code of Maimonides, the monumental codification of Talmudic law that was the crowning work of that Moses of whom Jewry says, “From Moses to Moses, there was none like Moses.” The Book of Torts is concerned with damage inflicted by one’s chattel; theft, robbery, and lost property; wounding and damaging; murder and the preservation of life. All this of course is lawyer’s fare. No one today would consider it part of a liberal education to study the minutiae of the state or Federal codes regarding the responsibility incurred by the owner of an ox that gored another animal or strayed into another’s field. And least of all would such a study be regarded as a religious discipline. Yet to Maimonides and all Jews who spent their lives studying his Code and related works, the essence of worship was the study of the word of God revealed in Halachah, the Law. Historically, the substance of Judaism has been law.
From one point of view, it might be said that what is basically at issue in this eleventh book of Maimonides’ Code is justice. Now justice is far from being just lawyer’s fare, but is a respectable topic of philosophical discussion. This is so because it is an abstraction. Any abstraction, however, must be an abstraction from some concrete. If, then, we survey a large variety of concrete human conduct that we consider just, asking what the universal element is that makes such conduct just, and if we are able to find this universal element, we have gained some conception of what justice is.
But how can we locate concrete examples of just conduct unless we already have some criteria in terms of which we can distinguish the just from the unjust? This is a dilemma of the philosophy of law to which Halachah provides its own very special solution. It does not raise the philosophical question of what is justice. It merely tells us, for example, that “if eligible witnesses testify that a person has committed a theft, he must pay the owner of the stolen property double its value. Thus, if one has stolen one denar, he must pay two, and if he has stolen a donkey or a garment or a camel, he must pay twice its value. He thus loses an amount equal to that of which he wished to deprive another” (“Laws Concerning Theft,” chap. I, par. 4). If, on the other hand, “one steals an animal and butchers or sells it before the owner has abandoned hope of recovery, he must pay fourfold or fivefold . . .” (par. 16). Halachah makes such a distinction not because it starts out already possessing a concept of justice which it applies in these cases to get these results, Out because the written and oral revelation, the Torah and the Mishnah and Talmud, provide specifically in this way for these contingencies. For the Halachist to ask whether they are just or not is to put the cart before the horse—it is only through analyzing these concrete, given (i.e., revealed) provisions that a definition of justice can be arrived at.
The Jewish law is therefore a very practical matter concerned with concrete cases. No philosophically derived definition of justice can say what the just punishment for wounding another is, or what is the necessary degree of negligence in cases of accidental injury—we find this out by studying the individual cases and contingencies set forth in the written and oral revelation. And therefore no philosopher worth his salt would spend time trying to answer such questions. But as practical as the Law is, its practicality is still not its essence. Its essence is that it is the word of God. Now of course its practicality, too, is directly dependent upon this conviction. Without this conviction that the Law is the word of God, no cogent reason can be advanced for its being binding on the Jew. But once it is the word of God, immediate applicability fades into the background. Whether the laws one studies concern torts, with some possible contemporary application, or whether they concern the cleanness of the vessels in the Temple, with no possible contemporary application, is irrelevant; to study either is to study the word of God.
What is at stake in the Judaism of Maimonides, then, is the religiosity of the Law. Historic Judaism stands or falls according to whether it is the law that God revealed at Sinai. Rashi, commenting on the first verse of the Scriptures (“In the beginning God created the heaven and the earth”), quotes Rabbi Isaac as saying that there was no good reason for beginning the Torah, which is the law book of Israel, with the account of the Creation except that its inclusion gives Israel a legal basis for their subsequent expulsion of the heathen nations inhabiting Palestine—for if God created the heaven and the earth He can surely take part of it away from one people and give it to another. Thus the Torah is not a source book for cosmological and metaphysical information. If it includes such information, it is for ethico-legal reasons and no other.
That the Law is the word of God is the theological contention unique to Judaism. Since the advent of Christianity, no other principle of Judaism has been subject to such systematic criticism. The defense of Judaism has been the defense of the Law. This defense is especially vital in the contemporary Jewish situation because of the antinomian criticism leveled at the Law not only by the indifferent, but by such authentically committed religious thinkers as Simone Weil and Henri Bergson. This is no place to develop such a defense. But in reading Maimonides’ Code one may be deceived by its apparent simplicity into thinking the problem of the Jewish law is something else than it is. Judging from the Code, the study of the Law should be a fairly straightforward and unproblematic matter. Maimonides’ paragraphs follow in a very orderly way and nowhere, it would seem, is there any place for disagreement or differences of opinion. But this impression which one gains is only a tribute to Maimonides’ powerful synthesizing intellect. In fact, Halachah is utterly complex and its study requires a prodigious intellectual effort. (As it happens, Talmudic scholars do not mainly consult Maimonides’ work for what it has to offer as a code and compilation; they do not consult it for its simplicities—Rabbi Joseph Caro’s Shulchan Aruch is much more useful for that—they consult it as an indirect commentary on the Talmud, as one of many interpretations of Jewish law.) The variety and complexity of Talmudic thought and argument, the intricate interrelationship of definitions and implications, and the logical complications presented by the medieval commentators and codifiers—in a word, the body of Halachah—are so formidable as to constitute an architectonic of human thought not inferior to the most complex human intellectual achievements such as modern theoretical physics or mathematics.
The religious experience of the word of God as law is therefore at the same time an intellectual act—it is, among other things, the experience of the divine logos. Just as to the philosophical rationalists of the 17th century, the mind of God was the laws of nature which relate all reality in the infinite complex of mathematical formulas, so to the Halachist the Law is the divine presence in the created world; and because there is no aspect of reality which does not concern Halachah, the Law is the unity which emanates from the unity of God. As such, Halachah is a kind of science of religion, not in the sense of a basing of religion on scientific foundations, as has been attempted fruitlessly so often in modern times, but as a development of the logic of the word of God. In logical structures the emphasis is always more on relation than on substance, more on the validity of the argument than on the premises themselves. And to a considerable extent this applies to Halachah too. One does not necessarily have to “believe” to see the beauty of a complex Halachic argument. The premises themselves, whose justification is often direct divine revelation alone, are absorbed in pure structure, in logic, in form. The word of God then speaks to man not only, or perhaps not even primarily, as the substance of the divine personality, but as the reflection of the divine logos.
Because Halachah reflects the reason of God, rather than the ultimate mystery of His personality, it is a sovereign domain of human research within the restrictions of its revealed premises. This places the primary religious emphasis on sheer intelligence. Jewish religiosity is unthinkable without this intelligence. The Jewish religious personality need not constantly be talking about God and His mysteries. He can be talking about cases of accidental injury or about oxen goring animals without being lost in the secularity of the world. Human intelligence, mirroring the reason of God as law, suffuses the most mundane human activities with a luminous religiosity and transforms them into forms of piety and worship. The religion of Judaism therefore has a place for the scientific mind, for the spiritual temperament that does not find fulfillment in theological speculation but in rigorous logic and convincing proof. In many ways, such a temperament is contemporary man’s, who lives in an age when to have the name of God on one’s lips does not insure His presence, or not to have it His absence. The study of the Torah, which is the central religious act of the Jew, produces a religiosity that can live without the constant invocation of the divine name. One has to look very hard in the Book of Torts to find God’s name. Yet Judaism feels that to study it is to study His word.