Note: This section is a work in progress and will cut off abruptly. Last updated: 9/22/2024

This is part three of a four-part series analyzing the saga of the crucifixion and its implications. Click here to begin at the introduction and also find the table of contents/bibliography.

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But it was not just any place in Rome Jesus was arrested, but right within Jerusalem. Not just anywhere he started his ministry, but within the midst of Galilee. Just as he could trace his lineage all the way back to Jacob, so his context inseparably became that of Israel’s.

And it was in his time Israel found itself in the midst of an identity crisis: with no more temple, no more independence, the nation now had to grapple with the question of what it meant to be God’s chosen people. How essential is the temple to worship? Is there an Oral Torah? Can Jewish identity only be realized through political independence?

Contrary to the assumptions of many Christians today, the Jews of Jesus’ time were far from united in their answers to these questions. As much as we love to joke about church infighting today, the environment in which Jesus found himself was not so different. Among the factions (Abramson 2020) you had:

• The Sadducees (Abramson 2022b), who traced their heritage back to the priest class of old. Their practice was at the heart of the temple, keeping the old rites, hierarchies, and scriptures. But in order to maintain their aristocratic status, they favored assimilating to the surrounding Roman culture politically, culturally, and spiritually. They held to the written Torah but not nearly as strongly to the Oral Torah. By extent, they also rejected a lot of the supernatural beliefs present in Jewish tradition: resurrection of the dead, angels, etc.
• The main foil to the Sadducees were the Pharisees (Abramson 2022a), revivalist leaders who often represented the Jewish masses as opposed to the priestly elite. They saw the Sadducees as having compromised Jewish identity through their assimilation. Whatever claim they had to the temple and ritual was compromised by their capitulation. As a result they separated (their name, פרושים, literally means “to separate”) from the grounds of the temple, from Roman culture, and from “impurity” into the streets. They preached the oral tradition, putting an emphasis on halakha not just in the temple but in daily life. They saw this tradition as instrumental towards preserving Jewish identity and separating it from the surrounding Roman culture.
• And then you had the Zealots, revolutionaries who resented Roman rule and believed Jewish identity could only be maintained through political sovereignty. They were a loose group, for whom political and religious motivations often blended. They believed Roman rule had to be overthrown at all costs, and a Messiah would come to lead them in their liberation. To them, the position of the Sadducees and Pharisees did not go far enough, as even the Pharisee separatism did not directly challenge Roman rule.

3.1. The Sadducees

Of course, despite their disagreements, no matter how bitter the fighting got, they were still all Jews in the end: bound to the same God and bound to the same promise. The God of the Zealots, Sadducees, and Pharisees was still — unlike the Roman gods — wholly perfect, wholly indivisible, wholly transcendent. They disagreed on the meaning of identity, the meaning of approach, but neither of these factions questioned the link between Jewish identity and Jewish law. The hope of the Zealots, the tradition of the Pharisees, and the lineage of the Sadducees all found their roots in those fateful words spoken unto Moses. Israel was to be a “treasure unto [God] above all people”, “a kingdom of priests and a holy nation”. (Exodus 19:5-6 KJV)

The laws delivered upon Sinai — which comprise the heart of the Torah — weave together notions of law, justice, and identity. When it is declared “justice, and only justice you shall follow” (Deuteronomy 16:20 RSV), it is done so right in the middle of Moses’ delivery of the law. Similarly in Leviticus, we see how God ties the keeping of his commands to Israel’s own separation (Leviticus 20:22-24). You are not to eat the same food as the others, not to marry their women, not to spend the seventh day as they do, not to worship their Gods. But you are also to not take bribes, not bear false witness, not make use of dishonest scales. Israel’s justification is to be in its separation, and its separation defined in terms of its pursuit of justice. To the Jew, the Law is the expression of the connection; under a system of halakha, tradition, guidance, and law all become synonymous.

Where Israel failed to keep these commandments, one need only turn to the Book of Judges to see how easily adopting the customs of the surrounding nations became losing identity, losing the law, and losing God. (Judges 2:10-19) But no longer would there be any judges to rescue the people. No more prophets. No more kings. Israel had no sovereignty under Rome, neither did it before Rome. Neither this generation, nor their fathers’ generation, nor the generation before that could remember anything resembling national sovereignty. The throne went not to a David, but to a Herod: a puppet of Rome rather than a King of Jews. The old temple was reduced to rubble, the construction of the new one dependent on the patronage of Israel’s conquerors. So in this period — where even the moment of crisis, the time of Lamentations — had long been forgotten, where is the Jew to find his grounding?

For the Sadducees, the answer was the temple. As long as Israel had its temple, the temple they worked so hard since the time of Cyrus to rebuild, then that site in the center of Jerusalem could stand as the center of Jewish identity. They had the law, they had the rituals, they had the authority all of which they could insist upon: and as long as they kept it within the temple walls, they need not worry about the Romans giving them grief. Because of this logic, Israel’s own priests felt un-threatened by the forces of Hellenization. They readily accepted the Roman rule, culture, and ways of living because through doing so it would ensure good relations and thus the preservation of the temple. As long as Israel maintained its rituals, its Levitical laws, and its hierarchies, the tradition would carry. They took great pride in their lineage and connections, seeing themselves as the heirs of the Maccabean revolt which liberated Israel from the Greeks all those years ago.

Their identity, their religion, their status, all stood upon the rock of the temple. But even the most solid rock finds itself gradually eroded by the forces of war and decay. What is to happen when this temple — said to be the dwelling place of God (1 Kings 8:12-13, Exodus 25:8) — can no longer house him?

It was the Romans who granted protection to the temple, and the Romans who took it away. The purpose of all of the Sadducees’ appeasement was to to maintain favor; so it only followed that when Israel lost favor, the Romans would ensure they lose everything else too. The Sadducees, cloistered in their chambers, continued to ignore the voices of the Jewish masses who felt humiliated and erased in the face of Roman rule. With their kapos incapable of keeping a lid on the revolts, the Romans took matters into their own hands and set Jerusalem ablaze.

No more temple, no more scrolls, no more rituals, no more Sadducees. So completely and thoroughly annihilated that our only records of them come from their enemies. Even the picture I painted here — the picture history paints — is one framed by Pharisees and Christians. We’ll never fully know their perspective or see them speak for themselves, but to an extent the silence speaks for itself. We’ll never hear for ourselves the Sadduccees in their own words, precisely because whatever rock they stood upon was lost to the sands of time. Israel was to be a treasure unto the Lord, forever and ever (Psalm 135:4, 2 Samuel 7:12-16), so how can we speak of its soul in terms of wood and stone (Deuteronomy 4:28)? The only conclusion we can come to is that the Sadducees were wrong: wrong about identity, wrong about eternity, wrong about God.

3.2. The Zealots

Nothing I have said so far is new or the product of hindsight: this exact debate and these very ideas were actively going on at the time, perfectly within earshot of those involved. Echoing those criticisms of the Sadducees were the Zealots: revolutionaries who took the exact opposite approach to Rome. For them, the Jew could not co-exist with Hellenic society, much less integrate into it. The very fact of Roman rule was the threat: for what good was a temple when its people did not even own the ground upon which it stood? The Jews may have been free to worship, but the Romans were also plenty free to bring their own statues and idols onto temple grounds. To the zealot, domination was political, and land was freedom: not just merely the freedom to occupy, but to freedom to rule. If the Jews were to live in Jerusalem, it had to be on their own terms. For a Jew to be a Jew, he needed political independence, a nation to call his own. And to this end, the Zealots were willing to make any sacrifice of themselves and their own people.

They set fire to the country’s food stockpiles in order to induce starvation and revolts. They invited Israel’s enemies into her borders so that their opponents could be purged. (Eisen 2014) They inflicted a great deal of suffering, but no price is too high for independence. Once they won, it would all be worth it.

So, they continued time and time again to wage war against the Romans, each time finding themselves ruthlessly crushed. But they would pick themselves back up again, with an iron resolve and a renewed hope. Not just any revolutionary hope, as raw math gave them no chance against the world’s greatest empire. No, instead, it was a messianic hope. Isaiah spoke of a hero that would restore Israel. To stand in the midst of this moment, experiencing this humiliation but also hearing these words of redemption and liberation, how could one not be moved? Feeling this, the Zealots picked their arms back up one final time.

Leading the revolt would be Simon ben Kosiba (also known as Bar Kokhba), a great military leader who claimed to be the Messiah. Under the leadership of Bar Kokhba, the Jews managed to retake large parts of the country, including Jerusalem. As they beat back the Romans again and again, the fervor only grew stronger. (Jewish Virtual Library 2017). With their newfound independence, the Jews would minting coins proclaiming “year one of the redemption of Israel”. (Lendering 2001) If the Sadducees found their salvation in pure ritual stripped of any political relevance, for the Zealots justice was politics. The Zealots avoided the Sadducee mistake of taking refuge in symbols without appreciating what gives those symbols power.

In this sense, they were ahead of their time: we have seen these motifs recur with the various modern politics of revolution and national liberation. The tale of Exodus has served not just as an inspiration to the Jews it was written about, but the various other peoples throughout history who have come to see themselves as oppressed and colonized. Religion, piety, justice, these are not concepts which can be wholly individualized or divorced from the surrounding context. God created men not as souls inhabiting an abstract plane of existence, but as bodies in a world. We engage with these concepts not just via some asetic or otherworldly sphere, but within our lives. The slave in finding freedom comes to recognize justice as something personal, and the terms on which he is raised, the terms on which he worships, the terms on which he relates to other men are all deeply tied to his historical and political existence.

But even with all this in mind, one cannot find refuge from the historical within the historical. All wars have to come to an end, all strongmen eventually die, and here was no different. The revolution died with Bar Kokhba, zealotry died when its moment came to pass. The historian who wishes to study this saga is not met with a story of divine triumph but one of mortal math. The Romans had the numbers, the Israelites didn’t, simple as that. The tales they may have thought back to — where Gideon marches with an army of three-hundred or where Jesse’s youngest son bests Goliath — were stories of redemption not because the Israelites became strong again, but the opposite. They repented, recognizing their weakness and thus dependence upon God. This is the pattern present within the book of Judges: just as we often find ourselves turning back to the parts where God continually saves Israel, equally recurring is the are the moments in which Israel is brought to destruction.

And this is the blindspot for many theologies of liberation. When we speak of justice, we are speaking of something transcendent: it is personal, but it is also eternal. Many kings, many nations, many wars have come and gone: some have had better outcomes than others. But in each and every case, none provided the guarantee or refuge of justice. There is no principle by which one can truly speak of the events of the revolts as synonymous with Israel’s redemption: the latter implies a finality, an eternity whereas the former lasted approximately three years.

When someone like Malcolm X speaks of land as the basis of all justice, it is worth asking ourselves if that is really the case:

Revolution is based on land. Land is the basis of all independence. Land is the basis of freedom, justice, and equality. The white man knows what a revolution is. He knows that the black revolution is world-wide in scope and in nature. The black revolution is sweeping Asia, sweeping Africa, is rearing its head in Latin America. The Cuban Revolution — that’s a revolution. They overturned the system. Revolution is in Asia. Revolution is in Africa. And the white man is screaming because he sees revolution in Latin America. (X 1963)

Speaking now years later, in these various countries across Africa, across Asia, across Latin America — countries which have won their independence and their land — have they realized these ideals? We continue to see corruption, we continue to see violence, we continue to see repression, and we continue to see inequality. The direct domination of the colonial powers has found itself supplanted by the indirect domination of the global market: independence only goes so far when the world is connected. Local elites are not inherently any less willing to exploit and abuse their people than foreign ones: national bonds only mean so much.

As soon as we hear someone mention the word “liberation” today, we must listen carefully and ask at least one pointed question. Not the traditional question, “liberation from what force, oppression, or slavery?” The problem no longer lies there. Rather, we must ask “liberate… for whose benefit?” Who will be the new oppressor, the new master? We must systematically destroy the childish ideology that follows this pattern: “Where you have a dictator and an oppressed people, kill the dictator to liberate the people. They will organize themselves and become their own masters. They will come of age and enter into their freedom” (at this point, since the unexamined goal has been attained, no reason remains for trying to ascertain what really happened). (Ellul 1979, 58)

While it is important to keep in mind how human beings are influenced by their situation, the reverse also holds true. Those systems of exploitation, domination, repression, whatever have you — are products of human nature. The fact that we can even draw a connection between what the Jews went through in antiquity and what has occurred in modernity should serve as a reminder that historical moments are not unique. Wicked governance is not the product of any one nation or period, but will exist in some form or another as long as human beings exist. Liberation theology has a tendency to lose sight of the fact that salvation is ultimately salvation from sin:

The paralytic needs forgiveness. We must not be dishonest at this point and try to transpose this term onto a sociopolitical plane. Jesus calls the others “sick,” after all (v. 12). These people do not just have the reputation of being ill: they are ill. Tax collectors are thieves and exploiters of the poor. They harm others. The issue is not only social and moral. These people are not judged just by others to be sinners: Jesus also has no doubt they are sinners.

He does not say to the paralytic or to the prostitutes that they have every reason to be what they are, that He accepts their actions, etc. No: to the paralytic He announces forgiveness (which he truly needs, so that we can perfectly well use the term sin!); to the others Jesus declares He is the physician and the one who calls. And in Israel, after all, call and vocation had a definite spiritual meaning. “Sin” is not an ordinary word Jesus uses for convenience’ sake. The Bible strictly defines the term, and nothing would authorize us to claim that in this context Jesus deviates from biblical usage, since He takes the position of God, who forgives sins. In no way does Jesus transpose sin onto the sociopolitical realm. He simply declares that He forgives sin in all its dimensions (including the political and social). (Ellul 1979, 67)

Whatever virtue we may choose to assign to resistance for its own sake, whatever catharsis they may have gained by fighting back, one thing is undeniable: Israel was not restored. This cannot be the essence of an eternal justice.

3.3. The Pharisees

The purpose of the last section was mostly to just give historical context, because the meat of our investigation is going to be on the Pharisees. The Gospels present the Pharisees as some of Jesus’ most vocal critics, but also those closest to the people of Israel.

Historically speaking, the Pharisees were a sect who sought to chart a “middle-course” between the extremes of Zealotry and Sadducism. They understood the threat of assimilation, and that the soul of Israel lay not in the temple but its people. But at the same time, they recognized directly taking Rome to task was a futile effort. Their solution was to turn to creating a “cultural nation” apart from Hellenism, as opposed to a political one.

The Gospels speak of Pharisees as sticklers for the law, but which ones? Not the law of temple sacrifice as with the Sadducees, but specifically the laws of daily conduct. The Pharisees spoke in the streets: the task of building a national consciousness began in sanctifying the everyday world. How you spend your Sabbath (Mark 3:2), who you eat with (Matthew 9:11), how you wash before meals (Luke 15:2, Mark 7:1-10) — these are specifically the grounds on which the Pharisees throughout Scripture charge Jesus and accuse sinners.

This also sheds light on why (as opposed to the Sadducees) the Pharisees were such staunch defenders of the Oral Torah. The written Torah taken alone does not give much in the way of guidance for how a Jew is to conduct his daily affairs, but a significant portion of the oral tradition is dedicated to these matters. Also, as a living oral tradition — transmitted from rabbi to student — there would be much more room for debate, personal engagement, and application to a contemporary environment.

These are not arbitrary hangups, but — just like circumcision — outward markers to one’s identity, one’s being set apart. When Paul collapses the distinction between inward and outward righteousness (Romans 2:28-29), he also collapses the foundation of what separates Jew and Greek (Galatians 3:28). Right away we get a glimpse of the paradigm shift Christianity presents with regards to the matter of identity.

We often tend to imagine the Pharisees as these out-of-touch rabbis who scorned the common man, but in many respects they were populists. They brought revival to the streets, they postured against Rome, their rebuke was saved for those who did not fit the mold of what a common Jew should look like. What they had to offer was what the people of Israel wanted to hear: a renewed form of Jewish pride, but one which didn’t necessitate the taking up of arms. Out of all of the factions we have discussed so far, they were the ones most in tune with Israel, its people, and its history.

And the important part was that it worked. Following the destruction of the temple, we have barely a trace of a Sadducee. With the crushing of the revolts, Zealotry lost all of its relevance. But, despite this period which completely upended Israel, two factions would meaningfully survive: the Christians and the Pharisees.

But the Pharisees would survive by breaking from tradition; pressure from Rome meant that if the law was to survive, it would have to be written down. The preservation of Jewish identity depended on the people knowing the mitzvot, even through generations of Roman censorship. Paper ensured easier preservation but also risked losing what set the law apart: its flexibility and its obscurity (Eisen 2014a). Free to be studied, picked apart, and claimed by any literate Gentile, codified in a way where one can be tempted to treat it as just any other book. This compilation — dubbed the Mishnah — dealt with these concerns by structuring itself in a heavily dialogical fashion, so that in order to properly engage with it one would have to do so in an environment with teachers and other students.

And this pattern of crisis and careful reinvention is precisely the formula by which Judaism (through the Rabbinic tradition) came to survive to this day. Medieval Europe had its own string of persecutions, yet with the Enlightenment many Jews began to feel as if society moving past religious superstition also meant moving past irrational bigotries. Yet religious identity just gave way to national identity and the Jews found themselves under attack once more. What incidents like the Dreyfus Affair highlighted was both the readiness with which Jews would respond to their own persecution with assimilation but also how even assimilation proved to be insufficient. Europe found itself under the spell of these theories of blood and soil, and this obsession with national purification would eventually culminate in the greatest atrocity known to human history. The Nazis may not have succeeded in eliminating every single person of Jewish origin, but entire communities and centres of culture were entirely wiped out across both central and eastern Europe (Waligórska 2023).

Faced with an existential threat once more, the Jews could not live among the other nations anymore, but they could join them. In the wake of both the Dreyfus Affair and the Holocaust, the movement to form a Jewish nation — Zionism — saw a massive surge in support. Traditionally, it was held that the restoration of Israel would only be realized when God sent his Messiah. Israel through the diaspora set itself apart not as a nation one could point to on a map, but a nation of Torah. These issues led to a great deal of hesitation as it would mark yet another paradigm shift in how Jews would come to understand their identity and law. (Goldman 2009, 272-273) But waiting on God clearly wasn’t working; the salvation of Israel could only be realized via guns and rockets.

The Jew could not save himself individually, only collectively. No one else, neither God nor gentile, would save him; salvation could be achieved only through exodus and concentration in a homeland, in a collective effort of will, through “autoemancipation,” the re-creation of the Jewish nation, living on its own soil, in a country of its own. That country must gradually be purchased and settled; eventually the Jews would achieve nationhood and gentile recognition. Only there could Jews at last achieve equality with and independence of the gentiles. (Morris 1999, ???)

What we see then is that the Jewish approach to law is not dogmatic (as the stereotype goes), but rather instead highly pragmatic. Centuries of dogma and doctrine had to give way to the reality of the situation and the needs of the community, with even the most stringent of groups coming to soften their positions on Israel.

Even the ultra-Orthodox, renowned for their strictness, were not merely passive “preservers” of millennia-old traditions (as they would like to portray), but consciously inventing new norms and traditions to meet a contemporary world in which said traditions had mostly been destroyed (Keren-Kratz 2021).

Moreover, the more pervasive the influence of the milieu, the more natural the need of a chosen people to reassert its distinctiveness and to mark ever more sharply its identity borders. As the inner differences erode, the outer ones must be increased and intensified, for, progressively, they provide more and more of the crucial otherness. In addition, the more stable and comprehensive the code of conduct, the less psychologically threatening are the subtler inroads of the environment. The narrowing of the cultural divide has thrust a double burden on religious observance, as ritual must now do on its own what ritual joined with ethnicity had done before. Religious practice, that spectator might have added, had always served to separate Jews from their neighbors; however, it had not borne alone that burden. It was now being called on to do so, for little else distinguished Jew from Gentile, or the religious Jew from the non-religious, for that matter. (Soloveitchik 1994, 77)

But this — far from being a secret — is very much intentional; a recurring theme throughout Jewish literature (likely informed by Jewish history) is an understanding that life is the governing principle, not law. Of course, at the center of this literary canon stands the Talmud (a compilation of both the aforementioned Mishnah and its laws, but also the Gemara: generations of rabbinic commentaries on said laws), but then on top of the Talmud you can have subsequent literature (such as the works of Maimonides) which is also capable of being considered binding as halakha. All these different layers from different sources and different times speaks to what sets the Talmud apart. It holds not just a plain moral code one looks up, points to, and immediately closes, but instead contains the summation of an entire culture. Recipes, debates, philosophy, folklore: halakhah gets likened to a classical liberal-arts education, a language, even a universe (Saiman 2020, 64). Even in the laws themselves, we see that these can’t just be taken at face value. We have judicial laws which have been inapplicable for millennia (Saiman 2020, 32), laws of war which prove absurd in any real-world scenario (Saiman 2020, 224), and even past that laws which are frankly… strange.

As with capital punishment, nothing in the Talmud’s presentation indicates these punishments were anything but routine. Listing more than sixty categories of offenses subject to lashes, the Mishnah discusses the finer points of the procedure like the size and thickness of the whip; the positioning of the flogger, the flogged, and the court crier; the verbal declarations assigned to each party; and the rather obscure requirement that the total number of lashes be divisible by three (m.Makkot 3:10–14). Yet, in applying hatra’ah to lashes, this lesser punishment becomes no more practicable than the death penalty. (Saiman 2020, 34)

If the purpose of the law was to simply be followed, the entire exercise would be a non-starter. Total compliance is at total odds with the reality of human life: not just in the sense of our imperfections but also on a much more practical level.

The Mishnah speaks of a world that does not exist, a world where “the Temple in Jerusalem stood in all its splendor… the Jewish people were sovereign in their land… the Sanhedrin exercised its powers… and… Jewish criminal law was routinely enforced in accord with mishnaic doctrines” (Saiman 2020, 33). Where we have seen attempts to directly translate halakhah into such terms, the results have run up against the realities of governing a large population.

The Rabbinate and its courts thus personify, as it were, the fact that when halakhic authority is an artifact of state law rather than an autonomous cultural norm, the result is inevitably frustration and disenchantment on all sides. Divorced from the covenantal theology that places the Torah and its study as the primary cultural value, the state’s halakhah becomes nothing more than law in the most reductive sense of the term—a brute mechanism of state power. (Saiman 2020, 241)

If we want to make sense of what law is, we should not focus too much on what it claims, but instead pay attention to how it actually functions.

3.4. The Highest Form of Religion

“Function” is used anthropologically here: it’s less concerned about what a religion is and more concerned with what a religion does. When we look at a religious system in practice and not just in theory, what effect do we see it have upon a society and the people that live within it? Is the religion capable of upholding a distinct culture and set of values (even over the course of multiple generations)? Can it allow room for diversity without losing identity? Can it guide a person in balancing their desires with their responsibilities? Can it withstand questioning without falling into nihilism or retrenchment?

By every single one of these metrics, there’s an incredibly strong argument to be made regarding Judaism as being religion at its highest. The idea that a population can spend millennia in continuous exile, under continuous persecution, and preserve its traditions is otherwise unheard of. The Jewish diaspora has time after time been under immense pressure to assimilate (sometimes even by force), yet has never totally fallen into it. Even as the temple laid in ruins, even in the sub-optimal conditions of exile, halakhah thrived (Saiman 2020, 31). And one can see how practically through the generations — in the midst of persecution — knowledge is preserved, family bonds remain strong, and customs continue to be practiced.

For the average religious person (Christian, Muslim, Buddhist, doesn’t matter), everything about this is the ideal. Even movies get made to indulge the fantasy. But, despite the common desire, the ability of these other religions to resist assimilation has generally proven to be either less successful or less tested.

So, what sets Israel apart as “a kingdom of priests and a holy nation” (Exodus 19:6)? Practically speaking, the only thing it could be is its laws. Biblically speaking, we see the same: God raised up Israel “so they may follow his statutes” (Psalm 105:45). And if we, as Christians, do believe the Law of Moses to have been delivered by God, should it come as no surprise that it is supremely good? Yet, obviously, that cannot be the end of it. For the Bible also tells us that “for if that first covenant had been faultless, there would have been no occasion for a second” (Hebrews 8:7).

But then why did God create such a law for Israel? The same reason he granted Solomon wisdom like no other. By raising wisdom to its highest, by raising religion to its highest, by doing this for any virtue, what you do is end up exposing the limits of such values. Solomon’s unparalleled judgement could not save him from giving in to his temptations. The finest temple he could have built to God was not safe from said God’s wrath. Even the very laws which define the nation could never be fully realized.

The critiques of Judaism contained within the New Testament are not merely part of some period-specific squabble, meant to serve as a sort of historical footnote. If it were, we may as well be preaching “Judaism for Gentiles”. Instead, they serve to question the very imperatives which define religion itself.

By studying religion at its highest, we come to get a better understanding of how it functions as a whole. And the reverse is true too: by understanding what foundationally drives the religious disposition, we’re able to make sense of its various manifestations. The unspoken nature of law reveals itself in its practice, and its practice is best understood by its function.

Zizek once remarked that in order to understand the true nature of religious law, one should not look at what it prohibits but rather instead what it permits. To illustrate his point, he examined the Laws of Manu, a classic Hindu text:

The Laws of Manu demonstrates a breath-taking ingenuity in accomplishing this task, with examples often coming dangerously close to the ridiculous. For example, priests should study the Veda, not trade; in extremity, however, a priest can engage in trade, but he is not allowed to trade in certain things like sesame seed; if he does it, he can only do it in certain circumstances; finally, if he does it in the wrong circumstances, he will be reborn as a worm in dogshit… In other words, the great lesson of The Laws of Manu is that the true regulating power of the law does not reside in its direct prohibitions, in the division of our acts into permitted and prohibited, but in regulating the very violations of prohibitions: the law silently accepts that the basic prohibitions are violated (or even discreetly solicits us to violate them), and then, once we find ourselves in this position of guilt, it tells us how to reconcile the violation with the law by way of violating the prohibition in a regulated way. (Zizek 2022)

You see this attitude carry into his comments on Catholicism (and more broadly, how religion institutionally functions):

If you read intelligent catholic propagandists and if you really try to discern what deal are they offering you. It’s not to prohibit, in this case, sexual pleasures. It’s a much more cynical contact as it were, between the church as an institution and the believer troubled with, in this case, sexual desires. It is this hidden, obscene permission that you get. You are covered by the divine being, you can do whatever you want, enjoy. This obscene contract does not belong to Christianity as such. It belongs to Catholic Church as an institution. It is the logic of institution at it’s purest. This is again, a key to the functioning of ideology. Not only the explicit message: renounce, suffer and so on… but the true hidden message: pretend to renounce and you can get it all. (Zizek 2013)

The value of this comparative approach is in that it shows patterns that are not just specific to one religion or another, but religion as a whole. Religion is not just a grab-bag of beliefs or a set of gods people arbitrarily choose to adopt one day. Religion — on a human level — is how we as human beings attempt to make sense of our own mortality and imperfection, stemming from a primal desire to know that there is something beyond us. On a purely anthropological level, it can be said that religion functions as the opium of the masses: it is the means whereby the world justifies itself by affording to society the sceptre of divinity.

The foundation of irreligious criticism is: Man makes religion, religion does not make man. Religion is, indeed, the self-consciousness and self-esteem of man who has either not yet won through to himself, or has already lost himself again. But man is no abstract being squatting outside the world. Man is the world of man – state, society. This state and this society produce religion, which is an inverted consciousness of the world, because they are an inverted world. Religion is the general theory of this world, its encyclopaedic compendium, its logic in popular form, its spiritual point d’honneur, its enthusiasm, its moral sanction, its solemn complement, and its universal basis of consolation and justification.

Regardless of whichever angle you look at it from, religion is man reaching up to God. Whether we speak of ancient god-kings, the Quranic scale of deeds, papal absolutism, or even the (Protestant-influenced) Enlightenment, we see a wedding of earthly and heavenly authority, of conventional morality and divine morality.

We’re told that man is sinful, that his judgement cannot be trusted, but that the solution is to hinge our morality upon the institutions closest to human nature: work, family, fatherland. One is called to pledge the same allegiances regardless of whether they stand in Tehran, Delhi, or Washington. It’s not coincidence all these gods have a common mandate. They’re all time-tested ingredients for a stable society. This means that historically and practically speaking, law has manifested not as some otherworldly expression of a divine will, but as a means of regulating behavior. This is to be expected, as any law can only be relevant to an imperfect world insofar as it meets those imperfections. The Sabbath was made for man (Mark 2:27) after all.

Scripture may teach us that failing one point of the law makes us guilty of all of it (James 2:10), but religion teaches us otherwise. The Vedic priest needn’t be perfect in his commitment to the study, the important thing is that he knows his place and keeps it in mind even where he steps out of it. The Jew is called to keep the Sabbath, but guidance is provided for how to handle the cases in which he isn’t (Saiman 2020, 229). Catholics are forbidden birth control, but the Church carves out an exception for NFP. But even if said Catholic sins, he must first consider if his sin is “mortal” or “venial”. If it is a venial sin, you won’t be damned but you do have to make it up with a proscribed act of penance. In the case of mortal sin, that will damn you… unless you follow the prescribed rites of confession the Church has laid out for such sins. Even within the Old Testament, we repeatedly see this language of exception, especially with regards to sin offerings (Leviticus 5:11, Leviticus 22:6-7, Numbers 19:9-13).

Law demands not adherence but observance, not perfection but respect. The power lies not in the letter of the law, but the lawgiver. But who is really giving these laws? The doctrine of every religion tells us “God”, but if we accept that, then the new question becomes what are we truly referring to when we say “God”?

What makes the Talmudic tradition interesting is the self-awareness with which it recognizes that there is no such thing as a pure legalism. Law is presented not as something that breaks along clean yes/no lines, but as a system in which one’s actions can have varying degrees and conditions of acceptability (Saiman 2020, 215). This allows it to approach law not simply as a checklist, but as a larger organism with a life of its own.

For all the focus on themes of justice, holiness, and faith, nowhere in the Talmud’s two million words is there a sustained discussion on topics such as “What is justice?” or “What is holiness” or “What is faith?” In fact, the Talmud seems preternaturally suspicious of such philosophical abstractions. Moreover, generally foreign to the talmudic mind are such central legal, political, and scientific categories as logic, rhetoric, ethics, philosophy, theory, universalism, particularism and even theology… What is beauty? What is truth? What is the best political ordering? The Talmud anchors such macro questions in the context of a specific mitzvah and its obligations. (Saiman 2020, 71)

This right here is the “crucial point” Judaism accuses Christianity of missing in its treatment of the law. (Saiman 2020, 28) To understand law is to look not just at the sum of its text, but to make sense of how it relates to history, reflects communities, and reveals power. Halakah is a product of a condition of exile, one in which Jews had neither home nor power (Saiman 2020, 31). As a nation without soil, the law became their homeland:

Particularly in the diaspora — in the absence of a common land, language, or political and religious institutions — Torah became the Jews’ “portable homeland” (in the coinage of the German Jewish poet Heinrich Heine). Torah is a source of identity that requires neither land, army, wealth, nor institutions, but simply the commitment of the faithful… Jews endure because the Torah survives. (Saiman 2020, 58)

What this means in practice is that the relationship between community and law is essentially reciprocal. It’s not just that traditional communities base their consensus upon their law, but that consensus in and of itself becomes the law.

For centuries, the broad outlines of this constitution prevailed. Rabbinic authority was a normative force within the community, and those who openly rejected its foundational norms were considered outside the fold. Though it is unlikely that the average Jew was either aware or interested in the details of Shabbat observance set forth in the commentaries and super-commentaries on the Shulḥan Arukh, flagrant disregard of the central Shabbat laws entailed social (and often political) consequences… Since Jews could not typically live freely within the general society, the community’s ultimate power lay in its ability to banish or excommunicate those violating its core commitments. (Saiman 2020, 214)

No system of state law demands or even idealizes that citizens will become learned enough to appreciate the nuances of judicial writing. State law is typically mediated through lawyers, bureaucracies, the media, businesses, and social institutions, all of which flatten the law to make it more digestible for the public. Halakhah, and especially the strands of the tradition that tout Talmud study as an ideal, traditionally rely on direct contact with the legal source material, personal relationships with authoritative teachers, and the lived experience of residing within a closed normative community. These, rather than the tools of an administrative bureaucracy, are the agents binding the halakhic constitution together. (Saiman 2020, 233)

A Sabbath-breaker has to answer to the community, not to a court. And in line with the pattern we’ve already seen with religious law, they judge him not on the minutae of his observance but on his respect for the norms. He is punished not as a criminal but as a non-conformist; neither the judge nor the defendant need fully know the law, only some rough idea of what is normal.

3.5. Conservatism (in-progress)

Now wait, “normal”? What does it mean to be normal?

By contrast, outside the idealized construct of the Sanhedrin, halakhah maintains few rules of “constitutional” law that structure authority among various rabbis, courts, lay organizations, and communities. Consensus, where it exists, is predicated on shared commitments to communal structure and its underlying theology rather than on formalized rules establishing the jurisdiction of different actors. (Saiman 2020, 234)

Normalcy adheres to consensus, it looks at what is around it and draws out principles from what comes most intuitively to those with shared experiences and traditions. It communicates itself through authorities and symbols. Your average medieval Catholic may not have had a Bible, but he had priests, stained glass windows, and a common “folk wisdom” to draw from. A Jew may not find himself dashing at every moment to the study house, but intuitively he understands the ideals of Talmud Torah and holds a great deal of reverence for those who embark on the path of a Torah scholar (Saiman 2020, 68).

When the average American shows support for laws against flag-burning (CNN 2006), they ignore the letter of the law (the First Amendment in this case), but intuitvely recognize the value of the flag as a symbol and the ideals that are wrapped up within it. Almost like a national immune system, there is an intuitive understanding among the people that burning our country’s flag is an attack upon it and cannot be normalized.

More generally, prominent observers note that, like halakhah, state systems contain laws whose most significant function is expressive rather than regulatory. One common example are laws prohibiting flag-burning. The regulatory impulse is probably less about reducing the actual number of flags burned, than the community’s desire to disapprove of those who deface its symbols. In a different vein, though anti-discrimination laws are rarely enforced with rigor, the authority and cachet of their status as law can have considerable influence on behavior and voluntary compliance in the social sphere. (Saiman 2020, 232)

It’s along these grounds that you can have normally conservative judges such as William Rehnquist go as far as to argue that the act of flag-burning is so offensive as to supersede the usual constitutional concerns (Frederickson and Wurman). And the conservatives who did defend the legality — such as Antonin Scalia (Lat 2016) and Mitch McConnell (McConnell 2006) — could only do so while stressing how personally repulsed they were by the practice and how abnormal it is.

In a framework like this, the letter of the law merely exists to reflect communal norms. The specific meaning of the First Amendment itself matters less than the general “idea of a First Amendment”. Even an world-class legal scholar such as Rehnquist appeals not to a logical analysis of the text (as you would expect a lawyer to) but to common sense. The almost mystical reverence shown by millions and millions of Americans to their flag is to him worth more than a volume of logic (Texas v. Johnson). It’s not just Rehnquist either, this is how conservatism as an ideology essentially functions.

Or, to condense everything I have said so far: conservatives are not legal purists, nor are they really fundamentalists when you get down to it. The letter of the law can readily be filled with exceptions, loopholes, penances, and even wildly inconsistent hermeunetics. It just need exist as a generalized authority to be able to appeal to: the fact that there is a book on the altar matters more than whether or not anyone has ever opened it. The symbols, traditions and prejudices which give traditional communities their definition don’t find their meaning laid out between the pages, but instead infused into the “common sense” of the community. This is not to say the actual meaning of the law is entirely irrelevant, but that it finds itself diffused through history and custom in ways that are incredibly complex and hard to disentangle from everything else that feeds into a culture (Paden 1988, 65).

All of this typically tends to go unspoken because common sense tends to be common. We typically tend to not give much thought to ideas that are all around us, that we may have grown up with, or we take for granted. Only a dissenting idea feels the need to present its own case. But “common” does not mean neutral. We may choose to interpret our scriptures through the lens of cliches, tropes, and truisms, but in doing so we shouldn’t fool ourselves into believing that this does not count as eisegesis. Something is still being brought in.

With that in mind, it should begin to make sense why a recurring theme throughout the conservative intellectual tradition is criticism of the language of objectivity. The liberal studies society by building a framework based on clearly defined absolutes and isolated theories. Traditions, myth, and intuition come to be seen as an obstacle to overcome. Law must be rational.

For writers like Edmund Burke, the case for tradition had to be made by showing this quest for objectivity to be a fools’ errand:

First, then, the political good is concrete. Political reason is not concerned with the good in its abstract perfection. The object of the statesman’s thought and effort is the concrete and limited good of the particular community which he has to govern, and not the good of man in the abstract. As Burke said, “the general character and situation of a people must determine what sort of government is fitted for them.” But “the general character and situation of a people” is not merely an objective fact; it has its subjective and psychological side too. “People must be governed in a manner agreeable to their temper and disposition; and men of free character and spirit must be ruled with, at least, some condescension to this spirit and this character.” (Canavan 1959, 63)

In place of abstract reason, Burke posits practical reason as the foundation for law (Canavan 1959, 69). In Burke’s mind, man’s capacity for reason exists not to uncover truth but to guide his decisions. Questions of “true and false” matter less to him than questions of “good and evil” (Canavan 1959, 62-63). Society to him was no simple affair: it acts as an incredibly complex web of historical arrangements which resist easy comprehension (Paden 1988, 64). Abstract reason can never dissect it, but tradition can encapsulate it. The collective unspoken knowledge of countless generations, communicated in forms that are just as murky and intangible as the world they represent — this is what bestows the cliche with virtue in his eye. Habits, interests, feelings, customs, and prejudices are the vessels through which practical reason is communicated. (Paden 1988, 65)

Manners are more important than laws. Upon them, in a great measure, the laws depend. The law touches us but here and there, and now and then. Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breath in. According to their quality, they aid morals, they supply them, or they totally destroy them. (Burke 1865, 310)

But, while the origins of these customs may seem “dark and inscrutable”, what does get passed down is knowledge of what is expected of us as individuals. Contained within our traditions are social roles and hierarchies, and while we may not be able to fully comprehend why society is the way it is, we are quickly raised to learn our place within it. For Burke, duty — as opposed to right — is what law should seek to communicate.

As a practical matter, our imperfection in knowledge will inevitably create room for imperfection in rule. One should not aim for creating a “perfect good”, but there still is value in settling for an imperfect one (Canavan 1959, 66). Virtue, then, is synonymous with prudence (Canavan 1959, 62). His “principled pragmatism” did not altogether deny higher causes, but instead turned its focus towards the space that lay between means and ends (Canavan 1959, 78). In this realm of intermediate judgements and considerations, Burke opened the door for an incredibly shrewd realism. Expediency became a principle for him, condemning “profitable wrongs” in the same breath as “unprofitable rights (Canavan 1959, 77). Politics becomes less about doing right and more about “keep[ing] things from coming to the worst” (Canavan 1959, 65).

Because of this, the most important political question for Burke was the question of change and how to manage it. He was not opposed to change wholesale, but drew a distinction between change of a radical versus a reformist nature (Paden 1988, 68). Reform is inherently iterative, it simply tweaks old customs and can quickly be assimilated back into the pre-existing body of habits and routines. The historical continuity is retained. Radical change, on the other hand (or “political innovation” as he would call it), arises as a product of fundamentally foreign ideas. This could mean foreign in the sense of originating from an outside culture, this could also mean foreign in the sense of being borne from detached theories with no real roots in the existing society and its history.

Being foreign, these ideas are bound to be reflexively resisted by the people, leaving brute force as the only option to enforce them. When he spoke of the French Revolution, he punctuated it with a reminder of the gallows. In the same way, a modern conservative can look at the countless movements for social reform which take place today and resent the ways in which all these outside powers (federal governments, utopian academics, cosmopolitan media, and transnational corporations) have essentially “forced” foreign ideas onto their communities.

Through this lens, civilization and religion become difficult to separate, as the language with which the conservative defends his culture and traditions is indistinguishable from that which which he defends his religion. When Burke famously decries the French Revolution, he does so on the grounds of it being a project to enact “Atheism by Establishment” (Birzer 2023). The attacks on the king, the attacks on the institutions, the attacks on wealth, the attacks on philosophy, and the attacks on custom — everything down “to the fashion of a hat or a shoe” (Burke 1796, 39) were to him all rooted in a larger rebellion against God.

If we were to think about what our modern conservative may say, we might think about all the ways in which the present-day ‘culture war’ has been in a lot of ways is portrayed as an implicit war on God, even on the fronts in which such matters are not explicit. And one might then find agreement in Burke’s words:

They who do not love religion, hate it. The rebels to God perfectly abhor the Author of their being. They hate him “with all their heart, with all their mind, with all their soul, and with all their strength.” He never presents himself to their thoughts but to menace and alarm them. They cannot strike the Sun out of Heaven, but they are able to raise a smouldering smoke that obscures him from their own eyes. Not being able to revenge themselves on God, they have a delight in vicariously defacing, degrading, torturing, and tearing in pieces his image in man. (Burke 1796, 84)

It’s notable, then, that out of all the heresies, it is Atheism which Burke continually singles out for abuse. Contrast this with his rhetoric on the Hastings impeachment, where he defended Hindu and Muslim societies against Christian imperialism, arguing for all the ways in which said religions have contributed to the richness of their respective civilizations (Harris 2012, 99).

Now one might read this and ask the question: is Burke a religious relativist? The answer is no: he always presumed the truth of Christianity, he just maintained a profound disinterest in discussing it. Instead, all throughout Burke’s writings one will find a litany of arguments for the practical benefits of a Christian society (Harris 2012, 94). But at the same time, those are the very same grounds on which Burke defends those other religions. He maintains that Christianity is superior in its benefits to any other religion (Harris 2012, 99), but even that already moves us away from “the way, the truth, and the life” (John 14:6) into a question that could be resolved on a balancing scale. It should probably come as no surprise then that Burke leaves open room for the idea that certain religions may be better suited to certain societies (Harris 2012, 100).

Religion, then, reveals itself to be the deification of conventional wisdom. Or, as the Jew would put it: “halakhah governs as law imposed from above, and as divine wisdom explored from within” (Saiman 2020, 221). The Talmud preaches a god antithetical to the nature-gods of the pagans (Heschel 1959, 92), yet also seeks its truths in the rhythms of daily life. Similarly, Burke can speak of universal moral imperatives derived from natural law (Kirk 1951, 441), but even this is based upon a definition of human nature synonymous with civilization.

…Burke loathed the idea of nature unrefined; for “art is man’s nature,” he wrote. In Burke’s view, as in Aristotle’s, human nature is man’s at his highest, not at his simplest. “Never, no never, did Nature say one thing and Wisdom say another. Nor are sentiments of elevation in themselves turgid and unnatural. Nature is never more truly herself than in her grandest forms. The Apollo, of Belvedere (if the universal robber has yet left him at Belvedere) is as much in nature as any figure from the pencil of Rembrandt or any clown in the rustic revels of Teniers.” Not “natural” man, but civilized man, is the object of Burke’s solicitude. (Kirk 1951, 443-444)

His follower, Russell Kirk, even goes as far as to write that “we [can only] know God’s law through our [human] laws that attempt to copy His” (Kirk 1951, 443). To him it is the “collective wisdom of the species” which can save us from our worst impulses and teach us what it means to “obey the Divine design” (Kirk 1951, 449).

Of course, Kirk attempts to asterisk all this with a reminder of the imperfections of human nature and all the ways in which it falls short of God’s righteousness (Kirk 1951, 443), but it can almost feel as a footnote within the larger context of the essay. When one listens closely to the language Burke (and Kirk) use to describe this cultural wisdom, one cannot help but feel as this stretches well beyond just “settling for imperfect truths”:

…a nation is not an idea only of local extent, and individual momentary aggregation; but it is an idea of continuity, which extends in time as well as in numbers and in space. And this is a choice not only of one day, or one set of people, not a tumultuary and giddy choice; it is a deliberate election of ages and of generations; it is a constitution made by what is ten thousand times better than choice, it is made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time. It is a vestment, which accommodates itself to the body. Nor is prescription of government formed upon blind, unmeaning prejudices — for man is a most unwise and a most wise being. The individual is foolish; the multitude, for the moment, is foolish, when they act without deliberation; but the species is wise, and, when time is given to it, as a species it always acts right. (Burke 1782)

It’s here we begin to see that the implicit cynicism that is so characteristic of Burke’s thought belies a strangely selective optimism. The “best we can do” in civilization is not just a fact to be met with caution, but also, apparently, reverence. To put one’s faith in imperfection isn’t just a compromise but a duty.

Burke remarks that civilization is man’s nature, but Kirk reads the above quote to take it a step further: that nature is eternal. And so the language continues to drift away from a simple utilitarian appreciation for time-testedness towards something with a religious edge. The word heritaage is introduced, not simply defined as a mark of our temporality, but as something we must take care not to offend.

True obedience to the dictates of nature requires reverence for the past and solicitude for the future. “Nature” is not the mere sensation of the passing moment; it is eternal, though we evanescent men experience only a fragment of it. An enthusiast for abstract “natural right” may obstruct the operation of true natural law; we have no right to imperil the happiness of posterity by impudently tinkering with the heritage of humanity. (Kirk 1951, 449)

Of course this last step is necessary to tie together the Burkean worldview: central to the entire framework, littered throughout his rhetoric are appeals to Harmony and Order. Not just “harmony” and “order” as they relate to the narrow sociological dynamics of a particular community, but the ways in which all of that extends out into a universal “divine concordance” (Canavan 1959, 72) we align ourselves with.

Burke’s skepticism was always reserved for a very specific way of defining and applying truth. As a proponent of natural law, his arguments silently presupposed the existence of God and a rational order to the universe He created.

Laws made by men are subordinatzed to the moral law and, indeed, are derived from it. “All human Laws,” Burke said, “are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice.”65 “Justice,” therefore, “is itself the great standing policy of civil society,”66 and constitutes an obligation superior to the will of any government, superior even to “the demands of the people; whose desires, when they do not militate with the stable and eternal rules of justice and reason (rules which are above us, and above them) ought to be as a law to a house of commons.” (Canavan 1959, 75)