Professor Saul J. Berman’s learned and elegant monograph, Boundaries of Loyalty: Testimony against Fellow Jews in Non-Jewish Courts will undoubtedly receive appropriate review by well-informed specialists in the major journals of law and Jewish Studies. However, I do not write as such an author either inside the Jewish legal tradition or legal studies in general. I am instead a student of the method and theory of the study of religion, and its intellectual and social history. Yet, despite being an extramural reviewer, so to speak, I feel it is important for authors writing largely for intramural audiences to see how their work looks from afar. What angle should I use to recommend such an impressive piece of fine-grained specialist scholarship as Berman’s to students of comparative religion? It is from the conviction that there is something intolerable about generalists’ not knowing about such models of scholarship that I write.
In structure, Berman’s book follows a chronological trajectory, familiar to anyone who has ever sought to nail down the actual occurrences and usages of particular features of a historical tradition. Berman traces his concerns with the relation of Jews to non-Jewish courts through the major divisions of Jewish rabbinic legal history from 70 to 1600 CE. In each period, Berman seeks to arrive at some sort of consensus view of how Jews struggled to decide their legal issues, especially those concerning how Jews might do business with non-Jewish courts, and especially in cases where they might be compelled to testify against fellow Jews.
One learns, for instance, that rabbinical reluctance to “hand over” (Meshirah) or testify against fellow Jews in non-Jewish courts had many sources (192). The issue of jurisdiction is only one such consideration. In modern day America, some Jews have cited the horrific conditions of our prison system as reason not to cooperate with non-Jewish courts (221). Others imply that the Jewish legal system is superior to secular systems. For instance, under Jewish law, “inaction,” say, in preventing a crime, can be more easily criminalized than in American law (216). Berman also seems to think that Jewish law better approximates the values of universal human justice than, say, secular British or US law (215, 218, 219, 220, 221). But Berman reminds us that the readiness of Jews to testify against fellow Jews in non-Jewish courts varies with context. Compare a Jew asked to testify against another Jew in Nazi Germany versus in the United States today. In the time periods treated by Berman, the rabbis were always engaged in exquisite balancings of values in order to reach what they took to be satisfactory decisions. Berman tells us that the aspiration to protect fellow Jews, for example, needed to be weighed over against maintaining justice, “the avoidance of Chillul Hashem” (desecrating God’s name), obedience to the law of the land, avoiding falsehood, protecting the material interests of oneself and others, not enabling fellow Jews in criminality, and so on (221).
Two questions arise here, which I would dearly love to pose to Berman. Appeals to notions like “justice”—plain and simple—play pivotal roles in Berman’s arguments. That is, Berman seems often to appeal to a sense of justice that transcends that of the Jewish community, even though it may be acknowledged in arguments by the rabbis, or at least in Berman’s reading of them. What then is the epistemological status of this notion of “justice” that Berman deploys? Second, Berman speaks, however briefly, of how Jewish law contributed to more widely held systems of law, and indeed how it aided in their moral evolution. Much as I personally find the morality described in Boundaries of Loyalty agreeable, on what basis do we speak of moral evolution? Berman leaves these matters unanalyzed, and assumes we can take them for granted, though I must confess skepticism about quite knowing where evolution is going, or indeed, if it makes any sense at all to talk this way, given the often cataclysmic “reversals” of “progress” we have met in the 20th century’s parade of bloody horrors.
On a brighter note, what may strike those unfamiliar with rabbinic religious legal controversy is how Berman interprets what may seem to outsiders like an obsession with legal minutiae as a loving attempt by the rabbis to help Jews know how to do the right thing in precisely the right way. For modern-day liberals, right actions are shaped by a deeply—and often unconsciously Christian—distaste for anything less than sincerity or “spirit.” Yes, the rabbis, as Berman’s account shows, limit the range of right behavior in ways no liberal could countenance. But, limits are the price we pay for community, as much as fellow feeling is the joy we take in it. The hard truth we resist is that community entails shared, common boundaries. The Durkheimian concept of the sacred as both a negative (taboo) and a positive expression of the highest values of a collectivity well captures this perennial truth of collective life for sociology of religion.
Berman shows how the rabbis strain simultaneously to be both “fair” (in a sense any liberal humanist would recognize) as well as in a sense respecting the specificities of Jewish law. A prime example is their emphasis upon how the practice of various commercial transactions could be seen as “rescues.” The Tosefta, an archive of oral argument of Jewish law, delivers an opinion about whether Jews may frequent a “heathen fair” to buy goods, including slaves, from non-Jews. Ordinarily, the answer would be “no.” But this passage from the Tosefta argues that Jews may purchase slaves in these non-Jewish markets if the slaves are Jews. In the view of the Tosefta, this commercial transaction with non-Jews would actually constitute a “rescue” of Jews from non-Jewish captivity. Others also argued that even non-Jewish slaves might be bought as well in these non-Jewish markets, because they might then be persuaded to convert to Judaism. So powerful, then, is this value of “rescue” that it often trumps the otherwise inviolable rabbinic purity laws as well as the Torah’s “prohibitions against litigating in non-Jewish courts” (10).
How does a minority community, especially one so historically singular as the Jews, navigate through the alien legal thickets of a majority community to insure its survival with a dominant culture? How does the Jewish tradition manage to do so in light of a prevailing felt superiority to non-Jewish legal systems? Berman leads the reader through the many twists and turns of this seemingly insoluble riddle. Further, Berman shares his meditations on elemental dimensions of Jewish social, indeed, human, communal life such as loyalty to one’s community over against fidelity to “justice”—if indeed such an opposition is even meaningfully drawn.
Ivan Strenski is Professor Emeritus of Religious Studies at the University of California, Riverside.
Ivan Strenski
Date Of Review:
February 3, 2017
