Damascus Document: When is a Cigar just a Cigar?

 The Damascus Document (as Fraade points out) is unusual in that it combines both law and narrative together, where the laws go hand-in-hand with its narrative and eschatological framework.  Moreover, it explicitly cites scripture as an independent source; and provides interpretations of it to support a legal and moral worldview.  Prefiguring rabbinic midrash, it seems to derive lessons from the text as such that allows for “new modalities of continuing revelation”.  The word “derive”, of course, is a loaded term alluding to metaphors that see interpretation as a key to unlock secrets both hidden and revealed in the text; a type of mechanistic action that leads to a determinative answer.  The exact nature of the relationship between text, narrative, law and philosophy – and the extent interpretation that mediates between them – is precisely at stake and it is high stakes. 

For in the view of the Qumran sect the “seekers after smooth things” (dorshei) is a derogatory term for the Pharisees that lead to falsehoods: “For they sought easy interpretations, chose illusions, scrutinised loopholes, chose the handsome neck, acquitted the guilty and sentenced the just, violated the covenant”.  This stands in contrast to the more authoritative interpretation taught by the “Teacher of Righteousness” who “taught the community the proper observance of the Law and the true eschatological meaning of the words of the prophets” (Angel).  Interpretation in this view is necessarily but strictly limited to “the men of renown, who stand (to serve) at the end of days.”  It may be inferred there is a “right answer” to legal question, to whom the Sons of Zadok are custodians.

One can see there are opposing legal outputs (e.g. on the laws of polygamy, incest and witnesses) and to which one side believes the other has erred.  However, the gap that opens between text and interpretation, and the combining of law and narrative into a single text, naturally opens up questions about the nature and philosophy of the law.  What were they up to when they came to these different determinations of the law?  Does it underlie a different thought process or worldview?  Are they different opinions within one ‘language game’, ‘form of life’ or exegetical activity; or are they playing different games?

Daniel Schwartz would like to take the latter view – the enterprises are different with the Qumran view of law being “Realist” and the Rabbinic being “Nominalist”.  Loosely, the former have laws based on reality (as understood through the text) based on objective principles, while the latter are more based on the determination of the law as a speech (or procedural) act (i.e. what the text, judge or court says).   If there are not two witnesses to a single crime, does the ‘guilty’ man walk free, even if there were three independent witnesses to the man committing the crime on separate occasions?  Must one act according to the judicial procedure and let them off (Rabbinic); or ensure that the judicial process gets the right result and convicts them (Qumranic)?

Jeffrey Rubinstein, on the other hand, takes the former view described above where they are both engaged in the same exercise; albeit his article fluctuates between two forms of this.  On the one hand: “Sometimes a cigar is just a cigar”.  Arguments such as the one above are purely a matter of exegesis from an interpretive point of view.  On the other hand: he seems to conclude that there is a common Realist philosophy underlying both; where there is a debate on the nature of things, such as the nature of impurity.  The Rabbis equally base their notions on ‘reality’ such as in considering the spatial properties of liquid in determining impurity; whilst the Qumran give weight to legal process (e.g. in not accepting testimony of a nineteen year old).  In the latter variant of Rubinstein’s interpretation, the Rabbinic positions are “more nominalist” purely as a result of an historical process where the law remains static but ideas about reality change.  Thus, the laws become more ‘taboo’ or nominalist, because of this severed connection.

Without being able to go into too much detail here, the above analyses seem to conflate three separate issues: i) the authority of the law (or its interpretation); ii) the determination of the content of the law; and iii) the telos or purpose of the law.  Questions of realism and nominalism can be applied to each and in different combinations.  Questions about the authority of the law in relation to reality are a variant of the Euthyphro dilemma (do the gods love good action because it is good, or is good action good because it is loved by the gods?), albeit as applied to a legal system and its interpreters.  Whether the determination of the law is realistic relates to the extent one can “derive an ought from an is”.   The Telos of the law could be exhausted by ‘revealing reality’ or the ‘exercise of authority’; but equally could be something else entirely outside of that dichotomy.

One can say that the Damascus document reflects on the authoritative nature of law as being based in the principles of creation, whilst doing further research on how the Qumranic community determined the law from that reality.  Equally, one could say that for the rabbis the determination of the law is more nominalist than that espoused in the Damascus document, whilst leaving the question of how much the final determination reflects reality open.  Furthermore, the articles only briefly touch on the telos of the law.  One can agree with Rubinstein that certain laws and interpretations were based on an understanding of reality, without thinking that its severance from the reality leaves it relying on nominalist authority alone.  As argued by Rabbi Soloveitchik in Halakhic Mind, this can reflect a “genetic fallacy”; and that the purpose of the law is quite other than the expression of reality or authority.

One can avoid over-interpreting or straightjacketing a view into one interpretation (nominalist vs. realist) but still see relevant philosophical differences between. Them. Sometimes a “cigar is just a cigar” but where one can ask what one smokes.