Sago Boulevard

In an old post, about a year ago, I suggested that Originalism with respect to constitutional interpretation is fundamentally different from an traditional approach to interpreting Halakhah. Here’s the relevant excerpt:

The Torah itself is God’s message to humanity and thus, interpreting the Torah is inextricably tied to interpreting God’s will or intention. Consider an analogy: Somebody writes you a rather vague letter. In trying to make sense of the letter itself, you’re also trying to figure out what the author had in mind while writing it. You can’t separate those two tasks.

The Constitution, on the other hand, is not simply the will of James Madison or of the members of Constitutional Convention. The relationship of Madison’s intention with the text of the Constitution is incidental.

George objects to my distinction. In a recent email (it’s actually not so recent but I procrastinated responding to him), he writes:

how is the constitution not simply the will of the cont[i]nental congress (representing the will of the nation). if it is how it that diffrent from reading and interpreting a letter a friend sent you?

The key difference between the Constitution as “the will of the [C]ont[i]nental [C]ongress” and Halakhah as God’s will is one of justification. The Torah’s authority is justified by God having commanded it. (That’s an oversimplification but I don’t want to get into the Euthyphro dilemma right now.) The goal of interpreting the Torah (and, by extension, Halakhah in general) is to identify what message God intends to convey because what justifies it is God intending to convey it. Interpreting a letter from a friend is similar insofar as the goal is to figure out what my friend wants to tell me. The letter would have no function otherwise.

The Constitution, on the other hand, does not derive its authority from James Madison or the Continental Congress. Had it been written by a 10-year-old who was bored one day during math class and then ratified by the states, it would have the same status that it has today.

It clear that Halakhah requires Jews to behave towards non-Jews in a manner consistent with the Torah’s ethical demands. What’s less clear is the reason for this. The Mishnah writes (Gittin 59a-b):

…One does not restrain poor pagans from collecting the gleanings, forgotton pieces and what is left on the corners of fields mipnei darkhei shalom (on account of the ways of peace).

The Gemara, there (61a), expands, based on a beraita:

One supports poor non-Jews together with poor Israelites, and one visits sick non-Jews together with sick Israelites, and one buries dead non-Jews as one buries dead Israelites mipnei darkhei shalom.

What does “mipnei darkhei shalom” mean? (more…)

R. Marvin Fox, in “Heschel, Intuition, and the Halakhah”, is critical of what he considers an over-reliance on intuition in R. Heschel’s philosophy of religion. The common objection to any intuition-based theory, as Fox argues, “is that we have no reliable way to distinguish between those experiences which are genuine perceptions of a higher reality and experiences which are delusions or hallucinations.” Perhaps more important, though, is Fox’s second objection. The kind of awe-inspiring, life-changing experiences that Heschel has in mind are limited to prophets and, at best, the great religious personalities of each generation. “A conception of religion which is rooted in such experiences automatically restricts the realm of faith to a small group of the spiritually elite.”

According to Fox, Heschel offers three ways for achieving such intuition. He paraphrases Heschel as follows: “Man can come to a knowledge of God by sensing His presence in the world, in things… sensing His presence in the Bible… [and] sensing his presence in sacred deeds”. The problem with the first two, as Fox points out (I think, correctly), is that they are only available to the already-believing individual (again, the spiritually elite). (more…)

Dr. Tzvee Zahavy posts about his approach to teaching rabbinic texts in a university setting and links to an article he wrote on the same topic. In describing his course methods, he writes:

I also do not emphasize the notion of the texts as part of “the Halakhah.” This concept is a relatively modern construct, composed of many strata of texts, commentaries and codes. Some would argue it is a tool of those who foster rabbinic authority rather than a purely intellectual asset of our rabbinic heritage.

I think there are a number of problems with this approach. I’m going to assume for now that by “the Halakhah”, he means something to the effect of “a coherent religious-legal tradition, beginning with the written Torah and continuing to this day”. Approaching these texts without recognizing the halakhic role they play is to study them out of context. Firstly, Hazal (the rabbis of the Talmud) saw themselves as part of an ongoing tradition (see the first Mishnah in Avot), beginning with Revelation and continuing past them. Why shouldn’t our study of their work incorporate the hundreds of commentaries and halakhic compilations identified with that tradition?

Secondly, Hazal understood their divrei Torah as having normative implications. Consider a disagreement between two Amora’im (the later rabbis of the Talmud) about how to read a particular mishnah. At stake was not merely the intent of the mishnaic author. The resolution of the disagreement would determine the appropriate behavior for the halakhically-observant Jew.

It doesn’t make sense to divorce Talmud study from its normative-halakhic context and to ignore the fruit of Torah scholarship that continues that tradition to this day. While historical context should not be ignored and academic impartiality is warranted in a university setting, it seems clear that the rabbinic texts are primary halakhic ones. To approach them any differently is to misrepresent them.

R. Soloveitchik in Halakhic Man (pp. 108-109):

If a man wishes to attain the rank of holiness, he must become a creator of worlds. If a man never creates, never brings into being anything new, anything original, then he cannot be holy unto his God. That passive type who is derelict in fulfilling his task of creation cannot become holy. Creation is the lowering of transcendence into the midst of our turbid, coarse, material world; and this lowering can take place only through the implementation of the ideal Halakhah in the core of reality (the realization of Halakhah=contraction=holiness=creation).

In her review of the Conservative Movement’s Humash, Etz Hayyim, Tammi Rossman-Benjamin makes a point about the Movement’s approach to Halakhah that I’ve been arguing since my days in Schechter (via Hirhurim):

Having publicly identified itself with an interpretation of P’shat which denies the unity of the Torah, the Conservative Movement is now in a serious theological quandary. For as a movement which swears fealty to Halakhah, its rejection of the most fundamental theological assumption of the rabbis who derived that Halakhah from the text is seemingly self-contradictory.
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Not only are rabbinic claims about the divine nature of P’shat the very raison d’etre of the halakhic system, but as the talmudic dictum “ayn hamikra yotzei midey peshuto” makes clear, these claims have always been an integral part of the halakhic process as well.

As with any review that attempts to tackle such wide-ranging issues, there is room to quibble with some of her arguments. In general though, I think she touches on an important theological dilemna. You may not claim the legitimacy of Halakhic Judaism while simultaneously undermining its most important hermeneutical assumption: the divinity of the Torah.

There’s a common and particularly annoying view often taken in defense of pluralism that sounds like this: There is no one “correct” answer and therefore many legitimate approaches, but here’s what I believe and why I believe it.

Daniel Sieradski of Radical Torah takes a similar position in describing the purpose of his blog.

The challenge of Radical Torah will be to demonstrate that a Left-wing religious Judaism is possible and legitimate as well. There is not one “correct” Judaism. Rather, there are several legitimate Judaisms from which to choose.

The problem is that Sieradski goes on to argue for what he considers to be left-wing religious Judaism. He’s then in the awkward position of supporting one view while conceding that there is no correct view. If there’s no correct view, then clearly his position isn’t correct either. And if it isn’t correct, why in the world is he arguing for it?

A common reply is to note the quotation marks around “correct”. He doesn’t actually mean that there’s no right answer, he might argue. It’s just that there no single “correct” or objectively true answer out there. Instead, there are various legitimate positions for us to choose from. But what criteria should use to decide? If we’re not trying to figure out an objective truth, then what are we doing? Sieradski says he’s choosing the “halakhic framework [that] resonates most strongly with [him].” If I criticize his position, though, I assume he would hold his ground and argue for why he believes it. by doing so, he effectively concedes that he believes his view has some advantage over mine.

He may respond that even granting me this point, he still doesn’t have to maintain that his view is absolutely correct. But that is besides the point. When he says that his view has an advantage over mine, he implies that it is therefore closer to the truth. And the only way for him to argue for his position is to make this kind of claim.

In the halakhic context, Sieradski might throw back at me what he says earlier in the same paragraph:

Between the 12 tribes of Israel and “70 faces of Torah,” there are indeed many “Judaisms.”

That is to say that Judaism itself recognizes some form of pluralism. I think that’s true but not in the way Sieradski means it. Judaism’s celebration of diversity and disagreement among the rabbis doesn’t mean that particular questions of law and ideology have no right answer. Rather, the disagreement itself - the act of deciphering God’s will - has a religious dimension. As long as this motive is present the disagreement is considered leshem shamayim (for the sake of heaven).

I’ve been thinking about a distinction between “‘al pi din’ [according to the law] and ‘metzius’ [physical reality]” cited and partially endorsed by Godol Hador in a post last week. GH already noted the similarities with Brisker study and R. Soloveitchik’s refrain about “halakhic reality”.

While flipping through an old issue of The Torah u-Madda Journal, I reread an article by Mark Steiner, “Philosophizing in Yiddish: Rabbi Reuven Agushewitz on Freedom of the Will”. In it, he describes how R. Soloveitchik used the techniques of contemporary philosophy in articulating the hashfakah for which he is famous. As scientific discovery continues to wreck havoc in the batei midrash of Orthodox Judaism, I believe we will find ourselves, in one way or another, turning to the Rav for support.

[R. Soloveitchik] puts forward the idea that halakhic Judaism involves intrinsically an alternative description of the world to that of natural science.
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By reading the works of R. Soloveitchik, one gets an intuitive insight into the meaning of concepts like “freedom” as applied to halakhic man.

At the end of day, we may not need to work out a consistent understanding of Genesis and the natural sciences. The Torah describes creation in our language but from God’s perspective. As R. Soloveitchik himself writes:

There is a Bereishit-logic which reflects the wisdom of God embedded in nature.

In light of my previous post, I want to distinguish between what I identified as “God’s intention” from the so-called originalist theory of constitutional interpretation. I agree with Nephtuli that there are significant differences but I would go even a step further. The Torah itself is God’s message to humanity and thus, interpreting the Torah is inextricably tied to interpreting God’s will or intention. Consider an analogy: Somebody writes you a rather vague letter. In trying to make sense of the letter itself, you’re also trying to figure out what the author had in mind while writing it. You can’t separate those two tasks.

The Constitution, on the other hand, is not simply the will of James Madison or of the members of Constitutional Convention. The relationship of Madison’s intention with the text of the Constitution is incidental. The goal of constitutional interpretation is to interpret the Constitution. Madison’s intention or that of any of the Founding Fathers is useful only insofar as it helps illuminate the text.