Thursday, November 23, 2006

Legal Codes

I haven't posted in a bit for a very good reason, and the very good reason was not that I was overwhelmingly busy with work, because I wasn't really, but because I did not feel like doing so. Didn't have much anything to say. I'm starting to think that I'm over this whole blog fad thing, but I hope that is not true, firstly because it's so cool to be able to say that you have a blog and secondly, because it's so darn useful when you find that you have something to say. As is the case now.

There are certain complaints about Judaism that are nothing short of classic. This post, for example, raises the always popular 'how can G-d fall for loopholes' question, not to mention the 'why does G-d care about details' one and the 'why should we listen to law made up by people thousands of years ago with no sense of modern values and whatnot' (which can be applied to Torah, Talmud, or later Poskim depending on the questioner).

All lovely questioners and fodder for as many mussar/kiruv shmoozes as they are for disenchanted ex-yeshiva rants. But I think that the questions stem from a view of Judaism that is simply skewed.

Judaism- by which I mean the halachic system- is a legal code. Not a set of morals or a philosophy book or a self-help book. Legal. And as such, it is going to have certain traits that are inherent in any legal code.

Conservativism, for example. Any legal code is inherently conservative, based on precedent and resisting any changes. That's what makes it a binding general social set of norms and not just 'what I woke up and felt like doing this morning'. So, yeah, it's going to be based on things that may not be strictly relevant today. Deal with it. And, if the system of law is any good, you have plenty of ways of dealing with it perfectly well. In such cases that legislation is out of the picture, interpretation, application, and enforcement give the legal system plenty of leeway to avoid gross injustices. Except in such cases as the law specifically demands the gross injustice and then you're already dealing with a different problem- that you think that the legal code is messed up and immoral, not that its contemporary application is unfit.

Loopholes, for another example. Almost all systems of law are deontological and not simply teleological. They care about the means and not the ends. An example from this book, which may well be responsible for my going into law. Let us assume that we feel that, when given a choice between hitting and killing 5 pedestrians and hitting and killing one, it is preferable to kill the one. Does it then follow that you are entitled to kill somebody and divvy out his organs in order to save 5 other lives? Most people would say no. And that's because we care about how you get to an endpoint, not just where you end up. Thus, loopholes. A loophole doesn't negate the intelligence or legitimacy of a system of law, because if it did, there wouldn't be any systems of law at all. And loopholes don't just mean that the lawmaker didn't happen to think of the case and therefore was too foolish to plug it up. If the lawmaker wanted to prevent the consequence, he is perfectly capable of making a law to demand the consequence he wants. Any system of law that chooses to base itself of forbidding certain specific behaviors is going to be riddled with loopholes. Get used to it.

And guess what? Legal codes aren't necessary moral. As one of my professors pointed out, the Talmud doesn't talk about right and wrong. It never stops and ponders 'How does G-d feel about the issue', nor does it phrase its arguments in terms of 'What does G-d want us to do?' On the rare occasions that G-d does express an opinion in the Talmud, He is shouted down (Tanur Achnai). The Talmud starts with the necessary initial assumption that 1) obedience to the law is moral and/or desirable and 2) that interpretation of the law is included within the law itself. And from that point forward, it's all about the law. As a living, breathing, evolving, convoluted, contradictory, frustrating, manipulatable entity all of its own.

And that's the way it has to be for the halacha to be the unbelievably awesome thing that it is. Because when you keep referring back to feelings and morality, you aren't inside a legal process any more. And when you aren't inside the legal process, you have cheated yourself of the opportunity to be a part of the creation of G-d's will. To create truth and morality within the structure mandated for humans to be able to participate in the whole thing. That's the crazy cool thing about halacha- it is simultaneously a supremely human legal system, with humans working away about applying and interpreting and inventing and whatnot, and at the same time, the legitimate expression of G-d's will.

Why would somebody choose to go off and mull about truth when he's being offered the chance to create it? Why would you choose to mumble about the dead rigidity of the law when there's a perfectly good structure that lives it? Why would you prefer to cling to your private morality when you have the ability to make it G-d's as well?


Irina Tsukerman said...

Honestly, it reminds me about the various debates surrounding our Constitution. Which makes the whole thing still more interesting, because Israel does not have a Constitution, and... well... I wonder, if it did, how would it work...

Anonymous said...

Tobie - beautiful beautiful post. I hope all the disenfranchised former yeshiva yungelite read this. at least it's finally a fresh idea; maybe they can stop beating the same old dead horse another few thousand times.
Irina- see that's the reason Israel doesn't have a constitution- because it wouldn't work. believe me they tried, but we're a country of Jews; how could you expect us all to agree on enough such that we'd be able to create a constitution? i know it sunds like a steryotype, but if you go back and look at the history, that's actually exactly how it happened.

Anonymous said...

On the other hand, for a legal system to exist as a legal system, it has to be enforced, which ours seems not to be (on this Earth, anyway).
That's all for now; I was going to say something about philosophy, but I'm feeling suddenly apathetic.

e-kvetcher said...


I am both surprised and not surprised by this post. Let me try to articulate my objections:

1) I think using the term "skewed" is unfair. To me it implies that somehow they "just don't get it" as opposed to they "get it, but disagree with it". Many of these "questioners" have studied the same curriculum that you have, if not more. They seem just as highly intelligent as well as educated. Many are conversant in philosophy, epistemology, near east history and archeology. They are not lightweights - for many, this acquisition of knowledge was a direct consequence of trying to resolve the conflicts that they are expressing.

2) Equating Judaism with the halachic system - this seems very narrow. I am not sure if that is what you actually mean, so because I don't want to get off on tangents, for the sake of argument I will assume that from this point on you are talking about the halachic system.

3) I disagree that a legal code and a set of morals are orthogonal concepts. A legal code can easily be set up to govern morality - this is true both in non-jewish and jewish legal systems. The halachot of lashon hara for example, or kibud av v'eim.

4)You don't really deal with the fact that despite the similarities between secular legal codes and halacha as well as other religious legal codes such as sharia, there is an enormous difference in the fact that the latter is believed by its adherents to be divine in origin. As such, the ability to institute new laws and to rescind old laws is severely limited. We can also talk about things like transparency and separation of powers, representation of the constituents, etc as significantly different concepts. It is true that most legal codes are conservative, but the source of their conservatism is very different between the secular and the religious.

5) Lastly, and this is probably related to the last point as well, you argument is strongest in the case where the "questioner" still shares your basic beliefs about the existence of G-d, the relationship of G-d to the material universe, and the relationship of G-d to the Jewish people. Many of the "questioners" do not share these assumptions.

Tobie said...

Irina- Israel can't handle making up a constitution. There are judges who are gradually inventing/interpreting their way into one, based on a couple of 'basic laws', which makes really sort of a mess

Miri- thanks.

Richard- the unenforcedness is simply a practical difficulty. In theoretical terms, the system is enforcable. The fact that we happen to be in a several thousand year exile need not take away from the theoretical system-ness.

Tobie said...

Firstly, I accept that my tone was unneccessarily patronizing, in the way that silly young people have when they think that they have figured out the answers to everything and aren't they clever. It was unintentional and annoying. I know that I am no way more intelligent and certainly not as well informed as almost all those people whom I am annoyed at, but nonetheless I feel that this is a perspective that may not be sufficiently considered and, in my mind, is both valid and useful.

But moving on...I don't object to people who reject the tenets of the system. Absolutely, the system is necessarily based on some rather major assumptions. What annoys me is when people object to the system as a system. That is to say, they think that the system is not logical or internally consistent. I think that the system, assuming its initial assumptions, as every system does, works extremely well.

Yes, I was discussing the halachic system alone, and this is because 1) it's the bit I like best and 2) it's the part that I think is most relevant to us as a community. Philosophy, theology and so forth is interesting and important, but the legal system seems to be the part of religion most given over the communal decision-making and involvement and the bit that requires the most unanimity, and therefore seems to be the one that is most useful for us all to be discussing.

Also, I agree that the conservatism in religious law has different sources than that in secular, but I don't know that it's quite as big a difference as it may seem. Especially in the halachic system, enormous power is given over into the hands of humans, who are free to really mess with/interpret with a lot of leeway. Also, secular legal systems tend to create a sort of reverence for their most basic tenets; America is getting leerier and leerier of amending the Constitution and I can hardly see a British legislature shrugging and deciding that the Magna Carta isn't such a great idea after all. I think that from the point of view of the judges, all law ought to be considered equally immutable, and that therefore the interpretive/application process ought to look pretty much the same.

Again, I agree that the halacha is not the same as any secular legal system. My argument is that it is working in the same universe- the same structures and methods and thought processes govern both. Therefore, questions such as morality may not be the ones that are most relevant to discussion within the system. This doesn't mean that morality isn't important- it's just not the language set that the game is taking place in. And that's why I feel frustration at so many discussions of these sorts of issues- on both sides, they seem to be importing a different sort of language and forcing it into the halachic system. Just as I feel annoyed at judges who start discussing their philosophy in their decisions or things like that- not that it isn't all well and good and not that it doesn't have a place in influencing interpretation, but it's not the primary language of the medium.

I hope that made some sense. It's rather disorganized and I'm feeling a bit unwell, so I feel like I may be dancing around the point that I am trying to make, but hopefully it will make some sense nonetheless.

e-kvetcher said...


Sorry to hear that you're under the weather.

Just to make sure that I am clear, I have a lot of respect for your intelligence, maturity and intellectual honesty. So I wasn't trying to bash you, as much as point out the same for the "other side"

I think part of what is bothering me about this post is that I see two separate things going on that in my mind are not necessarily connected and in your mind they are, if I understand correctly.

There are Reform Jews who study halacha because they love the structure of it and they appreciate the intricate, "crazy cool" beauty that is inside. At the same time, they do not view any of it as binding from a legalistic point of view. You seem to imply that appreciating the structure is the same as submitting to the authority of the content. This is where I think you and your ideological opponents are talking past each other.

Tobie said...

I didn't interpret your comment as an attack, it just made me realize that my post was really a bit pretentious.

I have no problem with people who don't accept the authority of the system. It's davka those who think that the system is stupid/messed-up that annoy me. That is to say, I agree that you can appreciate the system without agreeing to it. That's perfectly logical if you don't accept the base statements. But I don't see the logic behind failing to appreciate the system, as an intellectual exercise if nothing else.

e-kvetcher said...

But I don't see the logic behind failing to appreciate the system, as an intellectual exercise if nothing else.

Well, I think that this is because (I'm guessing) most of these "rants" you are reading are from people that are emotionally conflicted or hurt by this system, for whatever reason.

I mean, for most of these "frum skeptics" if it weren't for the anonymity of the Internet, they would have no ability to express themselves at all without basically putting their entire life on the line...

Anonymous said...

e-kvetcher- I think that was partly Tobie's point. I think she was expressing frustration towards the people who claim to be driven by logic and reason, when really they are being driven by emotion.

Ben Avuyah said...

Shucks, I guess I got here too late for the debate...ahh well, I posted my answer to you Tobie, although it is a very interesting topic for a post...

Tobie said...

Ben avuyah: let's declare that the debate is happening exclusively there and we won't run back and forth missing one another.