By Rabbi Gidon Rothstein, WebYeshivaLast time, I argued that a Talmudic statement with halachic ramifications points us in the direction of realizing that God originally wanted and expected human beings to define right and wrong themselves, which could have then been a perfectly reasonable alternative to the Noahide laws. Here, I take up the laws God eventually commanded, showing that they function differently than people often assume.One position, for example, claimed that the Noahide laws were really a type of alien law, a way for Jews to govern the non-Jews who lived among them.[i] While these laws are certainly also that, the Talmud is certain that the laws apply to all non-Jews wherever they live, making it more correct to say that they articulate the minimal requirements God set out for humanity. This also, by the way, might explain why Judaism saw each of these as capital crimes—they were defining the absolute minimum of what it means to be human, so that violating them forfeits one’s right to life.A second segment of thinkers, who have some Talmudic support, claims that Noahide laws are really just expressions of principles any rational human being would have to accept, Divine command or no. Many Jewish thinkers have understood the Noahides this way, and some Talmudic sources seem to support their position.[ii]Others, such as the late Prof. Marvin Fox, disagreed.[iii] He argued that the Talmud only meant that we could explain these laws in a way that made sense to outsiders, not that we would have figured them out ourselves. Central to his view was Rambam’s ruling that non-Jews only earn a share in the World to Come if they keep these mitzvot because of God’s having commanded them.[iv] If Rambam insists on an awareness of divine command, whether or not these laws are obvious is apparently irrelevant.A Third Way: Noahide Law Assumes Natural MoralityMy rosh yeshiva, R. Aharon Lichtenstein of Yeshivat Har Etzion,[v] offers a middle view that fits well with what I noted last time. R. Lichtenstein says Judaism certainly assumes a natural morality, intuitive and universally binding on all human beings.[vi] That morality, however, is not the same as Noahide law, a point also made by R. Dr. Norman Lamm and Prof. Aaron Kirschenbaum.[vii]This is an important distinction for our purposes here; it means that there is an intuitive and universal human morality, yet God decided (or, as we saw last time, was “forced” by human failure to act on that universal morality) to make more specific legislation. As we turn to the salient details of those laws, we will see that they teach much more than basic morality, they inculcate a worldview. This will be a first example, then, of where the failure of human autonomy led God to define principles of action that go beyond universal morality, but leave still-significant freedom for human input into defining the good life.In our case, the Noahide laws– as understood by the Talmud–[viii] obligate people to: build a society, not just see themselves as a concatenation of individuals who happen to live near each other; submit themselves, in heart and mind, to the One God; strictly respect life and property rights; express their sexuality away from their family of origin and only in relationships that could theoretically produce offspring; and to recognize that animals only become food after they have died. These were, I contend, the basic building blocks God wanted of any human society; from there, societies were free to move in multiple directions, as long as they did not lose sight of those basics.Dinin—The Social SystemWhile the Talmud is clear that non-Jews are obligated to establish courts, it does not define that further. The later writers who discuss it agree the courts are supposed to do more than just stop or avoid conflict, and seem to me to see it as requiring establishing, in each society, a shared vision of social structure and ideals.Rambam, the earliest of the three best-known contributors to the topic, justified Shimon and Levi’s killing the people of Shechem[ix] based on their capital liability for not judging or punishing their prince for kidnapping Dina.[x] This solves the theological problem of how two of Yaacov’s sons– progenitors of Tribes of Israel, deeply admired by Jewish tradition– could commit mass murder, but it also takes a position on individual and communal accountability for society’s legal health. Rambam’s assumption of extensive observer-responsibility is certainly not universally obvious, since current Western morality sees such bystander involvement as meritorious but not obligatory.In addition, Ramban disagreed, which means Rambam’s idea is not obvious even to Jews. Ramban instead thinks that dinim mandates establishing a system of civil law. He did not set exact parameters for what this system had to cover, but gave numerous examples, including “theft, overcharging, withholding wages, bailments, rape and seduction, torts, lending, business, and so on.”[xi] In this reading, the non-Jewish obligation was primarily to set up a functioning legal system, including courts. Incidentally, he saw all this as a positive requirement rather than a capital crime.Ramban does not mention how he expects non-Jews to arrive at their laws, which would seem to leave the process up to them. If so, he is assuming that members of each society must band together at least enough to agree on a set of rules governing their conduct, which necessarily involves decisions about that society’s character and ideals.R. Moshe Isserles, the sixteenth-century codifier of Jewish law known as Rema, reads Ramban as having gone a step further; Rema thought non-Jewish courts were required to adopt Jewish law in these areas.[xii] Jewish civil law is not only not universally intuitive, it conveys very pointed moral and spiritual lessons about how to handle business and social dealings. For Rema, Noahides need to adopt that value system in their civil law.Whichever of the interpretations we adopt, dinin pushes for a society that shapes its’ citizens’ lives and worldviews in more than minimal ways. Rema seems to have expected all human society to adopt the Jewish mode of handling civil matters and Ramban at least required non-Jews to make decisions about those questions, which inherently involves deciding what kind of society to inhabit. Rambam’s different approach still requires citizens to see society as a cooperative, cohesive venture, in which they police each other’s conduct at least around their basic laws.Idolatry Laws as an Introduction to Jewish MonotheismIf the first lesson of Noahide law was that people need to build a society instead of just live in close proximity, the commandments to forego idolatry and refrain from blasphemy teach central aspects of monotheistic belief. Making idolatry a capital crime rules out accepting any other power as ruler of the universe; it is difficult to imagine that even Jews saw these commandments as intuitive,[xiii] since paganism was alive and well in the time of the Talmud— Christianity did not conquer the Roman world until the fourth century, and paganism survived in Persia well beyond then.Too, traditional Jewish law counted at least some versions of major modern religions as idol-worshiping.[xiv] When the Talmud refers to idol worship as a prohibition that all understood, then, it can only have meant that non-Jews would understand monotheists’ prohibiting idolatry, not that they would instantly accept that point of view.Another element to this law, in the Talmudic understanding, is that it includes any bowing down, offering incense, sacrifice, or libation to a power other than God, even if the sects that serve those powers don’t value those forms of worship. The Talmud notes that because these were central practices in the Beit haMikdash, the Jewish Temple, they count as worship whenever they are done.[xv] Just expressing admiration or love for an idol does not incur the same penalty, but performing avodot penim, acts of worship that occurred within the sanctuary of the Temple itself, is instantly death-penalty worthy.[xvi]I highlight this because it means that to fully understand the obligation to avoid idolatry, a non-Jew would need to learn about Judaism and its Temple. True, the non-Jew could avoid all this by simply refraining from expressing any positive feelings for powers other than the Creator of the World, but that, too, means he has accepted Jewish monotheism.The Jewishness of the Laws of BlasphemyThe blasphemy laws also inculcate a particular view of what constitutes unacceptable rebellion against God. Simply saying, for example, “I hate God, I hope He x,” while not lauded, would not qualify as capital blasphemy. Instead, the Talmud limits the death penalty to where the blasphemer uses a name of God as part of the curse. In the Talmudic idiom, only saying “Yose should hit (or kill) Yose,” with Yose being a euphemism for names of God, is a capital crime. Cursing God is legally meaningless unless the power invoked is the only Power that could conceivably affect that Being.The laws of blasphemy also introduce Noahides to the esoteric matter of the Names of God. The Talmud assumes that the special name of God (YHWH; Rambam thinks the four-letter name that starts AD__ also qualifies)[xvii] and any kinui, nickname, would be a problem. Rambam thinks kinui includes: 1) names that are not among the seven special names of God, such as Elokim or Tzevakot, 2) the words for qualities Scripture attached to God, such as compassionate and merciful, and 3) Other languages’ terms for God, such as Allah, God, or Dieu.[xviii] Others[xix] limited capital liability to Scriptural names of God, such as Elohim or Tzevaot. Either way, a non-Jew who wants to be positive about avoiding blasphemy would have to learn about what Jews see as a name of God.The first three Noahide laws, then, show us that there is more going on here than the universal morality we all would have come to on our own. They teach about building a society, the absolute necessity of belief in one God who is the sole power that runs the universe, and about the need to treat that God with respect, a full definition of which only comes from understanding how Jews worship and refer to God.MurderMurder in its starkest form is perhaps the most intuitive crime around, but the Noahide code prohibits and punishes forms of killing that are today the subject of much debate. Noahide law labels as capital murder killing a person who is terminally ill (or wounded), a fetus, oneself, and even indirectly but premeditatedly causing another’s death.[xx]The vigorous debate about each of these issues in modern societies—abortion, assisted and ordinary suicide, and the level of liability for indirect killing—sufficiently proves that the Talmud’s definition is not universally obvious. More than that, these rules make a significant programmatic claim, that all human life, however underdeveloped or certain to expire, is off limits to active intervention to end it. Again, a rule that might seem minimal teaches a specific perspective of an issue important to any society, and one that is vigorously argued today.Incest—Focusing Sexuality on Marriage and ChildbearingWe often assume incest laws are intuitive, that any right-thinking person would see their logic, but, interestingly, neither Rambam nor Ramban agreed; when the Torah lists those prohibitions for Jews, each saw the need to struggle to an explanation of the prohibitions.[xxi] For non-Jews, the problem is perhaps even harder, since the Talmudic definition does not follow any sort of inherently intuitive model. There is debate about the conclusions of that discussion, but Rambam rules that the Noahide laws prohibit sexual relations for a man with his mother, his father’s wife, married women, his maternal (but not paternal) half-sisters, other men, and animals.[xxii]I suggest the Talmud’s derivation also gives its underlying logic. Parsing the verse that first discusses human marriage—“Therefore shall a man leave his mother and father and cleave to his wife and they shall be one flesh”–[xxiii] the Talmud infers that human sexuality must involve leaving one’s parents (the father’s wife stands in for the father himself) to create a physical interlocking (of the sort only men and women can create, not men and men)[xxiv] with one’s wife (and not a woman married to someone else), that will, in the ordinary course of events, lead them to become as one flesh (in the form of a baby), which rules out bestiality.Sexuality, in this presentation, is an extension of marriage and childbearing; only those relationships that could be marital, of the form where the physical union could produce children, are allowed.[xxv]The first five Noahide laws thus teach a raft of lessons. Society, God, the value of life, and now, sex, have come under their purview, in ways that humans on their own would not, did not, and, often do not approach them. Next time, we will complete our discussion of the Noahide code, letting us see where that instance of Divine legislation was supposed to take humanity, and the freedom it left for people to add their own personal and creative input into their relationship with God.[i] Of course, a Jewish state run according to halacha would require adherence to those laws by any non-Jews who wished to reside among them, see Rambam, Book of the Commandments, Prohibition 51 and Laws of Idol Worship 10;6. The idea starts with Hugo Grotius, who called them a Jewish version of ius gentium, laws the Romans promulgated to govern their relationships with non-Romans. On this, see Alasdair MacIntyre, Whose Justice? Which Rationality? (U. of Notre Dame: Notre Dame, 1988), p. 149. For my own ideas about how Noahide law could serve as a useful model of alienage law for the U.S., see my “Involuntary Particularism: The Noahide Laws, Citizenship, and Alienage” 18 Geo. Immigr. L.J. 543.[ii] For a discussion of Moses Mendelssohn, Hermann Cohen, and other similar thinkers, see the relevant chapters in David Novak, The Image of the Non-Jew in Judaism: An Historical and Constructive Study of the Noahide Laws (New York: Edwin Mellen, 1983). Novak offers his own views in Natural Law in Judaism (Cambridge: Cambridge U. Press, 1998). See also Nahum Rakover’s “Jewish Law and the Noahide Obligation to Preserve Social Order,” Cardozo Law Review 12 (1991):1073-1136 and Law and the Noahides: Law as a Universal Value (Jerusalem, 1998), a translation of his Hebrew book on the topic.Two Talmudic discussions come closest to portraying Noahide laws as natural, but each has significant problems as well: 1) Eruvin 100b states that even without revelation, humans would have learned modesty from the cat, thrift from the ant, incest from the dove, and sexual etiquette from the rooster. Even were we to grant that this meant people would have inferred a religious obligation to be modest, etc., Noahide laws do not deal with all of those, and in some cases, expect a lot more than we would have gotten from the animals. 2) The second source, Yoma 67b, defines mishpatim, one of the words the Bible uses for laws, as rules worthy of being promulgated even had the Torah not done so. The simplest interpretation of that statement is that these laws are so intuitive as to be part of every society’s legal system, especially as mishpatim are being contrasted to chukim, laws outsiders attack as senseless. Five of the examples given are also in the Noahide list, suggesting they are, indeed, universally intuitive. As we will see, though, there are two others on the Noahide list, the obligation to set up a legal system and the prohibition against eating a limb cut off of a living animal, and the details of the other five—as I discuss– should make it clear that the Talmud at most meant the outlines of these laws were intuitive, but not their full content.[iii] Marvin Fox, “Rambam and Aquinas on Natural Law” Dine Israel 3 (1972), pp. 10 and 26. See also J. David Bleich, “Judaism and Natural Law,” Jewish Law Annual VII (1988), 5-42.[iv] Laws of Kings 8;11.[v] Not to be confused with Aaron Lichtenstein, author of Seven Laws of Noah (New York: RJJ, 1986), who also figures in discussions of Noahide law.[vi] Rabbi Aharon Lichtenstein, “Does Jewish Tradition Recognize An Ethic Independent of Halacha?” Modern Jewish Ethics (Ohio State, 1975), 62-4.[vii] A. Kirschenbaum and N. Lamm, “Freedom and Constraint in the Jewish Judicial Process” Cardozo Law Review 1 (Spring, 1979), p. 120ff. See also J. David Bleich, “Judaism and Natural Law”, pp. 13-25.[viii] This leaves the possibility, as I noted last time, that the original Noahide laws themselves were open to various definitions, especially since some of the halacha to which the Talmud relates those laws had itself not yet been given. This would depend on the extent to which we believe that Talmudic references to Torah’s always existing and to the Patriarchs having kept all of halacha are meant literally, or in terms of broad ideals and worldview, itself a debated topic that I leave for another time.[ix] Genesis 34.[x] At the same time, Rambam does not require Noahides to sacrifice their lives to fulfill this precept, see Laws of Kings 10;2. If so, Rambam assumes Shechem did not have the power to impose his will on the people, which then raises the question of when Rambam would obligate protested a corrupt system or leader and when he would concede that circumstances exempted them from that.[xi] Commentary on Genesis 34;13.[xii] Responsa Rema 10. Responsa Chatam Sofer 6:14 and Responsa Tzitz Eliezer 16;55 analyze Rema’s view at length; R. Sofer at least seems to accept it. R. Naftali Tzvi Yehuda Berlin (Netsiv), Haamek She’ala, 3;2 disagreed, citing Psalms 147;20—“He has not done so to any nation, nor has he informed them of laws [mishpatim]”– as proof that Jewish civil law was given only to Jews.[xiii] Rambam thought he could logically prove the existence of a single God. At the same time, in Laws of Idol Worship 1;3, he assumes that Avraham spent thirty-seven years struggling with the issue before deciding that there was only one God.[xiv] An extensive literature discusses Jewish definitions of idolatry, too vast to analyze here. For some examples, Catholic views of the Trinity have been widely considered idolatrous, while many Protestant versions are not. Hinduism worships many gods, but some argue that what Hindus term “gods” should be seen as avenues to, or expressions of, the one central god. Similarly, the apparent idolatry in bowing down to a statue of the Buddha is explained by some adherents as only enunciating respect for the life he lived and the ideals he taught. In each case, the Jewish view is at the very least not intuitive to millions of people, even after thousands of years of monotheistic rhetoric, supporting my claim that these laws were doing something more than ratifying well-accepted truths.[xv] Sanhedrin 60b.[xvi] Laws of Kings, 9;2, based on Sanhedrin 56b, which ties a Noahide’s liability into a Jew’s being killed by a court for his worship.[xvii] Sanhedrin 56a and Rambam, Laws of Idol Worship, 2;7.[xviii] Laws of Oaths 2;2.[xix] See, e.g., Rashi to Sanhedrin 56a, s.v. ve-aliba de-Rabi Meir , who lists only actual names of God when he refers to kinuim.[xx] For indirect killing, see Laws of Kings 9;4. Although not our issue here, I believe Rambam sees Jews’ exemption from capital punishment in such cases as stemming from the belief that God will take care of those forms of the crime, see Laws of Murder 2;2-4 and 3;10. That non-Jews cannot rely on Divine intervention seems to reflect a belief that Providence affects Jews more directly than others.[xxi] Although, interestingly, neither Rambam nor Ramban assume it to be so, see Rambam, Laws of Kings 9;5-8, and Ramban, Vayikra 18;6.[xxii] Rambam devotes significantly more space to incest and eating a limb cut off of a living animal than to the other Noahide laws, perhaps because these were least intuitive. Other medieval authorities such as R. Meir Abulafia, Yad Rama to Sanhedrin 57b-58b, defined the incest prohibitions differently, but the overall principles seem to be the same[xxiii] Genesis 2;24.[xxiv] The prohibition of homosexuality was also not intuitive, in Talmudic times or our own; its inclusion in the Noahide laws is not what everyone of the time knew to be right; it is a corollary of the assumption that sexuality should relate to producing children.[xxv] I stress that this requirement is formal rather than practical. It is not that this man and this woman need to be able to have children—people beyond childbearing years are also allowed to marry—but that the physical act they engage in be one that could produce children. I would note, however, that the Biblical story of Sarah suggests, inter alia, that our knowledge that a woman can no longer give birth is not as absolute as we tend to assume. If so, relations between a man and a woman are always able to produce children, at least in theory.That the Talmud prohibits a maternal half-sister but not a paternal one, Laws of Kings 9;5, removes genetics as our concern. The Talmud does not explain the distinction, but I suspect it has to do with the man having come out of the same womb as a maternal half-sister. That the system allows Noahides to have intercourse with a daughter, a fact that needs detailed discussion in another venue, also highlights its indifference to genetic consequences.