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Critical Philosophy of Halakha (Jewish Law): the Justification of Halakhic Norms And

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Critical Philosophy of Halakha (Jewish Law): the Justification of Halakhic Norms And Critical Philosophy of Halakha (Jewish Law): The Justification of Halakhic Norms and Authority Yonatan Yisrael Brafman Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2014 © 2014 Yonatan Yisrael Brafman All rights reserved ABSTRACT Critical Philosophy of Halakha (Jewish Law): The Justification of Halakhic Norms and Authority Yonatan Brafman Contemporary conflicts over such issues as abortion, same-sex marriage, circumcision, and veiling highlight the need for renewed reflection on the justification of religious norms and authority. While abstract investigation of these questions is necessary, inquiry into them is not foreign to religious traditions. Philosophical engagement with these traditions of inquiry is both intellectually and practically advantageous. This does not demand, however, that these discussions be conducted within a discourse wholly internal to a particular religious tradition; dialogue between a religious tradition and philosophical reflection can be created that is mutually beneficial. To that end, this dissertation explores a central issue in philosophy of halakha (Jewish law): the relation between the justification of halakhic norms and halakhic-legal practice. A central component of philosophy of halakha is the project of ta’amei ha-mitzvot (the reasons for the commandments). Through such inquiry, Jewish thinkers attempt to demonstrate the rationality of Jewish religious practice by offering reasons for halakhic norms. At its best, it not only seeks to justify halakhic norms but also elicits sustained reflection on issues in moral philosophy, including justification and normativity. Still, there is a tendency among its practitioners to attempt to separate this project from halakhic-legal practice. Legal practice is thus isolated from philosophical reflection, and the reasons for the norms do not guide their application. Ta’amei ha-mitzvot therefore also provokes queries in legal philosophy concerning the relation between normative and legal justification. This study explores the relation between the justification of halakhic norms and halakhic- legal practice in modern Jewish thought by placing it into dialogue with both moral and legal philosophy. This occurs in two stages: First, the philosophies of halakha of three influential twentieth-century Jewish thinkers, Yeshayahu Leibowitz (1903-1994), Joseph Soloveitchik (1903-1993), and Eliezer Berkovits (1908-1992) are examined and critically assessed. It is shown that despite the denials of Leibowitz and Soloveitchik, all their accounts of the reasons for the commandments influence their approaches to halakhic-legal practice; they each combine a foundationalist approach to justification with skepticism about the practical normativity of reason; and none of them adequately grounds halakhic-legal authority. However, their skepticism is based on unduly constricted conceptions of reason and untenable alternative sources of normativity, such as will, metaphysics, or revelation. Second, through engagements with the work of Jürgen Habermas and Joseph Raz an alternative to their accounts of the justification of halakhic norms and authority is developed. This alternative is described as critical philosophy of halakha, for it does not attempt to justify halakhic norms or authority but articulates the rational constraints on, and practical consequences of, their justification. In terms of justification, this account is contextualist, that is, pragmatic and intersubjective, rather than foundationalist, and it is responsive to failures of justification. Correspondingly, it entails pluralism yet avoids moral and epistemic relativism. In terms of authority, this account is instrumentalist and thus mediates between normative and legal justification without reducing the latter to the former. Consequently, authority is circumscribed as opposed to total. Critical philosophy of halakha therefore represents a method whereby the modern religious believer may hold herself accountable to both her faith and other individuals. TABLE OF CONTENTS ACKNOWLEDGEMENTS .................................................................................................. vi INTRODUCTION................................................................................................................... 1 I. Social Conflict and Philosophy: The Justification of Norms and Judaism ................ 1 A. Philosophical Investigation and Religious Traditions ............................................. 2 B. Judaism as Party to Social Conflict and as Partner for Dialogue ......................... 3 C. Critical Philosophy of Halakha ................................................................................. 6 II. The Study of Halakha .................................................................................................... 8 A. Historical and Legal Theoretic Paradigms............................................................... 9 B. Philosophy of Halakha .............................................................................................. 11 C. Ta’amei ha-Mitzvot in Jewish Thought ................................................................... 15 D. The Study of Ta’amei ha-Mitzvot ............................................................................. 31 III. Method: History, Philosophy, and Three Senses of ‘Critical’ ................................ 37 IV. Contributions: Jewish Thought, Philosophy of Religion, Practice ........................ 40 V. Chapter Summaries ..................................................................................................... 42 CHAPTER ONE ................................................................................................................... 46 I. Methodology of Philosophy of Halakha: Objective or Interpretive? ....................... 49 A. Philosophy of Halakha and Meaning ...................................................................... 49 B. Halakha and Judaism ............................................................................................... 50 II. Service of God and the Justification of Halakhic Norms ......................................... 54 i A. Metaethics and Judaism ........................................................................................... 55 B. The Justification of Service of God ......................................................................... 78 C. Normative Difficulties .............................................................................................. 93 III. Theocentric Theory of Halakha .............................................................................. 100 A. Halakhic-Legal Positivism ..................................................................................... 101 B. Two Types of Halakhic-Legal Authority .............................................................. 110 C. Criteria of Halakhic-Legal Validity ...................................................................... 113 D. Legal Problems........................................................................................................ 130 IV. Conclusion: Issues and Insights ............................................................................... 133 CHAPTER TWO ................................................................................................................ 136 I. A Halakhic Philosophy or a Philosophical Account of Halakha? ........................... 139 A. The Nature of Halakha ........................................................................................... 139 B. Two Accounts of the Justification of Halakhic Norms ........................................ 154 C. Normativity and the Ultimate Telos of Halakha .................................................. 188 D. Normative Difficulties ............................................................................................ 198 II. Theory of Halakha: Ta’amei ha-Mitzvot2 and Halakhic-Legal Practice ............... 202 A. Formalism or Non-Formalism? ............................................................................. 202 B. Halakhic Non-Formalism and Halakhic-Legal Practice ..................................... 212 C. Legal Problems........................................................................................................ 223 III. Conclusion: Issues and Insights .............................................................................. 228 ii CHAPTER THREE ............................................................................................................ 231 I. The Telos of the Commandments ............................................................................... 233 A. Philosophical and Religious Positivism: David Hume and Judah ha-Levi ....... 234 B. Revelation, Creation, and Sedeq ............................................................................ 243 C. Ta’amei ha-Mitzvot and Moral Philosophy ........................................................... 250 D. Normative Difficulties ............................................................................................ 276 II. Teleological Theory of Halakha ................................................................................ 279 A. Theory of Halakha and Teleology ......................................................................... 280 B. Consistency and Constraint: Halakhic-Legal Practice ....................................... 312
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