Tag Archives: Emmanuel Rackman

The Radicalism of Legal Positivism [in Halakhah]

Posted on March 15, 2010 by | 1 comment

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)

Abstract:
“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

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What does Clericalism mean in a Jewish context?

Posted on October 7, 2009 by | 2 comments

There was another Orthodox sexual scandal that ended in conviction.  On the journalism of religion site GetRelgion, they asked  about the application of the term clericalism to Orthodoxy.

None of the five women had spoken publicly before the criminal case, because, they say, it was understood that members of the modern Orthodox Jewish community — especially young ones — did not divulge errors by its leaders, let alone accuse them of impropriety.

Hey reporters, does any of this sound familiar to you? The story is describing a word that has become common in the context of the three-decades of scandal in Catholicism about sexual abuse by clergy — “clericalism.” Does the term deserve to be used in this Jewish context, in the context of a hierarchy that consists of a single powerful congregation and its niche in a larger religious community? Read the story and decide for yourself if this particular shoe fits. After you read the story, you may have questions pop into your mind.

The allegations all focus on abuse. Are there any allegations about sexual affairs? Did the rabbi have a line in his own mind that he never crossed?

Back in the 1950’s, Rabbis  Emmanuel Rackman and Leo Jung argued that orthodoxy cannot have clericalism. Rackman even argued that it would be unAmerican and communist to remove the basic equalities promised in Judiasm and in America. There are no special protections, authority, and insights available to rabbis.  Is this a return to traditional halakhic values with their implicit hierarchy, or is there  something new in the current community structure? What is the social and political theory behind this new Orthodox clericalism? What texts do they cite? As the author tmatt asked in his post: What lines will the Rabbi not cross that make this OK? How is it different than the Catholic Church? We dont use the term when Evangelical preachers sin, but why does it seem apt here?

More sources to decide if the usage is correct:  wikipedia article and from a Catholic blog

As far as I can see, the position of the Bishops Conference of England and Wales including our own Bishop Terrence Drainey is currently “let us have a culture that tolerates and even encourages clerical abuse, in which priests and bishops are free to abuse their power and authority and laypeople are expected to be co-conspirators or else face accusations of disrespect and disloyalty but let us make an exception for the sort of abuse that the civil authorities take seriously, that is, the sort of abuse that costs money and looks bad in the papers”.

This is like saying “stealing is okay, as long as you don’t steal anything somebody will notice” or “lying is okay, as long as nobody finds out”. Essentially, the Bishops are saying “it’s okay with us if priests abuse their power, as long as they don’t do anything illegal”.

What concerns me most of all is this: As long as the culture remains in place, the potential for harm continues. As long as the culture remains in place, the potential for “[hiding] behind a clericalism which is prepared to protect vicious behavior at the expense of defenceless innocents” remains in place.

This is simply unacceptable.

Sounds familiar? Why?

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