A photograph of an opened Torah scroll, housed at the Glockenglasse Synagogue

Hypotheses, Theories, and Biblical Criticism, or, How I Learned to Stop Worrying and Love “Higher Antisemitism”

(Warning–this is not a post written for the linguistically or intellectually faint-of-heart. If you’re a casual reader, you’ve been warned.)

In response to my post a couple of days ago about the implications of biblical criticism for Jewish thought–which was itself a response to Jay Michaelson at the Forward–the Society for Humanistic Judaism in its Facebook feed asked when a hypothesis becomes a theory. I’ve been mulling that over a bit, and came belatedly upon TheTorah.com‘s meme about what biblical criticism is:

Bible Criticism – From TheTorah.com

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Sometimes, the Truth Hurts. Can You Handle It?

Jay Michaelson of The Forward has a recent editorial, How We Know the Bible Was Written by Human Hands. In it, he reviews three recent scholarly works regarding the formation of the Hebrew Bible–the composition of the texts, their sources, and the canonization process. (I’m not 100% impartial to the review, as I studied a little bit with the author of one of the books discussed, but I’ve not yet read the books themselves.)

Michaelson is, I think, correct that the truth matters. More crucially, he notes that the truth hurts. There’s one problem with his thesis: no one knows it!

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Musings on Historical Approaches to Judaism and Problems of Is and Ought

DovBear has a discussion on his blog today about the implications of a “rational and historical” approach to Judaism. He quotes a question posed about the practice of tikkun leyl Shavuot–staying up all night on erev Shavuot to study–and whether, if someone will be exhausted and “lose Torah” as a result, it is better to “quit while you’re ahead” or stay up all night. The response to the question says, essentially, tikkun leyl Shavuot is only about 500 years old and its origin story with Rabbi Joseph Karo (author of the Shuchan Arukh) is sort of dubious, and none of the rishonim or Talmudic-era rabbis did it. So if you’ll “lose Torah” by staying up all night for the tikkun, the quote says, it’s better that you sleep your ordinary schedule than try to stay up.

DovBear doesn’t particularly agree with this (I’m soft-pedaling his response a bit).  Continue reading

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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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.

When we push too far, or, a nice reminder

In the traditional Torah reading cycle, we’re coming up on Parshat Vayeishev, which begins the story of Joseph. Over at Torah Musings, Gil Student has a post addressing the documentary hypothesis (the idea that the Torah has multiple, identifiable sources from which a redactor drew in assembling the final text; rundown here in Wikipedia) and one of the areas where there has been substantial scholarly debate over its application: the text of Genesis 37, which relates the story of Joseph’s dreams about his brothers and their decision to…well, it’s complicated.

Student, drawing on several scholarly sources, notes that the “traditional” scholarly view is that the contents of Genesis 37 come from two sources–J (the Yahwist–J makes a “Y” sound in German) and E (the Elohist). Each of these sources is generally considered to use certain ways of naming God (hence the J vs. E distinction), use certain characteristic vocabulary, hold specific subject matter concerns, etc., that help modern critics identify the provenance of particular passages in the Torah. Often, this approach makes sense: it makes sense of two creation narratives, replications and discrepancies in various narratives (the binding of Isaac, for example, and the substantial parallels in the stories of Abraham and Isaac), etc. Identifying source texts in this way often produces smoother narratives.

As Student points out, that’s not really the case in Genesis 37, and modern scholars have noticed this, with some critics arguing that the narrative as a whole reads much better than in its component pieces as assigned under the traditional version of the documentary hypothesis. Student argues, following Gordon Wenham, Rabbi Jonathan Sacks, and R.N. Whybray, that we ought to cast something of a jaundiced eye at the documentary hypothesis generally because of its breakdowns in areas like this.

There are parts of the story that might be well served by documentary hypothesis analysis; what the heck is going on, exactly, when Joseph is taken out of the well and sold in Gen. 37:25-29? He’s…taken by Midianites, who sell him to Ishmaelites? But the brothers see the Ishmaelites first and want to sell him. And where is Reuben in all this? Reuben only a few verses before discourages his brothers from killing Joseph, which is how Joseph ends up in the pit from which the Midianites take him, but then Reuben is apparently out of the picture.

That said, Student is right to remind us that such hypotheses, pushed too far, can break down. (I’ve long been somewhat skeptical of the use of the documentary hypothesis in all situations–for me, the Noah story made plain the problems with the approach.) This is the reason that newer approaches have come into use: various forms of literary criticism, more politically-minded forms of criticism (feminist, ethnic, economic), etc., have become more common over the last couple of decades, and many of them focus on the text as a whole.

But Student has an ax to grind here–specifically, he’s tagging Open Orthodoxy with this criticism (check out footnote 5 at the bottom of his post), and it’s the “mainstream” Orthodox “heresy” du jour. (Here’s Student’s recent op ed on The Forward’s website defending the RCA’s decision to publicly denounce the Open Orthodox folks.) And that is where his critique breaks down, because he is tagging modern scholarship (or really, one stream of modern scholarship) with circular logic while implicitly proposing another bit of circular logic: namely, that there is no human source (or no significant human source) for the Torah, which we arguably would know because it all fits neatly together and says so by its own terms. Or something.

In this, I think Student could be pulling a fast one on the reader–he conflates evidence with proof, and hypothesis with fact. Modern criticism accepts or rejects the documentary hypothesis because it does–or doesn’t–provide the best explanation for why a text or texts end up in a certain state, and various versions of the documentary hypothesis are critiqued on that basis. The texts are, ultimately, only ever evidence and never proof; all such scholarship is inherently argument.

And arguments pushed too far break down. For those of us who intentionally are not Orthodox, it likely goes without saying that Student’s perspective on the status of Torah as revelation is not, as a complete argument, as convincing as the modern scholarly arguments we have heard.

Just…a reminder for those who criticize arguments.

Nope, not how it works

So, my wife really enjoys listening to Matisyahu. I don’t. It’s nothing personal–I’m just not a reggae/house music-type guy. I know that Matisyahu is presently going through a different iteration of his music/identity at the moment, but his stuff generally makes me all hyper and weird-feeling, which is what my wife says about jazz.

I digress.

My wife (“Mrs. Secular Jew in Indianapolis” is too long a descriptor, don’t you think?) recently emailed these lyrics of Matisyahu’s to me, suggesting it might make an interesting blog post. (She’s right about that part, even if I think she’s wrong about Matisyahu’s music. But “de gustibus non est disputandum.”) These lyrics are from Matisyahu’s “Searchin”:

In the Earth, there are so many wonderful treasures.
And if you know where to dig, you will find gold, diamonds, jewelry, all kinds of treasures.
But if you don’t know where to dig, all you will find is rocks and dirt.
A rebbe is the geologist of the soul.
He can show you where to dig, and what to dig for, but the digging you must do yourself.

I looked at this and thought, okay, you’re sending this to me so that I’ll immediately disagree, or what? It’s a very Hasidic approach to things, that “A rebbe is the geologist of the soul/He can show you where to dig, and what to dig for.”

It’s not a Humanistic Jewish approach, and it’s actually in many ways an approach outside the historical norm for Judaism. Or, rather, it’s outside the norms for much of Judaism as it has existed, which has even since before the destruction of the Second Temple set forth the idea that the ability to understand the Torah “is not in heaven.” Deut. 30:12. Maimonides notes that, in the traditional sources, this means that no prophet may be accepted as bringing an innovation. Mishneh Torah Yesodei Hatorah 9:1-4. And this is in keeping with the Talmud’s discussion of Akhnai’s Oven, where Rabbi Eliezer called forth a divine voice (a “bat kol”) to prove his point in a halakhic debate, and such a voice did come forth–yet:

Rabbi Joshua sprang up and said, “It is not in heaven!” What does “It is not in heaven” mean? Said Rabbi Jeremiah, “Since the Torah was already given at Mount Sinai, we give no heed to a heavenly voice.”

b. Bava Metzia 59b.

This is part of what makes Matisyahu’s lyrics here troubling to me–and what made Hasidism so troubling to its opponents. (Naturally, politics played a role, but I’ve somewhat naively, perhaps, come to the conclusion that sometimes we should accept that what people say they mean is what they really mean.) The idea that there must be some intermediary between humans and the divine is very much at tension with many Jewish sources, and indeed with the idea that we should engage in Torah study.

This is all the more interesting to me because, on top of reading for my rabbinical school coursework, I’ve been reading Samuel Heilman’s and Menachem Friedman’s The Rebbe: The Life and Afterlife of Menachem Mendel Schneerson. I remember, way back in the mid-to-late 1990’s when I was a master’s student, wondering along with my graduate advisor what exactly it was that turned an otherwise seemingly very conservative form of Judaism to a conclusion regarding the potential messianic status of a person that was so eerily (from the outside) like where early Christianity ended up.

Heilman’s and Friedman’s book has some of the answer to that, which is to say that they are similar but not nearly identical phenomena. But what is more interesting–and really, much more illuminating–is their discussion of the status of the Rebbe as spiritual mediator, and that the Rebbe (and the Rebbe before him) were in fact more capable of serving their people and addressing intercessory matters after their physical deaths.

Needless to say, this is not a great set of Humanist ideas.

So, my wife got her wish–a blog post on Matisyahu lyrics. But I have to disagree with his lyrics–we are, I think, left to find where to dig and to do the digging ourselves.

Every Day I Write the Book

So I read about TheTorah.org on Tablet Magazine’s website just now.

On the one hand, I want to be impressed and happy. Really, I do. The idea that modern critical analysis of the Tanakh might finally be bubbling its way through more than just the more secular-academic inclined pieces of the “orthodox” Jewish world is exciting.

But, as the article points out (though in slightly saltier language), talking ain’t doing.

Will this be just talk? Or will this have practical, “normative” results? If the effect of this is to have verbal acknowledgement that the Tanakh has been people all along, but we see no changes in “orthodox” practice and belief, then I’m concerned that it’s empty talk.

The article’s discussion of David Weiss Halivni’s work is, I think, a point to consider. Halivni was a professor for quite a long time at JTS–until JTS decided to ordain women. Why was that the dividing line if the Oral and Written Law are the results of human understanding?

Clearly, of course, I’m not going to agree that there is divine inspiration in our tradition’s core canon; I’m a humanist Jew, after all. But it’s not unreasonable to expect to see change along with the adoption of a new approach, and I think the proof will have to be in the pudding.

New-ish Jewish

I really enjoy reading Tablet. Among their regular features is a weekly column by literary critic Adam Kirsch, who is doing the daf yomi thing and writes stories with interesting insights, etc., from one or another of the dapim he’s read the prior week.

The article posted today discusses a section of tractate Pesahim where the question of when observance of a holiday begins: does it start the prior afternoon, or earlier? It turns to a discussion of the role of custom in determining the start time, and favors a stricter (read, “earlier”) start time where custom dictates as much, and requires that someone carry over the stricter time when they start the day in a place where the stricter custom prevails, but move on to someplace where a less strict custom prevails. (I’m simplifying here, of course.)

In pondering this, Kirsch expresses concern that maybe modern Jews–that is, non-“orthodox” modern Jews–who don’t live according to halakhah are engaging in “defective” Judaism, and notes that the rabbis might point out that schismatic sects who deviated from rabbinic rulings are mostly gone. That is, Kirsch worries that by deviating from the historical “norm,” we are not really building “an original creation with its own integrity” but are instead fatally wounding how we engage in Judaism.

I don’t share his concern. I’ve written here before that I don’t like the term “Orthodox” because it carries with it not merely the implication, but indeed the concession that Jews who do something outside the rabbinic stream are inauthentically Jewish. That term and indeed any approach to Judaism that views rabbinic Judaism as the only authentic form of Judaism, with all others as compromise positions or worse, strike me as inappropriate because they misapprehend what has been happening the whole time: Jews have always defined Judaism, and there has always been a stream of thought–even among the early rabbinic traditions–that has recognized this.

Want to see?

Mishnah Hagigah 1:8: “The laws of Shabbat, the three Festivals (Sukkot, Pesah, Shavuot), and sacrilege are like mountains that hang from a hair, since they have scant scriptural basis but many laws.”

This is pretty self-aware stuff. It’s a recognition that those additional laws came from somewhere. (While this is an isolated example, it’s not the only one. Come on, man–it’s a blog post! Go read the recent translation of Heschel’s Torah min Hashamayim if you want a full analysis.) And it makes the point (along with the sugya Kirsch discusses) that we’ve been making Judaism the whole time.

So, are we compromising on some “true” form of Judaism, as Kirsch worries? No, I don’t think we are. The more we acknowledge that, and the more we put effort into making Judaism–and the less effort we put into fretting that we’re somehow unmaking Judaism in the process–the richer Judaism will be.

We’ve always made Judaism what it is, and we will continue to do so. It’s probably the central insight of much of modern study of Jewish history: when you read the texts for what they show, rather than what they say, you get a very different picture of Judaism. That’s the central insight of Humanist and, before it, Reconstructionist Judaism.

Kirsch’s concern–that the rabbis might respond with “we’re still here, and the others are all gone”–is a valid one. But I think it’s misplaced if we spend our time as modern Jews worried about and measuring ourselves against Judaism-as-it-has-been. Judaism survived in its present forms because it continued to develop. Let’s focus on making Judaism what it will be, and not cede ground to the idea that we aren’t measuring up to what came before. Judaism–in all its forms–will flourish that way.

Halakhic Cargo Cult?

Driving into work today, I was listening to yet another podcast episode of classes on the Mishneh Torah, and the class is (or the recordings are) discussing some very early chapters discussing the foundations of halakhic observance–specifically, the commandments that require individuals to love and fear God, and what it means to do so. In explaining what it means to love God, Maimonides sets forth the prevailing view of the composition of the universe in his time, with the earth suspended in the middle of a series of nine concentric spheres, in which are lodged various celestial bodies (i.e., the moon, the sun, planets, constellations, etc.).

The rabbi teaching the class acknowledges that this is really not an accurate view of the universe, but that the view of the universe we have should make us that much more appreciative of God, because look at how complex it is!

I’ll set aside the tangled questions of modern science, intelligent design, and the accuracy of the Bible’s account of history. (The rabbi teaching the class moves seamlessly from talking about the big bang to assuming the biblical flood occurred about 3500 years ago, which is kind of whiplash-y.) Listening to these classes brings to mind a question that also troubled the students in the class: Maimonides was wrong about the science, so was he wrong about other things? The rabbi said, no, the science isn’t there to prove the law, but rather as an illustration; halakhah is one thing, the science another.

On the one hand, this is probably right as far as it goes–but I hesitate to take it too far, because it seems to me important to recognize that in some ways, individual pieces of knowledge in different subject areas are somewhat interdependent. We risk behaving like a cargo cult if we strip from our understanding of one area of knowledge the other areas that underlay the one.

So I think it’s important, as a humanist Jew, to stop and look at the ideas that appear before me and ask: can this make sense without the conceptual basis that underlay and gave rise to the idea? That is, is the idea independently valid apart from its conceptual basis–or will I be like a cargo cultist, turning knobs on a radio and expecting an airplane to land, without knowing how any of it should actually work? And after making that decision, supposing the idea stands on its own, ought I still adhere to it?

It’s a challenging question for a humanist Jew. Because even rejecting revelation as the source for things like kashrut doesn’t necessarily mean we are free to stop recognizing those practices in at least some contexts–because they remain practices that are culturally integral to Jewish identity, if not to the actual practice of most modern Jews.