87 Calif. L. Rev. 1051



Professor Laurent Mayali

Lloyd M. Robbins Professor of Law and Director, Robbins Collection in Religious and Civil Law, School of Law, University of California, Berkeley (Boalt Hall).


During his long and prolific career, David Daube never ceased to address the fundamental questions of Western legal thought in connection with Jewish and Christian theology on the one hand, and Roman and Greek cultures on the other. The results of his often challenging and always brilliant investigations represent some of the most significant achievements in legal and historical thought of this century. But, for many reasons, Daube's work does not fit into the traditional categories of legal and historical scholarship; it is instead located at the crossroads of the various disciplines that constitute the social sciences and the humanities. The diversity of questions he engaged in reveals Daube's astonishing intellectual curiosity, which was always accompanied by an erudite knowledge of legal and religious sources as well as an original methodology.

Daube never considered law to be a simple set of technical rules regulating society. In contrast to the positivist view that was dominant during the period when he began his studies, Daube refused to consider law outside its cultural context. Behind each rule was an individual or a community, struggling with its contradictory desires and needs. Daube therefore insisted on paying particular attention to legal language, viewing it as the narrative of a certain conception of humanity. Vocabulary, according to Daube, was the necessary foundation for the discussion of any historical question; no analysis or understanding of the past would be possible without reference to language. The rigorous analysis of words and the careful study of their function in any given circumstances were the key to apprehending the various meanings of an historical text.

It is not surprising that his path-breaking linguistic analysis of legal rules shed new light on ancient religious and social cultures. Through his careful study of texts and words, Daube always aimed to capture the essential character of human behavior and of human consciousness at different periods of their history. He viewed the past as a depository of the experiences of previous generations, but he never turned his interest away from the contingencies of the present. The themes of his numerous publications, therefore, were often related to contemporary issues and reflected a genuine concern for the individual and his struggle for the preservation of human values.

The individual, however, is not an isolated person. Her judgment and her actions express a social consciousness that constitutes the root of her identity. This social nature explains in part the complex relationship between the individual and the wielders of political power. Daube considered the power of the stronger as a source of oppression and injustice, resulting in the abuse of the weak individual. In this unequal contest, Daube always stood on the side of the weaker. This was evident even on the level of his actions. Before and during World War II, his activities attracted the attention of the Gestapo, which placed him on the list of persons to be assassinated after the expected defeat of the United Kingdom.

Daube's personal and scholarly engagement was animated by a moral conception of political action. His historical works cannot be disassociated from these strong beliefs. For example, his examination of self-sacrifice in the Jewish tradition raised the complexities of repudiating one's faith in order to avoid being killed. In another essential work, Daube addressed that same issue from the perspective of the community, investigating with great lucidity the moral and social procedures of collaboration with a totalitarian regime. How can a community accept sacrifice of its own members in order to avoid destruction of the whole community? Daube offered no simple explanation or easy justification, refusing to pass judgment on his fellow human beings. He did not consider man's ability to justify his actions, good or evil, as an object of pure scientific investigation.

Daube's fascination with mankind's cunning did not prevent him from considering the darkest moments of its history. Nor did he attempt to solve historical riddles. His brilliant and spirited interpretations of legal rules were not meant to entertain his readers, even if one could not avoid being charmed by his wit. His insightful comments presented us with the constant challenge of understanding how ancient communities and modern society could choose to follow a certain path. On Daube's view, the cultures of the ancient world represented a unique moment in the historical tradition of the Western world. Thus Daube always stressed the points of contact between the numerous traditions and the exchange of ideas and beliefs that shape a common understanding of man's action.

Daube's work will remain a precious source of ideas and a compelling model for historical research for both religious and legal scholarship. His intellectual legacy reminds us that erudition must not be disconnected from reflection and that tolerance must make room for criticism. Simply put, Daube taught us that scholarly knowledge does not confer the right to judge and condemn and that we must fight against the intellectual dictatorship of unquestioned dogmas.