Mount Sinai is the confluence of law and art. We are called upon both to build communal structures of stability and to exercise our individual innovative creativities. View the study sheet here. Watch the recording here.
There is a raging debate about how the United States Constitution should be interpreted. Originalists argue that the meaning of the constitutional text is fixed and should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This commentary is not about that debate. But a scholar on the topic opens up a window into a subject that is highlighted in this week’s Torah portion.
J. Harvie Wilkinson is a judge serving on the United States Court of Appeals for the Fourth Circuit. In 2010 he wrote an article for the Notre Dame Law Review which addresses the question of how creative should judges be in their interpretations of the constitution.
In his article, titled “Subjective Art, Objective Law,” Judge Wilkinson draws a sharp distinction between art and law. He writes that art, at least that in the modern period, is a subjective expression of the artist intended to provoke and explore new possibilities. Law, by contrast, is intended to provide structure, stability and predictability to society. Each serves a distinct and valuable social function. To preserve their unique contribution, judges, he concludes, should avoid the temptation to be artists in their legal interpretations.
There is a similar tension, that between provocation and stabilization, within sacred Jewish literature. The Talmud is driven by two types of discourse: halachah(legal materials) and aggadah (legendary materials). The former seeks to establish norms of behavior. It narrows what is permitted. The latter unleashes the imagination in the search of new ways of thinking. It expands possibilities. Rabbi Abraham Joshua Heschel described the difference in his book Between God and Man: “Halachah represents the strength to shape one’s life according to a fixed pattern; it is a form-giving force. Aggadah is the expression of man’s ceaseless striving that often defies all limitations.”
This week’s Torah portion describes the encounter between God and the Israelites at Mount Sinai. It is a disruptive and unsettling experience for the Israelites. They “see” thunder and the sounds of the shofar. Lightning sparks across the sky. Fire descends upon the mountaintop. There is smoke like that from a kiln. The people tremble. Is this a moment of stabilization, of law giving, or one of provocation, of imagination unleashed?
What is presented to the Israelites at Mount Sinai is customarily called the Ten Commandments. But the word “commandment” is not used in the Hebrew. Instead, Torah tells us that God offered ten devarim, ten words. In this moment has the world been narrowed through prescribed rules or expanded through cracks in the normative dimension of the universe?
The Talmud tells us that the world was created through ten sayings or utterances. That is the number of times in the story of creation when “God said” and the various aspects of existence came into being. In that instance speech is an act of engendering, of creativity.
Hasidic thought views those ten utterances as an ongoing flow of divine life into this world. For the Baal ShemTov, founder of the Hasidic movement, that is what the experience at Mount Sinai is. Human limited thought is cracked open, allowing the fullness that is the universe to become available. That is why there is trembling. Not out of fear of a new authoritarian, disciplinary power and the punishments that might be placed upon them. But out of an awakened sense of how vast were their powers and possibilities as freed human beings in service of the holy.
Judge Wilkinson in his article notes that pre-modern art functioned to reinforce the hierarchical order of existing authority. Modern art’s chief contribution was the assertion of the individual artist’s subjective experience of the world as a primary element in art. It constituted a rejection of externally imposed aesthetic standards: what to paint, how to paint, the reason for painting. And at the very frontline in this battle for artistic independence was Édouard Manet.
Pictured here is Manet’s The Luncheon on the Grass. Manet painted it in 1863 and submitted it for that year’s Salon de Paris, the premier exhibition at the artistic center of the world. The Académie des Beaux-Arts controlled artistic standards in France. It served as gatekeeper of what was shown at the Salon.
The Luncheon on the Grass was a direct assault on those standards. The Académie protected the mission of classical art, which was to serve as moral uplift and instruction. The only acceptable subject matters were allegorical, historical, mythological or religious scenes. Manet’s painting was a thoroughly mundane setting: four people sharing a picnic. Shocking the Académie’s sensibilities was a nude woman. Not one from Greek mythology or otherwise idealized. Just an ordinary woman.
Even more provoking, the subject matter was a reimagining of two classic works by Renaissance masters: Titian’s The Pastoral Concert and The Judgment of Paris by Raphael and the engraver Marcantonio Raimondi. Instead of a scene populated by gods and goddesses, nymphs and satyrs, Manet’s painting presented four middle class people enjoying an ordinary lunch. The painting is large, 81 by 104 inches, a size traditionally reserved for the most elevated classical art subjects. By portraying an ordinary scene on such a scale, Manet validated the worth of seemingly mundane subjects.
The Salon rejected The Luncheon on the Grass. So many paintings were denied a showing that year, 2,217 out of a little over 5,000 submitted, that protests broke out in the streets forcing Emperor Napoleon III to allow a Salon des Refusés, an exhibition of rejects, including The Luncheon on the Grass. Instead of the Académie serving as the judge of artistic standards, paintings at the Salon des Refusés were placed in an arena of public opinion.
With The Luncheon on the Grass everything changed in the art world. The subjective experience of the artist became a valid and dominant element in art. Everyday life as a focus of artistic creativity was embraced. How paintings were exhibited, marketed and sold changed. The Impressionists became champions as a movement of all these creative liberations launched by Manet.
The Jewish French philosopher Emmanuel Levinas in his article “Revelation” identified the awareness of responsibility the Israelites experienced at Mount Sinai with a birth of ethical subjectivity: my being has purpose to the extent I am concerned for someone other than myself. He wrote: “A human being is not a mere receiver of sublime messages. A human being is, at the same time, the person to whom the word is said, and the one through whom there is a Revelation. A human being is the site of transcendence.”
Mount Sinai is at the confluence of law and art. It is where we embrace our responsibility to build and maintain stabilizing structures of social cohesion and accountability. And it is where we are called upon to become creative beings who hear, see and share new possibilities that contribute to the world being made continually good. It is where we experience a trembling of what it means to be truly human.
Join us here at 7:00 p.m. (PT) Thursday, February 1 as we explore a site of transcendence.
