Fact-skepticism alone does not assure the advancement of justice,… its capacities for application are morally ambivalent, and… in order to serve… high purposes… it requires the extrinsic governance of a sympathetic intelligence and a humane conscience.
P.323
Cahen Edmond Nathaniel. 1966. “Fact-Skepticism: An Unexpected Chapter” in Confronting injustice; the Edmond Cahn reader. Edited by Lenore L. Cahn. Foreword by Hugo L. Black. General introduction and prefatory chapter notes by Norman Redlich. Boston: Little, Brown.
Saturday, May 29, 2010
Friday, May 7, 2010
R. Hayyim Hirshenson
To summarize - without the nuances of the book's chapter - the proper role of the rule against change, it is both a rule against disruptiveness and a rule against simplistic changes. The medieval Halakhic rabbis did not merely understand that norms must not be changed ideologically (contra Cohen 1984, 17) – i.e. through simplistic positional bias, they also understood that norms must be changed wisely by maintaining all of the general rule’s original concerns.
They understood the point that all the sages cited in this book have understood, that a change in detail is valid when the change is merely an application of all the original concerns to changed circumstances. In that case, they could say – as did R. Hayyim Hirshenson (Safed - Hoboken NJ, 1857-1935) – that only through a willingness to modify the form of norms appropriately do we in fact maintain the very same Torah:
חיים הירשענזאהן, "חלופי מכתבים", מכתב י"ד (דף כב ע"א)
כי קיום החוק אחרי שינוי המצבים, נקרא שינוי בדת אחרי כי החוק... נחק[ק]... לפי "המצב",
והוא קרוב לכפירה בעיקר התשיעית "שהתורה לא תשתנה"... [כי] השינוי על ידי שינוי המצבים לא יקרא שינוי כלל..
Unfortunately, R. Hirshenson himself merely evaluated whether a change should be valid in his contemporary reality without making sure that he was continuing to address earlier concerns. In other words he correctly understood that if Halakhic norms are anachronistic, then they no longer achieve the original goals and so become violations of the original Halakhah; he failed, however, to follow the medieval sages in evaluating a proposed change of a norm in the context of its larger rule, in suggesting a change that continues to address the rule’s concerns.
Let us, therefore, turn to one of his Halakhic arguments to clarify the difference between these rabbis’ successful defense of changes and his unsuccessful defense of a change found among most of his contemporary American Halakhic and Traditionalist communities.
R. Hirshenson (ibid, 16b-18b) argued to permit safety razors by first dismissing the Hassidic “proscription” against shaving even with scissors as contradicting both the Talmudic ruling that scissors are not included in the injunction against shaving and the accepted Tosaphist ruling that one can even shave with scissors that cut as closely as a razor. He then argued strangely that a safety razor is permitted because the Talmud’s distinction between a forbidden razor and a permitted scissors or tweezers must be based on the fact that a razor is the specific object that was used by idolaters in order to completely shave off their beards. Ergo, contemporary safety razors may be used to shave off beards because they are not the same razors that the idolaters used and are thus similar to permitted tweezers.
Naturally, since both regular and safety razors shave off the beard in exactly the same way and tweezers were not used for shaving, R. Hirshenson’s argument did not resonate. If R. Hirshenson had truly wanted to show that permitting safety razors is consistent with the principle that forbade regular razors in the manner of the sages that we have reviewed in this book, he should have thought through the following:
1. First, he should have explained why the dominant Tannaitic position forbade only razors, which completely shave off the beard, and neither contemporary scissors that left the beard on the face intact nor tweezers that were used only for removing specific hairs - as in tending a wound - but not for shaving (m. Makot 3:5, baraita b. Makot 21a). He could have shown that the Tannaim understood the Biblical proscription against shaving to be both about retaining moral masculinity in not imitating the androgyny of the sexually looser Egyptian-Canaanite society and priesthood or the later alternative pagan Hellenistic-Roman masculinity found in Tannaitic Israel and about not marring one’s body.
2. He could then have presented the medieval, acculturated, Western European Tosaphists’ innovative read that fine scissors could be used to shave off the beard completely (Tosafot Shevuot 2a) in spite of the fact that they realized that scissors had originally been permitted only because scissors did not shave as closely as a razor (Tosafot Nazir 40b) because beards were considered undignified, barbarically Slavic [= slave], male dress in contemporary Western Europe. However, the Tosaphists still required sideburns (Tosafot Shevuot 2a) because sideburns were a sign of manhood among civilized Western men – except for monks and priests who symbolized a different role. Thus he could have shown that the Tosaphists permitted a man to shave his beard but not his sideburns, because they were applying the Biblical rule against shaving to their culture. Simultaneously, he could have pointed out that the Tosaphists maintained textual and mimetic consistency by requiring scissors which cut instead of destructively tearing – as did later generations of European Jews who accepted the Tosaphist position (Sh”A YD 181:10) and even permitted other nuanced forms of complete beard removal (PTT YD 181:5).
3. Third, he should have validated the kabbalist position that forbade shaving a beard even with scissors. This position, raised in Middle Eastern and Slavic countries where men took pride in their untouched beards, appropriately revived the Biblical injunction against shaving in any form. Later, Jews in Slavic countries who opposed the modern Western assimilationist trends also appropriately retained the kabalistic opposition to shaving. He should have validated this position even as he cited the Western European sages who had continued to permit shaving with a scissor in those countries in which being clean-shaven was not religiously problematic.
4. Last, only after explaining that the prohibition has long been connected to masculinity and assimilation should he have presented a two-prong argument. One, shaving is permitted substantively because even Halakhah-observant American Jews were shaving with safety razors due to acculturation and not assimilationist or androgynous tendencies. Two, classic razors and safety razors are formally distinct inasmuch as the latter with its guard against cutting deeply and destruction is more similar to a scissor which can shave but not destroy (cf. the Tosaphist position and Leviticus 19:26-28).
To state this formally, he could have said the following: The Biblical verse forbade shaving as immoral but the Tannaim pointed out that trimming was moral and the Tosaphists permitted even a razor-like shave of a beard with a scissor when it is moral since a scissor is considered an object which shaves as opposed to destroys. Accordingly, a safety razor is permitted in spite of cutting with only one blade since it, too, is not destructive when compared to regular razor. This argument may not resonate with the reader or even with this Orthodox Jewish writer in an age of electric razors, but it would have done so before the 1930s invention of the electric razor.
In short, R. Hirshenson did not justify his innovative read by showing that a safety razor is the type of instrument that the Tannaim and even Cabbalists could have permitted in twentieth century American Western culture in light of their very concerns. Rather he simply unconvincingly argued that one might shave with a safety razor in common with scissors and tweezers because all these instruments are shaped differently than the razors with which the Canaanites shaved. Instead of following the traditional approach of understanding the relevant rule that is expressed via the detail, he unconvincingly argued that a preserved Biblical injunction has never been more than an injunction to not shave with the same tool used by Canaanites even as one shaves just like the Canaanites.
They understood the point that all the sages cited in this book have understood, that a change in detail is valid when the change is merely an application of all the original concerns to changed circumstances. In that case, they could say – as did R. Hayyim Hirshenson (Safed - Hoboken NJ, 1857-1935) – that only through a willingness to modify the form of norms appropriately do we in fact maintain the very same Torah:
חיים הירשענזאהן, "חלופי מכתבים", מכתב י"ד (דף כב ע"א)
כי קיום החוק אחרי שינוי המצבים, נקרא שינוי בדת אחרי כי החוק... נחק[ק]... לפי "המצב",
והוא קרוב לכפירה בעיקר התשיעית "שהתורה לא תשתנה"... [כי] השינוי על ידי שינוי המצבים לא יקרא שינוי כלל..
Unfortunately, R. Hirshenson himself merely evaluated whether a change should be valid in his contemporary reality without making sure that he was continuing to address earlier concerns. In other words he correctly understood that if Halakhic norms are anachronistic, then they no longer achieve the original goals and so become violations of the original Halakhah; he failed, however, to follow the medieval sages in evaluating a proposed change of a norm in the context of its larger rule, in suggesting a change that continues to address the rule’s concerns.
Let us, therefore, turn to one of his Halakhic arguments to clarify the difference between these rabbis’ successful defense of changes and his unsuccessful defense of a change found among most of his contemporary American Halakhic and Traditionalist communities.
R. Hirshenson (ibid, 16b-18b) argued to permit safety razors by first dismissing the Hassidic “proscription” against shaving even with scissors as contradicting both the Talmudic ruling that scissors are not included in the injunction against shaving and the accepted Tosaphist ruling that one can even shave with scissors that cut as closely as a razor. He then argued strangely that a safety razor is permitted because the Talmud’s distinction between a forbidden razor and a permitted scissors or tweezers must be based on the fact that a razor is the specific object that was used by idolaters in order to completely shave off their beards. Ergo, contemporary safety razors may be used to shave off beards because they are not the same razors that the idolaters used and are thus similar to permitted tweezers.
Naturally, since both regular and safety razors shave off the beard in exactly the same way and tweezers were not used for shaving, R. Hirshenson’s argument did not resonate. If R. Hirshenson had truly wanted to show that permitting safety razors is consistent with the principle that forbade regular razors in the manner of the sages that we have reviewed in this book, he should have thought through the following:
1. First, he should have explained why the dominant Tannaitic position forbade only razors, which completely shave off the beard, and neither contemporary scissors that left the beard on the face intact nor tweezers that were used only for removing specific hairs - as in tending a wound - but not for shaving (m. Makot 3:5, baraita b. Makot 21a). He could have shown that the Tannaim understood the Biblical proscription against shaving to be both about retaining moral masculinity in not imitating the androgyny of the sexually looser Egyptian-Canaanite society and priesthood or the later alternative pagan Hellenistic-Roman masculinity found in Tannaitic Israel and about not marring one’s body.
2. He could then have presented the medieval, acculturated, Western European Tosaphists’ innovative read that fine scissors could be used to shave off the beard completely (Tosafot Shevuot 2a) in spite of the fact that they realized that scissors had originally been permitted only because scissors did not shave as closely as a razor (Tosafot Nazir 40b) because beards were considered undignified, barbarically Slavic [= slave], male dress in contemporary Western Europe. However, the Tosaphists still required sideburns (Tosafot Shevuot 2a) because sideburns were a sign of manhood among civilized Western men – except for monks and priests who symbolized a different role. Thus he could have shown that the Tosaphists permitted a man to shave his beard but not his sideburns, because they were applying the Biblical rule against shaving to their culture. Simultaneously, he could have pointed out that the Tosaphists maintained textual and mimetic consistency by requiring scissors which cut instead of destructively tearing – as did later generations of European Jews who accepted the Tosaphist position (Sh”A YD 181:10) and even permitted other nuanced forms of complete beard removal (PTT YD 181:5).
3. Third, he should have validated the kabbalist position that forbade shaving a beard even with scissors. This position, raised in Middle Eastern and Slavic countries where men took pride in their untouched beards, appropriately revived the Biblical injunction against shaving in any form. Later, Jews in Slavic countries who opposed the modern Western assimilationist trends also appropriately retained the kabalistic opposition to shaving. He should have validated this position even as he cited the Western European sages who had continued to permit shaving with a scissor in those countries in which being clean-shaven was not religiously problematic.
4. Last, only after explaining that the prohibition has long been connected to masculinity and assimilation should he have presented a two-prong argument. One, shaving is permitted substantively because even Halakhah-observant American Jews were shaving with safety razors due to acculturation and not assimilationist or androgynous tendencies. Two, classic razors and safety razors are formally distinct inasmuch as the latter with its guard against cutting deeply and destruction is more similar to a scissor which can shave but not destroy (cf. the Tosaphist position and Leviticus 19:26-28).
To state this formally, he could have said the following: The Biblical verse forbade shaving as immoral but the Tannaim pointed out that trimming was moral and the Tosaphists permitted even a razor-like shave of a beard with a scissor when it is moral since a scissor is considered an object which shaves as opposed to destroys. Accordingly, a safety razor is permitted in spite of cutting with only one blade since it, too, is not destructive when compared to regular razor. This argument may not resonate with the reader or even with this Orthodox Jewish writer in an age of electric razors, but it would have done so before the 1930s invention of the electric razor.
In short, R. Hirshenson did not justify his innovative read by showing that a safety razor is the type of instrument that the Tannaim and even Cabbalists could have permitted in twentieth century American Western culture in light of their very concerns. Rather he simply unconvincingly argued that one might shave with a safety razor in common with scissors and tweezers because all these instruments are shaped differently than the razors with which the Canaanites shaved. Instead of following the traditional approach of understanding the relevant rule that is expressed via the detail, he unconvincingly argued that a preserved Biblical injunction has never been more than an injunction to not shave with the same tool used by Canaanites even as one shaves just like the Canaanites.
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