Category Archives: halakhic theory

Justice Stevens and the Jews

If you want a good topic to discuss this week, the legal decisions of retiring Justice Stevens would make for good conversation. He was narrow on free exercise when at the expense of something else and liberal on free speech. He has many angles that would make good Jewish conversation. I expect an op-ed from someone in Jewish paper in the next few weeks.

Stevens wrote against allowing a yarmulke in the Air Force, and was against the Kiryas Yoel redrawn religious district. He was against school vouchers and anything that would lead to religious indoctrination. Yet he allowed preaching and outreach in public place and full freedom for Santeria. He is against crèches in town squares and a few years ago Noah Feldman took him to task in the NYT’s for this.

Justice Stevens religion clause jurisprudence is reviewed in the following articles: Eduardo M. Penalever, Treating Religion as Speech: The Religion Clause Jurisprudence of Justice Stevens (SSRN, November 2005); Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership, 74 Fordham L. Rev. 2177 (2006);

Ht/Religious Clause

But regardless of Stevens views, we should be appreciative living in a country with an establishment clause, freedom of religion and freedom of speech. More importantly, we should not abuse it. In the last few years, I have seen and heard arguments that run like this: Our preschool should not have to meet OSHA guidelines or health department rules because that would take away our ability to learn Torah. There is a sense that if we have religious freedom then that means we don’t have to follow other laws. I have also seen these arguments quoted in the papers to defend the various Jewish criminals of the last three years.

From our own perspective, have we created an appreciation for freedom of speech, freedom of religion, or freedom of religious conscious in our Judaism? Are these valuable rights only to receive and not to give? Can Judaism formulate anything close to modern views on these topics? Rav Herzog somewhat tried to create such an approach in Israel based on the need to follow world opinion and the dictates of the UN. Recent poskim, however, have rescinded Rav Herzog’s attempts. Now what? What about here in America?

From another angle, Justice Stevens is being called the last of the non ideological justices. Now everything is ideological. In the late 1950’s, there was even an essay on the end of ideology.
Would Rav Moshe Feinstein be the last of the non ideological poskim? Are all sides now ideological? (Let’s acknowledge that the sanctimonious on all sides, would see their leaders as non-ideological. But that is not an argument. ) Are we at a point of change, unlike the 1950’s, where are all halakhic positions are ideological?

Copyright © 2010 Alan Brill • All Rights Reserved

‘Sephardic’ Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study

Here is a nice article summarizing the state of the field on the relationship of Sephardic Jewish Law and modernity. It is one of those article that one can read and then pretend to know what one is talking about. Fuchs summarizes those who see the Sefardi world as more lenient and the critics of the position. He presents the work of both Binyamin Brown and Zvi Zohar. Bibliographies are also given for the state of Rav Ovadiah Yosef studies and the attitude of sephardi poskim toward women. It has the liberal Rav Mesas and the the stricter Rab Batzri.

The article is from the legal perspective but we still lack a good article from the historical perspective. We successfully situate the challenges of German poskim in German history of the enlightenment, this topic needs a similar approach. From the 1880’s until the 1950’s the Islamic modernists were in the forefront creating many very liberal fatwa, especially in Egypt. Then there was a return to more conservative opinions and women started wearing the chador again. Egypt was a center of modernism, other countries less so. When Rav Ohana was alive and when Rav Ovadiah started it was the era of modernism. Yet, the latter disliked the laxity of the Jewish modernists in Egypt but was very liberal with the North African development town Jews in Israel. The article does not deal with Israeli sociology.

‘Sephardic’ Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study: A Test Case

Ilan Fuchs
Tulane University, Jewish Studies Program December 31, 2009
Bar Ilan Univ. Pub Law Working Paper No. 02-10

This paper examines Sephardic rabbinic attitudes to women’s religious studies, and more specifically, advanced Talmud study. I draw on Halakhic texts written in the second half of the 20th century by leading Sephardic rabbis that immigrated to Israel. I first examine the terms Mizraxi and Sephardic and explain on what grounds I find reason to compare the rabbis discussed. I argue that there is no monolithic Sephardic halakhic tradition and that the rabbis discussed hail from diverse communities that experienced and reacted to western and secular influences in unique ways. I then describe how these rabbis reacted to changes in women’s religious and secular education, changes they were forced to confront as their communities were exposed to changing values and social realities. Examining how Sephardic rabbis have responded to the challenge of women’s Torah study allows us to test the claim that the Sephardic halakhic tradition is more flexible and tolerant of change than the Ashkenazi orthodox halakhic tradition.

ht/Religious Clause

One could compare some of these tensions to the fatwa of Muhammad Sayyid Tantawy, the recently deceased head of Al-Azhar University and grand Imam of the al-Azhar Mosque in Egypt. He was against female Imams and mixed events. Yet, he issued a fatwa allowing Muslim girls in France to take off their headscarves while attending school.
In October 2009, Tantawy launched a campaign against the Niqāb (the full-face veil which covers the entire body except for the eyes, increasingly worn by women in Egypt) by personally removing the Niqāb of a teenage girl (after she failed to remove it) at a secondary school affiliated to Al-Azhar University, He had asked the teenage girl to remove her veil saying: “The Niqāb is a tradition, it has no connection with law” He then instructed the girl never to wear the Niqāb again and promised to issue a fatwa against its use in schools. He then told the girl “So if you were even a little beautiful, what would you have done then?”

Copyright © 2010 Alan Brill • All Rights Reserved

The Radicalism of Legal Positivism [in Halakhah]

Now that everyone is running from Legal positivism into all forms of situational thinking, Brian Leiter reminds us why legal positivism seemed so radical at the time. It undid all the Hegelian need for situational organic thinking, it undid social realism, and it undid moralism. The law is the law. The law has no external sources and there are no external implications. Now, legal positivism seem stolid and unresponsive. Along the way the anti-liberal Leiter gets in his critique of critical legal studies as not realizing that they were returning to Hegel.

Once upon a time Brisker inspired positivist approaches to halkahah seemed radical, now people are returning to values, [imagined] community, social realism. This article give some of the framework for the comments on the ideal versus real debate in halakhah and why the positivism once seemed attractive.

The Radicalism of Legal Positivism
Brian Leiter, University of Chicago Law School
Guild Practitioner (forthcoming 2010)

“Legal positivism” is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry. “Positivist” too often functions now as an “epithet” in legal discourse, equated (wrongly) with “formalism,” the view that judges must apply the law “as written,” regardless of the consequences. Lon Fuller, Ronald Dworkin, and the Critical Legal Studies writers have all contributed in different ways to the sense that “positivism” is either a political conservative or politically sterile position. This essay revisits the actual theory of law developed by positivist philosophers like Bentham, Hart, and Raz, emphasizing why it is, and was, understood by its proponents, to be a radical theory of law, one unfriendly to the status quo and anyone, judge or citizen, who thinks obedience to the law is paramount. To be clear, the leading theorists of legal positivism thought the theory gave the correct account of the nature of law as a social institution; they did not endorse it because of the political conclusions it entailed, and which they supported. Yet these theorists realized that the correct account of the nature of law had radical implications for conventional wisdom about law. We would do well to recapture their wisdom today.
(The ful article has much more than the abstract)
Full article is available here

On the same trajectory of legal positivism and sittlichkeit

I finally got around to reading –Lawrence Kaplan, From Cooperation to Conflict: Rabbi Professor Emanuel Rackman, Rav Joseph B. Soloveitchik, and the Evolution of American Modern Orthodoxy Modern Judaism Volume 30, Number 1, February 2010. The article was good for clearing up the retrograding of the 1970’s tensions back onto the 1950’s when Rackman was indeed an official spokesman for Rav Soloveithchik. I thank the author for the generous shout out in the footnotes.

In that spirit, I must add to the article and move it more to legal theory. Rackman as a lawyer and political science professor was influenced by Chief Justices Holmes, Brandeis, and Cordozo, by the emergent world of Mishpat Ivri and the rulings of the Warren court. Rav Soloveitchik thought about the rules of science and philosophy, Rabbi Rackman thought about a telos approach using legal categories. The emergent Conservative movement spoke historical approach to law of von Savigny, John Salmond, and economic judicial activism. It is worth considering that some of the YU “young poskim” with JD’s may have more philosophically in common with Rabbi Rackman that with Rabbi Soloveitchik.

Why would Rackman switch to Judaism? Milton Konvitz was one of the three editors and was encouraging Jewish Legal thinking and Jewish Human rights thinking. (And Konvitz was a fan of both Leo Jung and Jacob Agus)- see his Nine American Jewish Thinkers.

The article by Brian Leiter will offer some terms for understanding the Rackman-Soloveitchik positions and return of sittlichkeit in our time.

Copyright © 2010 Alan Brill • All Rights Reserved

Habermas and Halakhah -Guest post from AS

[My intended posts for this week are still on an external hard-drive, but I was lucky enough to have a guest post from AS]

AS writes in a comment:

Right now I can only offer the following brief comment that overly compresses what could be at least a book chapter. Those not familiar with Habermas should note that he talks about communicative rationality as an aspect of modernity. Therefore this constitutes a consciously external and modern critique of halakhah – although one that perhaps reveals the paradoxes in modern apologetics.

Before starting we need to ask how to characterize halakhic claims. More specifically we must ask where the binding normative force of halakhic claims come from. Sociology could adequately describe a community in which a certain species of claims were taken to be binding, along with the varieties of social coercion that are employed to ensure compliance, but this would not but this would not account for internal rules of justification that are capable of shaping beliefs.

One obviously wrong answer is to assume that halakhic claims aspire to truth, and that the truth conditions are correspondence to the revealed will of God. The binding force of halakhah in both ritual and moral domains derives solely from the authority of a just God.

This is the wrong picture for a few reasons, mostly because halakhah is “not in heaven.” The correctness of a halakhah derives not from its correspondence with a revealed word, but at least in part because it comes to be regarded as the correct interpretation of a text by means of a rational, internally consistent, discourse. The metatheory of halakhah, were it ever to be carefully explained, would not need to make any reference to God whatsoever in describing how halakhah functions to determine its correctness. At best there is some God-granted authority to interpret at the very root, but within the discourse this authority is neither appealed to or contested (except rhetorically), so it is moot.

Halakhah can therefore be construed as a species of rational communicative discourse. Indeed, in its internal dialectics it seems to aspire to be a rational discourse in that it follows rules of interpretation, precedent, etc. that are universally recognizable by all participants. If this is the case then a Habermasian would likely say that halakhic claims, like moral claims, aspire not to truth (having conditions of rightness constituted independent of the halakhic community) but rather to validity.

In general Habermas thinks that normative validity claims implicitly contains not merely the intersubjective ought, but to the universal/deontological. The deontological nature and binding force of normative claims stems from the idea the very participation in a discursive practice presupposes the acceptance of certain normative principles. In other words, we could not exist as a community of language-users capable of achieving basic communicative rationality (like coordinating behavior) without background normative assumptions which everyone implicitly relies upon in any discursive practice.

Now clearly halakhic claims cannot be “redeemed” in the same way that Habermas thinks that regular normative claims can – nor would we expect as much. We would liken halakhic discourse in many ways to legal discourse. But Habermas claims (and here it is simply easier to quote) that:

“Discourse theory explains the legitimacy of law by means of procedures and communicative presuppositions that, once they are legally institutionalized, ground the supposition that the process of making and applying the law lead to rational outcomes.” This rationality is proved not by the outcomes themselves, but procedurally “by the fact that addressees are treated as free and equal members of an association of legal subjects.”

Because halakhah is an exclusionary discourse that does not even aspire to procedural equality
, because addressees are not treated as equal, and because this inequality, instead of bearing a very high burden of rational justification is claimed to lie in a revealed metaphysical ontology, its claim to communicative rationality breaks down.

Halakhic discourse does not devolve into literal incoherence, and anyone familiar with legal discourse will not find it entirely foreign. But this is precisely because rabbis address each other, and sometimes learned laypersons, as equals (it by no means breaks from communicative rationality simply by appeal to various metaphysical processes or the like). On Habermasian grounds it breaks from communicative rationality when it treats its subjects unequally who themselves have no part in shaping the discourse.

At this point halakhah either makes a sharp premodern return to a mythical worldview, or remains modern but employs an instrumental rationality in its treatment of some of its subjects (I don’t think it’s quite strategic rationality because it lacks the pretense of equal participation). I think that both of these are in play. Sometimes in contemporary halakhah difference and exclusion are justified naturalistically (in a sense because some subjects do not transcend nature, they are regarded as a part of the natural world to be intervened upon) and sometimes by appeal to a premodern mythology. And sometimes it is a rather interesting hybrid. [end of AS guest post]

For those who are less familiar with Habermas, I [AB] add some links and definitions. Basic wiki biography , communicative action, and the public sphere, as well as the SEP on Habermas. Even from the links and the short definitions below, it may be enough to have some serious discussion. For those, who need a translation, a deontological claim, in this context, means something is assur or muttar.

From Wiki on rationality
Jürgen Habermas considers his major contribution to be the development of the concept and theory of communicative reason or communicative rationality, which distinguishes itself from the rationalist tradition by locating rationality in structures of interpersonal linguistic communication rather than in the structure of either the cosmos or the knowing subject.

From Wiki on the the public sphere

The public sphere is an area in social life where people can get together and freely discuss and identify societal problems, and through that discussion influence political action. It is “a discursive space in which individuals and groups congregate to discuss matters of mutual interest and, where possible, to reach a common judgment.” The public sphere can be seen as “a theater in modern societies in which political participation is enacted through the medium of talk” and “a realm of social life in which public opinion can be formed”.

Habermas stipulates that, due to specific historical circumstances, a new civic society emerged in the eighteenth century. Driven by a need for open commercial arenas where news and matters of common concern could be freely exchanged and discussed – accompanied by growing rates of literacy, accessibility to literature, and a new kind of critical journalism – a separate domain from ruling authorities started to evolve across Europe. “In its clash with the arcane and bureaucratic practices of the absolutist state, the emergent bourgeoisie gradually replaced a public sphere in which the ruler’s power was merely represented before the people with a sphere in which state authority was publicly monitored through informed and critical discourse by the people”.

In his historical analysis, Habermas points out three so-called “institutional criteria” as preconditions for the emergence of the new public sphere.

1. Disregard of status: Preservation of “a kind of social intercourse that, far from presupposing the equality of status, disregarded status altogether. […] Not that this idea of the public was actually realized in earnest in the coffee houses, salons, and the societies; but as an idea it had become institutionalized and thereby stated as an objective claim. If not realized, it was at least consequential.” (loc.cit.)
2. Domain of common concern: “… discussion within such a public presupposed the problematization of areas that until then had not been questioned. The domain of ‘common concern’ which was the object of public critical attention remained a preserve in which church and state authorities had the monopoly of interpretation. […] The private people for whom the cultural product became available as a commodity profaned it inasmuch as they had to determine its meaning on their own (by way of rational communication with one another), verbalize it, and thus state explicitly what precisely in its implicitness for so long could assert its authority.” (loc.cit.)
3. Inclusivity: However exclusive the public might be in any given instance, it could never close itself off entirely and become consolidated as a clique; for it always understood and found itself immersed within a more inclusive public of all private people, persons who – insofar as they were propertied and educated – as readers, listeners, and spectators could avail themselves via the market of the objects that were subject to discussion. The issues discussed became ‘general’ not merely in their significance, but also in their accessibility: everyone had to be able to participate. […] Wherever the public established itself institutionally as a stable group of discussants, it did not equate itself with the public but at most claimed to act as its mouthpiece, in its name, perhaps even as its educator – the new form of bourgeois representation” (loc.cit.).

On Rationality and Communication:

Communicative action for Habermas is possible given human capacity for rationality. This rationality, however, is “no longer tied to, and limited by, the subjectivistic and individualistic premises of modern philosophy and social theory.”[1] Instead, Habermas situates rationality as a capacity inherent within language, especially in the form of argumentation. “We use the term argumentation for that type of speech in which participants thematize contested validity claims and attempt to vindicate or criticize them through argumentation.”[2] The structures of argumentative speech, which Habermas identifies as the absence of coercive force, the mutual search for understanding, and the compelling power of the better argument, form the key features from which intersubjective rationality can make communication possible. Action undertaken by participants to a process of such argumentative communication can be assessed as to their rationality to the extent which they fulfill those criteria.

And for those who in their ignorance call anything they have not read post-modern- Here is Habermas’ rejection of post-modernism in a nutshell.