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.


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  1. Pingback: A broadside at the halakhic process | A secular Jew in Indianapolis

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