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Education is improving the lives of others and leaving your community and world better than you found it.” -Marian
Wright Edelman
THE DOCTRINE OF NATURAL LAW IN
MEDIEVAL JEWISH THOUGHT
By: Jose Faur
To Dr. José Mair Benardete, in an expression of
endearment and respect
PROLOGUE
In the present study we shall expose Medieval Judaism’s
posture in regards to natural law.
Because this doctrine plays a very important role not only
in scholastic philosophy, but also in Roman jurisprudence
of the Classical period, we shall endeavor in the first part
to analyze this doctrine in the Talmud, which is the source
of halakháh or Hebrew jurisprudence.
In addition, since the spiritual foundations and constitutive
elements that comprise Judaism are found in the
halakháh, only after having searched Talmudic literature
can we come to know the traditional Jewish position
towards natural law.
In the remaining parts of this work we shall present the
positions of Se’adya Gaón, Bahye ibn Paquda, Yehudá
haLeví and Moses ben Maimón, who have amply treated
the subject of natural law and exerted the most influence
in the philosophical thought of their coreligionists.
Because the subject of natural law has been the object of
numerous interpretations, it would be convenient to clarify
that what we discuss here is the way Christian scholastics
understand it, as defined by Thomas Aquinas1. When
speaking of it in its legal aspect, we refer to it as the usual
concept found in Roman jurisprudence in the Classical
period.
1 Natural law is the participation of eternal law in the natural
rationality of man.
1
The subject that we treat here is of singular importance
inasmuch as Judaism and Christianity disagree on such a
basic point.
1. THE ABSENCE OF NATURAL LAW IN RABBINIC LITERATURE
Despite the fact that natural law plays a most important
role in Greek philosophy, Roman jurisprudence, and
scholastic philosophy, it is completely ignored in all of
Rabbinic literature. It is never said in the Mishná or in the
Talmud that any law or obligation is derived from natural
law. The only source of morality that rabbinic literature
recognizes is positive law, the word revealed by God or
Toráh, be it in its written form, the Pentateuch, or in its oral
form, Toráh shebe‘al pé or Tradition. Prof. G. F. Moore
has repeatedly pointed this out. In his work Judaism2 he
emphasizes time and again that for Judaism the only
source for morality is the revealed law, not natural
morality. As a consequence, wanting to define Judaism as
a moralist religion is the aim of modern apologetics, not
historical observations.3
Jewish ethics is essentially nomist or legalist: the Law of
Moses, and only that Law, is the source of good and evil.
In this there is a radical difference between Jewish and
Christian ethics, given the fact that to certain
commandments of the Toráh, for example the Ten
Commandments, Christians attribute an intrinsic
goodness. For Christians, even though God might not
have imposed them as positive law, they oblige because
of natural law. As rabbinic literature does not recognize
natural law as a constitutive norm for intrinsic morality,
that human acts might conform to such natural law does
not make them good, intrinsically good, or that they might
violate such natural law does not make them evil,
intrinsically evil.
The absence of natural law becomes evident in certain
halakhic and logic concepts in rabbinic literature.
2 GEORGE FOOT MOORE, Judaism, 3 vols. Cambridge
(Mass).1927-1930.
3 Ibid. vol. II, pp. 3, 15, 70 and pages to follow, especially,
vol. III, p. 167.

Rabbinic theology, accommodating itself to the
Pentateuchal text, does not admit a “formal” distinction
among the diverse commandments of Mosaic Law:
“Formally” all commandments – the moral, ceremonial,
and judicial – are equal, of the same category, and they
oblige only because they were revealed in the Toráh and
are sanctioned in the same manner.4
Since none of the commandments of the Toráh, not even
those considered moral, are imperative in natural law,
these do not obligate in a universal way. According to
rabbinic theology, only the Jews were graced with the
privilege, and have the moral obligation, to perform the
commandments of the Toráh.5
The only universal law that rabbinic theology knows, and
which links both Jew and non-Jew, is the Noahide law that
is a positive law given by God, not natural law.6 Even
though rabbinic tradition agrees that the Noahide
commandments number seven, it is divided over what
commandments these are.7 The most accepted opinion is
that of the Tosefta,8 according to which those
commandments are: the prohibition of idolatry,
blasphemy, homicide, robbery, certain sexual relations,
eating flesh from a live animal, and the obligation to
establish courts of justice with the end to supervise those
laws.9
As we can glean, despite the fact that these
commandments are universal, they do not belong to
natural law, especially the one that forbids eating flesh cut
from a live animal. On the other hand, incest, whose
prohibition is from natural law, is not universally forbidden.
According to Noahide law the only incest that is forbidden
4 Cf. TB Qiddushín 39b; ISAAC ABARBANEL, Rosh Amaná,
cap. 23.
5 TB Sanhredrín 59a, MT Melakhím, VIII, 10. Therefore, if a
non-Jew were to observe the Mosaic commandments
because he considers them obligatory, it will lack merit
before God and a sin shall be imputed to him for having
appropriated commandments that are an exclusive
patrimony of the Jewish people, cf. TB Sanhedrin 58b-59a;
MT Melakhím X, 9. The only case when a non-Jew can
observe a Mosaic commandment is when he performs it
with the objective to obtain divine reward, not because he
considers it binding, cf. MT Melakhím X, 10 and
Maimonides commentary to the Mishná Hullín, chap. VII.
6 According to Philo of Alexandria, the Noahide precepts
are, in regards to their aim, identical to natural law; see
H.A. Wolfson, Philo, 2 vols. Cambridge (Mass.). 1948, vol.
II, pp. 183-187.
7 Cf. TB Sanhedrin, 56a-60a.
8 Abodá Zará, chap. 8 (0); TB Sanhedrín 56a, 74b.
9 MT Melakhím, IX 1: cf. Moses ben Nahman in his
commentary to the Pentateuch, Gen. 34, 13.
2
is that of the mother, the wife of the father, and the uterine
sister.10
Just as rabbinic literature does not know natural law
neither does it know natural reason. According to rabbinic
logic, natural reason cannot define, deduct, or determine
the commandments of positive law. Natural reason can
only explain to us, help us to understand, the
commandments of positive law, but, note this well, this
explanation does not oblige or form part of the revealed
law. Therefore, while for Christians many detailed
obligations are deduced by moralst principles via the
natural logic of the divine positive precepts or by natural
law, for normative Judaism the only authority with the
power to define the divine positive commandments is the
oral Tradition or Toráh shebe‘al-pé.11
The above-mentioned departs from the hermeneutic rules
used in rabbinic literature which are not authoritative if
they do not come accompanied by the Tradition that
sanctions them.12 The rabbis never considered these
norms as logical rules with which to infer laws or deduce
details from the text of Sacred Scripture. According to
rabbinic mentality, the hermeneutic norms they utilized
were not more than expositive rules that served to expose
laws or details known by Tradition. As Prof. Saul
Lieberman has demonstrated, in this aspect the rabbis
emulated the magistrates of the ancient Middle East.13
This does not implicate that the hermeneutic rabbinic rules
lacks all “logic.” Eusebius, for example, confirms that the
Hebrews possess their own system of logic, which is
10 TB Sanhedrín 58a-b; MT Melakhím, IX, 5; cf. TB
Yebamót, XI, 2. Therefore, for example, a non-Jew could
have sexual relations with his non-uterine sister (Gen. 20,
12), or with his daughter, as did Lot without having being
chastised.
11 About the authority of Tradition see Judaism, vol. 1, pp.
251-262. The existence of Tradition is reflected in several
Biblical passages and in the Hellenistic Jewish literature:
Cf. II, ALBECK, Introduction to the Mishna (Heb.). Jerusalem
5720-1959, pp. 3-24. The classic opus regarding this
subject is Matté Dan, written by the distinguished rabbi
DAVID NIETO in Hebrew and Spanish; our quotes proceed
from the bilingual edition of London, 5474-1714. The
guardians of Tradition are the “elders” – the sages and
judges of Israel – of whom the Law ordains to obey (Deut.
17, 8-13), a basic commandment in Judaism (MT Mamrim,
I, 1), which is at the same time an article of faith (Rosh
Amaná, chap. 16).
12 TB Pesahím, VI, 1 (cf. Saul Lieberman: Hayerushalmi
Kiphshutó, Jerusalem, 5695-1934, pp. 206-467); TB
Sanhedrin 51b; Maimonides in Sefer haMiswot., Principle
II, and in his introduction to the Mishná: Matté Dan, III, 159-
160 fol. 87.
13 Hellenism in Jewish Palestine, New York, 5711-1950,
pp. 58-68. A similar posture is found in Matte Dan, II, 166.
fol. 50.
superior to Greek sophism.14 But the rabbis never
ascribed those norms to be from nature or consider them
authoritative if they were not supported by Tradition.
The closest thing to natural reason that rabbinic literature
recognizes is sebará (lit. “opinion”), which is close to
common sense. But the rabbis never attributed to sebará
the authority that the Roman jurists give to natural law. In
last instance, sebará, like the rest of the hermeneutic
norms, can only expose what is known by Tradition, but
cannot interpret the text of Sacred Scripture according to
whim, nor infer new commandments or obligations, much
less to oppose what is known by Tradition. From this we
learn why, given that rabbinic tradition does not consider it
licit to consult a case with a rabbi after another rabbi had
decided the case; if such decision is not supported by
Tradition. But if it was derived by sebará, it is considered
licit to consult the same case with another rabbi and
reverse the decision.15
This negative attitude of traditional Judaism towards the
doctrine of natural law and reason is explained in part,16
because the said doctrine has its origins in Greek
philosophy. We should not be surprised therefore that
Judaism, considering itself a revealed religion, completely
ignores this doctrine. It is important to remember that
despite Hellenistic culture being deeply implanted in
Palestine, as recorded in Greco-Jewish documents and
inscriptions,17 like all the numerous Greek terms dispersed
in all of rabbinic literature, such Hellenization, as pointed
out by Prof. H. A. Wolfson, never took place in the
philosophical arena. The terms that in Greek literature are
used in a philosophical sense are never employed in
rabbinic literature in such a sense. Neither do we know of
the use of any Greek philosophical term by the rabbis.18 In
a recent study about Greek influence in Palestine, Prof.
Saul Lieberman points out that there is not a single Greek
philosophical term in all of ancient rabbinic literature.19 He
also shows that νόµος αγραφος in the Palestinian
14 Hellenism in Jewish Palestine, pp. 57-58, footnote 83.
Cf. Matté Dan, III, 161-189, ff. 87-96.
15 TB Hullín, 44b. Cf. MOSES ISSERLES: Shulhan ‘Arukh
Yore De‘a, CXVI, 7 y CCXLII, 31: TB Nazir 39a: Zebahim
96, b: Hiddushé haRishbá leMséket ‘Abodá Zará.
Jerusalem 5726, pp. 7-8.
16 Vide infra, section 5.
17 The recently discovered letters of Bar Kozeba show that
in Palestine Mishnaic Hebrew, Aramaic, and Greek were
spoken. DIÉZ MACHO wrote an excellent study about this
subject: La lengua hablada por Jesucristo, Buenos Aires,
1955.
18 Philo, vol. 1, p. 41.
19 “How Much Greek in Jewish Palestine?” Biblical and
Other Studies, Cambridge, 1963, p. 30.
3
Talmud20 does not mean “natural law,” as Prof. I. F. Baer
maintains.21
2. THE DOCTRINE OF NATURAL LAW IN THE WORKS OF
SE’ADYA GAÓN AND BAHYE IBN PAQUDA
From the dogmatic point of view, the Jewish negative
posturetowards Greek philosophy persisted through all the
middle Ages. Halakháh was considered the only
constitutive element for morality.22 Nonetheless,
historically it is not precise to affirm that Medieval Judaism
did not recognize more implicit values within the halakháh.
Especially after the conquest of Babylonia by the Arabs,
and the establishment of the Karaite sect, diverse
philosophical concepts strange to Judaism and sometimes
– as we will show later – contrary with its halakhic
foundations, penetrated the Hebrew mind and served to
modify – or to reinterpret and give a new modality – to
traditional Jewish concepts.
Se’adya Gaón introduced the concept of natural law and
reason into normative Judaism. As the previous section
shows, Se’adya Gaón could not have found this concept
in rabbinic literature. The doctrine of natural law and
reason by Se’adya has its origin in the Arab and Karaite
philosophical and theological treatises of his time. In order
to truly appreciate Se’adya’s philosophical position and
that of the rest of Jewish thinkers in regards to natural law
and reason, it is necessary to offer a slight sketch of the
role that this doctrine played in Arab and Karaite theology.
According to orthodox Mohammedanism, the hadith, or
the orally transmitted sayings of Mohammed, is the source
of sunna, or religious legislation.23 Given the numerous
hadith that circulated since the first century of the Hégira,
many faithful began to doubt the authenticity of
Mohammed “sayings.” Over time, the number
Mohammed’s “sayings” increased to alarming levels, until
20 Rosh haShaná, I, 3, 57b. The correct text of the cited
phrase is found in L. GINZBERG; The Yerushalmi Fragments
of the Genizáh, New York, 1909, p. 145.
21 “How Much Greek in Jewish Palestine?”, pp. 128-130. It
is important to note that the Talmudic passage (TB Erubín
100b), which affirms that if God had not revealed the
Toráh, one could learn certain norms of conduct from
beasts, it does not allude to the natural law of the
scholastics as CHAIM TCHERNOWITZ maintains: Toledoth Ha-
Holka, vol. 1, New York, 1945, p. 158, but only that there
are certain norms of conduct that are common to man and
beasts, cf.. I, Husik, “The Law of Nature, Hugo Grotius, and
the Bible,” Hebrew Union College Annual, II (1925), p. 391.
22 LEO STRAUSS: Persecution and the Art of Writing,
Glencoe (Illinois), 1952, p. 19.
23 The concept of hadith has been explained by the
eminent Arabist L. GOLDZIHER, Vortensungen über den
Islam, Heidelberg, 1910, chap II. Our quotes and
paginations proceed from the Hebrew edition, Jerusalem,
1951.
the second century of the Hégira there rose the
mu’atazila, or “separatist,” sect, whose objective was to
put a stop to those “sayings” and stripped them of any
authority.
Since the mu’atazila sect does not acknowledge the
supreme authority of the hadith, they had to formulate the
principle that the ‘aql, or natural reason, is the supreme
authority in questions of religion.24 Even the Creator is
conditioned and subjected to the decisions of the
Supreme Justices and, as a result, cannot act freely:
Divine behavior and its manifold activity is determined and
“necessitated” by reason or justice.25 According to
mu’atazila theology, the norms of justice and the precepts
that God revealed to His prophets and messengers are
nothing more than rational precepts and laws contained in
the supreme reason and justice.26 The mu’atazila sect
therefore acknowledges natural law. Good and evil
objectively exist in and of themselves and are not the
result of divine legislation. From here the obligations of the
precepts contained in rational law precede and are
independent of revelation.27 Since the mu’atazila sect
admits natural law, it also admits the function of natural
reason, and as a result it accepts the al-ra’y, opinion, and
the al-qiyas, analogy, as sources for the al-fiq, religious
jurisprudence.28
There is no doubt that the concepts of natural reason and
law, which have an important role in Karaite treatises,
proceed from the mu’atazila doctrine that we just
explained. Since antiquity the similarities of religious ideas
have been noted between the mu’atazila sect and of the
Karaites.29 Such similarity of religious concepts has been
object of an excellent study by Prof. A. S. Yahuda.30 Both
sects, for example, reject the authority of tradition over
morality and religion and adhere to the literal meaning of
their respective sacred texts. Since the Karaites do not
admit the authority of tradition, they had to accept ‘aql as
authority and criteria to interpret the text of Sacred
Scripture and define their precepts. From here we get the
exaggerated rationalism that is patently clear in Karaite
24 Vortensungen, chap. III, p. 75.
25 Ibid., pp. 77-78.
26 Ibid., p. 79.
27 Cf. CRAFIT CHEBATA, “Logique juridique et droit
musulman.” Studia Islamica, XXIII (1965), Paris, pp. 7,10,
11.
28 Cf. L. GOLDZIHER, “Fikh,” Encyclopedia of Islam, London,
1927, vol. II, pp. 103-4.
29 In an very interesting apologetic treatise, whose
fragments were discovered and published by J. MANN, “A
Polemical Work Against Karaite and Other Sectaries, J. Q.
R. XII (1931), pp. 123-150, Karaites are accused of
imitating the mu’atazilaes (140). Cf. M. VENTURA: La
Philosophie de Se’adya Gaon, Paris, 1934, p. 66 and
pages to follow.
30 ‘Eber we-‘Arab, New York, 5706-1946, pp. 151-164.
4
treatises.31 It is worth noting that Karaites also admit ra’y
and qiyas as a source of jurisprudence.32
Once we have established the role natural law and reason
played in mu’atazila and Karaite theology, we can expose
the concept of natural law and reason in the thought of
Se’adya Gaón. Se’adya mentions rational law in his
commentaries to the Bible33 and his philosophical treatise
Kitab Al-’Amanât wab-l‘tiqadât.34 According to this thinker,
the Mosaic laws proceed from four universal imperatives
of reason (wayŷbat al-‘aql al-kalliyyât). At the same time,
the Mosaic laws are divided in rational laws (saraye‘ al-
‘aqlayât), and the revealed laws (saraye‘ al musma‘yât).
The so-called rational laws were implanted by God in
natural reason (‘aql) of man. In the following passages we
translate an Arabic text where Se’adya develops this
concept:
“After having finished with this preliminary observation I
say, as an introductory title, that our blessed Lord has
made us know, through the words of his prophets, that He
has a Law so we can serve Him, whose commandments
He prescribed, and to which we have the duty to observe
and perform with honesty…
Thereafter we discover that the intelligence (al-nazr)
prescribes that we are to be commanded (by God) and
that we were not to be abandoned without guidance…
31 Cf. La Philosophie de Se’adya Gaon, pp. 65-74; S.
PINSKER: Likute Kadmoniot, Vienna, 1860, pp. 9, 20, 34,
50-63.
32 See DR. M. ZUCKER: “Fragments from Rav Saadya
Gaon’s Commentary to the Pentateuch from Mss,” (Heb.),
Sura, II (1955-56). Jerusalem, pp. 323-331. It is important
to point out that Se’adya accuses Karaites of employing
qiyas so not to depend on tradition; see A. S. HALKIN: “A
Fragment to Saadya’s Introduction to his Commentary on
the Pentateuch.” Louis Ginzberg Jubilee Volume (Heb.),
New York, 1915, p. 154; besides, Se’adya wrote a treatise
where he combats the use of qiyas (ibid. , pp. 132-134, 147
and pages to follow). We should note that Se’adya argues
that qiyas partisans must maintain that the divine
commandments are co-eternal with God, and that God
cannot leave from revealing them (ibid. pp. 151-155). It is
interesting to note, therefore, that in the name of ‘Anan,
founder of the Karaite sect, it was said that all Mosaic
commandments were prescribed to Adam; see M. ZUCKER:
Rav Saadya Gaon’s Translation of the Torah (Heb.), New
York, 1959, p. 449, footnote 6. These ideas have parallels
in Christian literature; cf. Hand Joachim Schoeps:
“Restitutio Principi as the Basis for Nova Lex Jesus.” J. B.
L. LXVI (1947), pp. 457-460.
33 Introduction to the Commentary to the Book of Proverbs,
and in the Commentary to Job, 1, 6.
34 Al-’Amanât wab-l‘tiqadât, Leiden, 1880, p. 115. Our
quotes and pagination comes from this edition. Our
translation.
Reason (al-‘aql) prescribes to return the favor to anyone
who has benefited with any favor – if he has the means for
it – or that he thanks him, in case he did not have means
to reward him. Since this is a universal imperative of
reason (waŷbât al-‘aql al-kalliyyât), it would not be
according to our Creator to leave without prescription such
matters in reference to Him. Therefore, He prescribed to
His creatures how to serve and thank Him for having us
created.
Reason also prescribes that it is not allowed for a judge35
to be insulted or blasphemed. As a result it became
necessary that the Creator were to prohibit that His
servants were to blaspheme Him.
Reason also considers proper for a judge to reward the
prescribed labor with the end to (increase) well being,
because this way the one who performs (the prescribed
labor) and the one who commanded are not injured.
If we add these four groups (of commandments), we shall
obtain the totality of the laws commanded by the Lord.36”
“In regards to all kinds (of laws) that have been imposed
on us, God implanted his goodness in our reason; and in
regards to all classes (of laws) that (God) forbid us He
implanted their evil in our reason, as Wisdom said, what is
Reason: “My mouth pronounces truth and the abomination
of my lips is evil. (Prov. 8, 7).37”
It is important to underline that Se’adya’s rationalism is
very limited, and despite having admitted that rational law
does not accept all of its philosophical implications. For
Se’adya natural reason cannot deduce or know how to
make rational laws precise, and for this reason it needs of
positive law.38 Besides, the division it makes between
rational laws and revealed or positive laws appears to be
a distinction that Scholastic philosophy calls a purely
material distinction, since the so-called revealed laws also
proceed from a rational principle and pursue a rational
finality.39 Looking into their intimate essence, rational and
revealed laws have the same nature and form part of the
Mosaic commandments.
Bahyé40 ibn Paquda was the first Jewish thinker who
accepted natural law with all its philosophical
35 IBN TIBBÓN and S. ROSENBLAT: The Book of Beliefs and
Opinions, New Haven, 1948, translates al-hakim as “sage.”
However, we believe our translation fits better to the sense
of the text. For the word hakim in the sense of “judge,” see
sura XCV, 8 and the commentaries ad. loc.
36 Al-’Amanât, pp. 113-114.
37 Ibid. p. 115.
38 Ibid. p. 118 and pages to follow.
39 Ibid. p. 117 and pages to follow.
40 This is the correct pronunciation, and not Bahya. This is
proven by the fact that in the majority of mss. it appears as
BHYY, with two ending yod. It appears in the same way in
5
consequences. In his work Al-Hidaya ’Illa Fara’id41 al
Qulûb42, “Guide to the Duties of the Hearts,” he develops
the concept of natural law through which he bases his
moral doctrine.
The moral doctrine of Bahye distinguishes between two
types of duties: duties of the members and duties of the
heart.43 The duties of the members can be revealed
(fara’id sama‘yât) or rational duties which reason
prescribes (fara‘id yuŷubha al-‘aql). The duties of the heart
are purely rational:
“Theology44 is divided in two parts. The first (part) is the
science of the duties of the members, and it is an exterior
knowledge. The second (part) is the science of the duties
of the heart, which are interior (duties), and it is of interior
knowledge. At the same time, the duties of the members
are divided in two classes. The first (class) are the duties
that reason prescribes (fara‘id yuŷubha al-‘aql), even
though they were not prescribed in Sacred Scripture. The
second class is the one of revealed duties (fara’id
sama‘yiât) that reason neither prescribes or rejects, for
example… but all the principles of the duties of the heart
are rational.45”(45)
But Bahye is not content with classifying the
commandments in duties of the members and duties of
the heart, thus accepting the ethical consequences of
such classification. Bahye conceives two classes of
service to God or interior life: One founded in reason, and
the other founded in revelation or Sacred Scripture.
According to Bahye’s morality, both classes of service or
interior life are necessary and compliment each other, but
the service founded on reason is the final cause and the
the ms. preserved in the Biblioteca Nacional de Madrid; cf.
CARLOS RAMOS: “Algunos aspectos de la personalidad y
obra de judío zaragozano Bahya ibn Yosef ibn Paquda.”
Archivo de la Filología Aragonesa, III (1950), p. 132.
Besides, among Arab and Spanish speaking Sephardim,
as well as with Oriental Jews, it is pronounced Bahye.
41 This term that generally is translated “duties,” rather
means “laws,” that is, halakháh. In a fragment coming from
the Cairo Genizá that we published, “Hilkhot Shehitá shel
Ribbi Yehudai Gaón” Talphiot, IX (1964), p. 198, it is
translated hilkhót (plural of halakháh), for the word fara’id.
Therefore, the exact translation must be “Laws (i.e. hilkhot)
of the Hearts.” This fits into the ethical conception of
Bahye, according to which, the duties of the heart are
ethically binding, in the same strict and salvific sense that
halakháh is for normative Judaism.
42 Prof. A. S. Yahuda, Leiden, 1912, has edited the Arabic
text. Our quotes proceed from this edition. Our translation.
43 The classification of the duties of the heart and the duties
of the members is of mu’atazila origin; cf. A. S. YAHUDA, in
the Introduction to Hidaya, p. 59 and pages to follow.
44 Lit. “science of the law.”
45 Al-Hidaya, pp. 5-6.
ultimate perfection of man. Only in the interior life founded
on reason is salvation possible.
“Definition of service, exposition of its classes and
qualities that each one of its classes must have: The
definition of service is the submission of the beneficiary to
whom he received benefit from (giving him in turn) another
benefit or thanking him for the favor. Submission is divided
in two classes: The first (class) is the submission
(founded) on fear, hope, need, or power. The second
(class) is the submission (founded) in duty and justice is
the praise and servitude to whom one becomes subject.
The first class is the submission to God that is founded in
the acquired warning,46 previously mentioned,47 and
whose obligation is founded in reward and punishment on
this life and in the beyond. The second class is the
submission whose warning is centered in reason and has
been implanted in man’s nature when uniting soul and
body. These two (classes) of submissions are
praiseworthy, and lead to the path of salvation and eternal
abode. However, (one class of submission) is the (final)
cause of the other which is (only) a step by which to take
another step; this is the warning of the Law.48 Submission
founded on warning of reason is closer to God and it is
more acceptable and superior in seven aspects.49”
These seven aspects are:
a) The submission inspired by the Law could be self-
interested. The submission inspired by reason is
absolutely disinterested.
b) The submission inspired by the Law is founded by
divine reward and punishment. The submission inspired
by reason is a spontaneous decision of the soul.50
c) The submission inspired by the Law is centered in most
part in the performance of the duties of the members. The
submission inspired by reason is exclusively centered in
the duties of the heart.
d) The finality of the submission inspired by the Law is the
submission inspired by reason.
e) The commandments of the Law (fara’id as-shary‘ât) are
613, while the rational commandments (fara‘id al-‘aqlyât)
have no limit.
f) The service inspired by the Law can be performed
without divine assistance.51
g) In the service of the Law man can sin, while in the
service of reason man is safe from sin.52
46 In contradistinction to the innate and natural warning that
proceeds from reason.
47 Al-Hidaya, p. 130.
48 E. d. the acquired warning; see footnote 46.
49 Al-Hidaya, pp. 132-133.
50 Lit. “the generosity of the soul;” cf. G. VAJDA: La Teología
Ascética de Bahya ibn Paquda, Madrid-Barcelona, 1950, p.
43 and footnote 6.
51 One cannot avoid thinking of the doctrine of Grace in
Christian theology. Cf. footnote 52.
6
Once admitting this doctrine we should not be surprised
that Bahye considers the study of halakháh and judicial
casuistry superfluous.
“Once someone asked a sage a strange question (that is,
little common) in reference to divorce legislation. He (the
sage) replied: ‘You ask something, if ignored, does not
injure us; perhaps do you not know your duties that you
cannot leave to know or allow yourself become inattentive,
to occupy yourself in strange things and their minutia. This
knowledge will not provide you with any perfection in your
religion or faith. Neither will it correct any vice your soul
may possess. I swear that it has been thirty-five years
since I occupy my mind (exclusively) to what my soul
needs in regards to the duties of my religion. You know of
my dedication (to these studies) and the great number of
books I possess; nonetheless, I never wanted to
investigate what you just asked. And I chastise and reject
it in great manner’.53”
Let us end this section noting the main differences
between Sa‘adya and Bahye in regards to natural law.
According to Se‘adya, the rational commandments are not
intrinsically superior to the revealed commandments.
According to Bahye they are, because the interior life is
exclusively centered in this class of commandments. In
addition, Se’adya strongly underlines that the rational
commandments have been revealed in the Toráh and
form part of the 613 Mosaic commandments. But Bahye,
even though he conceives that some Mosaic
commandments function according to their rational
“matter”, their performance does not lead to the ultimate
perfection because this kind of service or spiritual life is
“inspired” in the revealed law or Toráh. Lastly, it should be
mentioned that for Se’adya salvation resides in the
Toráh,54 while for Bahye the commandments of the Toráh,
while revealed, do not possess any salvific value; the
salvation of man resides in reason, outside the confines of
the revealed Law or Toráh.
52 Al-Hidaya, p. 133 and pages to follow. This last aspect
seems to be of Christian origin; cf. Letter to the Romans, 7,
7 and pages to follow. Regarding the Christian influence on
this work see the Introduction to Al-Hidaya, p. 77 and
pages to follow.
53 Al-Hidaya, p. 14.
54 As we have made to note, for Se’adya reason is
insufficient without revelation. More that justifying the role
that revelation plays in spiritual life, Se’adya wants to make
battle with those who maintain that reason itself, without
divine assistance, leads to salvation. Even though Se’adya
requires that the articles received by tradition are to be
corroborated by the intellect (Al-’Amanat, p. 21 and pages
to follow), this only compliments revelation; cf. H. MALTER:
Life and Works of Saadia Gaón, Philadelphia, 1921, p. 175.
In the structuring Bahye’s ethical and theological system,
natural law completely displaces the halakháh. Tradition
leaves to be the supreme authority of morality; in its place
we have Reason. From this position it would not be
absurd to ask – as Thomas Aquinas would later do – if
besides philosophies we should also have revealed
doctrines.
3. YEHUDÁH HALEVÍ AND NATURAL LAW
Modern researchers have pointed to the great bard
Yehudáh haLeví from Tudela as the “antirational” Jewish
philosopher par excellence. In order to appreciate the
nature and significance of said “anti-rationalism” one must
have in mind the different philosophical currents then in
vogue among the Jews of Spain and especially the
posture of our poet regarding reason and natural law.
Despite the scarce bibliographical data known of Bahye
ibn Paquda, we know with certainty he lived before the
poet Moshé ibn ‘Ezra from Granada55, and as a
consequence before Yehudáh haLeví.
From the previous discussion one gathers that Bahye’s
ethics entail a radical change in regards to traditional
Jewish values and its spiritual constitution. In essence,
Bahye’s doctrinal position is nothing more than a midway
point between mu’atazila and Karaite doctrine on one
side, and rabbinic doctrine on the other. The conflict
between the Rabbanites and the Karaites is characterized
by whether tradition or reason is the superior authority in
matters of religion and morality. On one side, Bahye, as all
Rabbanites do, maintains the authority of tradition. But this
authority – and in this Bahye fundamentally distances
himself from rabbinic theology – is exclusively limited to
the duties of the members and has no authority over the
other class of duties, the duties of the heart, where
perfection and salvation are centered. On the other hand –
and here Bahye comes together with mu’atazila and
Karaite thought – reason is the authority in the duties of
the heart and the life of perfection.56 Because this class of
duties is specifically superior to the duties of tradition, and
only in this class resides the only possibility to reach
perfection, Bahye relies more on the Karaite position than
the Rabbanite one.
Without a doubt, Bahye’s doctrinal position represented a
serious menace to traditional normative Judaism in Spain.
We should not forget that Spain also had Karaite
adherents, even though they were considered a serious
55 PAUL KOKOZOFF: “The Date of Life of Bahya ibn Pakuda,”
in the volume honoring S. Poznanski, Warsaw, 1927, pp.
13-21.
56 Al-Hidaya, pp. 15-17. As G. VAJDA has noted: La
Teología Ascética of Bahya ibn Paquda, p. 18, footnote 11,
this ideas made its entrance through the agency of
Karaites.
7
danger and were fiercely fought against.57 The suspicion
of heresy – fictitious or real – fell on many. It would be
sufficient to mention the famous poet Menahem ibn Saruq,
put in jail by order of the celebrated Jew from Cordoba
Hasdai ibn Shaprut, having been accused of Karaism.58
There is no doubt that the religious crisis suffered by the
Judaism of that epoch was due in part to the type of
thinking of Bahye ibn Paquda; and because of this it
awakened a contrary reaction.
The first Jewish thinker to wage battle against this ultra-
rationalist position was Yehudáh haLeví. The “anti-
rationalism” of Tudela’s bard is nothing more than a steep
and penetrating critique of natural and rational law as
foundations for moral and spiritual life.59(59) Due to the
fact that Yehudáh haLeví treated the subject of natural
and rational law several times, we can get a very clear an
idea of what he thought in the particular.
It can be summarized as follows: According to the
philosophers, natural and rational law is neither obligatory
nor universal; therefore, it cannot be considered as
foundation for morality and spiritual life. According to the
philosophers – in Yehudáh haLeví’s thought – the finality
of natural law is not moral, but political and social: It is
meant as a guide to govern men adequately. It is natural,
not because of its origin, because a human authority
promulgates it, but because of its finality; the masses have
a natural need for laws that govern them. As a result,
those types of laws lack any spiritual value. The
philosophers consider it “rational,” not because it has been
implanted in reason, but because its finality and general
principles can be understood by reason.
From the first dialogue in his work “The Kuzari,” Yehudáh
haLeví allows us to see what he understands by rational
law. The Khazar king, after having dreamt of an angel who
repeatedly warned him that even though his intentions are
good, his actions – the way he worships God – were not
the proper choice, consulted with a philosopher to find out
what actions were pleasing to God. The philosopher then
proposes rational laws to the king (or as Yehudáh haLeví
calls them: al-nu’amis al-‘aqlayât, rational nomos60). But
57 About Karaism in Spain, see the bibliographic
information in F. BAER: Toledot ha-Yehudim Bisfarad ha-
Nosrit, Tel-Aviv, 1959, p. 478, footnote 45.
58 S. D. Luzzato: Bet ha’Osar, 1847, p. 17 and pages to
follow. In an excellent study, doctor N. ALLONY has shown
that there is Karaite influence in Ibn Saruq’s dictionary:
“Vistas caraistas en el Mahberet de Menahem” (Heb.),
Tesoro de los judíos sefaradíes, V. (5722-1962), pp. 21-49.
59 This subject has been object of an excellent study by
Prof. L. STRAUSS, from which we have benefited greatly:
“The Law of Reason in the Kuzari,” in Persecution and the
Art of Writing, pp. 95-141.
60 This Greek term appears in rabbinic literature.
the philosopher suggests them only as an alternative from
other laws. Let us hear what he says:
“Do not notice what religion you are to follow, nor what
law, what works, what words and what language: or invent
yourself a law… or govern yourself through the positive
intellectual Laws (al-nu’amis al-‘aqlayât) that the
Philosophers commanded.61”
When the philosopher presented the rational laws – or as
Abendana translates it, positive intellectual Laws – only as
an alternative to other laws, he indicates that he does not
consider them obligatory. In another passage, when
defining the finality of rational laws, he expressly says that
these classes of laws are not obligatory for the
philosopher:
“And they commanded the intellectual laws (al-nu’amis al-
‘aqlayât62), which are the political ordinances of good
government63 for the conservation of men; which are not
necessarily obligatory,63 but conditional, which are
convenient to preserve, except as temporal or occasional
need64.”
Being that rational laws are just “ordinances of good
government,” these cannot obligate spiritually, nor
constitute the foundation for the perfection of life. Besides,
for the philosopher perfection resides outside the moral
environment, in contemplative life. Therefore, morality
performs only a secondary role: It regulates the activities
of men and specially those of the philosopher in relation to
society, so the philosopher can reach his perfection in
intellectual contemplation. The philosopher is, as a result,
as unsocial being and his doctrine fundamentally
reclusive:
“What I said is the foundation of his belief; that the height
of man’s happiness consists only of contemplative
science… and man knows such an end pretended by this
science, he does not have to notice the works that he
ought to do.65”
But Yehudáh haLeví is not satisfied to rid rational laws of
all spiritual value: For him those laws are identical to
magic and superstition; both as product of practical
reason, both have as their aim to govern the masses, both
61 All quotes proceed from the Spanish translation made by
the celebrated JACOB ABENDANA, El Cuzary, 1910. The
Arab transliterations proceed from the bilingual edition
(Hebrew-Arab) by H. HIRSCHFELD, Das Buch Al-Chazari,
Leipzig, 1887. El Cuzary, I, 1, p. 12.
62 In the Arab text “al-‘aqyât” does not appear, however
there is no doubt that it belongs to the original text,
because in Ibn Tibbón’s translation its Hebrew equivalent
“ha-siklyim” appears.
63 Our italics.
64 El Cuzary, IV. 19, p. 257.
65 El Cuzary, IV, 19, pp. 256-257.
8
lack any spiritual value. The only difference is that some
underline magic and superstition with greater emphasis
than others, but definitely both belong to the same
genre.66
According to our philosopher, rational laws are called
“natural” not because of having been implanted in nature
or promulgated by any authority, but because man has a
natural need of laws that govern him; because these are
indispensable for the maintenance of society the same
way as eating, sleeping and drinking, these are
indispensable for the body to survive. Precisely the natural
need of such laws strips all spiritual value, that even the
most vile of societies, as a gang of wrongdoers and
outlaws, must observe certain laws of equity and justice
among its members in order to survive. Even the ideal
proposed by the Prophet Micha (6, 8) is of low value
morally, because it is reduced to observe necessary
norms for the sustenance of society; one of them: To
worship God. There is a natural need – that is, a social
need67 – for religious laws. These laws have a social and
political value for men who need them, but do not have a
spiritual value to God.
Before transcribing the text from our philosopher, it is
important to note the circumstance that led the Haber, or
Jewish sage, to battle against king’s doctrine of rational
and natural law, and present his own opinion on the
subject.
The king asks to Haber why among Jews there is no sect
of ascetics exclusively dedicated to the service of God, as
in the rest of the religions.68 The Jewish sage responds
that before God the only obligations are what He has
commanded.69 To demonstrate the exactness of his
thesis, that God commanded ascetic life, the king offers
some Biblical passages.70 This is when the Jewish sage
66 Cf. ibid., I, 79 and 89; Persecution and the Art of Writing,
p. 122 and pages to follow. Maimonides maintains a similar
posture: cf. La Guía de los Perplejos, III, 29, and
Persecution and the Art of Writing, p. 124 and pages to
follow.
67 Also SHEM TOB IBN FALAQERA, Ha-Mebaqqesh, The
Hague, 5532-1772, f. 29b, maintains that religion and
morality are indispensable for the commandment of
society, and, as a result, when these are not revealed they
lack any spiritual value. JOSEPH ALBÓ’s position is identical:
Sefer ha-‘Iqqarim, I, 5.
68 El Cuzary, II, 45, p. 104.
69 Ibid., II, 46, p. 104. For Yehudáh haLeví ascetics is a
useless exercise; doubly useless, in regards to abstaining
from creatures as if they were morally or pathologically
injuring or impeding for the union with God when, in reality,
they are not, and in regards to the pretension to reach the
union of the soul with God through other ways outside
those determined by the law; cf. El Cuzary, II, 50, pp. 107-
110; III, 1 pp. 137-139.
70 El Cuzary, II, 47, p. 105.
decides to explain his own doctrine about natural law and
reason. What deserves particular attention here is that the
thesis presented by our poet from the words of the king,
and what he seeks to refute, looks identical to the ascetic
doctrine of Bahye ibn Paquda.
“Haber: These, and others like them, are intellectual
statutes (al-nu’amis al-‘aqlayât), and these are principles
and preparations for the Divine law, which are previous to
her by nature and time, without which one cannot
preserve a congregation of men; so much so, that even for
a company of burglars is impossible to obtain if they were
not to admit justice among each other, without which, its
company could not preserved; and the rebellion of the
children of Israel having reached a state where they were
negligent of the intellectual laws (ash-sharaye’ al-‘aqlayât)
and politics, without which is not possible to preserve any
congregation; in like manner that it is not possible to
preserve anything without the natural things of
sustenance, drink, movement, rest, sleep and abstinence;
and with everything they observed the services and
sacrifices and the rest of Divine laws received from God;
and they satisfied themselves with the least, and said: it
would be a hope you kept the laws kept by lesser
congregations, to observe justice and the good path, and
provide goodness to the Creator!: Because the Divine
laws are not perfected but after having observed to
perfection the political and intellectual laws (as-sayasât
wal-‘aqlyât): and intellectual laws (ash-shary’ât al-‘aqlyât)
are to observe justice and provide the goodness of the
Creator; and whoever does not observe these, as he
observes the sacrifices, the Shabbat, and the circumcision
among others like them, which human understanding nor
affirms them (lam yuŷbha al-‘aql) or denies them,… and in
this sense it was said (Deut. 10, 12): and it is what the
Lord wants from you, etc., and this is what is said
(Jeremiah 7, 21): Add your burnt-offerings unto your
sacrifices, etc., and other similar to these: it would be
possible for the Israelite to do justice and love mercy
leaving circumcision, the Shabbat, the laws of Passover
and other laws, and prosper.71”
Although natural laws are not written according to human
reason – as Bahye and Christian scholastics think – they
are called rational because man can understand them. But
reason – Yehudáh haLeví opines – only applies to the so-
called rational laws in regards to their general and abstract
formulation; vg., that one must do good and avoid evil, but
is wholly incapable to determine such general formulations
for concrete and practical cases. But since in order to
govern a society is necessary to concretely determine
what is good and what is evil, the just and unjust, it
proceeds that reason and the so-called natural laws are
insufficient to govern the concrete and real life of society.
To govern society one needs of positive law, the revealed
law of God.72
71 Ibid., II, 48, pp. 105-106.
72 Cf. Al-’Amanât, p. 118 and pages to follow.
9
“The moral and political works, and the intellectual statues
(ab-nu’amis al-‘aqlayât) are notorious…; nor political or
intellectual works are perfectly notorious, while we know of
their substance, we do not know of their quantity; because
we know that humility is an obligation; and the doctrine of
the soul in penance and submission is an obligation… ;
but determining these things and their quantity, in a way
that they may be good for all, cannot be reached without
God’s (law).73”
4. NATURAL LAW IN MAIMONIDES’ WRITINGS
In the previous section we presented the mind of the “anti-
rationalist” Jew par excellence and explained the
philosophical character and meaning of this “anti-
rationalism.” Now we shall present the mind of another
Jewish thinker, Moses ben Maimón, considered by
modern researchers to be the “rationalist” par excellence.
Here we attempt to demonstrate that, despite his
“rationalism,” Maimonides maintains the same negative
attitude as Yehudáh haLeví towards natural and rational
law. In order to form a precise idea of the mind of this
thinker regarding natural law, we shall examine not only
his philosophical treatises, but also his juridical ones.
Maimonides’ posture in respect to rational law becomes
patently clear in his legal code the Mishnéh Toráh.
Maimonides declares that a non-Jew who performs the
Noahide commandments is considered a hasid, a “pious
man,” and he will have a share in the world to come, in
other words, he will be saved. Now, when the Talmud
discusses if the non-Jewish hasid is saved, it does not
define hasid, nor does it say whether the hasid is a non-
Jew who observes the Noahide commandments.74 As a
result, Maimonides could have well interpreted the word
hasid quite liberally according to his own criteria, he could
have defined it as one who performs the rational
commandments. However, Maimonides stipulates as the
sine qua non condition for the pious or hasid non-Jew to
reach salvation to perform the Noahide commandments
because they were commanded by God, as witnessed by
Mosaic tradition, not because reason thus commands it.
This condition is not found in the Talmud.75 In addition:
73 El Cuzary, III, 7, pp. 143-146.
74 Toseftá, Sanhedrin, XIII, 2: TB Sanhedrin, 105a. It
important to note that the commentators do not indicate
what source is Mainonides using in this particular.
Nonetheless, in Responsa, ed. J. Blau, vol. I, Jerusalem,
1947, p. 282, Maimonides alludes it is from a pre-Talmudic
source. The Mishna of Rabbi Eliezer (Heb. Text), ed. II, G.
Enelow, New York, 1933, p. 121, as the source of his
concpept of a non-Jewish “hasid.” Despite this source, this
thought was not shared by no other rabbi before
Maimonides. Vide infra, footnote 75.
75 Cf. JOSEPH CARO: Késef Mishné, Melakhim, VIII, 11, who
does not know Maimonides’source. As we have indicated
in the previous footnote, Maimonides alludes to the Mishná
Maimonides declares that the non-Jew who observes the
Noahide laws, as these are commanded by reason, not
only he is not a hasid and he will not be saved, but neither
he is a hakham, “sage.” This last detail is not to be found
anywhere in rabbinic literature, which proves that
Maimonides was displaying his own ideas, what he thinks
about the subject.
From this we learn from Maimonides’ point of view the
absence of rational law. Following his words:
“Anyone who accepts the seven (Noahide)
commandments, and toils to perform them, is considered
a pious non-Jew (hasid) and will have a portion in the
world hereafter (he will be saved). This is only when he
accepts and observes them because God prescribed
these in the Toráh and because we have been informed,
via Moses, that the descendants of Noah had been
previously commanded to perform them. But if he only
performs them because reason dictates them to do so, he
is not considered a ger toshab,76 or a pious non-Jew, and
neither a sage.77”
Maimonides maintains the same posture in his
philosophical writings.
In a strictly Aristotelian sense natural law is a collection of
norms that have not been promulgated by any authority,
inscribed in man’s nature, about which everyone agrees to
without the need to communicate or accord them through
consensus.78 Thomas Aquinas, in the Aristotelian tradition,
defines natural law as the “participation of the eternal law
in the rational creature” (participatio legis aeternae in
rationali creatura79).
Maimonides, like Yehudáh haLeví, ignores this Aristotelian
sense of natural law. The natural law that Moses admits is
a law promulgated by an authority in order to satisfy the
natural need of man to live in society.
of Rabbi Eliezer as the source for his opinion. However, the
text of that work in our possession does not say, as
Maimonides underlines, that the non-Jew must perform the
Noahide laws because Moses thus commanded it.
76 Lit. “resident alien,” that is, a non-Jew with the right to
reside on the Holy Land; cf. TB Abodá Zará, 64b.
77 Melakhím, VIII, 11; cf. Maimonides’ commentary to the
Mishná Hullín, VII. It is convenient to clarify these words:
“neither as a sage” appears in the famous Spanish Ms.
(beginnings of the 15th c.) J. T. S. ENA, 1962, in the
famous incunabula of Rome, in the Constantinople, Venice,
Amsterdam and Vilna editions. There are some who read,
however, “but it is one of their sages”; Moshé Al-Ashqar,
Teshubot, CXVII. This last text appears to be the correction
of some copyist, who did not find the original verision of
Maimonides’ “rationalism” appropriate.
78 Retórica, I, 13, 1373b.
79 Summa Theologica, I, 2, p. 91, art. 2.
10
Maimonides does not conceive natural law in regards to
its origin. Maimonides’ natural law is natural only in the
“secondary80” or “metaphoric81” sense. It cannot be natural
in regards to its origin, since it is promulgated by a human
authority and is, strictly speaking, conventional.82
The law can be natural in regards to its finality: to order it
as a provision to the natural needs of regulating laws for
social life. Man needs them: (a) because his nature is the
most varied in the animal kingdom, and (b) because his
nature demands to live in society. As a result, every law
that serves to establish a harmonious society is, in
regards to its finality, natural. We translate Maimonides’
words:
“It has been clearly exposed that man is by nature a social
being and that his nature demands to live in society. As a
result he is different from the rest of the animals who do
not have the need to group themselves (in society)… And
since his nature (that is, human nature) allows for such a
degree of variation among all individuals, it is absolutely
impossible that society maintains itself in harmony without
a leader capable to regulate his behavior, substituting the
defects and moderating the excesses, and that he
legislates, with uniform and determining laws, the actions
and norms that all should practice so to eliminate the
natural variation and thus society ends up being well
ordered.83”
From this passage H. A. Wolfson infers that according to
Maimonides all promulgated law by prudent legislators to
establish a well-ordered society is considered natural.84
Joseph Albo follows in Maimonides’ footsteps:
“Given that society, as a group, is necessary for life and
maintenance of the human specie, the sages have said
that man is by nature a political being. By this they mean
that it is necessary that man because of his nature dwells
in the city with a large group of people so he can obtain
what is indispensable for his life and maintenance. It is
evident therefore, that any grouping (of individuals who
inhabit) in a city, district, region, or for instance that all
men of the world must have order to conduct themselves,
protect justice in general and suppress injustice, so to
avoid fights with one another in his relations and
commercial associations. This order should include the
protection against murder, theft, burglary, and similar
things, and, in general, everything that helps to maintain
the political community and improves it so in this manner
men can live in harmony. This order was called by the
80 Philo, II, p. 310.
81 Persecution and the Art of Writing, p. 97, footnote 5.
82 Vide infra, footnote 105.
83 The English translation is ours, it comes from the Arabic
text Dalalât Al-Ha’irin, ed. Joel-Munk Jerusalem, 1931, II,
40, p. 270.
84 Philo, II, p. 370.
sages natural law, by which they mean that which is
necessary for man due to his own nature,85 whether this
law proceeds from a sage or a prophet.”86
Further he adds:
“The aim of natural law is to impede injustice and promote
righteousness, that men become distanced from theft,
burglary, and murder and in this manner they can subsist
in society and men’s maintenance, and that each one
should be saved form oppression and injustice.”87
According to this concept of natural law, Maimonides
observes that the Toráh is not natural in regards to its
origin, since a human authority promulgates natural law
and the Toráh has been revealed and created88 by God;
but it can be considered natural in regards to its finality,
since it maintains society in harmony:
“Therefore, I declare since the Toráh is not natural (in
regards to its origin), it is in harmony with nature.89”
It is illustrative how our commentators see the phrase
“since the Toráh is not natural.”
Moses of Narbonne observes:
“If languages are not natural, how could the Toráh be
natural and be written in the nature of man so
(supposedly) he acts according to everything written in it
and he adheres to its principles?90”
Shem Tob says:
“The Teacher (Maimonides) affirms ‘since the Toráh is not
natural’ (he means) impressed in the nature of man…91”
In another place Maimonides expresses with absolute
clarity his thought on natural law: when he points out as
apparent but wrong the opinion in favor of natural law that
one may form from Biblical and rabbinic literature:
“It has been mentioned in several places that justice is
necessary; in other words, that (God) rewards any pious
person who performs the pious and righteous acts despite
them not being commanded by a prophet; and likewise,
that (God) punishes all bad deeds done by an individual
despite these not having been forbidden by a prophet,
85 The italics are ours.
86 Sefer ha-‘Iqqarim, I, 5. The translation is ours.
87 Ibid., I, 7.
88 Dalalât al-Ha’irin, I, 65, p. 108.
89 Ibid., II, 40, p. 270; cf. Philo, II, p. 372.
90 Edición de J. Goldenthel, Vienna, 1852, f. 44b.
91 Commentary, ad. loc.
11
since it is a forbidden thing by the natural sense that
forbids injustice and evil.92”
It is important to clarify – and this will allow us to
understand the “rationalist” character of Maimonides – that
once natural law in its Christian scholastic sense has been
rejected, rational law also must be denied. Already since
the beginning of “The Guide of the Perplexed,”
Maimonides asserts that moral acts are derived from the
positive conventional laws,93 given that the intellect can
only distinguish between truth and falseness, but not
between moral good and evil:
“Through the intellect man can distinguish between truth
and falseness… but good and evil belong (to the class of)
conventional (laws).94”
In Maimonides’ ethics, the only rational commandments in
the Toráh are the ones about believing in the existence
and unity of God. All the rest, the moral, ceremonial, and
judicial commandments, although in harmony with reason,
are not rational commandments, but conventional laws.
When presenting the rabbinic opinion that during the
theophany at Sinai the people of Israel received directly
from God only the first two commandments (to believe in
the existence and unity of God), and the rest through
Moses’ intercession, Maimonides comments that this is
due to the fact that the first two commandments are
rational. For the same reason, the people of Israel did not
need prophetic assistance to be able to receive them. But
the rest of the commandments belong to the conventional
positive laws and cannot be perceived without prophetic
assistance.
“This means to say that those (the first two
commandments) came (directly from God to the people)
as they came to Moses our Teacher. Our Teacher Moses
did not (have the need) to deliver them, because these
two principles, which are (to believe) in God’s existence
and unity, can be perceived by the human intellect, and
everything else that can be known apodictically, the
prophet and the one who knows (apodictically) are on the
same level, the prophet having no advantage. These two
principles were not only known through revelation (but
apodictically through reason)… The rest of
commandments belong to the class of conventional
(laws).95”
It is important to note that according to Maimonides these
two rational commandments obligate by being Divine and
92 Dalalât Al-Ha’irin, III, 17, p. 399. Shem Tob says this is a
mere opinion, ad. loc., and S. Munk, (French text), III, p.
126, footnote 2.
93 Vide infra, note.
94 Dalalât Al-Ha’irin, I, 2. p. 16.
95 Ibid. II, 33, p. 256. Sf. Persecution and the Art of Writing,
p. 96, footnote 4.
positive, not because reason prescribes them. This is
Maimonides’ thesis. Let us review it:
In his treatise Shemoná Peraqím, Maimonides asks
himself if any Toráh commandment should be performed
with the rational faculty of man, and he gives his
conclusion in the affirmative.96 In the Sefer haMisswót97
and in the Mishnéh Toráh98 he considers the belief in the
existence and unity of God as Mosaic commandments.
Now many Jewish theologians do not consider the belief
in God’s existence as a commandment, as a thing that
one must perform, but as an article of faith, a thing one
ought to believe.99
The famous Saragossan philosopher Hasdai Crescas
made this objection to Maimonides’ thesis. In the
introduction to his work ‘Or Adonay100, “The Light of the
Lord,” Crescas points out that within Judaism the
performance of a commandment presupposes the
recognition of God as an authority who commands such
performance. Therefore, Crescas argues, it is absurd to
consider the existence of God as a commandment, since
before performing the commandment to believe in God
one must recognize the authority of God – and as a
consequence His existence – that commands us to
believe in Him.
Crescas’ objection is only valid if we consider the rational
commandments to be obligatory because commanded by
reason; because once reason has recognized God, one
performs the said commandment. But if the rational
commandments are not obligatory because reason
commands, as Maimonides maintains, Crescas’ objection
disappears. According to Maimonides the commandment
to believe in God’s existence obligates – and as a result,
is only performed – as a Divine positive commandment.
According to Maimonides’ theology, those who believe in
God because reason thus dictates have not performed the
Mosaic commandment that commands us to believe in
Him.101
Since for Maimonides the belief in God’s existence and
unity are rational commandments, and the rest
conventional, he violently102 opposes those who classify
96 Shemoná Peraqim, II.
97 Sefer ha-Misswót, positive commandment 1 and 2.
98 Yesodé ha-Torá, I, 6,7.
99 Cf. Séfer ha-Misswót, positive commandment 1, and
Nahmanides’ commentary, ad. loc.
100 Tel-Aviv, 5723-1909, f. 8a.
101 Maimonides’ posture in regards to this commandment is
identical to the one he adopts in regard to Noahide
commandments.
102 About what motivated Maimonides to violently attack
such classification, see the following section and footnote
106.
12
the Mosaic commandments as “rational” (ash-sharaye’ al-
‘aqlyât) and “revealed” (sharaye’ as-sama‘yât).103
In Maimonides’ mind none of these commandments are
rational in the Aristotelian sense. In everything, the Mosaic
commandments, even those ceremonial ones where
reason cannot discover any finality, are in harmony with
reason and nature, and have, besides their net spiritual
value, a practical useful side, because they promote the
social, corporal well-being, or these provide knowledge
that will help the individual with life in this world.104
Because of this, in his work Shemoná Peraqím –
undoubtedly the most rationalist of all his works – he
pauses to attack “certain sages” (no doubt Se’adya and
Bahye ibn Paquda) who classify the moral
commandments as “rational commandments” and the
ceremonial ones as “revealed commandments.” He says
that these sages suffer from the sickness of the
mutakallimûn (Muslim scholastics).105 According to
Maimonides, the “rational” commandments belong in
reality to the commandments that the philosophers call
“conventional” (al-mashkurât).106
From this we are able to see that Yehudáh haLeví and
Maimonides coincide in the concept of natural law,
because they admit to a natural law, not in regards to its
origin – as admitted by Bahye and Christian scholastics –
but in regards to its finality.
5. THE DOCTRINE OF NATURAL LAW AND JEWISH
SPIRITUALITY
In the previous sections, we have discussed the doctrine
of natural law in three different epochs of the Hebrew
people.
In the Talmudic age, the nucleus of the Hebrew people
lived in the ancient Parthian empire. Far from foreign
cultural centers, the Hebrew communities cultivated their
103 Shemoná Peraqim, VI.
104 Cf. Dalalât Al-Ha’irin, III, 27.
105 Shemoná Peraqím, V. It would be convenient to note
that also Abraham ibn Daud, ’Emuná Ramá, Frankfurt,
1852, p. 75 maintains that the so-called natural laws are in
reality conventional laws.
106 In an article by I. Efros, “The Approach of Reason to
Ethics according to Se’adya and Maimonides” (Heb.),
Tarbiz, XXVIII (1959), pp. 323-329, he tries to analyze why
Maimonides severely attacks Se’adya’s thesis (p. 325) and
concludes they are not divided in any philosophical
question; the only thing separating them is a “terminology
controversy from the Middle Ages” (p. 329). We do not
believe that Efros captured the meaning of this
controversy. It is implausible that Maimonides would have
bothered to severely attack someone just for having
employed a term incorrectly if he were not to mediate the
background of these philosophies.
own spirituality without interference or strange influences.
During this age, the Jews do not know of or admit to
natural law as a source for morality.
The second age takes place after Babylonia’s conquest by
the Arabs, when Jews get in touch with Islamic culture;
they become familiarized with its literature and
philosophical thought, and participate in its cultural
movements. In this age some Jewish sages introduce the
concept of natural law as a factor for morality and interior
life.
The third age is that of the Spanish Golden Age. When
Arab-speaking Sephardim lifted Judaism to a level without
parallel in history and men of the stature of Gabirol, the
ibn Ezras, Yehudáh haLeví, Abraham ibn Daud and many
others emerge. During this age of great cultural
production, age where all sorts of rationalist ideologies
effervesced, two of the greatest philosophers from Arab-
speaking Sephardim emerge, Yehudáh haLeví and Moses
ben Maimón, and despite how each represented different
schools of thought, both oppose natural and rational law
as a factor for moral life. To what do we owe such
opposition?
At the end of the first section we suggested that the
reason Judaism did not accept natural law is because
Judaism considers itself a revealed religion, bearer of a
revelation that will last forever.
Christianity, which also considers itself a revealed religion,
admits the existence of natural law. This is due to the fact
that Christianity also admits the ancient Toráh as
revealed, but not eternal. According to Christian theology,
Jesus abrogated the Toráh, except for those precepts that
are by nature eternal – the moral precepts.107 In the
Christian theological system, the doctrine of natural law is
indispensable to be able to justify its negative attitude
before the Toráh, in order to distinguish between non-
abrogated commandments – those of the natural order –
and abrogated commandments: The judicial and
ceremonial commandments. In the Jewish theological
system the doctrine of natural law is, on the contrary,
absolutely unnecessary.108
We must add that besides it being totally unnecessary, the
doctrine of natural law (in the Aristotelian sense of
scholastics, likewise in classic Roman jurisprudence) is
incompatible with the basic principles of Judaism.
In Hebrew thought, the Supreme Being is not part of the
world; He is not subject to that eternal and immutable
107 In classic jurisprudence the natural law is inviolable: Cf.
Cicero, De republica, 3, 22, 33; while the rest of the laws
can be abrogated; cf. VICENZO ARANGIO RUIZ: “La regle de
droit et loi dans l’antiquité,” Rariora, p. 255 and the
following pages, Rome, 1946.
108 Cf. H. A. WOLFSON: Philo, II, p. 312.
13
order that Pagan thought considered preexisting in matter
or the initial chaos. God is a being absolutely free of any
external coercion that conditions Him, and of any
“determination” or “necessity” internal to His own being;
Divine liberty is absolute, His manifold activity could have
been something completely different of what is or has
been.
Although man is casually related to God, in the sense that
God is the Creator and man was created by Him, this is a
relation of origin. Once created, man and God are distinct
categories and, contrary to what scholastic theodicy says,
completely unlinked. Since man and God are categories
absolutely different and unlinked from each other, the
distance between man and God is absolute.
Therefore, Judaism cannot accept the concept of
“religatio” of man with God. For the Jew the only
foundation of religion is the free and mutual election of
God and man, as the two parts constitute a pact, an
alliance, a berit. This pact has existed from antiquity: It is
the pact of Sinai, made on the fields of Moab. This berit is
the only plinth of Hebrew spirituality, the only link between
Israel and God.109
On the other hand, in scholastic theology natural law
obligates because it is the participation of the eternal law
in the rational nature of man.110 This eternal law is
identical to God’s essence.111 He reveals this eternal law,
be it in nature (natural law), or be it in revelation (positive
Divine law).
Also in Roman jurisprudence of the Classical era natural
law has its origin in God’s essence112 and He implants it in
nature.113
But for Judaism it is inadmissible to have a law
ontologically related to God, particularly a law identical to
the essence and nature of God. For the Hebrew mind
such eternal law becomes confused with the eternal order
that Pagan divinities were subject to, be it by external
coercion, or be it for an internal “necessity” or
“ordainment.”
Published as “La doctrina de la ley natural en el
pensamiento Judío del medioevo,” Sefarad 27 (1967),
218-224.
Translated from the Spanish by David Ramirez
109 We have expanded these basic Jewish concepts in the
first three chapters of our thesis, “La espiritualidad judía,”
presented in June of 1962 at the Univesidad de Barcelona
to obtain the degree on Semitic Philology.
110 Summa, I, 2. Q. 91, art. 3.
111 Idem, I, Q. 93, art. 4.
112 Cicero, De legibus, 1, 6, 20; and ibid. 1, 13, 35.
113 Ibid., 1, 6, 18; De republica, 3, 23, 33.