Divine Law and Human Justification in Medieval Jewish-Christian Polemic

POLITISCHE PHILOSOPHIE UNDRECHTSTHEORIE DES MITTELALTERSUND DER NEUZEIT

Texte und Untersuchungen

POLITICAL PHILOSOPHY ANDTHEORY OF LAW IN THE MIDDLE AGESAND MODERNITY

Texts and Studies

FILOSOFÍA POLÍTICA YTEORÍA DEL DERECHO EN LA EDAD MEDIAY MODERNA

Textos y estudios

Herausgegeben von / Edited by / Editado por

Alexander Fidora, Heinz-Gerhard Justenhoven, Matthias Lutz-Bachmann, Andreas Niederberger

Wissenschaftlicher Beirat / Editorial Advisors / Consejo editorial

Francisco Bertelloni, Armin von Bogdandy, Norbert Brieskorn, Juan Cruz Cruz, Otfried Höffe, Ruedi Imbach, Bernhard Jussen, Jürgen Miethke, Martha Nussbaum, Ken Pennington, Michael Stolleis

Reihe I: Texte / Series I: Texts / Serie I: TextosReihe II: Untersuchungen / Series II: Studies / Serie II: Estudios

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LEX UND IUS

Beiträge zur Begründung des Rechts inder Philosophie des Mittelalters undder Frühen Neuzeit

LEX AND IUS

Essays on the Foundation of Law inMedieval and Early Modern Philosophy

Herausgegeben von / Edited byAlexander Fidora, Matthias Lutz-Bachmann,Andreas Wagner

Reihe II: Untersuchungen / Series II: StudiesBand 1 / Volume 1

frommann-holzboog · Stuttgart-Bad Cannstatt 2010

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ISBN 978-3-7728-2504-0

© frommann-holzboog Verlag e. K. · Eckhart HolzboogStuttgart-Bad Cannstatt 2010

www.frommann-holzboog.deSatz: Satzpunkt Ursula Ewert GmbH, BayreuthDruck: Offizin Scheufele, StuttgartEinband: Litges + Dopf, Heppenheim

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Inhalt / Table of Contents

Vorwort / Foreword / Prefacio / Avant-propos / Prefazione . . . . . . . . . VII

Kenneth PenningtonLex and ius in the Twelfth and Thirteenth Centuries . . . . . . . . . . . . . . . 1

Orazio CondorelliIus e lex nel sistema del diritto comune (secoli XIV–XV) . . . . . . . . . . . . 27

Matthias PerkamsLex naturalis vel ius naturale – Philosophisch-theologische Traditionen des Naturrechtsdenkens im 12. und 13. Jahrhundert . . . . . . . . . . . . . . . . 89

Yossef SchwartzDivine Law and Human Justification in Medieval Jewish-Christian Polemic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Jason T. EberlThe Necessity of lex aeterna in Aquinas’s Account of lex naturalis . . . . . . . 147

Francisco BertelloniSelbsterhaltungstrieb, princeps, lex und ius im Traktat De potestate regia et papali des Johannes Quidort . . . . . . . . . . . . . . . . . . . . 175

Alexander Fidora»Deffensió de raó es conservar o retre a cascú ço qui es seu.« –Zu Ramon Llulls Auslegung der ulpianischen Gerechtigkeitsformel . . . . 195

Hannes MöhleGesetz und praktische Rationalität bei Johannes Duns Scotus . . . . . . . . . 205

Luis Alberto De BoniLegislator, lex, lex naturalis und dominium bei Johannes Duns Scotus . . . . . 221

Jürgen MiethkeDominium, ius und lex in der politischen Theorie Wilhelms von Ockham. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

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Gabriele AnnasRecht und Gerechtigkeit in Schriften zur Reichsreform des 15. Jahrhunderts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

Juan Cruz CruzIus gentium bei Vitoria: ein eindeutig internationalistischer Ansatz . . . . . . 301

Merio ScattolaDie weiche Ordnung – Recht und Gesetz in der Naturrechtslehre des Domingo de Soto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333

Matthias KaufmannDas Verhältnis von Recht und Gesetz bei Luis de Molina . . . . . . . . . . . . 369

John P. DoyleSuárez and Some Precursors on lex and ius . . . . . . . . . . . . . . . . . . . . . . . 393

Norbert BrieskornLex und ius bei Francisco Suárez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429

Matthias Lutz-BachmannDie Normativität des Völkerrechts: Zum Begriff des ius gentium bei Francisco Suárez im Vergleich mit Thomas von Aquin . . . . . . . . . . . 465

Verzeichnis der Siglen und Abkürzungen / Abbreviations. . . . . . . . . . . . 487

Über die Autoren / Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489

Personenregister / Index of Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491

VI Inhalt

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Divine Law and Human Justification in Medieval Jewish-Christian Polemic

Yossef Schwartz

I. Jews, Christians and the Problem of the Old Law

The subject of law in Western intellectual tradition involves from the very beginning two different realms of discourse and two different sets of assump-tions resulting from a double heritage: the Hebrew Biblical tradition on the one hand and the Roman legal tradition on the other. These two streams of tradition and thought became institutionalized on the intellectual level in the medieval university into two faculties, Law and Theology, and in the written authoritative documents they produced. The result was that scholars of each of these two disciplines used totally different languages when dealing with identi-cal problems. When it comes to the interface of Christian-Jewish dialogue each of the two disciplines, the theological as well as the jurisprudential, approached the basic problems at stake in a different manner.

In the following I shall examine a basic theo-political aspect of law and jus-tification as discussed between Jews and Christians in the 12

th–13th century, i. e.

the tension between lex and ius as articulated in the framework of two well-known problems: one, the relativistic and progressive nature of divine law as the constitutional basis for any human legal system, and two, its implication on the salvation aspects of law, i. e. on the relation between legal righteousness and the possibility of personal salvation/perfection/happiness.1

When analyzing Jewish medieval political thought, Menachem Lorberbaum defined some of its most significant elements as derivations of the basic nature of Jewish political exilic reality in the pre-modern era.2 Jewish political

1 In a way, this is the same tension that Immanuel Kant would formulate as “die An-tinomie der praktischen Vernunft”, i. e. as the tension between moral virtue and human happiness/perfection. Cf. Immanuel Kant, Kritik der praktischen Vernunft. In: Idem, Werke in Sechs Bänden. Band IV: Schriften zur Ethik und Religionsphilosophie. Ed. by W. Weischedel. Darmstadt: Wissenschaftliche Buchgesellschaft, 1963, 242.

2 Menachem Lorberbaum, Politics and the Limits of Law. Secularizing the Political in Medi-eval Jewish Thought. Stanford: Stanford University Press, 2001, xii; See also Michael

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122 Yossef Schwartz

thought evolved primarily in a religious community that maintained a high degree of juridical autonomy developing more than one channel of expression: One, it was formulated as halachic jurisdiction of the individual’s and the com-munity’s daily life. Two, it included an ongoing theoretical discussion on the nature of just political rulership, formulated mostly in a utopian discourse of post-exilic messianic reality, based on biblical materials, but strongly mixed with philosophic elements taken from its Moslem and European environments. Three, it was also connected to the apologetic and polemic aspects of Jewish existence as a peripheral and marginal community living under hegemonic powers that were always identified with alien religious beliefs.

The encounter between Jewish leadership and Jewish intellectuals and their political surroundings also had a variety of manifestations, starting with the necessary daily negotiations on rights, privileges, and duties,3 all the way to intellectual and religious polemics.

This general remark is true not only for Christian areas. However, the fun-damental questions regarding the elementary status of lex appear more fre-quently in the Jewish-Christian encounters than in the Jewish-Islamic ones. There are two major reasons to explain this: First, the Moslem concepts of sharia and fiqe are closer to the Jewish notions of Halakha and Torah. Both are more pragmatic in nature and alien to the Christian dogmatic concept of fides. Second, the strong Biblical nature and orientation of Christian dogma that makes interpretation of Judaism and Old Testament law an integral part of any Christian hermeneutics.4

Moreover, although the daily negotiation between Jewish representatives and Christian secular or religious authorities was primarily pragmatic and secu-lar in nature, any intellectual encounter immediately became theological as well. Christian medieval society was characterized by its unique political and juridical differentiation between secular and clerical leadership. At the practical level Jews negotiated with both and often acted in the intermediary space be-

Walzer, “Introduction: The Jewish Political Tradition”. In: The Jewish Political Tradi-tion, vol. I: Authority. Ed. by M. Walzer et al. New Haven and London: Yale Univer-sity Press, 2000, xxi–xxxi.

3 Kenneth R. Stow, Alienated Minority. The Jews of Medieval Latin Europe. Cambridge, MA: Harvard University Press, 1992, 89–101, 159–195.

4 On Moslem Bible interpretation and Bible criticism as part of Moslem polemic against Judaism and Christianity see Hava Lazarus-Yafeh, Intertwined Worlds. Medieval Islam and Bible Criticism. Princeton: Princeton University Press, 1992.


Divine Law and Human Justification 123

tween them, yet on the intellectual level Jewish intellectuals, in their self-image as well as in their social organization, were much closer to the Christian clerical than to the secular structures. It is not a coincidence therefore that every Chris-tian-Jewish debate turns out to be a debate between clergymen.

On this clerical-theological level the border-lines between the two religions are surprisingly fluid. In his above-mentioned work on Jewish medieval politi-cal thought Menachem Lorberbaum suggests that the concept of Exile must be taken as a general definition of the Jewish political condition in the Middle Ages and therefore must be considered a political system. Yet one must re-member that even on such a meta-political level there exists a theological com-petition between religions, since the rhetoric of exile was no less common among Christian theologians.5 Not only was exile a political reality – well-es-tablished already in Greco-Roman politics6 – but in some cases there seems to have been a genuine medieval politics of exile7 that bears traces of basic gnostic sympathies.8 Such an exilic political ideal was certainly not shared by all medi-

5 One of the first to note this was the Jewish historian Fritz Baer in his Galut, first published in Berlin in 1936. This short, remarkable historical treatise should be regarded as the most serious theoretical attempt to use the notion of exile as a political-theological common ground for a Zionist version of Jewish history. In his attempt to develop a real “theology of exile”, Baer begins his book with the Christian Church Fathers, probably the first in history to develop such a theology. See Yitzhak F. Baer, Galut. New York: Schocken, 1957, 14f.; on Baer’s usage and even internalization of original Christian concepts, espe-cially in his early research, see Israel J. Yuval, “Yitzhak Baer and the Search for Authentic Judaism”. In: The Jewish Past Revisited. Reflections on Modern Jewish Historians. Ed. by D.N. Myers and D.B. Ruderman. New Haven, CT: Yale University Press, 1998, 79.

6 See Gordon P. Kelly, A History of Exile in the Roman Republic. Cambridge: Cambridge University Press, 2006.

7 Yossef Schwartz, “‘Like the Turtledove at the Thought of His Homeland’: Aspects of Exile as a Universal Paradigm in Medieval Thought”. In: Truma. Zeitschrift der Hoch-schule für jüdische Studien Heidelberg 12 (2002).

8 Surely in accordance with Hans Jonas’ classic description of the Gnostic ideal type, in which he extensively uses the notion of exile and its variations; see Hans Jonas, The Gnostic Religion. Boston: Beacon, 1963, 49f.: “The alien is that which stems from else-where and does not belong here. To those who do belong here it is thus the strange, the unfamiliar and incomprehensible; but their world on its part is just as incompre-hensible to the alien that comes to dwell here, and like a foreign land where it is far from home. [...] In its split-off existence in the world it tragically partakes in the inter-pretation of both sides; and the actualization of all the features outlined above, in a dramatic succession that is governed by the theme of salvation, makes up the meta-physical history of the light exiled from Light, of the life exiled from Life and involved


124 Yossef Schwartz

eval political figures, nor even by all clergymen, yet it was a well-established part of Christian Theology, i. e. that “present society is recognized by Chris-tians as an exile; that they belong to a new society which is the goal of their common pilgrimage and which is anticipated in the course of that pilgrim-age.”9

in the world – the history of its alienation and recovery, its ‘way’ down and through the nether world and up again.”

9 Benedict XVI, Encyclica spe salvi, November 2007. This is exactly the idea pronounced by St. Bernard of Clairvaux who, in his 59

th homily on the Song of Songs, comment-ing on verse 2:12, “Vox turturis audita est in terra nostra” (The voice of the turtledove is heard in our land), claims the following: “As long as men accepted only an earthly reward, a land flowing with milk and honey, they did not feel like foreigners on earth, nor did they sigh like the turtledove at the thought of his homeland, but they mistook their place of exile for the homeland and they gave themselves to eating delicacies and drinking sweet wine. Therefore at that time the voice of the turtledove was not yet heard in our country. When, however, the promise of the heavenly kingdom was made, men recognized that on this earth they had no lasting city, and they began avid-ly to seek the city which is to come (Heb. 13:14). And that happened when the voice of the turtledove was heard, loud and clear, for the first time here on earth.” See Ber-nard of Clairvaux, Sermo 52.II.4 of “Sermones super Cantica Canticorum”. In: Sancti Bernardi Opera, vol. II. Ed. by J. Leclercq et al. Rome: Editiones Cistercienses, 1958, 137, 11–23; the English translation, with some modifications is taken from Peter Raedts, “St. Bernard of Clairvaux and Jerusalem”. In: Prophecy and Eschatology. Ed. by M. Wilks. Oxford: Blackwell, 1994, 177. On Bernard’s concept of the heavenly Jeru-salem as the true home of the Christian and its medieval wider setting, see Raphael J.Z. Werblowsky, The Meaning of Jerusalem to Jews, Christians and Muslims. Jerusalem: Israel Universities Study Group for Middle Eastern Affairs, 1983, 6f. For the interpretation of the singing turtledove as the Messiah in Jewish commentaries, see Midrash Rabbah. Song of Songs. London: Soncino, 1939, 125f.: “And the voice of the turtledove is heard in our land: Who is this? This is the voice of the Messiah proclaiming, ‘How beautiful upon the mountains are the feet of the messenger of good tidings (Isa. 52:7)’.” It is interesting to find ideas expressed by the Christian interpreter of the twelfth century that are almost similar to those pronounced in rabbinical rhetoric many centuries earl-ier. Midrash Eicha Raba, a rather early collection of rabbinical literature, says: “‘Je-huda was exiled’: What about the other nations? Are they not exiled? The answer is this: even when they are exiled they are not really in exile. The nations of the world who eat of the (local) bread and drink of the (local) wine are not in exile, but Israel, who does not eat of the local bread and does not drink the local wine, is indeed in exile. The nations of the world who are wearing (local) shoes are not in exile, but Is-rael, who is walking barefoot is indeed in exile. This is what is meant when it says: ‘Jehuda was exiled’.” See Eicha Raba ptichta. Jerusalem, 1989, ch. 1, 28, 180 (translation Y.S.). Non-exilic worldliness is understood here as a situation in which one enjoys worldly goods and neglects his celestial mission. The coming of Christ, the event that



This common feature of basic religious feeling impels us to look for Jewish-Christian arguments concerning political thought mostly within the realm of ongoing theological debates that were rooted in the constitutive phase of Christianity and of rabbinic Judaism which, as we shall immediately see, under-went dramatic changes during the 12

th and 13th century. The debates evoke the

basic notions of law and of legitimacy. While primarily trying to uncover the mechanisms of divine law they also raised innumerable questions concerning the possibility of a natural universal theory of justice. In modern terminology one can say that those theologians were looking for the sources and roots of legal legitimacy. In the following I shall point out how the inter-religious po-lemic sharpened the basic attitude of both parties concerning the source of legal authority. I shall highlight Christian and Jewish attitudes at two different junc-tions by juxtaposing Jehudah Halevi with his contemporary Abelard, and Mo-ses Maimonides with later scholastic theologians of the 13

th century, from Wil-liam of Auvergne to Aegidius Romanus. Thus, I shall focus on two different sets of arguments that evolved in two different historical phases, the one in the first half of the 12

th century and the other in the second half of the 13th century.

A preliminary short remark is required concerning the general change in Chris-tian-Jewish relationships from the 12

th century onward.

In the 12th century the traditional system of Jewish-Christian coexistence that

was composed of socio-economic agreements and had been stabilized through legal and theological formulations, changed radically in a process which, at the end of the Middle Ages, would leave Western Europe almost empty of Jews. The escalation of this decline led inter alia to ritual murder trials and to charges

should separate the Jew from the Christian, traditionally understood as letting the for-mer live in his unfulfilled longing and the latter in a preparatory perfect state, is inter-preted by Bernard as the source of real exile. First the world needed to know the re-vealed God in order to realize the immense gap between the worldly and the perfect state. We might recall here the basic claim of St. Augustine – one which, according to Hans Jonas, differentiates Augustine from the Stoic ideal by which he was heavily in-fluenced. See Hans Jonas, Augustinus und das paulinische Freiheitsproblem. Göttingen: Vandenhoeck & Ruprecht, 1930, 8f. Turning into itself, the Christian soul does not gain self-sufficiency and independence. Instead it finds itself against the absolute and against the absolute call. Being within itself and not “in the world” is just the beginning of the road, not its end. On the influence of Augustine on Christian attitudes toward the world, see Gerd Tellenbach, Church, State and Christian Society at the Time of the Investiture Contest. New Jersey: Harper & Row, 1979, 25f.


126 Yossef Schwartz

against the Talmud, resulting in inquisitorial burning and censorship. Great scholarly effort has been dedicated to the description and explanation of that shift. Amos Funkenstein and Anna Abulafia see the turning point in the 12

th century10 while Jeremy Cohen and others postpone the massive change to the 13

th century.11 Without going into more detail on that complex issue, I shall point out three major elements that present the complexity of the image of Judaism held by the scholastics of the 12

th–13th century:

1. Interpretations of Old Testament laws were changing, partially inspired by Jewish literal Bible interpretation12 but otherwise less inspired by direct confrontation with Judaism than by a concern with inner Christian develop-ments, whether a general anti-allegorical attitude or the confrontation with heresies.13

2. During the 12th century there was a growing awareness of the fact that the

Jews are not only living representatives of an archaic legal system, but that they possess their own “new law” which interprets the law of the Pentateuch in a manner no less revolutionary than the Christian interpretation. This is the stage

10 Amos Funkenstein, “Changes in Christian Anti-Jewish Polemics in the Twelfth Cen-tury”. In: idem, Perceptions of Jewish History. Berkeley: University of California Press, 1993; Anna Sapir Abulafia, “Jewish-Christian Disputations and the Twelfth-Century Renaissance”. In: Journal of Medieval Studies 15 (1989); Gilbert Dahan, La polémique Chrétienne contre le Judaïsme au moyen âge. Paris: Michel, 1991; Yvonne Friedman, “Anti-Talmudic Invective from Peter the Venerable to Nicolas Donin (1144–1244)”. In: Le brûlement du Talmud à Paris 1242–1244. Ed. by G. Dahan and É. Nicolas. Paris: Cerf, 1999.

11 Jeremy Cohen, “Scholarship and Intolerance in the Medieval Academy. The Study and evaluation of Judaism in European Christendom”. In: Essential Papers on Judaism and Christianity in Conflict. From Late antiquity to the Reformation. Ed. by J. Cohen. New York: New York University Press, 1991; see Chazan’s criticism in Robert Chazan, Daggers of Faith. Thirteenth-Century Christian Missionizing and Jewish Response. Berkeley: University of California Press, 1989, 2–13.

12 Herman Hailperin, Rashi and the Christian Scholars. Pittsburgh: University of Pitts-burgh Press, 1963; Beryl Smalley, The Study of the Bible in the Middle Ages. Notre Dame: University of Notre Dame Press, 1964, 87–165; Aryeh Grabois, “The Hebra-ica Veritas and Jewish-Christian Intellectual Relations in the Twelfth Century”. In: Speculum 50 (1975).

13 Beryl Smalley, “William of Auvergne, John of la Rochelle and St. Thomas Aquinas on the Old Law”. In: St. Thomas Aquinas 1274–1974. Commemorative Studies. Vol. II. Ed. by A.A. Maurer et al. Toronto: Pontifical Institute of Mediaeval Studies, 1974. For the connection between the Cathar heresy and the turning to the more literal and philosophic interpretation of the law suggested by Maimonides see ibid., 22f.



at which Rabbinic literature became central for Christian anti-Jewish polemics. Petrus Alfonsi14 and Petrus Venerabilis15 are without doubt the two most out-standing figures of Christian polemic literature in the 12

th century.3. Based on the newly acquired acquaintance with post-biblical literature a

common argument against the Jews stressed the irrational character of Rab-binic traditions. However, already during the 12

th century, but especially fol-lowing the full translation of Maimonidean texts in the 13

th century, Christian thinkers became aware of the existence of Jewish rational, philosophic inter-pretation of the “old law”. Here again two different reactions emerged, some-times almost simultaneously: the first sought within Jewish philosophic inter-pretation of law the support of Judaism itself for the proclamation of Christian truth. The second developed new polemic methods in order to create a fresh intellectual frontier for the inter-religious debate.

Descriptions of the encounters between scholastic thought and Jewish authors, or Judaism at large, normally move between several, rather different realms of discussion. There is the reception of Jewish written works by Latin scholars: during the 12

th and 13th century these are mostly translated Arab-Jewish

writers.16 Later, especially from the 15th century onwards, we observe a massive

movement of translations from the Hebrew.17 Alongside the translations of

14 Pedro Alfonso de Huesca (= Petrus Alfonsi), Diálogo contra los Judíos. Ed. by K.-P. Mieth. Huesca: Instituto de Estudios Altoaragoneses, 1996; engl.: Dialogue Against the Jews, translated by Irven M. Resnick. Washington D.C.: Catholic University of America Press, 2006. See John Tolan, Petrus Alfonsi and his Medieval Readers. Gaines-ville: University Press of Florida, 1993.

15 Petrus Venerabilis, Adversus Iudaeorum inveteratam duritiam. Ed. by Y. Friedman. Turn-hout: Brepols, 1985. Talmudic quotations are to be found mostly in the last chapter V, “De ridiculis et stultissimis fabulis Iudaeorum” (125–187), which was probably written later. Also see Friedman, “Introduction”, ibid., lxiv–lxviii. On the exact relation be-tween Petrus Venerabilis and Petrus Alfonsi see ibid., ix–xx. Friedman convincingly asserts that Peter must have had some other sources for his Talmudic quotations, and not only those of Alfonsi. It seems however that there is no reason to deny a highly probable acquaintance with Alfonsi’s text to which Peter added further sources based on a direct textual acquaintance, most probably gained through some Jew or Apostate collaborator.

16 See Yossef Schwartz, “Rezeption philosophischer Schriften aus dem Judentum”. In: Grundriss der Geschichte der Philosophie. Bd. III: Philosophie des Mittelalters: 13. Jahrhun-dert. Ed. by P. Schulthess and Chr. Flüeler. (Forthcoming), § 8f.

17 This renaissance translation movement goes back to the basic notion of Hebraica veritas


128 Yossef Schwartz

scientific and speculative texts, which were motivated by purely scholarly needs, in the case of Jewish texts there was a continuation of the apologetic and polemical discourse in which Christian writers had been involved throughout the history of Christianity. Within that realm the revolutionary steps taken from the 12

th century onward involved a radical transformation of the image of Judaism and were primarily connected to the discovery not only of new Jewish materials but also of a totally newly perceived Jewish interpretation of law.

II. The Ethical Dimension of Law between Universalism and Particularism in the 12

th Century: Abelard and Halevi

Within the limited scope of this paper I would like to raise the question to what extent the theological context of Jewish-Christian polemics influenced medi-eval perspectives on the problem of naturalism vs. conventionalism in the eth-ical and political realms. I assume that issues of ethics and politics have contin-ued to be central throughout the history of western thought, and, at least from the Christian perspective, have always remained relevant in confrontations be-tween the new revelation and the old law. Thus, in the short comparison be-tween central texts of the 12

th and 13th century one can easily point out major

differences regarding the basic approaches of the examined writers. Jehudah Halevi and Peter Abelard wrote in exactly the same period, in the

second quarter of the 12th century. It is probably no coincidence that both

composed inter-religious literary dialogues, based on clear ethical assump-tions confronting the communal and particular Jewish law with a more univer-sal and philosophically-oriented ethical ideal. Although there are great differ-ences in basic viewpoints, it seems that both of them presuppose a certain relativistic approach toward moral postulates. Abelard’s position is strongly connected to his intentional approach and Halevi’s to his communal interpreta-tion of revelation. Each leads into opposite systems of relationship between the

as it already appears in Origen and Jerome, only that the former Church Fathers spoke mostly about Biblical sources and rarely about Rabbinical, especially Midrash litera-ture whereas Renaissance thinkers directed their attention to the krypto-biblical mys-tical writings. See Joseph L. Blau, The Christian Interpretation of the Cabala in the Renais-sance. New York: Columbia University Press, 1944; Joseph Dan (ed.), The Christian Kabbalah. Cambridge, MA: Harvard University Press, 1997; Wilhelm Schmidt-Big-gemann (ed.), Christliche Kabbala. Ostfildern: Thorbecke, 2003.



moral, individual and intentional, and political-communal dimensions. In Abe-lard’s view, the political framework of Jewish existence at the time of Christ provided a justification even for Christ’s crucifiers, on the grounds of their in-tentions.18 The very existence of his Jewish contemporaries among Christians and Moslems provides for him an undisputable proof for the ongoing purity of their intention. On the other hand, the general evolution of human history and humanity’s condition proves their belief to be false and turns them into a tra-gic example of a false conscience.19

Paul’s epistle to the Romans constituted the classic locus for Christian the-ologians dealing with the notion of nomos/lex. Based on Paul’s argument, the identification of Judaism with the notion of “law” became crucial for the Church fathers and for European tradition. At the end of the 1130s, Peter Abe-lard discussed all these matters at length in his commentary on Romans. When Paul differentiates between the Jews as those who sin cum lege and the Pagans who sin sine lege (Rom. II, 12), Abelard explains that regarding the latter this refers to those who have not sinned against any written law but only against the natural law (“id est nullam ex transgressione legis scriptae poenam incurrent sed ex transgressione naturalis legis tantum”).20 Thus natural law becomes a gen-eral and universal basis for any moral or religious obligations.

The commentary on Romans is one of the key texts in which Abelard sys-tematically transforms the ethics of intention into a system of theology. Paul’s words enable him to consider the borders of the ethical act against universal/natural imperatives, social/cultural environment and concrete legal obligation.

In Abelard’s Collationes sive Dialogus inter Philosophum, Judaeum et Christia-num, the same issue of the nature of law is discussed between the Jew and the philosopher. The main issue in the first part of the Collationes is the universal nature of divine Law and its relation to the particular law of the Pentateuch.

18 See Peter Abelard, Ethics. Ed. and transl. by D.E. Luscombe. Oxford: Clarendon, 1971, 56, 1–10 and 62, 5–10. For a parallel claim by Thomas Aquinas, see Jean-Pierre Torrell, “Qui porte la responsabilité de la mort du Christ? La position de Thomas d’Aquin”. In: Melanges Marcel-Jacques Dubois. Ed. by A. Wohlman and Y. Schwartz. Jerusalem: forthcoming.

19 See note nr. 21 below.20 Peter Abelard, “Commentaria in epistolam Pauli ad Romanos”. In: Petri Abaelardi

Opera Theologica. Vol. I. Ed. by E.M. Buytaert. Turnhout: Brepols, 1969, I (ii, 12), 83 (247–249).


130 Yossef Schwartz

In response to the Jew who describes in details the miseries of Jewish exile among Pagans and Christians and the great difficulties of obeying the precepts of the Torah, the Philosopher answers:

In truth, this zeal which you seem to have for God puts up with many and great things, whatever the intent may be; but what is more important is whether this intent is cor-rect or erroneous [...]. Nonetheless, I want you to consider to what an extent this position is incompatible with reason, and I will prove it from the written Law [ex ipso scripto legis] itself which you follow.21

This philosophic refutation of the old law is based on the concept of natural law, combined with the Paulinic notion of faith. The universality of both natu-ral law and true divine salvation is based on Abelard’s philosophic concept of human rationality. In the second part of the Collationes, the discussion in the dialogue with the Christian that focuses on individual morality indeed becomes more universal in its character. In a certain sense, for Abelard the move from Judaism to Christianity is parallel to the move from politics to ethics.

Halevi’s dialogue22 can also be defined as a “dialogue between a Jew and a Philosopher”.23 Halevi presents the Jewish political situation as an undisputable proof of the truth of Jewish revelation. According to Halevi, the general anti-political ideology of all monotheistic religions becomes an imperative that is fulfilled only in the case of the Jews’ concrete political existence. The Jewish sage (Chaver) claims this in his dialogue with the Khazar king through an inter-pretation to Jesaiah 53, i. e. to the most celebrated image of the pure and wretched servant of God. Jews and Christians often debated the question who should be considered the historic realization and fulfillment of this prophecy. The Chaver points out the fact that among Christians and Moslems there is a

21 Peter Abelard, Dialogus inter Philosophum, Iudaeum et Christianum. Ed. by R. Thomas. Stuttgart-Bad Cannstatt: frommann-holzboog, 1970; idem, Collationes. Ed. by J. Marenbon and G. Orlandi. Oxford: Clarendon, 2001.

22 Jehudah Halevi, Al-Kitab Al-Khazari. Ed. by D. h. Baneth. Jerusalem: Magnes, 1977; English translation is taken from idem, Kitab al Khazari. Transl. by H. Hirschfeld. New York: E.P. Dutton, 1905, with some corrections according to the original and to Korobkin’s translation: idem, The Kuzari: In Defense of the Despised Faith. Transl. by D. Korobkin. Northvale: Aronson, 1998.

23 See Leo Strauss, “The Law of reason in the Kuzari”. In: idem, Persecution and the art of Writing. Chicago: University of Chicago Press, 1988 [1952]; Aryeh L. Motzkin, “On Halevi’s Kuzari as a Platonic Dialogue”. In: Interpretation 9 (1980); Yochnan Silman, Philosopher and Prophet. Judah Halevi, the Kuzari, and the Evolution of his Thought. Al-bany: State University of New York Press, 1995.



profound gap between, on the one hand, their religious ideals of humility and suffering for the sake of God, leading to the worship of ideal role models of ancient martyrs (who indeed suffered and died for the sake of their faith), and their concrete political situation on the other hand, in which they combat each other in order to increase their worldly power and control. Only the Jews rep-resent a community that still lives according to the ideal of humility. Therefore Jesaiah’s powerful metaphor should not be understood as a prophecy about the messianic figure of an archetypical individual, but as a description of the incor-poration of this individual metaphor by a community as a whole. The Jewish community is the real “servant of God”:

The Rabbi said: I see that you disparage us because of our poverty and lowliness, and yet it is with these very attributes that the leaders of the other religions exalt them-selves. They take pride in he who said: ‘He who smites thee on the right cheek, turn to him the left also’; and ‘he who takes away thy coat, let him have thy shirt also’. He and his friends and followers, after hundreds of years of contumely, flogging and slay-ing, attained their well-known success, and just in these things they glorify. This is also the history of the founder of Islam and his friends, who eventually prevailed, and be-came powerful. The nations boast of these, but not of these kings whose power and might are great, whose walls are strong, and whose chariots are terrible. Yet our rela-tion to God is a closer one than if we had reached greatness already on earth.24

One could easily assume that contrary to Abelard, Halevi claims that the Jews are the ones who represent the ethical dimension as opposed to the political power of Moslems and Christians. But if the political condition of the Jews proves the superiority of the Jewish faith, then the major problem according to Halevi lies on the individual moral intentional level. The King claims that (114): “This might be so, if your humility were voluntary; but it is involuntary, and if you had power you would slay.” To that the Jew answers that:

Thou hast touched our weak spot, O King of the Khazars. If the majority of us, as thou sayest, would learn humility towards God and His law from our low station, Provi-dence would not have forced us to bear it for such a long period. Only the smallest portion thinks thus. Yet the majority may expect a reward, because they bear their degradation partly from necessity, partly of their own free will. For whoever wishes to do so, can become the friend and equal of his oppressor by uttering one word, and without any difficulty. Such conduct does not escape the just Judge. If we bear our exile and degradation for God’s sake, as is meet, we shall be the pride of the generation

24 Halevi, Kuzari I, 113 (ed. Hirschfeld 78; ed. Korobkin 50f.).


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which will come with the Messiah, and accelerate the day of the deliverance we hope for.25

The Chaver, the Jewish representative in Halevi’s dialogue, admits here that most of his contemporary fellow Jews fail to accept their political condition as the supreme fulfillment of their religious desires. Achieving power at some point in the future, they might even become similar to their neighbors. If left in their hands, they would wish to become just as powerful as the Christian and Moslems. According to Abelard, in line with the main Christian doctrines, it is divine providence as manifest throughout human history that proves the fallacy of the Jewish faith. However, according to Halevi, it takes divine providence to get an individual or a collective out of the chaotic and arbitrary stream of history, and this divine providence actually protects the Jews from themselves. The only moral-political act left for the Jew to take under such condition con-sists in the negative act of refusal – the refusal to utter the single word that would transfer him into a different religio-political realm. But in Halevi’s anti-intentionalist morality such a subversive act of resistance bears a positive moral significance. Precisely in the dispersed existence of the Jewish people among majority cultures, the political and the moral converge, i. e. not on the inten-tional level of the individual moral agent but on the communal level of the individual who remains faithful to his community. Such an exilic ethic is not possible for a member of the majority community.

The meta-ethical character of the above-mentioned discussions is not a co-incidence. Unlike some of his Parisian contemporaries, such as Andrew of St. Victor, Abelard has no novel hermeneutic method regarding the detailed inter-pretation of Mosaic law. His interpretation is mostly allegorical with allegory serving him chiefly in order to move from the political to the moral universal realm. By contrast Halevi, though his polemic is aimed among others also against the Karaites with their strict literal interpretation of Pentateuchal law, adopts an interpretation that is not philosophic-allegorical but traditional rab-binical, i. e. reading rabbinical law as “Oral Torah” delivered by tradition. When moving towards Jewish and Christian traditions of the 13

th century, we shall easily notice the radical change among both Jews and Christians concerning the literal interpretation of political events as well as the philosophical allegorical interpretation.

25 Halevi, Kuzari I, 115 (ed. Hirschfeld 79).



III. Maimonides and the Late Scholastics

It is important to note that Abelard, a central figure of his time, does not reveal any acquaintance of or any direct encounter with real Judaism of his time. The discussion which I developed between Abelard and Halevi is based on a pure reconstruction of parallel assertions. I admit that such a construct may appear weak considering the fact that at the time the philosophic language and systems shared in common by the Andalusian-Arab Jew and the French-Latin Christian were rather limited.

This situation is totally different in later scholastic encounters with the teach-ings of Maimonides, based on direct acquaintance with at least some of his writings and on common philosophic terminology. A full description or analy-sis would require delving into extremely rich and varied materials.26 In the following I will limit myself to a conceptual framework in the context of the current discussion.

Christian interpretations of the Old Testament and of contemporary Judaism as a representative of its primary intention were always shifting between two poles or two dangerous heresies: The total separation between the two testa-ments, achieved through radical negation of the old revelation, from Marcion to the Cathars; and the phenomenon of so-called Judaising.27 Beryl Smalley suggested that the Cathar challenge of the Catholic interpretation of the Bible motivated the scholastic reception of Maimonides.28 The complex reception of Maimonides’ work among the scholars in the first half of the 13

th century is indeed heavily connected to the (theological) discussion of law. The first docu-mented written translation from the Guide, by an anonymous translator, is taken from Maimonides’ discussion on the reasoning of Mosaic Law in Guide III. The full translation of the Guide during the 1240s was accompanied by a translation of Maimonides’ Book of Commandments, and in the Errores Philoso-

26 The study of Görge Hasselhoff portrays the full range of this reception in its different realms: astronomicus, exegeticus iudaicus, philosophus, Hebraeus, medicus; see Görge K. Hasselhoff, Dicit Rabbi Moyses. Studien zum Bild von Moses Maimonides im lateini-schen Westen vom 13. bis zum 15. Jahrhundert. Würzburg: Königshausen & Neumann, 2004.

27 Amos Funkenstein, “Gesetz und Geschichte: zur Historisierenden Hermeneutik bei Moses Maimonides und Thomas von Aquin”. In: Viator 1 (1970), 164.

28 Smalley, “... on the Old Law”, 22f.


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phorum Maimonides’ philosophic work is systematically referred to under the title De expositione legis.

Contrary to Halevi’s or to Abraham ibn Daud’s concept of History and Divine Providence,29 Maimonides’ strategy for strengthening rabbinical authority, espe-cially against competing revelations, seems to depend less on the chain of Kab-balah qua oral transmission of the true interpretation of law, and more on the superiority of its basic constitutional level, i. e. on the supremacy of the Mosaic law itself. This original written law is taken to be the supreme intentional act of the prophet lawgiver or of the future messianic monarch, both regarded as the creative agent of human morality and human history through human social in-stitutions.30 This supreme individual stands in close relation to the God of cre-ation, whom he imitates in his political action, as described in the final chapter of the Guide (III, 54), based on Maimonides’ definition of the Biblical notions hesed (loving-kindness/misericordia), mishpat (judgment/iudicium) and sedaqah (righteousness/iustitia).31 While for Halevi the significant subject of history is the (Jewish) collective and for Abelard the archetypal as well as the concrete human individual, for Maimonides (the pupil of Alfarabi) the subject is the Monarch, either the prophet of the Guide or the messiah-King of the Code.32

29 Abraham Ibn Daud, The Book of Tradition (Sefer Ha-Qabbala). Ed. by G.D. Cohen. Philadelphia: Jewish Publication Society of America, 1967, 3,1–12; 99,125–101, 139.

30 On the political interpretation of human perfection according to Maimonides see Lawrence V. Berman, “The Political Interpretation of the Maxim: The Purpose of Philosophy is the Imitation of God”. In: Studia Islamica 15 (1961). Menachem Kellner, Maimonides on Human Perfection. Atlanta: Scholars Press, 1990, 8–10, 13–39, criticizes the political interpretation of Berman and others because it exaggerates the political element in human perfection as opposed to the religious. However, he does not ne-gate the content of the political interpretation itself. See also Ehud Benor, Worship of the Heart: A study of Maimonides’ Philosophy of Religion. Albany: State University of New York Press, 1995, 41–61; Howard Kreisel, Maimonides’ Political Thought: Studies in Ethics, Law, and the Human Ideal. Albany: State University of New York Press, 1999, 10–50; Lorberbaum, Politics and the Limits of Law, 30–42.

31 For the English translation of these terms see Moses Maimonides, The Guide of the Perplexed. Transl. by S. Pines. Chicago: The University of Chicago Press, 1963, III, 53 (630); for the Latin see Rabi Mossei Aegyptii Dux seu director dubitantium aut perplexorum. Ed. Justiniani. Parisiis 1520, III, 54 (fol. CXIIr).

32 David R. Blumenthal, Philosophic Mysticism: Studies in Rational Religion. Bar-Ilan: Bar Ilan University Press, 2006, 73–95 (‘Maimonides’ Intellectual Mysticism and the Su-periority of the Prophecy of Moses’).



Both Maimonidean models are well known in Latin literature during the 13

th century, although they tend to appear in two different contexts (which oddly enough seem to ignore each other completely). The first is widespread mainly among the university Theologians, especially among the Dominicans, the second is more popular in the context of the anti-Jewish polemic, espe-cially with Pablo Christiani and Ramon Marti, and through both subsequently with Dominican Apostates and polemicists.

Amos Funkenstein, more than any other modern scholar, indicated the deli-cate tension between the absolute and the contingent realm as expressed in Maimonides’ concept of human and divine law. Just as God creates the physical world ex nihilo with its immanent divine nomos and simultaneously integrates the mechanism of progress into nature as well as into major human social, epi-stemic and religious institutions (always in accord with each other), so also the just ruler constitutes his law according to the principle of accommodation.33 Thus, human law is clearly analogous to divine law but there is no identity between them. The just law accommodates itself to the nature of man as an individual and as part of a social community, but nevertheless does not derive directly from the cosmic order. There is no perfect law because there is no divine lawgiver.34 Laws are given by man who, in the best of cases, tries to imitate the laws of nature. But at the same time the only valid standard by which to measure the moral value of any given law is the natural one, because the final telos of any law is the imitation of the divine qua nature. In that sense I fully agree with Howard Kreisel’s assertion, that “from the standpoint of ‘origins’, human law is no less divine than divine law, and divine law is no less human than human law [emphasis Y.S.]”.35 It is no coincidence that Maimonides’ fam-

33 See Funkenstein, “Gesetz und Geschichte,” 162f.: “Zweifellos aber ist im dritten Teil des More Nebukim ein Höhepunkt historischer Argumentation erreicht worden, des-gleichen man in der mittelalterlichen Literatur selten findet. Nicht nur darum, weil Maimonides vom Akkommodationsgedanken Gebrauch macht, sondern weil er in der konsequenten Ausführung dieses Prinzips zur Einsicht gelangte, dass die Rekon-struktion des Vergangenen die Rekonstruktion eines gänzlich fremd-gewordenen Teiles der eigenen Kultur bedeutet. Darin hat Maimonides, vielleicht als einziger im Mittelalter, ein Grundprinzip der historischen Kritik seit dem 16. Jahrhundert vor-weggenommen und beeinflusst.” Also idem, Theology and the Scientific Imagination from the Middle Ages to the Seventeenth Century. Princeton: Princeton University Press, 1986, 213–271.

34 Funkenstein, “Gesetz und Geschichte”, 153.35 Kreisel, Maimonides’ Political Thought, 11.


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ous, some would say pre-Spinozian, equation of the natural with the divine occurs within his discussion of law in Guide III, 32, where Maimonides claims that: “If you consider the divine actions – I mean to say the natural actions [...].”36 This is the point where the notion of sedaqah/iustitia enters the discus-sion. One who lives according to a just law, i. e. according to a law that maxi-mally imitates the laws of nature, gains his natural reward in a manner which is absolutely and materially immanent to the law itself.

This is exactly the principle that evokes the criticism of Thomas Aquinas and the more detailed criticism of (Pseudo-)Aegidius Romanus. During the 1270s Aegidius Romanus or perhaps, as Görge Hasselhoff strongly claims, some other author,37 composed his corrections of Pagan and Arab philosophers under the title Errores philosophorum.38 The two last chapters, 12–13, are dedicated to the errors to be found in Maimonides’ Guide, to which he refers systematically under the title De expositione legis. The writer counts 11 such errors in chapter 12 which he then summarizes in 15 articles in chapter 13. The last five may be regarded as relating to Maimonides’ anthropological naturalism, concerning prophecy (10), miracles (11), divine providence (12), free will (13), and human natural sufficiency for achieving salvation (14). The 15

th article is the most rele-vant to the present discussion. It reads as follows: “Quod simplex fornicatio non erat peccatum mortale ante dationem legis”39 (that simple fornication was not a mortal sin before the giving of the law). This was explained in more detail in the previous chapter (art. 11):

36 Maimonides, Guide, 525 (Dalalat al-ha’irın (Sefer more nevukhim) le-rabbeinu Moshe ben Maymon. Ed. By Y. Yoel. Jerusalem: Azriel, 1931, 383, 20); the Latin translator, how-ever (ed. Iustiniani, III, 33, fol. 92v), strongly moderates these claims of Maimonides: “Cum intellexeris opera naturalia manifestabitur tibi ex ipsis pietas rectoris”; also Ray-mundus Martini, who quotes these chapters extensively (see note no. 45 below), chooses to begin his quotation with the second paragraph, ignoring the more radical formulation of Maimonides; Lorberbaum’s definition of Maimonides’ attitude toward philosophy and law – as that Maimonides “bases his theory of government on the premise that politics is natural and law divine” (Lorberbaum, Politics and the Limits of Law, 17) – should be modified on the basis of this naturalization of the divine realm. Lorberbaum himself acknowledges this later in his discussion, see ibid., 30–34.

37 To the authenticity of the work see Koch’s introduction in Aegidius Romanus, Errores Philosophorum. Ed. by J. Koch. Milwaukee: Marquette University Press, 1944, xxxiv–xxxvi; for the opposite claim see Hasselhoff, Dicit Rabbi Moyses, 189–191. Hasselhoff suggests a Spanish origin of the author.

38 Aegidius Romanus, Errores Philosophorum.39 Ibid., 66, 16–17.



Again he [Maimonides, Y.S.] erred in regard to human acts, holding that simple forni-cation is in no way a sin according to the natural law [nullo modo esse peccatum in iure naturali], but that there is sin in it only because it is prohibited [sed solum est ibi peccatum ratione prohibitionis]. But this is false because matrimony is part of the natural law.40

This summary of the Errores philosophorum may be taken as fair representation of major critical points raised by Albertus Magnus, and especially by Thomas Aquinas.41 However, the Guide may perhaps seem to contain a certain degree of inconsistency between the concept of law and other major theological topics: It seems that Maimonides, presenting a radical naturalistic view con-cerning divine revelation, prophecy, miracles, angelic nature etc. suddenly be-comes a radical conventionalist when turning to discuss matters of human law and its constitution.42

In my opinion Maimonides’ concept of law, just as his concept of human language and human science, is indeed dynamic, progressive and conventional, not implying any absolute sacred truth in law itself. Precisely because of that, and in the context of religious polemics against Christian and Moslem asser-tions, Maimonides must maximize the authority of Moses’ prophecy to a de-gree of absolute superiority above any other revelation, i. e. above that of Christ and of Mohammed, as the only means to guarantee and stabilize the Jewish political framework. However, according to Maimonides what stands behind Jewish laws, both the written as well as the oral Torah, is not God himself but the human agent with his highest possible attributes. Maimonides uses Aristo-telian epistemology in its Arab version in order to link the human mind to the divine intellect without giving up the absolute difference that remains between the two realms. In this sense Maimonides stands within the Rabbinical anti-revelation concept of law – “it is not in heaven (to be decided)” (lo ba-shamaim hi) –, however in a less democratic and more elitist and intellectual manner. It

40 Ibid., 64, 13–18.41 Who is probably the direct source of this paragraph in the Errores, see Thomas Aqui-

nas, Scriptum super libros Sententiarum magistri Petri Lombardi. Ed. by P. Mandonnet and M. Moos. Paris: Lethielleux, 1929–1947, lib. 4 d. 33 q. 1 a. 3 qc. 3 co: “Ad tertiam quaestionem dicendum, quod Rabbi Moyses dicit, quod ante tempus legis fornicatio non erat peccatum; quod probat ex hoc quod Judas cum Thamar concubuit. Sed ista ratio non cogit; non enim necesse est filios Jacob a peccato mortali excusari, cum ac-cusati fuerint apud patrem de crimine pessimo, et in Joseph necem vel venditionem consenserint.”

42 On Maimonides’ conventional concept of human political authority see Lorberbaum, Politics and the Limits of Law, 41–69.


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is the origin of Jewish law, not the establishment of its transmission, which constitutes the framework that can never be either replaced or destroyed, not even in the messianic era.

Here Maimonides’ position is very far from his Jewish predecessor Halevi (whose works he probably knew very well), with the latter’s understanding of the sacredness of the chosen collective as the only basis for the validity of divine law;43 from William of Auvergne, who, in the opening chapters of his De legi-bus, states very clearly that the legislator of the old law is God; and finally, also from his subsequent critic Thomas Aquinas who similarly emphasized the di-vine source of Mosaic law, but at the same time presented natural law as the final objective measurement for the validity of any concrete human law.

In the time that passed between William of Auvergne’s early discussion of law and later scholastic works, from the 1260s onward, the most important debate on the subject was probably the practical, juristic and theological dispu-tation that took place in Paris between 1240–1248 in which William himself together with many Parisian Professors of theology were involved. This was the indictment against the Talmud that originated in the list prepared by Nico-laus Donin for Pope Gregory IX in the year 1235.44 Article 24 of Donin’s list contains a direct attack against what he interprets as anti-revelationist Rabbini-cal decisionism, quoting the Babylonian Talmud, tract. Baba Metziaa 59b. At first glance, this critique could easily be identified with scholastic criticism of Maimonides’ positions.

Nevertheless, the gap between Maimonides and his scholastic rivals might be less acute as the distinction between the divine and the human legislator is very well demonstrated through the inner dichotomy immanent in biblical law according to both Maimonides and the Latin scholastics.

43 Halevi, Kuzari II, 56 (ed. Korobkin, 100f.): “Were it not for the Jewish people, the Torah would not have been given. Furthermore, Israel’s lofty status was not in Moses’ merit; to the contrary, Moses’ status was in the merit of israel. [...] God merely chose Moses as the vehicle to bring his goodness to the people. We are therefore not called ‘the nation of Moses’ but rather ‘the nation of God’ [...]”; see Yossef Schwartz, “Zwischen Philosophie und Theologie im 12. Jahrhunderts: Halevi, Ibn Daud und Maimonides”. In: The Relation between Metaphysics and Theology in the Philosophical Discussion of the 12th Century. Ed. by A. Fidora and A. Niederberger. Turnhout: Brepols, 2004.

44 Friedman, “Anti-Talmudic Invective”.



William was probably the first Christian theologian to adopt fully Mai-monides’ historical concept of law (whether or not he acknowledges the authorship of Maimonides himself is irrelevant here). In order to explain the rationale of Old Testament precepts he adopted the claim made by Maimonides, that the main purpose of the law was the abolition of idolatry. Later on this relativistic and pedagogical approach would be fully developed by Raymundus Martini in his Pugio Fidei adversus Maurorum et Judaeos.45 Raymundus quotes in great length the Hebrew translation of Guide III, chapters 31f. and 45. This historical anthropological claim also explains why the old law had to have an esoteric layer, known only to the few. Lex humana lequitur is a necessary prin-ciple, considering the miserable state of the Israelites at that time. This general scheme was further developed through the Maimonidean metaphor by Meister Eckhart in his prologue to Liber parabolarum Genesis.46 It remains in confor-mance with traditional Christian interpretation, according to which the old law has two levels of meaning: the implicit and explicit, or the literal and spiritual. These two levels reflect two levels of understanding at the time that the law was given. At the outset, only a small elite – the priests and the prophets – under-stood the law in its spiritual, i. e. Christological meaning.47 However, and as Augustine most clearly states in the context of Pagan teaching in his Contra academicos, this elitist, esoteric and implicit knowledge became explicit and popular at the moment of the incarnation of the logos.48 History itself may have a literal meaning, revealed to all people who witnessed the events, yet it may also have a different meaning, understood only by few contemporaries, that only later, from a historical perspective, becomes evident to everyone.

What these Latin theologians find both so attractive and so repelling in the teaching of Maimonides is the fact that he shares a very similar “Paulinic”

45 Raimundus Martini, Pugio Fidei Raymundi Martini OP Adversus Mauros, et Judaeos. Parisiis 1651, III D. III Cap. XII, n. 13 (631–634).

46 Yossef Schwartz, “Zwischen Einheitsmetaphysik und Einheitshermeneutik. Eckharts Maimonides-Lektüre und das Datierungsproblem des ‘Opus tripartitum’”. In: Meister Eckhart in Erfurt. Ed. by A. Speer and L. Wegener. Berlin et al.: de Gruyter, 2005.

47 Smalley, “... on the Old Law”, 17–21; 42–45.48 See Yossef Schwartz, “In the Name of the One and of the Many: Augustine and the

Shaping of Christian Identity”. In: Religious Apologetics – Philosophical Argumentation. Ed. by Y. Schwartz and V. Krech. Tübingen: Mohr Siebeck, 2004, 57–61; Gedaliahu A.G. Stroumsa, “Milk and Meat: Augustine and the End of Ancient Esotericism”. In: Idem, Hidden Wisdom. Esoteric Traditions and the Roots of Christian Mysticism. Leiden: Brill, 1996.


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pneumatic view concerning human history and divine law. However, in Mai-monides the dichotomy between the two is the result of an intentional ma-nipulation imposed by the ruler deriving from a paternalistic assumption con-cerning the capability of common people at a given historical moment to grasp the deeper meaning of the historical event. Therefore the difference between the two levels of meaning does not lie in the distinction between the old and the new law but between the political level of the law as viewed by the phi-losopher-lawgiver, and the personal level accepted by its subject, the believer-citizen. Yet if the law is to be considered perfect and just, the two levels must exist side by side. The direct and explicit meaning of the law leads to the per-fection of both the individual and the communal entity. The implicit telos of this directs the believer to the perfection of the soul. In comparison to such inner tension between the two levels of meaning, one can point to the di-chotomy suggested by Thomas in the Summa (I-II q. 98 a. 1), i. e. between two different systems of law: human law, which is directed towards earthly political goals, and divine law, which is directed towards eternal happiness.49

IV. Conclusion

The basic tension between the notions of law and justice in the Christian trad-ition was already present in the writings of Saint Paul,50 involving an ambiva-lent attitude towards the true value of the law. In the present discussion this fundamental tension between law and justice is presented generally through the theological notion of salvation versus the philosophical, moral and political no-tions of human perfection. Christian interpretation would often reject what seemed a legitimate Jewish elucidation of divine law, i. e. one that clearly separ-ates law (Torah) from justice (at least in its utopian dimension as universal sal-vation of man). Jewish interpretation either emphasized – through the notion of the “Chosen People” – the particularity of divine Heilsgeschichte, condemn-ing any human being who was not born a Jew; or developed a political theory of rulership, in which just law stands for the general good of mankind in ana-logy to the laws of nature.

49 Smalley, “... on the Old Law”, 60–63.50 Ed P. Sanders, Paul, the Law, and the Jewish People. Philadelphia: Fortress, 1983, 65–

68.



Indeed, in the above brief portrayal of divine and human law one can point out different relations between progressive attitudes and forms of conservatism. Maimonides suggested a multifaceted mechanism of progress and change with-in the legal system in order to avoid the need for a revolutionary replacement of the whole system of Mosaic law. His Christian critics demanded a much more radical change on the one hand but, on the other hand, protected the general framework of the two testaments through a universal, fixed and stable notion of natural law. One century earlier a thinker like Abelard was less con-cerned with such complexities. As I argued above, I can only assume that he was unaware of the existence of post-biblical forms of Judaism since nothing in his writings indicates any such knowledge.

When comparing different attitudes of Jewish, Christian and Moslem medi-eval thinkers, towards the classic problems of political philosophy, the differ-ences in viewpoints often tend to be reduced to their different philosophic sources. This would fit into the Leo Straussian differentiation between defini-tions: Arab political thought as “Platonic” versus Christian thought as “Aristo-telian”. Alternatively, one may refer to different insights by historic figures, such as the contradictory interpretations of the Sinai revelation by Halevi and Maimonides or the contradictory interpretations offered by Jews and Christians regarding the rationality of the lex vetus and of the true course of the history of salvation. All these interpretations may be correct yet they often prevent us from seeing the obvious, i. e. the fact that all these thinkers made their claims primarily in relation to their own contemporary situation. Ever since Paul, interpreting living human beings as archaeological remains of past times has been a popular western praxis. The tension between past and present is the ten-sion between the implicit and explicit and between absolute truth and its living contradiction. Both Abelard and the theologians of the 13

th century speak about the Biblical Jew when confronting his living descendants. However, by the time of the late scholastics this living example of the Jew had been enriched by new, previously unknown alternative images of Judaism.

The same can be claimed about Jewish authors. Speaking about the past or about the utopian messianic era51 became a common locus in which actual

51 Gershom Scholem, “Towards an Understanding of the Messianic Idea in Judaism”. In: Idem, The Messianic Idea in Judaism. New York: Schocken, 1995, 3: “conservative, restorative, and utopian”. On the difference between Maimonides’ messianic and uto-pian visions see Lorberbaum, Politics and the Limits of Law, 77–89.


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political problems could be discussed. Maimonides can speak about Moses as a lawgiver who faces the idolatry that spread among the Israelites at that time; but he is no less preoccupied with the form of idolatry that flourished among the common people of his own community, which he confronted with his own authority and legitimacy as a lawgiver.

Both Halevi and Maimonides are occupied with the dominant religions of their times. Their alternative solutions to the problem of revelation would continue to appear throughout Jewish history and would evoke Christian European reactions that shifted between empathy and hostility, fascination and criticism. While doing so, European thinkers developed and revealed their own structure of legitimacy. It is mostly here, in the theological realm in gen-eral and in the inter-religious polemic in particular, that the detailed discussion of legal matters develops into a philosophy of law and of legal legitimacy.

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Divine Law and Human Justification in Medieval Jewish-Christian Polemic