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Do Noachite Have to Believe in Revelation? (Continued)Author(s): Steven S. SchwarzschildSource: The Jewish Quarterly Review, New Series, Vol. 53, No. 1 (Jul., 1962), pp. 30-65Published by: University of Pennsylvania PressStable URL: http://www.jstor.org/stable/1453421

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DO NOACHITEHAVE TO BELIEVE IN REVELATION ?BY STEVEN S. SCHWARZSCHILD

(Continuedfrom JQR April, I962)We shall return later to the question which Mendelssohndiscusses what the philosophical reasons may have beenbecause of which Maimonidesdemanded belief in revelationon the part of Noachites. We quote his touching letter at thispoint only because it again illustrates the unsuccessfulsearchfor his talmudic authority by later Jewish teachers. JacobEmden, it is true, in his reply offers to Mendelssohnseveralanswers to this question.27Unlike Mendelssohn's etter whichis written in the fluent and felicitous Hebrew of a modern

Hebraist, Emden's letter is couched in the typical talmudicstyle of the traditional legal disquisition. And the style alsoreflects the content, for Emden does not actually cite sourcesbut ratherengages n casuistic deductionswhich in his opinionjustify Maimonides'stipulation. Mendelssohn, ike the KesefMishneh,he declares,is wrongin believingthat we are dealingwith a novel concept peculiar to the Rambam. In fact heproposes three solutions. I. Psalm 9 : I8 states: "The wickedshall return to the netherworld, even all the nations thatforget God." Thus not only the sinners but even those gentileswho live moral lives but who forget God or do not believein Him are condemned to perdition. 28 "Even if they fulfillall the commandments in the world it will not avail them atall because they do not know Him who commands the fulfill-ment of the commandments." This first derivation, whethersubstantively correct or not, can hardly be regarded asMaimonides' authority. It is, in the first place, a much

27 ib., p. 155, pp. I79-I83, dated Altona, November I773.28 Cf. Sanh. Io5a. Compare also Sanhed. Io7b-IIob; Aboth deR.Nathan, ch. 36, first part; Tosefta Sank. ch. 13 : I-2.


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blunter though perhaps equivalent statement of the case,and, in the second place, had Maimonidesconsideredit hisBiblical justification there is no reason in the world why heshould not have quoted it himself in a passage in which hequotes several other Biblical verses. 29 2. Even a Jew whoperforms a Mitzvah for an ulterior purpose rather than forits own sake, lishmah, is often condemned by the talmudicrabbiswhoexclaimthat it wouldhave beenbetter had he neverbeen born. They even go so far as to declare that "a sincommitted for its own sake is better than a good deed foran ulterior motive." Now, to do a good deed for its ownsake means, Emden says, to do it "becauseit is God's com-mandment, because He instituted it and ordained that Hiswill be obeyed in this fahion." If this is true for a Jew, howmuch more must it be true for a non-Jew; but a non-Jew whofulfillsthe Noachite laws without knowingthat they constitutethe revealed will of God is obviously incapable of complyingwith this requirement.3. Those Jewish theologianswho holdthat "the commandments must always be performed withthe proper ntention" (kavanah)would clearlyhave to take thesame position which Maimonidesrepresents, for one cannothave the proper intention unless one knows what the goalof the intention is to be, towit God. But even accordingto the school which believes that "the performanceof thecommandmentsdoes not requirethe possessionof the properintentions" (operans operandi)a Noachite must be expectedto believe in the revealed originof the Noachite laws, for therabbinic dispensation for those who fulfill the law withoutthe properintention only applies to Jews. It applies to thembecause two good results may be expected to be achievedby the Jew who abides by the law without doing it for theright reason: in the first place, "from fulfilling the law forthe wrong reason he may learn to fulfill it for the rightreason," and by being punished for fulfilling the law inade-

29 It might be added that R. Jacob picks one of two views to befound in Abodah Zarah 65a quite arbitrarily.

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quately he will learn his lesson and in the future fullfill itadequately. Neither of these good results can be expectedfrom the unbeliever, for "there is not faith in him." Boththese results rest on the premise that he who fulfills the lawat least believes in Godand His law, though he may not fulfillit for this reason, but a person who does not even believe indivine revelation can hardly be brought to fulfill the lawwith this fact in mind. He will do it "only for his own advant-age and pleasure... All the justice and kindness whichidolators practice are sinful, because they act in this manneronly in order to magnify themselves... and so that theirtemporal rule may be lengthened."30 The only credit whichJacob Emden is willing to concede to them is that they maybe able to obtain earthly credit, but they are certainly notentitled, he concludes, to "a share in the world to come."Now, whatever one may think of the religious or Jewishvalidity of R. Jacob's argument, one thing seems clear: thelatter two reasons are not in their very nature sources orauthorities; they are arguments to buttress Maimonides'position, both revolving around the indispensability ofproperintention in the performanceof religiouslaw. For allwe know at this point Maimonidesmight even have agreedwith the reasoningwhich he follows, but such reasoningdoesnot constitute literary or legal authority. CertainlyMendels-sohn, for example, must have remained completely uncon-vinced by R. Jacob Emden's reply. Their extant correspon-dence ends at this point, but we can easily imagine whatMendelssohn's reaction must have been: in the first place,he will have said to himself that lots of men believe in Godand may even act morally for God'ssake without necessarilybelieving in the divine authority of the Torah; in the secondplace, he will have answered that the very purpose of theNoachite laws as the natural law valid for all human beings

30 Cf. Midr. Prov. XIV, 34 f., 38b. Unless carefully read Mai-monides' letter to R. Hasdai (cf. p. 24a) might seem to support R.Jacob's justification in terms of "the heart's intention."

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is precisely to provide an avenue of salvation for those whodo not happen to be heirs to the Jewish tradition, and,therefore,all the deductions made from this tradition cannotbe believed to be valid for them. We must then concludethat also R. Jacob Emden was unable to supply an answertothe question from where Maimonidesreceived the talmudic.authorityfor his statement. We must furthermoreconclude,in the absence of other proposed solutions, that the KesefMishnehwas right in the first place: Maimonides added theNoachite requirementof belief in the divine authority of theTorah on his own accord. Or, if one is ready to concede thatthese sourcesmay after all constitute Maimonides'authority,the problem is merely pushed one step backwards:why didMaimonidesuse these sources to come to his controversialconclusionwhen so many other Jewish interpreterswho wereno less acquainted with them did not utilize them for anysuch purpose?If our conclusion is correct, the second question whichwe must ask of Maimonidesgains even furtherin importance:what were his reasons for this dictum?Two reasons which were suggested by Hermann Cohen inhis polemic against Spinoza must be ruled out. He suggestedin the first place that we must weigh the two formulationsofthe principle that "the righteous men of the nations of theworld have a share in the world to come" in which the addi-tional requirement is not mentioned against the one placein which this controversial sentence does occur and impliesthat the latter is, therefore, of little if any consequence.31This is false reasoning. The two sentences in "The Laws ofRepentance" and "The Laws of Testimony" may not expli-citly state the additional requirement,but there is nothingin these two clauses which contradicts the third. In themMaimonidesmerely repeats that the "righteousof the nationshave a share in the world to come," but he does not explainwhat constitutes such righteousmen. It is perfectly consistent

31 loc. cit., p. 348.3

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for him in "TheLawsof the Kings"to definewhat a righteousman of the nations is and then to let the student concludethat it is a personso definedwho is referred o in the othertwocontexts. Furthermore,we must hold in mind the principlewhich Leo Strauss32 lays down. Strauss assigns his place toMaimonides in the tradition of esoteric writing in which,during much of antiquity, the Middle Ages, and even inmodern times, thinkers who believed that their somewhatunconventional beliefs might draw upon them the wrath ofpriests, rulers, or mob disguisedtheir views in such a mannerthat, even while they expressed their doctrines sufficientlyclearly for the comprehensionof the initiates, the generalreader would be oblivious to their true opinions. One of therules of this kind of Aesopian style is, then, formulated byStrauss thus: "We may establish the rule that of two contra-dictory statements in the Guide or in any other work ofMaimonidesthat statement which occurs least frequently oreven which occurs only once was considered by him to betrue." Cohen's attempt, then, to justify a virtual omissionof the debated clause must be rejected for these two reasons.Cohen's second explanation of Maimonides' disturbingdictum must also be rejected. For he claims that in the twoformer instances Maimonidesspeaks generally of Noachitesof whom no requirementis made beyond the seven Noachitelaws, while in the statement at issue he speaks of a specifickind of Noachite, namely the ger toshav, i.e. the residentstranger-convertwho is a citizen of the Jewish state. Thistype of gentile, now, Cohengoes on to argue,had to give someadditional guarantee that he would always remain a loyaland obedient member of the Jewish society. If he agreed tothe ethics of the Noachite covenantby virtue of his ownreasonalone he might at some future time change his mind for tohim equally cogent rational reasons and thus become sub-versive of civil obedience and peace. This contingencycouldbe prevented only by ascertainingthat his submissionto the

32 Persecution and the Art of Writing, Glencoe, Ill., I952, p. 73.

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Noachite laws was grounded in a more lasting reason thanhis own calculations, namely a divine command in whosevalidity he believed. 33 There is only one thing wrong withthis argument of Cohen's: even if his distinction between"the righteous man of the nations of the world" on the onehand and the "resident stranger-convert" on the other iscorrect, even if his definition of what talmudic law had inmind in the concept of the ger-toshavs valid, 34 the wordingof Maimonides' disputed statement makes it indubitablyclear that he regardsthe person who does not believe in thedivine origin of the Noachite laws in the Torah not only asno resident convert-strangerbut also as no "righteous manof the nations of the world": ". . . ., then he is not a residentstranger-convertnor one of the righteous men of the nationsof the world but one of their sages," and only the righteousmen of the gentile nations have their share in the world tocome. But this is precisely the point which in Cohen'sargu-ment is completelymissed:even grantingCohen'sascriptionofpolitical motives to the refusal to let a man persuadedof thevalidity of the Noachite laws by his own reason be considereda stranger-convert,Maimonidesalso refuses to consider himas morally and religiously a righteous memberof the gentilenations from the point of view of Jewish law and denieshim eternal salvation,-and this latter point is what disturbsso many readers of this passage. 3533 loc. cit., p. 349; Religion der Vernunft, p. 386.34 and Benamozegh, op. cit., p. 6I8 would seem to support him onthis point; also the discussion on p. 596. Also Michael Guttmann,Das Judentum und Seine Umwelt, Berlin I927, pp. 52, 59, IIo.35 How the term "Noachite" differs from the term "resident-convert" Maimonides himself defines and in such a manner as toinvalidate this argument of Cohen's: "Who is a resident-convert?A gentile who has taken upon himself not to engage in idolatrytogether with the other commandments which are obligatory forNoachites, eventhough he is neither circumcized nor baptized; behold,him we accept, and he is one of the righteous men of the nations ofthe world." (Cf.also AbodahZara 64b; "Laws of Forbidden Marriages,"ch. 14 : 7) In other words, a resident-convert is a Noachite whofulfills the obligations of a Noachite.-This passage in Hilchot Issure

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THE JEWISH QUARTERLYREVIEWCohen is, of course, an interested party in this dispute.He has three reasons for not wanting to believe that Maimo-nides could possibly have said what clearly he does say. Inthe first place, Cohen had unboundedadmirationfor Maimo-nides. He regardshim as the by far most outstanding Jewishthinker of all times; he discusses his writings and quotes

Bi'ah goes on to make the famous and controversial statement that"resident-converts are accepted only in the time when the law of theJubilee year is practiced," not now-which is to say, only in messianictimes. (Cf. Arakin 29) The Rabad, of course, disputes this view andwould restrict the acceptability of resident-converts at the presentonly to the extent that certain privileges which would devolve uponthem in messianic times they could not now enjoy. (ad locum) IfMaimonides' original statement were to be left as it first seems topresent itself, the clear implication would be that only in messianictimes can there be practicing Noachites, and that then the belief inRevelation would also be pre-requisite would presumably be not somuch a demand as a self-evident assumption. On the other hand,it is hard to believe that Maimonides could have held that untilmessianic times no gentile could be "righteous." Perhaps the solutionof this problem lies in Maimonides' exact wording. Ch. 14 : 7 declares:"Why is a resident-convert called 'resident?' Because we may settlehim among ourselves in the Land of Israel." 14 : 8 then immediatelygoes on: "We do not accept a resident-convert other than in messianictimes." It is possible, now, that the acceptance mentioned does notrefer to the acceptance of resident-converts as such but rather morelimitedly to the acceptance of his full residence-rights in Palestinewhich is discussed immediately previous to this sentence. (This isalso true because conversion in messianic times must be suspectedof ulterior, materialistic motives and would, therefore, violate 13 : I4.)This would then coincide with what Rabad calls the "strict" of thetwo-according to him-possible explanations. And this also soundslogical, because the practice of the Jubilee year implies residence inPalestine and economic prosperity, whereas in the conditions of exilicdistress and poverty residence in Palestine is impossible by definition,and economic help is difficult. This solution would further seem tobe supported by the fact that the legislation concerning Noachitesis placed by Maimonides in the "Laws of the Kings" immediatelyprior to, and, therefore, presumably connected with, the last twochapters (II and I2) which deal with the definition of the messianicKingdom. In the very last law of ch. Io concerned with Noachites,a few words before the discussion of the Messiah begins, Maimonidesre-iterates: "for behold, we are commanded to support the resident-converts." This, then-not the acceptance of resident-converts assuch-is the messianic aspect of Noachitism.

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him more often than any other Jewish authority. And Cohen,therefore, is afflicted with the same problem which alreadyMendelssohnsuffered: how could this greatest of all Jewishspokesmen teach a doctrine which neither of them couldbelieve on the basis of their own understandingof Judaismas a rational and thoroughly tolerant faith, on the basis oftheir own endeavors to bridge the gap between Jews andtheir non-Jewish fellow-Europeans,and on the basis of theirown philosophicalsystems of ethics and truth?

The second reason why Hermann Cohen could not, as itwere, believe his eyes when he saw Maimonides'dictum in"The Laws of the Kings," chapter 8, II, is that in his ownsystem of philosophical religious ethics the Jewish conceptof the Noachite as the ethical man pleasing to God purelyon the basis of natural, rational moral law without religiouscommitment holds foremost place of pride and glory. Theconcept of man as possessing inherent dignity and value,regardless of race, nation, creed, or social status,-the uni-versal dignity of human beings as the cornerstone of moralphilosophy and social progress-, this concept Cohenrightlybelieved to have been achieved by Biblical Judaism. Neitherthe loftiest height of Greek philosophy with its distinctionbetween natural-born slaves and barbarians nor the widesway of Roman imperial sovereignty over many differentnations and religions produced this concept so fundamentalto the increasing freedom and welfare of the human race.Only the Bible recognized the dignity of all human beings."Messianicmankind," Cohen proclaims, "was foreshadowedin the stranger who has equal rights." 36 "This is the greatstep with which humanity begins, and it begins in the formof law and state, althoughthis state is based on the One God,and although this alien does not profess Him." 37 That Mai-monides should infringe upon this universal concept is incre-dible to Cohen.

36 loc. cit., p. 345.37 Religion der Vernunft, p. I4I.

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Finally, Cohen knew very well that Spinoza used thispassage in the MishnehTorah,as we shall see shortly, in oneof his most virulent attacks on Judaism. And Spinoza wasthe arch-enemyto HermannCohen.Spinoza taught not onlythat nature is God rather than that God is the author ofmorality, he not only libeled Judaism, he identified rightwith might, denied freedom,- he also advocated submissionto rather than conquest of reality. 38 Spinoza's attack onMaimonidesand through Maimonideson Judaism as a wholehad to be annihilatedat all costs. We shall also have to refuteSpinoza, but Cohen'srefutation by vindicating Maimonideson this score does not succeed.Another reason that has occasionally been adduced forMaimonides'position is that he held not only morality butpiety, i.e. religious devotion based on religious belief, to beprerequisite to salvation, for Jews as well as for non-Jews.Though this terminological evidence does not seem to bementionedin this connection,it is, of course,strikingthat theword usually translated as "righteousman" (chassid)meansmore than merely the good man; it is often in other connec-tions translated as saint or pietist and is derived from thedivine quality of chesed or grace. Thus, for example, themediaeval Al-Ashkar39interprets the Maimonideanpassageto imply that not primarilyphilosophicalwisdombut religiouspiety is the criterion for divine acceptability. Dr. Sonnesimilarly expressed himself: Maimonides,he says, held thatbelief in torat moshe misinai, the divine Mosaic revelation,was indispensableto salvation. This is the religiousequivalentof his philosophical tenet that right beliefs are prerequisiteto immortality.Now, this is obviouslytrue; it merelyre-stateswhat Maimonidessays in other words in the passage under

38 Cf. the famous essay "Ueber Staat und Religion, Judentum undChristentum," and many other places throughout Cohen's writings;Ernst Simon, "Zu H. Cohens Spinoza-Aufassung," MGWdJ, vol.79, 2, Breslau I935, pp. I81-I94; Schwarzschild, "The DemocraticSocialism of H. Cohen," HUCA, vol. XXVII, pp. 421 f.39 loc. cit.

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NOACHITES-SCHWARZSCHILDconsideration. On the other hand, it does not help us muchin understandingwhy Maimonidesheld this view.A letter from Maimonides to R. Hasdai LaLevy, theSpaniard (of Egypt), residingin Alexandria, s extant in whichthe writer also refers to this problem:40 "As for what youask about the gentile nations, you must know that God asksfor the heart, and things go accordingto the heart's intent-ion. 41 Therefore, the sages of truth, our rabbis, may theyrest in peace, said: 'the righteous of the gentile nations ofthe world have a share in the world-to-come'-if they haveattained to that which it is properto attain of the knowledgeof the Creator, blessed be He.. . There is no doubt thateveryone who has improved his soul with the propriety ofthe virtues and with the propriety of wisdom in the faithin the Creator,blessed be He, is certainly among the childrenof the world-to-come, and therefore the sages of truth, ourrabbis, may they rest in peace, said: 'even a gentile, when hebusies himself with the Torah of Moses our teacher, may herest in peace, is like unto the highpriest.' . .. There can alsobe no doubt that the patriarchs and Noah and Adam, whodid not keep any of the wordsof the Torah,werenot childrenof hell; rather, when they reached and attained to that towhich it is proper to progress, they certainly were in thehigh sphere." 42

40 Iggerot haRambam, Leipzig I859, vol. II, pp. 23 f. Prof. Altmannkindly brought this passage to my attention. Guttmann, op. cit.,p. I57 also mentions it, and Mendelssohn refers to it. (cf. note II)Maimonides, in this letter, refers to the Guide; it must, therefore,have been written later.41 Cf. Sanhed. io6b; Ber. I5af. Cf. also Bernhard Heller, "'Gottwuenscht das Herz:' Legenden ueber Einfaeltige Andacht und ueberden Gefaehrten m Paradies," HUCA IV, 1927, pp. 365-404.42 Comp. the Christian doctrine of the descent into hell to savethese very personages: "descendit ad inferos." "La descente de Jesusaux enfers" (Dictionnaire de Theologie Catholique, vol. 4, p. 6oo):"telle est done l'explication exacte de l'oeuvre du Christ aux enfers:c'est la liberation des justes ou des saints, des Juifs principalement etmeme des gentils qui accomplirent durant leur vie les preceptes de laloi de la nature ou de leur loi positive et obtinrent ainsi la grace."

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It will be noted that, despite the conciliatorysound of hiswords, here also Maimonidesinsists repeatedly on the pre-requisite of faith in God for the attainment of salvation. Hedoes not say so in so many words, but he clearly leaves roomfor his doctrine that "the virtues" can be acquired onlythrough revelation.

The Historic QuestionWe turn then to the most important question that arises

out of Maimonides'famous statement. Why did he have tomake it in the context of his philosophical theology? Whatis its place in his system?In the attempt to answer this question we may begin withthe observation earlier quoted from Mendelssohn's etter toR. Jacob Emden, that for Maimonides the recognition ofgood and evil was not a matter of the rational intelligencebut rather of convention or statutory enactment. If this is so,Mendelssohnrightly argues, then a man who claims that hebelieves in the morality of the Noachite laws is not to betaken seriously, is certainly not to be relied on in the longrun, for he believes in a morality which he has attained byfalse and illogical reasoning. And this, of course, correctlyrepresents Maimonides'view of the matter. In his Treatiseon Logic43 he proposesthat among the judgments which areknown to be true without further evidence are, in the firstplace, "conventions" (concensus gentilium, mefursamot) suchas "our knowledge of the fact that sexual unchastity isrepulsive and that repaying someone who has benefactedus as much as we can is appropriateand right," and, in thesecond place, "traditions, that is anything accepted from achosen person or from many chosen persons." It is to benoted that moral cognition as exemplified in chastity andgratitude is couched in esthetic terminology, as to this dayit is commonly held that what is beautiful and ugly is amatter of personal, subjective taste. If there are to be then

43 Ed. Israel Efros, N.Y. I938, ch. 8, pp. 39 f-Hebrew part.

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generally accepted standards of this kind of knowledge, theycannot be arrived at by logical excogitations but rather mustbe attained by conventionsagreed upon by any given society,bequeathed to it by past practices, or imposed by divine orhuman statutes. And this is exactly what the Rambam inhis philosophicalethic teaches. In the Guide to the Perplexed,Part I, the entire second chapter is in effect devoted to thisquestion. Maimonides begins by interpreting the Biblicalverse "And you will become like God in that you will knowgood and evil" (Gen. 3: 5) very discreetly and ingeniouslyto mean that only God, and anyone who is like God, candiscern good and evil. This knowledge, in other words, is adivine prerogative not properly bestowed upon the humanintelligence. "With the reason man distinguishes betweentruth and falsehood, (this is an intellectual operation) . . . butthe repulsive and the lovely (and we have already seen thatMaimonides identifies moral categories with esthetic ones)are conventions, not rational concepts... Thus in our lan-guage we speak of that which is right and that which is notright as truth and falsehood, but of that which is ugly orlovely we speak as good or bad." Again later in the samechapter he declares: "For the necessary, intellectual existentthere is no goodness or evil, only truth and falsehood." Inother words, for God the moral and the immoral are notquestions of goodness or evil but of rightness and wrongness;it is only for man, with his limited intelligence, that suchproblems cannot be resolved with intellectual, scientificfinality but rather are dependent on less definite judgmentswhich, just because of their indefiniteness, require positiveenjoinments for their completion.This view of Maimonides s, of course, an integral part ofhis Aristotelian inheritance. Aristotle taught: 44 "Now fineand just actions, which political science investigates, admitof much variety and fluctuation of opinion, so that they maybe thought to exist only by convention and not by nature.

44 Nichomachean Ethics, I, Io94b, 14-23.

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And goods also give rise to a similar fluctuation becausethey bring harm to many people; for before now men havebeen undone by reason of their wealth and others by reasonor their courage. We must be content, then, of speaking ofsuch subjects and with such premises to indicate the truthroughly and in outline, and in speaking about things whichare only for the most part true and with premisesof the samekind to reach conclusions that are no better." This view isshared by Maimonides.He teaches in many places that whenit comes to ethics and properhuman actions the intelligencecan only indicate the generaldirection, set the broad outline,but the details and specifics which are so important if thegeneral principlesare to have any meaning whatsoevermustbe provided by authorities other than reason. This positionis concisely summarized in the very clause which followsimmediately upon the controverted clause in the eighthchapter of the "Laws of the Kings" and which strikingly ismeant to explain it, though it never seems to have been puttogether with it by the commentators:45so far as the six ofthe seven Noachite laws areconcerned hat weregiven alreadyto Adam, "although the reason inclines toward them, it isfrom the words of the Torah that we learn that they werecommanded to him." 46An analogy can be drawn between Maimonides'positionon this score and his view on the first of the 613 command-ments. It is well-knownthat in his Bookof theCommandmentshe lists as the first of the positive commandments the onewhich enjoins belief in God. This enumerationhas often been

45 ch. 9: I.46 And it should perhaps be added that Hermann Cohen who wasunderstandably so put out by the original restriction of the definitionof a Noachite, rationalist that he is, does not like this Maimonidean

view of the inadequate rationality of ethics any better and exertshimself to comment that this view of Maimonides implies no derogationof the autonomy of morality but a high estimate of the rigorousnessof reason. ("Charakteristik der Ethik Maimunis," pp. 81-88, Mosesben Maimon, Sein Leben, Sein Werk, Und Sein Einfluss, eds. W.Bacher etc., Leipzig I908).

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disputed. For example the GreatBook of the Laws (SeferHalachot Gedolot),Zohar HaRakia (cf. Megillat Esther adloc.) and Nachmanides take the position that this is not to becounted among the 613 commandments;rather that it is thefoundation of all the other commandments and cannot,therefore,be regardedas itself one of them. But this is preci-sely why Maimonidesdoes include it. All the other command-ments are dependent for their validity upon this one, andit must, therefore,be put at the very head of the list. Simi-larly, the fulfillment of the seven Noachite laws is in hisjudgment dependent on belief in he authority and commu-nication of their Author, and Hermann Cohen's objection,that adding this requirement to the Noachite laws is tant-amount to adding an eighth, 47 is no more cogent fromMaimonides'point of view than the objection of those whodo not wish to see the belief in God included amongthe totallist of 613 commandments.Finally this circumstancemust be taken cognizance of inthis connection: in chapter Io, 9 of the "Laws of the Kings"Maimonidesstates: "The basic principleof this entire matteris that it is not permitted to create a new religion and tomake laws by oneself out of one's own thinking, but rathera gentile must either become a convert (ger tzedek)and takeupon himself all the commandments or he may retain hisoriginal faith, and then he must neither add to nor detractfrom it." On the basis of the principle implied in this clausethe most interestingmodern book on Noachitismwas written,Elie Benamozegh'sIsrael et L'Humanite,Paris I9I4, a book,it might be added, which was more than a book in that atleast in France it brought about a small but importantmovement of Christian conversions to Noachism.48 Funda-mental to this study is the theory that Noachismis the religionof the gentiles taught by Judaism, itself the religion and thelaws of the Jews. In the time especiallyof the birth of Christia-

47 oc. cit., p. 350.48 Cf. the introduction by Aim6 Palliere.

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nity there existed two tendencies each of which contradictedthis theory by attempting to overcome the ethnic particu-larism of Judaism in an opposite manner: there was thePaulinian attitude which wanted to broaden the validityof Judaism by abolishing its legal requirements not onlyfor gentiles but also for Jews; and then there was the prose-lytizing attitude among Jews which intended to apply thelaw not only to Jews but to all men. 49But the two, Judaismand Noachism, must be kept apart and integral. Only in thisway will the truth of Judaism eventually come to benefit allmankindwithout on the otherhand impingingon the sanctityof Judaism or of the Jewish people. Noachism, then, fromthis perspective is what might be called "the out-patientdepartment"of Judaism, rather than the natural law whichexists outside and independentof Judaism. 50 For that reasonalso belief in God and in the revelation of the Torah to Israelis indispensableto the legitimate Noachite.It has been previously mentioned that Spinoza lets loosea vitriolic attack on Maimonides for several reasons, ourpassage being one of the most prominent in the Theologico-Political Tractate.An analysis of Spinoza's polemic againstMaimonides'view on this question shall, therefore,representthe last episode in our review of the checkeredand agitatedhistory of this controversial clause.

That Spinoza should heartily disagree with everythingabout this dictum in the Mishneh Torah and with all itsimplicationscannot come as a surprise.We have seen, in thefirstplace, that the basicphilosophicalreason whichcompelledMaimonides to take this restrictive position toward the

49 Cf. p. 22 f.50 ib., p. 483. At first glance it might appear that the establisheddoctrine that "he who is commanded to do and does is better thanhe who is not commanded to do and does" (Tosefta, Abodah Zarah8 4-8, H. Talmud Torah : 13) might here explain Maimonides'position, but this is not the case, for the Noachites are, after all,commanded the seven Noachite commandments. (Cf. Isaac Heineman,Ta'ame HaMitzvot BeSafrut Yisrael, Jerusalem 1949, vol. I, p. 25and notes).

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Noachites was the fact that he had learned from his teacherAristotle and was ready also for religious reasons to believethat ethics are not a purely rational, philosophicor scientificdiscipline.Only the barest outline of generalethical principlescan be definedby logicalmethods.The substanceof the matterwhich resides in its details can be obtained only throughpositive statutes, traditions, or divine commands, none ofwhich are produced by conscious, rational processes. Thiswas the reason, as we have seen, that Noachites could not betrusted to adhere to a system of morality at which theyhad arrived by philosophic considerations.Now, to the con-trary, if Spinoza's system stands for anything it stands forthe exactly opposite position, namely that ethics are a purelylogical and scientific set of principleswhich can be elaboratedin the smallest details. Indeed, the very title of his majorwork states as much: "Ethics, demonstratedin a geometricmanner;" that is to say, from a small group of fundamentalpremises,similarto mathematicalaxioms, by meansof logicaldeductions an entire consistent and adequate system ofmorality can be developed, even as every mathematicalresult can be obtained on the basis of the originaltheses andby meansof strictly logical analyses.Thus on the fundamentalpremiseof the very nature of what ethics are MaimonidesandSpinozaareworldsapart,and it cannot, therefore,take anyoneby surprise that they would violently disagree.This wide divergency also expresses itself, of course,onthe level of the more specific aspects of the actual contentof ethics. Thus where Maimonidesteaches, as we again haveseen earlier,that ethics, in order to take on human and livableform, requires a divine addendum in the shape of actualimperatives,-that ethics must necessarilybe religiousethicsand involve a definite religious commitment, (for all this isclearly involved in the prerequisite of belief in the divinerevelation of the Torah)-, Spinoza to the contrary teachesthat any rational human being can evolve his own validmoral outlook. Furthermore, according to Spinoza, who

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himself, of course, adhered to neither Judaism nor Christia-nity, submitting to the doctrinal or ethical yoke of a religiouscommunionis by no means indispensableto the moral man.Anyone who practices"the virtues of charity, joy, peace, etc.,whether he do so by reason of Scripture or on the basis ofhis own reason, is in effect taught of God."51Thus Spinoza strongly disagrees with Maimonideson thenature of ethics generally and on the indispensability ofbelief in divine revelation for the validity of ethics in particu-lar. He must, therefore,firmly reject the clause in the "Lawsof the Kings" which we have been discussing. And this hedoes. He goes one step further, however. He writes 52that"accordingto Judaism," not just accordingto Maimonides,a Noachite must accept the authenticity of the Torah, andhe then goes on to quote the disputed passage in its entiretyand in its unemended formulation.There are two questions which must be consideredin thisconnection: I) Why does Spinoza attribute Maimonides' iewon this question to all of Judaism, whereas, as we have seen,many of the most outstanding spokesmen of Judaism them-selves dissented sharply from it? 2) Was he justified andsincere in quoting the text from the Mishneh Torah in itsstrongest and almost certainly false form?So far as the second question is concerned, Joel 53pointsout that Spinozadoesnot limit himselfto quotingMaimonidesbut also refers to the little booklet Kevod Elohim in whichthis Maimonideandoctrine is alluded to and supported.Nowit happens that this passage as quoted in this book occursthere not in the corruptformin which we have it in ourextanteditions but rather in the correct form, reading "but oftheir sages" rather than "and not of their sages." It followsthen that Spinoza who used this book must have known ofthe correct text and willfully used the incorrectone in order

51 Theologico-Political Tractate, p. 80. 52 loc. cit.53 Spinozas Theologisch-Politisches Traktat-auf seine Quellen ge-prueft, Breslau I870, p. 56.

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to incriminate Judaism more gravely. (Hermann Cohenquotes this argument of Joel's who, incidentally, had beena teacher of his during his student-days and adds that thecorrect text is also used in the commentary,-he must meaneither the KesefMishneh or the LechemMishneh-,and that,therefore, Spinoza maliciously disregarded two pieces ofevidence rather than one, but this is not true; these commen-taries do not contain the original and correct wording.54)This circumstancealone, then, ought to make us suspiciousof the cleanliness of Spinoza'smotivation and of his methodsof argumentationin this controversy.As to the former question, why Spinoza went out of hisway in order to give the general non-Jewish public to whichhis Tractatewas addressed the impression that Maimonides'individual and certainly somewhat eccentric view authori-tatively represented the concensus of Jewish opinion onthis subject, Leo Strauss believes that this is a piece of whathe indulgently calls "amazing rashness." Strauss proceedsto criticize Spinoza for it and ascribes it to the "irrelevantreason that he (Spinoza) had happened to study it closelyin his youth." 55 On the other hand, we must hold more withJoel who believed that Spinoza acted in this fashion not justout of sincere though perhaps erroneous rashness and inhonest ignorance of his mistake but out of a conscious andintentional desire to identify Judaism publicly with the oneman who on this point happenedto be the most "dogmatic"thinker. 56 In other words, we are making the claim thatSpinoza knowingly and libelously distorted Jewish doctrine.And our reasons for believing this are three:In the first place, we have already seen that Spinozamustbe held guilty of consciously having chosen a quotation in atext which he was aware to be corruptjust becauseit displayedthe Jewish view on this questionin an even crasserlight thanwould have been the case otherwise. In the second place,

54 Cf. loc. cit., p. 347.56 op. cit., p. I5.

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throughout the Theologico-Political Tractate he pursues apolicy of what may be called maliciousreductionism;that isto say, he definesreligionin such a way that having acceptedhis definition the intelligent reader must reject it. Thus, forexample, he denies to the more highly developed religionsthe right to engage in Biblical exegesis and insists that theBible must be either taken literally or not at all. The anthro-pomorphismswhich occur in the Bible, therefore, may notbe understood in any metaphoric or theological sense butmust either be believed ot they must lead to a rejection ofthe concept of God as it is embodiedin the Bible. And it ison the ground that Maimonides s, of course, the most out-standing Jewish interpreter who dissolved all forms ofanthropomorphismsn as well as outside of the Bible by histheological exegesis that Spinoza polemicizes against himeven much more vitriolically and frequently than on theground of his statement in the eighth chapter of the "Lawsof the Kings." 57 The point of this entire harangue is not,obviously, that Spinozawants people to believe that God hasanthropomorphicattributes but rather that he wishes themto reject the Bible, and he can accomplishthis purposein nobetter manner than by insisting on the literal significanceof Biblical texts. Thus he reducesthe Bible to its most primi-tive level in order on this level the more easily to be ableto reject it. This is what we have called reductioad barbarum,and this is also the willful method which he utilizes in hisargument against Maimonides' Noachite legislation: byidentifying all of Judaism with its most radical expressionhe expects people to discard it the more eagerly.The third, last, and most cogent reason for believing thatSpinoza intentionally misrepresentedJudaism by ascribing

57 Cf. especially Tractate,pp. II5 ff.: "The falsity of such a doctrineis shown, ... for we have shown both by reason and by examplethat the meaning of Scripture is only made plain through Scriptureitself... Therefore, the method of Maimonides is clearly useless...In conclusion, then, we dismiss Maimonides' theory as harmful,useless, and absurd."

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Maimonides'view on this question to all of Jewish law is thefact that a doctrine which would exclude non-Jews from allforms of moral or social approbationfits in perfectly with thethoroughly untrue picture of Judaism which Spinoza is atpains throughout the Tractateto paint. It is a picture soflagrantly in contrast to the truth that there is even no needto refute it; merely to reproduce it is sufficient for anyimpartialreaderto be convinced of its falsehood.For Spinozaclaims that Judaism is profoundly xenophobic. Its religiousrites and rituals have been devised primarily in order todistinguish Jews from non-Jews, in order, in this manner,to keep them apart and preserve them as a separate entity,.and it is this fact which accounts for the history of anti-semitism, for naturally gentiles have reacted to this Jewishxenophobia by reciprocating Jewish hatred. 58 AlthoughJewish religious ritual was established exclusively in orderthrough t to moldJews moretightly togetherandto strengthentheir loyalty to the Jewish state, the Pharisees perpetuatedit even after the destructionof the state in orderto differen-tiate Jews from Chiistians.59 "Nurtured by daily rites ...the hatred of other nations ... must have passed into theirnature. Such daily reprobation naturally gave rise to alasting hatred, deeply implanted in the heart: for of allhatreds none are more deep and tenacious than that whichsprings from extreme devoutness or piety and it is cherishedas pious." 60 Again and again he comes back to this theme:Jewish patriotismis strengthenedby a religiouslyindoctrina-ted hatred of others, contempt for all gentile fellowmen andby the singularity of one's own religion.61 In his more ora-torical moments Spinoza goes one step further. He exclaimsthat the very God in whose existence he does not believe, aGod who can give laws and revelations, imposed religiousand ritual laws upon the Jews "in his anger" in order tomake sure that Jews would be held in contempt and hatred

58 op. cit., p. 55. 59 ib., p. 72.60 ib., p. 229. 61 ib., pp. 230 f.4

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by their neighbors and thus would not be able to preservetheir own existence and the existence of their state in theface of the enmity to which they would necessarily be expo-sed. 62 Here he thus discreetly alludes to the Hoseanic passagewhich states that God gave kings to Israel "in His anger."Indeed, Spinoza continues and now echoes Paul, their lawsare a constant reminder to the Jews of their defilement andtheir divine rejection. 63How ideally into this mythical picture of Judaism Spinoza'sversion and interpretation of Maimonides' restrictive legis-lation concerning Noachites fits. It too seems to declare that,Judaism teaches that non-Jews, people who do not believe inthe divinity of the Torah, are incapable of salvation,-thatindeed, they cannot even be moral. No wonder, then, thatSpinoza wants to believe that Maimonides made this point asstringently as possible and that he legitimately representedall of the Judaism which Spinoza wanted so patheticallyto reject and to defame.

The SystematicQuestionOne important aspect of the problem remains to be studied,and perhaps it is the most important. Having established asfar as we could what Maimonides said and why he said it, wemust ask ourselves what the philosophic and religious truth

is which is, also from our point of view today, embodied in hisdoctrine on this question.It can fairly be claimed that the fundamental problemclearly involved in the dispute between Maimonides andSpinoza is the problem of the possibility and validity of theconcept of natural law. Both philosophers ask themselveswithin the context of their respective systems whether thereis such a thing as a moral law which is known to and appliedby all men, regardless of whether they are Jews or gentiles,whether they have been given the special boon of divine

62 ib., p. 232.63 ib., p. 233.

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guidance or not, and regardlessof the time and the place inwhich they live, merely in their capacity of human beings.The traditional term for such a law is "naturallaw."That for Maimonides he question of the Noachite laws wassynonymous with the question of natural law can be seen,apart from the general considerations which we have justentertained, in several ways. The Noachite laws in Judaismare known by this name precisely because, all men havingperishedin Noah's flood, all mankind after Noah must havedescended from the only survivor of the flood. Thus Noahis, as it were, a second Adam, the forefather of all humanbeings, and the laws which devolve upon him and his descen-dants, therefore, apply to all nations, races, and religions.Maimonidesemphasizes this fact by stressing that actuallyof the seven so-called Noachite laws six were given to Adamand only the seventh was added in the time of Noah, thusunderlining the universal, "adamic" human nature of theselaws, 64 although the Talmud records some rabbis whoattributed as little as one Noachitic law to Adam. 65 Andhe inserts the statement that "the reason inclines towardthese laws" after enumeratingthe adamic laws, before pro-ceeding to the Noachite one. The latter and thus all of thefundamental ethical imperatives, he ends with the phrase:"Thus was it in all the world until Abraham came,"-andthen, of course, various additional Jewish commandmentswere issued.The identification of Noachite law with natural law forMaimonides can further be realized when two corrolarysources are compared with him. Also for Averroes, whom,of course, Maimonidesknew very well, natural law "corres-ponded roughly to the Second Tablet of the Decalogue butincluded the command of divine worship,"66 and such a listcoincides almost completely with the Noachite list. Also for

64 "Laws of the Kings," ch. 9: I.65 Cf. Sanhed. 59b.66 Leo Strauss, Natural Right and History, Chicago I953, p. I58.

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ThomasAquinas,who frequentlydemonstrateshis familiaritywith Maimonidesby quoting him, the state of nature is thatstate which referredto all nations prior to the Sinaitic reve-lation, and this, in turn, is a precise definition of the scopeof Noachitic legislation.67At least in the definition of the problem Spinoza agreeswith Maimonides.For him, too, this is the problemof naturallaw. All law, indeed all ethics were, of course,nature for himon the grounds of the famous doctrine of deus sive natura.It, therefore,really goes without saying that for him also theissue to be debated was whether there is or there is not sucha law which all men, qua men, can know and by which theycan attain to the highest good. That Spinoza was concernedwith the question of natural law even in the narrower senseof the wordcan, however,also be demonstratedwith historicalevidence. We know that he had the work of Hugo Grotius,the acknowledgedfounder of the modern theory of naturallaw and an older contemporaryand compatriot of his, in hislibrary.68 Also for Grotius the same distinction betweenrevealed and natural law existed which we have stipulatedas differentiatingMosaicfrom Noachitic law: positive divine(universal)law was embodiedin the Decalogue, whereas thegospels, the Christian equivalent of the Torah, were onlyapplicable to their recipients, Christians.69

If the issue, then, is the issue of natural law, what is itthat is describedby this term?The simplest and certainlyalso the worst concept of naturallaw is that concept according o whichmoralbehaviour shouldbe or is conducted by following the behavior of animate or67 Sutmma, I, qu. 102, a. 3 ad I2.68 Cf. Van Rooyen, Servaas, Inventaire des Livres formant laBibliotheque de B. Spinoza, Hague I883, pp. I47, 183.69 Cf. P. Ottenwaelder, Zur Naturrechtslehredes Hugo Grotius, Tue-bingen I950, p. II9. Cf. also I. Husik, "The Law of Nature, HugoGrotius, and the Bible," HUCA II, p. 400: Grotius speaks of Noachitelaw; p. 406 f.: Grotius quotes our passage from Maimonides onNoachite law.

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inanimate nature other than human beings. This idea hasbeen enunciatedat varioustimes in the history of philosophy.To the greco-Romancynics this was the fundamental criterionof ethics, and since they conceded that by social standardsthe actions of nature would have to be judged as at besta-moralthey concludedthat the moralman and moralsocietyshould also act in this fashion. Under the influence of thebiological doctrine of evolution such a philosophy of ethicsbecame popular again toward the end of the Igth century.The advocates of evolutionist ethics proclaimedthat even asnature progresses through the processes of the struggle forsurvival and the survival of the fittest, so also society in itsindividual as well as its collective aspects would progresstoward increased goodness by adhering to these principles.There is more than a little of this belief also to be found inSpinoza. The most characteristic passage in his writingswhich expresses this point of view is to be found in theTheologico-PoliticalTractate: "By the right and ordinanceof nature I merely mean those natural laws wherewith weconceive every individual to be conditioned by nature, so asto live and act in a given manner. For instance, fishes arenaturally conditioned for swimming and the greater for de-vouringthe less; therefore,fish enjoy the water andthe greaterdevour the less by natural right. For it is certain that nature,taken in the abstract, has sovereign right to do anythingthat she can; i.e. her right is co-extensive with her power.The power of nature is the powerof God,which has sovereignright over all things; and inasmuch as the power of natureis simply the aggregate of the powers of all her individualcomponents, it follows that every individual has sovereignright to do all that he can; i.e. the rights of an individualextend to the utmost limits of his power as it has been condi-tioned. Now it is the sovereign right and law of nature thateach individual should endeavour to preserve itself as it is,without regardto anything but itself." 70

70 p. 200.

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In the second place, there is that view of the law of naturewhich derives moral law not so much from external natureas rather from "human nature," what the Thomists callnatura humana. 71 In classic philosophy this position wasrepresented by the Stoa. It believed that by analyzing theessential nature of man and determining what his highestgood is it would be possible to deduce the principles of indi-vidual behavior and of social organization which wouldbest serve this aim. If the cynical-evolutionist interpretationof the doctrine of natural law almost refutes itself by wipingout all differences between brute nature and humanity, bydeclaring that man ought to do what he is doing, i.e. ethicsis not normative but descriptive, then the stoic-Thomistinterpretation makes a number of assumptions which inturn cannot be maintained. In the first place, it assumesthat human nature is static, determined once and for alleverywhere and at all times. "Human nature is the same inall men," postulates Jaques Maritain. 72But this is not onlyan unprovable theory; it is the epitome of all moral andsocial reaction, for it stipulates dogmatically that what manis now he must always remain, and thus it makes itself thephilosophical tool of all those who have always resisted humanprogress by pointing to what they said was the immalleablerecalcitrance of human nature. In the second place, thisschool of thought must always hold that there is such athing as an essential, permanent, and reliable moral cons-cience in man. Thomas calls it the "synderesis, a naturalhabitus of the soul" by which good and evil are recognizedfor what they are, an irradiato divini intellectus. 73 Again,this is at best an unprovable claim. Certainly human ex-perience would seem to demonstrate the contrary. Whatcrimes have not been committed in the name of conscience,

71 Cf. M. E. Schmitt, Rechtund Vernunft,Ein Beitrag zur Diskussionueber die Rationalitaet des Naturrechts, Heidelberg I955, p. 8.72 The Rights of Man and Natural Law, N.Y. 1943, p. 60.73 Cf. Schmitt, op. cit., pp. Io5 ff.

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and sincerely so! Furthermore, it dogmatically stipulatesthe existence of a separate moral human faculty which isrationally undeducible. When Cicero identifies the voxnaturae with omnium consensus he in effect endorses thisstoic position, and here again neither reason nor historyjustify such trust in majority agreements. The fact of thematter is that universally what people have believed in andwanted they have called "natural law," whatever were thereal reasons for their preference. Be it slavery or humanfreedom, property or selflessness, birth-control or free love,authoritarianismor democracy, they all have at one time oranother been identified by their proponents with the verysubstance of nature and reason. David G. Ritchie amusinglyillustrates this truth when he observes that in our language"a 'natural child' means a child born out of wedlock; but an'unnatural child' is not necessarily legitimate." 74 JusticeHolmes said the same thing differently: "The jurists whobelieve in natural law seem to me to be in that naive state ofmind that accepts what has been familiar and accepted byall men everywhere."75From the point of view of social morality the doctrine ofnatural law has on balance wrought more harm than good,for it tends to deduce from the fact that something existsthat it must also be according to nature,-for otherwise itwould not be likely to exist in the first place-, and that itmust, therefore, also be good. Thus the doctrine of naturallaw usually puts its stamp of approvalon every given reality,howeverrepulsiveit may be. 76It is essentially a conservativetheory. Spinoza himself illustrates such an attitude based onnatural law inertia: whatever form of government a nationhappens to have, be it good or bad, free or tyrannical, it is

74 Natural Rights, London I895, p. 20.75 The Holmes Reader, ed. Julius J. Marke, N.Y. I955, "NaturalLaw" (32 Harvard Law Review, 40-48, Nov. I918, p. 119).76 Cf. Schwarzschild, "The Democratic Socialism of H. Cohen,"op.cit., pp. 421 f.

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better than what a change of constitution by belligerent orpeaceful means could bring about. Keep whatever you have;what you will get through a change can at best be no betterand may well be worse. This is so important a principle forhim that he would have anyone who violates it punished bydeath and condemned to eternal infamy. 77 Thus it is thatSpinoza, though he opposes monarchy because he believesthat it is most likely to lead to tyranny, nonetheless alsoopposes abolishing monarchy when and where it alreadyexists, 78 and repeatedly he cites Cromwell'sPuritan Revo-lution as his case in point. 79Leo Strauss correctly characte-rizes this attitude: "This is a sharpening of an unpoliticalrealism based on Spinoza'sultimate premises,an affirmationof the real out of non-politicalmotives with later applicationto politics." 80This ramification of the doctrine of natural law is not apeculiarity of Spinoza's; rather it inheres in the very natureof the doctrine. Even one of its ardent latter-day defendersmust admit this. He points out that the theory as propoundedby Hobbes, from whom Spinoza learnedmost of his politicalscience, destroys the very possibility of distinguishingbetween good and bad governmentbecause whatever govern-ment is in power it has been brought about by the operationof nature and is, therefore,unobjectionable.It even destroysthe theoretical possibility of resisting any sovereign decreewhatsoever, regardless of its possible wickedness, becausesovereignty is granted unlimited sway. 81 To give only onemore example, also Hugo Grotius teaches such unrestrictedacquiescenceto establishedpower on the basis of the naturallaw: "The law of nature further teaches that everyone mustbe content with what is his, not only because it is otherwise

77 op. cit., p. 244; Political Tractate, p. 356.78 Theologico-Political Tractate, p. 242; Political Tractate, pp. 317 f.79 e.g. Theologico-Political Tractate,p. 243.80 Die Religionskritik Spinozas, Berlin 1930, p. 221.81 Strauss, Natural Right and History, op. cit., pp. 192 ff.

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impossible to maintain friendship among men," 82 again anattitude which even by an admirer of Spinoza's is describedas using "the law of nature to provide Grotius with a basisfor acquiescence to the social status quo."83The objectionsto the concept of natural law are not limitedto moral and political ones, however. Also from the philoso-phical and epistemological perspective it has been shown tobe untenable. For Kant this was an unjustifiable theory.It stipulated a number of things as given, as dogmaticallyand metaphysically irreducible, which could not defendthemselves before the tribunal of human reason. As we haveseen previously, natural law assumes the existence of man asan unchangeable reality, conscience as a divine and infalliblefaculty within man, and the moral law as an entity outside ofand objectively confronting man. But the moral law, soKant taught, is self-created and self-impcsed by man; it mustbe autonomous to be moral. Ethics are never given in anyexisting reality, be this now man or nature or revelation;they are ideals, "ought's," tasks to be achieved after theyhave been rationally defined. Man is not a noumenalreality whose permanent charactermay be assumed to havebeen formed from its very inception but in turn a perfectiblebeing capable of change and improvement. A competentstudent of Kant then summarizes his position toward theconcept of the natural law in these words: "We have reachedthe pinnacle of the system with respect to the metaphysicalfoundation of the philosophy of law. The concept of thenatural law is replaced by the a priori, or rather by thereason which expands a priori into principles."84 Thus,"however much the concepts of freedom and equality (astaught by Kant) seem to coincide with those of the natural

82 The Jurisprudence of Holland, transl. R. W. Lee, Oxford I926,I, p. 81.83 Lewis S. Feuer, Spinoza and the Rise of Liberalism, Boston 1958,p. 269, n. 14.

84 Erich Cassirer, Natur- und Voelkerrecht im Licht der Geschichteund der systematischen Philosophie, Berlin I919, p. 275.

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law, however much they are even described as demands ofthe law of nature, the peculiar achievement of critical philo-sophy consists of the special manner in which it interpretsthem. Freedom and equality are ideas which do not designatea "being" but an "ought," not a reality but a task of perfectionwhich is to be attained gradually." 85The position of Hermann Cohen with regard to the conceptof natural law deserves to be stated fully, firstly because heis the outstanding representative of critical philosophy,secondly because it is not sufficiently known, thirdly becausein the dispute between Maimonides and Spinoza with whichwe are concerned he is not only an interested and significantparty but also tended, we may now say wrongly, to fear thatin principle Spinoza, whom he opposed, might in this case havemade a valid point against Maimonides as whose student heregarded himself. "The danger of scientific dogmatismresides in the philosophical, allegedly metaphysical prejudicethat the foundation of morality is to be conceived as a naturallaw, as a law deposited in our bones. From this commonstarting-out point onward the paths and the directionsdiverge. Some say that we do everything out of compassion,others out of revenge. The so-called moral sense is blown inall directions. It is discerned in everything, and it is conceivedof as being compulsory since it is revealed in all directions andinterpretations. This is alleged to be the only basis for allhuman concepts and views of ethics, and this basis is foundin human psychology, or rather, to be more exact, in physio-logy, for the senses have always been located within thesmall confines of these two disciplines... When the morallaw is conceived as a natural law, as is done by the naturalistsof the senses, one is forced to revert to the psyche and to themetaphysics of rational psychology. The proper jurisdictionof ethics, which is derived from the ethos, is lost." 86 "Moralityis not supposed to constitute a problem of its own but merely

85 ib., p. 287.86 Ethik des Reinen Willens, Berlin I904, p. 94; cf. also p. 247.

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an exudation of nature,... but we know and understandthat this view is a mediaeval error garbed in modernclothes." 87 Thus Cohen'sfirst main objection to the doctrineof natural law is that it identifies ethics with physiology, the"ought" with "being;"it assumesthat morality is somethingthat exists rather than something that is to be achieved.A subsidiaryweakness of the doctrinewhich results from thisfundamental fault is that it leads to chaos, for all ethicalprograms have, as we had previously seen, invoked thewarrant of nature for their particular theses.A last and even more crucial objection must be raisedagainst the doctrine of the law of nature, Cohen continues."Only this is here emphasized, that the ethical personalityis not given and may not be pre-supposed with certainnatural tendencies and conditions... The ethical subjectis not the spirit which so easily becomes a moral ghost. Theethical subjectis not simplyborn andhereditarilydetermined;rather, however much birth and heredity may have to betaken into account, the person still always remains a newand peculiar problemwhich cannot be dissolved into its givenfactors and conditions. The method of purity liberates theconcept of the ethical subject from prejudices... Whatmeaning could ethics have if the ethical subject could betotally conceived as given, born, and raised in its environ-ment? Ethics would then dissolve in anthropology... Themethod of purity, on the other hand, seeks to determinethose conditions and concepts which-we may put it so-bring about the concept of the human being in accordancewith the fundamental law of truth. Truth does not considerexclusively or even preferably a theoretical interest in theman of nature; it also demands the ethical interest in theman of culture and of universal history." 88 In other words,contrary to the necessary premise of all theories of naturallaw, man is not a given, permanent reality inaccessible tofundamental change. This is moral counsel of despair and

87 ib., p. 420; cf. also p. 421. 88 ib., pp. 91 f.

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political reaction,quite apart frombeingrampantempiricism.Man s abeingwhich,thoughshapedto someextent by the con-ditions of his physical origin,can be and should bemadein theimage of the ethical imperativeswhich he rationally imposesupon himself.Theseimperativesarehypothesesin the Kantiansense, ideas produced not by experience but by the reasonand thus "purely," though not idealistically in the sensethat they either have no relationship to the basic principlesof jurisprudenceor that they cannot powerfully affect men'sreal lives. This, contrariwisethen, is counsel of hope: man iscapable of infinite self-perfection;let no man reject demandsfor reformon the groundthat human nature is opposedto it.Subsidiary to this argument runs Cohen's final point, thatnatural law always defines man in terms of his most primitiveand original estate; this is a scientific, cognitive, historicalendeavor, not an ethical one. The truth of ethics is muchmore concernednot with what man is or was but with whathe is and can become under the conditions of culture andhistory.Contemporaryphilosophersof law whose intellectual orien-tation was significantly influenced by the fundamentalthoughts of Immanuel Kant, of Hermann Cohen and of hisMarburg-school f criticalphilosophyhave put their teachers'refutation of the doctrine of natural law into practice. Apply-ing it to the concretereality of jurisprudence hey have shownthat the idea of natural law is both irrational and injuriousand have replacedit with a more persuasiveand constructivedoctrine. Hans Kelsen is in some ways their most representa-tive spokesman. The law of nature, he declares, is the legalequivalent of the philosophical concept of the noumenon:it is supposedto "lie behind" the phenomenonof the actual,empirical law as its true, substantial, and permanentrealitywithout in human experience ever being capable of beingreached or even understood. But, like the idea of the nou-menon as such, this is an irrational idea, for, by definition,it cannot be grasped by human comprehension,and it cannot

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be made or shown to operate in the only universe which meninhabit, the universe of phenomena.89 Furthermore, the

philosophers of natural law, whenever they wish to bringtheir theory down into reality, necessarily and uselesslyduplicate the principlesof the law, for they must "positivize"the ideal law before it can become effective law. 90If therewere such a thing as a noumenal, "real,"naturallaw it wouldbe uncognizable anyway, and an uncognizable reality is,for human reality which is the only reality that can meaning-fully be considered in philosophic discourse, no reality atall. 91 Then again, as we have previouslynoted, wheneverthenatural law is brought down from its ethereal speculativeheights into the arena of human experience, in other wordswhen an attempt is made to spell out what it presumablycommands, it turns out to impose on men preciselythoseobligations which the positive law, the law defined andenforced by existing human powers, commands anyway.Thus it justifies and perpetuates positive law and, far fromhaving the revolutionary and rejuvenating effects which aresometimes ascribed to it, it is actually a profoundly con-servative force. 92 In this connection Kelsen alludes toRousseau and claims that his social doctrine of man's naturewas much less progressive than is generally believed. 93Inthe context he cannot take the space to prove his point, butit is a point well worth understandingand affirming,it onlybecause the historical connection between Rousseau andSpinozahas often been made. Whatever use the theoreticiansof the French Revolution may have made of his writings, thefact remainsthat by the time Rousseaufinishes defining"the

89 Die Philosophischen Grundlagen der Naturrechtslehre und desRechtspositivismus, Berlin 1928, p. 62. Cf. also I. Husik, "The LegalPhilosophy of Hans Kelsen," Philosophical Essays, Oxford 1952, esp.PP. 315 f., 321.90 ib., p. I6.91 Schmitt, op. cit., pp. 32 f.92 Kelsen, op. cit., pp. 33 f., 38, 40o.93 ib., p. 40.

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general will" and the citizen's duty of absolute submissionto this sovereign, there is not the slightest room left in hisstate for rebellion against unjust government or resistanceto immoral laws. The individual may at most preserve hissense of freedom and righteousness in the privacy of hisheart, but any and every public action, even in the sphereof religion, must be unquestioningly subordinated to thedictates of the state. At last Rousseau resorts to the speciousfreedom which, like Spinoza, defines liberty as resignationinto necessity, identifies it with peace of mind, and bestsummarizes it in the words: "There is no more liberty onearth but in the heart of the righteous man," 94 and onecommentator rightly describes this position, then, in thisfashion: "The word libertas on the prison-gates (and we today would add the inscription on the gate into the Dachauconcentration camp) and on the chains of the galley slavesin Genoa seems to Rousseau symbolic of the real meaning ofliberty in a civil state." 95Non, Kelsen concludes, the law ishuman social self-creation according to reason. 96Thus the concept of the natural law would seem to bedisposed of once and for all. And yet, when all is said anddone, there is one last consideration which prevents us fromdiscarding it in toto. The philosophical arguments in its favorhave not been found to be valid. But the necessities of socialmorality do impose an ultimate caution upon us. It is notunimportant, for example, that the idea of natural law firstseems to have been formulated in the classical age of Greekphilosophy as a protest against the positive law of the citywith its superstitions and mythologies, its tyranny andunrighteousness. There is a law higher than that of theruthless rulers, the philosophers declared, and to this lawthey appealed in the effort to liberate society. Since then itwould almost always seem to have been in situations of social

94 Walter Eckstein, "Rousseau and Spinoza," Journal of theHistoryof Ideas, V, 3, pp. 281 ff.95 ib., p. 288. 96 op. cit., p. 63.


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stress that the law of nature was brought out again. Grotiusexpatiates upon it when the Netherlands are locked in combatwith England over the freedom of the seas. Erich Cassirerstudies it in a book published in Germanyin I9I9 after theexperience of the First World War. Leo Straus advocatesits restoration after the experience of the lawlessness ofNazism and the Second World War. He makes no bonesabout it that it was this experiencewhich frightenedhim intofeeling the need for some reliable and permanent source ofsocial morality. He refers specifically to Kelsen when hewarns that the absence of a belief in natural law is an invita-tion to tyranny. 97 He persists in believing, or rather inhoping, that natural law is a revolutionary force, 98 for itis presumably something which even the dictator cannotset aside. With some justification he points out that, afterall, also the historical school of jurisprudentialthinking wasmeant to have a conservative impact on society since it wasdeveloped in the i9th century largely as a reaction to anddefense against the forces of the French Revolution whichwere, rightly or wrongly, associated with the idea of naturallaw. 99That there remains a last necessity for the idea of naturallaw from this point of view even the neo-Kantians are pre-pared to grant to a certain extent. HermannCohendoes notreject the idea completely but calls it "ambiguous,"-invalidand injurious for the reasons previously stated, but good inthe sense that it expresses the impulse to rebellion againstlegal arbitrariness.100 n his sense, however, the law of naturemust be understood not as a law to be found in nature oreven in human nature but rather as a law created by reasonin accordancewith, if you will, the nature of human ethics.Ernst Cassirerpoints out that in the thought of Kant and

97 op. cit., p. 4.98 ib., p. 93.99 ib., pp. I2 f.100 op. cit., p. 248.

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Cohen Rousseau's idea of the state of nature became trans-formed from the historic, empiric, original estate of man(grantingthat Rousseauhimself ever thought of it as such inthe first place) into a logical construct, a rational priority,which was philosophicallynecessaryso that all socialcontractscould be ideally deducedfromit and so that it could serve asa norm.101And for the same reason even Kelsen, the out-spoken advocate of legal positivism, in the end must stipulatea rational, natural Grundnormas a "minimally necessarynatural law" to justify the idea of the social contract andto provide a last resort of freedom and morality. 102Fromthe systematic-philosophicpoint of view we thus findourselves in a real dilemma: we cannot do without the ideaof a natural law, and we cannot justify this idea. We oughtto have it, and we ought not to have it at the same time.To proclaim it unambiguously, as Spinoza for example did,is to lead us into all sorts of philosophical and moral diffi-culties, and to reject it completelyleads us into grave dangers.This is precisely the point at which Maimonides'doctrineenters. He has been confronted with this kind of problembefore: theology seems to require the belief in creation, andphilosophyseems to refute it: in such a situation,he declares,the rational position to take is not to rely on the belief morethan absolutelynecessary,-if possible actually to do withoutit,-but then to try to make it as philosophicallyacceptable,even as likely as the reason is capable of doing.103And thisis also the position he takes with regardto the problemof thelaw of nature: "The reason inclines toward it, and in Reve-lation it is confirmed;"104 in other words, it is rationallylikely and even necessary but also undemonstrable anddangerous. What in a modern Kantian like Cohen the self-legislating reason had to do to assure the benefits of natural

101Rousseau, Kant, Goethe, Princeton 1945, p. 34: "Je chercheledroit et la raison et ne dispute pas desfaits."102 op. cit., p. 67; cf. also Schmitt, op.cit., pp. I03 f.103 Cf. Guide for the Perplexed, II, chapters 15-I8, 22-25.104 "Laws of the Kings," ch. 9: I.

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law, in Maimonides naturally Revelation was called upon toperform. This is by no means the same thing, nor is herethe place to discuss the merits of the two positions and toweigh them against one another, but Maimonides' view mayat least be said to have broken the stranglehold of a doctrineof natural law which regarded itself as being certain, immo-vable, and irresistible. His view proclaims that for effectivelaw men need more than natural law, and this itself hasproved itself to be an important philosophic achievement anda valuable contribution to the history of philosophic progress.In terms of his own philosophy Maimonides held the balancebetween the doctrine of natural law and the doctrine ofpositive (be this now divine or human) law, and this, it wouldseem, is also today as far as the human reason can go. 105Centuries later Locke expressed the same belief: there isnatural law, but it must be assured and affirmed by revelation,and to be able to do this revelation must be preceded by theknowledge of God. 106 And this is exactly what Maimonidessaid to the Noachite: the fulfillment of the moral law insuresyou of God's approval: the law of nature provides you withan inkling of the moral law, but by itself it is neither enoughnor reliable; to know the moral law you also have to submitto Revelation, and you have to know God. To us he says:the law of nature must be preserved if only so that we willnot always be restricted to the fallibilities of the positive law,but this natural law cannot be relied on to reside in the naturearound man or in the nature within man; it must come froma higher source. To Maimonides this source was, of course,divine revelation; to Cohen it was reason, or the nature whichman will in the future make for himself. It is another question,perhaps the most important one, whether on this last scoreMaimonides or Cohen has more to teach us.

105 Compare Guide, II, 40: "Though the Torah is not natural,nonetheless it has a natural access."106 Strauss, Natural Right and History, op. cit., pp. 203-205.

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