You are now entering the Jewish Currents archive.

Humanistic Sources of Jewish Law

David Greenberg
January 29, 2018


by David Micah Greenberg


THE REVELATION at Sinai is the subject of the approaching Torah portion, Yitro (“Jethro,” Exodus 18:1-20:23, read in synagogue on February 3rd this year). But the book starts with the story of Jethro, a priest of Midian and Moses’ father-in-law from his years of exile in that land, who appears in the wilderness camp of the freed slaves to reunite Moses with Zipporah and their two sons, Gershom and Eliezer, and to celebrate the liberation from Egypt.

During his visit, Jethro witnesses Moses being nearly overwhelmed as the sole judge for the hundreds of thousands of Hebrews whom he leads. “Why do you act alone,” Jethro asks, “while all the people stand about you from morning until evening?” Concerned that the system will exhaust both Moses and his supplicants, Jethro proposes a system of judgment and adjudication involving scores of righteous chiefs, with Moses serving as authority for major disputes but delegating all other matters to his subordinates. After that system is established, and Jethro leaves the camp, the narrative takes us next to Mount Sinai, where all the people gather to affirm the covenant with God.

Yitro thus begins with one type of clamor -- the frustrated call of the people appearing before Moses in pursuit of secular justice -- and ends with another, the cry of the ram’s horn that precedes the mystical acceptance of divine law by the Jewish people.

Why does the Jethro story, a story of ordinary justice, precede the awe of revelation and the first articulation of the Ten Commandments? While Sinai is most discussed and interpreted in rabbinical commentaries and Torah-study classes, Jethro’s appearance is not merely a side-note, but a crucial articulation about the proper relationship between secular and divine power, as well as between Jewish and non-Jewish realms.

Jethro’s proposal is eminently reasonable: In order for the Jews to survive in the desert, they need to create a communal administration and not vest justice in a single figure. But while the reasoning is obvious, consider its context: Both freedom and responsibility, the ability to weigh the impact of one’s action on others, were alien to a newly liberated people. Jethro’s intervention represents another step for the Jews away from a world where blind power -- the arbitrary and sacred power of Pharaoh, who was seen as a god -- rules every aspect of human life. They have replaced Pharaoh with Moses, their intermediary with God, but with Jethro’s proposal, they undertake a secular tradition of argumentation, deliberation, and judgment -- which will be in place before the divine revelation at Sinai, where not only the Ten Commandments but the entirety of the Torah will be revealed and accepted by Jews. The smoke and lightning at Sinai, and the sound of the Shofar -- the mystery and poetry of these divine assertions of universal truths, do not steal, do not murder -- are in fact grounded in ordinary and everyday choices about how to act justly. The secular precedes the sacred, and seems like a necessary component of it; Jewish law, although Torah-based, is also based in some human instinct for justice.


WHY IS THE REVELATION at Sinai preceded, moreover, by the appearance of a non-Jew, a Midianite priest? Why does a righteous non-Jew appear just before the moment that helps define the particular righteousness and “chosenness” of the Jewish people? There is a simple answer, which modern commentary often provides: that Jewish society has always learned from its contexts. Maimonides was, in part, a product of the Golden Age of Spain, and the culture of Islamic scholarship, even as he became a victim of intolerance before exile in Egypt. But there is something deeper at work than learning and acquiring wisdom from others. The Torah could have easily bound Jethro to the Jewish people by making him a convert, but Jethro does not make his way with the Israelites toward the promised land -- he returns home, signaling that he remains a source of difference to the end.

While some Midrashic commentators go out of their way to incorporate Jethro, saying that he went back to his people to convert them to Judaism, more seem to describe him as a critical outsider. In one account, he appeared so as to shame the Israelites, that they themselves had not offered sufficient appreciation to God after the splitting of the sea, which Jethro expresses: “Now I know that the Lord is greater than all other gods . . .”

One particularly interesting Midrash has Jethro’s descendants settling in Palestine in the strip of Jericho, whose fertile soil was to be given to the tribe, upon whose land the Temple would eventually be erected. In the delay of the Temple’s construction, Jethro’s line inhabited that land for hundreds of years, before it was relinquished to Judah. Upon leaving Jericho, Jethro’s descendants moved to a more barren land associated with the Levites, where they sat just outside the houses of the sages, at their entrance, listening to them study Torah and eventually becoming known as scribes in their own right. In stories like this, Jethro remains critical to, yet outside of, the central places and events of Judaism.

Why does difference matter at this moment before revelation? We recall that Moses, the liberator, lived his whole life within difference -- as a Jew among Egyptians and in the house of the Midianite priest. At the beginning of Yitro, the Torah goes out of its way to repeat the meaning of the name Gershom, Moses’ son, already translated earlier in Exodus -- “I have been a stranger in a foreign land.”

In much of the Jewish tradition, concepts of judgment, discernment, and choice on the one hand, and Jewish presence among non-Jews on the other, often seem linked. So many of the commandments are justified by once having been strangers and slaves in the land of Egypt -- showing that freedom from this past historical oppression is only realized in a constant, contemporary pursuit of justice for ourselves and for others. In Dr. Martin Luther King’s words, injustice anywhere is a threat to justice everywhere, because we are dependent on each other’s freedom to realize our own.

At the most decisive moments in the Torah, when Jews are faced with choice of life over death, we are likewise often reminded of the strangers in our midst, who also stand before God with the same power to choose -- for example, in Nitzavim (Deuteronomy 29:9-20:20), when “all of the men of Israel, you children, you women, even the stranger within your camp, from woodchopper to water drawer” are assembled to decide whether theirs is to be the blessing or the curse, the choice of life or death.

In this attention to the stranger, there might be no more potent figure than Jethro, the non-Jew who is also Moses’ father-in-law, a close and yet foreign presence, ever remaining outside the regular sphere of the Jews -- because at this moment of revelation, he reminds us that our own good depends on whether we can truly acknowledge those who are not the same as us.


WHAT IMPLICATION does this elevation of the secular and non-Jewish status of Jethro have for contemporary life and politics? In examining this question, I want to link the insights of the rabbis to those of the Italian philosopher Giorgio Agamben, especially in his articulation of the sacred antecedents to the modern state and economy. (In the spirit of Jethro, I should note Agamben is a neo-Pauline thinker and wrote his dissertation on Simone Weil, an apostate from Judaism.)

Agamben has been concerned with ancient archetypes of modern problems. One of his most important books, Homo Sacer, finds in this figure of Roman law -- the man who can be killed but not sacrificed -- a representation of the power of the leader to assert an existence outside the very laws he creates. From this image, Agamben traces a line not only to the concentration camp, but to assertions made by the U.S. government about torture after 9/11 -- that the President enacts the law and by definition cannot be bound by it.

One of Agamben’s more recent books, The Kingdom and the Glory, takes up what would seem like the esoteric problem of how early Christians reconciled monotheism with the existence of the Trinity. The word that emerged in some early Christian writing to describe the relationships within the Trinity was economia, which, as many may know from the term “home economics,” originally referred not to the world of money and exchange but to the ordering of affairs in a household. Like Jethro, these early Christian writers were concerned with the problem of governance and administration.

In the view of several of them, according to Agamben, God’s oneness and power was remote from this world, whereas the Trinity was associated with the experience of God in daily life, in those more immediate and managerial functions of the divine presence, including salvation.

In Agamben’s view, this distant God, who was separate from, yet authorized, the management and administration of the world, over the centuries came to parallel the concept of the Divine Right of Kings, who invested the administration of the state with a kind of holiness that might not be apparent in its ruthless and ungodly actions. But even in post-monarchial societies, in the establishment of modern democracies, the implication is that this structure is echoed in the Jeffersonian concept of a deist God who remains far from the world and yet set it in motion — in other words, a neoliberal God, who establishes a government that cannot interfere with the workings of the market and economy, which come from on high as a natural law and have an “invisible hand.” In these conditions, he points out, while real power remains remote from the masses, it becomes the function of the ordinary people to “glorify” the state and acquiesce to it, praising as in one voice, as angels may, their Sovereign.

Agamben sees this tendency to glorify the state both in its extreme form, in crowds crying Heil Hitler, but also in the myths and rituals of democracies, in the belief that voting or watching the news alone constitute a legitimate connection to the public sphere, when it is often more a symbol of participation than actually determinative of events.

In contrast with Agamben’s warning of a power that is defined solely from on high, supported by symbolic ritual from below, in Yitro we have power articulated from the ground up -- not just from Jethro’s worldly intervention in the valley to the ascension of Moses at Sinai, but figuratively, in the story of the mountain rising from the earth in warning to Jews if they do not accept Torah. Instead of angelic choirs whose harmony is totalitarian, we have the sound of quarrel. Instead of the divine right of a king like Moses, we have justice in the hands of many people -- a glory in everyday ethics and administration. Governance has power in this view because it comes from our ability to perceive the general good in the particular -- and only because of this grounding may we recognize the more universal truths against murder and theft that emerge at Sinai.

The Jewish aspiration is to let dissonance remain in the choir, despite the discomfort which it may evoke. Revelation is preceded by the legalistic address of disputes, because it is always important to remember that all human interests do not necessarily align. Even here, at the moment where Israel’s unity and universal acceptance of Torah is the primary focus, we are reminded that we are separate from each other, and that justice must be the term that dictates our interactions. In this Torah portion, the grounded rebuke of a non-Jew, who in turn learns from Jews, becomes an authentic source of revelation and a transcendent ethical call.


David Micah Greenberg is a frequent contributor to Boston Review on poetry and the public sphere, and is author of the poetry volumes Planned Solstice (Iowa) and Kindness (forthcoming, Pressed Wafer). He directs policy research for a national community development organization, is the former director of an advocacy coalition for community housing groups in New York City, and is vice-chair of the Society for the Advancement of Judaism, a Reconstructionist community.