Philosophy of Jewish Law
From IVR encyclopedie
Whether there is a term in the Jewish tradition corresponding exactly to “law” is debatable. The identification of torah with “law” stems from its sometime translation by nomos in the Septuagint, the Greek translation of the Hebrew Bible. But the term itself means simply “instruction”, extending to that given by a mother to young children. The term “Jewish law” (in Hebrew: mishpat ivri) is of relatively recent vintage. The tradition prefers to speak of the halakhah, which signifies the entire body of normative Jewish teaching, whether it relates to “legal” matters, or what we might consider religious or ritual regulation. The halakhah does recognise internal divisions relating to subject-matter, but these are subsidiary to its conception of the entire body of normative teaching as an integrated whole, the product of divine revelation (in its different modes).
The tradition has a continuous history extending back to the biblical texts of the first millennium BCE, notwithstanding the fact that much of it developed in the Diaspora, where the autonomy of Jewish institutions was limited. From the second or third century CE, there has been a constant flow of rabbinic texts characterised by intense inter-textual reference and debate. However, different historical circumstances and cultural milieux have also affected the development of the tradition, to the extent that anything one might say about the halakhah in general has to be critically examined against the sources of each particular time and place. This is equally true when one seeks to consider the “philosophy of Jewish law”: while certain dogmatic truths (such as the claim that God gave both a Written and an Oral Torah) may be common, there is considerable diversity on more specific issues relating to the authority system of the halakhah.
The philosophy of Jewish law may be approached from either an internal or an external point of view. An internal point of view addresses those theoretical issues considered pertinent by the tradition itself; an external point of view addresses theoretical issues considered pertinent by external bodies of theory, such as secular jurisprudence. However, the distinction between the two is not watertight, insofar as internal participants within the system may themselves be influenced by external theoretical concerns.
Thus, to assess whether Jewish law reflects a positivist, naturalist or realist standpoint within jurisprudence is to pose a question which, while of interest to comparatists, might not be central to the theoretical concerns of the system itself. Secular jurisprudence (the pedigree of which, in both its positivist and naturalist forms, itself reflects secularisation of earlier theological positions) has itself, from time to time, considered how its tenets might be applied to systems of religious law. Thus, Austin was prepared to apply his “command theory” to religious law: “Of laws properly so called, some are set by God to his human creatures, others are set by men to men” (The Province of Jurisprudence Determined, London: Weidenfeld and Nicolson, 1954, 122), though religious law fails the further test (of political superiority) he requires for “positive law”. For Austin, natural law (which itself had to satisfy his test of “law properly so-called”) consisted precisely in the commands of the Deity, revealed or tacit.
Kelsen adopts a not dissimilar compromise. Religious law may exhibit the structure of a legal system, in that the “basic norm of a religious norm system says that one ought to behave as God and the authorities instituted by Him command” (General Theory of Law and State, trld. Wedberg, Cambridge Mass.: Harvard University Press, 1946, 115). However, religious law is not positive law, since the latter requires the use of socially immanent rather than transcendental sanctions (“those that according to the faith of the individuals subjected to the order originate from a superhuman authority’’: Pure Theory, trld. Knight, 1968, 28, 33). But what if a religious norm system, based on a Grundnorm which refers to transcendental beliefs, itself prescribes sanctions to be enforced by human, social institutions? Some students of Jewish law have attempted to construct an account of Jewish law based on such a “basic norm” structure: such is the view of the leading modern proponent of mishpat ivri, M. Elon, who seeks incorporation of Jewish law within the law of the State of Israel, thus backed up by human enforcement agencies.
It is hardly surprising that versions of the command theory figure strongly in internal accounts of the philosophy of Jewish law. In the Hebrew Bible, Moses is frequently told to “command the children of Israel ...” to observe particular regulations, and the very term “mitsvah” means “commandment”. Even Maimonides, the supreme rationalist, in promoting the search for the “reasons for the commandments”, insisted that their validity rested not on any such reason, but strictly upon the fact of divine command. Yet positivism, as the successors of the command theorists (Hart and Kelsen) taught, cannot be reduced to commandments; it includes also permissions and authorisations. Within the halakhah, rabbinic authorities are taken to be authorised further to develop the law. Insofar as this authorisation is itself derived from authoritative texts, such authorisation is compatible with positivism. Indeed, many modern Orthodox proponents of Jewish law have embraced such a positivist model precisely because it incorporates the possibility of further development.
This, however, leads to much the same questions within the philosophy of Jewish law as have been posed within secular jurisprudence. The debate between Hart and Dworkin regarding the respective roles of rules and principles, and the effect of the latter upon a positivist theory which maintains that we can identify the law in terms of clearly operational “rules of recognition”, is at least partially replicated within theoretical debate in Jewish law. For some (e.g. Lamm and Kirschenbaum) stress the role of “principles” within the halakhah, as a method by which the constraints of a purely rule-based system may be avoided or at least mitigated. But what is the theoretical consequence? In secular jurisprudence, Hart came to accept that the role of principles compromises the “demonstrability” which he originally claimed for his secondary rules of recognition, and thus that his theory was one of “soft positivism”.
This concession was significant, insofar as positivism claims to give the best account of the predictability of the law, and thus to reflect the values of the Rule of Law. But the values of the Rule of law are not necessarily to be attributed to the halakhah, or at least are not to be attributed to it in the same form. The basic source of authority is not that of a rule known in advance, but rather of divine will (revelation), manifested in such ways as the tradition accepts. And one form in which it is accepted as manifest is the opinion of a sage regarded as possessing special (charismatic) authority, for his knowledge and piety. Such a sage may well argue in part from principles, in a manner which might not have been predictable in the advance. “Soft religious positivism”? Such a formulation maintains the priority of the external theoretical framework. Internally, the issue rather is the revelation of the “Oral Law” to charismatic scholars of the present generation.
The question whether the halakhah is a system of rules, or a system of delegation to charismatic authorities, finds direct expression in the primary sources of the system. The Babylonian Talmud, which consists largely of theoretical discussions of very specific halakhic problems, includes accounts of approximately 30 cases decided by rabbinic judges, where the decision is said to have been “not in accordance with the halakhah”. Yet the Talmud appears to accept the validity of those decisions, and to do so without criticism (indeed, on some occasions, with justification). This has lead H. Ben Menachem to the view that the Talmud endorses a “realist” rather than a “positivist” legal philosophy. Indeed, Jewish law frequently accepts a distinction between “halakhah” (the law in theory) and “ma’aseh” (the law in practice). Both are viewed as “valid” — if, perhaps, in different modes: there is an ideal mode of halakhah, and there is the mode of halakhah which, because of (intellectual, spiritual or socio-political) constraints, we are forced to apply in practice.
These two manifestations of “legal realism” in the halakhah focus on different aspects of the judicial role, as conceived within Judaism. On the one hand, it is a role which entitles the judge to deviate from the law (beyond any specific delegated authority so to do), reflecting a devolution of charismatic authority (it is said in the Bible that God “is with you in giving judgment”, 2 Chron. 19:6); on the other, the judge bears a very personal religious responsibility to make decisions which will not put the subject of Jewish law at risk. Thus, for example, annulments of marriage may be refused “in practice”, even in circumstances where theoretically they may be permitted, because of the responsibility the judge bears should his decision prove wrong, but the woman nevertheless remarries and has children in reliance on it.
Secular positivist models cannot thus be applied to the halakhah without regard to internal concepts of revelation. Indeed, the positivist concern to define and analyse the nature of the “sources” of the legal system is only partially reflected in Jewish law. Though Elon lists its legal sources (Exegesis and Interpretation, Legislation, Custom, Precedent, and Legal Reasoning), there is a notable contrast with Roman law: while the Institutes of Gaius commences with a list of the sources of Roman law, no such list is found in early rabbinic literature: the latter, rather, lists the middot, the (non-demonstrable) forms of argumentation to be applied to the text of Scripture.
To say this is not to suggest that the halakhah is indifferent to its own authority system: modern attempts to resolve contentious issues (such as that of the “chained wife”, the agunah, whose husband refuses to deliver a bill of divorce, notwithstanding the decision of a rabbinical court that he should do so) frequently break down precisely on the grounds of lack of authority. This reflects in part the fact that such “secondary rules of recognition” as are deployed within the system are themselves weak and subject to intense exegetical activity. Indeed, the very distinction used by Elon to organise his presentation, between the historical, literary and legal sources of Jewish law, is itself problematic. The Talmud is both a literary and a legal source: there is a rule of recognition that in many areas later authorities cannot override a decision of the Talmud. Such a dual role stems from views taken within the tradition of the nature of revelation: God reveals his commands through inspired documents.
It is often said that Judaism rejects the separation of law and morality. Though a distinction is recognised between halakhah (binding teaching) and aggadah (instruction through narrative and other modes), the moral values of Judaism are integrated within the halakhah. This is reflected in at least two ways: first, the halakhah itself recognises a distinction between minimum and supererogatory standards (midat hasidut). Secondly, like Islamic law, it deploys a wider range of modalities than those recognised by the deontic logicians of modern positivism. Islamic law lists five modalities: prohibited, discouraged, permitted, encouraged, prescribed. While Jewish law lacks such a systematic classification, it does deploy the modalities of discouraged and encouraged, and thus integrates positions which positivism would regard as moral and thus non-legal.
The contribution of Jewish theology to the construction of a philosophy of Jewish law is not restricted to the agenda of legal positivism. Jewish theology asks also about the purpose of observance of law, and refuses to reduce this to functional or utilitarian criteria. In modern times, J.B. Soloveitchik (Halakhic Man, translated Lawrence Kaplan, Philadelphia: The Jewish Publication Society of America, 1983) is the most articulate proponent of the view that observance of the mitsvot has a religious purpose. This is not, in his view, to be reduced to the issue of personal redemption, a claim that the individual may inherit the afterlife as a reward for observance of the commandments. So to view it is to revert to ancient and medieval controversies, both between Judaism and Christianity and within Christianity itself, regarding the respective claims of justification by faith or works (the context, we may note, within which the term “legalism” originated). For Soloveitchik, the halakhah is the means by which life on this earth, in this world, may be perfected, such perfection being defined not merely in social or utilitarian terms, but rather holistically, incorporating both spiritual and aesthetic dimensions. Thus, he writes:
"The essence of the Halakhah, which was received from God, consists in creating an ideal world and cognizing the relationship between that ideal world and our concrete environment in all its visible manifestations and underlying structures ... The Halakhah is not at all concerned with a transcendent world. The world to come is a tranquil, quiet world that is wholly good, wholly everlasting, and wholly eternal, wherein a man will receive the reward for the commandments which he performed in this world. However, the receiving of a reward is not a religious act; therefore, halakhic man prefers the real world to a transcendent existence because here, in this world, man is given the opportunity to create, act, accomplish, while there, in the world to come, he is powerless to change anything at all ... The ideal of halakhic man is the redemption of the world not via a higher world but via the world itself, via the adaptation of empirical reality to the ideal patterns of Halakhah. If a Jew lives in accordance with the Halakhah ... then he shall find redemption. A lowly world is elevated through the Halakhah to the level of a divine world (pp.19, 32, 37)."
Any philosophy of Jewish law must incorporate “internal” concerns such as these, and not simply impose or select according to the agenda of an external, secular model.
H. Ben Menachem, Judicial Deviation in Talmudic Law (Chur etc.: Harwood Academic Publishers, 1991); “The Judicial Process and the Nature of Jewish Law”, in An Introduction to the History and Sources of Jewish Law, ed. N. Hecht, B.S. Jackson, D. Piattelli, S.M. Passamaneck and A.M. Rabello (Oxford: The Clarendon Press, 1996), 421-437.
M. Elon, Jewish Law, History, Sources, Principles (Philadelphia: Jewish Publication Society, 1994), 4 vols.
B.S. Jackson, “Legalism”, Journal of Jewish Studies XXX/1 (1979), 1-22; “The Concept of Religious Law in Judaism”, Aufstieg und Niedergang der römischen Welt, Berlin, W. de Gruyter, 1979, Bd. II.19.1, 33-52; “Historical Observations on the Relationship between Letter and Spirit”, in Law and Religion, ed. R.D. O’Dair and A.D.E. Lewis (Oxford: Oxford University Press, 2001 = Current Legal Issues Vol. 4), 101-110; “Mishpat Ivri, Halakhah and Legal Philosophy: Agunah and the Theory of “Legal Sources””, JSIJ - Jewish Studies, an Internet Journal 1 (2002), 69-107, at http://www.biu.ac.il/JS/JSIJ/1-2002/Jackson.pdf; “Judaism as a Religious Legal System”, in Religion, Laws and Tradition. Comparative Studies in Religious Law, ed. A. Huxley (London: RoutledgeCurzon, 2002), 34-48; “The Practice of Justice in Jewish Law”, Daimon 4 (2004), 31-48; “The Jewish View of Natural Law” (Review of Novak, Natural Law in Judaism), Journal of Jewish Studies LII/1 (2001), 136-145; “Internal and External Comparisons of Religious Law: Reflections from Jewish Law”, in N.H.D. Foster, ed., A Fresh Start for Comparative Legal Studies? A Collective Review of Patrick Glenn’s Legal Traditions of the World, 2nd Edition (London: Wildy, Simmons and Hill, 2005) = Journal of Comparative Law 1 (2005), forthcoming).
N. Lamm and A. Kirschenbaum, “Freedom and Constraint in the Jewish Juridical Process”, Cardozo Law Review 1 (1979), 99-133. See also E. Dorff, “Judaism as a Religious Legal System”, Hastings Law Journal 29 (1978), 1331-1360.