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DAVID NOVAK’S ACCOUNTS OF NATURAL LAW i THE SEVEN LAWS OF NOAH OR NOVAK: AN ANALYSIS OF DAVID NOVAK’S ACCOUNTS OF NATURAL LAW By JONATHAN L. MILEVSKY, B.T.L., B.Comm, M.A. A Thesis Submitted to the School of Graduate Studies in Partial Fulfilment of the Requirements for the Degree of Doctor of Philosophy McMaster University © Copyright by Jonathan L. Milevsky, August 2017 i McMaster University DOCTOR OF PHILOSOPHY (2017) Hamilton, Ontario (Religious Studies) TITLE: The Seven Laws of Noah or Novak: An Analysis of David Novak’s Accounts of Natural Law AUTHOR: Jonathan L. Milevsky (McMaster University) SUPERVISOR: Professor Z. Planinc NUMBER OF PAGES: vi, 191 ii Abstract This thesis identifies two accounts within David Novak’s Jewish natural law theory. In the earlier account, Novak locates natural law within the Noahide commandments; in the later account, he also locates it within the reasons for the commandments and rabbinic enactments. The change between these accounts is marked by a shift in his description of rationality. The norms of the Noahide code are originally described as known strictly by reference to themselves. As he begins grounding the norms in the imago Dei, that knowledge becomes dependent on a “cultural heritage,” by which Novak comes to mean an explanation based on a doctrine of creation. By comparing the original presentation of the later account with its more developed iteration and highlighting the features that are unique to the earlier and later accounts, it becomes possible to identify components of the later account that are added to his subsequent treatment of the Noahide code and facets of the earlier account that are later added to his discussion of the reasons for the commandments and rabbinic enactments. These efforts at reconciliation include the normative content incorporated into the later account, the metaphysical background added to the later treatment of the Noahide code, the mediating concept of personhood, the phenomenological retrieval of the Noahide commandments, and the argument for minimal and maximal claims. Finally, this thesis analyzes the relationship between Novak’s natural law theory and his view of redemption. Given that as Novak’s natural law theory becomes less dependent on reason and more heavily based on a doctrine of creation, his treatment of redemption changes from being associated with a period of greater human understanding to a time that is characterized by God’s accomplishments on humanity’s behalf, I argue that there is a parallel between those concepts. I then draw on that parallel to show that Novak’s natural law is compatible with, and perhaps inseparable from, his covenantal thought. iii Table of Contents Introduction………………………………………………………………................. 1 1. Situating David Novak in the Natural Law Tradition……………….................. 1 2. Situating the Thesis in Relation to Current Scholarship ………………….......... 10 Chapter 1: Identifying Novak's Two Accounts of Natural Law……………......… 22 1. Introduction ……………………………………………………………….......... 22 2. A Chronology of Novak’s Natural Law Theory ……………………………....... 27 2.1. Law and Theology in Judaism……………………………………............... 27 2.2. The Image of the Non-Jew in Judaism …………………………….............. 36 2.3. Halakhah in a Theological Dimension…………………………….............. 45 2.4. “Natural Law and Normative Judaism” ……………………….................... 49 2.5. “The Commandments: Divine Will or Divine Wisdom” ………….............. 54 2.6. “Natural Law, Halakhah, and the Covenant”………………………............. 57 2.7. Jewish Social Ethics………………………………………………............... 59 2.8. Review of Menachem Elon’s “Jewish Law” ………………………............. 62 2.9. “Religious Communities, Secular Society, and Sexuality” …....................... 63 2.10. Natural Law in Judaism …………………………………………….......... 65 2.11. Talking with Christians ……………………………………….................... 74 2.12. “The Universality of Jewish Ethics”………………………………............. 76 2.13. The Sanctity of Human Life ……………………………………….............. 77 2.14. Natural Law: A Jewish, Christian, and Islamic Dialogue ……................... 80 2.15. Two Other Recent Texts …………………………………………............... 83 3. Conclusion……………………………………………………………………. ..... 85 Chapter 2: Analyzing Novak's Fusion of the Two Accounts…………………………. 89 iv 1. Introduction………………………………………………………………….... ........ 89 2. Novak Reconciles his Two Accounts …………………………………………........ 91 2.1. An Added Normative Component…………………………………................... 91 2.2. An Added Metaphysical Background ……………………………..................... 100 2.3. A Mediating Concept ……………………………………………...................... 106 2.4. A Phenomenological Retrieval of Norms ........................................................... 115 2.5. Minimal and Maximal Claims …………………………………........................ 124 3. Conclusion …………………………………………………………………….......... 130 Chapter 3: Finding An Unlikely Parallel Between Natural Law and Redemption...... 133 1. Introduction ……………………………………………………………………........ 133 2. Assessing the Significance of Redemption for Novak………………………........... 135 3. A Chronology of Novak's Thought on Redemption …………………………......... 137 3.1. Halakhah in a Theological Dimension and “The Role of Dogma in Judaism” …………………………………………………………................ 138 3.2. Jewish Social Ethics …………………………………………………............ 139 3.3. Election of Israel……………………………………………………............. 142 3.4. Natural Law in Judaism…………………………………………….............. 147 3.5. Covenantal Rights…………………………………………………............... 149 3.6. Natural Law: A Jewish, Christian, and Islamic Trialogue …………............. 151 3.7. “The Universality of Jewish Ethics” ………………………………............... 152 4. Analysis ………………………………………………………………………........ 153 4.1. Three Parallels Between Natural Law and Redemption ……………............... 153 4.2. Can A Passive Messianist be a Natural Law Theorist?…………….................. 158 4.3. The Impact of Redemption on Jewish-Christian Relations ………................. 161 v 4.4. The Status of Law at the Time of Redemption ……………………................ 163 5. Reconciling Novak’s Natural Law Theory with his Covenantal Theology….......... 167 6. Conclusion……………………………………………………………………. ....... 170 Conclusion………………………………………………………………………………. 172 Bibliography…………………………………………………………………………….. 176 vi Introduction 1. Situating David Novak in the Natural Law Tradition Cicero, the Roman jurist, writes of an inalienable and unchanging law which is “valid for all nations and for all times.”1 He defines this law as “right reason in harmony with nature.”2 Explaining what Cicero means, A. P. D’Entreves writes, Mankind is a universal community or cosmopolis. Law is its expression. Being based upon the common nature of men, it is truly universal. Being endorsed by the sovereign Lordship of God, it is eternal and immutable. The doctrine passed into the ius naturale of the Roman jurists as well as into the teaching of the Christian Church.3 Jus naturale is a complex term, sustaining various interpretations. To wit, it is defined by the Roman jurist Ulpian as akin to the instincts of animals, such as the “union of male and female,”4 and by the jurist Gaius as “that law which is practised by all mankind.”5 Another jurist, Paulus, 1 Cicero, De Legibus1.7.23, trans. C. W. Keynes (Cambridge: Harvard University Press, 1928), 320-23. Cicero is generally acknowledged to be the founder of natural law theory. See for example Marvin Fox, Interpreting Maimonides: Studies in Methodology, Metaphysics, and Moral Philosophy (Chicago: University of Chicago Press, 1990), 125. For the view that natural law was founded by Plato, see Fred D. Miller, Jr. “The Rule of Reason in Plato’s Laws,” in Reason, Religion, and Natural Law: From Plato to Spinoza, ed. Jonathan A. Jacobs (New York: Oxford University Press, 2012), 31-56; Susan Suave Meyer, “Plato on the Law,” in A Companion to Plato, ed. Hugh H. Benson (Oxford: Blackwell, 2006), 373-387. Others argue that Aristotle is the “father” of natural law. Max Shellens, “Aristotle on Natural Law,” Natural Law Forum 4 (1959): 72-100. See also Helmut Koester, “Nomos Physeos: The Concept of Natural Law in Greek Thought,” in Religions in Antiquity, ed. J. Neusner (Leiden: Brill, 1968), 521-541, where it is argued that Philo is the primary contributor to the school of natural law; Philo, On Husbandry 14:66. 2 Cicero, De Republica 3.33, trans. Niall Rudd (New York: Oxford University Press, 1998), 83. 3 A. P. D’Entreves, Natural Law: An Historical Survey (New York: Harper and Row, 1965), 21. 4 Dig. I, i. 1 (Ulpianus Libro Primo Institutionem), quoted in A. P. D’Entreves, Natural Law: An Historical Survey (New York: Harper and Row, 1965), 24-25. 5 Dig., I, i, 9 (Gaius Libro Primo Institutionem), quoted in ibid., 24-25. 1 explains that the term refers to “what in each city is profitable to all or to many.”6 If there is nevertheless an organizing theme to these interpretations, it is that jus naturale is based on its “intrinsic value” rather than on its “power of compulsion.”7 That common idea in the Roman treatment of natural law, which is influenced by Stoic thought,8 is useful in highlighting a contrast with a later formulation of natural law given by Thomas Aquinas: Wherefore, since all things subject to divine providence are ruled and measured by the eternal law, in so far as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends. Now among all others the rational creature is subject to the divine providence in the most excellent way, in so far as it partakes
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