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.

Chumash Mesoras HaRav

I’ve recently (as a birthday gift, and with thanks to Mrs. Secular Jew) come into possession the first volume of a new Torah commentary, Chumash Mesoras Ha-Rav, which is Hebrew Torah/English Translation + Targum Onkelos + Rashi + (and this is the selling point) a kind of cumulative and redacted commentary from the works and speeches of Rabbi Joseph Soloveitchik. Rabbi Soloveitchik was rosh yeshiva at Yeshiva University, among other things, and as much as modern Orthodox Judaism of the latter half of the 20th Century has had a central philosophical voice, that voice was his. (He’s known as “The Rav” in many Orthodox circles–hence Chumash Mesoras HaRav, or “The Chumash of the Rav’s Tradition.”)

The volume is nicely printed. The Hebrew and Aramaic texts are crisp and clear, including the Rashi script for Rashi’s commentary (clear Rashi script anywhere is greatly appreciated). It’s easier to use for a parshah-by-parshah study aid than as a continuous commentary, given how things are divided up; it’s easy to miss chapter divisions within the chapters of an individual parshah.

But on to the “good stuff.”

If you’ve been reading here for a bit, you know I’m not about to agree with everything Rabbi Soloveitchik had to say. Setting aside the differences I would obviously have with Rabbi Soloveitchik’s thought, I think the Chumash project here is interesting and worthwhile, but somewhat uneven. I think this is a function of the nature of the commentary, pieced together, as it is, from many, many different sources. An example suffices, I think, to get across my concerns.

Looking to Gen. 4 (most of the Hebrew in the volume is Ashkenazic yeshiva-style, so the book shows this as Bereishis), I started reading the story of Cain and Abel. Rabbi Soloveitchik’s commentary is…interesting. In one piece of commentary, we are told that “Abel’s very name implies vanity or foolishness,” as a non-firstborn that Abel’s role was to help Cain, and that Abel’s decision to become a shepherd was a violation of the social order. In another, we learn that Abel was weak because of his lifestyle–that is, he was unrooted and nomadic, and thus had no reciprocal relationship with the world upon which he could build and seek protection–and thus Cain was easily able to kill him. (Chumash Mesoras HaRav pp. 35-36.)

And this is where I think some of the unevenness lives. Naturally, the commentary goes on to acknowledge that Cain’s murder of Abel was a crime warranting punishment, and, as Rabbi Soloveitchik points out, that punishment–having the entire world, but no home–was apt for Cain, because it uprooted him from the strength he abused. (Chumash Mesoras HaRav pp. 36-37.) But, one has to ask: would Rabbi Soloveitchik, if personally pressed, have agreed that the commentary should be arranged so one very plausible interpretation of the comments together with the plain sense of the text was that Abel…well, sort of invited Cain’s treatment?

I’m not so sure of that. And I think the problem is that the first bit of commentary–about Abel’s voluntary disenfranchisement–is from a different source (presumably a bit of derasha given in Boston), at a different time (in 1972), than the second bit of commentary (from an article in a Yeshiva University journal in 1966).

I recognize, of course, that midrashic collections routinely mix and muddle approaches and intepretations. Taken in too unified a fashion, reading a classical work of commentary would likely result in some very wild results. But calling the commentary Mesoras HaRav – the tradition of the Rav–pushes this boundary a bit far. Perhaps it’s just a bit of bad billing; perhaps it should have been Mesoros HaRav–the traditions of the Rav? I’m not sure. As a lengthy meditation on sin, it’s certainly an interesting proposition–but it’s not a unifying one.

That said, would I recommend this? And will I continue to use it? Well, we’re fast approaching the end of the traditional reading cycle on Genesis, so if you’re looking to buy now, this is more a future than a present investment. As an entry into the sheer scope and variety of Soloveitchik’s work, it’s a good choice. But I’m not sure it would present a helpful, unified view of many of his philosophic works: the commentary grabs bits from not only articles and individual sermons, but also from book-length works of philosophical religious thought like Halakhic Man and The Lonely Man of Faith.

Put another way, I wouldn’t use this to teach a seminar on Soloveitchik’s thought. But for those already part of the “in” group–who have already read and are familiar with Rabbi Soloveitchik’s works, or who are accustomed to reading the variety of Torah commentaries as they are for what they are, it’s a useful source of insight in a form that can be routinely revisited over the years and with a more modern, worldly tone than many traditional commentaries. If only for that reason, it will likely find a spot in my messenger bag from time to time.

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.

Words have meaning

Jason Torpy, a board member of the American Humanist Association, in response to media coverage of the atheist church in the UK writes here about the use of “religious” or “spiritual” language. He argues that humanists are a bit too sensitive or “allergic,” as he puts it at one point, to innocuous or apparently inoffensive uses of religious language.

I appreciate his misgivings; I share some of them. But I don’t share all of them, and, more importantly, Torpy’s writing gives no real guidance on what might be acceptable or not.

For example, he points to a Franciscan blessing, “May God bless us with enough foolishness to believe that we really can make a difference in this world, so that we are able, with God’s grace, to do what others claim cannot be done,” and says that you could make the line more humanist–but why bother, because the God stuff doesn’t really make a difference.

Except that it does. That language matters because it attributes to someone else responsibility for the subject’s success or failure to do “what others claim cannot be done.” Indeed, on the language of the blessing, it is only because of God’s grace that “what others claim cannot be done” can be done.

Why, then, is that Franciscan blessing any more acceptable to Torpy than the “In God We Trust” slogan or the “under God” language from the Pledge of Allegiance? These are both invocations of God to which Torpy objects.

(For what it’s worth, Torpy’s distinction appears to be a willingness to accept some religious language unassociated with the “culture wars.” But his reading of the Franciscan blessing makes even this principle troublesome because his approval of the line is essentially that it’s not really religious.)

Humanists and atheists (these are not identical categories) are often far too quick to reject the value of many religious and spiritual forms and uses of language. But whether rejecting or accepting, the rationale for doing so should be clear and not based merely on what one finds personally inoffensive or not troublesome.

Some messianic speculation

No, don’t worry, still putting the “secular” in “secular Jew in Indianapolis,” I promise. Also, I apologize for the reduction in blogging pace: I’ve been doing some alumni stuff with one of my graduate programs, it’s been at night, and I’m not in my twenties anymore–so it takes me two or three days to recover from those nighttime programs.

I spend a lot of time listening to podcasts in the car, and as frequent readers know, I particularly like the New Books Network podcasts. There are always lots of history, religion, philosophy, etc., conversations with authors of interesting books that I’ll almost certainly never have time to read. The network recently published, on the New Books in Jewish Studies channel, an interview with Rabbi Elaine R. Glickman about her book, The Messiah and the Jews.

The beginning of the conversation struck me as really quite odd. Rabbi Glickman said that throughout all her schooling–she’s a graduate of HUC, so that’s five to six years of education beyond the bachelor’s degree level–she had really never encountered the Jewish concept of the messiah. That is, not the Christian concept or the concept as understood by messianic Jews (who, sorry, are Christian–trinitarianism is just not an accepted Jewish concept), but the messianic idea within Judaism, from the Davidic stories to Hasidism and onward.

I have to ask–how is that possible? What the heck were they teaching over at HUJ in the early and mid-1990s? I’m not sure how you get a graduate degree in Jewish studies without encountering, at least once, Gershom Scholem and/or Moshe Idel. Or how you study modern biblical criticism without also studying apocalypticism and the connection of the line of David to that concept.

I understand, of course, that the Reform movement was long antagonistic to traditional messianic concepts. But I have to say, I’m puzzled, unless Rabbi Glickman was simply overstating superficial coverage as no coverage.

Moving from that, after listening to the podcast I’m concerned with how Rabbi Glickman presented a reason for liberal Jews to believe in the messianic concept. I understand the desire to see a world that isn’t like this one–one that is better, where things get better, where there is what we would understand to be genuine justice and no suffering. And I appreciate Rabbi Glickman’s worry that many Jews could apprehend this concept as not requiring us to work for change in this world–though that would be a misunderstanding (usually from lack of knowledge, as Rabbi Glickman does note) of the import of traditional Jewish messianic ideas.

But wishing something were different does not necessitate a belief that there will be a time where all things are different. Or, put another way, if you believe in some form of messianism–whether merely in the idea that there will be some perfect age, or in the notion that the messiah will be a specific person whose appearance will radically alter reality and result in punishment–believe because you believe, not because the mere act of holding an idea is comforting.

I once listened to a Maurice Sendak interview with Terri Gross on “Fresh Air,” where he acknowledged that he was an atheist–he did not believe in a god or in an afterlife–but he wished he did, because he recognized that he wanted to and somehow believed that he might see his loved ones again. It’s a conflicting feeling for many, I’m sure.

But here is the conclusion I draw: I don’t have great insight into why it is we so desire an afterlife or a redeemer who will make the world perfect for us, beyond recognizing that one source of hope for the future can be a desire for relief from the suffering that is characteristic of the world in which we live. As a humanistic Jew it is more important to me that, whatever your belief, you act from love to heal at least some of the hurt. I don’t think there is more that can be asked.

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.

“Happy Orthodox”

Pardon the cliche, but, like all nice Jewish boys, I have to make sure I talk to my mother regularly.

The conversation turned to a sort of interdenominational/post-denominational program I’ll be going to in a few months’ time, and Mom said something along the lines of being sure there wouldn’t be Orthodox Jews there. I surprised her by saying that, actually, there would be a decent number of Orthodox folks there.

That sparked a little turn in the conversation where she mentioned that my sister used to ask what it was like being around our great-grandparents, who were Orthodox Jews. Mom said that it was different–her grandmother used to work hard cleaning out garbage cans, etc. (my great-grandparents owned an apartment building in Miami Beach), and she didn’t wear long sleeves.

Afterward, I spent some time thinking about how it is we draw lines regarding not only who is in or out of the Jewish community, but what practices, beliefs, and concepts are in or out. I think the thing that concerns me about where the various forms of Orthodox Judaism are headed is that, for the most part, the drive is toward more consistently strict interpretation and observance.

It’s not that I don’t understand the age and influence of concepts like siyag le-Torah (a fence around the Torah). I do. But it seems to me that the validity of that principle is dependent upon accepting the at-bottom-divinity of both the written and oral Torah.

Why? Because to do otherwise seems too prone to slippage in a system that derives the legitimacy of its behavioral requirements from the divine nature of its source. If you accept a compromise in the authority from which the law derives, you at some point undercut the very authority of the law itself. This fits conceptually with a system that says in one text that certain laws are like mountains suspended by a thread, but which also conceives of itself as engaging in a process of preservation and recovery of what the law was like in its original revelation.

So, looping back to my mother’s characterization of her grandparents as “Happy Orthodox” as opposed to what she sees today, is it simply in the nature of Orthodox Judaism to continue to drive toward a more conservative point? If so, does that mean that one of the major movements in modern Jewish life is simply driving itself to some form of fundamentalism?

For the rest of us, what does it mean to interact with texts that have such a conservative drive to them?

As a Humanistic Jew, I think of those texts as touchstones, necessary components of Jewish history: to be consulted, to be studied and understood, but fundamentally human in origin and thus not authoritative. Different from one another as they are, the texts we have mask dissent and diversity of practice and thought throughout Jewish history. That’s a necessary aspect of reducing things to text, in part because authors and editors are forced on a practical level to decide what things are in or out, and in part because authors and editors have agendas that they serve in creating texts.

That’s not to say that R. Joseph Karo, in developing the Shulchan Arukh, cynically included or excluded positions contrary to his own; I generally don’t doubt that authors believe themselves to be doing what they claim to be doing, so I don’t doubt that R. Karo was genuine in producing a code of what he believed was divinely required of the (at least non-Ashkenazic) Jewish people. But that perspective, well in-line with perspective of prior rabbinic scholars for nearly 1500 years, excluded various other positions and carried with it a particular view about the origins and legitimacy of the laws.

So what, then, to make of those texts? I think the best we can do is to recognize their value and know that we are capable of deciding and acting otherwise based upon what we see and know–and then doing so. To do otherwise is to set aside what has made Judaism what it is–the capability of its people to decide and define it–in favor of Judaism as we find it, which is only what other Jews have already decided.

Yom Kippur

City Congregation, the Humanistic Jewish congregation in NYC, has posted this interview with Rabbi Miriam Jerris, who leads the Society for Humanistic Judaism, explaining how Yom Kippur “works” for those of us who are Humanistic Jews. The SHJ has a video from Rabbi Jeffrey Falick, who is Rabbi at The Birmingham Temple, the first SHJ congregation, that also discusses it.

If you fast, I wish you an easy fast. And, in any event, I wish you a meaningful, constructive Yom Kippur.

They are short videos; give them a watch.

No, I’m not rebelling against the old man in the white robes

I’ve been reading Dr. Ron Wolfson’s Relational Judaism recently, and I was reminded of a trope I’ve heard from philosophers/theologians of liberal Judaism on several occasions (Neil Gillman is among them), as well as apologists for more traditional views of the divine.

That trope is: Atheists, humanists, agnostics, etc., don’t really not believe in a deity. It’s just that they don’t believe in the “Old Man in the White Robe with a Long Beard” version of God. Well, neither do we! And also, there are no atheists in foxholes.

It’s not that I think that we are all there is; it’s just that, absent knowledge that there is anything else, we are left to act as though we are all there is.

I also heard something like it just this morning during an interview with Mary Eberstadt on the New Books Network about a recent examination of the history of secularization. Eberstadt pegs secularization, in part, on disruptions to family structure and the cognitive results of that disruption upon the ability to “get” the traditional, paternal view of God in orthodox Christianity and “orthodox” Judaism. Eberstadt and the host of the podcast, Marshall Poe, take some shots at the New Atheists whom they, not without reason (see, e.g., Christopher Hitchens, whose writing I love but whose thought I often do not), accuse of not “getting” the communal values religious practice and community brings to the table.

So I want to take some time to state where it is, as a Humanistic Jew, I come from on these issues. And I want to start by making it very clear that I think the “there are no atheists in foxholes, and I also don’t believe in that kind of God” trope misses the point for me.

I don’t care that much about the question of whether there is a God. It’s an interesting philosophical question, but it’s not factually susceptible to proof.

More important is that the answer to that question is, essentially, irrelevant for me, because my observation of the world tells me that a view of God that places he/she/it directly active in history is something that I simply must reject. I cannot have faith in–that is, express allegiance and fealty to–a being that has power over the world and does not intervene in great trauma, causes trauma as a “test,” grants trauma to those who are able to “handle” it, is unable or unwilling to act to alleviate suffering, etc.

Proof, incidentally, is not citation to a tradition’s texts. It’s not showing me examples of how various traditions share common concepts. The “authoritative” text goes only so far as one accepts the authority of the text itself, which is why “John 3:16” signs don’t work for Muslims, Jews, Buddhists, Hindus, etc. And the common concepts are great–except that there are plenty of common concepts that we reject.

I also cannot have faith in a being that we are told we cannot understand, can describe only in the negative, and yet to whom normative prescriptions are attributed, which normative prescriptions we must obey in order to be moral.

That’s a long way of saying: God’s existence cannot be proved, God’s intervention in the world cannot be proved, and God’s moral authority cannot be proved. Thus, the idea that individuals must have faith that the prior three things exist, pay fealty to that idea, and act in conformance with the moral codes that are set out in service of that faith is an idea I reject.

I’m not someone whose only encounter with concepts of God is the traditional version. I spent six years of my life studying religion directly, and will likely be spending significant portions of the next four years doing so as well. I’ve flirted with plenty of ideas and approaches to religion, to faith, and to God.

But I keep coming back to the fact that there’s no proof, empirically or philosophically, and that we’re left to figure this out on our own. It’s not that I’m rebelling against the old man, or that I’ve had prayers denied. It’s just that, when I look at the situation with my own eyes, I can’t accept the idea that we should cede our own power over the world to the non-provable.

It’s not that I think that we are all there is; it’s just that, absent knowledge that there is anything else, we are left to act as though we are all there is.

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.