Early Modern Natural Law and Its Rabbis

John Selden, arguably the most important legal theorist of seventeenth-century England,Footnote ⁶ wrote a major work, On the Laws of Nature and of the Nations According to the Teaching of the Hebrews in Seven Books. Footnote ⁷ Selden’s thesis is that the seven “Noahide laws”—the laws the Talmud considers given by God to the sons of Noah after the flood—constitute universal natural law.Footnote ⁸ Every particular constitution, starting with Jewish law and including English law, should be understood as built on the foundations of these seven laws that are common to all legitimate legal systems. Alongside ancient Greek and Roman sources and sources from the history of English law, Selden’s work cites more than a hundred rabbinic works in original Hebrew, Arabic, or Aramaic with Latin translation.

Selden was famous in the seventeenth century for his rabbinic learning, earning the title Rabbi in correspondenceFootnote ⁹ and being called “the greatest Talmudist of our age or of any”Footnote ¹⁰ at a time when there were no Jews in England. Yet Selden was not alone among his contemporaries in turning to the Hebrews, or Jews, for teachings on natural law.Footnote ¹¹ While Selden comments on the fact that rabbinic sources were not to be found in scholastic writings,Footnote ¹² he credits his Dutch counterpart, Hugo Grotius, for the turn toward “teachings of the Hebrew” for natural law: “Hugo Grotius must be held in the first ranks of these men, who in that outstanding book De Jure Belli ac Pacis … touches upon the teaching of the Hebrews from the Talmud that we are about to set forth and other things from their doctrine.”Footnote ¹³

Grotius is widely considered the father of modern international law as well as the first modern natural law thinker, yet his turn to Jewish sources has received limited recognition.Footnote ¹⁴ A close look at his most famous work, De Jure Belli ac Pacis/On the Laws of War and Peace, reveals that Philo Judaeus is cited 114 times as a source of Jewish wisdom,Footnote ¹⁵ including as the first source for Grotius’s definition of natural law. Maimonides is cited twelve times in this work, including as an interpreter of “Greek Jews” with Philo chief among these,Footnote ¹⁶ such that Grotius reads Philo as part of a Jewish tradition he constructs that includes Hellenistic and rabbinic texts.

What Grotius found in the Jewish sources he incorporated into his later work was authoritative theoretical grounding for the natural law theory he had developed in his early work, and particularly for its break from scholasticism.Footnote ¹⁷ Whereas for Aquinas and later scholastics, divine law and natural law were separate and distinct parts of God’s eternal law, in Grotius’s post-Reformation account, the different branches of law—natural, divine, and eternal—were understood as the same law revealed in different ways. The interchangeability of divine, natural, and eternal law was closely related to the early modern rendition of the doctrine of the two books, which found the books of nature and scripture to reveal a single law, expressing both divine will and reason, rather than distinct parts of eternal law.

In Grotius’s early work, the creation of the world starts with an “ordered plan of nature” which is also “the very design of the creator.”Footnote ¹⁸ This is then legislated into the world by God, both in his creation of nature and in his authoring of scripture, such that divine and natural law are renditions of a single law. For Grotius, the recovery of natural or divine law begins with reasoning from first principles and then what is discovered by reason is confirmed in scripture and in the approval of men of wisdom and nations of high repute.Footnote ¹⁹ Natural law is what is true universally with independent and prior existence. There is no separate divine law or eternal law, but rather divine law is natural law, which is eternal.Footnote ²⁰ Grotius urges caution when examining natural law in the “holy writ,” to make sure that the civil law of the Hebrews is distinguished from “divine law,” where divine law and natural law are coextensive.Footnote ²¹

Philo Judaeus’s notion of natural law which Grotius seems to have come across midcareer, around 1618,Footnote ²² offers a relationship between nature and scripture which resonated with Grotius for whom Philo represented the Jewish approach. According to Philo, God first created a blueprint of the cosmos in his logos,Footnote ²³ then copied this blueprint into the natural world at creation. To allow people to access the order inherent in nature, God created a second copy of natural law in scripture.Footnote ²⁴ Beyond these two copies, God also copied his own logos into the logos of particular men who had immediate access to natural law.Footnote ²⁵ These were the patriarchs in the Bible, and the fact that their logos was a copy of God’s logos is the meaning of man being created in the image of God. While subsequent generations of men were also created in the image of God, their logos was a copy of a copy, further removed from the original and thus less precise in its capacity to understand God’s truth unaided. The Bible and the order in nature help people of later generations understand and live by natural and divine law.

Philo and Grotius both recognized what would become crucial for Mendelssohn: that the written text of the Bible is not sufficient to contain the “ordered plan of nature” or natural law, due to the endless number of possibilities that a finite text could not represent. For this reason, Philo explains, the Bible contains the lives of exemplary men, and studying the Bible should include reading beyond the words of the text to studying the lives of these exemplary figures as perfect examples of life in accordance with divine or natural law.Footnote ²⁶ Grotius also finds that natural law is always in the process of being recovered, and we will see this theme as central to Mendelssohn’s understanding of the law as living script.

Grotius not only cites Philo in his On the Laws of War and Peace, but works with Philo’s ideas to elaborate on his own early understanding. One of Grotius’s more audacious moves in this work was to render knowledge of God theoretically redundant to moral life. This was possible because of the equivalency between divine and natural law. If God initially wrote natural law into creation and provided the Bible as an aid to reach this law, and if natural law is also in the minds of exemplary men, there are various independent paths to natural law. This is how we should read Grotius’s infamous “impious statement” that “[w]hat we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him.”Footnote ²⁷ Other than removing its impiety, this reading of Grotius’s “impious statement” also renders it consistent with Grotius’s finding that the laws of nature were willed into the world by God. They were legislated by God, yet knowledge of God is not necessary to know these laws.

If we consider the relationship between Jewish or rabbinic tradition and natural law in the seventeenth century, we find that a significant move of natural law theory from Grotius onward is the collapse of Scholastic distinctions between eternal, divine, and human law, and one way this was achieved was through reading the Hebrew Bible as Philo, the Talmud, and Maimonides are reconstructed to have read it, for universal wisdom. For Grotius there was no Scholastic scheme of laws, but natural law is the divine law imparted in scripture, and it is eternal. Grotius’s work with Hebrew resources to develop post-Scholastic natural law was continued by Selden who also presented a natural law—in his case rabbinic Noahide law—as divine, eternal, and natural.

Thomas Hobbes also participated in the natural law thinking Grotius and Selden pioneered, rejecting Scholastic categories and turning to the Hebrew Bible for information about natural law. In Leviathan, the first table of the Ten Commandments appears as the constitution of the Hebrews, the people over whom God was king, and it is read as a universally applicable blueprint for sovereign legislation.Footnote ²⁸ The second table of the Ten Commandments is read as “the law of nature, that is to say, the precepts of natural reason, written in every man’s own heart.”Footnote ²⁹ Once the state of nature has been left behind, (which for the Hebrews may have been at Sinai)Footnote ³⁰ the laws of nature, the constitution of the state, and divine law become one.Footnote ³¹

Yet there are two differences between Hobbes’s natural law and that of Grotius and Selden, which relate to Mendelssohn’s critique of Hobbes that will be discussed in the next section. First, when Hobbes brought natural, divine, and human law together, he retained a distinct category of eternal law that is beyond the reach of the state. For Hobbes, while the sovereign is a mortal God, in messianic times God is scheduled to return as king. The biblical promise of messianic times contains images that are unimaginable in this world, including “spiritual bodies,” from which Hobbes derives that nature will be overturned and with it the laws of nature in this world.Footnote ³² Hobbes thus sets aside the messianic future, assuring his readers that his theory was for a mortal commonwealth, not an eternal state.Footnote ³³ He was thus able to theorize this-worldly politics without committing to eternity.

Second, Hobbes’s natural law required belief in God for natural law to truly be law, which meant that religious conformity was an important part of the Leviathan state. While he initially introduced laws of nature in Leviathan as emerging from the state of nature and allowing men to leave this unlivable state, he writes that these precepts are only properly called laws when they are considered to have been legislated by God.Footnote ³⁴ Here Hobbes deviates from Grotius’s statement that natural laws do not require knowledge of God to be binding. For Hobbes, while natural laws can be known without God, they are not binding without God. Yet because natural laws are foundational to sovereignty, Hobbes requires that they be universally accepted, which means that all members of the commonwealth must accept God. This leads to religion having a central role in politics, and a crucial role of the sovereign is to maintain religion.

In Jerusalem, Mendelssohn explicitly rejects both the role of religion in Hobbes’s state and the distancing of eternity from the natural world. His argument with Hobbes and his return to Grotius’s positions that draw on Philo elucidate Mendelssohn’s natural law scrutinized by Michaelis, the tradition it continued, and what it was up against.

Mendelssohn and Early Modern Natural Law

Mendelssohn opens Jerusalem with the problem Hobbes set out to address in Leviathan: the correct balance of civil and ecclesiastical power in the state. This is the question of Leviathan even before one opens the book, with the frontispiece depicting the marks of ecclesiastical power and the marks of civil power feeding into the sovereign who presides over both realms.Footnote ³⁵ Yet despite their common project and Mendelssohn’s appreciation for Hobbes, when Mendelssohn considers the civil and ecclesiastical in the opening of Jerusalem, he separates himself from Hobbes’s understanding of natural law that leads to a repressive solution of a single sovereign over religion and civil society.Footnote ³⁶ Still, Mendelssohn and Hobbes share more premises than Mendelssohn acknowledges in Jerusalem, blurred by his rejection of Hobbes’s account.

Mendelssohn correctly states that for Hobbes “[t]he state of nature is a state of tumult, a war of all against all, in which everyone may do what he can do; every thing one has the power to do is right. This unfortunate condition lasted until men agreed to put an end to their misery, to renounce right and might, as far as public safety was concerned, and to place both in the hands of an established authority.”Footnote ³⁷

He further explains that with Hobbes’s conception of the laws of nature, men should not be able to leave the state of nature as the social contract would not be binding to men in a state in which they owe no allegiance to man or God. He writes:

Mendelssohn thus faults Hobbes’s natural law not for the content of the laws themselves or even their derivation from a state of nature, but for the absence of God as the source of obligation to natural laws.

But here Mendelssohn misrepresents Hobbes, who, like Mendelssohn, claimed there was a need for a binding authority—even a God—to ground the laws of nature and make them properly laws that could be trusted to allow men to leave the wretched state of nature. Hobbes writes explicitly, “These dictates of reason, men used to call by the name of Lawes, but improperly: for they are but conclusions, or theorems concerning what conduceth to the conservation and defense of themselves; whereas Law, properly is the word of him, that by right hath command over others. But yet if we consider the same theorems, as delivered in the word of God, that by right commandeth all things; then they are properly called Lawes.”Footnote ³⁹

Thus, while Mendelssohn is correct to point out that Hobbes’s Leviathan state would be on shaky ground if its founding contracts were made in a Godless state of nature, Hobbes himself resolves this by introducing God into the presumptions of natural law. The state of nature is a presumed state, and the God who would allow the conclusions emerging from the state of nature to be properly laws is a presumed God. To ensure the presumption of God by all, religion needed to be cultivated by the sovereign.

With this aspect of Hobbes’s laws of nature clarified, it seems that Mendelssohn agrees with Hobbes on the laws of nature—insofar as there are such laws—being universal God-given laws that ground all social arrangements. He, like Hobbes, describes a state of nature—a state of “wretchedness” in which human beings are lonely and unfulfilled—and human beings exiting the state of nature and entering civil society to promote the common good by common measures.Footnote ⁴⁰ His disagreement with Hobbes is about the reason for leaving the state of nature and about the cultivation of religion by the civil sovereign. For Mendelssohn, a reason to leave the state of nature was to perform preexisting obligations, whereas for Hobbes—despite the presumed God of his natural law—the reason to leave the state of nature is mere survival. On the cultivation of religion, for Hobbes the civil sovereign must cultivate religion so that people will keep the law, while for Mendelssohn as for Grotius, knowledge of God is not the only path to knowing the precepts of natural law. While the state must demand that human actions accord with morality, the religious convictions behind morality cannot be coerced and need not be, due to the various ways to access moral law.

It is here that the division of labor between church (broadly enough conceived to include synagogues and mosques)Footnote ⁴¹ and civil state appear in Mendelssohn’s thought in a manner that deviates sharply from the Leviathan state. While the fulfillment of human duties clarified in the social contract requires both actions and convictions, for Mendelssohn actions and convictions are not to be regulated by the same institutions after exiting the state of nature. The civil state is responsible for regulating actions, while educating for convictions is the responsibility of the church, synagogue, mosque, or whatever religious institutions there may be. The state may sometimes turn to force or sanctions to command actions, but churches never have recourse to force, and convictions cannot be shaped by coercion, only through persuasion. While the state would be more wholesome with men holding true convictions, hence the desirability of churches, moral actions without convictions can be tolerated by the state.Footnote ⁴²

In promoting toleration for a variety of convictions, as long as actions accord with state law, Mendelssohn is again in partial agreement with Hobbes, and he notes this in Jerusalem when he discusses the realm of freedom of inner convictions that Hobbes leaves when he writes that only God can punish thoughts. Yet Hobbes has the state, with its sanctions, in charge of cultivating true or political religion among the people, and finds that without this religion, natural or moral law itself is in danger. Mendelssohn recognizes the cultivation of religion by the sovereign as a slippery slope toward intolerance, and indeed, as I discuss below, Hobbes does not envision the state—as an institution that must cultivate and demand singular religion—tolerating Jews.Footnote ⁴³ Hobbes also reserves a separate realm of eternity in which the state does not intervene,Footnote ⁴⁴ while for Mendelssohn eternity is continuous with the political world:Footnote ⁴⁵ true convictions (and hence churches) serve people beyond the political and beyond this world, but are not necessary for compliance with the moral requirements of political life.

The conversation between Mendelssohn and Hobbes is so lively that one wonders whether the bon ton of the late eighteenth century demanded that Mendelssohn smear the seventeenth century as a “period of deep confusion,”Footnote ⁴⁶ even when he himself was in many respects of the era. When we turn to Grotius, one of Kant’s “sorry comforters,”Footnote ⁴⁷ the question becomes more acute, as the natural law theories of Mendelssohn and Grotius and their grounding of toleration in natural law, form an unacknowledged continuum from seventeenth century Hebraic thought to eighteenth century Jewish thought.

While my focus is on the proximity of Grotius and Mendelssohn’s natural law theory that grounded their arguments for toleration, it is worth noting that before their major writings on natural law, both Mendelssohn and Grotius had already advocated for the toleration of Jews. Mendelssohn had provided material for Christian Wilhelm von Dohm’s On the Civil Improvement of the Jews, and in Jerusalem he supports Dohm’s text, almost as a co-author. In addition, one of Mendelssohn’s earlier publications (1782) was a German translation of Menasseh Ben Israel’s Vindication of the Jews, which Mendelssohn flagged as an appendix to Dohm. The fact that Mendelssohn turned to a contemporary of Grotius and Hobbes to argue for the legal status of the Jews in Germany should not be passed over as insignificant: Ben Israel himself lived in that same “sorry period” as Hobbes and Grotius, yet Mendelssohn finds the arguments of the period relevant for his own.Footnote ⁴⁸ His choice to be involved in publishing a work that grounds toleration in crude prejudice, alongside his own work that provides natural law justifications for toleration, involves Mendelssohn providing different seventeenth century arguments for toleration that are usually pinned against each other, even when both were ultimately instrumental in convincing different audiences.

Grotius argued for tolerance of the Jews in Ben Israel’s lifetime, and his early works include the Remonstrance to the States of Holland, an early seventeenth-century argument for the formal toleration of Jews in Amsterdam. This work appealed simultaneously to prejudice and natural law, while his De Jure Belli ac Pacis/On the Laws of War and Peace offered the natural law argument with which Mendelssohn converses in Jerusalem.

As for their similar natural law arguments for toleration, as discussed above, in his De Jure Belli, Grotius finds different paths to natural law, and in line with this, Mendelssohn claims that the Hebrew Bible and Jewish law contain no revelation or truth not made manifest already in nature and the intellect. For Grotius, Jews were to be tolerated not because of special access to truth or wisdom but simply because the state does not require conformity on matters of religion to function well. The state requires only that citizens keep their oaths, and the knowledge of natural law that is sufficient for doing so can be accessed through a variety of paths. For Mendelssohn, while some particular laws of the Jews could serve as a model, and seventeenth-century thinkers, including Grotius, agreed on this, toleration of the Jews is based on the agreement between all religions on fundamental principles of morality, not on any special access to divine truth. The Jews understand natural law well, for both thinkers, but this is not exclusive Jewish knowledge even when they bring in what they perceive as authoritative Jewish texts.

Like Grotius, Mendelssohn argues for the congruence between the laws of nature, eternal law, and divine law, and this unravels throughout both parts of Jerusalem: the first which is generally considered properly political, and the second more theological.Footnote ⁴⁹ In the first part, Mendelssohn discusses the extent to which the state need only concern itself with fundamental principles on which all religions agree, and these are duties toward God as much as they are duties toward man; obligations cannot contradict, and this is written into nature and common sense.Footnote ⁵⁰ Then in the second part Mendelssohn argues that Moses did not reveal universal truths to the Jews, but laws—so not universal revelation but particular rules—and this was not revelation in any Christian sense. God had revealed the truths he intended to reveal before the giving of the law, in nature and through human reason.Footnote ⁵¹ Here Mendelssohn strikes an idealist position admired by Emmanuel Levinas in a passage on the intellectual unity of humanity in Jerusalem that can now be understood in light of Grotius’ emphasis on the agreement between religions on fundamental principles.Footnote ⁵² Mendelssohn also seems here to be leaving a distinct space for divine law that is different for the Jews than for other people. Yet within pages he explains that this particular divine law is to be read as an encasing of—and a universally accessible path to—already-revealed truth.

Mendelssohn proceeds to argue with some rabbis—notably Maimonides—and to side with others on the question of whether Judaism has articles of faith. He argues that true Judaism does not command faith but actions, and approvingly cites rabbis who concur.Footnote ⁵⁴ This claim supports Mendelssohn’s argument against sanctioning faith, and this section where he argues against articles of faith is one of the very few places in Jerusalem where Rabbis are discussed by name. This is interesting in light of Michaelis’s critique with which I opened, though it is certainly the case that rabbis are present throughout Mendelssohn’s discussion of natural law, including in his rendition of the Golden Rule.

Having reviewed Mendelssohn’s tying of the wisdom in the Hebrew Bible with natural law and right reason, I turn back to an early sentiment of his that parallels the “impious statement” from Grotius’s work, that natural law can be known even by those who presume there is no God. This statement allowed Grotius’s natural law to stand up to skepticism in his time, and Mendelssohn has similarly been found to have sought out ideas—even an idea of Judaism—that that would stand up to skepticism and philosophical doubt.Footnote ⁵⁵ Mendelssohn finds that moral action, which is the realm of the state, can be achieved without conviction, which is the realm of the Church. Moral action does not require belief in God and does not depend on scripture that itself restates but does not add to natural law. It is for this idea—that scripture does not add revelation of universal truth beyond what has already been revealed—that Mendelssohn is criticized as unJewish, just as Grotius was criticized as impious. Mendelssohn responds to this criticism in Jerusalem: “It is true that I recognize no eternal truths other than those that are not merely comprehensible to human reason but can also be demonstrated and verified by human powers. Yet Mr. Mörschel is misled by an incorrect conception of Judaism when he supposes that I cannot maintain this without departing from the religion of my fathers. On the contrary, I consider this an essential point of the Jewish religion … I believe that Judaism knows of no revealed religion in the sense in which Christians understand this term.”Footnote ⁵⁶

Mendelssohn’s claim is that the revelation in Judaism is not of universal truths but of particular legislation and that this is central to Jewish religion. Further, while religion serves human beings’ common purpose and supports existing moral obligations, it does not add obligations.

Mendelssohn’s claim that scripture does not reveal eternal truths relates to his discussion of oaths. Oaths do not add obligations just as religion does not add truth. Asking people to swear oaths, or add the name of God to a promise, is asking them to solemnly confirm that to which they are already obligated, just as asking them to add conviction does not add anything to the obligation which already existed. “Where no duty exists, an oath is a vain invocation of God, which may be blasphemous, but can in itself create no obligation.”Footnote ⁵⁷ What oaths add is force and coercion in the name of God. Mendelssohn thus adds a dimension to the contentious question in early modernity of whether the oaths at the foundation of the modern state can be kept without God. For Grotius, God did not need to be added to the obligation, with the first natural law being the keeping of promises or honoring of pacts, whereas for Hobbes, men could not be relied upon without fear of God, and hence the need for states to cultivate religion.

Tolerance, in Jerusalem, comes from the fact that different churches all educate for true convictions that serve the state, and alongside this, from the fact that convictions are not necessary conditions for moral action or for keeping the law. While sound convictions could mean that moral obligations are met for the right reasons, these reasons are indifferent to the state so long as the obligations are met. Regarding tolerating multiple churches (or multiple religions), Mendelssohn writes that the state need not

Religion is therefore politically desirable but not politically necessary. While it makes moral life meaningful and people may need this, the state requires compliance, not meaning.Footnote ⁵⁹ Mendelssohn gleans this from his understanding of Judaism as requiring actions not convictions, tying back to his argument with Maimonides on the question of whether Judaism has articles of faith.

Regarding toleration of non-religionists, even of atheists, Mendelssohn goes further than his seventeenth century counterparts. Atheists in Grotius’s thought—as in the thought of Hobbes and later John Locke—cannot be trusted to keep their promises and hence cannot be tolerated. Yet because Mendelssohn stressed the singularity of moral law and the fact that the state has sanctions to enforce this law, he extends toleration to atheists. Coercive state law can safeguard moral action and the state is able to free itself entirely of requiring faith. This stems from Mendelssohn’s understanding that law is about action rather than faith, and from his understanding of Jewish law that is foreign to Christian understandings of religion as faith. Also interesting from a Jewish perspective is that Mendelssohn tolerates not only atheism but polytheism and even idolatry. This was set up in his discussion of various types of idolatrous temptations that even Hebrews were challenged by, implying that idolatry is a continuum.Footnote ⁶⁰ Regarding polytheistic religions, these are portrayed as sharing a reverence for God and common sense with monotheistic religions.Footnote ⁶¹ Grotius, who found common ground with diverse religions in his time, could tolerate polytheism but not Atheism.

I end this discussion of Mendelssohn’s natural law in the context of early modern natural law discourse with two notes, one on Noahide law and one on the Golden Rule.

On Noahide law, we have seen that John Selden considered the seven laws the Talmud finds were imparted to the sons of Noah to be natural law. In Mendelssohn’s memoirs we can find him identifying natural law with Noahide law,Footnote ⁶² further relating his work to seventeenth-century Hebraic natural law discourse. In Jerusalem, he offers a more abstract account of laws within the Jewish textual tradition that are to be considered natural law, closer to the accounts of Grotius and Philo and to the enlightenment idea of common sense than to specific rules elaborated in the Talmud and by Selden.

The Golden Rule is both the sum of natural law in Hobbes’s Leviathan and the quintessence of Jewish law in Mendelssohn’s Jerusalem. Like other aspects of early modern natural law theory, Mendelsohn offers something subtly new from within his lived Jewish tradition. He writes:

Two things are worth noting. The first is that Mendelssohn includes, in the text, different rabbinic approaches, recalling that Judaism contains various approaches that all share the goal of attaining God’s truth. The second is Mendelssohn’s inclusion of “now go and study!,” which is easy to set aside but crucial for understanding Mendelssohn’s innovation in natural law theory. He calls not only for obedience to moral law, which the state can sanction, but for a life of active inquiry, which is a life of religious learning. A life of not only going through the motions of the law, but of living with the law and of constantly peeling back action and text in pursuit of truth.

This is Mendelssohn’s unique contribution from within his own lived Judaism. Early modern thinkers had found the Hebrew Bible and Hebrew wisdom to contain natural law, and divine law and natural law to concur. Mendelssohn added that living in light of natural law is not mere obedience—though this is enough for the state—but a constant process of learning and engagement. Continuous inquiry is part of acquiring moral convictions, and because convictions are not necessary for moral actions, the learning is valuable in and of itself, without a political end. This is how Mendelssohn, even when he argued with some rabbis and sided with others, promoted respect for all. The rabbis were all involved in learning and refining their ideas, in peeling back actions and texts—in a life of inquiry.

Interestingly, the life of inquiry is present in both Grotius and Philo’s work, with both thinkers finding the words of the biblical text insufficient to contain God’s plan, leading to constant inquiry. For Philo, it is the lives of the patriarchs that are to be interrogated beyond the words of the text, and the idea of the forefathers as living law in both Philo and Mendelssohn, who revered Philo, has been noted.Footnote ⁶⁴ For Grotius, who similarly revered Philo, natural law was constantly being recovered and agreement among people constantly sought. But the role of the person living in the light of the law was never as active as in Mendelssohn’s Jewish addition of “now go and study!,” which makes the life of inquiry part of universal revelation and valuable on its own for the person, not for politics.

In sum, Mendelssohn’s natural law thinking is conversant with seventeenth-century thought, starting with the use of Hebrew sources in natural law thinking and affirming that nature and scripture both package natural law. Mendelssohn continues the natural law case for toleration presented by Grotius, that because there are various ways of accessing moral truth, people of different religions can be tolerated and even understood as sharing the key foundations of moral life. He further finds that even atheists can be tolerated in a coercive state that demands obedience to the law, even when truly living with natural law is about more than mere obedience: it requires a life of inquiry. The state does not mandate a life of inquiry but only obedience to the law. Hobbes is a key thinker with whom Mendelssohn conversed and argued, and Hobbes’s key question of the theological and the political was Mendelssohn’s question, too. Yet Hobbes’s natural law required acknowledgment of a divine legislator, and thus compliance with state religion was imperative and toleration could not be extended. For Mendelssohn, separation of church from state was essential, and a life of inquiry could not be pursued for political gain. Somewhat ironically it was the state’s forceful sanctioning of moral actions, regardless of convictions, that allowed Mendelssohn’s political vision to be more tolerant than Hobbes’s.

Rabbis in Natural Law? Critics of “Sorry Comforters” and Their Jews

Turning to rabbis and Jewish thinkers for natural law, for which Michaelis censured Mendelssohn in the late eighteenth century, was not Mendelssohn’s innovation but was a move made by Grotius and other seventeenth-century thinkers, including Hobbes and Selden, who parted from Scholasticism and shaped modern natural law. Reading Mendelssohn as writing in conversation with early modern thinkers—continuing from his own conversation with Hobbes in Jerusalem—contributes to understanding Mendelssohn’s work and innovations. Mendelssohn’s natural law was akin to that of Grotius, whose natural law is eternal law, is common to all religions, and is packaged in the laws of the Hebrews. This natural law thinking, which brings Jewish tradition in as expounding universal wisdom, affirmed toleration: the essence of morality is universal, and while it may be found in religious sources, it can be found in sources of different religions. Further, for Mendelssohn, moral actions can be assured independently of convictions when state law sanctions them, so that the state need not concern itself with policing convictions at all.

The context I propose for reading Mendelssohn’s natural law thinking and understanding his toleration emphasizes Mendelssohn’s reading of Jewish sources as being of universal import, rather than being relevant only for the Jews, and this he held in common with seventeenth-century natural law theorists. To what extent was toleration drawn from considering Judaism as having universal import, and to what extent did intolerant attitudes toward Jews in both the seventeenth century and Mendelssohn’s time draw on a theoretical perspective on Jewish law as pertaining only to the Jews?

The idea that Judaism was particular, not universal, was of course not new: this was the long-held attitude of the Catholic Church that sought to bring Jews to the universal, it was the attitude on which Martin Luther insisted in the face of early Protestants who considered God’s word, which was said to the Jews, as spoken to them, and it is arguably the approach of rabbinic Judaism itself, which is generally understood as not having a natural law teaching. New in the seventeenth century was that Christian thinkers who emphasized Jewish particularism did not necessarily point to the inferiority of Judaism. Post reformation, the ancient Hebrew republic became a model as a particular polity—even a sovereign state—with exemplary laws and institutions, such that the particular became exemplary. The question of whether contemporary Jews could be incorporated in a commonwealth governed by good laws, or whether Jews should rather have their own separate politics, hinged on how theorists understood the contribution of Judaism to wisdom: whether it contributed to our understanding of how to run a particular polity or whether it confirmed universal natural law, or both. Grotius, who leaned on Philo and found Judaism confirming universal natural law, found that Jews could and should be tolerated, while Hobbes, who modeled Leviathan on God’s rule over the Hebrews as his peculiar people, focused on the exclusive nature of the Jewish commonwealth. Hobbes mentions that Jews were not tolerated even in ancient Rome due to their distinct religion. Republican theorist James Harrington explicitly considered the Jews’ separateness intolerable in England and sought a political solution to a Jewish question he raised.

I opened with Michaelis’s critique of Mendelssohn that even when writing about natural law he engaged the rabbis. Yet the theoretical disagreement Michaelis had with Mendelssohn could have been had with Grotius or Selden. But Michaelis’s scholarship was not negative toward Jewish texts. He did read Jewish texts as particularistic rather than universalist, yet he held the Old Testament and Moses as a lawgiver in highest regard, and his reputation as a great orientalist draws on the resources he put into understanding Mosaic law in a Semitic context. On his interpretation, Mosaic law was an admirable achievement; an adaptation of Egyptian law and localized nomadic Hebrew customs that related Jews to their land and enabled them to survive as a separate people.Footnote ⁶⁵ Michaelis drew on his understanding that the laws of Moses were intended to keep the Jews separate, not to be universal or shared, and from here he derived that Jews should not be tolerated in the modern state. This, like Mendelssohn’s employment of the rabbis for natural law, was not an enlightenment innovation, though it is a perspective Michaelis shared with Kant and other enlightenment thinkers. Jewish particularism was grounds for the exclusion of the Jews already from the seventeenth century, and even among Jewish thinkers such as Spinoza. But while Spinoza has been seen as a source of the eighteenth-century approach to Jewish particularism, there were other theorists whose accounts were far closer to those of Michaelis and Dohm.

Scholarship that relates Michaelis’s orientalist study of the ancient Hebrews and Mosaic law to his exclusion of the Jews has generally not observed the continuity of his arguments from seventeenth-century “Hebrew republic literature,”Footnote ⁶⁶ and the exclusion of contemporary Jews that sometimes followed from employing a Hebraic political model. There has been some grounded speculation that in studying Mosaic law as exemplary, Michaelis followed seventeenth-century Hebraists, specifically Petrus Cunaeus, who, as did Michaelis, emphasized the Hebrews’ agrarian law as a definitive feature of their republic.Footnote ⁶⁷ Another thinker who followed Cunaeus was Harrington, who in Commonwealth of Oceana both elaborated on the Hebrews’ agrarian law and recommended settling the Jews in Ireland rather than incorporating them into England. It is Harrington’s text that I find a precursor to the approach articulated by Dohm and Michaelis in the late eighteenth century.

This is what Harrington writes in Commonwealth of Oceana, offering the Hebrew commonwealth with its particular laws and institutions as a model for how contemporary Jews—or Jewish questions—should be settled:

In Dohm’s Civic Improvement, Michaelis found a similar sentiment about the Jews never incorporating, which causes him to consider a type of internal Jewish colony for the Jews of his time: “Do the laws of Moses contain anything that would make it impossible or difficult for the Jews to be completely naturalized and melt together with other peoples? One should nearly think so! Their intention is to preserve the Jews as a people separated from all other peoples … and as long as the Jews retain the laws of Moses, as long as they for example do not dine with us … they will never melt together with us—like the Catholic and Lutheran, the German, Wend and Frenchman, who all live in a single state.”Footnote ⁶⁹

Michaelis was even closer to Harrington than Dohm: He connected Jewish separatism to agriculture and proposed settling them in an external colony for economic gain. Michaelis writes: “Such a people can perhaps become useful to us in agriculture and manufacturing, if one manages them in the proper manner. They would become even more useful if we had sugar islands which from time to time could depopulate the European fatherland, sugar islands which, with the wealth they produce, nevertheless have an unhealthy climate.”Footnote ⁷⁰

Both Dohm and Michaelis have been said to have seen the modern inclusive state they imagined as the antithesis of Jewish particularism.Footnote ⁷¹ Kant, who described Judaism as political and Judaism as “a collection of mere statutory laws,”Footnote ⁷² shared this particularistic understanding of Judaism, and while some have considered his source to have been Spinoza’s reflection on the Hebrew commonwealth as theocracy, recovered here is a greater context in which both Spinoza and Kant took part. Yet there was a crucial difference between early modern and enlightenment thinkers in this discourse: while seventeenth-century theorists who excluded the Jews, such as Harrington, saw the particular Jewish commonwealth as a model for other particular commonwealths, recognized as exclusive, Enlightenment thinkers considered themselves to have surpassed exclusivist Jewish politics and moved toward universalism. The exclusion of the Jews from European societies that understood themselves as inclusive and universalist was, of course, the immediate impetus for the founding of the Zionist movement by Theodor Herzl after the Dreyfus Affair.

When Harrington wrote that the Jews should be settled in Ireland “had it bin [sic] thought of in time,” he alluded to the fact that by 1656 Oliver Cromwell was in the process of reintroducing Jews to England. Menasseh Ben Israel, whose work would be brought into eighteenth century Germany with Mendelssohn’s publication, was instrumental in convincing Cromwell to normalize Jewish presence in England when he was invited by Cromwell for consultation during the Whitehall Conference.Footnote ⁷³ Ben Israel was also a thinker who found wisdom in different religious traditions and made a case for universal foundations of religions. Bringing universalist Judaism into the eighteenth century, as Mendelssohn did, was to counter particularistic claims regarding the Jews and against relegating Jews to “sugar islands.”

Interestingly, from the onset of modernity and particularly in the present day, Mendelssohn’s position is not the general or even the majority Jewish position. With few exceptions, scholars have long noted that rabbinic Judaism does not have a natural law tradition.Footnote ⁷⁴ In her important work on divine law, Christine Hayes describes the rabbis as deviating from Hellenistic Jewish and early Christian attempts to reconcile Greek universal understandings of divine law with the Hebrew Bible, and developing a Jewish understanding of divine law as particular rather than universal.Footnote ⁷⁵ Even Spinoza, excommunicated from his Jewish community, did not promote Hebrew tradition as promoting universal reason mentioned above, and this related to his proto-Zionist position framed as a comment that if Jews continued to distinguish themselves by circumcision, they might ultimately deserve separate statehood.Footnote ⁷⁶ From Herzl’s Jewish State, and certainly since the Holocaust, the necessity of separate statehood to protect the Jews was accepted by many European thinkers and Jews as axiomatic, even when they may have held more universalist and inclusive ideals, such that the need for particularistic politics took on a life of its own. Even Hannah Arendt, who problematized the necessity of statehood, and Gershom Scholem, who worried about the implications for morality, acknowledged the necessity.

Yet the alternative Mendelssohn offered, in line with modern natural law, of inclusive religious pluralism grounded in natural law informed by Hebrew sources, is an important reminder of an alternative history of ideas that may not have triumphed in the case of the Jews in modernity to date—or even in modern political thought—but may still be worth developing. If Judaism can be claimed to add not conflicting obligations but laws and practices that complement existing obligations that are universal, this may contain a model for a shared public sphere in which diverse populations, whether states in an international community or religious and ethnic communities in a diverse polity, could participate. While diversity not envisioned by the architects of the modern state or by enlightenment thinkers has become the norm in today’s world, there is a dearth of theoretical groundwork for truly diverse political entities, particularly as the modern state at its founding moment problematizes religious difference as a cause of war.Footnote ⁷⁷ Returning to the natural law justification of toleration may be appropriate, and with it Mendelssohn’s encouragement to “go and study” rather than remain within the bounds of existing theoretical models.