The Emergence of Jewish Law in Postmodernist Legal Theory[1]
by Suzanne Last Stone[2]
Copy
right 1994 by Suzanne Last Stone
Table of
Contents
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 postmodernity.
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 T
orah, 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 ba
sic themes.[3]
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 Juda
ism into the language
and categories of the philosophers of their times[4]
or, more commonly, by the withdrawal of normative rabbinic Judaism from
participation in the intellectual life of the larger world.[5]
This portrayal of the fate of the "halacha in exile"[6]
usually begins with the paradigmatic story of rabbinic Judaism's confrontation
with Hellenism,[7]
which led to the rabbinic
ban on studying Greek wisdom,[8] and
continues to the present crisis in halachic normativity engendered by modernity.[9]
How far alienated rabbini
c Judaism and Hellenism were from one another is
still a matter of debate.[10] Certainly,
the worldview 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.[12] Whereas ancient pagan
intellectuals and Roman jurists sometimes praised Jewish tradition and Jewish
law,[13] 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.[14]
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&
quot;[15] 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
[16]
and the consequent release of Jews into a culture dominated by secularism
and in possession of a modern historical sense.[17]
Secularization led to the loss of belief in divine c
ommand 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 independ
ent dimension of time, giving rise to the question whether Judaism's
past had meaning for the changing present.[18]
The investigation of that past through the application of the new historical
method, although originall
y 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.[19]
Although new theologies of Judaism developed to speak to modern man,[20]
only "the community of the faithful", increasingly seen as an
exotic group, continued to live within the four ells of halac
hah.[21]
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 reco
nceiving 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, substituting
in its stead th
e hatred of Israel and the love of Israel as the two poles
of Jewish life, was punctuated by the Holocaust.[22]
Yet partly in reaction to that cataclysmic event, which fueled a growing
intellectual disenchantment with m
odernity and the ideas of the Enlightenment,[23]
contemporary cultural attitudes toward Jewish literature and law again have
undergone a sea change. Midrash, the early rabbinic activity of scriptural
exegesis, long igno
red by Western scholars, is now cited as a model of contemporary
literary discourse.[24] 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 t
heorists 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.[25]
In short, the halachic system has com
e 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 i
nto the American legal
academy. At first glance, the two basic premises of postmodernism seem incommensurable
with the halacha. The postmodernist looks to mortal persons, socially constructed
and situated in communities, whose needs and aspirations are co
nstantly
in the process of revision and becoming, as the sole source of meaning in
the world. Moreover, the basic thrust of postmodernism is to dispel the
idea that law is a reflection, a mirror, or a representation, of God, nature,
truth, reality, or som
e 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 postmodernist 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.[26]
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 postmodernism 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.[27]
In this lecture, I would like to show how a ground has been created for
a meeting between the halachic
universe and that of postmodernity and also
to explain why I believe this meeting ground may prove to be extremely narrow.
I will review first how the penetration of postmodern thought into the legal
academy has shaped various debates about the nature of
law and then 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 postmodernity. 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.
I
I. 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 chang
e in people's way of perceiving the world.[28]
It is far too early to tell whether postmodernity implies a changed way
of looking at the world and of structuring experience, signaling the passing
of the modern era, or w
hether it is simply a set of thematic concerns.[29]
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, a
nd progressive conception of time. Instead, there are simply
incommensurable cognitive frameworks, all coexisting in time and even held
at times by the same person.[30] I shall
not offer any comprehensive definitions of postmodernism 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.[31]
Postmodernity 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 nonstate, 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.[32]
The dilem
ma of modernity, a
s 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".[33] 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.[34]
Consider the ideal of individual emancipation, whic
h 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,"[35]
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 ass
umes that one can formulate objective, neutral,
and universal rules and then apply them in concrete, specific cases. Borrowing
from poststructuralist 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. Rig
hts 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, wheth
er 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 happe
ns 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 subcommunities
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-produc
ing
community, the law of the subcommunity, 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.[36]
T
his is why contemporary legal theory is preoccupied with the question:
How can law endure over time?[37] The
answer some theorists have given, consonant with the thrust of postmodernity,
is that law is not a system of i
nstitutional 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.[38] Cover begins
by describing two contrasting ways of thinking about law. In what he calls
the paideic world of the nomos, law is a r
esource 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 ord
er 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 postmodernist
themes with those extrapolated by Cover from Jewish law.[39]
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 o
f 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 annou
nced:
"These and these (that is, both) are the words of the Living God".[40]
This principle is often linked in contemporary writings to another famous
talmudic account of a heavenly voice, the Oven of Akhnai s
tory, 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 m
ust follow the majority."[41]
These two talmudic accounts are jurisprudential cornerstones of the halachic
system - and there is, of course, a vast literature that addresses their
implications.[42] 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 c
onfirm 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
w
ealth 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 postmodernism.
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 addressese
ach 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 postmodernist
conception of the self. The postmodernist 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
argum
ent. 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 transfo
rm 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 d
rawn, 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, a
nd social perfection.[43]
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 postmodernist
idea of the innate desire of humans for
transformation. Maimonides describes
the command of emulating God, as the organizing principle of the Torah.[44]
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 postmodernist 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."[45]
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 a
spects 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.
Si
gnificantly, 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.[46]
Both sides call attent
ion 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 pro
cess of externalization and
then objectification of the community's aspirations,[47]
or as a binding act of covenant in which the community agrees to accept
the law as supreme authority in perpetuity.[48]
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.[49]
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.[50]
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 postmodernist 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 la
te classical antiquity "shows
broad parallels with the modern situation."[51]
The possibility of just such an affinity between our age and that of late
classical antiquity, the period not only in which gnostic
ism 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."[52] The great
classicist Dodds ap
propriated 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.[53]
The humanist ethos can be compared to that of modernity: a civilization
dominated by impersonal principles, state bu
reaucracy, 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 anci
ent 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 postmodernist
thought. That &quo
t;an analogous situation has given rise to analogous responses
in the past"[54] may explain the
startling resemblance of aspects of postmodernist themes to those of premodernism.
Postmodernism is usefully defined,
however, as a mode of thought that departs
from modernism but without reverting to the premodernist emphasis on cosmology,
as opposed to anthropocentricism, and on an epistemology based on authority.[55]
Accordingly, I
should like to focus on the themes of cosmology and authority
in exploring the similarities and differences between the two positions.
The postmodernist distance from cosmology is perhaps best exemplified by
the fact that contemporary legal theor
y, 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 survi
ve 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[56]
- 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 norm
ative 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, expul
sion 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-autonomousJ
ewish 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.[57]
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 whe
ther
the halachic system is consonant with postmodernist categories of thought.
Accordingly, I should like to return to the two basic and intertwined themes
of postmodernism, which break with both modernist and premodernist categories
of thought, that I i
dentified 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 ac
hieve the "reenchantment
of the world."[58] 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.
T
he 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 postmodernist 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 autho
r, but that the
entire Maimonidean system of jurisprudence embodies this perspective.[59]
Faur points out that, in the Maimonidean system, belief in God is a commandment
of the law. Therefore, belief in God is the conse
quence 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 und
efined 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 cou
rt 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 postmodernist thought and halachic d
iscourse. 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 w
hat 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 scrip
tural 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 t
he 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 befor
e his teacher, were already encompassed in
the revelation at Sinai[60] - 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;[61]
in still another, only general principles were revealed.[62]
These statements may be viewed as poetics, theology, or as legal theory
- efforts to ground the authority of the Mishnaic project[63]-
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 postmodernist's own,
but cannot be separated from Maimonides'
s particular views on language,
on the aggadah as "poetics,"[64]
both exemplified by his negative theology,[65]
and on the nature of juristic reasoning.[66]
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 l
aws are eternal. In principle, rabbinic derived law is revisable
- until its codification in the Talmud.[68]
One must look elsewhere to articulate a distinction between the self-reflexive,
conscious awareness t
hat 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
r
abbinic interpretation from the more empowering model of postmodernist
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.[69]
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 decis
ion; and the anxiety that often accompanies
halachic decisionmaking, 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 th
e postmodernist 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 a
s 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 p
rior 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 th
e 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 determ
ined 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 o
rigin
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 reg
ard
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 an
d 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,
mysti
cal, 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 star
t 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 poin
t, 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 ha
ve 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 wh
o 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 for
m, 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 anot
her? 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 powe
rs 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 c
anonical.
The concept of a fixed canon of authoritative rules, traditions, or texts
is, perhaps, the seminal characteristic of the religious mentality.[70]
Although canon is a Christian term, it, nonetheless, r
eflects 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 a
uthorized 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
f
ragmentation. 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 measu
res,
the amoraic rabbis did not disagree with their tannaite predecessors, and
similarly why the decisional consensus reached in the Talmud cannot itself
be reinvestigated.[71] 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,[72]
or suggesting that it is paradoxically the pedagogic asp
ect of the Talmud
that institutionalized its decisions.[73]
Caro writes simply that after the completion of the Mishnah, and so after
the completion of the Talmud, they "accepted upon themselves"
that later ge
nerations 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.[74]
The Talmud, writes Maimo
nides, 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.[75]
With respect to the most-talmud
ic 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.[76]
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 decisionmaking. The intellectual study of all the
sources of the law, including rejected opin
ions, 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 inter
pretation 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 postmodernity: that everything
is revisable. Postmodernist 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, d
ecanonization, and fragmentation,[77]
a fragmentation brought about by the desire to connect with the past and
at the same time to consciously change it.[78]
In the face of t
he 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 dramati
c 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.[79]
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.[80]
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 postmodernist 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, postmodernist theori
sts
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 orde
r 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 h
alacha's
dedication to the concept that Israel's very mission is to set itself apart
from the other nations.[81]
The rabbinic tradition itself speculates about such cross-cultural encounters
and the dilemmas th
ey may pose. Accordingly, I should like to conclude this
discussion of the meeting between the rabbinic legal tradition and postmodernist
legal thought by presenting a rabbinic antecedent of this contemporary event.
Whether apocryphal or fact (or, as is m
ost 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 permit
ted, while what has been stolen from a Jew is forbidden."
[82] The story concludes, in its earliest
version, with the promise of the Romans not to report the discriminatory
rule to the Roman government.[83]
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 relationshi
ps 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 viewedb
y 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, o
n the one hand, and non-Jews on the other.[84]
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 Leviti
cus 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.[85] A supplementary
hal
achic principle, sanctification of the Divine Name, is required, therefore,
to secure the protection of non-Jewish property.[86]
The narration of this story in the Palestinian Talmud specifically links
the turn to a sup
plementary 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."[87] In this
version of the story, too, the Romans promise not to report various di
scriminatory 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 postmodernist 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.[88]
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.[89] It remains to be seen whether the postmodernist 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.
Of course, despite the inte
llectual challenges of modernity and postmodernity, 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 at least noteworthy
that, in turning to the rabbinic legal model, postmodernist 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 postmodernist thought. An obsession with the struct
ure of thought is a particular feature of postmodernist theory - it is, as
one writer put it, "thought turned in on its own operation".[90] 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
postmodernist theory provides us with powerful tools with which to try to
understand th
e deep structure of rabbinic thought - one that I have contended
elsewhere places two opposing concepts in interactive, interdependent, and
irreconcilable tension with one another[91]
- 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, t
he 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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