Law and Land
In the previous essay we looked at one connection between the Torah and the wilderness: in the silence of the desert you can hear the Word. There is, though, another connection that proved fateful on the course of Jewish history, allowing Judaism to survive in a way that has no parallel in the annals of other nations.
What this is becomes immediately apparent if we ask a simple question: What comes first, the law or the land? The answer in general is the land. People settle in a certain territory. They evolve from bands to clans to tribes to larger associations of tribes. They begin to build villages, then towns, then city-states of the kind that first appeared in Mesopotamia where Abraham was born.
So long as groups stay small, they develop a basic structure of cooperation, reciprocity, and trust. If I find food today but you do not, then I will share what I find with you, because I know there will be days when you find food and I do not, and I know you will reciprocate the act of sharing. It is this kind of cooperation that is basic not just to humans but to all social animals. It has been demonstrated by computer simulation as the most effective strategy of group survival and is known as reciprocal altruism.1There are many books on this. See, for example, Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984); Matt Ridley, The Origins of Virtue (New York: Viking, 1997).
But there are limits as to how far it can extend. For it to work, I need to know and remember who can be trusted to reciprocate and who cannot. This requires intelligence and memory, and biologists have shown a correlation among social animals between brain size and the optimal size of a group: the larger the brain, the larger the group. This led Oxford anthropologist Robin Dunbar to calculate that for humans the outer limit is around 150. Up to that point we can know everyone in the group. Beyond that, we cannot.2See Robin Dunbar, Grooming, Gossip, and the Evolution of Language (Cambridge, MA: Harvard University Press, 1998).
It follows that for relatively small groups – extended families, villages – cooperation can function without the formality of law. Fishermen who operate in the same area, for example, will tend to develop practices that allow each to flourish without one damaging the livelihood of others. The rules are usually implicit rather than explicit; they are “how we do things here.” Anyone who breaks the rules will be penalised. Anyone who does so regularly will be excluded from the group – and among social animals, exclusion from the group is a kind of death.
The problem arises when human groups become larger than this, which they did with the domestication of animals and the development of agriculture, the division of labour, and the growth of trade. This led to a new and critical problem. How do you sustain cooperation when the group is too large for people to know one another and thus practise reciprocal altruism? How do you establish trust between strangers? That is the problem that had to be solved for civilisation to be born.
It was then that a whole series of breakthroughs emerged: the birth of cities, the invention of writing, formal structures of power (kings, emperors, pharaohs), and the development of law, in such forms as the Sumerian code of Ur-Nammu (c. 2100–2050 BCE) and the Code of Hammurabi (c. 1750 BCE). Law and its enforcement were based on the edict of the king who ruled over a certain territory, be it as small as a city or as large as an empire. Law was therefore bound to land and to the person who ruled over that stretch of land.
This background is, I believe, essential to an understanding of the basic logic of the Torah. It does not say that monotheism was born with Abraham. To the contrary, according to the Torah it was born with Adam and Eve,3Adam and Eve represent the first humans not in a biological sense, Homo sapiens, but in a spiritual-psychological sense, Homo religiosus. that is, before there were cities. That is confirmed by the consensus of anthropologists today – that hunter-gatherers tended to have a single deity and social structures that were roughly egalitarian.
Polytheism emerged with the first cities and civilisations (civis, the Latin root of terms like civic and civilisation, means “pertaining to a city”) – in the place, and shortly before the time, of Abraham. Also born at the same time were monetary exchange, vast disparities of wealth and power, armies and empires, social hierarchy, the emergence of a literate class, the deification of rulers as demigods with religious as well as civic and military authority, and the birth of slavery, which rarely existed among hunter-gatherers but was already attested to in the Code of Hammurabi.
All of this is alluded to in the Torah, in its assertion that the first city was built by the first murderer, Cain; then in its portrayal of the Tower of Babel; and, most powerfully, in its critique of Egypt in the days of Moses. What was fundamentally wrong from the Torah’s perspective is that this kind of civilisation turned some people into gods and most others into slaves. It also turned religion from what it should be – humans serving God – into the opposite, the gods serving humans, specifically rulers, by giving sacred sanction to man-made structures of power and exploitation.
Judaism opposes this entire religious-political configuration, though it recognised that changing it would take time. This is one of the key themes of Numbers – that even when slaves are given freedom, they continue to have the mindset of slaves, which is why the generation that left Egypt was not yet ready to enter the land.
The fundamentals of the Torah’s worldview, though, are clear. All humans are equally in the image of God. Ideally none should rule over any other, though in practice this leads to anarchy (such is the basic theme of the book of Judges). Even when there is a king, he has no legislative powers; God alone is the primary legislator.4Kings may issue temporary edicts for the sake of the common good, as did the Sanhedrin in a later age.
This is the core meaning of the phrase Torah min hashamayim, “Law, or teaching, from heaven.” It is also the meaning of the fundamental religious act, kabbalat ol malkhut shamayim, “acceptance of the yoke of the kingship of Heaven,” fulfilled twice daily by the recitation of the Shema. Only God has the authority to frame the rules within which the moral life is to be lived.
All these doctrines were unique in the ancient world; they remain exceptional even today. They are the basis of such Western ideals as human rights, justice-as-fairness, and the moral limits of power. They are this-worldly consequences of belief in a single God who transcends the universe and who in love created humans in His image. They are also what made possible one unique feature of the covenant at Mount Sinai, made with the Israelites in the wilderness, before they had crossed the Jordan and settled in the Promised Land. Everywhere else, first came the land, then the law. Judaism is the one exception. First came the law, and only later – a generation later, as it transpired – came the land. This was made possible because, in Judaism, the source of law is God, not Hammurabi or Pharaoh or any other human being, and because God –
Creator of the universe, therefore transcending the universe – is the God of everywhere and everyone.
The fact that the Torah was given bemidbar, “in the wilderness,” had a dramatic consequence. Everywhere else, if you lost the land, you lost the law. If the Greeks or Romans defeated your country, their rulers were your rulers and their law yours. Even if there was no conquest, merely a personal decision to move elsewhere – if you decide, for example, to leave England and become an Italian citizen – you are no longer subject to English jurisdiction; you are bound by Italian law. Law is bound to land and to the power that prevails in that land.
Not so in Judaism. Because the Torah was given in the wilderness before the people entered the land of Israel, the law came before the land. Therefore even when Jews lost the land, they still had the law. Even when they lost the country, they still had the covenant. This made Jews a nation unlike any other in history, and allowed them to survive as a nation despite exile and dispersion for a period of almost two thousand years.
Exile was still exile. The loss of the land was a devastating tragedy: “By the waters of Babylon, there we sat and wept as we remembered Zion…. How can we sing the Lord’s song in a strange land?” (Ps. 137:1, 4).
But Jews survived because the covenant was still in force and God’s law was still law. That is what Isaiah meant when in God’s name he asked the rhetorical question: “Where is your mother’s certificate of divorce with which I sent her away? Or to which of My creditors did I sell you?” (Is. 50:1). Israel was still married to God even though she had been banished from the marital home. She still belonged to God even though she was temporarily in other hands.
Hence the paradox at the heart of Judaism. On the one hand, it has an unbreakable connection to the land of Israel. That is the central theme of the Torah: the promise of and journey to the land. Its laws are about the land. Read the Torah and you will immediately note that it is not a formula for the salvation of the soul or the acquisition of inner peace. It is about welfare and the treatment of employees, war and the conduct of an army, justice and the impartial application of the law, charity and the alleviation of poverty. It is about the construction of a society – and a society needs a land.
Despite the fact that Jews have been scattered across the world, there only ever was one place where they could construct a society according to their own values, namely Israel. Not only is it the holy land; it is impossible to be a holy nation except in the land. Galut, “exile,” has both a physical and spiritual dimension: if you are not physically at home, you are not fully spiritually at home either.
Yet much of Jewish history has been spent outside that home. The Torah ends with Moses and the people in sight of the Promised Land but tantalisingly not yet there. Much of Jewish history is a story of exiles – to Assyria, then Babylon, then the long series of dispersions and expulsions from the Roman conquest to the birth of the modern State of Israel in 1948. As Isaiah Berlin noted:
It was once said by the celebrated Russian revolutionary, Alexander Herzen, writing in the mid-nineteenth century, that the Slavs had no history, only geography. The position of the Jews is the reverse of this. They have enjoyed rather too much history and too little geography.5Isaiah Berlin, The Power of Ideas (London: Chatto and Windus, 2000), 143.
Michael Wyschogrod speaks of the “curious ambivalence to the land in Jewish consciousness”:
On the one hand, it [the land] is an integral part of the election. The same act of election which binds Abraham and his descendants to God also binds the people to its land. These three – God, Israel, and the land – are tied one to the other in an indissoluble unity. But, on the other hand, there is also a curious dispensability to the tie between Israel and the land. Israel becomes a full-fledged people prior to its entry into the land. It remains a people, it does not disappear, after it is severed from the land. It is apparently less dependent on the land than any other people. And yet, the longing for possession of the land and for returning to it when separated from it never leaves the consciousness of the people over millennia. In the small villages of the Russian plain, in Jewish homes, the geography of the holy land was far more vivid than that of the surrounding countryside.6Michael Wyschogrod, Abraham’s Promise (Grand Rapids, MI: Eerdmans, 2004), 92.
The giving of the Torah in the wilderness is an essential feature of that history. Had the Israelites received the Torah in the land, it would be indissolubly associated with the land. Exile would mean the end of the covenant.7That is in fact the argument of Spinoza in chapter 3 of his Tractatus Theologico-Politicus. The Talmud says that this was the claim made by some of the Babylonian exiles to Ezekiel; see Sanhedrin 105a. See also Nahmanides, Commentary to Lev. 18:25.
It would make no more sense to keep Torah while in exile than to obey the laws of Russia while living in Spain. What made the God of Israel different from the gods of antiquity was precisely the fact that He was sovereign of the universe, not a local deity – a Canaanite or Egyptian god. That is why the Jewish people survived dispersion. Only the God of everywhere can be found and worshipped anywhere.
Yet the universal God is also the God who lives in particularity. That is the paradox. God is beyond time, yet He is to be found within particular times – Shabbat, the festivals, the sabbatical and jubilee years. So God is beyond place yet encountered in particular places – the holy land, the holy city, the Temple Mount. God lives within the world, not just beyond it; He lives in physical, not just metaphysical, space. No one who has prayed at the Kotel or experienced the quiet of Shabbat in Jerusalem can doubt that there are places and times when we sense a special closeness to God. That is why exile is exile – and why Eretz Yisrael is not just a geographical entity or a political fact but a religious and spiritual phenomenon.
The relationship between the Jewish people and the land of Israel is sui generis, unique. It does not fit any normal template. The present history of the State of Israel – the only nation among the almost two hundred members of the United Nations whose existence is continually called into question – is the latest chapter in a story that goes back four thousand years. Jews remain the people neither fully lost in exile nor fully at home in their land. Those who believed that the return to Israel would “normalise” the Jewish situation were wrong. The reverse has been the case. What has happened instead is that the Jewish people have been returned to the central drama of Tanakh: the nation that is called on to be something more than just a nation. What this means may well be the central Jewish question of our time.