Halakha in Modernity
In modern times, there has been a defensive
Modern Orthodox transformation of all of ritual Halakha into Divine fiat. Some have argued academically that a
rigorous analysis of Talmudic sources reveals that the rabbis interpreted ritual
norms restrictively because they did not understand those norms and so “had
little choice” (Spero 1983, 52-53).
Most, however, have adopted the formal method developed by R. Hayyim
Soloveitchik of Brisk (1853-1918). In the words of an American doyen of the
ideology of Jewish Law as purely formal law, R. Dr. J. David Bleich:
Other
than to the extent that historical context is explicitly referenced in a given teshuva,
or to the extent that such context is implied by the manner in which facts are
presented, historical context is irrelevant.
If there is any single factor that distinguishes talmidei hakhamim
from “scholars,” it is that the… former regard halakha as objective, eternal
and immutable.”[1]
Instead of seeing the human
concerns that a given law is balancing or at least addressing, this doyen
treats words or categories as objectively real concepts that have no
explicability beyond the logical concept.
Accordingly, he argued that “to
formulate the hakirah [the analysis] is to recognize the answer” (Bleich
2006, 98).
This claim of
inexplicability has met several modern needs:
- As discussed in my
dissertation (V-A), it served to defend Jewish Law against the
hegemonic challenges of the (regionally varied) Enlightenment to the
values of traditional Jewish culture.
It did so by transforming Jewish law into a purely logical structure
of precise terminological and conceptual definition rather than an
attempted balance of human needs.
- It also allowed
Halakhically observant Jews to identify themselves as participants in the
hegemonic liberal Western culture for which particularistic “religious
reasoning is categorized as the product of special revelation rather than
universal rationality,”[2]
a reasoning that can be tolerated because it recognizes that its claims
are based on a private epistemological foundation and so has no right to
try to impose its practices, values, and reasoning on others.[3]
- Most
importantly, this claim of inexplicability helped observant Jews protect
Halakhic norms from the dissipation that a subgroup’s norms would face if
they were unpacked in front of “the pluralizing, relativizing forces of
modernity” (Aydin and Colak 2004, 224).
However,
the fact that some Jews at some times have had an ideological need to
prioritize their loyalty to God’s inexplicable laws over their loyalty to a
substantive tradition, does not mean that traditionalist rabbinic sages of the
law refrained from understanding the goals of the various Judaic norms. Not only have both both religious approaches long
existed in Judaism,[4] but more
importantly, the examples I have examined elsewhere illustrated that whenever
the choice of how to practice a given norm had serious ramifications on
people’s lives, the rabbinic legal sages always related to the substantive
human concerns underlying that norm.
A Problem With the Logico-Conceptual Approach
In
this modern model, Jewish law is formally analytical; it is treated as a law
whose logical concepts can be discovered but whose purpose is
inexplicable. In other words, it is
treated as inexplicable concepts. For a
light example: R. Bleich pointed out that once one notices that the
Saturday-night blessing over ending Shabbat is both added to and recited
independently of the evening prayer, one realizes that it is not an evening
blessing per se but rather a blessing to end Shabbat, which is “associate[d]…
with the first shemoneh esreh [prescribed prayer] recited after the
conclusion of Shabbat” (Bleich 2006, 98).
On that basis, R. Bleich argued that since the blessing over ending
Shabbat is not an evening blessing per se, R. Hayyim Brisk was necessarily
correct in concluding that one who missed the evening prayer and prays an
additional prayer in the morning in lieu of the missed evening prayer should
recite the Saturday-night blessing over ending Shabbat in the first prescribed
prayer that he does recite and not in the second that is in lieu of the missed
evening prayer (ibid). He rejected as
shallow positivists those who ruled that the blessing should be recited in the
second prayer that is in lieu of the missed evening prayer (ibid n.16).
If one treats norms as
logical expressions of formal concepts, R. Bleich is correct. If the requirement to bless God over ending
Shabbat is not part and parcel of the prescribed evening prayer but its own
concept, it necessarily should be recited in the first prayer that one prays
after Shabbat even if that prayer is a morning prayer. However, once one considers the human
context of the law, one notices that the reason that the primary (= Biblical)
need to distinguish between Shabbat and the week only applies Saturday night –
while the requirement to recite that blessing afterward if it was missed on
Saturday night is a secondary (= Rabbinic) need – is because the new morning
provides an overriding experiential distinction between Shabbat and the
following week. Thus, one could argue
that on Sunday morning it is more important to recite the no longer Biblically
necessary blessing in the second prayer, the prayer that substitutes for the
missed night prayer. This way, one
reinforces the norm that the blessing must be recited on Saturday night and
cannot be left to the morning. Of
course, one could also argue that reciting the blessing in the added prayer is
worse because it will inculcate a mistaken notion that the blessing must be
recited in a prayer and thus cannot be recited until the morning if one who had
prayed at night forgot the blessing during the prayer.
The point is that the conceptual non-contextual approach treats norms as explicable by concepts but treats concepts as inexplicable and context-free. It ignores the fact “that before attempting to translate our data into the rigorous language of symbols, it is above all things necessary to ascertain the intended import of the words we are using” (Boole 1854, 60).
The point is that the conceptual non-contextual approach treats norms as explicable by concepts but treats concepts as inexplicable and context-free. It ignores the fact “that before attempting to translate our data into the rigorous language of symbols, it is above all things necessary to ascertain the intended import of the words we are using” (Boole 1854, 60).
