Some Thoughts on the Philosophy of Law in Judaism
How Pascal, Albrecht Alt, and Hegel can help us understand what is missing in halakhic ruling today. An essay on casuistry, legislation, and the religious individual living in a sovereign state.
1.
In 1952, a talented and well-known publicist published in the journal BeTerem a series of articles advocating the establishment of a Jewish theocracy in the Land of Israel. BeTerem was known to the public as a journal critical of the political establishment of the young State of Israel, but the radicalism of this particular series of articles was ahead of its time. The articles, ostensibly addressed to the religious person and his conscience, in fact constituted a preliminary development of a position that perhaps only in the last generation has gained true adherents. The author placed the religious reader on the horns of a dilemma: either the Jewish state that had been established constituted an unprecedented event in halakhic Judaism and one must establish a conception of how to relate to it on the halakhic level; or it was an event of no special halakhic significance, and one ought to relate to the state, as Neturei Karta relates to it, as gentile rule in every respect—perhaps far more dangerous, since it might seduce naive souls to abandon their Judaism. If, as it seemed to the author of these columns, the State of Israel is indeed an unprecedented event in halakhic Judaism, then the conclusion that followed from this was that the faithful of Israel must prepare a comprehensive program for a halakhic state and act toward a religious revolution.
The author, who was already about 49 years old when he wrote these words, was, of course, Yeshayahu Leibowitz. It is accepted in scholarship that “the early Leibowitz” was a theocrat, and only the late Leibowitz—this is the implication that follows from the prevalent, somewhat misleading presentation of this periodisation—is already something else. A liberal? We would not dare say so, but if you think it, what of it? In fact, however, Leibowitz himself republished this series of articles, together with additional articles he had written, in 1975 in a collection titled Judaism, the Jewish People and the State of Israel. In the preface, Leibowitz makes it unequivocally clear that he is not retracting the things he wrote in the various columns he republished there, and one ought to see the things as part of a single fabric. The implicit reading of these articles is that Leibowitz did not “retract,” but rather became disappointed. His disappointment with the inability of the religious public to adopt the revolutionary position led him, having no choice, to adopt a position that would protect religion from the influences of the actual State of Israel, until another opportune time would come. In other words, Leibowitz’s stance toward the actual State of Israel became tragic, but the way in which he understood the unprecedented historical reality of the State of Israel, its implications regarding the need for a religious revolution—internal, and then external—and finally his contemptuous attitude toward the conservatism of the official religious establishment, all these remained unchanged. In practice, more than Leibowitz’s persona expressing a process of disillusionment, it resembles the position Ayatollah Ruhollah Khomeini might have adopted had his attempt to establish a Shi’ite theocracy failed.
I raise this well-known story in order to argue that Leibowitz, more than others, was ahead of his time in understanding a fundamental problem facing Judaism in general, and particularly in the era when the State of Israel existed. Leibowitz understood that halakhic Judaism is based on a program of precedents. The Talmud is conceived as a corpus in which the sages ruled on cases of various kinds according to the law that was transmitted to them, and their rulings are binding upon us. Since their rulings are binding upon us, when an apparently new case is placed before us, we must check which of the cases the sages already ruled on applies to this case, and rule according to the conclusion. Like the Anglo-Saxon common law (at least in its older version), such a conception of the law has a tendency to “accumulate” obligations, and indeed, with us too there is a noticeable tendency to rule not only according to the rulings of the Talmudic sages, but also of the Rishonim, Acharonim, and so on. Of course, the ruling works in a gradual manner, and the tendency is not to rule according to earlier sages if there are more relevant precedents among the later sages. In other words, the philosophy of law that Judaism has adopted tends toward a paradigm of the growth of law in light of previous court rulings in particular cases. This conception has come to be known in the philosophy of law and ethics as a casuistic conception of the law.
That said, this conception of Jewish law was not the only one in the history of Judaism. A prominent—and perhaps unique—exception in his principled opposition to casuistic legalistic engagement (as opposed, perhaps, to intellectual engagement) with Jewish law was Maimonides. This opposition is reflected in his famous introduction to his work, Mishneh Torah.
As is known, Maimonides made one of the first attempts at codification of Jewish law, with a clear purpose that this codification would serve as a substitute for the casuistic corpus that had characterised the Oral Torah until his time. In the introduction, Maimonides cites two different reasons for this enterprise. The first reason, which is not formulated in the language of cause or justification, is that in his time the knowledge of Jewish law, with all the various corpora among which it is scattered, was nearly lost. The second reason Maimonides cites is that there is an inherent flaw in the manner in which the matters are arranged in the Gemara, in the Midrash, and in the works of the Geonim afterwards, “this one says thus and that one says thus.” A flaw that Maimonides seeks to remedy to the level that “small and great” would not need “any other work in the world concerning the law of the laws of Israel.”
As is known, Leibowitz is considered by many to be one of the great commentators on Maimonides in the twentieth century, and one can discern in him a deep personal closeness to the figure of Maimonides, sometimes to the point of identification. In particular, a neo-Kantian understanding of halakha is revealed in Leibowitz’s persona that undoubtedly has a surprising echo in the history of Judaism. Leibowitz’s conception of commitment to halakha as a categorical commitment, in this sense, reflects a continuation of the legal spirit that still blows in part of the Mishnah, and afterwards in some of the Talmud and of course, in Maimonides. This commitment, in Kantian language, can be understood as opposed to a hypothetical imperative, that is, in opposition to a conditional commitment. For Kant, the categorical imperative, as is known, is a universal imperative built on the ability of reason to legislate a law for itself, and therefore it is unconditional. Every conditional imperative, by contrast, is always an imperative whose source is external, and therefore obedience to it depends on the legitimacy of the external source, and it may indeed be mistaken. Obedience to an imperative of this kind, therefore, will always be merely external. Such obedience, if we may use a complementary Kantian concept, also characterises obedience to a reflective-juridical decision (in our case, a casuistic decision about which law to assign the particular) that by its nature differs from the way Kant characterises obedience to the law.
This spirit in Leibowitz, in fact, reflects a categorical conception of commitment to halakha, a conception that, of course, is only logical within the framework of a halakha that is not an aggregate of binding cases but a complete whole toward which a person may express a comprehensive commitment. The Leibowitzian religious commitment, contrary to what certain interpreters of Leibowitz try to portray, is not an arbitrary “existential” matter—rather it stems from the nature of the object to which one commits oneself, no less than from the integral nature of the one before whom one commits oneself. In these columns of Leibowitz, the Kantian training leads him to a particularly radical formulation of the religious demand required of a religious citizen in the State of Israel:
“[...] no action in this domain can be expected from the official religious teaching institutions, since they are bound in the chains of the psychology of the tradition of those generations, in which the social and political order of the Jewish people was not in its hands for shaping—to maintain or to change; therefore they were exempt from the necessity of innovative religious legislation according to their own judgment and responsibility, and were accustomed only to rule halakha according to halakha that had already been ruled, that is to say, to base the religious decision on precedent alone: ‘to compare like to like and conclude the discussion in accordance with the halakha.’ But our generation has done an unprecedented deed in our history, unforeseen from the standpoint of that religious consciousness, which accepted the rule of foreigners over us as a given reality not to be questioned, at any rate within the framework of history. On the decisive religious questions of our generation, one cannot rule according to halakha, but must legislate halakha.”
Thus, both regarding Maimonides and regarding Leibowitz, it seems correct to say that religious commitment as such requires of the Jew that he be able to adopt a philosophy of law that is not casuistic. At the same time, it seems that both of them, with all the duality in their rhetoric toward the historical situation into which they found themselves cast, seek to portray this historical situation as both a crisis and an opportunity that obligates us to awaken to the categorical religious duty. But in order to understand what the flaws—and the gains—are in casuistry that raised the ire of Maimonides and Leibowitz, we shall now turn to one of the most authoritative, and most partisan, sources in the history of philosophy regarding the nature of casuistry.
2.
To learn a little about the advantages of casuistry, we will have to turn to a somewhat unexpected source, Pascal’s Provincial Letters. I say unexpected, since whoever knows these letters knows very well that from these letters we are expected to learn primarily what is wrong with casuistry—and indeed, the reading of these letters by a Talmudic Jew is not comfortable. As you may recall, Pascal writes these letters to an imaginary friend from the provinces who does not understand why the entire theology faculty at the Sorbonne is in an uproar around the trial of one of the Jansenists (a new Augustinian Catholic sect at that time) and tries to explain to him what all the fuss is about. In effect, these letters are a brilliant satirical defence by Pascal of his Jansenist friend against his enemies, the Dominicans and especially the Jesuits.
Thus, in the “Fifth Letter,” Pascal chooses to take off the gloves against the Jesuits and explains to the general public what “casuistry” is as a Jesuit doctrine and why it is shocking. The first thing we learn about the subject is that casuistry is what enables the Jesuits to be so effective and to spread quickly everywhere. Casuistry, first of all, is the possibility of adapting ecclesiastical law to heterogeneous audiences around the world. Thus one can send especially strict doctors to the few communities that demand strict Christian law, much more “liberated” doctors to the European rulers and to the rest of the publics that demand all sorts of leniencies, doctors that almost permit idolatry while they labor on converting the Chinese or the Indians, and so on in this manner. This method is, in fact, made possible by Jesuit corpora of hypothetical and historical cases of ecclesiastical rulings, a corpus by means of which, in effect, one can turn the law into plasticine, and every doctor can adapt it to the target audience he serves.
This method, in fact, enabled the Catholic Church to fight the Reformation, to cause the Catholic faith to spread to new audiences, and to construct a Christianity especially suited to the ruling class in Europe. Most of all, this method saved the institution of the Catholic Church from oblivion—the Jesuits, for example, brought Catholicism to the non-European parts of the world. As is known, the Catholic Church today is in fact European only on account of its historical heritage, while demographically the vast majority thrives outside Europe and even outside the United States. If you will, “Give me Yavne and its sages,” the Catholic Church version.
This flexibility is the point. Casuistry works as a wonderful method if we wish to preserve as intensely as possible a certain way of life, or even to promote it among new audiences. But as Pascal shows, this method is not without problems, to put it mildly. Pascal’s sharp critique of Jesuit casuistry became so famous in Europe that one can say it left its stamp on the Jesuits’ name in Europe to this very day. This critique also created, to a certain degree, the model according to which the Enlightenment philosophers, a hundred years later, would criticise religion in general—a debt that even Voltaire acknowledges.
When Pascal describes the Jesuits’ ability to reach everywhere, his description tends very much toward sharpened irony. It is implied from him that the Jesuits will sacrifice any principle, twist any conscience, in order to obtain more distribution and audience. Therefore, Pascal’s first critique of this practice is a critique of the hypocrisy required of those who disseminate it. He describes a common situation in which a particular doctor of law holds that the ruling in a particular case is one thing, but reports to the one who came to him a different ruling, just to please him. But this is still not the deeper critique of casuistry. As we shall see shortly, certain factors in Jesuit casuistry contributed to turning ecclesiastical law into a joke that even “earthly” (secular) states would not allow themselves.
At the foundation of the casuistic theory stands the “doctrine of probability.” According to this doctrine, different doctors disagree with one another about the correct judgment in a particular case. This is true, of course, in almost every case. According to the doctrine of probability, a person is permitted to follow a ruling as long as it is ruled by at least one respected doctor, what is called, “he has someone to rely on.” And there is no objection—on the contrary—that doctors rely on other doctors that they themselves believe are mistaken, provided that in the present case the determination of those other doctors is convenient for them. At a certain point, the ostensibly innocent protagonist interviewing the Jesuit doctor in the Fifth Letter understands that there is a much deeper problem here: relativism, the replacement of the authority of revelation, and the preference of modern positions over the holy scriptures. In other words, the “doctrine of probability” empties the law of every dimension of real authority in favour of unlimited flexibility. Casuistry, in the mirror of the philosophy of law, is legal anarchism that may flourish only when there is no need, or desire, for real authority.
Pascal has helped us to understand a little of the structural characteristics of casuistry. But for the sake of our discussion, there is a need for a deeper understanding of the kind of institutions that may cultivate casuistic or categorical systems. In particular, it would not hurt if we did this in relation to the declared subject of this essay, Judaism.
3.
Albrecht Alt is a relatively colourful figure whom too few people know. A scholar of the “Old Testament,” a Protestant theologian, and a kind of spiritual father to certain archaeological conceptions at Tel Aviv University. After Alt returned from his time here in the Land of Israel to Germany, he encountered the Nazi regime. As you can imagine, being a scholar specifically of the Hebrew Bible in the theological atmosphere that Buber and Rosenzweig so aptly described as “neo-Marcionite” is not the most successful idea, and indeed, Alt’s career in Germany underwent many tribulations. Beyond the repeated attempts to cancel academic activity of the kind Alt engaged in (the engagement with the Hebrew language, for example), Emanuel Hirsch published in Germany a theory according to which the origin of Jesus himself was not Jewish but Aryan. Alt, who at that time was the only authority to argue against this thesis, was invited to speak throughout Germany to defend the claim that Jesus was Jewish. Apparently, he used to call these exhausting trips around Germany “my Galilean problem.”
In any case, Alt’s most important book is The Origins of Israelite Law, in which he emphasised the central distinctions between the different formulations of the law in the Bible and opened the research to the possibility of systematic examination of the formulation and language of the legal collections in the Bible. His classic distinction is between casuistic laws and apodictic laws. Casuistic laws, especially in what is called the “Book of the Covenant,” such as Exodus 21:18-19 (”When men quarrel and one strikes the other with a stone or with his fist, and he does not die but takes to his bed; if he then gets up and walks about outside on his staff, he who struck him shall go unpunished, except that he must pay for his loss of time and for his complete cure”), are characterized by the fact that, by all appearances, they were used at some stage in a local court. These laws, almost without exception, are not religious laws; that is, they pertain to regulating the relations between man and his fellow and do not pertain to priests. These laws make non-personal use of the general title “God” and have not a few parallels from other legal collections from the Ancient Near East—legal collections that were discovered approximately in Alt’s time. The origin of the culture in which casuistic laws of this kind were common is in the second millennium BCE, including, apparently, in Canaan. I will not go into the full extent of the linguistic arguments that Alt enumerates to separate casuistic laws from apodictic laws in the Bible, but I will want to point out that Alt holds that the basic formulation we examined, of the conditional words (”when” and “if”), characterises one legal unit. Every such unit includes a variety of clauses that divide reality into a complete logical space that can serve a local judge. According to Alt, this is the characterisation of casuistic law in the Bible from the standpoint of its formulation.
The apodictic law, on the other hand, on the one hand leans on casuistic law as a basis at times, and on the other hand already shows distinct stylistic changes. An example of this can be found in Exodus 21:22-25 (”When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise”). Note for instance how the formulation of the “regular” casuistic law, opening with the two conditional words (”when” and “if”), is preserved. By contrast, in the consequence portion of the sentence, in the apodosis, the formulation changes from third person to second person. There may also be a certain change in the aspect of the verb in the apodosis. In addition to this difference, one ought to note the “strangeness” of the verses in that same chapter [21], verses 15-17: there, the punishment in all the cases is identical, and it appears that these laws were meant to be read together as part of one unit woven by a similar meter. So much for various remarks on the formulation. My discussion, it should be noted, is far from being comprehensive enough—neither in relation to Alt’s book, nor in relation to the literature that has developed since. In any case, Alt’s thesis here is interesting: the distinctive Israelite development is specifically apodictic law. This law is not only not casuistic in its formulation, but according to his approach, also in its spirit: every breach of the law is met with the same severe punishment—death. Likewise, among the laws of this kind, there are many more religious laws. Alt also sees a correspondence between the unequivocal punishment common to all these cases and the unconditional nature of the will of the Israelite God. In addition, Alt emphasises that while casuistic law was meant for regulating relations between man and his fellow, it appears that apodictic law was meant for regulating a national-religious collective, as for instance is expressed in the book of Deuteronomy (27:15-26, in particular).
There is, in this kind of interpretation, in my opinion, also a deeper point that pertains to the philosophy of law itself. Alt sees in this the monarchical establishment of Israel in the Land, as a transition from a stage in which the judges (from his standpoint, mainly the “minor judges”) managed a decentralised judicial policy to a state in which there is one centralised law. The centralisation is required mainly to manage wars and to protect the Israelites from their large neighbours. In the Israelite case, it also has an important religious dimension: it is mainly under the apodictic laws that the ability to keep the Israelites separate from their environment, which worshipped other gods, receives expression. Interestingly, if we return to the 17th century in Europe that we discussed in the previous section, we can see there a relatively similar dynamic. The centralised state, which is the beginning of the modern state, arose as a result of the various religious wars in Europe as a supreme authority. The infinite fragmentation into different sects was ultimately expressed in the erosion of authority—in anarchy. That is, out of the shattering of traditional religious and secular authorities in the 16th century throughout Europe, a shattering that stemmed from erosion and ideological ferment, a new conception of absolute authority was shaped as one that is not sectarian. In parallel, in what became known as the Counter-Reformation, the Catholic Church was forced to respond with a conception of law that could live alongside this new state in which Europe is riddled with absolute authorities over which the Church has no significant sovereignty. The Church responded by creating casuistic corpora of ecclesiastical law that, as mentioned, enabled it to survive without the real sovereignty that had been its political and religious lot in the past.
An interesting way to understand this contrast, or why a situation in which there are competing authorities—the classic casuistic situation—erodes the authority of the law not only in the secular sense, but also in the religious sense, is through the famous midrash about the sun and the moon. The sun and the moon were both created “great.” But the moon went and complained that there is no possibility for two kings to use one crown (sovereignty). God, in response, diminished the moon, and thus a hierarchy of size between them was established. The logic behind the moon’s complaint is that plurality is fundamentally opposed to the very essence of sovereignty. The religious person who stands before different rulings on religious matters, or before the religious law alongside the secular law, finds himself in a certain sense in a similar confusion. A situation in which he is theoretically pressed to the question of “whom” he ought to listen to, or to the appropriation of the validity of one authority by the other, in an attempt to re-establish monolithic authority.
This allegory has, in fact, already brought us to the threshold of the dilemmas that characterise our era in particular. Before we continue the discussion, I would like us to give attention to a certain way, fairly popular at least among observant Jews, to respond to the challenge facing the religious person in regard to authority, as it has been analysed above. The ironic solution, as we shall see, is not comprehensive enough to balance the modern halakhic system, but it will teach us important lessons about the relation between historical location and the ‘interiority’ of the law.
(Rembrandt, Moses Breaking the Tablets of the Law, 1659)
4.
Let us return for a moment to one of the well-known yet rather understated appearances of Pascal’s Provincial Letters on the philosophical stage in order to examine a possible solution to the problem that casuistry poses in Jewish law. In section §140 of Hegel’s Philosophy of Right, Hegel in fact summarises his discussion of the Good and the Conscience—and in effect, of morality in general—through a structure that relies on a discussion with Pascal. The fundamental problem this section grapples with is the problem that comes to a discussion at the boundary between moral life and ethical life. The problem at issue is the inability to elevate and express morality in concrete institutions, customs, and virtues. Hypocrisy is, in effect, the point where morality is expressed problematically, as if it were sufficient unto itself. As a consequence, it uses the capacity for abstraction to apply one law to itself and another law to others. It reaches its peak in the pathology of irony and Hegel’s excellent concept of “beautiful soul,” which, unfortunately, is not the place to engage with here.
That said, it is important to me to note a certain remark of Hegel’s on irony. For Hegel, Socrates was, of course, ironic specifically toward the complacency of the Sophists. In addition to the section, Hegel remarks that the concept of irony that can be extracted from Fichte and Schlegel is a concept that stems from an arbitrary and pseudo-omnipotent subjectivity that feels itself “above things” in a manner that it can ostensibly decide what will appear in its private reality and what will not. This concept of irony is, in fact, the extreme point of the evil that Hegel identifies in the “doctrine of probability” in the Provincial Letters. That said, two sections earlier at the end of §138, Hegel gives a more complex apology for the “ironic turn” of Socrates that would later star in Kierkegaard’s dissertation. “Only in ages when the actual world is a hollow, spiritless, and unstable existence may the individual be permitted to flee from actuality and retreat into his inner life. Socrates lived in the period of the dissolution of the Athenian democracy: he dissolved the world of reality and withdrew into himself, and there sought the just and the good.”
It appears that withdrawal from—or the negation of—reality and retreat into the self or into ideality is among the characteristics of times in decline. To be more precise, it appears that for Hegel and Kierkegaard, the justification not to take the actual ethical life—which includes obedience to accepted laws and institutions—seriously but rather ironically may be justified by relying on a historical conception. According to a historical conception of this kind, ethical life in the present must be degenerate in some way. Kierkegaard especially sees in irony a certain quality of a person’s theoretical life and not of his practical life. Socratic irony in particular is justified in Kierkegaard as a necessary transitional link from the decline of classical Athens to the appearance of Christianity. From degeneration to renewal. As if Socratic irony creates in the theoretical sphere the purification that Jewish law does to the Jews in the practical sphere as preparation for the appearance of divine grace. This last move of Kierkegaard’s, incidentally, ought to worry people regarding the popularity of the conception of the mystical meaning of the law in Judaism as its central meaning.
That said, what is interesting is that irony in general is indeed not a disreputable strategy in the context of modern observance of certain parts of the halakha. Commitment to halakha as a whole may, as we have seen, be serious, while doubt regarding the particulars will require relating to them precisely in an ironic manner: preserving the commitment to them while their performance is accompanied by a less serious, ironic atmosphere. In Jewish law, as in law in general, it appears that this is a natural part of maintaining an actual law—in contrast, perhaps, to morality, where such a thing is not possible—that at every stage there will be various parts of it over which it would be right to hang a quiet sign that says “under renovation.”
But the trouble begins when our historical analysis resembles the analysis of these philosophers regarding declining Athens. Is it possible to describe an ethical life, a life of keeping halakha, the relation to which as a whole is ironic over time? Apparently not. In this sense, the whole must succeed in preserving the particular’s serious commitment. But as we hinted at the beginning, this is not achieved through subjective commitment unrelated to reality; it is essential that it have some anchoring in legal, political, and historical reality. We shall now turn to think a little more seriously about the relation between these different components and how casuistry and categories serve in different roles in relation to them.
5.
Casuistry and categories, as we have perhaps learned to see by now, are concepts that can come to various expressions. One can speak of a categorical formulation of a law, or a categorical reason for the legislation of the law, or a categorical judgment of the appearance of the categorical law in the context of a centralised state, and conversely, of their casuistic receptacles at all these levels. We have also seen that from the Bible onwards, Judaism contains within itself expressions of both these categories. In periods in which there is more civil centralisation, we will find more categorical expressions of the accepted law. So it is, as we have seen, in Alt’s theory regarding the Bible, but so it is also in the relation between the Mishnah—closer to Israelite sovereignty—and the Gemara, which is written in more decentralised periods. So it is also, in fact, with Leibowitz. Perhaps because he is a thinker and not a halakhic decisor, we are unable to see in his teaching a strictly Israeli expression that grows, according to him, from the unprecedented event (in relation to halakhic law) of the establishment of the state.
That said, I think we would do well to understand that even in the halakha of today, even if there are no decisors of the magnitude or with the requisite courage to issue what Leibowitz called “legislated halakha” instead of ruling halakha, there are decisors who understand that the political context has changed and there are those who do not understand this. This understanding usually preserves the casuistic framework of the halakha, but even within this framework, there is a fairly large gap in the different forms in which different decisors approach the work, and sometimes even in the types of judgments they would be willing to admit into their rulings. For the sake of the matter, I will bring here only two examples, one from the Chazon Ish and the second from the Seridei Esh. These examples are not unique, but since part of the reflection on the topic arose in me precisely from contemplating their words, there is perhaps reason to bring the matters specifically from them. Let us start with the words of the Seridei Esh, and I apologise to the reader that I am abbreviating their words.
The matter at issue is the question of whether it is permitted to perform an autopsy on the bodies of deceased persons even if the deceased did not command or permit doing so before his death. After Rabbi Weinberg enumerates considerations to this side and that as is customary, and especially refers to his book Seridei Esh where he discusses the matter at length, he says: “And behold this is a clear matter, that they will never reach one opinion in the Land of Israel—for this is not a private question but a general question; and the solution of the question depends much on the assessment of the situation in the medical world, and on the relation to the state and its institutions; [...] In my opinion, one must turn to the Chief Rabbinate and to the great teachers in the Land, [...] However, to our regret, not all the God-fearing acknowledge this, and every party has its own greats; and among the other factors, there are political factors; and those who engage in politics, not all of them have their intention for the sake of Heaven. [...] And there is no need to say that in our time the question of autopsies is a question of the state, and a question of the persons living in this state. According to the Noda BiYehuda [the Noda BiYehuda, on whose opinion on the matter they had mainly relied until the giving of this responsum], this question stood as a private question, and therefore he was correct in his ruling. In our time it is a question of the entire people, and a question of the state and its standing in the great world, [...] and it need not be said that the attitude of the cultured world toward our new state is one of the important factors maintaining our land, and one of the most important conditions for the security of the state and for the security of the lives of the persons dwelling upon it. [Here, Rabbi Weinberg explains the importance of medical schools to national flourishing and how they rely on autopsies]”
The Seridei Esh finally said that as far as he was concerned, were he asked to decide this matter, he would have permitted such autopsies for the reasons mentioned. What is interesting here is not only the matter itself, but the array of considerations in it: after the halakhic discussion was conducted and aspects to this side and that were revealed, the Seridei Esh engages in thinking of a different kind. He claims that as far as halakhic considerations of this kind are concerned, there is no agreement and apparently cannot be agreement between the different authorities of Jewish law in the Land. Consequently, what is needed is a certain kind of ruling that, on the one hand, could align all these different authorities into one authority, and consequently would make considerations of a centralised authority, of an unprecedented Jewish body that we need to live in—the State of Israel. In fact, Rabbi Weinberg demands, in his own way, what the young Leibowitz—and of course, not only he—requested: legislated halakha. There is a fine irony in the fact that categorical considerations of this style from a halakhic figure of this scale appear, at the very least, only in the matter pertaining to the question of whether it is permitted to dissect bodies. Rabbi Weinberg, of course, was not the first or the last to make this attempt, but in the fact that he formulated his words as a recommendation to those who would seek his words after him, there is an almost tragic awareness of the fate of this kind of ruling.
After we have discussed the Seridei Esh, who marks for us a “categorical” consciousness of a halakhic decisor, we shall try to discuss the pole opposite to him in this respect. Recently, the young Admor Aviad Markowitz published a fascinating article in Religia under the title “Halakha and Morality – Recalculating the Route.” In section ח [chet/8], Markowitz proposes a brilliant interpretation of the figure of the Chazon Ish that pertains not so much to the analysis of his rulings and the kind of considerations he applies, but to his consciousness as a halakhic decisor. According to Markowitz’s approach, the Chazon Ish is in fact continuing a deeply rooted Ashkenazi conception whose most prominent spokesman is Rabbi Chaim ben Bezalel of Friedberg, the elder brother of the Maharal. Thus, he writes: “Also, a person’s mind is not the same upon him at every time, and perhaps his mind would not be inclined to rule on it as he ruled on it yesterday. And there is no change or deficiency in this to say that the Torah is thereby made into two Torahs, God forbid. On the contrary—such is the way of Torah, and these and these are the words of the living God.” These radical words stand, of course, in distinct opposition to the words of Maimonides we saw at the beginning of the matter. Not only does Rabbi Chaim ben Bezalel not see a problem in a situation where there is a plurality of opinions regarding the same matter, but he also does not see a problem in the fact that these opinions are liable to be held at different times by the same decisor himself. This relates to the Talmudic expression as describing not only a plurality of opinions between different decisors, but in the same decisor himself, as Markowitz shows, is already found in the words of Rashi on Ketubot 57a.
The Chazon Ish, according to the analysis there, criticises the yeshiva study of “Mussar” and claims that the very practice of in-depth study is the true moral training. Markowitz’s innovation pertains specifically to the influence of this position on the character of yeshiva study in the Chazon Ish. Markowitz shows that for the Chazon Ish, “the study of mussar instills love and compassion for the pursued, and a venomous wrath for the pursuer, and how dreadful is the stumbling and abundant the snare to be among those who exchange the pursuer for the pursued and the pursued for the pursuer, and for the knowledge of whose truth there is no place but in the books of the decisors which have been transmitted to us by the giants of the world, our rabbis of blessed memory.” The Chazon Ish directs us to the study of the Gemara. Not to the study that seeks to make possible for us the exaggerated certainty of morality, but to the scepticism of the judge. The Chazon Ish sees the problem that Jews see the Torah’s law changing from judge to judge and begin to develop doubts regarding it. His solution is to put the Jew in the shoes of the judge through the study that trains the judge to scepticism and to renewed examination of every case that comes to his hands. In this sense, the built-in problem of casuistry with creating legal anarchism reaches its solution with the creation of a society of judges. It is hard to think of a more poetic expression of such a refined position of casuism in the conception of the decisor.
6.
The question that arises of itself from the reflections presented up to here is when Judaism, as a system of laws that has existed for roughly 3,000 years, needs to adopt Hegelian terminology—” casuistic” moments and when it needs “categorical” moments. Whoever has read the not-so-subtle hints here got the impression that the answer is first of all “now” and then “because otherwise Jewish law degenerates.” But the answer is in fact more nuanced. What exactly is different in what is happening “now,” or in what occurred with the rise of the Kingdom of Judah and the Kingdom of Israel, from other places in history where the casuistic form served Jewish law in the most successful manner?
The answer, to a certain degree, is found in the words of the “Seridei Esh” brought earlier. The question arises, who or what are the addressees of Jewish law? The Jews lived for a long time without a state, so it is a little difficult to speak to them in terms borrowed from the philosophy of law, as I have tried to do here, but it may be that the attempt must be made: what characterises the Jewish citizen, as distinct from the Jewish subject? What separates the Jew who cares for the welfare of all Jews from the Jew who cares for the welfare of himself and his community, or at the very least, what he understands as their soul? The answer is, apparently, an understanding of “the public domain,” not in the sense of the public sphere—which is always said as part of a plurality in Talmudic idiom—but in the sense of what is common to a large Jewish collective that lives together and manages its own affairs, on which falls an excess commitment unlike anything it has known, to care for itself not as an individual, not as a community, not as an umbrella organization, but as a state. A state needs legislators. It is not, in this sense, able to exist as a framework of judges. That said, as is known, the extent to which it needs each of them is not exactly a light political disagreement, and it is not my intention to solve it today.
In place of a solution of the relation between casuistry and categories or even comments toward such a solution, I propose, in summary, to complicate the problem a little. Until now, we have kept a certain distance from the classical questions asked regarding Jewish law as part of a religious practice, or as that which organises, among other things, the religious features of life. But the questions we have asked, in fact, have important implications, of course, also regarding the religious dimension. To see this, I propose to re-frame the famous debate of Rosenzweig and Buber around Rosenzweig’s open letter to Buber, “The Builders – On the Law” (Die Bauleute – Über das Gesetz).
Buber and Rosenzweig were, until the end of Rosenzweig’s days, close friends not only on a personal level, but almost brothers on the intellectual level. Over the years, Rosenzweig built for himself a conception—which is distant from that of Jewish Orthodoxy in several respects—of Jewish halakha that enabled him to approach and embrace some commandments. This approach came to public expression with the publication of the aforementioned letter. The letter sparked a correspondence between the two that has been much discussed since. What makes this correspondence fascinating is that Buber, ostensibly, never gave a final answer to Rosenzweig’s question: why, a law (and in particular, the commandments of the Torah), once it has degenerated, could not, in new circumstances of life, return to become divine law. For Rosenzweig, the law continues to express the presence of the divine voice that seeks a response from the person, even if temporarily it appears that the full corpus of the law is alienated from the possibility of the Jew fulfilling it completely, and it requires in fact persons who would be ready to stand and heal it “from within” by distinguishing its dead parts from its living parts through the personal ability they have to live full Jewish lives.
But Rosenzweig’s religious relation to Jewish law is bound up with a certain assumption regarding the nature of the law. His assumption—which is shared, in fact, by many of the ancient pre-Christian religions—is that law is capable of being an expression of divine presence (Gegenwart). The divine presence, in turn, is something perceived in the eyes of Rosenzweig and Buber as something personal, one-time, and situation-dependent. The responsiveness to divine presence is what fills the person with life. In this sense, for Buber, the question is not whether halakha has degenerated and ceased to fulfil its role in relation to full Jewish life as it is reflected in the Bible, but even in the Bible, whether law could ever express divine presence. Buber, who held that a person ought to judge his main actions anew each time out of spontaneous responsiveness to divine presence, to a certain degree crossed over to the almost completely anarchist side that was latent in the casuistic philosophy of Jewish law—” I do not believe that revelation is ever legislation,” he wrote to Rosenzweig. Rosenzweig, on the other hand, constructed for himself a renewed sense of precisely how what appears to be a collection of dead instructions may still embody something of the dignity of divine legislation.
It is precisely in this sense that the religious question about the status of divine law is, in fact, at the very least, also a question about the philosophy of law of Judaism. This question, which perhaps could have been discussed at leisure among German Jews after the turn of the century, has long since ceased to be theoretical. For Jews, it is doubtful whether there are weighty theological questions whose ultimate expression is not ultimately revealed in questions pertaining to their embodiment in law.
*Please note that this piece is a translation from Hebrew. In case some translation or reference isn’t clear, please consult the original version.