To
clarify: we will see that the leading rabbis discussed in this book felt no
need to be loyal to the wording of their legal sources as much as loyal to the
insights of the lawmakers who had certain situations in mind. This has three implications:
a.
First of all, they read laws contextually. This means more than that they merely read law as did Classic
Common Law judges[1] who would have understood, for example, that
an unqualified law that says “everyone must vote” need not include a legally
incompetent person, a person who is physically incapabale of accessing the solitary, or even the solitary caretaker
of a bed-ridden person. As a Midrash
(Tanhuma, Bo #13) noted concerning the Biblical use of the word
“tomorrow”: sometimes “tomorrow” refers
to the next day and sometimes to the long-term future. Similarly, one of the earliest medieval
halakhic responsa – of R. Hai Gaon (Babylonia, 939-1038
CE) – noted that “each [Talmudic use of the term] ‘immediately’ must be defined
by its context.”[2] In contrast to Classic Common law judges,
they did not use context merely to reign in the semantic implications of a
law. Rather, they also used context to
expand the implication of the law. They
would have understood that a a religious traffic law that directed drivers to
stop in accordance with a traffic light and directed a specific right-of-way at
traffic circles, implicitly requires drivers to drive safely at ambiguous
intersections. They understood their legal
sources to be not semantically comprehensive but rather addressive of typical
situations – to be narrative typifications.[3]
b.
Second: they understood that
inasmuch as lawmakers address people who are supposed to understand the shared
situations, laws can and do omit critical but culturally obvious terms – not
merely terms that define the situations and objects to which the law refers but
even terms that express what the lawmaker desires one to do. Since laws are communications, words must
inevitably be omitted[4] – all the
more so when the lawmaker provides narrative typifications, in which case one
intentionally speaks in “restricted code”.[5] This means more than that leading rabbis
merely understood that a law’s words must be read in context of all its other
written details. For example: a law that directs drivers to “stop at a red
light” should be read as directing one to stop when the light of a tri-color
traffic light has turned red and not every red decorative light strung accross
a street. That would be obvious since
the law also permits one to travel when the light is green and these lights
will never turn green. Rather, it means
that a law must be read in light of its unstated context even when such reading
violates the semantic meaning of the law.
For example (based on American culture and language): a religious/moral
authority points to a hatless cranky child on a hot beach and directs an adult
with a cooler (an insulated picnic basket) to iimediately give the child
chocolate milk to drink. If the adult
discovers that his/her chocolate milk is warm because it had fallen out of the
cooler but there is ice-cold water in the cooler, s/he is meant to first offer
the child the cold water. This is the
case in spite of the fact that the
drink’s characteristic of cold was never mentioned or even verbally indicated
and that many well-hydrated children on breezy beaches may indeed prefer warm
chocolate milk. This is the case
because the adult is supposed to understand that the law is based on a narrative
typification, on the assumption of a shared understanding that the child must
be both hydrated and cooled down and that familial coolers generally hold cold
chocolate milk.
c.
Third: when they felt a need to prove their interpretation to people
who were supposed to share a common narrative understanding, they merely
indicated the evidence for their interpretation. Thus, in the chocolate-milk/cold-water example, they might merely
prove that they should have given the hot child cold water becase the the directive
was “child”, “drink”, and “immediately” – an urgent call to both hydrate and
cool the child.
In
addition to viewing their role to be that of wisely apply the insights of the
lawmakers who had certain situations in mind, these leading rabbis – as sages
of a lived culture – also spoke via the original terms of their internalized
sources. In order to understand what it
means to discuss an issue in the original terms of an internalized source,
imagine a conversation between chocolate-lovers discussing a newly discovered
bean called xcellent that has all the taste and endorphin-triggering properties
of chocolate but is pink and grows on sturdier trees. When a person tastes the powder of the bean and excitedly says to
another: “This is chocolate!” she is not necessarily overlooking the fact that
the bean looks different and is easier to grow. Rather she is focusing on the taste and is using the designation
that is relevant to the issue at hand, non-reflectively.
We
will find that leading sages of Jewish Law spoke similarly but more responsibly
than the speaker in the discussion of the xcellent bean. They read their casuistic sources as
decisions that balanced multiple and conflicting binding human concerns[6] – as responses to archetypical situations
of varied human needs. It was the range
of those wide-ranging internalized laws-as-stories (which implicitly recognize
multiple and conflicting human concerns) that the sages applied to their
conditions in an attempt to balance a contemporaneous range of similar conflicting
human needs.[7] These sages did not misread or distort
precedent texts. Rather, they applied
the insights of legal texts to contemporary conditions[8] and spoke
those insights via the vocabulary of those texts.
To summarize: we will see that these sages’ decisions
were responses that arose from an evaluation of human needs that the sages
found in the authoritative legal texts and not in spite of those authoritative
texts. We will see that they read
authoritative sources as setting out particular judgments that must repeatedly
be rebalanced appropriately under changed conditions.[9] They did not
reject earlier laws that were not currently suitable as much as determine the
contemporary suitable law in light of the internalized wisdom of earlier law.[10] They
addressed their contemporary situations both by thinking via earlier norms that
they had already internalized[11] and by addressing the contemporary situations via the
earlier norms themselves;[12] if they were to have discussed chocolate under the
rubric of the religious laws of culinary pleasure they would have simply
subsumed xcellent under chocolate[13] when relevant, even as their discussions of the
various related issues – so firmly channeled into bites – would reflect the
complexity of both the fact situation and the ethical situation.[14] More
importantly, they did not let the law’s semantic wording blind them to its
implicit narrative and thus its full implication and application both for new
situations that could not be subsumed and for situations which would seemingly
fall under its semantic or logico-conceptual purview but which the lawmaker
would not have meant address with such law.
In short and in legal-theory terms, one might say that these wise
interpreters viewed themselves as interpretive-legislators.
[1] By this, I
mean those who approached Common Law as a source of moral insight, as argued by
Sir Edward Coke (Institutes I [1628]
s.138). Suzanne Last Stone has argued thus orally.
[2] Cited in
Sefer Ha-Itur # 227. For another
example from Rav Hai Gaon see Groner 1988, 75
n.5. (In a footnote to the article, Groner noted
that Rav Hai Gaon generally defined words by context, but Groner did not cite
additional sources such as this one.)
[3] This is a
term introduced by Bernard Jackson, who will be discused below.
[5] This is an
inescapable human phenomenon (Coppée 1857,
147). For more on “restricted code”,
see Bernstein 1971, 1:108f., 123-137; Jackson 1995, 93-95.
[6] Cf. Rackman
1961, 132.
[7] One could say
that these sages both realized that they could not avoid the responsibility of
evaluating the policy soundness of a decision under their current circumstances
and were humble enough to realize that inasmuch as no person “could imagine
anew all the probable situations with which he might be confronted and devise
his own rules to meet them; … the past is ineluctable as a point of departure
for the actions even of original minds” (Shils 1981, 198).
[9] They did not
merely understand that a statute or rule merely
“state[s] … a prima facie ‘ought,’ pointing to a reason for an action, not an
‘ought all things considered’” (Raz 1972, 836). Rather, they understood that each statute is itself a story or part of a story and inherently
balances conflicting “oughts”.
[10] Contra Panken
2005, xvii. Thus history is not
determinative of their positions.
[11] In other
words, they obviously did analyze intent and function of a law and consider its
application to changing circumstances because all comparisons – even
subconcsious ones – involve those steps. However, they did not do so by
conceptualizing the concepts of intent, function and changing circumstances as
much as by their grounded, lived, sense of these considerations that led them
to preceive that situation x (now) is sufficiently similar to situation y
(then).
[12] They,
therefore did not fail to articulate their hunches and feelings in judicial
logic language (Frank 1950, 172-173) but rather spoke those implicitly by
engaging in law as comparisons instead of as logical deductions.
[13] This claim is
made in full cognizance of the differences between particular speech
methodologies employed at different periods and cultural locales in the history
of Jewish Law (Lorberbaum 2003, 122-123).
[14] We will see
in this dissertation that such is indeed possible (contra Kennedy 1991, 350).
