The Integrity of Torah
The Spirit of Jewish Law.
by George Horowitz.
Central Book Company. 812 pp. $12.50.
Interest in Jewish law continues to mount. With the establishment of Israel, many Zionists are pondering the viability of historic Jewish jurispudence in a modern state. In America, the basic differences between Orthodox, Conservative, and Reform Judaism turn principally around their position on Jewish law. Even non-Jewish historians of legal and political theory are growing more curious; Hegel’s view that the early Asiatic peoples had no aptitude for legal and political thought is being seen for the drastic simplification it is.
George Horowitz’s one-volume handbook on Jewish civil and criminal law is a recent contribution to the subject. A practicing lawyer himself, and writing as it would appear for lawyers, he deals mainly with family law, torts, contracts, property, inheritance, and crime; the major part of the Halachah, concerning ritual and ceremonial observances, festivals, dietary laws, sacrificial offerings, the laws of agriculture and animal husbandry, the laws of purity, etc., is omitted from the scope of his study.
Mr. Horowitz deserves credit for the considerable research he has done, and for his organization of the materials, which was as formidable a task as the research. But the book is apologetic, and for this reason too often misses the spirit of Jewish law at which it aims; indeed, its limitation to civil and criminal law precludes any possibility of grasping that spirit.
Undertaking to defend “Rabbinism” against Christian vilification, Mr. Horowitz cites a number of rules to show how the humanity of the Rabbis prompted them to suspend apparently harsh or cruel Biblical laws. The Rabbis presumably did for the Bible what the disciples of Jesus did—together they saved us from the Old Testament fury! But to defend Rabbinism at the expense of the Bible is to forfeit more than one gains. For the Oral Tradition does not abrogate the Written Law, it fulfills it, and therein lies the spirit of Judaism.
I cite one example. The Bible provides for the “trial by ordeal” of a woman accused by her husband of secretly meeting with a paramour. The suspected adulteress is brought before a priest who gives her a. potion consisting of water in which there has been placed a piece of parchment inscribed with God’s name. If she is guilty, her erogenous areas swell and betray her; if innocent, nothing happens. Mr. Horowitz thinks the Rabbis acted to suspend this ordeal by requiring the husband, too, to be chaste before a wife might be subjected to it. As the Rabbi who instituted this revision was a contemporary of Paul, one might say that the two together rescued adulteresses from Biblical brutality!
But how did the Rabbis understand the ordeal as described in the Book of Numbers? First, they saw the Torah as instituting a legal process to forestall and prevent the killing of wives and alleged paramours in the name of a higher law—the Torah ordered the cause brought before the priest. Second, the Rabbis saw the Biblical command as intended to allay the husband’s suspicions and thereby restore domestic tranquillity. This is made abundantly clear when the Talmud likens the “ordeal of jealousy” to the “ordeal of oath,” which played an important part in Jewish law generally. Unlike the ordeal of oath in other legal systems, the Bible provided for the oath only as a means to clear a defendant. When the plaintiff’s proof was inadequate, but sufficient to create suspicion, the defendant could clear himself by taking an oath. In the case of the “ordeal of jealousy,” the wife, when brought to the priest, was urged, if she were guilty, to confess. Then if her husband divorced her, she forfeited only her property rights. If guilty, she would indeed confess—so awesome were the waters of bitterness and the accompanying oath made to appear. However, if she were innocent she had nothing to fear, and by drinking the waters she would be restored to her husband with God vouchsafing for her fidelity.
In fact, the ordeal was rarely administered, and long before the Christian Era it was suspended. Husbands apparently had become more civilized. However, the “spirit” that Mr. Horowitz misses altogether, we find in the concern of Jewish law with the ability of the wife to clear herself of unfounded suspicions.
In any case, Mr. Horowitz cannot defend Rabbinism against Christian depreciation in a book that does not deal with ritual observance, for it is in connection with these laws that Christians have made their chief attack on the Pharisees. To achieve his goal, Mr. Horowitz would have needed, for example, to explain how the legalistic approach to the Sabbath did not destroy the physical and philosophical value of the day; or how “legalism” did not subvert the devotional character of prayer; or how the detailed prescriptions with regard to sacrificial offerings induced spiritual living.
Mr. Horowitz’s self-imposed limitation of his work to civil law makes it almost impossible to present even a Jewish philosophy of property, despite the fact that the bulk of the book deals with property law. Such a philosophy Would require a much more exhaustive analysis of the institution of the Sabbatical year, which Mr. Horowitz treats meagerly because it relates more to religious than to civil law. However, to understand the Jewish insistence on ultimate ownership’s being vested only in God, man’s role being restricted to use and not dominion, requires, at minimum, not only a study of the three tractates of Talmud most quoted by Mr. Horowitz (the Babas), but also the tractates pertaining to vows, the Sabbath, the Sabbatical year, and the ritualistic “uncleanness” of things—so far afield must one go from civil law in order to arrive at the “spirit” of Jewish law with respect to the nature and justification of property. The only section concerned with property in which one glimpses the spirit of Jewish law is where Mr. Horowitz, flouting his own limitation, digresses to discuss a Jew’s obligations to the poor.
Grasping the spirit of Jewish law often requires not only mastery of the entire corpus of the tradition, but also of its dialectic. For example, the Deuteronomic “Law of the Beautiful Captive” provided that if a soldier should take a woman captive, he might, under certain circumstances, and after a compulsory waiting period, marry her. Superficially, it would appear, as Mr. Horowitz suggests, that the law was intended to prevent licentiousness and rape on the battlefield. But Talmudic sources show that the law chiefly aimed at preventing religious fanatics from killing lustful soldiers. By permitting soldiers to marry captive women, the Torah deprived fanatics of a pretext for indulging their zeal. The Law thus sought to balance two interests—the protection of chastity, and also of its own due process.
Mr. Horowitz gives almost no account of the divergence of opinion that is to be found in the Talmud with respect to almost every problem. This, too, is a bar to one’s grasp of the spirit of the Law’s development. It is not correct, for example, to assume that the authorities favored the freeing of Gentile slaves; while there is some support for that, there is also evidence of opposition to the manumission of Gentile slaves, as it automatically transformed the slave (who already had partial status as a Jew) into a full-fledged Jew, and Jews did not crave this increase in their numbers. Mr. Horowitz, as a liberal, is apparently troubled by some of the Talmudic attitudes towards non-Jews.
A system of jurispudence that is theocentric develops along altogether different lines from one that is rooted only in history. Its amending procedures are usually slower, but its ethical insights are often bolder and more profound. Adequately to elucidate the spirit of Jewish law requires the integration of all its parts, its theology and ritual with its civil and public law. Mr. Horowitz has not done this; but he has assembled a great deal of material that may help comparative analysis.
One more word. Mr. Horowitz’s appendices and indices merit special commendation. If only more writers on the subject—particularly Hebrew writers—followed his example!