Moving (The) Forward

As regular readers have probably figured out, I get a decent amount of my Jewish news from The Jewish Daily Forward. That’s not to say I wholeheartedly endorse every story they run, or every editorial position they take.

And now, I’m going to bite the hand that feeds a bit.
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Grief

Just a quick update.

Mrs. Secular Jew and I have recently experienced the loss Mrs. Secular Jew’s mother, and we’ve been dealing heavily with some of the aftermath of that over the last week. We likely will be occasionally preoccupied with this intermittently for the foreseeable future, so there will be periods of radio silence on the blog.

Fortunately, very little of this appears to have affected our son, which makes this slightly easier to handle.

In any event, if you wonder where we’ve gone, it’s not you–it’s me. Please keep us in your thoughts.

Touching the third rail of American Jewish life

Well, here I go.

There are not a lot of “safe spaces” in American Jewish life to talk about Israel. If that seems like a ridiculous statement, I invite you to take a look at what’s happening at Hillel.

If there is any single facet of my time as a student–at all education levels–that most cemented my Jewish identity, it was my (initially grudging) involvement in Hillel programs at my undergraduate school–including AIPAC programming that I happily participated in. And so it pains me to see this article, and others, about what’s going on at Hillels and other Jewish student organizations with respect to talking about Israel.

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How soon we forget.

Over at The Atheist Rabbi, Rabbi Jeffrey Falick has a post addressing the sudden realization of Steven Cohen and Kerry Olitzky that maybe there’s a way to welcome people to the Jewish community and Jewish identity without forcing them to undergo a halakhic conversion.

Hey, I know some people who’ve advanced that position for years!

I won’t add much to Rabbi Falick’s observations, except to say this: something like this has existed for at least two thousand years: the ger toshav. Continue reading

A short break for a statement of purpose

Read this, from Pop Chassid.

Now imagine your child can’t even say “no.” Imagine knowing not only that you can’t be sure you will always be there for your child–imagine that you worry that your child will never be independent, even when you’re gone.

Welcome to the world of many parents of kids with disabilities.

This–this feeling, this worry–is part of why I decided to go to rabbinical school. Because as bad as the rest of the world is, for some reason, in the Jewish world we’re often far worse. And absent people who will do something to change that, it won’t happen.

A broadside at the halakhic process

I posted earlier about Professor Joshua Berman’s essay in Mosaic Magazine, “What Is This Thing Called Law?,” about the reduction of flexibility in Jewish law. Mosaic has started (as is its format) to post responses to Berman’s essay, and the first one is from Rabbi Gil Student, entitled “The Art of Halakhah.” Accepting Berman’s common law/statutory law dichotomy, Student argues that the loss of flexibility is a result of both what those adhering to halakhah have actually wanted and the hybrid process by which poskim and dayyanim arrive at their decisions.

I like much of what Student says in response, even though, as I noted in my post on Berman’s essay, I don’t think the common law/statutory law distinction is particularly apt. But I like the response not merely for what it says, but for what I think it lays bare.

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I’m sympathetic, but unconvinced

Tablet Magazine has an extended article about David Silverman, who heads up American Atheists. The topic of the article: why Silverman insists that atheism and Judaism are incompatible.

I’m sympathetic to his position. But I don’t agree.  Continue reading

“Freedom!,” or, my newly traditional bent

As most of us no doubt know, Hanukkah (I use the NY Times’s spelling of it for sake of my spellchecker) is coming to a close. (No, not Thanksgivukkah–because I like Thanksgiving way too much to blend it in with anything else. And also, I love Thanksgiving, but eight days of turkey is almost too much for me.)

As we got ready to celebrate Hanukkah, on kind of a lark I started to read the laws for the holiday in the Kitzur Shulchan Arukh. (For rabbinical school, we were reading the laws on Rosh Hashanah and Yom Kippur at the time, so I was already carrying the book around.) For those unfamiliar, it’s a Jewish legal code from the mid 19th century that is aimed at just the average (traditionally observant) Jew who wants to observe Jewish law and needs a relatively plain-language guide to doing so. It’s not generally used to reach new rulings as it’s not particularly detailed in terms of rationale and sources, but it’s pretty useful for day-to-day issues. For Hanukkah, it has information about things like what order to put the candles in and light them, what a Hanukkah menorah should look like and be made of, where it should be placed, how long the candles should burn, what blessings to say, who says them and when, etc. (It’s actually more involved than you would realize.)

Reading it, I realized that one of our menorahs was not, according to the Kitzur Shulchan Arukh, kosher. That particular menorah has its candles in a circular shape–which is fine–but did not have all the candles except the ninth “helper” (shamash) at the same level. You see, the menorah goes up in sort of a spiral, so that each candle is higher than the next. According to the Kitzur Shulchan Arukh, the eight candles of the menorah should all be level.

Now, this is an interesting dilemma for a humanistic Jew. Well, maybe not really, because we don’t recognize halakhah as binding for religious purposes. But we do recognize the cultural value of the observances, and that holds sway in deciding what we do.

So it still left me with the question: what to do? Should we use that circular menorah (which is beautiful), or do something else?

We ended up using a more traditional menorah. The circular one is part of the holiday display we’ve set up at my office, and it actually goes quite well there.

So, where am I going with all this?

Mrs. Secular Jew pointed something out to me that I hadn’t quite noticed myself. I’ve become more traditionally “observant” since coming to a place where I understand that I am–and have for a long time really been–a humanistic Jew. We light candles for Shabbat consistently when we never did before; my menorah decision was different than it would have been in the past (when I would likely have cared more that the circular menorah wasn’t kosher); and other smallish things have trended more traditional than they would have in the past. Some of this is modeling behavior or the result of spending more time thinking about Jewish things than I have for a little while–so, the natural consequence of embracing the Jewish part of things, particularly as  a result of rabbinical study.

But that’s not all that’s happened. Coming to the understanding of where I am in terms of a Jewish identity–that I really don’t think halakhah has any divine component to it, that it’s not really binding–freed me up to make decisions without the “baggage” (sorry–it’s just the best term I’ve got) that comes from feeling like doing a thing means doing it right or just not bothering.

In a sense, this is the flip-side of the old saying, “If you’re going to sin, sin boldly.” Not being paralyzed by the necessity of doing it right, I find myself able to just do the thing. So, in talking about Hanukkah in the really limited way I can with our son, I don’t feel that I have to pitch only the “appropriate” message about it.

And so, given his communication difficulties, and the limited extent to which any nine year-old–of nearly any cognitive or communicative abilities–can wrap his head around such abstract notions, it was effective this year to explain only one thing about Hanukkah.

That Hanukkah is about freedom.

As the lights fade from the menorah on the last day of Hanukkah this year, a warm chag sameach to you.

Religious leaders and sexual abuse

The ABA Journal (the monthly magazine of the American Bar Association) has a long article this month on prosecutors’ efforts to obtain sexual assault convictions in various religious groups of more or less insular bent. It leads off with the story of Nechemya Weberman, whose case has received tons of coverage in the traditional news media, venues like the Failed Messiah blog, and even a Kindle single (which draws heavily from the author’s prior published work in the Forward and other venues).

No comment from me on the contents of the ABA Journal article or on any other coverage of the Weberman matter or other cases; just material that some readers might be interested in but wouldn’t necessarily encounter.

Crazy little thing called law

Mosaic Magazine, the successor online publication to Jewish Ideas Daily, has published its December 2013 article of the month, “What is This Thing Called Law?” I don’t necessarily love the thrust of Mosaic–it’s published by an affiliate organization of the Tivkah Fund, which has a notably conservative bent to it in terms of religious questions–but this is a pretty interesting article that appeals to both the rabbinics and American law geek in me.

In the article, Rabbi Joshua Berman, a professor of Bible at Bar-Ilan University, assesses the current state of halakhic debate in modern Judaism–focusing on Conservative and “Orthodox” Judaism–by looking at “how we got here.” That is, Professor Berman tracks the move from what he calls a common-law approach to halakhah to a code-based approach to halakhah.

It’s an interesting approach, and one that I think could, from a certain perspective, yield some interesting results. But it needs refinement–particularly as it pertains to what it means to approach things from a common-law perspective as opposed to what Professor Berman calls “common law” but which is probably more properly thought of as simply flexible. Some of this refinement is simply mechanical and is adjusted by understanding better how many common-law systems actually work; other aspects of this refinement stem from basic assumptions and goals of genuine common law legal systems vis-a-vis what is happening in the world of halakhah.

The Mechanical Bits First

The mechanical aspects of my critique are easier to set out, and explain in part why I would characterize what Professor Berman calls “common law” as more properly flexible, improvisational, or simply case-by-case.

Pointing to the Code of Hammurabi, incidences of specific cases of adjudication in the Bible, and differences in specific legal texts on similar topics within the Bible, Professor Berman argues that what these texts show us is the recording of the results of specific adjudications or, more broadly, adjustment of a general rule to fit a somewhat new circumstance. For example, he points to the difference between Exodus 21:37’s penalty for someone who takes an ox or sheep from another person and disposes of it through sale or slaughter (that is–commits the common law tort of conversion) and the penalty King David would have imposed upon the hypothetical thief of a sheep in the story of Nathan’s prophecy concerning David’s treatment of Bathsheba in II Samuel. Exodus would impose a repayment of four sheep for the one taken; David would impose the same fine and would also have the thief put to death. Professor Berman points to this difference and argues that we are seeing common-law adjudication at work: recognition that one case (the theft of an animal by one presumably hungry or penniless) is different from another (the theft of an animal by someone who could easily have used an animal that already belonged to him).

I think this reads both too much and too little into the differences between the texts. Too much, because the text of Exodus doesn’t specify its rationale. Too little, because it assumes that David simply knew the rule in Exodus and applied something different–that is, it assumes the priority of the laws in Exodus to the story of David, and for that matter perhaps also the historicity of David as having had such a matter posed to him and having rendered a decision on it. In other words, Professor Berman fails to set out his assumption that the biblical texts are true enough to be relied upon for the historical proposition he advances.

Beyond all that, Professor Berman’s characterization of common-law decisions as not binding precedent is too simple. As common-law systems presently function, the decisions of higher courts bind the subsequent adjudications of lower courts at least to the extent those higher-court decisions squarely encompass the circumstances of the cases before the lower courts. Precedent is, contrary to Professor Berman’s characterization of it, often binding–particularly in American common-law jurisprudence. (See here for an interesting exploration of the role of precedent in British common-law court. Beware–it’s an academic work.)

This makes Professor Berman’s comparison of common-law adjudication to, say, the talmudic/gaonic mode of case-by-case adjudication somewhat inapposite, at least as he describes it, because the concept of binding precedent as we have it in common law simply wasn’t a factor. Yet this may simply be because, unlike a common-law system, there were not (at least after the dissolution of the Sanhedrin in the fourth century C.E.) multiple levels of subsidiary courts. Nevertheless, precedent is at least persuasive in the Talmud, where specific rulings are introduced in argument, with authority ascribed based upon the speaker of the precedent. That’s true on the very first page of the Talmud, Berakhot 2a, where even in the Mishnah a story is relayed concerning Rabban Gamliel’s instructions to his sons concerning the recitation of the evening Shema and how this established the outer limits of the law (so long as the first rays of the morning sun have not appeared, he tells them to recite), but not the “best practice,” which per the Sages is that the evening Shema should be recited no later than midnight.

Assumptions and Goals

More crucial, I think, to what is happening than any shortcomings in Professor Berman’s description of a common-law system and the application of that paradigm to what happened historically in the development of halakhah is that this
description doesn’t lay bare the assumptions driving the common law compared to those driving halakhic jurisprudence.

The purpose of binding precedent in common law is, these days, simply to establish predictable, uniform rules by which individuals and organizations can arrange and organize their behavior and understand the likely consequences for action in one or another manner. For the most part, judges engaged in the day-to-day adjudication of cases don’t understand themselves as engaging in a great metaphysical, epistemic, or revelatory pursuit. (At least, not since legal positivism came to hold sway in English and American law schools at right about the time codification of laws came into vogue in the Western world. The primary exception to this is, perhaps, jurisprudence undertaken on constitutional issues with an eye toward natural rights or natural law theories.)

But that’s not what is happening in halakhah. This is something that goes somewhat under the radar in Professor Berman’s article, for halakhic jurisprudence isn’t about just setting predictable rules and consequences for behavior. Halakhah is the working out of the implications of divine revelation at Sinai; it is, then, a spiritual pursuit, not merely an exercise in setting the laws and evaluating, independently of an ultimately reality, their merit.

The difficulty of this project is not lost upon the tradition, of course. From the basic mechanics of talmudic dialectic (I’m sure someone has counted the number of times stammaim or saboraim used the phrase, “then let him/the Mishnah say X” to argue that a specific text or interpretation is simply incorrect, and it’s got to be a LOT), to the self-critical observations about the faint connection of certain rabbinic rules to underlying biblical texts, to the self-aware story of Aknai’s oven where the rabbis reject a heavenly voice that presumes to tell them the correct interpretation of a case, there is clearly an understanding that the project of working out what exactly is in Torah mi-Sinai is a fraught process. (Rabbi Abraham Joshua Heschel’s Heavenly Torah, translated relatively recently into English from its original Hebrew, is focused on working out how the rabbis of the Talmudic period understood the project of the Oral Torah. It’s a dense work; you’ve been warned.)

Yet there is no sense that this is not the purpose of the process, at least in most Orthodox circles. Indeed, as much as disputes are enshrined in the core rabbinic texts, so too is the sense that the halakhic process is the working out of Torah mi-Sinai: it’s in Pirkei Avot, and it’s in Rambam’s introductions both to the Mishneh Torah and the introduction to his commentary on the Mishnah itself. And it is this purpose that goes without substantive mention in Professor Berman’s article.

Implications of the Purpose of Halakhic Interpretation

So, where does this all lead us? Accepting as binding and engaging in interpretation of halakhah carries with it at least some notion that halakhah is divine. Perhaps it is the underlying Torah text that one thinks is most closely divine, with subsequent interpretations less so. I imagine there are numerous variations on how this could go. But Professor Berman’s approach to his subject belies the purpose of the exercise.

This has its own consequences. For example, while Reform, Reconstructionist, Humanist, etc., rabbis largely don’t view themselves as poskim or dayanim–rabbinic interpreters or judges–they nevertheless engage these issues to varying degrees, because determining what to observe or not, what texts to use or not, what beliefs to preserve or not are all within the realm of determining what is at the core of Judaism. But Professor Berman largely writes all but Conservative and Orthodox Jews out of this process with mostly a wave of the hand, and speculates that even Conservative Judaism may have rejected the idea of the unity of the Jewish people.

And this, at bottom, is the problem with Professor Berman’s piece. He wants us to draw normative conclusions from the move to codification in both secular legal and halakhic realms. He wants us to be more flexible in our approach to halakhic problems (though without much more guidance than simply saying that–but then again, an essay isn’t enough space to work out that problem). But he also adopts a now-common trope in Orthodox halakhic reasoning that sees as identical Judaism and halakhah, and Jewishness and halakhah.

I do not think that approach will do anything to grow Judaism–certainly not in the United States, and likely not in Israel over the long run. In response to Professor Berman’s article, then, I think we need to continue to work out what it is that makes Judaism what it is–and to recognize that it is entirely possible that, as liberal Jews, we may find ourselves less and less connected to Orthodox Jews both by practice and, increasingly, by rationale, as we accept their Jewish identity while they do not accept ours.

How unfortunate.