Joshua Weinstein

Joshua I. Weinstein is an Associate Fellow at Shalem College in Jerusalem. He studied physics at Princeton University, Talmud and Jewish thought at R’ Yitzchak Yechiel Yeshiva in Jerusalem, and philosophy at University of California – Irvine and Hebrew University (PhD. 2005). In 2009-2010 he was a Starr Fellow at the Center for Jewish Studies at Harvard University and has since taught Greek philosophy at Ben-Gurion University and served as a fellow at Shalem College. His work in ethics, politics and psychology focuses on classical thought (Plato, Talmud) and recent phenomenology and philosophy (Strauss, Dreyfus, Rorty).

Weinstein is the editor of Disobedience and Democracy (Jerusalem: 1998), now in its sixth printing, and author of “The Market in Plato’s Republic,” Classical Philology 104 (2009) 439–58.

Paper:
On the Unity of the Torah

Abstract:
1. It is not at all clear what the Torah is. In a move perhaps surprising to a non-Aristotelian,
Maimonides suggests that physics and metaphysics are not only parts of the Torah, but its
esoteric core. From another perspective, the supreme learning of R. Yochanan b. Zakkai is
characterized as including not only scripture, mishna and talmud, halacha and aggada, but also
astronomy and geometry, the conversations of angels and of demons and of palms, and the
parables of launderers and of foxes. Even if some of these should be distinguished from Torah
in a different category called wisdom (whatever that may be), the definition of the boundary
would remain in need of explication. What then is the one thing called Torah of which any of
these are properly parts?

2. The traditional attempt to account for the unity of the Torah is BT Makkot 23b–24a, and the
main aim of this paper is an explication of this passage. As preparation for approaching this
text, let us make a few preliminary notes. First, if we take seriously the suggestion in certain
circles that reasoning, intellectual content and thought in general are intrinsically normative in
character then it is not too much of a stretch to propose that philosophy of law is first
philosophy. This could be taken as merely raising the stakes involved in identifying the
normative unity of the Torah. But it also affords insight into the outlines of any possible
answer.

3. Second, clues to the internal unity of the Torah can be derived from its external relations.
The Torah is given by the one God, is received by a particular community (Adamites, Noahites
or Israelites) and underpins the Created world (Prov. 8.27–29, Gen R. 1.1). These external
relations each impose constraints on the unity of the Torah (regardless of whatever other
relations may also apply).

4. As received by a delineated community the Torah takes on the character of law: public,
applicable, justiciable, disputable, rational and political. It constitutes the community as such,
and can be said to inaugurate a regime, a political community with a specific orientation and
corresponding ethos (grudgingly dubbed theokratia by Josephus). But strictly as received, the
Torah remains relative to that community and otherwise has neither claim nor purchase.
Even as “just” a law, however, the Torah must have a certain systematic unity. Lower-level
rules and rulings derive their normative force, moral meaning and even their decidability (in
hard cases) from the higher-level principles they embody and to which they look for their
justification. The Grundnorm or “sovereign virtue” that sits at the top (or bottom) of such a
legal hierarchy can itself float free of further normative constraint. Whether this freedom is
blissful or disconcerting is another matter.

5. As given by the one God, however, the Torah must be something more than just a law.
While retaining the systematic articulation of law, it can remain neither bound to a specific
community nor relative to it. Even if the Torah inaugurates a regime peculiar to a community,
this begs the trans-political question “What about this community makes this regime
appropriate, from the divine perspective?” Conversely, whatever one finds as the systematic
unity of the law cannot be merely communal in character. Moral imperatives – equal
citizenship, greatest good of the greatest number, treating others as ends – are not even
candidates until one has a theological explication of why God cares (the reverse of the
Euthyphro argument).

6. A similar problem of the relation of the political to the trans-political in normative
hierarchies appears in Aristotle’s N. Ethics. The argument from normative completeness (1.1)
suggests that all the arts should be subordinate to political science, so that the true telos of man
is political praxis. But eventually Aristotle admits that even praxis seems to aim at an end
beyond itself, while the potentialities of human activity are also not exhausted by politics.
Theôria completes the trans-political human good, so that we are left with a puzzle about the
relation of man as political animal (zôon politikon) to man as animal with speech (zôon logon
echon).

7. Our target passage in BT Makkot presents a number of approaches that articulate what the
whole Torah amounts to:

i. R. Simlai: 613 mitzvot were told to Moses: 365 prohibitions, like the number of days in the
year; and 248 injunctions, like the number of parts in the human body.
Norms govern through the binary logic of permitted/forbidden, while actions arise
from the confluence of capacity and opportunity. Bodily capacity is thus to be fulfilled,
while timely opportunities are to be curtailed. This articulation of action and
corresponding mode of normalization requires further analysis.

ii. R. Hamnuna: “Torah was commanded to us by Moses” TVRH is 611 in gematria. “I am”
and “There shall not be” were heard directly from the Power. [611+2=613]
Though the Torah is given, it is not so simple as to say “from God.” Indeed, this
givenness is far more due to prophecy, so that the Torah is almost completely the result
of interaction between man and God. This means that the problems noted in (5) and (6)
above begin to merge into one another.

iii. David came and founded them on eleven… Isaiah came and founded them on six…
This is the crucial transition. Through the detailed exegesis of Psalm 15 and Isaiah 33,
this section articulates a set of scrupulous and idiosyncratic ethical actions: a particular
kind of self-abasement, a rigorous kind of clean business, a delicate sensitivity to the
vulnerability of others. Their individual meanings require careful unpacking and their
collective sense is highly unclear. The present proposal is that these deeds, though
certainly not in any simple sense normal, nevertheless do illuminate the inner workings
of the Torah and the interaction of its normative structure with individual capacities and
sensitivities. We see at work here a high-level moral insight and advanced ethical
expertise, a combination of perception and action which need not be directly translatable
into a “one size fits all” normative hierarchy. Precisely the point is to illustrate how the
Torah cannot be passively followed or straightforwardly applied, but must have its
many lacunae completed through their fulfillment. Full incorporation of normative meanings into the agent makes possible the elaboration of novel insights and unique
achievements.

iv. Micah came and founded them on three: … “Doing justice, loving kindness and walking
modestly with your Lord.” … Isaiah came back and founded them on two: “Guard justice
and do righteousness.”
At this level of the discussion, abstract norms with theological valence come into play.
Justice, kindness, righteous and modesty are certainly norms that can be applied, but
there can be no rule-like articulation of how to fulfill them. In fact, they are each
candidates for the ultimate position in a legal hierarchy, as final explainers and
justifiers. Their presence here in various combinations, however, shows that this cannot
be their present function. The Torah cannot culminate in a merely legal norm, however
general and even universal.

v. Amos came and founded them on one, as it is written: “Thus says God to the house of Israel:
Seek me and live.” R. Nachman b. Yitzchak attacked this: Is this to say Seek me throughout
the whole Torah? Rather, Habakkuk came and founded them on one, as it is written: “The
righteous will live in his faithfulness.”

Clearly the life lived in a certain awareness of God is the one thing which founds all the
mitzvot, but the relevant awareness is not spelled out. One interpretation of how to live
with God is ruled out, however. It cannot be simply a matter of returning to the
unarticulated “laundry list” of 613 mitzvot, the whole Torah seriatim, but doing so while
all the while trying to reach God. This kind of “devotional halacha,” “mitzvot with
kavvana” – even if understood as devotional study of the Torah – seems to be the one
kind of faithfulness that our text seems to want to rule out.