WHY WE ARE ALLOWED TO COMBINE DIFFERENT HALAKHIC POSITIONS

On a more prosaic note, the understanding that the reasons underlying a given halakhah obligate us, and not the form of that halakhah, explains why we are halakhically permitted to combine positions (insights) from different poskim in order to create a new pesak. Thus, although the amoraim Rav and Shmuel each had a different understanding of what constitutes a private alley for Shabbat (in terms of traffic flow and doors), later Jews were permitted to play out each amora’s insights in order to create a new pesak on how to privatize an alley for Shabbat:
תלמוד בבלי מסכת עירובין דף ו עמוד א
1. תנו רבנן: כיצד מערבין דרך רשות הרבים - עושה צורת הפתח מכאן, ולחי וקורה מכאן.
2. חנניה אומר... עושה דלת מכאן, ולחי וקורה מכאן.
תלמוד בבלי מסכת עירובין דף ו עמוד ב - דף ז עמוד א
3. איתמר, רב אמר: הילכתא כתנא קמא, ושמואל אמר: הלכה כחנניה....
4. ההוא מבוי עקום דהוה בנהרדעא, רמי עליה חומריה דרב וחומריה דשמואל, ואצרכוהו דלתות.
5. חומריה דרב - דאמר תורתו כמפולש. ...
6. כשמואל, דאמר: הלכה כחנניה. ...
7. ומי עבדינן כתרי חומרי?
8. אמר רב שיזבי: כי לא עבדינן כחומרי דבי תרי - היכא דסתרי אהדדי...
9. אבל היכא דלא סתרי אהדדי - עבדינן.
The Jews of Nehardea combined Rav and Shmuel’s insights; they both treated a curved alleyway as a thoroughfare (although work related transportation tends to be focused in the shortcut straight alleys) and required a curved alleyway to be framed by doors (instead of relying on slight indicators that it is a residential alleyway and not an alleyway of shops).

Although in this last example, different insights had been combined to create a stricter norm, Rabbi Elijah Mizrachi (Constantinople, ca. 1450 – 1526) pointed out that one that one might also combine insights to create a lenient norm:
שו"ת רבי אליהו מזרחי (הרא"ם) סימן נו
ואין להקשות על מה שלקחנו קולי רבינו משה [הרמב"ם] ז"ל בענין ההוראה הזאת ועזבנו חומרתו שפסק בענין הברזא... ולקחנו קולי רש"י ז"ל דפסק בענין ברזא...
והוה ליה מקולי דמר וקולי דמר
דיש לומר הני מילי היכא דסתרן אהדדי דומיא... דפרקא קמא דערובין אבל היכא דלא סתרן אהדדי לית לן בה

Traditional Halakha versus Dworkin

Dworkin posited two elements involved in a legal interpretation.  The first, fundamental or “threshold requirement” is that an interpretation “fit” the denotation of the legal data, and “even when an interpretation survives the threshold requirement, any infelicities of fit will count against it.”  The second ideal criterion is that the interpreter should provide “the best constructive interpretation,” one that “shows the community’s structure of institutions and decisions—its public standards as a whole—in a better light from the standpoint of political morality.”  (Dworkin 1986, 255-256)  My argument is that as regards traditional Halakha the assumption of constructively interpreting the precedents is simplistic while the assumption that a constructed interpretation has to fit the denotative sense of the data is excessive. 

In pre-modern, non-legalistic, Halakhic methodology all the norms of a society committed to goodness are always going to have (1) a justifiable perspective and principle, (2) a contextual explanation for their being exceptional violations of a contradictory principle, and (3) so their original intent is open to be read charitably as in line (from some perspective) with the all of the community’s principles.  That being the case, there is no need to creatively reread norms with charity and no concern with maintaining fit.  Rather, the socially recognized sages, the contemporaneous definers of law in a wisdom tradition - in a system that does not include distinct agencies of legislation to overturn earlier law and of legal interpretation – (attempt to) read the original value balance of a specific norm and then weigh how best to apply the norm under contemporary conditions.

This traditional method of Halakha has helped protect Judaism from the flaw in the Dworkian and any other classic judicial model.  If a society follows a classic judicial model, even a creative one similar to Dworkin’s, it finds its conservatives and liberals painting the sources to best reflect their ideal principles and attempting to silence the other through the manipulation of the legitimating legal langue.  If a society chooses, on the other hand, to follow the traditional Halakhic philosophic model then its liberals and conservatives do not discount the others’ values since they share those values.  Rather they jointly enumerate all the conflicting underlying values that both sides both share and incorporate even as they simultaneously debate how best to incorporate, or balance, the conflicting values.

This Method as a Paradigm Shift

This Method as a Paradigm Shift

To reiterate, this is a paradigm shift – on the one hand a return to the classic method of pesak and on the other hand a willingness to apply the method to a varied range of Jewish (and other human) groups.  Thus I am aware of Thomas Kuhn’s point that “the transfer of allegiance from paradigm to paradigm is a conversion process that cannot be forced” and so I have written this book accordingly, that the reader may be drawn into its mindset.  After all, “the transition between competing paradigms cannot be made a step at a time, forced by logic and neutral experience.  Like the gestalt switch, it must occur all at once (though not necessarily in an instant) or not at all.”  It does not suffice to point out that a new paradigm may “be ‘neater’, ‘more suitable,’ or ‘simpler’ than the old…  The man who embraces a new paradigm at an early stage must… have faith that the new paradigm will succeed with the many large problems that confront it, knowing only that the older paradigm has failed with a few….  That is one of the reasons why prior crisis proves so important.”   In fact, even “the single most prevalent claim advanced by the proponents of a new paradigm… that they can solve the problems that have led the old one to a crisis… [which] is often the most effective one possible … is… rarely sufficient by itself.”  Thus, I understand that “at the start a new candidate for paradigm may have few supporters….  Nevertheless, if they are competent, they will improve it, explore its possibilities, and show what it would be like to belong to the community guided by it.”[1] 

In other words, the proponents of this paradigm will eventually resolve the modernist’s and even post-modernist’s fear that a turn to traditional wisdom must inherently limit people’s ability to respond to the present or to the oppressed.  They will resolve the traditionalists’ fear that this paradigm will lead to the loss of traditional Halakhic values - the fear that caused traditionalists to champion a legalist paradigm in response to hegemonic Enlightenment.  More importantly, however, the proponents of this paradigm will meet the contemporary challenge of a more individualistic society – not to preserve the Torah as law nor to preserve the independence of human voices that cannot communicate but rather to motivate people to fulfill the classic Torah demand to live responsibly to and with each other.  This paradigm will need to meet both needs in order to be accepted since “interpreters’ efforts to persuade us are successful if we come to see or understand what is at issue as they do” (Stern 2002, 80).   Inasmuch, “as the classical anthropologist Jane Harrison once expressed it, a myth… expresses a need, a longing… [that] is always… weathered by changes in the external conditions” (Rich 1976, 92), this paradigm will need to meet both the human myth of a messianic world of absolute truth via Torah and the myth of a messianic world in which all silenced voices are heard against the grain of dominant ideology since myths do not die. 

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[1] These are all quotations from Thomas Kuhn’s, The Structure of Scientific Revolutions. Chicago: University of Chicago Press, 1962.

Induction

[W]e must act according to the rule of induction even if we cannot believe in it….  We do not know whether tomorrow the order of the world will not come to an end… or at least our own world may come to an end, because we may close our eyes forever.  Tomorrow is unknown to us but this fact need not make any differences in our considerations determining our actions….

A blind man who has lost his way in the mountains feels a trail with his stick.  He does not know where the path will lead him, or whether it may take him so close to the edge of a precipice that he will be plunged into the abyss.  Yet he follows the path, groping his way step by step; for if there is any possibility of getting out of the wilderness, it is by feeling his way along the path.  As blind men we face the future; but we feel a path.  And we know: if we can find a way through the future it is by feeling our way long this path.

(Reichenbach 1949, 482)
Reichenbach, Hans. 1949. The Theory of Probability: An Inquiry into the Logical and Mathematical Foundations of the Calculus of Probability. Berkeley: University of California.


Regardless of whether there is “an a priori  reason why the conclusion of a standard inductive argument is likely to be true…. [a] chaotic world, though perfectly possible prior to the consideration of empirical evidence, is rendered extremely unlikely… by the occurrence of standard inductive evidence… and… it is an a priori fact that this is so… [since] anything less than this will not really explain why the inductive evidence occurred in the first place” (BonJour 1998, 213-214)
BonJour, Laurence. 1998. In Defense of Pure Reason: a Rationalist Account of A Priori Justification. Cambridge: Cambridge University.

measuring goodness

It is the demand for complete ranking that runs into trouble with the diversity of goodness….  On the other hand, if we stick to the humbler maximizing (i.e., not worse than) sort of Consequentialism, we will still be able to order many states of affairs by their goodness. (Nussbaum 2001,106)

Nussbaum, Martha. 2001. “Comment,” in Judith Jarvis Thomson, Goodness & Advice.  Princeton, NJ: Princeton University Press.