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?