Tag Archives: meta-halakhah

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.

Avi Sagi, Tradition vs. Traditionalism

More on Avi Sagi,  Tradition vs. Traditionalism

This book presents his take on his four favored thinkers: Leibowitz, Soloveitchik, Goldman, and Hartman. I am not sure how much I agree with any of these readings.

Sagi likes Soloveitchik as confessional, existential, communication, and sensitive to the human plight,it makes for good “thematic halakhah.” but notes that Soloveitchik is not really existentialist and is more Kierkegaard where the natural order is one of alienation serves to drive us to religion. But in Sagi’s harsh reading of Solovetichik, religion is the only true, useful, and acceptable vision of man, a limited relationship to the modern world. Hence a retreat from the modern world, or a least a very rigid hierarchy. Modern man is characterized by alienation, boredom, frustration, and Soloveitchik cannot see the positive in modern secular man.  In Sagi’s opinion, there is openness to the human plight but closure to modern values. (American readers may not be familiar with this Israeli reading)

Sagi likes Leibowitz for his ability to compartmentalize religion from the modern world. For Leibowitz even the fear and trembling associated with relgion, as in Kierkeguard, are not religious but part of ones secular psychology, personal struggles, and inner self. Only faith is faith. He likes the valuing of the Oral Torah over the written Torah, since the written torah is from God and we cannot know its true meaning, but we do know the Oral law since we create it. And our following it for its own sake is faith. No realization of divine ideal through halakhah as in Soloveitchik but pure lishmah, pure obedience. Modern formulation allows the tradition to be kept.

Sagi’s hero is Eliezer Goldman, (student of Soloveitchik, and trained in American jurisprudence turned kibbutznik and Maimonidean- In my time his articles had a cult following). Goldman distinguishes between illusory and non-illusory faith, illusory faith seeks to remake the world according to ones yearnings. In contrast, non-illusory faith accepts the world as it is and there is no escape from reality. There is no certainty of any traditional metaphysical claims. Faith allows one to accept God and revelation; revelation is not a datum of experience but part of the worldview after faith. Revelation is the recognition of the halakhic realm as heteronomous. Commandments have meaning and value but not reasons, causes or factual referents.

All halakhah is grounded in meta-halakhah as its meaning. (Rabbi Wurzburger and Prof Twersky took the concept from Goldman.) Goldman rejects the legal formalism of Kelsen and Hart and stresses instead the worldview of the jurists, the need for juridical autonomy, and values. Values and principles do not rest on facts.  (Today this is closest to what is taught under the broad category of Dworken followers, and has elements of Isaiah Berlin.)  The law needs to be realistic and adapt to changing situations. And just like Maimonides poured “Old wine in new bottles” by reading Torah through Aristotle, we are self- conscious in our need for a new formulation. Like Maimonides, he rejects the view of the hamon am, the ordinary believer, as not true faith. (Somehow Sagi calls this Dwroken-Berlin approach post-modern.)

Sagi presents Hartman as a modernist in that he is in dialogue with the tradition and questions it.  He quotes Hartman as saying that Jewish thinkers know their period or text, while Jewish philosophers also seek to dialogue the Jewish thought with the present and other cultures. For Hartman, Maimonides as hero of integration and synthesis. Hartman chooses to develop his thought from Halakhah and Hazal over the Bible because the Bible is too theocentric. Halakhah is better for an anthropocentric philosophy. Hartman offers a Torah of pluralism of human construction, answers to human needs, a rejection of the theocentric,  and a rejection of terms like “alienation” as vestiges of older European thought. Hartman offers a halakhic hope for the state of Israel and the messiah, which is this-worldly, conservative and realistic—unlike the utopia, apocalyptic and unrealistic hope of others.

As a side story, Sagi has a great chapter of the coming to be of Leibowitz’s compartmentalized view. It all started with a forgotten 1952 article by Ernst Simon “Are we still Jews?”  The article discussed the views of his friends and colleagues in the “Bahad”- German religious kibbutz movement. He wrote that they are all Catholic in that they want an all encompassing view of Torah. Simon argued that a Protestant approach would allow for recognizing the secular state, and offers freedom for religious Jews to restore a meaningful existence for ourselves. In the article, he discusses his friend, the Bnai Akiva leader Leibowitz  who thought that we need to change the halakhah radically for the new state  to be all encompassing. Simon compares him to a reverse of Neturei Karta who want everything as it was. Leibowitz changes his view to agree with Simon and goes further using dialectic theology. The state and all of life is secular except for religion itself, all religion is a personal decision. Leibowitz even renames his  1943 essay from “Educating toward a Torah State” to “Education towards Torah in a Modern Society.”Rabbi Moshe Zvei Neriah also responded in 1952 to Simon and wrote that the secular state is a problem to our religious vision. Therefore must give religious meaning to the state