Nov. 9, 2002
Jewish legal experts have created a new institute that will educate jurists and others about 2,000 years of Jewish law and promote the application of the teachings to contemporary legal disputes and other modern-day issues. The launch of the Washington-based National Institute for Judaic Law was marked Tuesday night with a kosher dinner at the Supreme Court attended by 200 people, including three Supreme Court Justices - Ruth Bader Ginsberg, Stephen Breyer, and Antonin Scalia.
US President George W. Bush sent greetings and applauded the institute for promoting an "understanding of Judaism's rich tradition of legal thought." "As we face new challenges and welcome new opportunities, our society must continue to promote good character and strong values. Through the study and teaching of Jewish law and philosophy you are contributing to a growing culture of service, citizenship, and responsibility in America," Bush wrote. Scalia, in a letter to the institute's founder, Noson Gurary, wrote that "Jewish law is certainly one of the oldest and most highly developed systems" and explained why the comparative study of legal traditions was beneficial.
"The idea is to make Jewish law more accessible to everyone," said Washington lawyer Alyza Lewin. Both Lewin and her father Nathan Lewin are helping establish the institute. Last year, Alyza Lewin filed a brief to the Supreme Court based on the Talmud's take on capital punishment when the court was readying to hear a case on the constitutionality of the electric chair. "Legal scholars often like to know what other legal traditions have said about certain issues," said Alyza Lewin.
Filing that kind of opinion is only part of the institute's mandate. It will also promote the teaching of Jewish law, develop curricula on Jewish law that can be integrated into traditional law school courses, and serve as a resource for anyone wanting to know what the vast Jewish legal tradition has to say on various issues. The institute's first project, already underway, explores how Jewish law can be applied to modern-day issues surrounding corporate ethics, an idea spurred by the recent corporate scandals involving Enron and Worldcom. Gurary, who teaches at the State University of New York at Buffalo, thought up the idea of the institute about nine months ago.
"By demonstrating the philosophy of Jewish law and its moral values, we can bring a little beacon of light in this world," Gurary said. "I think this is what we need now, in this day and age."
The Emergence of Jewish Law in Postmodernist Legal Theory
by Suzanne Last Stone
I. Introduction: The Halacha in Western Thought
II. The Postmodern Turn to the Jewish Legal Model
III: Uncoupling Jewish Law and Postmodern Thought
IV: Conclusion: The Postmodern Temptation
Anyone who is about to compare the universe of normative halachic discourse with that of the present postmodern culmination of Western discourse, should have a beard or, failing that, a French accent. I possess neither. But I do have a particular expertise in this topic, one that grew out of an attempt to answer a simple question: why, as I was reading through the American law journals, including Harvard's own, was Rabbi Joseph Caro, the great sixteenth century codifier and mystic, emerging as one of the major American legal theorists of our day? The answer to that question, as it turned o ut, centers on the meeting of Jewish law and post-modernity.
I. Introduction: The Halacha in Western Thought
In poignant contrast to the prophets' vision of Israel's destiny, by virtue of its possession of the Torah, as a light unto the nations, much modern Jewish historiography, like rabbinic writing about galut, or exile, is animated by the idea that the cultures of the surrounding world in which the halacha alternately has been set are not receptive to its basic themes. Exilic culture, in this view, has posed a profound challenge to the halachic universe, a challenge overcome by a few great Jewish thinkers who were able to translate some of the traditions of rabbinic Judaism into the language and categories of the philosophers of their times or, more commonly, by the withdrawal of normative rabbinic Judaism from participation in the intellectual life of the larger world. This portrayal of the fate of the "halacha in exile" usually begins with the paradigmatic story of rabbinic Judaism's confrontation with Hellenism, which led to the rabbinic ban on studying Greek wisdom, and continues to the present crisis in halachic normativity engendered by modernity.
How far alienated rabbinic Judaism and Hellenism were from one another is still a matter of debate. Certainly, the world-view of the halacha was not only seen as alien to but inimical to that of Christianity,[ 11] the first to seize upon the term "modern" to distinguish itself from the pagan past. Whereas ancient pagan intellectuals and Roman jurists sometimes praised Jewish tradition and Jewish law, with the ascendance of Christianity and under the influence of theological debates, Western culture, all too often, portrayed the halachic mentality as obsessively literalist, excessively formalist, crassly particularist, and preoccupied with the idea of law as coercion.
The encounter of the halacha with the secular Enlightenment, which gave birth to what we now call the modern age - that immense "flight from authority" and the stranglehold of tradition and the past - was far more tragic from the perspective of Jewish law. Despite Christian vilification of Jewish law, the halacha itself flourished in the premodern period when rights were a function of corporate membership, enabling Jews to exercise communal and legal autonomy. The contraction of the realm of halacha to an increasingly narrow sphere is almost exclusively attributed to the post-Enlightenment Jewish emancipation  and the consequent release of Jews into a culture dominated by secularism and in possession of a modern historical sense. Secularization led to the loss of belief in divine command as part of a natural cosmology. The acquisition of an historical consciousness led to an altered conception of historical time. The present was no longer perceived as the "presence of the past" and of tradition but, rather, as an independent dimension of time, giving rise to the question whether Judaism's past had meaning for the changing present. The investigation of that past through the application of the new historical method, although originally motivated by the very sense that the tradition was normative, ended with the perception that the halacha belongs to an ancient, distant, and essentially foreign world, the normative status of which was, at best, questionable. Although new theologies of Judaism developed to speak to modern man, only "the community of the faithful", increasingly seen as an exotic group, continued to live within the four ells of halachah. For its part, modern liberal culture, unlike its predecessors, has maintained a respectful silence on the topic of the halacha. But it also has contributed to the marginalizing of the halachic universe, by reconceiving the halacha as solely a private religion and not a functioning legal system.
It is no small irony that Salo Baron's monumental attempt to dispel the "lachrymose" conception of Jewish exilic history, and substitute hatred of Israel and love of Israel as the two poles of Jewish life, was punctuated by the Holocaust. Yet partly in reaction to that cataclysmic event, which fueled a growing intellectual disenchantment with modernity and the ideas of the Enlightenment, contemporary cultural attitudes toward Jewish literature and law again have undergone a sea change. Midrash, the early rabbinic activity of scriptural exegesis, long ignored by Western scholars, is now cited as a model of contemporary literary discourse. In similar fashion, American legal culture recently has embraced the halachic system as a model of legal discourse. Legal writings are sprinkled with citations to midrash, various Jewish sources take the place of more conventional hypotheticals, and obscure episodes from Jewish law and history are studied to extract their import. At least three articles are devoted to analyzing the sixteenth century attempt to reinstitute biblical ordination, in which Rabbi Joseph Caro played a major role - an episode of which many people versed in the halacha are not even aware. In stark contrast to earlier Christian criticism, contemporary legal theorists now describe Jewish law as anti- hierarchical, anti-formalist, communitarian, egalitarian, a model of feminist jurisprudence, and devoid of any idea of law as coercion. In short, the halachic system has come to be seen as embodying precisely the qualities that American legal society requires at the dawn of a new millennium.
The contemporary embrace of Jewish law, like the embrace of midrash, is the product of the penetration of postmodern thought into the American legal academy. At first glance, the two basic premises of post-modernism seem incommensurable with the halacha. The post-modernist looks to mortal persons, socially constructed and situated in communities, whose needs and aspirations are constantly in the process of revision and becoming, as the sole source of meaning in the world. Moreover, the basic thrust of post-modernism is to dispel the idea that law is a reflection, a mirror, or a representation, of God, nature, truth, reality, or some other supposed object. The halacha, on the other hand, is traditionally thought to be deeply rooted in the idea that law is a reflection of the revealed will of God, a will that supersedes changing human perceptions and desires. Yet, several scholars of Jewish law and literature also contend that post-modernist ways of thinking about truth, language, law, and legal interpretation, far from posing profound challenges to Jewish religious normativity, in fact were anticipated by the rabbinic tradition. Indeed, they point out that the reason Western culture has been so inhospitable to the rabbinic perspective until now is that Western culture has been dominated by the platonic metaphysical tradition, incorporated into Christianity, and then into the Enlightenment - a tradition diametrically opposed to that of rabbinic Judaism. Because the basic goal of post-modernism is to criticize this tradition, and to reverse many of its assumptions, a common ground has finally been created between rabbinic and Western intellectual thought, despite their separation in time and space.
In this lecture, I would like to show how a ground has been created for a meeting between the halachic universe and that of post-modernity and to explain why I believe this meeting ground may prove to be extremely narrow. I will review how the penetration of postmodern thought into the legal academy has shaped various debates about the nature of law and show how these debates have led American legal theorists to explore the halachic tradition as an alternative model of law. I then will reexamine the contention that the halachic tradition has a special affinity with post-modernity. Finally, I will offer two quasi-fictitious accounts of encounters between representatives of the rabbinic tradition and representatives of other legal traditions, one, a contemporary exchange between an Orthodox halachist and an American legal theorist; the other, an exchange recorded in the Talmud between the rabbis and several Roman jurists. In so doing, I would like to dramatize the challenge posed, for those who are concerned with the perpetuation of halachic normativity, by cross-cultural encounters.
II. The Postmodern Turn to the Jewish Legal Model
Rostovtzeff, in his comprehensive review of the many theories offered to explain the decline of the Roman Empire, finally concluded that the strongest factor was a change in people's way of perceiving the world. It is far too early to tell whether post-modernity implies a changed way of looking at the world and of structuring experience, signaling the passing of the modern era, or whether it is simply a set of thematic concerns. Indeed, the postmodern historian might assert that the division of history into such periods is itself a product of modernist thought, with its linear, teleological, and progressive conception of time. Instead, there are simply incommensurable cognitive frameworks, all coexisting in time and even held at times by the same person. I shall not offer any comprehensive definitions of post-modernism here; rather, I would like to describe briefly an intellectual mood current in the American legal academy, focusing on those concerns that explain why the Jewish legal model has caught its eye.
Post-modernity in American law is the culmination of a much longer conversation that has taken place during this past century. Its roots are not only in the American legal realists, who challenged the idea that law is neutral or objective, and the legal pluralists, those who studied non-state, nonofficial law, but also in European intellectual thought, a thought informed by the work of many Jewish intellectuals who, though responding to a broad spectrum of issues, were also concerned with the fragmented identity of the Jew released into modernity, and with the implications of the Holocaust.
It is precisely with the close of this century that witnessed the Holocaust and continues to witness other atrocities, that the critical lens of law has turned so sharply on modernity. Modernity is a form of thought and a set of ideals identified with the Enlightenment project of structuring civil life around new forms of regulation, such as the modern nation state, and around emancipation, which stresses the individual as a free and rational person, one capable of sifting inherited notions through the crucible of human reason and thus able to substitute public reason for community prejudice. The dilemma of modernity, as one writer has put it, is not only that it failed to reconcile justice and autonomy, but with it, came "an unsettling deficit of meaning". This sensibility, when coupled with new notions of the self, of truth, of language, and of interpretation, emerging from across all academic disciplines, places the political ideals of the Enlightenment in a new light.
Consider the ideal of individual emancipation, which first promised social transformation through revolution, and then through social reform. Now the emancipation of the individual from the group is seen as leading to the loss of the ties that generated meaning in life. In place of family, church, or the "imagined community of the nation," citizens are now clients of faceless state bureaucracies.
Or consider the ideal of the rule of law, a government by rules, not men or power. The rule of law assumes that one can formulate objective, neutral, and universal rules and then apply them in concrete, specific cases. Borrowing from post-structuralist philosophy, legal theorists are disputing the possibility of separating rules from the contexts that give them meaning, or of extracting a single rule from a written text because there are multiple, culturally-conditioned, meanings we confer on a text.
Or consider the ideal of individual rights, the cornerstone of American liberal jurisprudence. Rights theory assumes that individuals are free and rational subjects who surrender some of their rights to achieve collective goals such as security. But this premise is at odds with new notions of the self as lacking a separate identity. All objects, whether the world, a text, history, or the self, are the product of human interpretation -of the meaning bestowed on them. The post modern self is an artifact that is constantly in the process of creation and revision through meaning-giving activity that happens through social interaction and occurs in a community. From this perspective, rights theory impedes community and interpersonal relationships and is unable to provide the meaningful goods that flow from the community to the person.
Or consider the centralized legal order of the modern nation-state. Such legal orders recognizes as "law" only the law of the state, and its hierarchically-arranged institutions, a law uniform for all persons and exclusive of all other law - and, therefore, requires those sub-communities within the state's borders who possess different laws to frame their petitions for legal autonomy in terms of private rights of association or religious liberty. Yet, if law itself only exists in relation to a meaning-producing community, the law of the sub-community, such as a religious group, is as much law as that of the state.
These arguments about the limits of knowledge, the nature of interpretation, and of the self, taken together, imply that the institutional authority of the historical state to declare a single, objective law, and to enforce it through coercive means, is illegitimate. There is only a common text - the Constitution - and a variety of communities that bestow meaning on that text in the present, in light of their own communal understandings. The implications of this position is either the dismantling of the state, in favor of localized law, or a new attempt to support the authority of the historical constitutional enterprise. This is the traditional task of constitutional discourse: To supply the theoretical foundation for the authority of the Constitution as self-government over people who did not participate in its creation.
This is why contemporary legal theory is preoccupied with the question: How can law endure over time? The answer some theorists have given, consonant with the thrust of post-modernity, is that law is not a system of institutional order or social control created by unrelated autonomous individuals who traded their rights for security; nor is it a system of abstract, objective rules. It is a system of meaning, a perpetual conversation on the obligations and aspirations of a particular community. Law retains its authority only if its interpreters participate in the process of creating legal meaning for this community, in light of its history and in light of a vision of where its law can take it.
I would like to focus on one of the more powerful statements of this position, that of Robert Cover. Cover begins by describing two contrasting ways of thinking about law. In what he calls the paideic world of the nomos, law is a resource in the larger effort of a community to endow life with meaning. A community comes together and creates a law that it then comes to see as a commanding object, a "faithful other," a set of reciprocal obligations addressed directly to the community that reflect the community's common goals. In this world, adherence to these reciprocal obligations flows from commitment, not coercion, because people recognize the needs of others and respond to them. In what Cover calls the imperial legal order of the liberal state, in contrast, norms are abstract, universal, and enforced by hierarchically-arranged institutions, in the interest of social control. When the state declares the law it is not actually creating law; it is killing the law of the leg al community whose vision of the Constitution is rejected. We ought to affirm the pluralist nature of law. And, if the state must on occasion keep the peace, it should participate in the process of creating legal meaning by viewing legal interpretation as an effort to aid the larger American community to understand the obligations of its law.
This vision of the nature of law is a creative synthesis of post-modernist themes with those extrapolated by Cover from Jewish law. For Cover, Jewish law presents a conceptual model of a legal system in which law is entirely a system of meaning, rather than a system of institutional order or social coercion. After all, Jewish law has survived for over two millennia with out a state and its coercive institutions, and without even a Supreme Court. Accordingly, Cover's project, and that of several other contemporary American legal theorists, is to isolate the structural aspects of the Jewish legal system that, in their view , may account for how its law has endured.
Cover links the halachic system's ability to endure without a Supreme Court and without coercion to three critical structures. First, it developed a legitimating principle for a non-hierarchical system of authority that permitted a remarkable degree of interpretive and even, in his view, behavioral pluralism. This principle is the talmudic tradition that, as the legal disputes between the schools of Hillel and Shammai proliferated, a heavenly voice announced: "These and these (that is, both) are the words of the Living God". This principle is often linked in contemporary writings to another famous talmudic account of a heavenly voice, the Oven of Akhnai story, which tells of a legal dispute between the majority of sages and Rabbi Eliezer ben Hyrkanus. As the argument continued, a heavenly voice proclaimed: "How dare you oppose Rabbi Eliezer, whose views are everywhere Halachah". To which one of the sages replied: "It is not in Heaven," a scriptural proof-text later glossed in the Talmud as meaning that, once the Torah was given, divine voices concerning the law have no legal significance, for God already wrote in the Torah: "You must follow the majority." These two talmudic accounts are jurisprudential cornerstones of the halachic system - and there is, of course, a vast literature that addresses their implications. In this lecture, I merely highlight the role these central narratives of Jewish law play in contemporary interpretations of Jewish law.
American legal theorists are drawn to these two talmudic statements because both seem to confirm precisely what contemporary theory is trying to show. A common text cannot prevent multiple, even conflicting, interpretations, nor can it order among them. There is no single, objective law or uniquely correct answer to a legal question; there are simply a variety of competing, committed perspectives - that is, even contradictory legal positions may reflect divine truth. Nor is there any need to arrange law hierarchically and insist on one law uniform for all. The Jewish legal system affirms the wealth of contradictions, of differing views, and recognizes the pluralist nature of law itself.
Indeed, these statements are taken as pointing to the development of a legal system that is remarkably in tune with the basic themes of post-modernism. Rather than strive to discern a single authentic divine intent, rabbinic interpreters affirm that there are multiple truths. God becomes, in effect, the absent grantor of a legal system consisting of a law, the Torah, and a community of interpreters who are consciously aware that they are the generators of the meaning of the law.
What then are the centrifugal forces that hold such a pluralist legal system together? Cover focuses on the internal organization of the law around a set of obligations addressed directly to the law's subjects. This internal organization creates a community by imposing responsibilities directly on individuals for the well-being of their fellows. A legal system organized around individual rights, by contrast, impedes the creation of a community; it fosters, instead, competing interests. These rights are not even intelligible, moreover, unless we know to whom they are addressed and by whom and how they will be satisfied. In the halachic system, however, the law addresses each community member directly and specifies the obligations of one to one another and to God in detail so that community members can perform the law without constant resort to judicial intermediaries. And because community members must refer to the law in all social interaction, coercion is unnecessary - failure to perform the law is the equivalent of abandoning the community.
The appeal of the halacha's organization around a system of reciprocal obligations is that such a system posits a view of the self consonant with the post-modernist conception of the self. The post-modernist self is not a free, self-interested individual, but rather a self whose identity is constructed through meaningful relationships with others in a community. Yet, the post modernist self is also portrayed as one that is always in progress, a self composed of desires and aspirations, and who associates with others in order to change herself and the world around her. It is here that Cover makes an especially interesting argument. He contends that in order to so strongly bind the individual, a legal system organized around reciprocal obligations must create more than a community; it also must have an internal aspect, a telos, that focuses the innate desire of humans to transform themselves and the world around them into collective activity in the present.
How does Jewish law respond to the innate desire of the self for transformation? Maimonides's philosophical statement of the halacha, from which Cover's views were drawn, tells us that Jewish law is divine because, unlike conventional forms of governance, all the Torah's laws, whether ritual, civil, or penal, have a single purpose: the divine goal of aiding the community in its striving for spiritual, intellectual, and social perfection. The desire for self-perfection - which we can also describe as the desire to emulate God - can be understood as a religious analogue to the post-modernist idea of the innate desire of humans for transformation. Maimonides describes the command of emulating God, as the organizing principle of the Torah. The attributes of God are not descriptions of God; rather, they are intended as objects of motivation for humans. As one Maimonidean scholar put it, in terms quite reminiscent of post-modernist descriptions of the self, because humans are creatures in process, and divine perfection is infinite, not determinate, the Torah's demands of human perfection are not so much prescribed goals as "objects of motivation, striving, aspiration, and desire." Jewish law strongly binds its community members because the doing of the law is perceived to be a step on the path to communal perfection. American law, too, Cover implicitly argued, must respond to the desire of its community members for transformation, by developing a theory of justice that can support the authority of the state.
It is these three structural aspects of the halachic system that were interwoven by Cover to create a separate account of the nature and possibilities of law in postmodern American legal society, an account that continues to play an important role in American legal theory.
Significantly, those working from the Jewish studies' side of the academy also contend that it is these particular structures of the rabbinic legal model that are relevant in a postmodern world. Both sides call attention to the idea of law as a coming together of a community, resulting in a law that is an immutable and enduring object comprised of a set of commandments addressed directly to the community members. That coming together may be described as a process of externalization and then objectification of the community's aspirations, or as a binding act of covenant in which the community agrees to accept the law as supreme authority in perpetuity. They both also call attention to the interpretive model of the early rabbinic tradition - in which this permanent text is passed on from one generation to the next, free from the constraints of a search for authorial intention, thus enabling each generation to produce meaning from the text, as the age requires.
III: Uncoupling Jewish Law and Postmodern Thought
I shall not address here directly why I believe the halachic model is of questionable utility for a secular legal society. Instead, I wish to focus on the contention, underlying the contemporary turn to the Jewish legal model, that the rabbinic tradition is particularly suited to the categories of post-modernist thought, despite the two positions' separation in time and cultural contexts.
In his provocative study of ancient gnosticism, Hans Jonas also drew a comparison between two movements widely separated in time, space, and cultural contexts: ancient gnosticism and modern nihilism. The possibility of such an "affinity or analogy across the ages", he suggested, would not be so surprising if we consider that the cultural situation of late classical antiquity "shows broad parallels with the modern situation." The possibility of just such an affinity between our age and that of late classical antiquity, the period not only in which gnosticism emerged but also in which rabbinic Judaism took on its distinctive shape and produced the formative sources of the halacha, has been asserted by so many thinkers who I value that I am tempted to agree that there is a definable link between the two. As Jonas himself noted, Spengler declared the two ages "contemporaneous", in the sense that they are "identical phases in the life cycle of their respective cultures." The great classicist Dodds appropriated Auden's description of modernity as "the age of anxiety" to describe the period of late classical antiquity that witnessed the collapse of the polls, with its unleashing of atomized masses that never shared in that tradition into the Roman Empire, and the collapse of the Greek humanist view of a rationally ordered, neutral cosmos. The humanist ethos can be compared to that of modernity: a civilization dominated by impersonal principles, state bureaucracy, technology, and materialism; not interpersonal relationships and community. The loss of faith in humanism gave rise to a variety of religious attitudes, including Christianity as well as gnosticism, which Jonas convincingly analyzes as the ancient analogue to subjectivist arguments of traditional moral skepticism.
Loss of meaning, if not faith, in reaction to the conditions of the modern technological state is also, as we have seen, a recurrent motif of post-modernist thought. That "an analogous situation has given rise to analogous responses in the past" may explain the startling resemblance of aspects of post-modernist themes to those of pre-modernism. Post-modernism is usefully defined, however, as a mode of thought that departs from modernism but without reverting to the pre-modernist emphasis on cosmology, as opposed to anthropocentricism, and on an epistemology based on authority. Accordingly, I should like to focus on the themes of cosmology and authority in exploring the similarities and differences between the two positions.
The post-modernist distance from cosmology is perhaps best exemplified by the fact that contemporary legal theory, in turning to the Jewish legal model, has posed the question it seeks to solve in an inverted manner. Contemporary analyses begin with the premise that the internal structure of the law creates a system of legal meaning that allows the halacha to survive without exercising coercive powers over its members. As compelling as this vision of the universe of the halacha may be, the halachic system's internal viewpoint is that the law is meaningful because, as the product of
Israel's encounter with God at Sinai, it is divine law. Whether the obligation to obey the law stems from divine command, imposed hierarchically from above, or from a consensual agreement between two covenanting parties - a question the rabbinic tradition itself raises but does not resolve - the meaning of the law resides in its divine origin.
As divine law, it is incumbent upon legal institutions to enforce it. True, this goal is in tension with the more idealized construction of the law presented in the Bible, which presents all forms of power and its exercise as the domain of God. But the halacha achieves an organic unity between this idea and the view that it is a divine imperative to preserve social order and enforce the normative law. For this reason, Jewish law did not lack for nearly two millennia coercive institutions. Even leaving aside unconventional coercive institutions, such as divine accountability, a biblical and rabbinic thematic, excommunication, literally, expulsion from the community -a form of legal death -; accusations of heresy; as well as the pressure to conform that a community organized around the shared responsibility of its members invites, prior to the post-Enlightenment destruction of semi-autonomous Jewish communities, and the consequent contraction of the realm of halacha to a faithful remnant, rabbinic courts and their governmental substitutes were able to, and did, wield a variety of coercive measures, including physical punishment.
The halacha's origin in the encounter with God at Sinai does not necessarily imply that cosmology plays a significant part in the later development and administration of the halachic system. Thus, the question remains whether the halachic system is consonant with post-modernist categories of thought. Accordingly, I should like to return to the two basic and intertwined themes of post-modernism, which break with both modernist and pre-modernist categories of thought, that I identified above. First, law is not a representation of God, truth, science, or some other supposed object. Second, we must rely on ourselves, persons whose needs are constantly in the process of revision and change, to generate meaning from the law and achieve the "reenchantment of the world." In other words, the divine author of law is dead; He has been replaced by a community of interpreters who are the sole producers of meaning in the present.
The question of the absence of the divine author is not new to the rabbinic tradition. It simply has not been discussed in precisely these terms. Instead, the tradition speaks of divine contraction, or withdrawal, leaving room for human interpretation. One of the few post-modernist Jewish thinkers to deal forthrightly with this issue, Jose Faur, asserts that not only is the theory of rabbinic legal exegesis, as practiced by the early midrashic rabbis, compatible with the postmodern death of the divine author, but that the entire Maimonidean system of jurisprudence embodies this perspective. Faur points out that, in the Maimonidean system, belief in God is a commandment of the law. Therefore, belief in God is the consequence of the law. The divinity of the law is not a theological notion, but a legal principle stipulating that the law is valid for all time. Similarly, the juridical principle embodied in the Oven of Achnai account, "the Torah is no longer in Heaven ", implies, as it were, the absence of the divine author or the relinquishing of His work to a community of interpreters that accepts it - thus authorizing each generation of the early rabbinic community to apply its own midrashic exegesis to the undefined terms of the law and generate meaning from the various words and particles of the scriptural text, in accordance with its artistry, and free from the constraint of pursuing authorial intent. This is why Maimonides codifies that a later judicial court can overturn a law derived through exegesis.
The autonomy that the Torah now possesses, the only clear implication we can derive from the Oven of Achnai account, does make possible these comparisons between post-modernist thought and halachic discourse. But is this comparison an illusion, a trick of the light created by the very nature of legal interpretation in a divine legal system? The rabbinic tradition does not deny the existence of an ultimate truth or origin; but insofar as that truth be longs to the sphere of God, it is not definitively knowable by humans, except in the case of knowledge through tradition. And since, from a legal standpoint, the revelation has ended, the Torah must now be regarded as the exclusive source of evidence of what constitutes the law. So far we stand on common ground. But, after that, any attempt to assess whether the early rabbinic community conceived of their exegetical endeavors as a search for divine intent through argumentation and intensive study of scriptural language, using the hermeneutical rules in their possession, or as the creative production of meaning in light of the needs of the day, is doomed to speculation, since the rabbis are notoriously silent on the subject of theory.
It is also the early rabbinic tradition that has left us with aggadic statements about the nature of human interpretation in a divine legal system that are difficult to reconcile with one another. In one, all interpretations, including those a disciple will say before his teacher, were already encompassed in the revelation at Sinai - thus, all legal interpretation is the rediscovery through halachic dialectic of the initial all- encompassing revelation; in another, we have the wonderful description of Moses sitting in the academy of Rabbi Akiva, unable to comprehend the discussion, only to be told that it is known from Moses; in still another, only general principles were revealed. These statements may be viewed as poetics, theology, or as legal theory - efforts to ground the authority of the Mishnaic project- but they shape halachic discourse. Halachists who ascribe to the more encompassing views of the revelation, view all halachic dialectic as an effort to rediscover God's initial will.
The Maimonidean perspective may seem closest to the post-modernist's own, but cannot be separated from Maimonides' s particular views on language, on the aggadah as "poetics," both exemplified by his negative theology, and on the nature of juristic reasoning. Writing is an imperfect medium for knowledge of the divine, and juristic reasoning is by its nature fallible, because people's intellects vary. And so there can be no conclusive validation of a derived law. Laws derived by interpreting scripture may not be a representation of God's will, truth, or reality. From this perspective, we can understand why Maimonides devotes himself to distinguishing the spheres of revealed oral law and rabbinic derived law.[6 7] The oral law has a precise historical identity. These laws and interpretations were passed down from Sinai through the generations intact. This knowledge from tradition was then deposited in the Talmud, and was never the subject of dispute. These laws are eternal. In principle, rabbinic derived law is revisable - until its codification in the Talmud.
One must look elsewhere to articulate a distinction between the self-reflexive, conscious awareness that we are the bestowers of meaning that characterizes postmodern thought, on the one hand, and the more restrained rabbinic model of interpretation, on the other: to the fact that the Torah, although autonomous, is still associated with its divine author . Belief in the divinity of the Torah, whether that belief is prior to the law or is a command of the law, becomes an internal feature of the legal system and acts as an implicit constraint on legal interpretation. This attitude of respect distinguishes rabbinic interpretation from the more empowering model of post-modernist legal thought and explains the early rabbinic community's far more constrained approach to legal exegesis, in contrast to the more extravagant techniques employed by the same community in producing literary exegesis. The essential conservatism of the Jewish legal system; its search for a consensus of opinion among the community of interpreters as a means to confer a form of objectivity on a decision; and the anxiety that often accompanies halachic decision-making, impeding halachists from publishing or even reaching a decision for fear of error, all point to the conclusion that such belief is a potent constraining force.
Consonant with the post-modernist emphasis on narration or story-telling as a more fruitful mode of analysis than the language of theory, I would like to pursue these points further by describing a quasi-fictitious encounter between a contemporary Orthodox halachist and a contemporary American legal theorist.
My theorist has written movingly about the pluralistic nature of the halachic legal system, about the halacha's collaborative form of discourse - in which all the generations come together to resolve a legal issue, regardless of their place in historical time and about this tradition of legal interpretation, exemplified by the Oven of Achnai story, which avoids the hierarchical imposition of authoritative truths delivered either from on high or by a particular founding generation, such as the framers, in favor of a horizontal conception of truth, one in which each generation reviews and revises the opinions of its predecessors, as meaning works itself out in history.
The halachist, who also has written movingly on the subject of the plight of the agunah, an enchained woman unable to secure a Jewish divorce from her husband, is expounding on the legal possibilities available to rectify this tragic situation. The halachist proceeds to invoke, in a learned discourse, the opinions of all the generations - literally: From a second century tannah to an obscure nineteenth century Lithuanian talmudist. As opinion piles upon opinion, and the discussion gyrates from one legal fiction to another, and as the hairs split increasingly fine, our American legal theorist begins to look, first, bewildered, and, then, somewhat perturbed.
She might ask: If the woman and the man are not positioned equally, why can't you change that rule or reinterpret prior opinions? After all, meanings are not stable, and there are multiple halachic truths.
The halachist's response, depending on the particular legal issue involved, might go as follows: But it is explicit in the written law, and confirmed by the halacha, that only a man can write a bill of divorce to a woman. Or, it is from Sinai, a precept whose authentic interpretation we know through the received oral law tradition passed on through the generations intact. Or, it is a question already determined by the halacha through the system introduced at Mount Sinai and is now part of the tradition that does not lend itself to change or abrogation. Or, put otherwise, it is a question on which consensus has been reached that this law is based in divine origin and has the status of divine law. True, we can turn to legal fictions, but these involve the deployment of legal mechanisms already existing within the legal system.
But what about morality, or the desire for human perfection, or mutual regard of one fellow for the next, the American legal theorist might ask? Doesn't that override all other considerations?
To which the halachist might respond, appropriating the expressions of American liberal jurisprudence, the law is autonomous and self-sufficient. First, there are disciplining rules in this profession which we must follow - and, indeed, our rules are from Sinai or from a tradition that Sinai initiated. Second, explanations of the larger purposes of the law, whether ethical, mystical, or philosophic, cannot intrude on the autonomy of divine law itself. After all, the law is the concrete expression of these very ethical and philosophical statements. Although morality and empathy must shape our interpretive endeavors, we cannot start with a conclusion of what we wish the law to be in light of present sensibilities, revised needs, or in light of an ethical vision of the future, and then work backwards through all the sources to make the law correspond to this new vision. At some point, divine law involves an act of surrender.
At this point, the halachist might also point out that the very effort to seek a solution to the plight of the agunah, within the parameters offered by the law, is due to scripture's own injunction that the law promote social peace, justice, and ways of pleasantness and therefore there is precedent in Jewish law for leniency in the area of the agunah; that solutions already existing in the law are unavailable because rabbinic courts in America do not have legal autonomy or contempt powers; and, finally, that the process of theoretical p'sak - legal interpretation - differs from the more circumstance-specific and person-specific process of adjudication.
And then the clincher from the theorist who has written about the need of the state to respect the law of the local legal system residing in its midst: If you don't get your act together, and affirm the universalist principle of equality, your educational enterprises are in danger of losing their tax exempt status. To which the halachist replies: So be it. We are dealing with divine norms that supersede changing human perceptions and desires.
Is the seeming lack of equivalence between these two worlds of legal discourse solely one of form, which can be overcome through increased translation and conversation? Or does the understandable puzzlement of my legal theorist point to the fact that the halachic interpreter and the contemporary reader have, after all, little in common with one another? An alternative account of the centrifugal forces that hold the Jewish legal system together may shed some light on these questions.
Given the lack of a Supreme Court, given the lack of a conventional notion of precedent, given the broad powers the halacha vests in its judges, exemplified by the principle that the judge must rely only on what his own eyes see, and given the affirmation that there can be multiple halachic truths, the potential for legal pluralism, if not legal anarchy, within the halachic system seems nearly unlimited. In identifying alternative centrifugal forces that have held the halacha together, I should like to focus here on the nature of authority in halachic thought, in particular, as it relates to the concept of the canonical.
The concept of a fixed canon of authoritative rules, traditions, or texts is, perhaps, the seminal characteristic of the religious mentality. Although canon is a Christian term, it, nonetheless, reflects a central Jewish concept: the formal acceptance of a body of material as authoritative for all generations. It implies that, henceforward, the adaptability of the tradition will depend on application and interpretation of the canonical corpus by authorized interpretive bodies, and not on reconsideration, reversal, or radical redefinition.
In the context of the halachic tradition, there is an ongoing process of canonization of rabbinic legal literature, which unifies the law and prevents fragmentation. This process requires, at times, a conscious relinquishment of critical judgment, a self-imposed constraint on interpretive freedom, in favor of the decisions of those of prior generations. The quintessential example of this process is the reception accorded to the Babylonian Talmud. Rabbi Joseph Caro, in his Kesef Mishnah, asks why, given the Maimonidean attribution of authority to a later High Court under certain conditions, to reconsider laws derived through the hermeneutic measures, the amoraic rabbis did not disagree with their tannaite predecessors, and similarly why the decisional consensus reached in the Talmud cannot itself be reinvestigated. This question is one many academic writers have sought to answer, proposing metaphoric solutions, such as viewing the Talmud as a continuing session of the High Court, with comparable final authority, or suggesting that it is paradoxically the pedagogic aspect of the Talmud that institutionalized its decisions. Caro writes simply that after the completion of the Mishnah, and so after the completion of the Talmud, they "accepted upon themselves" that later generations may not disagree with the former generations. The words Caro uses, "kaymu vekiblu," to publicly certify and receive or accept, are technical terms connoting canonization. The Talmud, writes Maimonides, was accepted by all Israel, and therefore is binding law on all subsequent generations. The legal opinions of the Talmud are subject to interpretation, but not reconsideration. With respect to the most-talmudic period, the halacha admits of debates about the extent to which authorities can reach back into the tradition and rehabilitate earlier rejected opinions or reconsider later decisions on which consensus has coalesced. Thus, although no other document has achieved the canonical status of the Talmud, later codes, such as Caro's own Shulhan Arukh, have approached this status.
The requirement of relinquishing critical judgment in matters of practice, in favor of the legal opinions of others, is exemplified by the division maintained in the halachic system between intellectual discourse about the halacha and practical decision-making. The intellectual study of all the sources of the law, including rejected opinions, is a religious-legal obligation, carried on independently of the practical determination of the law. Intellectual speculation on the plain sense of Scripture, for example, may lead to conclusions differing markedly from the authoritative legal interpretation of Scripture. Yet the canonical interpretation remains the halachic norm.
The idea of the canonical - combining as it does notions of acceptance of the authority of prior generations and the limits of revisability - is at odds with the defining characteristic of post-modernity: that everything is revisable. Post-modernist legal writings such as I have described capture this idea quite well with frequent metaphors of movement, process, transformation, flux, as well as of destabilization, decanonization, and fragmentation, a fragmentation brought about by the desire to connect with the past and at the same time to consciously change it.
In the face of the centripetal forces that have beset it, the halacha, by contrast, strives for stability, order, and behavioral uniformity. And although no new national center has emerged, the quest for a centralized legal authority underlies several of the most dramatic episodes of Jewish legal history, including Caro's attempt to revive biblical ordination. Indeed, the two central narratives of Jewish law which have so captured the imagination of contemporary legal theorists, are not affirmations of halachic pluralism , but, rather, authoritative declarations of the law. Consider the Oven of Achnai report, which ends with the excommunication of Rabbi Eliezer for failing to accede to the High Court's determination of the law, in accordance with the principle of majority rule. The Talmud questions whether a wrong was done to Rabbi Eliezer, but also concludes that the ban was necessary to prevent fragmentation of the law - in its words, to prevent strife from multiplying in Israel. Or consider the report of the heavenly voice which proclaimed "these and these are the words of the living God", but which also declared that the view of Hillel is the law, thus ordering among conflicting legal norms. Indeed, the very quest to reach a binding halachic resolution of an issue, despite the possibility of multiple halachic truths, is due to the halachic value placed on behavioral uniformity, legal stability, and order.
IV: Conclusion: The Postmodern Temptation
The embrace of Jewish law in contemporary American legal theory, which I have described here, is a logical outgrowth of the post-modernist concern for the voice of the excluded or marginalized other, within or without the culture, and its assertion that cultural identity, like individual identity, is not essentialist but, rather, constantly in the process of revision and transformation through encounters with others. Hence, post-modernist theorists are interested in blurring cultural boundaries and importing ideas from one culture to another. Although such attention may be gratifying from the perspective of the formerly excluded other, the notion of reciprocity - that we encounter others in order to be transformed by them but, also, to transform them - is troubling for those committed to the perpetuation of a distinct community and culture. For those committed to Jewish religious normativity, this issue is all the more pressing in light of the halacha's dedication to the concept that Israel's very mission is to set itself apart from the other nations.
The rabbinic tradition itself speculates about such cross-cultural encounters and the dilemmas they may pose. Accordingly, I should like to conclude this discussion of the meeting between the rabbinic legal tradition and post-modernist legal thought by presenting a rabbinic antecedent of this contemporary event. Whether apocryphal or fact (or, as is most likely, a complex mixture of the two), midrashic and talmudic sources tell the story of the visit of two Roman jurists to the academy of Rabban Gamliel at Yavneh. The Romans were sent by their government to investigate "the nature of Israel's Tor ah." The jurists studied "mishnah, midrash, halachot, and haggadot," and, at the hour of parting declared: "All the Torah is pleasing and praiseworthy, except for one thing - that you say: 'What has been stolen from a Gentile is permitted, while what has been stolen from a Jew is forbidden."  The story concludes, in its earliest version, with the promise of the Romans not to report the discriminatory rule to the Roman government.
The story, in its original version, is set within a larger commentary that addresses Israel's election and expresses the view that the legal distinctions governing intra-Jewish relationships, as opposed to relationships between Jews and non-Jews, are connected to God's special love of Israel. The hierarchical opposition of Israel to the nations is a critical aspect of Israel's self-definition and self-identity. The differences between these two groups, whether viewed by the rabbinic tradition as rooted in essentialist characteristics or in legal constructions that are not subject to change, is often invoked in rabbinic literature to explain a variety of distinctions within the halacha between the obligations of Jews, on the one hand, and non-Jews on the other.
Nonetheless, whether the Roman assessment of this particular Jewish law was accurate is unclear. The Talmud quotes Rabbi Akiva as expounding from a verse in Leviticus that the law does not recognize any difference between Jew and non-Jew with respect to the protection of property and Simeon the Pious is quoted as distinguishing between robbed property, which is forbidden, and lost property, which is permitted. His contemporary, Rabbi Ishmael, was of the view that the law concerns itself only with relations between Jews and thus provides no legal redress for the return of the robbed property of the non-Jew. A supplementary halachic principle, sanctification of the Divine Name, is required, therefore, to secure the protection of non-Jewish property. The narration of this story in the Palestinian Talmud specifically links the turn to a supplementary principle to the halachic system's encounter with the Roman jurists and their negative assessment of this aspect of Jewish law. "At that time" - the time of the Roman visit to Rabban Gamliel's academy, the Palestinian Talmud records - "Rabban Gamliel ordained that the robbed property of a Gentile is forbidden so as to prevent profanation of the Divine Name." In this version of the story, too, the Romans promise not to report various discriminatory rules and, in any event, the Palestinian Talmud concludes, forget all that they learned about Jewish law during their journey home.
This talmudic story vividly illustrates the antinomies of cross-cultural meetings. Addressing the place of Israel's Torah in the larger intellectual world, the story posits a time when other specialists will immerse themselves in the halachic tradition and come to see the justness and beauty of the Torah. Yet, the rabbis also recognize that a close scrutiny of the law by those who do not share its basic assumptions will reveal grounds for objection. The crux of the story, for our purposes, is the narrative resolution of this dilemma. One may view the narrative's linkage of the Roman visit with resort to the supplementary halachic principle, through the prism of post-modernist thought, as a transformative moment. Through encounter with the Roman jurists, the rabbis were able to see themselves as others see them. Or, one may interpret Rabban Gamliel's edict in light of the shadow presence of the Roman government, whose good will must be maintained lest the Jews be deprived of the legal autonomy granted to them under Roman law. The most poignant resolution advanced by this rabbinic narrative, however, is that the Romans forget the entire encounter.
The historical career of the halacha in exile underscores the dilemma posed in this rabbinic narrative. The largely antipathetic attitude of Western Christian culture toward the halacha, although deeply troubling from the perspective of Judaism's standing in the world, also served to sharpen halachic self-definition and to preserve its distinctiveness. It remains to be seen whether the post-modernist turn, despite its increased appreciation of an d openness to other lived traditions, will pose challenges for Jewish religious normativity, comparable to those posed by its modernist predecessor.
Despite the intellectual challenges of modernity and post-modernity, continued adherence to Jewish law will turn, as it has before, on identification with the way of life and value-system it presupposes. It is noteworthy that, in turning to the rabbinic legal model, post-modernist writers have focused exclusively on the structural aspects of the rabbinic legal system, and not on its value-system. This should point us to another distinction between the halacha and post-modernist thought. An obsession with the structure of thought is a particular feature of post-modernist theory - it is, as one writer put it, "thought turned in on its own operation". This is an obsession that the rabbinic tradition does not share. Its' statements of theoretical import have to be reconstructed from the language of scriptural exegesis, talmudic stories, or other commentaries and novellae. And although post-modernist theory provides us with powerful tools with which to try to understand the deep structure of rabbinic thought - one that I have contended elsewhere places two opposing concepts in interactive, interdependent, and irreconcilable tension with one another - one must still question whether i t is the idea of a jurisprudence of obligation, or a particular hermeneutic mentality, that best captures the contribution that Jewish law may make to a postmodern world, or the reason for the halacha's endurance over time.
In the end analysis, the Torah addresses a particular community that is commanded to become a nation of holy people, and to follow a law whose paths are described as the ways of peace. And it is these scriptural ideals, and the value-system that they embody, far less than the halacha's approach to truth, language, or legal interpretation, that its adherents find compelling.
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