We are pleased to have a guest post by Jeff Helmreich (UC-Irvine, Philosophy and Law). Jeff presents a fascinating puzzle that “afflicts all well-developed legal systems, but Halakha more than most”. The puzzle “is based on three principles, each of which – by itself – is widely accepted by many who follow or study Halakha,” but are such that no Halakhic decisor can live by all three. Or so it seems. Jeff would appreciate suggestions for solving or dissolving the puzzle. Click here for the puzzle and enjoy!
Share This Post
Hello Jeff, hope you’re well.
First of all thanks for elucidating a problem that has been at the back of my mind but in a not properly formed fashion for many years. I think that the 3 principles you set out at the beginning are really helpful in framing the question.
I wondered whether there might not be some mileage in pursuing another form of dualism concerning the antecedent truth (or not) of halachic rulings. The idea would be that there is a body or bedrock of truth which can be discovered and is true independently of our discovery methods, and then a secondary set for which the truth isn’t independent of the method of discovery. You could think of this as a kind of ‘avot’ and ‘toldot’ situation with the avot having been revealed to Moses (even if subsequently forgotten or whatever) and then built into the system would be this further set of DP rules which allows for future generations to make decisions on questions for which no concrete answers were ever revealed.
I always thought that a system like this would be sensible in any event, since certain questions only arise as a consequence of new technology; although some might think that there is an independent truth stemming from Sinai concerning the permissibility or otherwise of using the Shabbos app (or whatever) this seems to me implausible. But the ‘bedrock’ question of whether one can use fire on Shabbos seems different, and one for which it seems less problematic for there to be an independent truth.
Hi Eli. So nice to hear from you!
And thanks for the great and innovative suggestion. I will not be able to respond fully or adequately before the rest of the holiday, but I want to at least start the ball rolling.
Yes, your dualism of bedrock Halakha (no pork or fire on Shabbat) and constructive (toldot) Halakha (shabbos elevators and quinoa) helps to reconcile the tension between faithfulness and pluralism. The only domain in which faithfulness applies, then, would be those bedrock Halakhas that leave no room for pluralism anyway. So no tension!
That leaves me wondering, though, whether faithfulness has such narrow application. Take your case of a “Shabbat app” (it blurts out, say, directions to the nearest minyan on Shabbat, without any action on your part). Is it forbidden or permissible?
True, the answer is in some sense under-determined by the sources, as you note. But in deciding the case, can we just flip a coin or choose what would serve the community best, based on contemporary preferences and interests of the right kinds? Or, on the other hand, do we have to try to determine whether this “app” would be forbidden by the same rules and standards already regulating Shabbat observance? The answer pre-ordained at Sinai, if you will. If, as I suspect, it’s the latter, then it would seem faithfulness still applies, and the problem resurfaces.
Part of what I think is going on here is that faithfulness is a constraint on action – halakhic decisionmaking – not a metaphysical thesis about what’s true or settled. So it is compatible with under-determination in the sources. There may be no single correct answer, but you’re still required to search for it, to “find” law as opposed to making it. I know that’s paradoxical, but I don’t see a way out: any alternative approach to Halakhic decisionmaking would have trouble generating a legitimate result, with the normative weight usually ascribed to Halakha. American law, as has been infinitely observed, can be made and not found. But Halakhic law seems to resist this flexibility except in extraordinary cases, even where the sources run out. Do you agree?
Jeff,
Thanks for your interesting post. Squaring legal pluralism with a suitably constrained legal decision procedure indeed poses a challenge. Since time is short I’ll limit myself to three brief comments, even though the waters are deep.
The first two points relate to your discussion of Aaron’s “Dualism”. First, with reference to your first objection to that view, i think it’s worth explaining in some more detail exactly how Dualism takes the wind out of the sails of elu v’elu, and why the hasidic partial credit idea is not the problem. Consider that the dualist construal of elu v’elu applies just as readily to the rules of major league baseball as to halakha — indeed, it applies to any system that grants final authority to a legal decisor who may misapply the rules to the facts (justifiably or not). Suppose that the runner touches first base just as the ball reaches the mitt of the first-baseman. The rules say that the runner is safe, since a “tie goes to the runner”. However, the rules also say that whatever the umpire says goes. Suppose that the ump erroneously calls the runner out (perhaps, from where he was standing, the ball appeared to beat the runner), or maybe he had a lapse and forgot the rule. In such a case, the runner is out (for all practical purposes) even though there is a theoretical sense in which the runner is safe. If we assume that Elu v’Elu goes beyond the pluralism that belongs to the rules of baseball, it must go beyond Aaron’s Dualism. (And this example also shows that the hasidic “partial credit” idea isn’t relevant here, since presumably the relevant actors MUST follow the posek/umpire — they get “full credit” if they do, and “no credit” if they do not.)
If you don’t go far enough in your first objection to Aaron, I think you go too far in your second objection. You say that, on Aaron’s view, the “reasons to DO some Halakha would not be the reasons it IS the Halakha,” and that this is a problem. If this creates problem for Aaron, it would create a problem whenever some act’s halakhic credentials constitutes a reason to perform that act – in other words, it would give rise to a problem for every halakhically required act! For it is never the case that some act is halakhically required for the reason that it is halakhically required.
Finally, you suggest that your puzzle is unique to halakha, which leads me to wonder what you make of Dworkin’s “One Right Answer Thesis,” which has received extensive discussion in general jurisprudence. Dworkin famously holds that even in “hard cases”, where there is room for reasonable disagreement, there is a single right answer that the judge must strive to discover. In support of his thesis he appeals to the alleged fact that, in interpreting the law (be it the Equal Protection Clause or a commercial statute), judges typically deliberate as though there is a single right answer waiting to be discovered by them. Many of Dworkin’s critics disagree with his One Right Answer Thesis and therefore try to find some other way of explaining the constraints on judicial deliberation. I wonder if those who pursue the latter course are trying to answer the very puzzle that you raise.
Thanks Jed.
Super helpful. I agree entirely with your first point, so I’ll focus on the rest. On your final question: does the same problem face American judges (if Dworkin is wrong)? I think it does, when at least two conditions hold: (a) their decision would be good law only if it is constrained by the sources; and (b) the sources are indeterminate. In such “hard cases,” judges would be bound to apply the sources but have difficulty doing so when, they know, the sources point equally to opposite holdings (see, e.g., Tushnet, ‘Following the Rules Laid Down’). I wonder, though, whether (a) really holds for judges in hard cases, granting positivism, and whether the view that it does is as widely supported as Faithfulness in Halakha. When the sources run out, I don’t know if a judge, like a Halakhist, is required to act as though they didn’t.
As for my second concern about dualism: First, just to clarify, my problem was with a Halakha’s DP credentials being *the* reason to follow it, not with it constituting *a* reason (among others). That’s because I’d have thought Halakhic law – unlike, perhaps, the requirement to pay the highway toll – is not supposed to get all or most of its normative force from the fact that it’s the law, even if that’s reason enough to follow it. There should be others, too, including whatever reason it should have been ruled as the law in the first place (eg. that something is, in fact, kosher, or that some day really is the day of Yom Kippur).
Think of a doctor-patient situation, where a patient has an exclusionary reason to take all and only the drugs his trusted doctor prescribes. She’s the best expert and he doesn’t have the time to check, so he rightly delegates the whole domain to her, even at the risk of taking a bad drug now and then. Still, that may not be the only reason to take a drug she prescribes; another might be that it’s a good or effective drug (if it is). That would surely constitute a further reason to take it, even if the reason to defer to the doctor holds, overridingly, as well. Same here, or so I’d have thought: that a decisor gets things right may be a good further reason to follow a Halakhic dictate, even if his saying so would be reason enough. Indeed, as with the doctor, his likelihood of being right each time could be the very reason we follow him at all.
But on a dualistic picture (I hesitate to say Aaron’s), I’m not sure what normative force a Halakah’s being theoretically correct would have for the lay person, in terms of why he should follow it, or why he should follow the decisor in the first place. Are decisors like doctors or scientists, so that we defer to them, as a rule, only because that holds out the best hope of getting things right overall? Or do we just follow them because that’s the rule, period, whatever its role in getting at the truth? The worry is that, on a plausible understanding, Halakha just *is* whatever we’re required to do Halakhically. So once it becomes a rule that the Halakhic “umpire” has final authority, there’s arguably no longer any normative significance, for the rest of us, in the reasons he should rule as he does (the paradox is that there may not be for him, either, as long as he acts as though there is).
Thanks. You say here, echoing a point you made in your original post, that you’d “have thought Halakhic law – unlike, perhaps, the requirement to pay the highway toll – is not supposed to get all or most of its normative force from the fact that it’s the law, even if that’s reason enough to follow it.” Punkt farkert! An act’s being required by Divine Law swamps, one would think, whatever independent reason counts in favor of performance of the act, whereas if there’s really nothing to be said in favor of complying with a civil law in a given case other than the law itself (e.g. stopping for a red light when one is certain that there is nobody else around in a hundred mile radius) then it is by no means clear that the legal obligation has “normative force”. To be sure, if the authority misapplies the general rule then the parties lose out on whatever led the divine legislator to lay down the one rule and not the other (though it’s worth noting that it’s a matter of controversy, in the tradition, whether there always is such an independent reason that led the divine legislator to issue one rule rather than another, and also that it’s commonly held that following the divine law is valuable in and of itself, such that there needn’t be some other value realized by the legislation). At best the reason that led the divine legislator to lay down the one rule rather than the other gives the legal decisor additional reason to try to get things right — reason above and beyond the legal obligation to try to get it right when issuing a psak! However, the divine legislator also held (according to the Dualist account you’re considering) that we should follow the decisor even when he misapplies the rule, and presumably there are reasons that led the divine legislator to issue this rule too.
“An act’s being required by Divine Law swamps, one would think, whatever independent reason counts in favor of performance of the act.”
It’s interesting that you say that; I’d have thought this was controversial on Euthyphro-type grounds: Abraham’s protest against the Sodom and Gomorrah decree might be read to suggest otherwise, at any rate (though the Binding of Isaac story arguably vindicates it). But more important, the dualist solution doesn’t work unless it rejects the identification of Halakhic law with Divine Law, or Heavenly truth, anyway. Instead, they say, Halakha is what results from a process whereby earthly authorities try to apply Divine Law, but sometimes fail. Halakhic Law is the “OU” certification, if you will, and Divine Law is the requirement to keep kosher. We’ve all heard the story of the pork with the “Kosher” stamp, right?
The problem is that if, with dualism, the only religious obligation is to do whatever those authorities say (“eat only OU”) and the authorities are obligated only to try, however ineptly, to get the Divine Law right (no easy task), then in what sense is anyone doing a particular practice – this and not that – because it’s Divine Law? Or for any other deeper reason? That is, except the practice of following the authorities itself which, as you say, may be Divine Law, but which hardly rescues any particular psak from this sense of arbitrariness.
One way around the worry, I want to suggest, is for the dualist to concede that, all equal, folks do have an obligation to obey Divine Law (so there’s only Heavenly/theoretical Halakha), but there are second-order reasons to take the authorities’ word for it, as a rule, among them the likelihood that doing so will better enable everyone to follow more Divine Law. Another reason would be that it enables an authoritative “final word” on Halakhic disputes, so we can settle them and move on. But then it starts to sound less like dualism, at least to me – which may not be a bad thing.
Why care whether there’s a further reason to follow Halakhic law — besides that it was produced by an authoritative process, endorsed from on high? I’m not sure, but it feels to me like there’s supposed to be some value, wisdom or justification behind why the religion has us doing this, and not that. That it follows Divine Law could be such a justification, if only the Halakhic process were in this way truth-tracking (is it?). But even then, it seems worth asking, with Hume: what exactly is the swamping, overriding force of an act’s being Divinely required? Is it that the divine legislator must have some very good justifications, even if we don’t always know them?
Hi Jeff
Thanks for a very interesting post. I’ve always found faithfulness a more appealing principle than pluralism. I wonder whether too much weight is given to the eilu ve’ eilu claim given that the story ends with God destroying a third of the crops and nearly killing R’ Gamliel.
The exegetical difficulties of this story aside (Avi Sagi’s book is a good starting point for material related to the story), additional pressure begins to build against Principle 2 when we consider the law regarding a Sanhedrin who reaches the incorrect decision (Leviticus 4:13-14, TB Horayot 1:4ff). This Biblical law would not make sense if Pluralism were true for one can read such cases as instances of DP that went awry. (Admittedly I have not studied these laws closely and thus welcome views as to their correct interpretation.)
My synthesis of the 3 principles is as follows. Those who are involved in DP are authorized to do so (Principle 1), their views (even if contradictory) enjoy mutual respect within DP (Principle 2), and that DP aims at truth (Principle 3). DP can thus result in an incorrect Halakha. Pluralism, on this view, only entails that a view is legitimate, not that it is correct or true. I don’t see this as a “sacrifice” of pluralism, but rather as a different understanding of that principle.
This synthesis does not see us paying too high a price, as you put it, for God has willingly paid it by laying the Halakha in the hands of fallible human beings. Apart from playing an intimate role in decision making, thereby guaranteeing its tracking the truth, God had no alternative. We try our best but doesn’t always succeed. (Additionally, this synthesis does not suffer from the other two costs you note with respect to Segal’s synthesis.)
With thanks,
Dani
Thanks Dani.
I’m so happy to read your comment, for a number of reasons. I always suspected that the pluralistic implications of Elu v’Elu have been overstated, and am very drawn to the interpretation you suggest. I think it’s similar to what Sagi calls ‘The Authoritative Model (‘The Open Canon,’ p. 80), which he attributes to R. Moshe Feinstein: there’s one right answer, but for practical reasons we give authority to the sages’ opinions, even when they get it wrong. We need them, like we need an umpire (see Jed’s comment), to settle disputes in a world without an Ultimate Referee, so to speak. When they get it wrong, we have to do what they say – to act as though they got it right – out of respect. But we can disagree, and if they keep getting it wrong we can challenge their authority, as in your great example about an errant Sanhedrin.
Along these lines, one thing that strikes me about the Akhnai’s oven story is the language. When R. Eliezer performs miracles to show that his lone dissenting view is correct, the rabbis don’t respond by saying that, eg., miracles prove nothing. Instead, they say, ‘We don’t take proof from [miracles].’ Similarly, they don’t proclaim something like “the majority is correct,” or “the majority decides what’s right.” Instead, they quote, ‘Follow the majority,’ or ‘Incline after the majority.’ Their problem is not epistemic; it’s procedural. It’s the process, not the truth, that’s ‘Not in Heaven.’
I recall that Weiss-Halivny , in this spirit, read these stories as less about the ontological status of Halakhic properties (treif, kosher, pure, impure), and more about the ethics of debate. On this view, R. Eliezer was rightly rebuked for his arrogance – he kept insisting, seemingly unmoved by the strong consensus against him – but he was wrongly over-punished for it by R. Gamliel, and his lethal resentment of the latter (in the Bavli) was therefore justified. Similarly, the final moral of the Hillel-Shamai debate is that we should follow the Hillelians because they were more generous interlocutors. So pluralism is really about how we respect the (possibly wrong) interpretations of others, not about their being correct, as well.
I agree, then, that your synthesis (very tempting to me) imposes a low cost, but that’s maybe because like you, I’m not very attached to deep Halakhic pluralism in the first place. But then I wonder what to make of famous themes like ’70 Faces,’ or the ‘49 ways.’ And, then there’s the sorts of cases Eli mentions (above) where the sources really are indeterminate. The texts will, at times, be too vague or ambiguous to dispositively settle every question, even bivalent ones. The issue of electricity on Yom Tov may be an example. Yet Faithfulness arguably applies there, too. In such cases, may the decisor simply assume there’s one right answer, and try, a la Dworkin, to interpret their way to it, or, with R. Feinstein, try to guess what the Torah “really meant” with the (insufficient) evidence they have? Or does indeterminacy vindicate pluralism, after all, or at least carve out a space for it in those hard cases?
Hi Jeff, thanks for bringing up such an important issue in such a concise and accessible format. It’s food for lots of thought, and here are a few reactions to the principles and paradoxes you’ve noted.
Authority
On certain accounts of the halakhic decision procedure, the decisor needs to be guided by faithfulness if there is to be any authority in the outcome. Rendering a decision may only be permitted – and then, perhaps, mandatory– after one has grappled with the sources and issues to the limits of one’s ability and reached a decision as to what the law really is. Of course, one could be wrong, but on this account, faithfulness (of a sort) is actually built into authority. The traditional expression for this is “The judge has nothing other than what his eyes see” (see the preface to Iggerot Moshe, to which I was pointed by R’ Yitzhak Lifshitz). On this account, someone who thinks “Wouldn’t it be convenient if the halakha were X?” and concludes on that basis simply lacks the relevant authority.
Pluralism
First off, a textual quibble. “Elu ve’elu” is not Mishnaic but Talmudic (famously, b. Eruv. 13b, but see the less known but more radical parallel at b. Git. 6b), and seems to have been confused by some with the “lo ba-shamayim hi” sugya (b. B.M. 59b, though see the more radical version at b. Tem. 16a).
I want to suggest an account of pluralism understood as legitimacy (similar to Dani’s). Some alternate normative claims are, like Beit Shammai, legitimate even if not governing. What does this mean? Not only can both sides be in practical communion (e.g. intermarriage) but the defeated or minority opinion retains sufficient legitimacy that we can imagine circumstances in which it actually would become the governing law (e.g. be-she‘at ha-dechak, hefsed merubeh, li-yemot ha-mashiah, etc.). In a sense, it already is, even now, part of the law.
I take this last point to mean that we need to be careful not to get distracted by the expression “THE halakha.” There may be one halakhah decided in one case, and a different one decided in a very similar case, so similar as to make one think that there are different halakhot for different people. Indeed, there are statements in Hazal that seem to affirm precisely this. The upshot is, I think, properly called pluralism. But it is plurality of situation and person masquerading as plurality of law. On this account, the ukimta seems to be able to do all the needed work.
Faithfulness
Your overall paradox seems to parallel the kind of thing that arises in the creative arts. If I’m composing a sonnet, say, and am stuck after the second quatrain, it seems that I’ve reproduced your paradox. (i) Even while recognizing that not “anything goes,” it’s still the case that I really can choose more than one option (pluralism); (ii) whatever lines I choose in the end to put there will really be the continuation of the sonnet (authority); (iii) some continuations are simply, genuinely better than others — more moving, more brilliant, develop more compellingly what’s already there in the first 8 lines – so that I have to work hard, I can get it wrong and we can all know it (faithfulness).
For all the obvious differences, note two consequences:
(1) We never feel tempted to say that pluralism and authority in the arts rule out faithfulness or the struggle to achieve truth, beauty, wholeness, sublimity or whatever the relevant aesthetic goals are. Why then in halakha?
(2) One would have to be a pretty strong Platonist to be tempted by dualism in art. Indeed, artistic practice often suffers from precisely the second-guessing and re-editing that you suggest dualism rules out.
Once again, thanks for putting such a compelling set of issues on the table.
Hello Josh!
Thanks so much!! And please forgive my delayed response – and its selectivity; there’s too much in your post.
Your idea of faithfulness built into authority sharpens the paradox: it simply doesn’t count as an authoritative ruling unless the decisor tries to get it right. But of course, as long as he was doing that, practically *any* ruling counts, even the opposite one – which, of course, implies that there’s nothing to get right. The paradox is now in sharper relief.
But, as you beautifully show, it doesn’t arise for artists, even though their practice arguably has some of the same norms as Halakha, especially faithfulness (the artist must compose a next note, line or brush stroke that’s worthy, that’s “the right” one) and pluralism (multiple next steps could be right).
One reason for this, I think, is that the possibility that more than one artistic “next” step could be right – or inspired or worthy – is not in tension with the artist’s attempt to get the right answer. He can try hard to get it right while fully embracing the multiplicity of “right’s”. Nothing about an alternative answer’s being (also) right implies that the artist’s actual answer isn’t.
But if you’re a Posek investigating whether something is ritually pure or impure, kosher or unkosher, permissible or forbidden (in other words, the class of dispositive bivalent cases), anything that counts in favor of ‘permissible’ undermines the conclusion of ‘forbidden’ and vice versa. That holds even if the Posek doesn’t know precisely what counts in favor of the opposing conclusion. As long as he knows that ‘impure’ can somehow be supported by the sources and found authoritative, then he can’t in good faith investigate why the sources rule out “impure,” favoring “pure,” instead. Pluralism already tells him that nothing can be ruled out, and yet getting it right – with these questions – requires reading the sources to rule out the alternative.
That is, unless – and maybe this is part of your point – I’m understanding faithfulness too narrowly, as the requirement to get the correct, as opposed to incorrect, answer.
Your evocative quote – ‘The judge has only his two eyes’ – suggests an alternative approach. Maybe ‘faithfulness’ is really about where we get the answer, at least as much as how we get it. Why, after all, require faithfulness in the first place? It couldn’t be to guard against getting things wrong; the judge is only human, and the tradition is dominated by recognition of their fallibility. Maybe the worry, instead, is that they’ll create/devise/fashion the ruling instead of discovering/interpreting/applying it. Or, as Mark Tushnet says with respect to the Constitution, the sources won’t sufficiently “constrain” them. They’ll be intentionally making the law, not finding it, and this undermines their authority.
But there’s a way to be constrained by the sources, in interpreting them to rule something or other, that’s compatible with pluralism. We can read a text, or a principle embedded therein, to teach or inspire us toward a conclusion – as often happens anyway – even while allowing that the same text could reasonably strike someone else differently.
For example (lehavdil), different judges read the U.S. Constitution’s Equal Protection Clause in opposite ways: some think it supports affirmative action – even providing the principle norm in its favor; others think it opposes the policy. But what’s important is that both readings can be faithful in the revised sense: one investigates the sources and gets inspired or taught by them toward a distinct conclusion. Importantly, one refrains from deciding before reading, and reading influences the decision. That’s a plausible understanding of faithfulness that doesn’t clash with pluralism. I’m not sure if it fits art and Halakha (or American law) equally well, but it seems like a promising way out. Is it what you had in mind? Either way your comment inspired me to it…
Thanks again!!
A comment on the first part of the argument, as it appears on p. 167. One possible way around the circularity Tyron Goldschmidt points to is to exploit the opacity of intentionality. Imagine this scenario. Abe, newly drawn to religion, sets out on an autodidactic study, starting with a reading of the Pentateuch that is helped here and there by one or two of the classic interpreters. He’s read Genesis and has been powerfully inspired into a firm belief in Gd. But this is, so far, just the Gd he’s read about there, the Gd who made promises to the patriarchs. It’s admittedly a belief in Gd as characterized limitedly — let’s call this the Gd of the Patriarchs. But I don’t think this limited familiarity is clear reason to deny that he believes in Gd. He now skips ahead and reads the first commandment, and with the help of his interpreters he understands it — or really misunderstands it — as saying that Gd, the One he’s so far familiar with and believes firmly in, namely, the Gd of the Patriarchs, commands him to believe in a Gd Who redeemed Israel from Egypt, the Gd of Redemption. (We need to ignore the fact that Gd, in the first commandment, identifies Himself as the Redeemer from Egypt; the whole scenario presupposes misinterpretation by Abe; but the story remains plausible.) Abe then complies with this commandment: he gets himself to believe in the Gd of Redemption, because he believes that the Gd of the Patriarchs has commanded him to do so. (Again, ignore the question of whether it is possible to will oneself to believe something — Ty Goldschmidt has astutely isolated that question from this distinct issue.)
Now, we know that the Referents of these two beliefs of Abe’s are One and the Same Gd, even though the senses differ in some measure. This means that both are, at the least in an extensional sense, beliefs about Gd. But also more than this: it does not seem to me clear that we cannot identify, as Gd, the intentional contents of each of these beliefs. The question is, is there enough in the way Abe conceives of Gd, in each case, to enable us to identify this content as Gd? I need of course to admit that Abe’s conceptions of Gd are importantly at variance with the monotheistic conception of Gd. Each of his conceptions lacks, for one thing, the idea of Gd as leaving no room for a divine being that is not identical to Himself. Some of us might just for this reason be inclined to disagree that we can attribute to Abe any belief at all in Gd. But this is not clear cut, and requires, I suspect, a larger discussion than belongs in this present space. It therefore does not seem to me conclusive that we cannot describe Abe as having come to have a belief in the existence of Gd, because of his belief that Gd has commanded him to have this belief. Or at the very least, Ty Goldschmidt is forced to add something in his argument about the characteristics of the Gd we’d believe in, Who cannot, if he’s right, coherently command us to believe in Himself.