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Covenant and Contract: A Framework for the Analysis of Jewish Ethics

Published online by Cambridge University Press:  24 April 2015

Louis E. Newman
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Extract

One way of describing the incarnate character of radical faith in the life of Israel is to say that for this people all human relations were transformed into covenant relations. Promise-making and promise-keeping were the essential elements in every connection between persons. Religion became such a matter of covenant.

The fact that covenant played a central role in the religious life of ancient Israel has long been recognized by historians, theologians and other careful leaders of the biblical text. Walther Eichrodt's monumental Theology of the Old Testament remains perhaps the best known and most extensive treatment of covenant themes in the Hebrew Bible. But in recent years biblical scholars and theologians as diverse as Jon Levenson, James Muilenberg, Eugene Borowitz, Rosemary Ruether and David Hartman have increasingly devoted their attention to the concept of covenant, both its biblical roots and its persistence as a central category of religious life for Jews and Christians into the modern era.

Yet, the implications of covenant for Jewish ethics have not received the attention they merit. To be sure, it is universally acknowledged that Jews, traditionally speaking, have understood their religious obligations within the context of the covenantal relationship between God and Israel. And some have noted that, as a consequence of this, Jewish ethics are addressed to members of a covenanted community, rather than to autonomous individuals. Some have also explored the tensions within the covenant idea between particularism and universalism, while others have distinguished between the conditional and unconditional dimensions of the covenantal relationship. Still, there has been no systematic effort to correlate the category of covenant in all its richness and subtlety with diverse streams within Jewish ethics.

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Articles
Information
Journal of Law and Religion , Volume 9 , Issue 1 , 1991 , pp. 89 - 112
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1991

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References

1. Niebuhr, H.R., Radical Monotheism and Western Culture 41 (1970)Google Scholar.

2. See especially Levenson, J., Sinai and Zion (1985)Google Scholar and Creation and the Persistence of Evil (1988); Muilenberg, J., The Way of Israel: Biblical Faith and Ethics (1961)Google Scholar; Borowitz, , The Autonomous Jewish Self, 4 Mod. Judaism 1 (02 1984)CrossRefGoogle Scholar; Roth, W. and Ruether, R.R., The Liberating Bond-. Covenants—Biblical and Contemporary (1978)Google Scholar; Hartman, D., A Living Covenant (1985)Google Scholar.

3. This paper concerns only Israel's communal religious responsibilities and, in particular, its communal moral responsibilities. This corporate, communal relationship between God and Israel does not preclude a more personal relationship between the individual Jew and God, which may carry its own religious and moral obligations. Indeed, Jewish literature is replete with accounts of saints and holy individuals who exemplified just such an intense, personal piety. In a traditional context, however, these personal religious obligations can never supersede or supplant the religious obligations of the individual as a member of Israel. It is as a member of that covenanted community that the individual Jew has a relationship with God in the first place.

4. Hartman, D., Joy and Responsibility: Israel, Modernity and the Renewal of Judaism 281–82 (1978)Google Scholar.

5. Berman, , Israel and the Oikoumene, in Rationalism, Judaism and Universalism 51 (Loewe, R. ed. 1966)Google Scholar; Polish, , Covenant: Jewish Universalism and Particularism, in The Life of the Covenant 137–53 (Edelheit, J. ed. 1986)Google Scholar; LaCocque, “Torah—Nomos,” in The Life of the Covenant, supra, at 89-95.

6. See my article Law, Virtue and Supererogation in the Halakha: The Problem of Lifnim Mishurat Hadin Reconsidered, 40 J. Jewish Stud. 61–88 (Spring 1989)CrossRefGoogle Scholar.

7. In addition to Berman, see Lovin, , Equality and Covenant Theology, 2 J. Law & Relig 244 (1984)CrossRefGoogle Scholar; Gardner, , Justice in the Puritan Covenantal Tradition, 6 J. Law & Relig. 39 (1986)CrossRefGoogle Scholar; Roth, W. and Ruether, R.R., The Liberating Bond: Covenants—Biblical and Contemporary (1978)Google Scholar.

8. Berman, , The Religious Sources of General Contract Law: An Historical Perspective, 4 J. Law & Relig. 103 (1986)CrossRefGoogle Scholar.

9. I have not attempted here to explore the many historical issues that arise with respect to the place of covenant within the biblical tradition. For surveys of the spectrum of opinion on the antiquity of the covenant concept in Israel, and for a history of the scholarly debate on these issues, the reader can consult Baltzer, K., The Covenant Formulary (1971)Google Scholar; Bright, J., Covenant and Promise: The Prophetic Understanding of the Future in Pre-exilic Israel (1976)Google Scholar; Nicholson, E.W., God and His People: Covenant and Theology in the Old Testament (1986)Google Scholar; Oden, , The Place of Covenant in the Religion of Israel, in Ancient Israel: Essays in Honor of Frank Moore Cross (1987)Google Scholar.

10. Macmillan, Lord, Law and Other Things 64 (1937)Google Scholar.

11. My analysis throughout this article utilizes a basic theory of contract, though one which is still current among legal scholars. I have not attempted to take into account the many subtle and complex variations among contracts. Many of these have arisen in response to our rapidly changing commercial climate and so have little if any applicability to the covenantal relationship between God and Israel.

12. As a practical matter, contracts sometimes include provisions that reiterate pre-existing legal rights and duties. Still, the purpose of creating a contractual relationship is to establish the terms of a specific legal relationship that, apart from the contract, does not yet exist.

13. While it is true that certain types of contracts are void or voidable, the purpose of creating the contract is to establish a valid legal relationship which will be enforceable.

14. The fact that the Israelites enter this covenant freely is an especially salient feature of the covenant ceremony recorded in Nehemiah 10.

15. See Mendenhall, , Covenant in 1 Interpreter's Dictionary of the Bible (1962)Google Scholar.

16. See Farnsworth, E.A., Contracts 52 (1982)Google Scholar for a discussion of agreements which fail to be legally enforceable contracts in precisely this way.

17. Mekhilta Tractate Bahodesh, chapt. 5 on Exodus. A third, and quite radical, view of the origins of covenant emerges in another rabbinic passage (Sifre Num., Shelah § 115; Sifre Deut. Ekeb § 38):

When God redeemed the children of Abraham, His friend, He redeemed them, not as children, but as slaves, so that if He imposed upon them decrees, and they obeyed not, He could say, “You are my slaves.” When they went into the desert, He began to order them some light and some heavy commands. … They began to protest. Then God said, “You are my slaves. On this condition I redeemed you, that I should decree, and you shall fulfill.”

The same view is expressed more tersely and graphically in a passage from the Babylonian Talmud, (Shabbat 88a). In commenting on Exodus 19:17 that Israel stood “at the foot of the mountain” or literally, “under the mountain,” the rabbis state that God held Mt. Sinai over them like a barrel and said, “If you accept my Torah, well and good, but if not, this shall be your burial ground.” The authors of these passages imagined the covenantal relationship, not as contractual or even moral, but as purely coercive. God is the commanding sovereign, Israel the subservient slave. This view does not appear to be represented within the biblical corpus, however.

18. Deut. 28:69.

19. See Farnsworth, supra note 16, at 374 for a discussion of the Statute of Frauds which requires that certain types of contracts are enforceable only if written.

20. See also Deut. 7:9-11.

21. A similar perspective is reflected in Wurzburger's, W. S.Covenantal Imperatives in Samuel K. Mirsky Memorial Volume: Studies in Jewish Law, Philosophy and Literature (1970)Google Scholar. Wurzburger argues that at Sinai Israel experienced primarily a revelation of God's presence, and only secondarily of specific rules as the content of revelation. There are thus covenantal imperatives “which confront us with God's demands upon us in the here and now in all their uniqueness and particularity.” Id. at 11.

22. This view, which is prevalent among Christian biblical scholars, tends to contrast the covenant, which is dynamic, with the law which is static. See, for example, McCarthy, D., Treaty and Covenant 175–76 (1963)Google Scholar.

23. Ex. 32-33.

24. Hosea 1:9.

25. Lev. 26:12.

26. In the nature of the case, God cannot utilize either of the classic remedies for breach of legal contract, that is, monetary damages or specific performance. There is, of course, no monetary value that could be assigned to the protection and care which God promises to bestow upon Israel, nor to the costs which God incurs in withdrawing that protection. Nor, of course, is there any way for God to force Israel to comply with the terms of the covenant, short of turning them into automatons.

27. For a discussion of curing breaches of contract, see Farnsworth, supra note 16, at 613-18.

28. Gen. 17:7.

29. This unconditional view of covenant is often identified with the Abrahamic or Davidic covenants, while the Sinaitic covenant, by contrast, is supposed to be conditional. See, for example, Bright, J., Covenant and Promise: The Prophetic Understanding of the Future in Pre-exilic Israel 23–44 (1976)Google Scholar; also, Levenson, , The Jerusalem Temple in Devotional and Visionary Experience, in 1 Jewish Spirituality 48–51 (Green, A. ed. 1986)Google Scholar. Yet, insofar as the Sinaitic covenant is, from the perspective of the Torah's redactors, built upon the covenant with Abraham and extended (perhaps fulfilled) through the covenant with David, the dichotomy should not be maintained too sharply. Indeed, the Sinaitic covenant itself is, from one perspective, contractual and conditional and from another perspective, eternal and unconditional.

30. Tanna d'bei Eliyahu, p. 31 as quoted in Montefiore, C. G. and Loewe, H., A Rabbinic Anthology 63 (1974)Google Scholar.

31. Knight, , Cosmogony and Order in the Hebrew Tradition, in Cosmogony and Ethical Order 143–44 (1985)Google Scholar.

32. While I have tried to provide concrete examples of texts and thinkers that exemplify each of the tendencies I identify, I would argue that each of these options exists within the tradition, whether or not they have all been consciously articulated and developed historically. My point, then, is to spell out the range of possibilities for a covenantal ethic in Judaism, while recognizing that it may not be possible in each instance to demonstrate explicit connections between a specific model of covenant and the ethical theory of a specific thinker.

33. Fackenheim, , The Revealed Morality of Judaism and Modern Thought, in The Jewish Thought of Emil Fackenheim 78 (1987)Google Scholar.

34. On this analysis, Israel's obligation to observe ritual laws would likewise be a moral duty.

35. Spero, S., Morality, Halakha and the Jewish Tradition 82 (1983)Google Scholar.

36. Levenson, J., Creation and the Persistence of Evil: The Jewish Drama of Divine Omnipotence 143 (1988)Google Scholar. Levenson argues that there is a dialectical relationship between autonomy and heteronomy in the Sinaitic covenant, which mirrors the political relationship between the suzerain and vassal in those ancient Near Eastern treaties on which covenant is modeled.

37. The contrast between these two models also finds expression in the diverse motivations offered for performance of the divine law. In a contractual model, Israel's primary motivations for observing the law will be 1) the duty to fulfill its own promise, and 2) the rewards and punishments that accompany performance and breach respectively. In the alternative, Israel's motivations will be largely feelings of gratitude and love engendered by God's benevolence. For a complete discussion of this issue, and of the nature of Jewish law generally, see Dorff, E. N. & Rosett, A., A Living Tree: The Roots and Growth of Jewish Law 93–109 (1988)Google Scholar.

38. Rubenstein, , Religion and History: Power, History, and the Covenant at Sinai, in Take Judaism, for Example 175 (Neusner, J. ed. 1983)Google Scholar.

39. For an application of this dialectical notion of covenant to the area of medical ethics, see Meier, , Toward a Covenantal Ethic of Medicine, in Jewish Values in Bioethics (1986)Google Scholar.

40. See Gordis, , A Dynamic Halakhah, 28 Judaism 263–82 (1979)Google Scholar; The Ethical Dimensions of the Halakhah, 26 Conserv. Judaism 53–63 (1972)Google Scholar.

41. See Dorff, , The Interaction of Jewish Law with Morality, 26 Judaism 455–66 (1977)Google Scholar.

42. See Halivni, , Can a Religious Law be Immoral? in Perspectives on Jews and Judaism: Essays in Honor of Wolfe Kelman (Chiel, A. ed. 1978)Google Scholar.

43. Deut. 15:1-2.

44. For example, two separate witnesses had to provide identical accounts of the crime, and of the most minute details of the circumstances surrounding the crime, that they had to have warned the murderer of the consequences of this act immediately before it was performed, that they had to ascertain that that murderer was definitely of sound mind, etc.

45. For a fuller discussion of this issue, see my Ethics as Law, Law as Religion: Reflections on the Problem of Ethics and Law in Judaism, 9 Shofar 13–31 (1990)CrossRefGoogle Scholar.

46. Dorff, , Covenant: The Transcendent Thrust in Jewish Law, in 7 The Jewish Law Annual 79 (1988)Google Scholar.

47. For a discussion of these two models of ethical reasoning, see Ellenson, , How to Draw Guidance from a Heritage: Jewish Approaches to Mortal Choices, in A Time To be Born and A Time To Die (Kugan, B., ed. 1991)Google Scholar. Ellenson identifies the former approach as “legal formalism,” and the latter as “covenantal,” but I have tried to argue that each is really covenantal in its own way.

48. Borowitz, E., Exploring Jewish Ethics 184 (1990)Google Scholar.

49. Midrash, Psalms on 123:1.

50. Babylonian Talmud, Sanhedrin 44a.

51. See Schwartzchild, , On the Theology of Jewish Survival, in Judaism and Ethics 291–302 (Silver, D. ed. 1970)Google Scholar, who notes that both these views exist within the tradition in dialectical tension with one another.

52. The most famous exponent of this view was the medieval Jewish philosopher, Judah Halevi, who claims in his Kuzari that Jews are inherently superior to others. A similar view, expounded in a mystical context, was held by Rabbi Abraham Isaac Kook.

53. Nicholson, supra note 9, at 191-217, discerns a development within the biblical sources from an early view of covenant as a natural, familial sort of relationship which is permanent to a later view according to which the relationship is more distant and conditional. Concomitantly, Scripture presents Israel's holiness as both “indicative” and “imperative,” as both a fact and a goal.

54. Ramsey, , Elements of a Biblical Political Theory, 29 J. Religion 258 (1949)CrossRefGoogle Scholar.

55. Goldberg, M., Jews and Christians: Getting Our Stories Straight (1985)(especially 213-22)Google Scholar.

56. Lovin, , Covenantal Relationships and Political Legitimacy, 60 J. Religion 16 (1980)CrossRefGoogle Scholar.

57. See, for example, his essay entitled Risk and Uncertainty in Halakhah, in Joy and Responsibility: Israel, Modernity and the Renewal of Judaism (1978).