Defining Jewish Difference: From Antiquity to the Present by Beth A. Berkowitz, Cambridge University Press, New York, NY; ISBN 978-1-107-66361-9 ©2014, $27.99, p. 247, plus Bibliography and indexes
By Fred Reiss, Ed.D.
WINCHESTER, California — After delivering a speech at American University in 2005, in which she defended the use of foreign law when deciding cases, Supreme Court Justice Ruth Bader Ginsburg received an Internet threat against her life. Later that year she concurred in Roper v. Simmons, whose majority opinion, written by Justice Kennedy, “explicitly affirmed the relevance of international standards to the decisions of the U. S. courts.”
The debate over the “citing of” (or might we say “obedience to,” or “reliance on”) foreign laws in U.S. courts presents a similar problem in Jewish law. Beth Berkowitz, associate professor of Rabbinic Literature and Culture at the Jewish Theological Seminary, an arm of the Conservative movement, examines in her newest book Defining Jewish Difference, the impact of foreign practices and laws on Judaism. The lynchpin of her investigations is Leviticus 18:3.
Chapters 17-26 of the Book of Leviticus are collectively referred to as the Holiness Code. Chapter 18, which is the traditional Yom Kippur afternoon Torah reading, gives a long list of forbidden sexual relationships. The chapter’s preamble, Leviticus 18:1-5, demands that the Israelites be different from their neighbors:
“1And the Lord spoke to Moses saying: 2Speak to the children of Israel and say to them, I am the Lord your God. 3As they do in the Land of Egypt, in which you dwelled, you shall not do, and as they do in the Land of Canaan, to which I will bring you, you shall neither heed their laws, nor follow them. 4My ordinances you shall follow; my laws shall you obey; pursue them; I am the Lord your God. 5And you shall observe my laws and my ordinances, and through which a person fulfilling them shall live; I am the Lord.”
Berkowitz recounts a story told in Tosefta, a supplement to the Mishna, Sanhedrin 9:11, written in the early third century C.E., that the rabbinic court approved the use of decapitation rather than the sword as a means of execution, even though all the rabbis agree that decapitation is the most disgraceful means of dying, and in violation of the precept, “Do not do unto others what you do not want others to do unto you.” The rabbinic court chose the axe over the sword because the Roman way is to use the sword; thereby “sacrificing the dignity of the criminal and quality of rabbinic law to differentiate rabbinic law from Roman.”
To what extent does God expect the Jewish people to be different? Defining Jewish Difference, seeking to uncover the essence of the phrase “their laws,” found in verse 3, examines related verses of the Torah, writings of noted rabbis, and Jewish and non-Jewish scholars from the late Second Temple period through the early twenty-first century.
According to tradition, there are 613 commandments in the Torah. Berkowitz asks why is the prohibition against following Egyptian and Canaanite laws and practices placed here, just before sexual taboos, and not somewhere else in the Torah? The answer depends on how the preamble is read in context. If verses 1-5 are read independently of the rest of the chapter, then one can conclude that Egypt and Canaan are simply tokens and the requirement for separation from “their laws” and practices are directed against all peoples and nations. But, if the chapter is taken as a whole, then the Jewish people are only strictly forbidden to follow the sexual practices found in Egypt and among the Canaanite tribes, and not all laws.
Berkowitz, comparing three other biblical verses with Leviticus 18:1-5: Ex. 23:23-25, Deut. 12:29-13:1 and Deut. 18:9-14, concludes that the authors of each of these verses require complete Jewish isolation from the country in which they are living. Sifra, a commentary of the Book of Leviticus, contemporaneous with the Talmudic period, on the other hand, interprets “You shall neither heed their laws, nor follow them” as limiting all distinctions between the Israelites and their neighbors to just the accepted conventions and traditions of the nations, passed down “through a male elite.” Sifra cites male-to-male, female-to-female, and male-to-woman-and-her-daughter marriages as examples. These very illustrations are listed in Leviticus 18 as forbidden sexual acts. If this is so, then this ruling comports well with Rav Samuel’s exhortation that “the law of the land is the law.”
In trying to grasp the meaning of Leviticus 18:3, Berkowitz, wrestling with the question of whether Judaism is a nation or a religion, draws on Leviticus Rabbah, a collection of exegetic legends dated to the fifth century C.E., as her source book. In particular, Leviticus Rabbah 23, comparing the Jewish people to a “rose among the thorns,” points to a number of actions that distinguish Jews from members of other nations, including morality; physical differences, such as male circumcision; obedience to God; and ritual performance.
For the modern era, she draws on the responsa of the recently deceased Sephardic rabbi and halachic expert Ovadiah Yosef and the late Moshe Feinstein, a Lithuanian rabbi and halachic authority. These opinions center on the questions, asked by members of the Jewish Orthodox community, about wearing American garb, participating in certain wedding practices, placing flowers on caskets, and celebrating Thanksgiving. To what extent are these actions in violation of Lev. 18:3? Yosef delves into the matter’s pedigree: can the practice be found in the Torah? Feinstein, on the other hand, wants to know if there are religious connections or connotations, or if the practice truly secular.
Berkowitz follows an intellectual path toward understanding how Jews are to distinguish themselves from their neighbors. As a result, Defining Jewish Difference distinctly shows that the interpretations of “their laws” not only varied over the centuries, swinging between the two extremes of “all foreign laws and practices” and “only those that corrupt the core of Jewish tradition,” but will continue to be a Living Law, a law that needs to be reinterpreted over and over again as time, place, and circumstance dictate.
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Dr. Fred Reiss is a retired public and Hebrew school teacher and administrator. He is the author of The Standard Guide to the Jewish and Civil Calendars; Ancient Secrets of Creation: Sepher Yetzira, the Book that Started Kabbalah, Revealed; and a fiction book, Reclaiming the Messiah. The author can be reached via fred.reiss@sdjewishworld.com