“Revelation” or “Revolutions” as the Foundation of the Torah


I should note two problems at the outset with regard to my reviewing this really superb book.  The first is that I’m a law professor (of American constitutional law) and not a Biblical scholar.  Although am certainly eager to explain why I was so deeply impressed by this book, no one should confuse my responses with those of a professional scholar in the field.  The style of the book, which features a remarkably accessible prose, suggests that it is aimed at a wider audience as well, including people like myself, and I certainly hope it reaches that audience.  I should note two problems at the outset with regard to my reviewing this really superb book.  The first is that I’m a law professor (of American constitutional law) and not a Biblical scholar.  Although I am certainly eager to explain why I was so deeply impressed by this book, no one should confuse my responses with those of a professional scholar in the field.  The style of the book, which features a remarkably accessible prose, suggests that it is aimed at a wider audience as well, including people like myself, and I certainly hope it reaches that audience. 

The second problem is that the book is so truly rich that no reasonably sized review can do justice to all of the questions that it raises.  Indeed, I have already pressed the manuscript on friends with whom I hope to discuss the book at some length.  Perhaps one way of envisioning this review is by setting out the equivalent of “discussion questions.”  My most important message is that one should plunge into the book and explore its various arguments and implications rather than, as is often the case, treat reading the review as a substitute for reading the book itself.  

1. The central argument

Begin by carefully reading the title of the book, The Book of Revolutions.  It is hard not to think of the fact that many readers, Jews, and Christians alike, are used to thinking of the Bible as a book of “revelations” from the Divine Ruler of the Universe to various and sundry recipients.  (And that, of course, is also the way that Muslims treat the Quran.)  These recipients (and intermediaries between God and the rest of us) include, of course, Abraham and other patriarchs, most certainly Moses, and then a number of those called “Prophets” who claim to be conduits of messages received from God.  It is not surprising that for many, study of the Bible—and the demands of being religious—become reduced in effect to interpreting the “revealed truths,” whether written or, as in Judaism, supplemented by an oral tradition as well.  Christians tend to focus on the Bible itself, which includes, of course, what they call the New Testament that complements the Hebrew Bible (Old Testament), which is read as including many prefigurations of the Christian story. 

Most religious Jews emphasize the Talmud and the rich commentaries that are associated with it, though, obviously, “proof texts” for the positions asserted are often taken from the Torah itself.  But the reason to accord Biblical statements the status of proof texts is their linkage with Divine authority.  Even if, as Baba Metzia 59b, echoing Deuteronomy, teaches that “the Torah is not in heaven” and rabbinic authority can in fact trump voices from heaven, at least post-Exile, rabbinic holdings, the halacha, are identified with Torah and being “Torah-true.” It is the assumption that its authority rests on past Divine communication, even as “interpreted” by sages, that controls.  Talmudic Judaism consists of endless disputation about the meanings of texts and, not at all, about the historical realities and specific contexts, especially political, that may surround those texts.  

What makes Feld’s book so extraordinary, at least for this reader, is that revelation plays a relatively minor role in the overall argument.  The “birth” of the Torah is not really Sinai, but, rather, a far later point in time at which various stories, including codes of conduct, become canonized.  The Torah is viewed as the product of decidedly human encounters of the tribes and peoples of Israel (though that itself requires further analysis inasmuch as ten of the tribes become “lost” and the remaining people are divided into the distinctly different kingdoms of Israel and Judea).  These encounters take place with one another and, centrally, with surrounding distinctly non-Jewish powers, including (but not limited to) Egypt, Philistines, Assyria, and Babylonia.  Only by understanding various “revolutions” within what we historically discern (or create) as “the Jewish community” can we understand the historical creation of the text that we call the Torah.  And Feld invites the reader to read carefully not only the Pentateuch, but also, crucially, the Prophets and such books as Kings and Chronicles.  These become riveting stories about what Feld takes to be the actualities of the Jewish experience in the land of Israel and, therefore, about the process by which what we call “the Five Books of Moses” were actually created.  

Throughout the book, Feld pays close attention not only to the work of other Biblical scholars, but also to the discoveries of archeologists.  Both provide an historical rootedness for his arguments.  A notorious problem for many (though not all) Jews is that there is not a shred of archeological evidence for the Exodus or the 40-year sojourn of Moses and presumably hundreds of thousands of presumptive “Israelites” in the Sinai.  That is not the case for the entry of Jews into Canaan and then the creation of various governments, including, crucially, “kingdoms.”  Who knows if the Exodus and Sinai “really” occurred, since there is no evidence outside the text of the Torah itself?  Affirming their reality really does require a “leap of faith.”  Given Feld’s distinguished career as the editor of standard liturgical texts, as well as other books, one assumes that he himself is a believer, a man of faith, but I’m not sure that is really relevant.  Indeed, it would not be surprising if secular Jews like myself—and non-Jews as well—became more enthusiastic devotees of this book than “traditional Jews” who are basically uninterested in the implications of the fact that many of the Jewish kingdoms seemed to countenance intermarriage and, even more importantly, the worship of idols along with worship of God.  If monotheism is the central idea of Judaism, then Feld makes clear that the full implications of that concept took centuries genuinely to triumph.  (For starters, “monotheism” is distinctly different from either unique specifically communal gods or even the proposition that “our God,” Adonoi, is the first among a plethora of gods. There is only one God, with a universal realm.)

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What does it mean to be “Torah true” in terms of one’s basic commitments?  Feld demonstrates that there are three quite distinctive overarching conceptions of Judaism and the “Jewish community” found within the five books.  There is the “Covenantal” tradition (and set of laws) associated with Exodus and the stories surrounding Sinai.  There is also the Deuteronomic code that develops much later that emphasizes adherence to Divine commands over the more collegial notions that can be found within the notion of Covenant (as developed, for example, in the work of David Hartman).  But there is also the “Holiness Code” found especially in Numbers and Leviticus.  They may come earlier in the text, but Feld convincingly argues that they are in fact developed later.  Again, there is no notion that the Torah is the record of a document dictated to Moses and written down in Sinai.  Instead, the Torah is a completely historicized document written over many centuries and importantly reflects the actual realities faced by quite different Jewish communities at quite different times.

The Covenant Code of Exodus comes not from Sinai, but, instead from “Northern Israel” (p. 28), a concept that was obviously completely unavailable to anyone (assuming they existed) wandering through the desert.  As the name suggests, “it suggests itself as an agreement between the people and God.”  This made sense in part because the Kingdom of Israel itself was a complex agreement among various “peoples” of Israel.  The early Prophets were all from Northern Israel and directed the attention (and wrath) to many of the decisions and practices of kings and other rulers.  One cannot understand the Covenant Code, Feld suggests, without being knowledgeable about these facts on the ground.  And that is equally true for the other two overarching conceptions.  

If the Covenant Code, ostensibly derived from the Exodus and events surrounding Sinai, was the product of the Northern Kingdom, then the Deuteronomic Code was the creation of the kingdom of Judea.  “A century and a half after the dissemination of the Covenant code, Judeans substituted a law code of their own:  the book of Deuteronomy, promulgated in the reign of the Judean king Josiah.”  There are, to be sure, connections between the two, but Feld also emphasizes some key differences.  There are all-important “innovations” as well as continuities.  Among them is an emphasis on commands (the mitzvot) and obedience.  

So why isn’t that the end of the story?  The answer is deceptively simple.  Just as the Kingdom of Israel basically disappeared with the conquest by Assyria and displacement of the Jewish community, so was the Kingdom of Judea itself ultimately effaced by Babylonia, with its own consequent exile for centuries.  In both cases, explanations had to be given, and the Prophets were there to offer them, unhappy as they were.  God demanded two things:  adherence to ritual—the Jewish God is not a shrinking violet content simply to retreat and allow people to go about their daily lives, but instead demands constant recognition—and, of course, justice (at least to the members of the Jewish community themselves).  The “Jewish kingdoms” ultimately failed on both counts, paying inadequate attention to the Ruler of the Universe—and in some cases even seeming to countenance the possibility that God was simply the first among a variety of gods—and allowing conditions of manifest social injustice to develop as between what we might well call a prosperous ruling class and the majority of the population—the actual and metaphoric “widows and orphans” who were left to their own devices.  So one could explain the disasters that befell the various kingdoms and the two episodes of what might be called “ethnic cleansing” of what was thought to be the Promised Land.  Extremely important to many of the Prophets was the disastrous mistake made by Jewish kings in relying on alliances with surrounding powers, most prominently Assyria or Babylonia, rather than putting their faith in God to protect the people of Israel.  

There was much to think about during the Babylonian exile and much time to reconceive the mission of those who continued to consider themselves as distinctively Jewish.  Thus the development of the “Holiness Code,” in which the mission of the Jewish people was not simply to follow legal commands, but, more importantly, to aspire to achieving a kind of personal and communal “holiness” that would reflect God’s own holiness.  What is truly crucial, though, is understanding that this third Code, found earlier in the Torah but, as we’ve seen, developed much later, is basically utopian, a set of aspirations but not, as with, especially, the Deuteronomic Code, actually to serve as the basis for quotidian life.  There might be detailed instructions on how to rebuild the Temple, but for the people in exile, this could not have been truly relevant to what it would mean to maintain their Jewish identity well outside of Jerusalem and without the political or economic power to build anything of significance.  

As already indicated, I found Feld’s narratives to be absolutely compelling.  Although my thirty years of affiliation with the Hartman Institute in Jerusalem had developed a genuine interest in Talmudic methods of analysis and—David Hartman’s own passion—the potential relevance of these materials, developed under obvious conditions of statelessness for the reality of the new State of Israel and, as he constantly put it, the “re-entry of the Jewish people onto the stage of history,” almost none of that time was spent in study of the history of the Bible itself.    

2. “Constitutional development” 

  So what explains my enthusiasm for this book besides the fact that it is so well written     and compelling for anyone at all interested in history?  The answer, I think, is importantly related to the fact that my approach to the study of American constitutionalism takes a decidedly historical form, what is called within the discipline “American constitutional development.”  What this means is that one cannot possibly understand the American Constitution as truly “founded” for once and for all in some ur-moment that stands, like a colossus, in our imagination.  Instead, the Constitution cannot even truly be reduced to a text, but instead is a now more than 225-year-long process of innovation, some of it desirable, some of it perhaps not.  But the point is that one must immerse oneself in the details of the process, including understanding how the innovative changes are not the results of debates around the seminar table—or even the judicial conference table at the United States Supreme Court—but, rather, responses to complex changes taking place within the broader American scene and, in some important cases, the international scene as well.  The Civil War, with the death of approximately 2% of the entire national population—assuming, of course, that we can speak of a singular American nation, the basic issue on which the War was fought—ended the “first Republic,” founded in large measure on the acceptance of the legitimacy of racialized chattel slavery, with a “second Republic” committed, presumably, to different notions of legitimation.  Moreover, American constitutional law, as well as our ordinary politics, changes with the switch of the United States from a basically isolated country protected by the two “ponds” of the Atlantic and Pacific Oceans from having genuinely to take full account of what was happening abroad to the 20th (and now 21st) century behemoth that has “interests” (and military bases) in over 100 countries and fancies itself as the leader of the “free world” engaged in a sometimes apocalyptic struggle against alien empires.  

Feld presents, at the beginning of the book, an aphorism from a twelfth-century rabbi, Samuel Ben Meir:  “The simple meaning of the text is constantly unfolding.”  I can easily resonate with this as an American constitutional lawyer.  Even if one really believes that the U.S. Constitution can be reduced to a “text,” which I think is false—as with Judaism, there is an “oral law,” as it were, that complements the laws written down—its meaning is indeed “constantly unfolding” because the world simply doesn’t allow static meanings to grasp the reality of a constantly changing reality.  Chief Justice John Marshall, in the 1819 case McCulloch v. Maryland, after uttering what Felix Frankfurter said was the single most important statement in our judicial history, “We must never forget that it is a constitution we are expounding,” went on, several paragraphs later, to flesh out this otherwise tautological sentence by noting that a constitution, if it to “endure,” must be “adapted to the various crisis of human affairs.”  Otherwise, it will become what Max Weber, in another context, described as an “iron cage” that, by making adaptation impossible, will serve to destroy us.  What Feld tells so grippingly is the story of how Jews long ago wrestled with the dilemma of creating a constitutive understanding of Judaism that would in fact allow the Jewish community to endure through time.  There is, I think, much to be learned by more secular constitutionalists who wonder, for example, whether the United States Constitution is a bane or a boon to us in the 21st century.  

We are, of course, currently ruled by a (Catholic) majority of justices publicly committed to the doctrine of “originalism.”  It is actually somewhat odd that Catholics would be strong “originalists,” because one of the realities of the Church, and perhaps an explanation for its own survival over two millennia, is its own capacity for innovation and change as a result of a complex process of the “magisterium” of the Church.  One might expect strong “originalists” to come, as did Hugo Black, who also preached the virtues of originalism avant le lettre, out of the Baptist Church or some other Protestant sect committed to a combination of sola scriptura and Biblical inerrancy.   Still, for whatever reason, we are invited—and too many Americans accept the invitation—to believe that we can learn everything we really need to know about the Constitution by embracing the “cult of the Framers” and immersing ourselves into what these worthies were saying in 1787-88.  Some, of course, embrace the notion, captured in the title of Eric Foner’s recent book The Second Founding, about the so-called “Reconstruction Amendments” added to the Constitution in the aftermath of Civil War between 1865-1870, but that is still quite different from accepting the view that the Constitution is in the process of continual reinterpretation, innovation, and even “refounding,” because living in the world demands that.  

To be sure, there are many “orthodox American constitutionalists” who resist the arguments made by those who accept the picture of American constitutional development sketched above.  For them, “adaptation,” unless it follows the rigorous procedures set out in Article V of the Constitution dealing with formal constitutional amendment, is corruption or desecration.  As Justice Alito suggested in his recent decision overturning a half-century of precedent regarding reproductive rights, in the so-called Dobbs decision, the actual reality of American lives, especially of women, or the likely consequences of allowing states to criminalize almost all abortions, were a matter of indifference to him, because he was simply the vessel through whom the original law spoke.  (As a matter of fact, one can find somewhat similar arguments in the thought of the liberal jurisprude Ronald Dworkin, who would never have agreed with Alito’s decision but who also argued that “taking rights seriously” in effect meant a willful ignorance about the actual consequences of any given decision.)  

Most of this book, as already suggested, consists of a careful delineation of ancient Biblical history.  But in the last chapter, fittingly entitled “final thoughts,” Feld reveals some of his own thoughts about what Judaism should be in the 21st century.  He uses the history he has so well explicated to support the notion that the Torah itself “validates” a conception of “internal pluralism” that assures, both empirically and even normatively, that “no single overall interpretation of Judaism will triumph.”  We are reminded that both Hillel and Shammai spoke in the voice of a living God.  Perhaps that is true today of the various communities within Judaism today, ranging, say, from the Satmars—the subject of a fascinating recent book American Shtetl, by Nomi Stolzenberg and David Myers—to those “humanistic Jews” who feel no need to “worship” a completely mythic God who is the product of human imagination and not, therefore,  a “sovereign” presence in the universe.  Feld counsels that we not only tolerate one another, but, more importantly, “engage each other, argue with each other, wrestle with each other over the ‘rightness’ of our way, and finally, at our best, learn from one another.  Each individual interpreter of Torah reflects an aspect of God’s truth, and through the collectivity, God’s truth is made known” (p. 250).  For presumably obvious reasons, I find this a very attractive vision.  What was special about the Hartman Institute during my 30-year affiliation with it was its pluralism.  At no time were those of us who viewed ourselves as “secular Jews” pressured to become more conventionally “religious” (whatever that might mean).  It truly was an opportunity to “engage” and to “learn from one another.”  

But that raises an obvious, albeit potentially embarrassing, question.  Will this excellent book actually reach an audience within the more Orthodox sectors of the contemporary Jewish community?  I noted above the recent book by Stolzenberg and Myers about the Satmars in Kiryat Joel (now Palm Tree), New York.  The Satmars are now the largest community of Hasids in the world, with some 200,000 adherents worldwide.  And, of course, there are many other haredi, not to mention the more conventionally Orthodox.  Consider the Jewish communities described in Chaim Saiman’s 2018 book Halakha:  The Rabbinic Conception of Law, which was also very interesting and informative, especially about the brisker community of Talmudist halachists.  But the real question is whether any of those Jews—or Rabbi Joseph Solevetchik, were he still alive—would feel compelled to read Feld and to wrestle with his ideas.  I am doubtful.  And if that is correct, that is unfortunate.  

Late in the book, among his “final thoughts,” Feld refers to one of his own teachers, the recently deceased David Weiss-Halivni, whom he clearly reveres for his learning.  But, crucially, he notes that Halivni’s own approach to Ezra and the Holiness Code was that Ezra (and, ultimately, Halivni) was “attempting to get as close to the original Torah, the original revelation, as he could” (p. 244).  With due respect, Feld notes that he believes that this view is “mistaken.”  It could be mistaken simply because it avoids recognizing Ezra’s own remarkable creativity and innovation in crafting a Code that is quite different, in important respects, from anything that had come before, in large part as a response to the experience of living in exile.  As Oliver Wendell Holmes argued, when introducing his magisterial history The Common Law, “The life of the law has not been logic; it has been experience.”  To deny the importance of experience, at any phase of the history of Judaism (and Jews) is to make a fundamental error.  But Weiss-Halvini could have been mistaken in a second, equally important, sense.  There is no “original Torah” whose singular meaning we are seeking and, presumably, are bound to, nor, perhaps, should we speak of “the original revelation” as anything other than a decidedly unprovable metaphor for our own “origin myth.”  

Weiss-Halivni joined the “philosopher’s gathering” at the Hartman Institute for one or two years.  And one of the questions that was discussed was how one should resolve the tension presented between halachic command and the claims of morality, i.e., the classic problem, going back to ancient times, about the conflict between law and morality.  Weiss-Halivni simply refused to recognize that conflict, because it was entailed that halachic commands could not be objectionable on moral grounds.  I doubt that is Feld’s view—or, probably, the view of most Jews throughout the world, who are not Orthodox.  But, ultimately, it is a question that lurks beneath the historical—and historicist—approach that Feld so well conveys.  If Judaism must continue to “adapt” to various “crises of human affairs,” is the basis of that adaptation some completely “internalist” understanding of the demands of Jewish law or, instead, reference to what some, like Weiss-Halivni, might term the “external” views of moral systems that may have literally nothing to do with recognizing Divine Sovereignty or the special status of halachic commands?  

3. What of modern Israel?

This is obviously a book about ancient Israel (and Judea) and Jews in exile in Assyria and Babylonia.  But is it really only about ancient history?  It is impossible at least for me to read a book about ancient “Israel”—and its decline and fall—without thinking the contemporary state that bears the same name.  That state, of course, is making ever-more-assertive claims to being a “Jewish state,” as if we know exactly what that might mean.  As one reads Feld’s book and his analysis of the Jewish Prophets, one might think that this means at least a rigorous monotheism and rejection of idols and, at least as importantly, a zealous commitment to social justice, a sense that one’s “neighbor” and even the “stranger” are entitled to what Ronald Dworkin called “equal concern and respect.”  And one might as well believe that a truly “Jewish state” would place its trust in God and not in alliance systems with godless and unjust states.  Obviously, none of this is true (save perhaps for the formal monotheism).  Does this matter?

One of the points of the Stolzenberg-Myers book on the Satmars is that they are rigidly—some would say fanatically—anti-Zionist, as are, of course, other members of the haredi community in Israel.  (Viewers of the series Schtisel will be familiar with this fact, even if it is not a major theme of the storylines.)  A Jewish state will be restored only when God manifestly intervenes in history and sends a Messiah to create such a state.  So the claim by secular Zionists and their religious supporters like Rav Kook is manifest heresy, to be completely rejected.  But that view is a sectarian view within the Jewish community, and few critics of Israel make their arguments on such religious grounds.  

But that still leaves open the terms of debate about Israel.  It is possible that someone might support the State of Israel on the religious grounds presented by someone like Kook, but still adopt views associated with the Prophetic tradition that argues not only about the transcendent importance of social justice in defining a “Jewish state,” but also the necessity to remain free of what George Washington referred to as “entangling alliances” with modern equivalents of Assyria and Babylonia, including, of course, the United States.  But that position seems as utopian, practically speaking, as Feld says is true of the Holiness Code, which, he argues, is not really meant to structure quotidian life.  Removal from the complexities of international politics, where awful compromises are often necessary, may be something to hope for, some day, when the lion really will lie down with the lamb, and the lamb will enjoy an unworried sleep, but that is not the present world.  Moshe Halbertal and Steven Holmes wrote an interesting book on the Book of Samuel that might well be read as a “realist” defense of Israeli kings who recognized the need to participate in the fallen international world.  Or, as Ecclesiastes might have put it, there is a time for utopian aspirationalism, but there is also a time for clear-headed realism.

As noted, this is not a question that Feld chooses to address, as is his right as an author.  And it is possible to read his book simply as a superb introduction to Biblical history and, as promised in the subtitle, the ways that “battles of Priests, Prophets, and Kings,” including what he describes as “coups” and “assassinations,” are all part of the “Birth of Torah.”  That is certainly enough to merit its wide reading and discussion.  Still, if one of the explanations for our reading the book is at least some kind of relationship with the “Jewish tradition” and curiosity (or concern) about what that means in a world far removed from the ancient Middle East, then we might well be concerned as well with the intersection of that tradition, however, conceived, with the contemporary reality of the (Jewish) State of Israel.  

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