Jewish Philosophy in an Analytic Age [Illustrated] 0198811373, 9780198811374

Citation preview

List of Contributors Yonatan Y. Brafman is Assistant Professor of Thought and Ethics and Director of the MA Program in Jewish Ethics at the Jewish Theological Seminary. Melis Erdur is Postdoctoral Fellow in the Department of History, Philosophy, and Judaic Studies at the Open University of Israel. Daniel Frank is Professor of Philosophy and Director of the Jewish Studies Program at Purdue University. Joshua Golding is Associate Professor of Philosophy at Bellarmine University. Tyron Goldschmidt is Assistant Professor in Philosophy at Rochester University. Jeffrey S. Helmreich is Assistant Professor of Philosophy and Law at the University of California, Irvine. Eli Hirsch is Charles Goldman Professor of Philosophy at Brandeis University. Samuel Lebens is Research Fellow at the University of Haifa. Tzvi Novick is Associate Professor and Abrams Chair of Jewish Thought and Culture at the University of Notre Dame. Dani Rabinowitz is a solicitor at Clifford Chance LLP. Aaron Segal is Lecturer in the Department of Philosophy at the Hebrew University of Jerusalem. David Shatz is Ronald P. Stanton University Professor of Philosophy, Ethics, and Religious Thought at Yeshiva University. Mark Steiner is Professor Emeritus in the Department of Philosophy at the Hebrew University of Jerusalem. Josef Stern is William H. Colvin Professor of Philosophy Emeritus at the University of Chicago. Shira Weiss is Postdoctoral fellow in the Goldstein-Goren Department of Jewish Thought at Ben-Gurion University. Howard Wettstein is Professor of Philosophy at the University of California, Riverside.

1 Introduction Samuel Lebens, Dani Rabinowitz, and Aaron Segal

Jewish thought, in recent years, has been primarily influenced by Continental philosophy—Kant, Hegel, Husserl, and even Heidegger, loom large over the Jewish intellectual horizon. Their influence gave rise to the great Jewish philosophers of the modern age—Hermann Cohen, Franz Rosenzweig, Martin Buber, Emmanuel Levinas, and others. But for over a century, Englishspeaking philosophy has been wedded to an intellectual tradition largely ignored by Jewish thought; that tradition is known as analytic philosophy. Analytic philosophy of Judaism is the new chapter of Jewish philosophy waiting to be written, and it promises to give rise to clearheaded, rigorous, and articulate understandings of the central metaphysical, epistemological, and normative aspects of Judaism. In its first flush of youth, in the days of G. E. Moore and Bertrand Russell, analytic philosophy could be characterized in terms of certain doctrines: realism as opposed to idealism, pluralism (that many things exist) as opposed to monism (that only one thing exists, or that only one thing is fundamental), and logicism (the view that mathematics can, in some significant way, be reduced to logic). But, in the century that followed, every central doctrine of early analytic philosophy was denied by at least some of the great torchbearers of the analytic tradition itself. Crude caricatures persist that try to paint analytic philosophers as all committed to some specific doctrine or another, but analytic philosophy is now too heterogeneous for such caricatures to be apt. There is no substantive philosophical thesis that one can identify as separating analytic philosophers from their rivals. So what is this philosophical school or tradition that continues to claim the allegiance of philosophers, and actually dominates philosophical discourse in all English-speaking countries, if it no longer has any unifying doctrines? As Michael Rea has pointed out, what really unites analytic philosophers, and binds them into a single tradition, is a style of philosophizing, and a shared intellectual history. Samuel Lebens, Dani Rabinowitz, and Aaron Segal, Introduction. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0001

2

Samuel Lebens, Dani Rabinowitz, and Aaron Segal

The characteristic style of analytic philosophy includes the following features: writing which expresses philosophical positions in sentences that can be formalized and logically manipulated; writing which prioritizes precision, clarity, and logical coherence; writing which avoids non-decorative use of metaphor and other rhetorical flourishes; working with well-understood primitive concepts, and defining very clearly new terms and concepts.¹ By contrast, philosophy as practiced in Continental Europe sometimes goes out of its way to avoid precision and clarity. This is often for a principled reason: the belief that the sorts of things that philosophers are trying to express simply cannot be expressed in any other way. Eschewing metaphor and the odd rhetorical flourish leaves you without the sorts of tools that are specifically needed to lay bare the more profound layers of reality or the human condition. Be that as it may, analytic philosophy is a radically different beast. It is typified by a striving for clarity and precision. In the words of Wittgenstein, who was, ironically, perhaps a contender for the least clear analytic philosopher, “what can be said at all can be said clearly, and what we cannot talk about we must pass over in silence.”² The characteristic rigorous style of analytic philosophy, with its penchant for logic and formalism, has played a key role in the development of a substantial and powerful conceptual toolbox. In addition to these matters of style, analytic philosophy is unified by a shared history that started with Moore and Russell (or thereabouts, since there were a number of very important precursors) and continues on to this day. That shared history has given rise to a canon of set texts, and to a growing technical vocabulary. Analytic philosophy utilizes that vocabulary and evolves in conversation with that growing canon of texts. Of course, this isn’t to say that analytic philosophy is discontinuous with schools that came before it. We’ll later consider the overlap between the concerns of analytic philosophers and their medieval predecessors. It also bears noting the extent to which analytic philosophers see themselves as continuing on in the tradition of the ancient and modern philosophers that came before them, all the while using their newly developed tools, and honing them further. This brings us to the analytic philosophy of Judaism. Stefan Goltzberg (2011) recently argued that Jewish philosophy had two major moments, and is calling out for a third. Maimonides was the shining luminary of the Arab moment, in which Jewish philosophy came under the strong influence of Islamic thought, and therefore of the Greek philosophy that Islamic thought had already absorbed. Many centuries later, a number of great thinkers ¹ Michael Rea’s characterization of analytic philosophy can be found in the introduction to Crisp and Rea (2009). For a valuable, though controversial, history of the analytic tradition, see Soames (2003a, 2003b). ² Proposition 7, Tractatus Logico-Philosophicus.

Introduction

3

brought us the German moment, in which Jewish philosophy was framed and deeply shaped by the thought of Kant and Hegel (we should add that the “German moment” actually included important influences from France, including Henri Bergson and others). The third moment, should it come to take root, is when Jewish philosophy finally starts to express itself in the vernacular of analytic philosophy. Given what we have noted about the character of analytic philosophy, this would not demand of Jewish philosophy to adopt any particular doctrine, but merely to embrace a certain style, engage with a certain canon of texts, and help itself to a smorgasbord of conceptual tools, and to a specific technical vocabulary. That Jewish philosophy has not substantially engaged with analytic philosophy heretofore has come at a steep cost. For one thing, it partly explains the dearth of living Jewish thought in the Anglophone academy. Jewish thought is in conversation with an intellectual tradition that is either fading or, at least, not hugely relevant in Anglophone philosophy. Accordingly, it ends up being taught primarily as intellectual history. For the most part, its institutional home is Jewish Studies or Religious Studies, rather than philosophy departments, and to the extent that its practitioners make assertions, those assertions are usually “second order”: viz., assertions about other assertions. Debates rage over interpretation of classical texts while substantial philosophical work is, all too often, placed on the backburner. Furthermore, the lack of analytic Jewish philosophy has hobbled attempts to produce a relevant and rigorous philosophical account of Jewish texts, practices, and claims. A Judaism based upon the science of Maimonides clearly cannot hold itself up as contemporary or relevant, given that its foundations are empirically outdated. The “German moment” of Jewish philosophy provided us with many profound existential and phenomenological studies of the lived Jewish life, but they are often written in a style that many people find to be difficult to parse, and leave the reader still wondering what truth claims lie at the heart of the religion. More contemporary Jewish thought, to the extent that it embraces the postmodernist trends of Continental philosophy, often ends up wedded to a very controversial view about the myth of absolute truth, and is likely to appeal only to a small clique of thinkers who have abandoned the notion of reality; people outside of the ivory tower tend to think that there is such a thing as truth and falsehood, reality and illusion. An analytic philosophical account of Judaism would help religious Jews, nonreligious Jews, and non-Jews alike to understand the evolving intellectual tradition that constitutes Judaism. It would facilitate a conversation in which Judaism’s adherents and critics are both armed with a clearer understanding of the questions, and truth claims, under debate, and provide the means for fruitful cross-pollination of ideas across religious lines. In short, it would give rise to clearheaded accounts of what it is, in the various streams of Jewish thought, that Jews actually stand for, and why it often matters to them so

4

Samuel Lebens, Dani Rabinowitz, and Aaron Segal

much. But while analytic philosophy offers precisely the right tools to frame such an account, it remains largely unmined by contemporary Jewish thinkers. We think it is high time to push for the third moment in Jewish philosophy, to capitalize on the rigor, the relevance, the conceptual richness, and the role that analytic philosophy plays in the English-speaking academy. While some notable efforts were made in this direction in the twentieth century by a select yet small number of scholars (some of whom have contributed chapters to this book), this volume aims to provide a much-needed impetus to this fledgling movement. This collection of papers is the first of its kind and aspires to provide a guiding nudge to the academy of scholars working in the philosophy of Judaism while also providing students of the discipline with new vistas for their future research. Some readers will probably object that analytic philosophy is something of a misfit for the Jewish tradition. The project of marrying analytic philosophy to Judaism seems to presuppose a “doctrinal conception” of the latter, according to which it consists entirely in a fixed set of doctrines that adherents must accept, like a catechism. We reply that it presupposes no such thing. Analytic philosophy can help illuminate Judaism, whether or not Judaism has fixed doctrines, obligatory doctrines, or any doctrines at all.³ (Indeed, moves in the analytic philosophy of mind, language, and action have recently been brought to bear in articulating alternatives to a doctrinal conception of Judaism!⁴) Our project is consistent with the idea that Judaism is a great tapestry of many different (and sometimes overlapping) schools—rationalist, mystical, Hasidic, Orthodox, Conservative, Reform—of many historical layers—biblical, rabbinic, medieval, and beyond. An analytic philosopher of Judaism need not explore the entirety of Judaism. Surely it is interesting enough to focus upon particular threads of the tradition at a time and to point out what their adoption would entail. We might add that analytic philosophy, rather than being a misfit, is a very natural fit for large swaths of Jewish tradition, including its legal, philosophical, and theological components. The Talmud and its legal commentaries, which are the woof and warp of a traditional Jewish curriculum, are filled to the brim with subtle distinctions and conceptual analysis. It is no accident that one of the four sections of this volume is devoted to an analytic philosophical exploration of this material. The material practically begs for such a treatment. Likewise for medieval Jewish philosophy. In a limited respect one could argue that analytic philosophy had more in common with the medieval period than with the philosophical schools that directly preceded it. For example, Bertrand Russell argued that Descartes led philosophy on a trajectory towards phenomenology and existentialism because the cogito argument (I think ³ On the question of the place of doctrine within Judaism, see Kellner (2004, 2006) and Shapiro (2004). ⁴ See Wettstein (1997) and Lebens (2013).

Introduction

5

therefore I am) seeks to build the philosophical enterprise from the firstperson perspective outwards (Russell 2009: 399). The medieval philosopher, by contrast, with a keen interest in logic and language, and in the world beyond the mind, is, in this respect, more of an intellectual ancestor to the analytic philosopher than are the great modern philosophers, whose work we are often more familiar with. This common ground between the medieval period and the analytic tradition gives the analytic philosopher an edge in providing insight into, and generating sustained critical engagement with, the great early Jewish philosophers of the medieval period. Foremost among such philosophers stands Maimonides, whose stature and influence in the history of Jewish thought is hard to overstate. His philosophical work has been interpreted and reinterpreted over the past eight centuries: but analytic philosophy promises renewed insight into the work of this towering figure. It is worth noting the work of Josef Stern (2013), whose tremendous recent book on Maimonides’ Guide to the Perplexed was heavily informed by Stern’s own expertise in contemporary analytic philosophy of language. Stern develops and elucidates Maimonides’ arguments to a degree not possible until now. It is again no accident that one of the four sections of this volume is devoted to an analytic philosophical exploration of Maimonides’ work. His work cries out for such reevaluation in light of a new philosophical movement that is in many ways heir to the medieval philosophical tradition, and we hope to inspire similar work in conversation with the other great Jewish philosophers of the medieval period. Outside of the Jewish tradition, analytic philosophy has already charted new courses in the field of philosophical theology. Armed with new and powerful metaphysical and epistemological theories that have emerged in the course of analytic philosophy’s evolution, analytic philosophers of religion—almost exclusively from a Christian background—have developed new arguments for God’s existence, new responses to theological puzzles, of both ancient and recent pedigree, and new accounts of what it takes for religious belief to be justified or to constitute knowledge. What happens when analytic philosophers turn their attention to the theological commitments of various Jewish schools of thought? What might be the consequences of adopting a Hassidic metaphysic? What reasons might we have to justify belief in the classical Jewish narrative? What does faith in the God of Judaism require? What is the significance of these questions once the relevant notions have been clarified in the light of contemporary philosophical analysis? Another section of this volume treats these compelling questions of Jewish philosophical theology. The Jewish religion, like any religion, seeks not only to make certain metaphysical or theological claims, but seeks also to provide its adherents with a conception of the good life, the life well lived. Furthermore, the experience of the Jewish people over time has thrown up interesting ethical

6

Samuel Lebens, Dani Rabinowitz, and Aaron Segal

questions about peoplehood and identity. The analytic tradition in philosophy has tried to extend age-old ethical and political debates with its distinctive clarity and logical precision. In the final section of this volume we therefore turn to a sample of papers that engage in work that can properly be called analytic Jewish normative philosophy. *

* *

Part I, with its focus on Talmudic and rabbinic philosophy, contains five interrelated chapters, each of which develops Talmudic themes by using key philosophical tools to reveal profound philosophical strata underpinning some Talmudic debates. The products of this engagement are keener insights into a number of fundamental debates and a deeper appreciation of various rabbinic doctrines. Given the intimate relationship between the Talmudic enterprise and codified law, it should come as no surprise that these philosophical insights hold the potential for an impact on Judaism’s legal character. The first chapter of Part I, “Talmudic Destiny,” by Eli Hirsch, brings a classic legal debate in the Talmud into discussion with Aristotle and Ockham on the nature of time and destiny. Hirsch argues that Rashi’s understanding of the relevant Talmudic passages gives rise to a novel view of the open future. In Hirsch’s hands, the Talmud can shine new light on the philosophy of time, and the philosophy of time can shine new light on our understanding of halakha (Jewish law). In his, “Metaphysics out of the Sources of Halakha or a Halakhic Metaphysic?” Aaron Segal asks us to consider the extent to which it’s legitimate to try to read stock metaphysical debates into the legal debates of the Talmud. Segal argues that given some plausible theological and historical premises, Talmudic authorities were not staking out controversial metaphysical positions: they were carving up the world using concepts that differ from standard metaphysical ones, and so were developing a metaphysics all of their own. Segal’s chapter capitalizes on recent advances in philosophy of language and meta-metaphysics. In his “A Jurisprudential Puzzle as Old as the Talmud,” Jeffrey S. Helmreich carefully lays out a puzzle at the heart of Talmudic jurisprudence. Helmreich argues for the centrality of two principles to Talmudic jurisprudence— Pluralism and Faithfulness—and then goes on to show that while they are not strictly inconsistent, it is nearly impossible for a Jewish legal decisor to consciously embrace both of them. He explores a number of potential solutions, and notes that the Talmudic puzzle can shed light on more tractable difficulties facing a contemporary judge. In his “A Commentary on a Midrash: Metaphors about Metaphor,” Samuel Lebens moves from the Talmud to the other major genre of the Talmudic rabbis: Midrash. In his philosophical commentary on a Midrash about the Song of Songs, Lebens demonstrates the ways in which a knowledge of

Introduction

7

contemporary philosophy can help one to unpack the Midrash, and how the Midrash can also give rise to insights that might generate new avenues for philosophical research. We said that the characteristic written style of analytic philosophy eschews, where possible, non-decorative use of metaphor, but we certainly didn’t mean that analytic philosophy is uninterested in the nature and meaning of metaphor; nor does it deny, as a discipline, that metaphor may sometimes be a necessary device for expanding our expressive power. There is, in fact, a flourishing body of analytic philosophical literature dedicated to exploring the nature of metaphor, and debating the extent to which it is sometimes necessary to use it. Lebens brings that literature into conversation with the Midrash that he comments upon. Part of the significance of Lebens’s chapter is that while Talmudic literature seems particularly apt for engagement with analytic philosophy, one might think that the more impressionistic and poetic rabbinic genre of Midrash would make for a less fruitful encounter. Lebens hopes to prove otherwise. Finally, in “Catharsis and the Epistemology of Repentance in the Talmud and Jewish Law,” Dani Rabinowitz harnesses a Talmudic debate about confession in order to develop an outline for an epistemology of repentance. Until now, scholars within the Jewish tradition have focused their attention on the psychology of repentance. Rabinowitz’s piece takes the debate into entirely different and heretofore untrodden territory. In the process, Rabinowitz unsettles the manner in which repentance has been understood in the legal realm. Part II, with its focus on Maimonides, includes three chapters that not only reinforce Maimonides’ relevance to contemporary philosophy but also demonstrate the remarkable depth of work that still needs to be done on his oeuvre. In “Hume and Maimonides on Imaginability and Possibility,” Mark Steiner argues that Maimonides preempted and rejected important doctrines concerning possibility and conceivability that were later endorsed by David Hume. The importance of Steiner’s piece lies partly in the manner in which it connects the Jewish philosophical tradition with the recent explosion of work on the relationship between conceivability and possibility in contemporary metaphysics. In “Dispassion, God, and Nature: Maimonides and Spinoza,” Daniel Frank points to an important commonality between Maimonides and Spinoza, in their respective views of the human good, namely the emphasis each places upon dispassion as a corollary of any deep understanding of God and/or nature. Finally, in “Maimonides and his Predecessors on Dying for God as ‘Sanctification of the Name of God’,” Josef Stern, focusing on Maimonides’ legal rulings, explores and evaluates the various philosophical arguments that animate Jewish law, and Maimonides’ rulings, about martyrdom. Stern’s piece takes Maimonidean scholarship in a new direction, and charts out

8

Samuel Lebens, Dani Rabinowitz, and Aaron Segal

underappreciated philosophical possibilities regarding martyrdom. Given the dearth of material on the topic in contemporary philosophy of religion, Stern’s introduction of Maimonides to mainstream philosophy is an exciting move pregnant with potential. Part III, with its focus on philosophical theology, includes four chapters united by their desire to explore philosophical perspectives on topics that do not, in the round, receive the attention they richly deserve. Howard Wettstein’s “The Fabric of Faith” explores the notion of faith—emunah—as opposed to the notion of belief. Faith is much more central to the outlook of the Bible and the rabbis than is the notion of belief, for which the Hebrew language had no word. The notion of faith is beginning to receive philosophical attention (see Rice et. al, 2017). Wettstein adds a Jewish perspective to this investigation, that also appeals to the pragmatist tradition of John Dewey. In “Should Theists Eschew Theodicies?” David Shatz critically examines various arguments put forward against the project of theodicy. Given the centrality of the topic within the Jewish tradition, Shatz’s discussion is highly significant. Shatz persuasively argues that none of the arguments against the project of theodicy succeeds. In “A Proof of Exodus” Tyron Goldschmidt—in his inimitable style— develops an argument for the truth of the central narrative of the book of Exodus. Drawing together the arguments of Saadya Gaon, Rabbi Yehudah HaLevi, Jonathan Edwards, and Charles Leslie, with contemporary thinkers such as Rabbi Dovid Gottlieb and Ezra Zuckerman-Sivan—Goldschmidt develops a new, hybrid version of a classical Jewish argument. He also responds to various objections. Goldschmidt contends that philosophical considerations raise the likelihood of the veracity of the book of Exodus, even in the face of skeptical historical, biblical, and archeological scholarship. Finally, Joshua Golding’s “Atzmut and Sefirot: A New Approach” brings into conversation central concepts of Kabbalistic thought and Greek philosophy. In so doing, Golding provides a new understanding of some Kabbalistic positions that both illuminates those positions and provides the springboard for further engagement with Kabbalistic thought. The fourth part of this book concludes with a number of chapters devoted to the normative aspect of Judaism. “The Morality of Biblical Deception” by Shira Weiss explores the philosophical question of whether or not it is ever moral to lie or deceive. This question is explored in conversation with the narratives of the Bible and its classic Jewish commentaries. The issue of truth and deception has a long and deep tradition within moral philosophy and brings the Jewish tradition into conversation with a large body of research in the analytic tradition. In “Neither Authoritarian nor Superfluous: A Normative Account of Rabbinic Authority,” Yonatan Brafman explores the notion of rabbinic authority in conversation with contemporary discussions about the sources of normativity.

Introduction

9

In “A Classical Jewish Approach to ‘The Normative Question’,” Melis Erdur extracts from Jewish traditional texts a refreshingly new answer to the simple but critical question, Why be moral, especially when it comes with such sacrifice? Erdur fruitfully exploits a distinction between two ways, or circumstances, in which this question can be asked in order to argue that at least in some cases what’s needed to answer the question is not a philosophical argument as much as a way of getting the agent to re-find their own “tempo” as moral agents. Finally, in “The Good, the Bad and the Nonidentity Problem,” Saul Smilansky investigates the extent to which a Jew who values her own existence, and the existence of her culture, can rationally regret the occurrence of national calamities that predate her, such as the destruction of the First and Second Temples, and even the Holocaust. Smilansky’s contribution helps to widen the conception of what it might mean to work in Jewish philosophy, since the task isn’t only to chart and scrutinize the religious commitments of certain streams of the Jewish religion, but also to think systematically about the historical experience and contemporary situation of the Jewish people, and the philosophical ramifications of holding a Jewish identity, irrespective of one’s theology. This volume concludes with a symposium. Tzvi Novick is a scholar of Jewish Studies. To what extent are the methodological assumptions of contemporary Jewish Studies in conflict with the project of this book? Novick’s contribution brings the contours of this issue sharply into focus, allowing us to formulate the beginnings of a response. We hope this collection of essays—with its selection of Talmudic, Maimonidean, theological, and ethical chapters—amply illustrates how fruitful an encounter between analytic philosophy and Judaism can be and inspires others to undertake original work in the area. A note about Hebrew words appearing in this book: We haven’t imposed a standard form of transliteration of Hebrew words into the Latin alphabet, so long as the transliteration succeeds in conveying the sound of the Hebrew word. We’ve also allowed our authors to use Hebrew letters, at their discretion (without transliteration into the Latin alphabet), as long as translations are always provided.

BIBLIOGRAPHY Crisp, O. and Rea, M. (2009) Analytic Theology: New Essays in the Philosophy of Theology. Oxford: Oxford University Press. Goltzberg, S. (2011) “Three Moments in Jewish Philosophy.” Bulletin du Centre de Recherche Français à Jérusalem 22: 1–11.

10

Samuel Lebens, Dani Rabinowitz, and Aaron Segal

Kellner, M. (2004) Dogma in Medieval Jewish Thought: From Maimonides to Abravanel. Oxford: Littman. Kellner, M. (2006) Must a Jew Believe Anything? Oxford: Littman. Lebens, S. (2013) “The Epistemology of Religiosity: An Orthodox Jewish Perspective,” International Journal for Philosophy of Religion 74(3): 315–32. Rice, R., McKaughan, D., and Howard-Snyder, D. (2017) Approaches to Faith, Special Double Issue of International Journal for Philosophy of Religion 81(1–2). Russell, B. (2009) History of Western Philosophy: Collectors Edition. Abingdon: Routledge. Shapiro, M. (2004) The Limits of Orthodox Theology: Maimonides’ Thirteen Principles of Faith Reappraised. Oxford: Littman. Soames, S. (2003a) Philosophical Analysis in the Twentieth Century Volume 1: The Dawn of Analysis. Princeton: Princeton University Press. Soames, S. (2003b) Philosophical Analysis in the Twentieth Century Volume 2: The Age of Meaning. Princeton: Princeton University Press. Stern, J. (2013) The Matter and Form of Maimonides’ Guide. Cambridge, MA: Harvard University Press. Wettstein, H. (1997) “Doctrine.” Faith and Philosophy 14(4): 423–43.

2 Talmudic Destiny Eli Hirsch

Suppose a property owner has two houses for sale. Reuven knows he wants to purchase one of them, but he would like his wife to choose which one. The problem is that his wife is out of town until next week, and the owner needs to finalize the deal immediately. An agreement is reached whereby Reuven pays the owner a sum of money to purchase immediately a house that is specified as follows: “the house Reuven’s wife will choose next week.” Question: When Reuven’s wife chooses a particular house the following week, is it retrospectively revealed that he had already purchased that house a week before she chose it? This question is an instance of a general issue in the Talmud called bererah (‫)ברירה‬. My overall aim in this chapter is to explore various connections between the topic of bererah and philosophical issues related to time and destiny. But I also have a more specific and ambitious aim. The person often regarded as the preeminent medieval Talmudist is Rabbi Shlomo Yitzchaki, known as Rashi. Concerning the topic of bererah, Rashi expresses a position that is extraordinarily perplexing and tantalizing, and I want to try to explain what it means. When one considers the example I mentioned, it seems immediately apparent that it is possible to argue for either of two answers to the question: first, that Reuven purchased the house that his wife later chooses, or, second, that he did not succeed in purchasing any house. Rashi, however, presents a surprising third position: Reuven may indeed have purchased one of the houses but it can never be known which one.¹

¹ I am adapting to my simple example Rashi’s comments with respect to somewhat more complicated examples. See Rashi in Tractate Gittin 25a, s.v. “Lekuchot hen”; Rashi in Tractate Gittin 74a, s.v. “Rabbi Yossi omer”; Rashi in Tractate Eruvin 37b, s.v. “Vechachamim omrim tsarich laasur”; and see especially Rabbi Aharon Kotler’s account of Rashi’s position in Mishnat Rebbe Aharon to tractate Gittin, chapter 25.5, wherein it is explained that Rashi intends his position as an explication of the verdict in a certain Mishnaic controversy (between Rabbi Yehuda and Rabbi Yossi). Eli Hirsch, Talmudic Destiny. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0002

14

Eli Hirsch

The critical question, according to Rashi, is which (if any) house was rauy (‫ )ראוי‬to be chosen by Reuven’s wife, where to say that something is “rauy to happen” means that it is in some sense destined to happen.² We know that Reuven intended to purchase the house destined to be chosen by his wife, but we have no way of knowing which house that is. The fact that she chooses a certain house leaves it open that there may have been a “change of destiny” whereby Reuven’s wife chooses a house different from the one she had been destined to choose. That is why we can never say which house Reuven purchased. What can these amazing claims mean? I will try to show that Rashi’s position implies a highly interesting philosophical alternative to the standard Aristotelian, Ockhamist, and predestinationist views about the openness of the future. But before I can broach Rashi’s position I need to enter into a general explanation of the issues of bererah.³

2 . 1. BE R E R A H The Hebrew word “bererah” means choice or decision, and in the Talmudic context the word refers to the retrospective choice of some element of a transaction. In the initial Mishnaic examples (Gittin 24a–24b and Eruvin 36b) the retrospective choice is made by an agent of the transaction, such as a case in which the house to be purchased is specified as the one Reuven himself will choose the following week. Such examples are generalized in the Talmudic discussions to include cases in which someone other than the agent (e.g., Reuven’s wife in our example) makes the retrospective choice. Furthermore, examples of bererah are introduced in which a “choice” unrelated to the transaction determines an element of the transaction, such as a case in which the house to be purchased is specified as “the one that such-and-such a wise man will first enter”—here the wise man may have no idea that his entering ² A literal translation of “p was rauy to happen” might be “p was fit to happen,” but it is clear that Rashi is not talking about any kind of ethical, esthetic, or probabilistic fit; he simply means that p was what was to happen. In some of the Talmudic commentaries (especially in Rabbi Aharon Kotler’s Mishnat Rebbe Aharon) “p was rauy to happen” is used interchangeably with “p was omad (‫ )עומד‬to happen,” where a literal rendering of the latter might be “p was set to happen.” I think there is no question that both formulations are intended to convey the idea that p was in some sense destined to happen. The relevant Talmudic sense of “destiny” is one of the central issues of this chapter. ³ I feel obliged to say something about my competence to undertake this project. I have tried to look closely into a number of standard Talmudic sources on the topic of bererah. However, my general knowledge of the Talmud is limited, and I am surely ignorant of many issues that impinge on this topic. To what extent these shortcomings undermine the analyses presented here I will have to learn from others.

Talmudic Destiny

15

one of the houses is going to determine the nature of any transaction. Finally, examples of bererah are introduced in which a transaction is determined by a future event that is not directly related to any human choice, such as a case in which the house to be purchased is specified as “the house that will be rained on first.” In general, then, we have a case of bererah when some element of a transaction taking effect at a certain time is determined by an event that takes place at a later time.⁴ Any such determining future event will be called a “choice” in this discussion.⁵ The Hebrew words “yesh” and “en” mean “there is” and “there isn’t,” and the two major positions discussed in the Talmud with respect to bererah are yesh bererah (there is bererah) and en bererah (there isn’t bererah). The yesh bererist holds that a retrospective choice can validly be made; hence in our leading example his wife’s choice of a certain house retrospectively reveals that Reuven had validly purchased that house the week before. The en bererist disagrees with this, but the precise issue of disagreement is itself a matter of controversy amongst the medieval commentators. According to Rashi, the en bererist holds that a transaction that is determined by a retrospective choice has the legal status of being doubtfully valid—a safek (‫ ;)ספק‬hence in our example it remains doubtful which, if any, house Reuven purchased. Tosafot, a second major medieval commentary, containing the insights of numerous thinkers from the generations immediately following Rashi, interprets the en bererist as holding that a transaction based on a retrospective choice is definitely invalid.⁶ Since the Talmudic verdict (with respect to the laws of the Torah) is en bererah this dispute between Rashi and Tosafot is also a dispute about what the verdict means. Now the first point I want to establish is that an Aristotelian ought to hold Tosafot’s version of en bererah. What I mean in the present context by “the Aristotelian position” is the view that there are no facts about future contingencies, or, what I take to be an equivalent formulation, that statements about

⁴ A number of different views of the scope of bererah are canvassed—sometimes explicitly, sometimes implicitly—in the Talmudic dialectic, especially in Tractates Gittin 24a–26a and Eruvin 36b–38a. What I have summarized in this paragraph is the eventual outcome of this dialectic, as interpreted by virtually all the major medieval commentators. Note that our leading example—in which Reuven and the owner attempt to affect an immediate transaction—must not be confused with a second example, in which Reuven and the owner enact a transaction that is not to take effect until the following week, when Reuven’s wife makes her choice. The connection between the second example and bererah is a matter of controversy; see Rabbi Aryeh Leib HellerKahane’s discussion in his Ketzot Hachoshen on Tractate Gittin 25a, s.v. “Detanya,” and Rabbi Shimon Shkop’s Ma’areket Ha-kinyanim, especially sections 1, 2, and 13. See note 9 below, and also the position of Rabbi Shlomo ben Aderet, cited in Section 2.3 in regard to King Saul’s commitment. ⁵ Perhaps the future event must be “contingent” in some relevant sense. I will leave this open. ⁶ See Tosafot, Gittin 73b, s.v. “Tana,” and see the discussion in Mishnat Rebbe Aharon, chapter 25.5, on Tosafot’s position.

16

Eli Hirsch

future contingencies are neither true nor false.⁷ Suppose that Reuven’s wife has now chosen House A. According to Aristotle’s position the statement made last week, “House A will be chosen,” was not then true (or false). Since the statement was not true, the expression “the house that will be chosen” was not true of, and hence did not refer to, house A. Consequently, no valid sale was transacted with respect to house A, nor surely with respect to the other house B. In short, there definitely was no valid transaction, as in Tosafot’s version of en bererah. I want to be careful to properly understand the point of connection between issues of philosophy and issues of halakha (Talmudic law). When I say that an Aristotelian must hold that Reuven’s transaction was invalid, I make this claim only against the assumed background of certain halakhic principles. One such principle is that in order for the sale of a certain object to validly go into effect at a certain time the owner and buyer must at that time have already specified (referred to, singled out) the object that is to be sold. The sense of “specifying an object” that is halakhically required is quite modest. The object need not be perceptually present to either the seller or buyer, nor is it even necessary that the object be recognizable as the intended one by either of them if it were present. It is evidently taken for granted in the Talmudic discussions of bererah that the sale of a house would be perfectly valid if the house were specified as “the one Reuven’s wife chose last week,” where neither Reuven nor the owner can recognize which house this is. All that is required for “specifying an object,” evidently, is that some singular term be available to the buyer and seller that is true of the object.⁸ The relevant question in our initial example, therefore, is whether the singular term “the house that will be chosen next week by Reuven’s wife” was true of any house at the intended time of the transaction. According to Aristotle’s position the answer to this question is no. Hence, Aristotle’s position in conjunction with the assumed halakhic principles implies that there was no valid transaction.⁹ ⁷ Aristotle, De Interpretatione 9. I assume the second interpretation given in Ackrill (1963: 140–2). A highly lucid exposition of Aristotle’s position is presented in Palle Yourgrau (1991: 81–3). Note that in this discussion I draw no distinctions between “It is a fact that p,” “It is true that p,” “The statement that p is true,” and “The statement ‘p’ is true.” ⁸ Rabbi Heller-Kahane (Ketzot Hachoshen) expounds the view of the medieval halakhist, Rabbi Asher ben Jehiel Ashkenazit (known to many as the Rosh), that one can financially obligate oneself to someone without being able to recognize the person (or without knowing the person’s name). I do not quite understand why this is even a question when all discussions of bererah seem to take it for granted (probably I am unaware of some halakhically relevant difference between specifying elements of different transactions). ⁹ Aristotle said that, whereas a prediction of a future event is not true at the time the prediction is made, it may “become true” when the event occurs. Hence if Reuven had predicted last week that his wife was going to choose house A, and she now has chosen house A, the prediction has now become true. (Notice that the future-tense sentence Reuven might naturally utter in making the prediction, “My wife will choose A,” does not become true; rather the present tense correlate of that sentence, “My wife is (now) choosing A,” becomes true, and that is what

Talmudic Destiny

17

Tosafot’s version of en bererah seems therefore very easy to explain. Let me temporarily pass over Rashi’s version, which will be the hardest position to explain. As regards the position of yesh bererah it appears, on the face of it, that any anti-Aristotelian ought to subscribe to this position. (I will eventually qualify this remark to accommodate Rashi’s anti-Aristotelian en bererist position.) Assuming that an anti-Aristotelian holds that, in whatever sense there are facts about the past, there are also facts about the future, then the intention to purchase “the house that will be chosen” ought to sustain as valid a transaction as the intention to purchase “the house that was chosen.” Anti-Aristotelians may hold different kinds of views in the philosophy of time. An especially interesting version of the anti-Aristotelian position is what a number of recent authors have called “Ockhamism.”¹⁰ This is the position that I expect would have been most congenial to the yesh bererists in the Talmud. A central idea of Ockhamism is the distinction between “hard” and “soft” facts about some past time. Suppose JFK ate his last breakfast at a certain past time t. That he was eating breakfast at t is a hard fact about t, but that he was eating his last breakfast at that time is a soft fact. The intuitive idea as expressed by Nelson Pike (1966: 369–70) is that hard facts about t were “fully accomplished” or “over and done with” at t, whereas soft facts were not. Essentially the same idea is expressed by Marilyn Adams, who equates “Statement p expresses a ‘hard’ fact about a time t” with “p is not at least in part about any time future relative to t” (1967: 494). Hard facts about t are also said to be “fixed” or “settled” at t, hence “unalterable” after t, whereas such description do not apply to soft facts about t. The distinction between hard and soft facts seems intuitively cogent, even though it has proven surprisingly difficult to clarify rigorously.¹¹ The main use made of the distinction in the Ockhamist literature has had to do with the problem of divine foreknowledge and free will, but my present interest in the distinction is unrelated to that problem. I am interested in how the distinction bears on the issue of bererah.

constitutes for Aristotle the prediction’s becoming true.) Now in a variant example (see the “second example” in note 4 above) in which Reuven and the owner stipulate that the sale of the house is not to take effect until the wife makes her choice the following week, it may suffice that the description “the house Reuven’s wife will choose next week” comes to specify (becomes true of) A the following week. But in the example we are considering the sale is intended to take effect immediately, and that is not possible for the Aristotelian. There is a notoriously difficult formulation of Rabbi Yaakov Lorberbaum, in his Netivot Hamishpat, that seems to imply that since en bererists allow the sale in the variant example to be valid when the choice is made, they will also allow the sale to be retrospectively valid in the original example—the issue of en bererah occurring only in cases where it is impossible for the transaction to take effect at the time of the choice. Apart from many other overwhelming problems with this position, one might add that it evidently could not be defended by an Aristotelian. For more on this position, see Ma’arekhet Ha-kinyanim, notes 1 and 2, and the negative comments in Mishnat Rebbe Aharon, ch. 25.6. ¹⁰ See John Fisher 1985. ¹¹ See Fischer 1983; Hoffman and Rosenkrantz 1984; and Fischer 1986.

18

Eli Hirsch

An Aristotelian will accept the distinction between hard and soft facts but not on the terms proposed by the Ockhamist. The Aristotelian would say that, whereas it is now a fact that JFK ate his last breakfast at t, this was not a fact at t.¹² Since a soft fact about t is in part about a time future relative to t, this fact did not obtain at t. A soft fact about t is about t but not (a fact) at t. The reason why a soft fact about t was not fixed or settled at t is simply that there was no such fact at t. Ockhamists evidently do not view the matter in this way. Indeed, in the Ockhamist literature I have seen, no distinction is drawn between “fact about a time” and “fact (that obtains) at a time.” One must surmise that Ockhamists think that the fact that JFK ate his last breakfast at t is not just a fact about t but is also a fact (that obtained) at t. It is possible that Ockhamists think that just as a soft fact about t is only partially about t (and partially about a time future relative to t), this fact is only partially at t. Whether it makes any sense to talk about a fact obtaining only partially at a time seems to me highly questionable. But the main point that concerns me at present is that Ockhamists evidently do not accept the Aristotelian idea that, whereas there are facts about the past, that there are no facts about the future. Let F be the fact that JFK had his last breakfast at t, and let F’ be the fact that JFK had his nth breakfast at t (filling in the correct number for n). F is a soft fact about t and F’ a hard fact, but both facts are only partially at t in the sense Ockhamists apparently have in mind. (Neither fact is “intrinsic” to t.) Therefore Ockhamists will say that in the same sense that F’ obtained at t, F obtained at t. Aristotelians, by contrast, will say that F’ obtained at t but F did not. It follows that Ockhamists must be yesh bererists. Compare our initial example, in which Reuven and the owner intend the immediate sale of “the house that will be chosen next week,” with a modified example in which they intend the sale of “the house that was chosen last week.” I assume as a halakhic given that the latter transaction is valid (if a certain house was chosen last week). But Ockhamists cannot draw any halakhically relevant distinction between the modified example and the initial one. Suppose that in both examples the conversation between Reuven and the owner took place at some time t in the past, that house A was chosen in the initial example, and house A’ in the modified example. Ockhamists would say that the fact that time t was one week prior to the time A was chosen is a soft fact about t, whereas the fact that t was one week after the time A’ was chosen is a hard fact about t. But that distinction has no halakhic relevance. All that is relevant

¹² I am making the intuitive assumption that the fact expressed by a past-tense statement such as “JFK ate his last breakfast at t” can be said to have obtained at t if and only if the statement’s past-tense correlate (“JFK is eating breakfast at t”) was true at t. On some other assumption my point in this paragraph might have to be slightly reformulated but its essential content is not affected.

Talmudic Destiny

19

halakhically is that the statement “A will be chosen next week” was true at t, just as the statement “A’ was chosen last week” was true at t.

2.2. CON DITIONAL TRANSACTIONS But this last claim opens up an important question that must now be carefully looked at. It may be objected that, contrary to what I have claimed, Ockhamists would have an excellent reason to reject yesh bererah. For suppose we tried to say with the yesh bererist that, house A now having been chosen, it is retrospectively revealed that the sale of A took effect last week. Then we evidently must say that it was a soft fact about last week that the sale of A took effect then. But this, it may be said, is absurd. If an object is sold at a certain time, then surely the sale must be over and done with at that time. A transaction such as a sale cannot be a soft fact; when it occurs it must be settled that it occurs and its occurrence must not be thereafter alterable. This line of argument may suggest that the only person who could be a yesh bererist is a fatalist or predestinationist, who thinks that all facts have been settled and unalterable since the beginning of time.¹³ I think, however, that this argument is misguided in two ways, both halakhically and philosophically. There is, first of all, decisive evidence that even the en bererists in the Talmud agree that a transaction can be a soft fact. This point applies to a variety of legal transactions, including sales, gifts, marriages, divorces, and numerous other examples. The proof of this point is that there is in halakhah such a thing as a tenai (‫)תנאי‬, which refers to a condition attached to a transaction. A man may marry a woman on the condition that he will give her a sum of money the following day. The principle of tenai says that if he gives her the money the next day the marriage is retrospectively valid, if he does not give it to her then the marriage is retrospectively invalid. Since even en bererists accept the principle of tenia, it cannot be that their doctrine is based on the argument that transactions must be hard facts.¹⁴ But is there something philosophically suspect about soft legal transactions? I think not. As people sometimes say, “If it’s the law it’s the law.” The legal ¹³ See Taylor 1962. ¹⁴ My exposition of the relationship between bererah and tenai attempts to follow closely the explanations given in Mishnat Rebbe Aharon. At a certain point in Tractate Gittin 25b, it seems to be implied that en bererah would require certain extreme restrictions on the principle of tenai (see Rashi, s.v. “Valechi maayit” and Tosafot, s.v. “Valechi maayit”), but the dominant view amongst the commentators is that in the final analysis such restrictions are dropped. In any case, the example of tenai mentioned in the text satisfies the restrictions and even such examples suffice to show that everyone agrees that transactions need not be hard facts (I cannot go into the details here of what motivated the alleged restrictions and why they were eventually disavowed).

20

Eli Hirsch

code defines what constitutes the valid sale of an object. There is nothing to prevent a legal code from saying, “Here is something you can do: you can attach a tenai, a condition, to the sale of an object, and then the sale is retrospectively valid if and only if the condition gets fulfilled.” This rule defines into existence the legal transaction of a “conditional sale.” There is no a priori philosophical problem with this. This point must hold not just for the Ockhamist but even for the Aristotelian, who is at present our prototype of the en bererist. The Aristotelian will say that when a tenai is fulfilled, it is retrospectively revealed that the transaction was valid, though at the time that the transaction took effect, it was not yet a fact that the transaction took effect. (Compare: When JFK was eating his last breakfast it was not yet a fact that JFK was eating his last breakfast.) There is still no philosophical problem here. If that’s the law that’s the law. But now one may feel that one has lost one’s grip on what the philosophical issue was that supposedly forced the Aristotelian to be an en bererist. It is necessary to be clear on why the Aristotelian can accept cases of tenai but not cases of bererah. The crucial question in each case is whether there is anything in the halakhic code that requires for the validity of a transaction that there be some fact about the future. The halakha with respect to tenai implies no such requirement. There is no requirement that, if a conditional transaction retrospectively takes effect at a certain time, there be at that time any true statement about the future. In our example of bererah, however, the halakha requires that, if house A is to be sold, that house must be specified at the time of the transaction, which implies that the statement “A will be chosen” must be true at the time of the transaction. The above explanation of the distinction between bererah and tenai is expressed incisively by Rabbi Aharon Kotler, in Mishnat Rebbe Aharon, from which I would like to quote a passage. That discussion, however, follows Rashi in framing the issue of bererah in terms of “destiny.” Let me first explain, therefore, what “destiny” means in the context of these Talmudic discussions. I think the answer to this should be quite clear at this point. Rashi implies (and so does Rabbi Kotler) that the central question of bererah is whether the occurrence of a choice retrospectively reveals that it was “destined” (‫עומ ד‬, ‫)רא ו י‬ for that choice to occur. In terms of our standing example, (1) House A having now been chosen, it is retrospectively revealed that house A had been sold last week only if it is retrospectively revealed that it had been destined for house A to be chosen. But our entire discussion has shown that, (2) House A having now been chosen, it is retrospectively revealed that house A had been sold last week only if it is retrospectively revealed that it had been a fact that house A was going to be chosen.

Talmudic Destiny

21

Putting (1) and (2) together, it is clear that “It was destined for house A to be chosen” means “It was a fact that house A was going to be chosen” (equivalently, “The statement ‘House A will be chosen’ was true”). In general, “It is destined that in the future p” means “It is a fact that in the future p.” Note that this Talmudic sense of “destiny” is very weak, implying nothing in the way of fatalism or predestination. Ockhamists believe in “destiny” in this sense. Aristotelians, however, do not. We will see what Rashi’s view is about “destiny” shortly. Here now is the quotation from Mishnat Rebbe Aharon (as loosely translated by me from the Hebrew original): When a condition is attached to a transaction this does not depend on bererah. The reason is that [the condition now having been fulfilled] even if it is not retrospectively revealed that the condition was destined (‫ )עומד‬to be fulfilled, the transaction is anyway [retrospectively] valid. For one is permitted to enact a transaction with a condition attached to it. (Mishnat Rebbe Aharon, chapter 25.9)¹⁵

2.3. TENAI AND BERERAH: MATTERS OF HALAKHA AND MATTERS OF PHILOSOPHY Much of the medieval literature on bererah is an attempt to clarify the respective scopes of the law of bererah and the law of tenai. One central problem can be illustrated as follows. In our initial example Reuven says, “I am purchasing the house my wife will choose.” Suppose he says instead, “I am purchasing house A on the condition that my wife will choose it, and I am purchasing house B on the condition that she will choose it.” If merely rewording a transaction can convert it from a case of bererah to a case of tenai then the distinction has become inoperative. One widely discussed answer to this question was given by Nachmanides (known as the Ramban), who (adapting a formulation from Tractate Eruvin ¹⁵ A very different view of tenai seems to be suggested by Rabbi Shimon Shkop, in his Chidushe Rebbe Shimon Yehuda Hacohen on Tractate Gittin, “Kuntris Be’inyani Tenai,” chapter 6 (opening pages); also in Kovetz Hamapharashim on Tractate Gittin. The view there may indeed imply that there are no soft facts about the validity of transactions. According to this view, when a tenai is attached to a transaction, we temporarily have a “defective” transaction (‫ )קלוש‬until either the condition is fulfilled, and the transaction becomes complete, or the condition is violated, and the transaction becomes nullified. In neither case is anything retrospectively revealed about the validity of the initial transaction. It is admitted that this is not the standard view of the matter (‫)כפי פשוטו‬, which I take to be the one expressed by Rabbi Kotler in Mishnat Rebbe Aharon. Probably, Rabbi Shimon Shkop’s position should be related to the idea of “retroactivity” (‫ )מכאן ולהבא למפרע‬as it is explained in Rabbi Chaim Soloveitchik’s discussion of “annulment of an underage marriage” (‫ )מיאון‬in Chidushei Rabbeinu Chaim Halevi, p. 51, hilchot ishut.

22

Eli Hirsch

36b) stated that it is not permitted to have “conditions on two things.”¹⁶ It is necessary to understand what Ramban means by this. Imagine a variant of our original example in which only one house is for sale, and Reuven says, “I am purchasing this house on the condition that my wife won’t object when she sees it, and also on the condition that I am not offered a job out of town during the next week.” This is merely a conjunctive condition and is surely a valid tenai; it is not what Ramban means by “conditions on two things.” Ramban means that the principle of tenai applies only when the elements of a transaction have been properly specified and a condition is then attached to the whole transaction. The principle of tenai does not permit one to attach a condition to the specification of an element of the transaction, as in, “I intend house A if such-and-such, otherwise I intend house B.” That is a case of “conditions on two things,” and it therefore cannot qualify as a case of tenai but must be treated as a case of bererah. Another famous formulation, which seems, however, not to differ substantively from Ramban’s, is that of Rabbi Nissim of Gerona, known as the Ran, who stated that a case of bererah is one in which “if this one then not that one.”¹⁷ This seems again to mean that we have a valid case of tenai only if the elements of a transaction have already been properly specified, not in a case where “if it’s this house that’s being sold then it’s not that one.”¹⁸ A valid tenai, in short, must be extrinsic to the essential transaction; the condition must not create uncertainty as to what the intrinsic elements of the transaction are. This is, of course, a point of halakha, not a priori philosophy, but the distinction thereby drawn between bererah and tenai seems highly coherent and intuitively satisfying. Questions about the distinction remain, however, and continue to be grist for Talmudic discussion. I will briefly mention a few illustrations. First of all, a question may arise as to what the intrinsic elements of a transaction are, in the relevant sense. In many cases this seems intuitively obvious. If an object is sold, the seller, the buyer, and the object certainly seem to be intrinsic elements of the transaction that is taking place. But suppose that the sale of an object is ¹⁶ In Hebrew: ‫—אין אדם מתנה על שני דברים‬Ramban on Tractate Gittin 25a, s.v. “Toleh badaat.” I am ignoring a certain extraordinary complication in Ramban’s position (he appears to hold that there is one special case in which the validity of a tenai does require bererah). ¹⁷ Ran on Tractate Gittin 13b, s.v. “Veikka.” ¹⁸ Rabbi Kotler (Mishnat Rebbe Aharon, chapter 25.14) implies that Ran’s formulation is equivalent to Ramban’s. The clearest medieval formulation I am aware of was given by Rabbi Menachem Meiri (on Tractate Gittin 25a, s.v. “Vehilkach”), who states that the distinction between bererah and tenai turns on whether what needs to be retrospectively clarified is intrinsic to the transaction (‫ )מצד עצמו‬or extrinsic. (In Tractate Gittin 25b, Tosafot, s.v. “Rebbe Yehuda,” introduces the requirement for a valid transaction that “the thing [that needs to be retrospectively clarified] definitely will be clarified (‫ ;)עומד הדבר להתברר בודאי‬although this is not obvious, I think the effect of Tosafot’s formulation is not much different from that of Ramban and the other commentators.)

Talmudic Destiny

23

enacted at one time with the stipulation that the sale take effect at a certain later time. In specifying the later time are we specifying an intrinsic element of the transaction, so that a specification of the time in terms of a future choice might constitute bererah? That has been a matter of controversy.¹⁹ Another interesting question is the following. Suppose in our original example Reuven and the owner attempted to enact two separate transactions, with two separate payments (or two separate contracts of sale), one for house A and one for house B, each transaction on the condition that this is the house that will be chosen. Will these be two valid transactions, each with a tenai, or would we still say that it is a case of bererah on the grounds that the intention is evidently that only one transaction will go into effect? It seems possible to argue this in both directions.²⁰ I will mention one other, especially memorable illustration. There is the famous story in II Samuel 17:25, in which King Saul has committed himself to enrich any Israeli who will slay Goliath. It was David, of course, who won these laurels. The Talmud in Tractate Sanhedrin 19b explains, in fact, that Saul’s monetary debt to David for slaying the Philistine played a complicated role in David’s effort to marry one of Saul’s daughters. Into this tale of courage and romance, the commentators injected a worry about bererah. There is a halakhic principle that one cannot transfer possession of an object that does not yet exist (for instance, one cannot purchase the future fruit that will grow from someone’s tree).²¹ Some commentators, including (on one authoritative interpretation of his words) Rabbi Shlomo ben Aderet, known as the Rashba, take this to imply that someone cannot be legally empowered to stipulate that a transaction take effect at a later time unless he is empowered to stipulate that it take effect immediately.²² Now, Saul obligated himself to the future slayer of Goliath, the obligation presumably to take effect after the slaying. Given the position attributed to Rashba, Saul’s ability to have the obligation take effect later implies that he was also empowered to stipulate that the obligation take effect immediately. But if Saul had declared, “I hereby obligate myself immediately to the person who will slay Goliath,” why is that not invalidated as a case of bererah? Various characteristically subtle and ingenious answers have been suggested by the commentators.

¹⁹ See Ran on Tractate Nedarim 45b, s.v. “Veika demakshu,” and the discussion of Ran in Mishnat Rebbe Aharon, chapter 25.1. The issue might be related to philosophical questions about the essential properties of an event. ²⁰ See Rabbi Akiva Eger on Tractate Gittin 25a, s.v. “Bedivrei haRan,” in Kovetz Hamapharashim on Tractate Gittin. ²¹ A principle (in Hebrew: ‫ )אין אדם מקנה דבר שלא בא לעולם‬found in Tractates Kidushin 63a and Gittin 13b and 42b. ²² Rashba is so interpreted in Ketzot Hachosen, which provides a general overview of a number of issues related to Saul’s commitment. However, a conflicting interpretation of Rashba’s position is adumbrated in Ma’arekhet Ha-kinyanim, section 13.

24

Eli Hirsch

To summarize: It is a matter of halakha (not philosophy) that there is a principle of tenai that applies to certain kinds of cases in which the validity of a transaction depends upon the occurrence of a future event, and it is a matter of halakha that in such cases the validity of the transaction does not depend upon there being facts about the future. Furthermore, it is a matter of halakha that the principle of tenai does not apply to certain other cases, and that in these cases the validity of a transaction does depend upon there being facts about the future. These latter cases are called bererah. It can, however, be a matter of philosophy whether cases of bererah are valid, for it can be a matter of philosophy whether there are facts about the future.²³

2.4. RASHI AND DESTINY We are now ready to consider Rashi’s version of en bererah.²⁴ I will first try to lay out Rashi’s position as I understand it, with minimal defense. I will afterwards say something more in the way of defending the position. On Rashi’s version of en bererah, even after house A has been chosen it remains a legal question, a safek (‫)ספק‬, whether house A had been purchased. Now I think the first point we have to grasp in understanding Rashi is that the safek he is talking about is not the typical one in which we happen to be ignorant of some fact. Once house A has been chosen, there is surely no straightforward contingent ignorance that we are still suffering from. It appears indeed that we know everything relevant to the case that we could possibly know, but there is still a safek. Rashi must mean that this is a safek that stems, not from our ignorance, but from a kind of indeterminateness or indefiniteness in the nature of the case. We have seen that house A was purchased only if it was true at the time of the enactment that A was going to be chosen, i.e., only if it was destined (in the sense defined earlier) for A to be chosen. Rashi’s fundamental thesis, on behalf of the en bererist, is this: Even after A has been chosen it remains in some objective or metaphysical sense indefinite whether it was destined for A to be chosen.²⁵ ²³ Cases of tenai necessarily involve the intention (‫ )דעת‬of the agents to attach a condition to a transaction. Almost all cases of bererah involve the intention of the agents to specify some element of a transaction in terms of a future event. I know of only one Talmudic example of bererah that has apparently nothing to do with intentionality, and that is the example of inheritance discussed in Tractate Gittin 25a. From an exegetical standpoint it is unfortunate that some of Rashi’s clearest formulations of his position occur in the context of this somewhat anomalous example. ²⁴ For further discussion of Rashi’s position see my (Hirsch 2006), and the online symposium on “Talmudic Destiny”: http://www.theapj.com/event/symposium-on-eli-hirschs-talmudic-destiny28-august-04-july. ²⁵ Rashi’s position seems also to imply that there remains a safek with respect to the purchase of the other house B. With respect to B, however, there is a special difficulty deriving from an

Talmudic Destiny

25

What is the nature of this indefiniteness that Rashi is talking about? We can begin by comparing Rashi’s position to Aristotle’s. Aristotle held that future choices are indefinite in the sense that there is no fact one way or the other what the choice will be. Before A is chosen, the statement “A will be chosen” is neither true nor false. In saying this, Aristotle explicitly rejected the principle of bivalence, that is, the principle that any statement is either true or false. But he wanted to hold onto the law of excluded middle. Hence he would have said, “Either A will be chosen or A will not be chosen, but neither the statement ‘A will be chosen’ nor the statement ‘A will not be chosen’ is true.” It is easy to show that the combination of holding onto the law of excluded middle and rejecting the principle of bivalence requires Aristotle also to reject the disquotation principle (“p if and only if ‘p’ is true”).²⁶ Aristotle would have said, “Even if A will be chosen, the statement ‘A will be chosen’ is not true.” Rashi’s position can be viewed as deriving from two ideas: first, the future is indefinite, as Aristotle implied; second, one cannot coherently reject the principle of bivalence or the disquotation principle (nor, certainly, the law of excluded middle). Prior to the choice of A, it is indefinite whether A will be chosen. But we do not therefore say, as Aristotle thought, that there is no fact whether A will be chosen. Rather we say that there is no definite fact whether A will be chosen. We do not say that the statement “A will be chosen” is definitely not true, as Aristotle said. Rather we say that the statement is not definitely true. The same holds for the statement “A will not be chosen”; it too is not definitely true. For Rashi, metaphysical indefiniteness does not mean the absence of facts; it means that the facts themselves are indefinite. At this point, having distinguished Rashi’s position from Aristotle’s, we may be left wondering what the distinction is between Rashi’s position and Ockham’s. The Ockhamists also accept the principle of bivalence. They would say that, prior to A’s choice, either “A will be chosen” is true or “A will not be chosen” is true, but neither statement is a settled or unalterable truth. If we substitute “definite” for “settled” or “unalterable” we get Rashi’s position. What is the difference? The clear difference comes out, not in what we say about the future, but in what we say retrospectively about “past futures,” to adapt Russell’s famous expression. After house A has been chosen, the Ockhamist would say that everything is now settled; there is now nothing relevant that remains alterable. acute question raised in a related context by Rabbi Akiva Eger (Maaracha Vadrush, s.v. “Venira debayn”; cf. Mishnat Rebbe Aharon, chapter 25.6). The difficulty—just to state it, without explaining it further—is that, although our example is a case of bererah and not simply a case of tenai (for the reasons explained earlier), the principle of tenai still ought to imply that house B was definitely not purchased, leaving it a safek whether house A was purchased. Since this difficulty does not challenge Rashi’s fundamental thesis, I will not go into it, and I will confine my attention to the safek with respect to house A. ²⁶ See Timothy Williamson 1994: 162.

26

Eli Hirsch

Last week it was not settled whether the future-tense statement “House A will be chosen” was true, but now it is surely settled that the statement was true last week. But Rashi holds that it remains indefinite whether the statement was true last week. This difference between the Ockhamist’s position and Rashi’s is, of course, precisely the issue of bererah. The Ockhamist must be a yesh bererist, as I explained earlier, whereas Rashi’s position is a version of en bererah. It might be objected, however, that this explanation merely highlights the unintelligibility of Rashi’s position. Rashi, it appears, is trying to mark out a space between Aristotle’s position (which yields Tosafot’s version of en bererah) and Ockham’s (which yields yesh bererah), but what can that space be? What can it mean to say that even after A has been chosen, it remains indefinite whether it had been true that A was going to be chosen? But I think we can understand Rashi’s position, and that once we understand it we find it to be deeply motivated. One impediment towards understanding the position parallels a difficulty for Aristotle’s position. Suppose that, A having now been chosen, we ask whether we now know that A was going to be chosen. It seems that one cannot deny that this is in some sense known to us. But does this not imply that we now know that it was true that A was going to be chosen? Aristotelians must deny this. They would say that a prediction made last week that A was going to be chosen has now become true, but the prediction was not true last week when it was made.²⁷ The sense in which it is now true that A was going to be chosen is that the prediction has now come true. But we cannot say “A was going to be chosen” in a sense that implies that it was already true last week that A was going to be chosen. Essentially the same distinctions operate within Rashi’s position. Now that A has been chosen it is definite that in a sense A was going to be chosen. But this does not imply that it is definite that it was already true last week that A was going to be chosen. The notion of “indefiniteness” or “indeterminateness” occurs in two other familiar contexts. One is the area of semantic vagueness, and the other is in quantum physics. With respect to the former, Russell made the plausible point that vagueness is merely a matter of our own muddle-headedness, not something in the world.²⁸ A standard view of quantum physics, however, is that there is somehow an objective muddle in the world. Rashi’s view of the indefiniteness of the future must be understood along the lines of there being in the present some form of objective muddle as to what the truth is about the future.²⁹ In a sense this muddle is irresolvable. However definite the truth is today about the choice of A, it remains permanently muddled what the truth ²⁷ Cf. note 9, above. ²⁸ See Williamson 1994: 53. ²⁹ It was Mark Steiner who first told me that there may be important connections between the topic of bererah and conceptual issues in quantum physics. I do not know whether he was thinking specifically of Rashi’s position.

Talmudic Destiny

27

was last week about the choice of A. With respect to the choice of A, the present may be unmuddled, but the past future remains muddled, i.e., it remains muddled what the past truth was about the present. This is, for Rashi, the central idea of en bererah, and I have come to think that it may be a quite plausible idea. That is to say, supposing that I can really make sense of the notion of an objective muddle in the world, I cannot see how what happens today can unmuddle the future-tense facts of last week. Consider an analogy to quantum physics. Suppose that there was no definite truth last week whether a certain electron was spin-up. Then it would make no sense to suggest that it has become definite today that it was true last week that the electron was spin-up. In the same way, Rashi’s position says that if there was no definite truth last week whether A was going to be chosen, it makes no sense to say that it has become definite today that it was true last week that A was going to be chosen. I will come back to this point. But let us assume for a moment that it is acceptable. I now want to show how Rashi’s claims about a “change of destiny” follow. Consider this argument: 1. It is definite that A has now been chosen. 2. It is not definite whether it was true last week that A was not going to be chosen. 3. Therefore, it is not definite whether: A has now been chosen and it was true last week that A was not going to be chosen. 4. Therefore, it is not definite whether: A has now been chosen and it was destined last week that A was not going to be chosen. 5. Therefore, it is not definite whether there has been a “change of destiny.” 1 merely reports the fact of A’s choice. 2 is an application of the basic en bererist point that I just finished explaining. Note that, since Rashi accepts the principle of bivalence, there is no difference between saying “It is not definite whether it was true last week that A was going to be chosen” and saying “It is not definite whether it was true last week that A was not going to be chosen.” 3 follows from 1 and 2 by way of the (I think) obviously correct inference rule: “It is definite that p. It is not definite whether q. Therefore, it is not definite whether p and q.” 4 merely restates 3 in terms of the earlier definition of “destiny.” And 5 applies the notion of a “change of destiny” to 4 in a completely obvious way. One has to think about it for a moment to realize that, on this argument, it could not possibly be a definite fact that there has been a “change of destiny.” Rashi’s point, however, is that the indefiniteness of destiny implies that it is also not a definite fact that there has been no “change of destiny.” The legal safek in cases of bererah derives from this indefiniteness.³⁰ ³⁰ In Tractate Gittin 25a, s.v. “Lekuchot hen,” Rashi says that “we need to be concerned that the portion acquired by this one had been destined (‫ )ראוי‬for his brothers, and they exchanged.”

28

Eli Hirsch

2.5. RASHI AND THE O PE N FUTURE In this final section I want to say a bit more in defense of Rashi’s position, not to show that the position is demonstrably correct—which it surely is not—but that it may be one important way of reacting to an age-old mystery about the openness of the future. Let me mention that prior to working on Rashi’s position, I had never given any serious thought to this philosophical problem. It really never occurred to me that the puzzle addressed by Aristotle in De Interpretatione, chapter 9, had to be worried about. In this I think I am not atypical of analytic philosophers of roughly my generation. I now think that the first indispensable step in appreciating Rashi’s position (or Aristotle’s) is to allow oneself to be mystified by one of the oldest and deepest philosophical questions. I want to formulate the problem (perhaps a bit differently from the way Aristotle did) by considering the following illustration. Suppose that the way it works in the world is that every so often an electron randomly pops into existence somewhere. (I think this is actually a theory held by some people.) I am imagining that this random popping event is causally independent of any prior event, so that we cannot even say that had a certain prior event occurred, the popping event would not have occurred. I think most people would agree that this is at least an intelligible description. (The description may approximate to how some people think about free will, but I am deliberately avoiding the special baggage that goes with that concept.) Now suppose that one such popping event occurred last Tuesday. Then it seems clear that the following is true: “As of last Monday it was still possible for the event not to occur, but by last Wednesday it was no longer possible for the event not to occur.” What can this mean? I think reflecting on this question is a good initiation into the mystery of the openness of the future. It seems immediately wrong to suggest that what we mean can be explained in terms of our knowledge and ignorance. Maybe it is a situation in which we cannot possibly find out whether any such popping event occurred on Tuesday. Still it seems clear that if such an event did occur on Tuesday then by Wednesday it was no longer possible for the event not to occur. What does this mean? Ockhamists seem to offer no explanation. Obviously it is vacuous to be told that the event was “over and done with” by Wednesday but not by Monday; that merely repeats the fact that the event occurred before Wednesday and after Monday. Might Ockhamists appeal to the idea that the event was alterable (preventable) on Monday but not on Wednesday? But I am imagining that nothing that could have happened on Monday would have prevented This should be compared to a quantum physicist who, in the course of calculating the possibilities with respect to some set of particles, says, “We need to be concerned that this electron is spin-up,” meaning that it is indefinite whether the electron is spin-up.

Talmudic Destiny

29

the event from occurring. In any case it seems to me that to say that, as of Monday, it was still possible for the event not to occur is not to say anything at all about preventing the event. The idea of prevention seems to introduce something quite new into the story, something beyond the simple idea we are trying to explain. We are looking for an explanation of the simple idea that, as of Monday, the event still did not have to happen. Whether something could have been responsible for preventing it is a different question. I think Ockhamists take it as a given, as something not to be explained any further, that in a sense in which there are many possible futures, there is only one possible past. This may not be unreasonable; everything in philosophy turns on where one is willing to say “Here my spade is turned” (Wittgenstein). But I think many people will feel impelled to dig further, to try to formulate some kind of metaphysical explanation for this difference between the past and the future. Aristotle’s explanation is that there are facts about past events but no facts about future (contingent) events; hence there are possibilities for the future in a sense in which there cannot be possibilities for the past. I think this does feel like an explanation of some sort. The exorbitant price, however, is the denial of the principle of bivalence (and disquotation). Rashi’s position offers another explanation: The future is open to possibilities because there are no definite facts about future (contingent) events; the past is closed because there are definite facts about past events. This too feels like an explanation, I think. It has the virtue of allowing us to retain the principle of bivalence. Its immediate drawback is that it requires us to understand what is meant by “metaphysical indefiniteness.” I doubt that one can say much to define this notion. One can try to give examples, but probably the best example is the very one we are talking about. An analogy can be drawn to a similar—and similarly difficult—notion used in quantum physics. Perhaps one can try to say that our own muddle-headedness is somehow reflected in the way the world is. Beyond that, I think Rashi’s position invites us simply to accept this notion as the best we can do in framing the kind of explanation we seek. It must be acknowledged that, while having the advantage of accepting the principle of bivalence, there is one respect which Rashi’s position is intuitively more problematical than Aristotle’s. Suppose that house A has been chosen. The statement “It was not true last week that A was going to be chosen, and A has now been chosen” is regarded as true by Aristotle. This is intuitively surprising. Perhaps equally surprising is Rashi’s judgment that the statement has no definite truth value (because the first conjunct has no definite truth value and the second conjunct is definitely true). But now consider the conjunction, “It was true last week that A was not going to be chosen, and A has now been chosen.” Whereas Aristotle can regard this statement as trivially false, Rashi must regard it as having no definite truth value, for the same

30

Eli Hirsch

reasons as before. This was the source of the earlier argument for the indefiniteness of a “change of destiny.” There is no question that this is an intuitively astonishing result, but one may be able to tolerate it as being merely a surprising corollary of the fundamental idea that there are no definite facts about future choices.³¹ In my own thinking about this I have found that if I start out by focusing on the conjunctive statement as a whole it seems clear that the statement must be false, and hence the first conjunct must be false, but if I start out by focusing on the first conjunct it strikes me that this may indeed have no definite truth value, so that the conjunction as a whole has no definite truth value. (I have in fact vacillated wildly in my assessment of Rashi’s position, sometimes feeling that it is utterly absurd and at other times regarding it as a major achievement.) The issue between Rashi’s position and Aristotle’s has an interesting formal parallel in the area of semantic vagueness. (As I will explain in a moment, the parallel is only formal, not substantive.) Supervaluatationists accept a logic of vagueness that formally parallels Aristotle’s logic of predictions: The law of excluded middle is accepted but the principle of bivalence is rejected. If it is semantically undecided whether the word “bald” applies to Jones, then it is indefinite (indeterminate) whether Jones is bald, indefinite whether Jones is not bald, but definite that Jones is either bald or not bald (the law of excluded middle is accepted); however, neither the statement “Jones is bald” nor “Jones is not bald” is true (the principle of bivalence is rejected). Williamson (1994: 163–4), in the course of criticizing supervaluationism, formulates an alternative view in which, if it is not definite whether Jones is bald, then it is also not definite whether the statement “Jones is bald” is true.³² This view is the formal counterpart of Rashi’s position. Some philosophers have dealt with vagueness by developing various “nonstandard logics” in which not only the principle of bivalence is denied, but also the law of excluded middle.³³ Nonstandard logics might also be applied to statements about the future. My assumption here, however, is that no such departure from plain logic figured in the Talmudic issue of bererah; Rashi, I assume, did not question the law of excluded middle.³⁴ ³¹ The intuitive problem for Rashi can be to some extent explained away if we adopt the inference rule: “p, therefore, definitely p”; cf. Williamson 1994: 147–51. Even Rashi could then agree that “It was true last week that A was not going to be chosen” entails “It is false that A has now been chosen.” The intuitive problem may be ameliorated in a more general way by emphasizing our tendency to conflate “p” with “Definitely p.” ³² Williamson does not accept this view, though he notes that it is formally very close to the “epistemic” position he champions. The view seems to me highly interesting. ³³ See Williamson 1994: chapter 4. ³⁴ Part of my reason for thinking this is that any such extreme departure should probably have occasioned some statement to the effect from Rashi or one of his successors. More direct evidence is the following: In Tractate Eruvin 3b, Tosafot (s.v. “Ella m’atta”) presents the view of the commentator they call Mahari, who endorses Rashi’s position that there is a safek in cases of

Talmudic Destiny

31

I said that there is only a formal analogy between the issue of vagueness and that of the open future. This is because I am inclined to take it for granted, with Russell, that vagueness is purely a matter of our own muddle-headedness; there is surely no objective muddle in the world answering to the indefiniteness of Jones’s baldness. If we accept the formal analogue of Rashi’s position for vagueness we say, “It is indefinite whether Jones is bald, and indefinite whether the statement ‘Jones is bald’ is true; and all of this is due to our semantic indecision, to our muddle-headedness.”³⁵ It is in quantum physics that one finds the prospects for both a formal and substantive analogy to Rashi’s position. In this area too one might try to explain the notion of indefiniteness, on the analogue of Aristotle’s view, by denying the principle of bivalence. Without knowing too much about this, my conjecture is that most practicing physicists tacitly hold the analogue of Rashi’s position, which implies that if it is indefinite what the state of a particle is then it is also indefinite what the truth is about that state. Suppose a physicist tells me that it is indefinite (indeterminate) whether a certain electron is spin-up. I ask him, “So if I say that the electron is spin-up, that’s definitely not true?” I anticipate the answer, “I just told you it’s indefinite whether that’s true” rather than the answer, “Right, that’s definitely not true.” The first answer comes out of the analogue of Rashi’s position. In quantum physics there is the notion of a “superposition of contrary states.” This is a technical and quantitative notion, but it is also intended to express the idea that there is somehow an objective muddle in the world. It can be helpful to express Rashi’s position in these terms. At any moment there is a superposition of contrary future-tense facts. Suppose that house A has now been chosen. Looking back on last week we see a superposition of the fact that A was going to be chosen and the fact that A was not going to be chosen. This gives us a vivid picture, I think, of why the safek about what was destined last week can never be resolved.³⁶ bererah (cf. Mishnat Rebbe Aharon, chapter 25.5). In that context Mahari advances a memah nefshach (‫ )ממה נפשך‬argument—which is the Talmudic name for a disjunction elimination argument—that clearly presupposes the law of excluded middle in cases of bererah; there is no reason to suppose that Rashi disagreed with Mahari on this point (Rabbi Kotler suggests that Rashi would disagree with Mahari on some other point, but takes it for granted that Rashi would admit memah nefshach reasoning in the context of bererah; Mishnat Rebbe Aharon, chapter 25.5). ³⁵ There is a remarkable discussion in Tractate Kidushin 51a, that I think is about vagueness. A man approaches two women who are willing to marry him, gives each of them a ring (or some other token), and says “I hereby marry one of you,” but does not specify which one. The halakha is that he is in a safek marriage to each of them (cf. Mishnat Rebbe Aharon, chapter 25.9). I cannot spell this out here, but I think the implication is that the Talmud is assuming a Rashilike treatment of semantic indefiniteness. ³⁶ Metaphysical indefiniteness (the objective muddle, superposition) is not primarily a matter of our knowledge and ignorance, but I am not sure that it does not somehow have an epistemic layer to it (cf. the “measurement problem” in discussions of quantum physics). Rabbi Kotler states that an act of prophetic revelation can resolve the safek in a case of bererah (Mishnat Rebbe

32

Eli Hirsch

Evidently much more needs to be said about these issues. I hope I have said enough to indicate that Rashi’s position may present us with a new and important way of trying to think about the open future.³⁷ BI B LI OGR APHY Jewish Sources and Rabbinic thinkers Chidushe Rebbe Chaim Halevi, by Rabbi Chaim Soloveitchik, 1853–1918. Chidushe Rebbe Shimon Yehuda Hacohen, by Rabbi Shimon Shkopp, 1860–1939. Ketzot Hachoshen, by Rabbi Arieh Leib Heller-Kahane, 1754–1812. Kovetz Hamapharashim on tractate Gittin, a compendium of classical commentaries to tractate Gittin. Ma’arekhet Ha-kinyanim, by Rabbi Shimon Shkopp, 1860–1939. Mishna, compilation of halakhic discussions from about 500 BCE to 200 CE. Mishnat Rebbi Aharon, by Rabbi Aharon Kotler, 1892–1962. Nachmanides, Rabbi Moshe ben Nachman, the Ramban, 1135–1204. Netivot Hamishpat, by Rabbi Yaakov Lorberbaum, 1760–1832. Rabbi Asher ben Yechiel Ashkenazi, the Rosh, 1250–1327. Rabbi Akiva Eiger, 1761–1837. Rabbi Menachem ben Shlomo, the Meiri, 1249–1316. Rabbi Nissim ben Reuven Gerondi, the Ran, 1320–1376. Rabbi Shlomo ben Abraham Adret, the Rashba, 1235–1310. Rabbi Shlomo ben Yitzchak, Rashi, 1040–1105. The Talmud, compilation of halakhic discussions from about 200 CE to 500 CE, arranged around the Mishna (see Mishna, above), arranged into various tractates. Tosafot, a collection of Talmudic commentaries, twelfth and thirteenth centuries. General Bibliography Ackrill, J. L. (1963) Aristotle’s Categories and De Interpretatione. London: Oxford University Press. Adams, M. M. (1967) “Is the Existence of God a ‘Hard Fact?’ ” The Philosophical Review 76: 492–503. Fischer, J. (1983) “Freedom and Foreknowledge.” The Philosophical Review 92(1): 67–79.

Aharon, chapter 25.4). I have not yet been able to make good sense out of this. (In quantum physics could a prophetic revelation cause the collapse of a wave function?) ³⁷ Although I have claimed that an Aristotelian ought to accept Tosafot’s version of en bererah, now that Rashi’s position has been presented, I think it is plausible to suppose that Tosafot (and indeed all the major medieval commentators) shared Rashi’s anti-Aristotelian view of the open future. The discussion in Mishnat Rebbe Aharon (chapter 25) suggests that Tosafot’s version of en bererah derives from a halakhic principle roughly to the effect that if it is not determinate that a valid action was executed then it is determinate that no valid transaction occurred.

Talmudic Destiny

33

Fisher, J. (1985) “Ockhamism.” The Philosophical Review 94(1): 81–100. Fischer, J. (1986) “Hard-Type Soft Facts.” The Philosophical Review 95(4): 596–601. Hirsch, E. (2006) “Rashi’s View of the Open Future: Indeterminateness and Bivalence.” In: D. Zimmerman, ed., Oxford Studies in Metaphysics. Oxford: Oxford University Press, pp. 111–136. Hoffman, J. and Rosenkrantz, G. (1984) “Hard and Soft Facts.” The Philosophical Review 93(3): 419–34. Pike, N. (1966) “Of God and Freedom: A Rejoinder.” The Philosophical Review 75: 369–79. Taylor, R. (1962) “Fatalism.” The Philosophical Review 71: 56–66. Williamson, T. (1994) Vagueness. New York: Routledge. Yourgrau, P. (1991) The Disappearance of Time. Cambridge: Cambridge University Press.

3 Metaphysics out of the Sources of the Halakha or a Halakhic Metaphysic? Aaron Segal

“The lawyer cannot afford to adventure himself with the philosopher on the metaphysics of causation” —Sir Frederick Pollock, The Law of Torts

3.1. METAPHYSICS I N THE TALMUD? The scene begins with one man demanding payment of a debt from another fellow. To the creditor’s chagrin, the debtor repays him with roughly the following argument: a man, at every time at which he exists, is just the sum of many smaller parts. But a sum can’t lose or gain parts without passing out of existence, in the same way the number nine couldn’t “lose” one and be the number eight. But as it happens, organisms, including human beings, are losing and gaining parts all the time. Thus, the debtor argues, the man who stands before the creditor is not the very same man who contracted the debt, and therefore he is not legally obligated to pay it. The creditor is no fool. He strikes the debtor, and when the debtor protests, the creditor responds that he is not the same man who struck a few moments earlier. This scene first appears in an early Greek comedy by Epicharmus, and variants of it frequently resurface.¹ It is amusing. But it raises serious questions. Both the philosophical argument and its central premise—that a sum can’t lose or gain parts—have found many adherents throughout the history of philosophy, and both are worthy of discussion.² Abstracting away from the ¹ The reconstruction of the scene from Epicharmus is based on Sedley 1982: 255–75. ² See Rea 1995: 225–52, and the sources cited therein, nt. 8. Aaron Segal, Metaphysics out of the Sources of the Halakha or a Halakhic Metaphysic?. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0003

Metaphysics and the Halakha

35

particular argument, however, the scene raises a broader set of questions. We have here a legal argument—or at least an argument whose conclusion is about legal matters—that has a straightforwardly metaphysical premise about the persistence conditions of material objects. We might naturally ask, Does the issue of who is legally obligated to repay debts (in some specified legal system) really turn on subtle metaphysical questions about the persistence conditions of material objects? Do legislators and judges need to keep abreast of the stateof-the-art literature in metaphysics? To students of Talmudic literature, cases such as that of the debtor will surely seem familiar. To be sure, other legal systems also make heavy use of metaphysical notions, like causal contribution.³ But the broad range of Jewish law, both in the diversity and ubiquity of its application, coupled with its dogged attempt to base itself on fully general principles and conceptual analyses, makes it an especially fertile ground for the treatment of metaphysical topics.⁴ The employment of metaphysical premises in the course of a Talmudic legal argument, whether explicitly stated or implicitly assumed, is commonplace. Claims that are apparently about, or apparently entail ones that are about, identity and persistence, events, causation, action and intentional action, truth and bivalence, time, potentiality, or composition and parthood, make frequent appearances in halakhic (Jewish legal) discussions.⁵ These topics are the woof and warp of traditional metaphysical inquiry. To have a comprehensive theory of all of these concepts would be to approach a fullblown metaphysical theory about the most general features of the world and our place in it. Of course, no one could reasonably claim that a fully comprehensive theory of any of the above concepts is explicit, or can even be extracted from, Talmudic discussions. But it would seem that for many of them, the broad contours of a theory, as well as important details, could indeed be reconstructed. If this were done, it would afford us a unique window into the rabbis’ views on metaphysical matters. The world of aggadah and liturgy of course provides us with an indispensable resource on such issues, but its mode of expression is often metaphorical and imagistic, and its metaphysical subject matter is almost exclusively theological or religious, so it is difficult to extract from it a rigorous and comprehensive metaphysic. But that is precisely what appears to be possible with respect to the halakha in the Talmud. For those interested ³ See Moore 2009: 1–4. ⁴ As Leib Moscovitz (2002) remarks, “Indeed, due to the remarkably broad scope of rabbinic law, which includes both civil and criminal law and various types of ritual issues, rabbinic legal concepts and principles can often be applied to multiple legal domains in a manner which is not possible in other legal systems” (36). See also Hirsch 1999: “One of the main ideas that interests me is that in the Talmud the identity of artifacts seems to take on a kind of importance (and, in a sense, a kind of ‘reality’) not found in any other literature with which I am familiar” (166). ⁵ See Steiner 2000: 44–5 for several examples.

36

Aaron Segal

in reconstructing a rabbinic worldview (or worldviews), the Talmudic legal discussions seem to be a veritable treasure trove. Indeed, in the last decade or two, a number of philosophers have turned their attention to those discussions, with an eye toward extracting a rabbinic metaphysic. They have painstakingly examined certain Talmudic legal passages and have unearthed what seem to be fairly clear views on age-old questions about the metaphysics of action and material objects. They have put R. Yohanan in debate with the Stoics, and the stamaitic redactors of the Babylonian Talmud in dialogue with Wittgenstein and Anscombe.⁶ I have been tempted on more than one occasion to try my hand at this. I have not done so, however, because I have reservations about one of the project’s underlying assumptions, reservations that are roughly the same as the questions I raised about the “debt scene.” Is R. Yohanan, in claiming that a dish or sandal loses its impure status after undergoing certain changes, really committed to a certain controversial view about the metaphysics of material objects? Is his halakhic position precariously perched on a metaphysical view that may well be false? The answer to these questions, I believe, is no. Put simply, we have little reason to believe that the rabbis were dealing with the very same issues and questions with which a metaphysician is grappling. Nor were they staking out controversial philosophical views. But crucially, that does not mean that the rabbis were not developing a distinctive metaphysic. They were, I will argue, carving reality using concepts that are different from, and quite possibly indefinable in terms of, the ones an ordinary philosopher employs. Thus, the project we ought to pursue is not the one of putting the rabbis in direct dialogue with the philosophers. What we ought to pursue in its stead is an investigation of the alternative conceptualizations of the world that emerge from halakha.

3.2. YES, METAPHYSICS IN THE TALMUD But first it would be good to have a more careful statement of the view which I oppose. I will assume that the notion of a metaphysical claim, i.e., a claim whose subject matter is metaphysics, is relatively unproblematic. Now suppose we come across a Talmudic legal statement that expresses a metaphysical claim. The basic idea is that we are not to understand it as expressing a distinctively halakhic claim—whatever that might amount to—about some ⁶ See Hirsch 1999, 2006, and 2018, and Lewinsohn 2006–07. Note that Lewinsohn undertakes three different tasks, and my discussion is confined to only one of them, namely investigating “philosophical views in the Talmud.” I have no objections to the projects of using “halakha as a prod for philosophical thinking” and using “philosophy as a tool in lomdus.”

Metaphysics and the Halakha

37

metaphysical subject. Rather, we are to understand it as expressing an ordinary, run-of-the-mill metaphysical claim. Indeed, we are to understand it as expressing the very same claim it would have expressed if it had not appeared in a halakhic context. Or, at least we are to understand it that way unless we have good reason to think it is in some way unusual. So we might state the view as follows: Presumption of Non-Locality: Consider any Talmudic legal statement that expresses a metaphysical claim—we are prima facie justified in presuming that it expresses the very same claim that it would express if it were stated in a straightforwardly philosophical context. But this statement of the view requires some modification, if only because it is not general enough. The view is not meant to be restricted to cases in which there is an explicit Talmudic statement that expresses a metaphysical claim. In many cases, perhaps most cases, the metaphysics is lurking beneath the surface of a Talmudic passage, and it is only when taken together with certain contextually supplied interpretive principles—plausible principles about what a Talmudic rabbi means to convey when making certain sorts of statements or inferences, or even asking certain questions—that the Talmudic statement implicates a metaphysical claim.⁷ This presents a difficulty in stating the view, because in such cases it’s likely false that the Talmudic statement would implicate the very same claim in a straightforwardly philosophical context, since the contextually supplied interpretive principles would likely differ. (For example, here’s a maxim that is often assumed in the Babylonian Talmud to be followed by the rabbis, at least in their legal discussions: Don’t say anything obvious. If this were to govern our ordinary discourse, I’m afraid my wife and children would need to reinterpret much of what I say. Even in philosophical contexts, although one is often expected to say something non-obvious, it is of course not expected that everything one say is non-obvious. Sometimes, one needs to state the obvious in order to explain or argue for the less-than-obvious.) And yet the view under discussion would still have it that the metaphysical claim that is implicated is one philosophers would be debating. This difficulty in stating the view can be overcome in the following way: in cases in which a metaphysical claim is implicated by a Talmudic legal statement but not expressed by one, there is, I will assume, a sentence that would have expressed the claim if the sentence had been stated in a halakhic context. The idea here is that there has to be some way the rabbis of the Talmud could have directly expressed the metaphysical claim. We can even imagine the rabbis having drawn out the implication if we wish. Then the view is that the relevant sentence would still express the same metaphysical claim if it were

⁷ See Grice 1989.

38

Aaron Segal

stated in a purely philosophical context. If we consider expressing a limiting case of implicating, we can state the view in a unified way as follows: Presumption of Non-Locality*: Consider any metaphysical claim that is implicated by a Talmudic legal statement—we are prima facie justified in presuming that any statement that would exactly express that claim if it were stated in a halakhic context, would still express that claim if it were stated in a straightforwardly philosophical context. I am quite sure that this formulation would have to be tweaked to accommodate the difficulties that frequently beset analyses and views that are put in terms of counterfactual conditionals. But I will spare the reader the details. I will let the above formulation of the view (henceforth ‘the Presumption’) stand and simply promise that any objection I raise will be one which anyone who holds the substance of the view in question will recognize as an objection to his or her view.

3.3. METAPHYSICS IN THE TALMUD, EXEMPLIFIED It will be useful, I think, to consider this view as applied to a specific example. The Babylonian Talmud in Baba Kamma 65b is discussing the conditions under which a thief has to return an object which he stole: R. Ilai said: If a thief misappropriates a lamb and it grows into a ram, or a calf and it grows into an ox, as the article has undergone a change while in his hands he would acquire title to it, so that if he slaughters or sells it, it is his which he slaughters, it is his which he sells. R. Hanina objected to R. Ilai’s statement [from the following teaching]: If he misappropriates a lamb and it grows into a ram, or a calf and it grows into an ox, he will have to make double payment or four-fold and five-fold payments reckoned on the basis of the value at the time of theft. Now, if you assume that he acquires title to it by the change, why should he pay? . . . But all the same does the objection raised against R. Ilai still not hold good?—R. Shesheth thereupon said: The teaching [of the Baraitha] is in accordance with the view of Beth Shammai, that a change leaves the article in the previous position and will accordingly not transfer ownership, as taught: If he gave her [the harlot] as her hire wheat of which she made flour, or olives of which she made oil, or grapes of which she made wine, it was taught on one occasion that “the produce is forbidden [to be sacrificed upon the altar],” whereas on another occasion it was taught “it is permitted,” and R. Joseph said: Gorion of Aspurak learnt: “Beth Shammai prohibit [the produce to be used as sacrifices] whereas Beth Hillel permit it.”

In this passage, R. Ilai and R. Hanina have a halakhic dispute about a case in which someone steals a lamb and it grows into a ram or a calf and it grows into an ox. R. Ilai maintains that the ram or ox now belongs to the thief and the

Metaphysics and the Halakha

39

thief is under no obligation to return it; instead, he is obligated to compensate the original owner for lost value. R. Hanina, on the other hand, maintains that the thief is still obligated to return the ram or ox, and can incur further monetary obligations by slaughtering or selling the animal. R. Ilai’s ruling is an instance of the general principle that emerges from the Mishnayot in the ninth chapter of Tractate Baba Kamma, that, in the words of Rabbah, “shinui koneh”: a significant change in a stolen object effects a transfer of title. But what is the legal basis of that principle? From Rabbah’s derivation of the law (BT Baba Kamma 66a), one might get the impression that it is rooted in a local consideration in the laws of thieves and robbers. In other words, the halakha is that one is obligated to return a stolen object only if it is “just as it was”—sufficiently qualitatively similar—and that’s the entire content of the principle of shinui koneh. In that case, the principle would have no application outside the laws of theft and robbery. But from the second half of our passage, it would appear that at least R. Shesheth did not understand things that way.⁸ He assumes that the dispute between Beit Shammai and Beit Hillel about the transformation of a gift to a hired harlot is generalizable, and, in particular, that it applies to the case of a stolen object that has undergone change. Beit Shammai, in parallel to their stringent ruling regarding gifts given to hired harlots, would maintain that even someone who stole wheat and ground it into flour would still be required to return the flour (and a fortiori, that someone who stole a lamb would be required to return the ram into which it grew). Clearly, if the principle of shinui koneh is a local one, it would not be possible to infer that Beit Shammai would reject the principle of shinui koneh from their position regarding gifts to hired harlots. So what permits R. Shesheth to make this inference? Quite plausibly, he is interpreting both Beit Shammai and Beit Hillel as maintaining some general view on the persistence conditions of material objects, a view which will then have implications for disparate areas of halakha. As the Ba’ale ha-Tosafot (s.v. Ha Mani) make explicit, And if you ask, how does he [R. Shesheth] compare them, as what is the relevance of gifts [to a hired harlot] to shinui [koneh]? The answer is that he maintains that if he [Beit Shammai] would accept the principle shinui koneh, he would have permitted a changed gift [to a hired harlot] since it is considered another [object] and it is not the one that came into her hands as a gift . . . ⁸ See Tosafot s.v. Hen ve-Lo Shinuiehem and Yam Shel Shlomo Baba Kamma Siman 6 for a discussion of the relationship between Rabbah’s source and the source cited by Beit Hillel. What emerges from both of them, although in quite different ways, is that even Rabbah agrees with R. Shesheth that there is a very general principle at work that can have ramifications in disparate areas of halakha. We should note that even leaving aside R. Shesheth’s generalization, the Talmud seems to assume that we can generalize the principle, which is derived from a verse about robbery, to the case of theft. See Shita Mekubetzet. Cf. Tosefta Baba Kamma 10:4 (ed. Lieberman) and Tosefta K’fshuta Baba Kamma, p. 115.

40

Aaron Segal

In other words, both the houses of Shammai and Hillel agree that a thief is obligated to return only an object that is numerically identical to one he stole, and a harlot is prohibited from offering an object in the Temple only if that object is numerically identical to one she received in exchange for harlotry, but Beit Hillel maintain that in the circumstances described—say, wheat that was ground into flour—the object at the end is distinct from the object at the beginning, whereas Beit Shammai maintain that “they” are identical.⁹ Or at least that seems clearly right if the context of the above paragraph is a halakhic one (as is true of the statement of the Ba’ale Hatosafot). But the Presumption goes further. If the Presumption is right, then we are prima facie justified in believing that Beit Shammai maintains the claim that I would express if I were to make the following speech in the course of a metaphysics seminar: “If I take a stalk of wheat and grind it down to flour, I haven’t annihilated anything in the process. The stalk of wheat still exists, although of course it is no longer a stalk of wheat.” And Beit Hillel maintains that claim is false. And the metaphysical issues will only get more intricate as the halakhic discussion unfolds. Consider the dispute between R. Ilai and R. Hanina, both of whom accept Beit Hillel’s position that a stalk of wheat goes out of existence when it is ground up, but who apparently have an “in-house dispute” about whether a ram is identical to the sheep from which it grew. What is this dispute about? The Talmud says the following: R. Zera demurred saying: Why should he not indeed acquire title to it through the change in name? Rava, however, said to him: An ox one day old is already called “ox,” and a ram one day old is already called “ram.” An ox one day old is called “ox,” as written: “When an ox or a sheep or a goat is born.” A ram one day old is called “ram,” as written: “And the rams of thy flocks have I not eaten.”

Several commentators assume that R. Zera’s suggestion—that a change in “name” ought to suffice for numerical distinction—is indeed R. Ilai’s own rationale.¹⁰ And this is despite the fact that Rava’s assertion, in defense of R. Hanina, that an ox is called an “ox” from the day it is born, is unanswered. How can this be? One who is familiar with the contemporary literature on the so-called paradoxes of material constitution, would, I think, find the following explanation of R. Ilai quite natural: Indeed, a calf belongs to two kinds, picked out by the so-called sortal terms, “ox” and “calf.” These two kinds are associated with incompatible persistence conditions, the former more relaxed than the latter. Anything belonging to both kinds—i.e. any calf—has the ⁹ How far does Beit Shammai take this? At what point does a material object go out of existence? This is not entirely clear. See Shita Mekubetzet s.v. Ha Mani (quoting Talmide Rabbenu Peretz) who says that according to Beit Shammai, there is no change that would effect a transfer of title. Presumably, they mean no change other than the annihilation of the matter of which the object is made. ¹⁰ See Yam Shel Shlomo.

Metaphysics and the Halakha

41

persistence conditions associated with its dominant kind, with being a calf.¹¹ But when it ceases to be a calf, it must therewith go out of existence, since an ox that is not a calf has different persistence conditions.¹² Thus, its losing the name “calf,” i.e. its ceasing to be of that kind, is sufficient for its going out of existence. What then of R. Hanina? Plausibly, he thinks that being a calf is just a phase that oxen go through, the way that being a teenager is just a phase that human beings go through.¹³ The sortal term “calf,” like the sortal term “teenager,” is a so-called phase sortal. There are no special persistence conditions associated with being a calf that differ from the persistence conditions associated with being an ox, just as there are no special persistence conditions associated with being a teenager that differ from the persistence conditions associated with being a human. This explanation of their dispute is admittedly speculative. But suppose it’s correct. Then the Presumption says that we are entitled to presume both R. Ilai and R. Hanina are staking out controversial philosophical positions that would be equally well expressed by the previous paragraph even if it were to have been written in a straightforwardly philosophical context.

3.4. METAPHYSICS I N THE TALMUD, P RO B LE M A T I Z E D As I have already indicated, I don’t think we are entitled to presume any such thing. Even absent any argument against the Presumption, it just seems to me false. But I also have two arguments, one theological and the other “historical.” These arguments are not knockdown refutations, and for each of the two arguments there surely are available responses on my opponent’s behalf. Each such response, however, comes at a price. In one case, the opponent must deny what I think is an attractive theological view on the nature of halakhic disputes, and in the other case, the opponent must hold that the Talmudists themselves accepted a controversial view about the resolution of those disputes. One might be willing to pay these prices, especially if the cost of giving up the Presumption is deemed sufficiently high. But as I go on to argue in the next

¹¹ A kind K is the dominant kind of an object x just in case x has the persistence conditions it has in virtue of belonging to K. Of course, this is unhelpful in determining which of a thing’s kinds is its dominant one. Burke 1994 attempts to supply a more substantive criterion. ¹² See Burke 1994. ¹³ Many of the medieval commentaries emphasize that the transition from calf to adult ox is a natural change, rather than an artificial one, and that R. Hanina maintains that natural changes are not sufficient to effect a change in title. I don’t think this is inconsistent with the suggestion I make here.

42

Aaron Segal

section, there is an interesting and compelling alternative to the Presumption. The cost of denying the Presumption is not so high after all. Before turning to my arguments, one preliminary point is in order. The objections in this section are targeted not against the Presumption all by itself, but against the Presumption in conjunction with a certain package of “realist” views about metaphysics. The package consists of the following family of closely related views: true metaphysical claims are not made true by convention, stipulation, or communal decision; they are “out there” to be discovered; metaphysical questions are meaningful, and disputes about metaphysical claims are, at least for the most part, substantive. It is dialectically appropriate, I believe, to conjoin this package to the Presumption not only because I am strongly inclined to accept the package—which is indeed why I will take it for granted when I look for alternatives to the Presumption—but because my target in this section is a certain project, one of whose planks is the Presumption, but which isn’t exhausted by the Presumption. The project is that of putting the Talmudists into debate and dialogue with the philosophers. The project presupposes not only that the Talmudists are expressing straightforwardly philosophical claims (this is captured by the Presumption) but also that there are substantive issues to debate and about which one can have a worthwhile dialogue (this is captured by the “realist” package). Now for the arguments, which arise rather naturally from elements of the passage I discussed in the previous section. Two elements are noteworthy: (a) the metaphysical claims are apparently subject to dispute, and (b) the usual rules of resolving halakhic disputes, such as “The halakha is in accordance with Beit Hillel,” apparently apply with equal force to disputed metaphysical claims. In both instances I say “apparently” because according to the approach(es) I develop later, there is no dispute in the passage about a metaphysical claim— even though each side is in fact making a metaphysical claim—and hence no need to decide the halakha in accordance with one metaphysical view. According to those approaches, the appearance of a genuine metaphysical dispute is just that: mere appearance. But according to the Presumption, I don’t see how to pry apart appearances from reality. At the very least we are entitled to presume that there is a substantive metaphysical disagreement— at least if disputes between philosophers about the persistence conditions of material objects are substantive—and hence, that the usual rules of resolving halakhic disagreements apply to disputed metaphysical claims. But if that is so, then the proponent of the Presumption is thereby committed to denying any robust interpretation of various Talmudic statements that affirm a plurality of valid views in halakhic disputes, such as the well-known statement “These and those are the words of the living God” (BT Eruvin 13b).¹⁴ More ¹⁴ See also Babylonian Talmud Hagiga 3b, Sanhedrin 34a, Shabbat 88b, and Gittin 6b, Palestinian Talmud Sanhedrin 4:2, and Midrash Tehilim 12:4. For a synoptic work on the

Metaphysics and the Halakha

43

precisely, they are committed to denying the truth of those statements so interpreted. So let us say that they are committed to denying a robust view on halakhic disputes. Now, by a “robust view” I do not mean “a view according to which there are true contradictions or some such thing.” Rather, I mean a view according to which at least the following is true: in Talmudic legal disputes, each position expresses a viable option, i.e., something that God might very well have willed, or at the very least endorsed. Here is a view, from R. Yom Tov Ishbili (Ritva, thirteenth century), which would certainly count as robust: When Moses ascended to receive the Torah, it was demonstrated to him that every matter was subject to forty-nine lenient and forty-nine stringent approaches. When he queried about this, God responded that the scholars of each generation were given the authority to decide among these perspectives in order to establish the normative halakha.¹⁵

Ritva maintains that in halakhic disputes no view is more objectively correct than any other, as God has expressed to Moses a willingness to endorse any one of them. But one need not go as far as Ritva to hold a robust view. One can hold that as a matter of fact, one and only one view in such disputes is objectively correct, and still accept what I call a “robust view.” R. Nisim Gerondi (Ran, fourteenth century) offers the following interpretation of the pluralistic principles: But this matter requires investigation. How can we say that [the views of] two groups of disputants were told to Moses by the Almighty? . . . How can we say that something untrue left the mouth of God? But this is the [correct] account: It is well known that the entire Torah, written and oral, was given to Moses at Sinai, as it says in BT Megila (19b) “R. Hiya bar Abba said in the name of R. Yohanan: What does the verse mean ‘And on them as all the words . . . ’? This teaches that the Almighty showed Moses dikduke Torah and dikduke Soferim . . . ” Dikduke Soferim are the disputes and differing rationales among the Sages of Israel, and all of them Moses learned from the mouth of the Almighty without a decision [one way or the other] . . . since the [authority to make a] decision was given over to the sages of each generation . . . and we are enjoined to follow their decision, whether they have arrived at the truth or its opposite . . . whatever they decide, that is what God has commanded.¹⁶ principle of Elu V’elu and its interpretations, see Sagi 1996. See also the article by R. Michael Rosensweig (1992). There has been some controversy in recent years about whether such a pluralistic attitude indeed characterized the period of the Tana’im and Amora’im or if it was rather a Stammaitic innovation. I think Fraade 2007 has demonstrated that the latter suggestion is untenable. But in any case, I am not so much interested, in this argument, in the degree to which such a pluralism characterized the Talmudists, as much as what we ought to think. ¹⁵ Babylonian Talmud Eruvin 13b. Translation is from Rosensweig 1992. ¹⁶ Derashot Haran, Derush 7. See also Nachmanides’s commentary on Deuteronomy 17:11 and introduction to Ketzot ha-Hoshen. See Rosenberg 1997: 69–79 and Halbertal 1997: 63–72.

44

Aaron Segal

Thus, despite saying that there is a single true view, R. Nisim maintains that the other views are ones that would be divinely endorsed if human halakhic authorities were to conclude that they were correct. This too is a robust view. But the proponents of the Presumption are committed to denying any such robust view. In metaphysical disputes, at least if the dispute is substantive, at most one view is true. And in most metaphysical disputes, including disputes about persistence conditions of material objects, not only is at most one view true, but any view that’s false is one that simply couldn’t have been true. But then surely it’s not a viable option; it’s not something God could have willed or even endorsed ex post facto.¹⁷ So, to return to our example, either Beit Shammai’s rationale or Beit Hillel’s rationale is simply not a viable option. I might add that it’s difficult to see how even the correct view in such disputes, if one of them is correct, is a viable option, since it’s not really an option at all. It doesn’t seem to reflect God’s will (or endorsement) in any meaningful way, since it is necessarily true. Things just had to be that way. As I said above, the proponents of the Presumption are not without reply. One option, of course, is to simply “bite the bullet” and deny any robust view. Relatedly, they might accept a robust, but severely restricted, interpretation: perhaps these principles are not to apply to the Talmudist’s theoretical rationale, but only to his “bottom-line.” Thus, even if Beit Shammai’s theoretical rationale is not a live option, his case-by-case ruling certainly was. I have nothing further to say about these, other than to point out that they are, what I would consider, costs. All else being equal, an account that does not have this consequence is preferable. But those who would rather not incur any cost might respond as follows: we spoke of prima facie justification. Our presumption can be defeated, and indeed, anytime a Talmudic metaphysical claim is disputed, its being disputed serves to defeat the presumption that it expresses a straightforwardly philosophical claim. I won’t dwell on the fact that this reply drastically limits the usefulness of the Presumption to the larger project of putting the Talmudists in conversation with the philosophers, although I do think that is a serious drawback. The basic problem, as I see it, is this: it would be quite a lucky coincidence if all the cases of disputed Talmudic views were ones in which the Talmudists were not making straightforwardly philosophical claims, even though when Talmudists usually made a metaphysical claim, it is to be understood in a straightforwardly philosophical way. Did the other Talmudists have some philosophy-meter by which to tell when they could safely get

¹⁷ Unless one agrees here with Descartes (according to some interpreters) and Rabbi Nachman of Braslav that God could have made true what is in fact a necessarily false proposition. Note that I don’t deny that God could have sanctioned, or even willed, that we adopt a false metaphysical view for the purposes of halakhic theorizing. But that is not to accept that God could sanction, or will, a false metaphysical view. Thanks to David Shatz for helpful discussion here.

Metaphysics and the Halakha

45

into an argument and when they couldn’t? What was that meter, and why can’t we use it? I don’t see any promising answers to these questions. The second element from the passage raises a related argument, one that exacts a price to be paid by the historian, rather than the theologian. As we noted, R. Shesheth assumes that the usual principle of halakhic resolution that governs disputes between Beit Shammai and Beit Hillel—that the halakha is in accordance with Beit Hillel—is in force with respect to their dispute about shunui koneh.¹⁸ After all, R. Shesheth defended R. Ilai by claiming that the Baraita that seemed to contradict his ruling reflected the position of Beit Shammai. The implication is that R. Ilai need not be concerned with that Braita because the halakha was, as usual, in accordance with Beit Hillel. And this is so even though that dispute is a substantive metaphysical one, or at least the proponent of the Presumption tells us we are entitled to presume that. But how is one to understand the notion of the halakha being in accordance with a certain metaphysical view? What would that mean? Here we ought to keep in mind two positions on halakhic dispute-resolution in general.¹⁹ In cases in which there is a halakhic dispute and the Talmud (or a particular Talmudist) decides that the halakha is in accordance with one of them, what is nature of that decision? One position, which we might call the “revelatory position,” is that the decision reveals or uncovers that that view in question is true, that is, true independent of the decision itself. An alternative position, which we might call the “authoritarian position,” is that the decision makes authoritative the view in question; one version of this position has it that the decision makes the view true, while another version has it that the decision merely bestows legal authority on the view.²⁰ Either way, the decision is not understood to be revealing the view that is true independent of the decision. Now, we can raise this question from a jurisprudential standpoint, but we can also ask the historical question, Did the Talmudists consider this question, and if so, what was their position on the matter? Of course, there might not have been, and it is very unlikely that there was, unanimity on this issue. But here’s what’s interesting: the advocate of the Presumption is committed to its being the case that in the main, the Talmudists didn’t accept the authoritarian position. The argument is fairly straightforward and invokes considerations similar to ones we have already discussed. As we have seen, the Presumption, taken together with some Talmudic passages (including our passage from Baba Kamma), implies that there are Talmudic legal disputes that we are entitled to presume are substantive metaphysical ones and that

¹⁸ For a discussion of when that principle was first formulated and the scope of its application, see Safrai 1994. ¹⁹ See Halbertal 1997: 81–9, and Sagi 1996: 49–73, 198–216. ²⁰ These two versions are what Halbertal (1997: 84) calls the “constitutive version” and “procedural version,” respectively.

46

Aaron Segal

are decided by the Talmud in accordance with the ordinary principles of dispute-resolution. But with regard to such metaphysical views, as opposed to normative-halakhic claims, no halakhic principles or halakhic decisions can make them true. That’s just not the sort of thing that can happen. So the only way to hold on to the authoritarian position is to understand the content, or at least the intended force, of the decision in such cases along the following lines: halakhically speaking, the metaphysical view is true, i.e. that we are to proceed as though the metaphysical view is true. But assuming that this is how the Talmudists understood such decisions quickly spells trouble for the Presumption. For if that is what is meant by the decision in accordance with Beit Hillel, say, then the same is presumably true of any subsequent halakhic discussion that was constrained by the position of Beit Hillel. It would be quite odd if, for example, R. Ilai understood the decision in accordance with Beit Hillel along the above lines, but then proceeded to put forward a refinement of Beit Hillel’s position as the sober metaphysical truth. Presumably, he would be expressing a claim that would be most perspicuously expressed, if not for the context, by a statement that begins with a “halakhically speaking” operator. But then there are a significant number of metaphysical claims in the halakhic discussions in the Talmud for which the Presumption doesn’t hold. If one were to take the statement that in a halakhic context would express the claim that halakhically speaking, a ram is not identical to the sheep from which it grew, and transplant it into a purely philosophical discussion, it would of course not express that claim. It would, instead, express the claim that a ram is not identical to the sheep from which it grew, period.²¹ This is not a good road for the proponent of the Presumption to take. Conclusion: the proponent of the Presumption is committed to denying a widespread Talmudic adherence to the authoritarian view.²² But this is a bold conjecture, and a problematic one given the fact that there are a fair number of Talmudic passages, from various periods, that seem to endorse an authoritarian approach.²³ I consider that to be a costly commitment. Again, all else being equal, an account that doesn’t carry this commitment is preferable.

²¹ I am assuming of course that the statement that would express that claim, in a halakhic context, need not contain any explicit prefix to the effect of “halakhically speaking.” ²² Objection: perhaps the Talmudists (in the main) did not accept a “realist” package about metaphysics. They didn’t think that metaphysical “questions” were genuine questions, and they didn’t think their metaphysical disputes, or anyone’s for that matter, were substantive. So they just went about their reasoning assuming that halakhic decisions could make claims, which as a matter of fact are metaphysical, true. Reply: remember that my target is not the Presumption taken alone. It is the overarching project of which the Presumption is a presupposition. But that project would be severely compromised if the Talmudists did not conceive of themselves as engaging in, say, a substantive dispute about whether a ram is identical to the lamb from which it grew. ²³ Most famous, of course, is the passage in Babylonian Talmud Baba Metzia 59b about the “oven of Achnai.” See also Sifre Devarim, p. 154 and Mishnah Rosh Hashanah 3:9. For an

Metaphysics and the Halakha

47

3.5. METAPHYSICS I N THE TALMUD, FICTION, NOT FACT But whether all else is equal depends on what the alternatives are. What could the metaphysical statements in the halakhic discussions of the Talmud mean if they don’t express the philosophical claims they would express in a straightforwardly philosophical context? The discussion from the previous section immediately suggests one answer: they are to be understood as occurring within the scope of an implicit “halakhically speaking” operator. Some background about these operators and their role in philosophy might be helpful here. It is not uncommon to find a philosopher denying the existence of things such as Maryland, the number 3, teacups, Abe Lincoln, holes, and a host of other things you might think obviously exist. But even those philosophers can’t seem to help themselves from speaking as if there were such things. You might catch them saying something like “There are so many holes in this old shirt” or “There was a time when there were only 48 states in the USA,” which apparently commit them to the existence of holes and states (and surely if there are states, then Maryland exists). What to do about this double-talk? A number of solutions have been devised to address this problem. One solution that has gained some prominence in the last few decades is to treat the opposing view as a useful fiction that we ordinarily employ.²⁴ We are to understand the offending sentences as occurring within the scope of an implicit “fictionalist operator.” For instance, when someone, even the holedenying philosopher, says “There are so many holes in this old shirt,” they are really expressing the claim that according to the “fictional story” that there are holes, there are so many holes in this old shirt. This is similar to when someone, after hearing a Sherlock Holmes story, says “The detective who lived at 221b Baker Street sure was brilliant”; no one accuses her of speaking falsely—even though there was no detective who lived at 221b Baker Street—because the person really means, “According to the Sherlock Holmes fiction, the detective who lived at 221b Baker Street sure was brilliant.”²⁵ In this way, the hole-denying philosopher can consistently speak with the vulgar. So perhaps a similar thing can be said regarding halakha. Begin by thinking of halakha as comprising a theory of sorts. It’s a theory that contains mainly norms, but also many non-normative (and some metaphysical) claims which serve as inferential and classificatory links between the general and specific norms. Now, anytime that a Talmudist states that P in a halakhic context, the extensive discussion of the passage from the Sifre and its relation to Palestinian Talmud Horayot 1:1, see Blidstein 1997. ²⁴ See Rosen 1990 and the essays in Kalderon 1999. ²⁵ This is not the only philosophical approach to dealing with truths apparently about fictional characters. See van Inwagen 1979 for example.

48

Aaron Segal

content of his assertion is this: According to halakha, P.²⁶ So even when a Talmudist makes a metaphysical claim in a halakhic context, he isn’t even trying to state the sober philosophical truth. He is making a claim about what is true according to halakha. And crucially, what is true according to halakha, so long as it’s a non-normative claim, need not be true. This could be thought of as a universalization of the halakhic legal fiction. The reason why the “halakhically-speaking” operator is only sometimes made explicit is because in those cases, the claim that is prefixed by the operator is obviously false.²⁷ This approach nips the problems we raised above in the bud. The dispute between Beit Shammai and Beit Hillel, even if R. Sheshet is right, is not a metaphysically substantive dispute at all. It’s a dispute about what the halakha is. It’s a dispute about which metaphysical view we are to adopt for the purposes of halakhic theorizing. Naturally enough, there is no difficulty in assuming that both positions were ones God might very well have willed, since God very well might have willed that we adopt a false (and even necessarily false) metaphysical view for the purposes of halakhic theorizing. And as a natural corollary, this approach does not commit one way or another on how halakhic dispute resolution was conceived by the Talmudists. We should note that although this approach is clearly inconsistent with the Presumption, it’s not obviously incompatible with the overall project of extracting from Talmudic sources a metaphysic that can be said to treat the very same metaphysical questions that philosophers do, and reasonably calling it “halakha’s metaphysic.” After all, the claim that appears within the scope of the “halakhically speaking” operator, on this view, is just like any other philosophical claim. That having been said, it would certainly call into question the value of such a project so conceived, since for all we know, these philosophical claims are simply false—and were not even thought to be true by the Talmudists—but were adopted for the purposes of halakhic discussion, for any number of reasons. In any case, I don’t think this approach can be maintained. The problem is this: it doesn’t sit well with the Talmudists’ frequent use of rational intuition in generating the raw materials for halakhic theorizing. I am not referring to their use of rational intuition in deriving or inferring one halakha from another, or in analogizing from a given classification to a related one.²⁸ Rather, I am referring to their seeming use of rational intuition in making such noninferential classificatory judgments in the first place. As Eli Hirsch (1999) puts it in discussing the topic of persistence and identity in the Talmud, “My impression is that Talmudists struggle with this question in much the way philosophers do, appealing to intuition—or what they would call svara—of ²⁶ Replace “P” here throughout with a sentence. ²⁷ For a discussion of legal fiction in halakha, see Moscovitz 2002: chapter 4. ²⁸ See Moscovitz 2002: chapter 6.

Metaphysics and the Halakha

49

various sorts to try to roughly demarcate a class of examples in which a functional change seems sufficiently significant to threaten an object’s identity.” But on the approach we are currently considering, it’s far from clear what would license this use of intuition. After all, it’s one thing for a claim to be true and another thing for it to be true according to halakha. So what would license the inference from a claim’s being true to its being halakhically true? Given the approach under consideration, what reason would we even have to think there is a strong correlation between the two when it comes to metaphysical claims? Perhaps one will suggest that the Talmudist used his faculty of rational intuition to directly output a belief about what metaphysical view is true according to halakha. But this seems incredible. It’s one thing for a Talmudist to just see, with his mind’s eye, that a certain metaphysical claim is true, and another thing for him to just see, with his mind’s eye, that a certain metaphysical claim is true according to halakha. It’s hard enough for rationalists to give an account of the former; just imagine trying to give an account of the latter.²⁹ Note that this problem arises here and not in other applications of the fictionalist strategy: in general, the claim that is (allegedly) literally false but “true according to a fiction” is either (a) in the neighborhood of some truth that the speaker is trying to get at—there is some sense in which one “component” of the claim is true and unobjectionable—but which can’t be expressed without the help of some fiction, or (b) one that is useful, and perhaps indispensable, in deriving truths from truths (it’s what philosophers would call “conservative”) even if it is false. In the former case, it makes a good deal of sense to use one’s rational intuition to deliver such fictionalist judgments, and in the latter case, one is expected to account for why such reasoning about falsity is in fact conservative, or at least give an argument that it is. But for the proposed halakhic fictionalism, I don’t see how any such account or argument would go.

3.6. METAPHYSICS I N THE TALMUD: S EEKING THE H A L A KHI C JO INTS Both approaches we have considered so far share this much in common: they assume that the concepts deployed in the claims under discussion are the same ²⁹ Keep in mind that I am talking about one’s forming non-inferential beliefs about what’s true according to halakha. I have no problem with the suggestion that someone could infer that something is true according to halakha from other halakhic claims. Also, keep in mind that we are discussing metaphysical claims, not straightforwardly normative ones; I don’t have difficulty understanding how one could imbibe halakhic values and overarching norms to the extent that one could non-inferentially form a belief about what is demanded according to halakha. But this seems quite implausible to me with regard to metaphysical claims. Thank you to Curtis Franks for discussion here.

50

Aaron Segal

as those deployed in ordinary philosophical claims. The difference between the approaches is just that the first one (adopting the Presumption) takes these claims with utmost philosophical seriousness and the second one understands them to come along with an implicit “halakhically speaking” operator. The former suffers from making halakha too contingent upon the truth of ordinary philosophical claims, and the latter suffers from cutting it too loose from ordinary philosophical claims. The way forward, I suggest, is to reject what these two approaches share in common; the concepts being deployed in metaphysical claims in Talmudic legal contexts are, for all we know, uniquely halakhic.³⁰ Part of the argument for that suggestion is constituted by my arguments against the other approaches. However, I have a more direct argument, which serves simultaneously as a fuller development of the suggestion. But first some background is in order. What follows is a very cursory and necessarily selective overview of a central topic in the philosophy of mind and language. The question is deceptively simple: How do our words and thoughts have the meanings or contents they do? Why do our utterances of “frog” mean frog, and not something else? One might think the answer is obvious: Suppose my ancestor pointed to a frog and said “frog,” and so did his friends and family members. And suppose the same happened for a large number of other words, enough words with which to then define all of our words. Wouldn’t that behavior, linguistic and non-linguistic, together with the further definitions, be good enough to settle the meaning of all our words? Unfortunately, not by a long shot. Indeed, the story doesn’t even seem to get off the ground. For what makes it the case that one’s pointing in a certain direction means something like “this,” where what’s picked out by that demonstrative is what lies beyond the tip of one’s finger? Maybe, as Wittgenstein suggested, it picks out what’s behind one’s shoulder. Or maybe it doesn’t serve as a demonstrative at all, but rather a question mark. And as W. V. O. Quine reminded us, whenever one points to a frog, one also points to an undetached frog part (assuming there are such things), so why doesn’t “frog” mean undetached frog part? Adding more use won’t help. The problem is demonstrably generalizable: if one tries to assign meanings to the words in a stretch of discourse solely based on patterns of use—say, attempting to maximize the number of true sentences and valid inferences while trying to consistently assign the same meaning to word tokens of the same type—there will be a vast number of radically disparate

³⁰ Others have made a similar claim about the use of such terms as “cause” in discussions of American law (and other legal systems). See Edgerton 1924 and Stapleton 2008. However, their arguments are not very compelling, and I agree with Moore 2009: 1–4, that the claim should be rejected. But I don’t think our verdict regarding halakha need be the same. For one thing, in the case of other legal systems there is much more by way of explicit identification by jurists and legal theorists of their concept of causation with the straightforwardly philosophical one.

Metaphysics and the Halakha

51

assignments that are equally satisfactory. In fact, pretty much any theory can be made true in countless ways by pretty much any world.³¹ What to do?³² Several things have been said in response to this problem, but here’s one that strikes me as correct: in addition to use, we need to take account of eligibility. Putting forward a certain objective inegaletarianism among different ways to carve up the world, David Lewis (1984: 65) says, “Among all the countless things and classes that there are, most are miscellaneous, gerrymandered, ill-demarcated. Only an elite minority are carved at the joints, so that their boundaries are established by objective sameness and difference in nature. Only these elite things and classes are eligible to serve as referents.” He goes on to say that eligibility, on his view, is a matter of degree: the more elite, or natural, the more eligible. So Nelson Goodman’s famous predicate “grue” picks out a class that is surely not as elite as the class of green things, but neither of them are as elite as the class of spatiotemporal points, and neither of them are as gruesome as some of the classes that we could never pick out using our linguistic resources.³³ Then the recipe is this: Balance the goal of maximizing overall eligibility of referents with the goal of maximizing the degree to which total theory comes out true. And that’s pretty much the whole story. This account has played a prominent role in recent debates about the substantiveness of metaphysical disputes. Several philosophers have revived the charge that certain metaphysical, and in particular ontological, disputes are merely verbal.³⁴ The idea is that each side in the dispute just means something different by “exists” or “thing” (and probably other terms as well), and so there is no real dispute going on between those who, for example, claim that for any things, there exists something that is composed of those things, and those who deny this. The most promising response to this, to my mind, comes from Theodore Sider and invokes the Lewisian account I just sketched.³⁵ The basic idea is that there are certain privileged candidate semantic values for words like “exists” and “thing.” They are privileged in this way because they are “perfectly natural”; they carve nature at the joints. Thus, the substantiveness of ontological disputes can be secured because the single privileged ³¹ See Putnam 1981, Lewis 1984, and Kripke 1984. For an explanation of the first and second “pretty much,” see Lewis 1984: 68. ³² Some philosophers think there is nothing to do. Some think we ought to be skeptics (about meaning and rule-following, etc.) while others reject the need for an answer, thinking that there is something defective about the question. (I myself can’t quite see what’s defective.) For a nice summary of various approaches, see Stern 2002: 353–5. Thanks to Curtis Franks for making me aware of this paper. ³³ See Goodman 1955. An object is grue just in case it is green and examined first before 2000 CE or blue and not examined before 2000 CE. ³⁴ For some of the seminal work that played a role, on both sides, in the recent revival, see the papers in Chalmers, Manley, and Wasserman 2009 and Hirsch 2010. ³⁵ Sider 2009, 2011.

52

Aaron Segal

candidate semantic value of “exists” is the semantic value of tokens of that word in the mouths (and writings) of both sides in the ontological dispute. As I said, both the Lewisian view and its usefulness in responding to deflationary criticisms of metaphysical disputes strike me as correct. However, we should note two things. The first is that even if we assume that there are objective joints in nature, there is no guarantee that there is just one, most natural, candidate semantic value for any given linguistic role; there could be more than one, and they might be “very close” to one another, by which I mean they have nearly the same extension across possible worlds (the same “intension”). Indeed, Sider simply assumes that if the world has “quantificational structure,” then there is exactly one privileged candidate semantic value for “exists.” This assumption would be unwarranted if not for the fact that the consequent alone is warranted. The second thing to note is related, but of more fundamental significance. It is obvious that two things can be “objectively the same (or different)” with respect to one dimension of comparison and not with respect to another. This doesn’t make the sameness (or difference) any less objective as long as those dimensions of comparison are themselves objectively distinguished. For example, assuming materialism about human beings, the class of all conscious humans is miscellaneous in fundamental physical respects, but quite unified and distinguished in mental respects. An analogous thing could be said about the class of all morally prohibited action-events. Lewis gives the dimension of “fundamental physics” an almost exclusive role in determining the perfectly natural properties.³⁶ But I see no reason to accept this.³⁷ Seeing how this is so, it seems to me that Lewis’s semantic account has to be augmented slightly. The question of what is the most eligible candidate semantic value of a particular linguistic item can depend on the relevant dimension of comparison, which in turn is, I assume, determined by context. For example, suppose we are comparing two global assignments of semantic values to a language L. They agree on all assignments except that (i) one of them assigns a semantic value A to all instances of word C, (ii) the other assigns a semantic value of B to all instances of C, (iii) instances of C always appear in context of moral statements (that is, both assignments assign semantic values to the “surrounding statements” in such a way that they express moral claims), and (iv) A is a moral joint—it makes for objective similarity in moral respects—while B is some other non-moral sort of joint. Assume that this difference does not make any difference in the degree to which total theory comes out true. Still, I say, the former assignment is

³⁶ See Lewis 1984: 66. ³⁷ See Hawthorne 2006: 108–9 for a similar objection to Sider’s argument for fourdimensionalism.

Metaphysics and the Halakha

53

preferable, since A is most eligible relative to the moral axis of comparison, and that is what is relevant if the context is a moral one. Here’s a somewhat, although not entirely, fictitious example. Derek Parfit (1971) famously holds that strict identity of a person over time is not really what matters (for moral and other related purposes); what matters is survival, where that does not entail strict identity. Now, suppose (and here’s the fiction) that even if Parfit is right, identity and survival are equally good candidate semantic values for the term “identity,” vis-à-vis the goal of maximizing the degree to which our total theory comes out true (imagine our language having been greatly impoverished). It would seem, moreover, that identity is just as much of a joint in nature as the relation of survival. And yet, if Parfit is right that strict identity of persons doesn’t matter all that much for moral purposes, then I am inclined to say that we were always referring to survival rather than identity when we discussed our hopes and fears and dreams about what we would do. Survival is the morally relevant joint. Returning now to the Talmudic legal orbit, I say we ought to believe the following: Halakhic Realism: (i) there are halakhic joints which need not coincide with the logical, mental, physical, or moral joints, and for any such halakhic joint, we have no reason to think it does coincide, and (ii) for any halakhic joint, there are any number of other halakhic joints “very close” to it.³⁸ For those who see halakha as an expression of God’s will (or word) to one degree or other, I don’t think this thesis should seem very controversial. The halakhic joints are properties and relations that divide up the world in ways that God did, or might very well have done, for halakhic purposes. Their sharing makes for objective similarity since “God’s will”—both actual and merely possible—is surely an objectively distinguished dimension of comparison.³⁹ Given the range of possible ways that halakha might have gone, there is good reason to think that there are any number of halakhic joints in the vicinity of any given halakhic joint. But then assuming that joints of other distinguished sorts (logical, moral, etc.) don’t “cluster” in this way—whether

³⁸ This thesis should not be confused with what Silman 1984–85 calls “realism,” and whose accuracy in characterizing rabbinic law is the subject of a debate between Silman 1984–85, Schwartz 1992, and Rubenstein 1999. That thesis is much easier to grasp than it is to characterize precisely. My best attempt is this: halakhic properties, such as being pure and being impure, are possessed in virtue of possessing “real,” i.e. non-halakhic and causally efficacious, properties. This thesis is both distinct from and logically independent of the thesis I am discussing here. ³⁹ Note that I do not mean that everything God could have willed is relevant to determining objective similarity. I mean only to include those things that God might have willed, within the range of the proverbial “49 prohibiting factors and 49 permitting factors,” even if they were not in fact willed.

54

Aaron Segal

inter-sort or intra-sort—it is unlikely that a given halakhic joint is also a joint of another distinguished sort. The implications of this thesis for our primary topic are far-reaching. Consider a Talmudic legal statement that expresses a metaphysical claim. For example, take Beit Hillel’s metaphysical claim that a stalk of wheat that is ground up is distinct from the resulting flour.⁴⁰ What relation is picked out in this context by “is distinct from”? Given what I argued above, the naturalness of (the logical relations) identity and distinctness won’t play much of a role here, since the context of the statement is a halakhic one. Instead, the most eligible semantic value candidates will be those relations in the vicinity of distinctness and identity that are halakhic joints. And as we argued, there are a number of these that are equally good; one of them might be the distinctness (and identity) relation itself, but that relation is no more halakhically distinguished than its fellows. So what narrows the playing field? Well, maximizing the degree to which “theory” comes out true. Some assignments will make Beit Hillel’s statement true and others will make it false. On this score, the better assignments are the ones that make their statement true.⁴¹ If identity and distinctness won’t make it true, so much the worse for them.⁴² In this way, it’s hard for a Talmudist to go metaphysically wrong.⁴³ And for similar reasons, it’s hard for Talmudists to have a genuine metaphysical dispute. The charges against the substantiveness of metaphysical disputes are compelling and extremely difficult to answer when the disputes in question are Talmudic-halakhic. There simply is no single privileged meaning of the core metaphysical terms to anchor their dispute. Thus, unless

⁴⁰ I am pretending, for the sake of simplicity, that Beit Hillel explicitly stated this, rather than just implicated it. ⁴¹ It still might be the case that reference is underdetermined. But that’s good; it’s precisely that indeterminacy that R. Ilai and R. Hanina will exploit. ⁴² It’s true that attempting to consistently assign the same semantic value to all token instances of the term will pull in the direction of assigning (ordinary) distinctness and identity, since that is presumably the right assignment for their use of the term in ordinary speech. But that seems to be a very weak consideration, given the very different contexts and the concomitant expansion of eligible candidates; I would think that it will usually be outweighed by the goal of maximizing the degree to which one’s theory comes out true. I say “usually” because I can conceive of cases in which the consideration of consistency takes on added force. For example, if a Talmudist were to make a metaphysical claim and then add, “And I mean ‘identity’ here in the very same sense that I usually do,” or even be disposed to do so, then the consideration of consistency will, at least de facto, have greater force since it piggybacks here on the goal of maximizing the number of truths. Or, to take a scenario in which the link is not as explicit, if a Talmudist, in a halakhic context, asserted something that he had concluded in a non-halakhic philosophical context, the consideration of consistency would have great weight. ⁴³ Hard, but not impossible. It is possible that no very halakhically eligible candidate will make the statement true, and then considerations of use might be outweighed by considerations of eligibility. And as I said in the previous footnote, in some cases considerations of consistencyin-use might settle the meaning of the term so that the Talmudist’s statement comes out false. So it’s not as though the Talmudists were metaphysically infallible.

Metaphysics and the Halakha

55

we have good reason to think otherwise, Beit Shammai’s metaphysical claim is likely not incompatible with Beit Hillel’s, and there is no metaphysical dispute between them. Beit Hillel is making a metaphysical claim about what we might call Beit-Hillel-identity and Beit Shammai is making a metaphysical claim about what we might call Beit-Shammai-identity. Their dispute is about which of the various candidate relations in the vicinity of identity is the one that’s relevant for halakhic purposes; purposes such as determining whether a thief has to return the object he stole and whether a harlot can bring a certain animal as a sacrifice. Of course they would not put the question in these terms, but we can: they were disputing where the actual halakhic joints lie.⁴⁴ The problems I had with the Presumption don’t arise on this approach. There is no genuinely metaphysical dispute, and hence no need to decide the halakha in accordance with just one of several incompatible metaphysical views. As I said above, any appearance to the contrary is just that: mere appearance. The upshot of this is that we cannot presume that the Talmudists were talking about the very same things as an ordinary philosopher. The properties and relations which are expressed by their terms may not even be definable in a finite number of steps in terms of the properties and relations that are the world’s ontological and metaphysical joints. If that’s so, then putting them in direct dialogue with philosophers cannot be done. But while a conversation between Abaye and Aristotle might not be in the cards, Abaye is developing a metaphysic all his own. What emerges from Talmudic legal discussions are alternative and often alien ways to carve up reality. The project of investigating these differing conceptualizations, it seems to me, has the potential to be philosophically fruitful and is of considerable theological importance. It has the potential to be philosophically fruitful because it demands of us, and allows us, to think about the world in new ways, and it is of considerable theological importance because the alternative conceptualizations represent, after all, the way God’s will structures the world.

3 . 7 . O BJ E C T I O N S The academic scholar of Talmud and the modern-day Talmudist are armed with objections. Let us hear from them in turn. The scholar objects: “Your account is very peculiar. It is supposed to be an account of what certain Talmudic statements mean, and yet it takes no notice ⁴⁴ The “actual halakhic joints” are the properties and relations that make for objective similarity with respect to what God actually willed. They are no more actual than “merely possible halakhic joints.”

56

Aaron Segal

of historical or philological arguments. As a typical philosopher, you think you can theorize from the armchair about matters, which as a matter of fact, can only be understood by rolling up one’s sleeves and doing some real empirical work.⁴⁵ In order to evaluate the Presumption, and the broader question of how best to understand metaphysical claims in the Talmud, we have to explore the extent to which Talmudists—and here we’d need to be careful to distinguish between different locales, different eras and hence strata in the Talmudic text, and even different individuals—were influenced by the prevailing philosophical winds. Anything short of that is hopeless. To compound matters, you let theology play a role in your account of what Talmudic statements mean; and not the theology of the Talmudists, which might in fact be relevant, but your theology. After all, halakhic joints, which are a function of God’s will, determine in part the meanings of certain Talmudic statements. But this is absurd. A theist and an atheist ought to arrive at the same interpretation of what a Talmudist meant given the same objective data. Your account is thus both ahistorical and objectionably theological.” Reply to the scholar: Let me begin with the first charge. I think I was fairly modest in my claims. I claimed that it was hard for a Talmudist to go metaphysically wrong and hard for Talmudists to have a substantive metaphysical dispute. But it can happen. As I noted (nt. 43), one way it can happen is if a Talmudist relies in his halakhic theorizing on a conclusion he, or someone else, drew in a straightforwardly philosophical context. So if it could be shown that such a thing happened, then that would give us good reason to think that the Talmudist was making a claim that would be expressed by the same statement in a philosophical context. I take it however, that it would be quite difficult to show such a thing. Showing merely that there was some philosophical influence on a Talmudist will not be enough. And barring such an argument, I see no reason to presume that a given Talmudic legal statement that expresses a metaphysical claim is to be understood in a straightforwardly philosophical way. So I see my account not as precluding the use of careful historical research, but as raising the standard for a relevant historical argument. And I don’t see why a philosophical argument can’t accomplish that much. As to the second charge, I plead guilty to its being theological, although I don’t see this as objectionable. I agree that it is a consequence of the account that a theist and an atheist not only won’t, but ought not, interpret Talmudic legal statements in the same way. But I just don’t see why that would be a problem.

⁴⁵ I put this objection in the mouth of “the scholar,” but many philosophers would assert this even more emphatically.

Metaphysics and the Halakha

57

The modern-day Talmudist objects: “I put before you a dilemma. Either general philosophical arguments and discussions are of no help in understanding Talmudic legal sugyot (units) or they are. If you take the first horn of the dilemma, then you are both robbing us of a potentially useful tool, and you are endorsing a position that has been demonstrated to be false by the discussions in Hirsch 1999, 2006, and 2018, and Lewinsohn 2006. If, on the other hand, you accept the second horn of the dilemma, then you need to explain how this is so, given that you think that Talmudic passages are not treating straightforwardly philosophical questions. And yet, no explanation seems possible, so your position is untenable.”⁴⁶ Reply to the modern-day Talmudist: I take the second horn of the dilemma. I think philosophical discussion and background can certainly illuminate the workings of Talmudic legal dialectic. And I concede that I need to explain this given my denial of the Presumption and my suggestion of an alternative approach. I think the basic explanation is this. A false philosophical view (and arguments pertaining to it) can often serve as a model for a true philosophical view about a closely related subject (and arguments pertaining to it). Naturally enough, a false theory T about identity will be a true theory about identityT, which is the relation that the xs instantiate just in case they satisfy the “axioms” of theory T. Seeing how this works will have to be done on a case-by-case basis. I think more can and should be said in response to this objection, but I leave that for another time.⁴⁷

BIBLIOGRAPHY Blidstein, Y. (1997) “ ‘Even if they Say about what is Right that it is Left’: Really? The Strength and Limits of Institutional Authority in Halakha” (Hebrew). In: A. Sagi and Z. Safrai, eds., On Authority and Autonomy in Jewish Tradition (Hebrew). Tel Aviv: Hakibbutz Ha-Meuhad. Burke, M. (1994) “Preserving the Principle of One Object to a Place: A Novel Account of the Relations among Objects, Sorts, Sortals, and Persistence Conditions.” Philosophy and Phenomenological Research 54: 591–624. Chalmers, D., Manley, D., and Wasserman, R. (eds.) (2009) Metametaphysics. Oxford: Oxford University Press. Edgerton, H. (1924) “Legal Cause.” University of Pennsylvania Law Review 72:4. ⁴⁶ My formulation of this objection owes much to discussion with David Shatz. ⁴⁷ Thank you very much to Curtis Franks, Eli Hirsch, Sam Lebens, Dani Rabinowitz, and David Shatz for extensive and insightful comments on earlier drafts of this chapter. Thanks also to members of the audience at the 2011 Shalem Center conference on the theme, “Philosophical Investigation of the Hebrew Scriptures, Talmud, and Midrash,” at which I presented an ancestor of this chapter.

58

Aaron Segal

Fraade, S. (2007) “Rabbinic Polysemy and Pluralism Revisited: Between Praxis and Thematization.” AJS Review 31(1): 1–40. Goodman, N. (1955) Fact, Fiction, and Forecast. Cambridge, MA: Harvard University Press. Grice, H. P. (1989) Studies in the Way of Words. Cambridge, MA: Harvard University Press. Halbertal, M. (1997) People of the Book: Canon, Meaning, and Authority. Cambridge, MA: Harvard University Press. Hawthorne, J. (2006) “Three-Dimensionalism.” In: J. Hawthorne, Metaphysical Essays. Oxford: Oxford University Press. Hirsch, E. (1999) “Identity in the Talmud.” Midwest Studies in Philosophy 23: 166–80. Hirsch, E. (2006) “Rashi’s View of the Open Future: Indeterminateness and Bivalence.” In: Oxford Studies in Metaphysics v. 2, Oxford: Oxford University Press. Hirsch, E. (2010) Quantifier Variance and Realism: Essays in Metaontology. Oxford: Oxford University Press. Hirsch, E. (2018) “Talmudic Destiny.” Jewish Philosophy in an Analytic Age (this volume). Oxford: Oxford University Press. Kalderon, M. (ed.) (1999) Fictionalism in Metaphysics. Oxford: Oxford University Press. Kripke, S. (1984) Wittgenstein: On Rules and Private Language. Cambridge, MA: Harvard University Press. Lewinsohn, J. (2006–07) “Philosophy in Halacha: The Case of Intentional Action.” The Torah u-Madda Journal 14: 97–136. Lewis, D. (1984) “Putnam’s Paradox.” Australasian Journal of Philosophy 62; reprinted in Papers in Metaphysics and Epistemology. Cambridge: Cambridge University Press, 1999, pp. 56–77 [page references are to the reprinted paper]. Moore, M. (2009) Causation and Responsibility: An Essay in Law, Morals, and Metaphysics. Oxford: Oxford University Press. Moscovitz, L. (2002) Talmudic Reasoning: From Casuistics to Conceptualization. Tübingen: J.C.B. Mohr. Parfit, D. (1971) “Personal Identity.” Philosophical Review 80 (January): 3–27. Putnam, H. (1981) Reason, Truth, and History. Cambridge: Cambridge University Press. Rea, M. (1995) “The Problem of Material Constitution.” Philosophical Review 104(4): 525–52. Rosen, G. (1990) “Modal Fictionalism.” Mind 99: 327–54. Rosenberg, S. (1997) Lo Bashamayim Hi. Hotza’at Tevunot. Rosensweig, M. (1992) “Elu Va’elu Divre Elokim Chaim: Halachik Pluralism and Theories of Controversy.” Tradition 26: 4–23. Rubenstein, J. (1999) “Nominalism and Realism in Qumranic and Rabbinic Law: A Reassessment.” Dead Sea Discoveries 6(2): 157–83. Safrai, S. (1994) “Ha-Hakhra’ah ke-veit Hillel be-Yavneh.” In: Bimei ha-Bayit u-vimei ha-Mishnah. Jerusalem: Magnes Press, pp. 382–404. Sagi, A. (1996) Elu V’elu—Mashma’uto Shel Ha-siach Ha-hilchati. Hakibutz Hameuchad. Schwartz, D. (1992) “Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law.” In: D. Dimant and U. Rappaport, eds., The Dead Sea Scrolls: Forty Years of Research. Leiden: Brill.

Metaphysics and the Halakha

59

Sedley, D. (1982) “The Stoic Criterion of Identity.” Phronesis 27:3. Sider, T. (2009) “Ontological Realism.” In: Chalmers, Manley, and Wasserman 2009. Sider, T. (2011) Writing the Book of the World. Oxford: Oxford University Press. Silman, Y. (1984–85) “Halakhic Determinations of a Nominalistic and Realistic Nature: Legal and Philosophical Considerations.” Dine Israel 12: 249–66. Stapleton, J. (2008) “Choosing What We Mean by ‘Causation’ in the Law.” Missouri Law Review 73. Steiner, M. (2000) “Rabbi Israel Salanter as Jewish Philosopher.” The Torah u-Madda Journal 9. Stern, D. (2002) “Sociology of Science, Rule Following and Forms of Life.” In: M. Heidelberger and F. Stadler, eds., Vienna Circle Institute Yearbook 9/2001: History of Philosophy of Science—New Trends and Perspectives. Dordrecht: Kluwer. van Inwagen, P. (1979) “Creatures of Fiction.” American Philosophical Quarterly 14: 299–308.

4 A Jurisprudential Puzzle as Old as the Talmud Jeffrey S. Helmreich¹

Judges face an unenviable, if by now familiar, predicament: on the one hand, they are charged with applying the law as it is, rather than as they’d like it to be. They may not legislate, or decide entirely for themselves how a case ought to come out. On the other hand, legal sources are notoriously open—the same precedent or constitutional phrase (“equal protection,” for example) could be read to support opposite rulings (for affirmative action, or against it), or so say the dominant theories of constitutional law. In such cases, it can be exceedingly difficult to apply the law without first making some decision—a decision not fully determined by the sources—as to how to do so. The challenge for judges, in other words, is that of trying to be faithfully constrained by sources that, often enough, do not clearly favor one decision over another. As difficult as this well-worn predicament is, however, it is but a moderate version of a much more severe challenge, born millennia ago in the Talmud. Here I will show how the Talmudic version of the problem presents a uniquely paralyzing conundrum for legal decisors. I will set out the problem in more detail and evaluate some recent responses to it, explaining in particular why some of the options available to contemporary judges are of no help to their rabbinic counterparts. The problem arises in the interaction of several principles, introduced in the Talmud, as guides to rabbinic jurisprudence. One is the principle of pluralism: the question of what is the Torah law, or halakha, in important cases, has two correct—yet contradictory—answers. The same act in the same circumstances may rightly be ruled permitted or forbidden, the same food kosher or ¹ For very helpful feedback on earlier versions of the argument, I thank Esther Friedman, Hershey Friedman, Yoram Hazony, Aaron James, Jed Lewinsohn, Eli Pine, Dani Rabinowitz, Josh Weinstein, and in particular Aaron Segal, who also facilitated a transformative online discussion of it. Jeffrey S. Helmreich, A Jurisprudential Puzzle as Old as the Talmud. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0004

A Jurisprudential Puzzle as Old as the Talmud

61

unkosher. This radical pluralism, known by the Hebrew moniker elu v’ elu, has been presented as a built-in feature of Torah law, one that applies in many if not all controversial cases. And yet, it does not license rabbinic decisors to pick an answer arbitrarily, as in a coin toss. That is because of a second principle, that of fidelity or what I’ll call faithfulness: Rabbinic decisors, in ruling on a case, must try to find the correct answer. Like judges, they are not empowered to simply decide what they’d like or prefer the law to be. They must try to derive it in earnest from the authoritative sources. Indeed, in the Talmudic debates that end in a declaration of pluralism, and practically all others, for that matter, the various positions are advanced in vigorous pursuit of the putatively correct answer. As I will explain, Pluralism and Faithfulness are central principles in Talmudic and rabbinic jurisprudence. Many commentators on the Talmud accept both of them without question. But they are in tension. Taken together they communicate, on the part of the sources or their author, a message along the lines of: “I’m equally pleased with either reading—kosher or unkosher, pure or impure—as long as you pick the one you sincerely believe I prefer.” The conceptual roadblock of this paradoxical stance is nearly insurmountable for a rabbinic decisor, or so I will argue. And it is far greater than the related obstacle facing judges, caught between indeterminate sources and a duty to apply the law. That said, we can shed light on that contemporary jurisprudential problem by comparing it to the ancient and enduring version of it laid bare in the Talmud.

4 . 1 . P L UR A LI S M The canonical expression of legal pluralism in the Talmud is the following passage, from Tractate Eruvin, on a dispute between the two schools of thought known as Beit Hillel and Beit Shammai: R. Abba said in the name of Samuel: “for three years Beit Shammai and Beit Hillel debated, these saying the law is like us and these saying the law is like us. A heavenly voice emerged and said elu v’elu divrei Elohim Hayyim [these and those are the words of the living God], and the law [halakha] is according to Beit Hillel. Since, however, ‘both are the words of the living God,’ why did Beit Hillel merit to have the Halakha established according to them? Because they were genial and modest, and taught their own sayings and those of Beit Shammai. Furthermore, they put Beit Shammai’s words before their own.”²

² Babylonian Talmud, Eruvin 13b.

62

Jeffrey S. Helmreich

The key sentence is the italicized Hebrew quote: “elu v’elu . . . ,” “these and those are the words of the living God.” It is understood as suggesting, at a minimum, that both conflicting answers contain at least some halakhic merit, and more dramatically, that they are both right. In fact, the verdict that “the law is like Beit Hillel” is traced to a consideration totally external to the dispute (namely, Beit Hillel’s generous approach to argument). The implication is that neither side erred in its conclusion as to what is the law.

4.1.1. Substance vs. Procedure Another implication of the Talmudic passage is that the question of whom is actually followed (Beit Hillel) is different from the question of who was right. The latter—the substantive merits of each side—is addressed by the Heavenly voice vindicating both as “the words of the living God.” In contrast, the procedural question of whom is followed is settled decisively in one camp’s favor. As Avi Sagi points out, the Torah (and subsequent sources) may be open, admitting of multiple, at times incompatible, understandings, but “Halakha must be a unity” (Sagi 1994). There must be a decisive means of settling disputes, however worthy each side may be. Some take this to be the point of another famous Talmudic revelation, often lumped with the elu v’elu discussion, this one ending a contentious debate between the rabbinic assembly and a lone, stubborn dissenter on the ritual status of an oven known as “Akhnai’s Oven.” Even as the dissenter, R. Eliezer, summoned the Almighty to verify his position from the Heavens, his opponents silenced him, and his Heavenly witness, with the fateful words: “It is not in Heaven.”³ In other words, the argument cannot be settled by the Heavenly Author telling us what He really means. That was, arguably, because by then the substantive, interpretive investigation was over, and the assembly had moved onto the procedural stage determining what to do when neither side will yield (in this particular case: follow the majority).⁴ For example, a professional athlete—somewhat like R. Eliezer—might refuse to follow the referee’s call, storming off the field only to return moments later with a smart phone’s recording of the disputed play, proving him right.⁵ The referee can appropriately respond: “It’s no longer about that. It’s not about the game anymore. Now it’s about the fact that I’m the ref, I made a call, ³ Babylonian Talmud, Baba Metzia 59b. ⁴ Another way of capturing the difference between the two types of questions is that one refers to truth (is the oven impure?) and the other to authority (who gets the final say?). See Shapiro 2002. ⁵ Thanks to Jed Lewinsohn for a version of this example and for helpful discussion of its implications.

A Jurisprudential Puzzle as Old as the Talmud

63

and you have to follow it. Period.” Similarly, Beit Hillel is followed in the elu v’elu debate, just as the majority was to be followed in the Akhnai’s Oven story, due to procedural constraints that sidestep the substantive merit of either side.

4.1.2. The Realist Model What, then, was the substantive sense of “the law” whereby both conflicting answers were correct? For the present discussion, I will answer this question along the lines of what Sagi calls “the realist model” (Sagi 2009), taking Talmudic pluralism seriously at its word. On this model, the law—at least until one disputant gains the procedural advantage—includes all the rules and commandments expressed in the Torah, including the incompatible ones (“X is forbidden” and “X is permitted”) grounded in alternative readings of the same sources. To explain this idea, Sagi quotes the authoritative commentator Abraham Yom Tov, the “Ritva,” as follows: The French rabbis, of blessed memory, asked how can both be the words of the living God when one allows and the other forbids? And they explained that, when Moses ascended to Heaven to receive the Torah he was shown, concerning each matter, forty-nine reasons for allowing and forty-nine reasons for forbidding.⁶

Notice that on the Ritva’s picture, the truth about the law is not arbitrary: there are reasons for declaring something pure or impure, kosher or not. But such reasons are available on both sides of the debate, presumably grounded in the Torah text itself. Indeed, the Babylonian Talmud asserts that “the Torah can be [taught] 49 ways impure and 49 ways pure.”⁷ Different ways of reading the sources, on this model, give voice to the alternative “truths” they are meant to express. Notice also that pluralism here is not defined as a plurality of textual meanings; it is not reducible to the indeterminacy of the sources. Rather, pluralism consist in the multiple, alternative normative truths—“X is kosher” and “X is unkosher,” etc.—that the sources express or can be read to support. Mere textual or source indeterminacy, in contrast, could be an invitation to argue further, or come up with an extra-textual ground for finding an answer (Dworkin 1985). Or it could signal that the sources are deadlocked, so that rather than admitting of multiple truths, the text supports none—each one canceled out by the alternative reading. The revelation of pluralism, on the Ritva’s Realist model, expresses that, in fact, the legal truth itself—rather than merely the textual form of presenting them (i.e. the written Torah and earlier commentaries)—is pluralistic. Indeed, ⁶ Hiddushei Ha-Ritba le-Masekhet Eruvin, 13b, s.v elu v’elu, quoted in Sagi 2009. ⁷ Babylonian Talmud, Sanhedrin 4b.

64

Jeffrey S. Helmreich

the Ritva defines “the Torah” not as the texts or pronouncements of the Five Books, but as the various truths those texts could be taught to convey. On Pluralism, those truths include multiple, incompatible provisions: the same act is both permitted and forbidden, the same item ritually pure and impure.

4.1.3. Pluralism’s Wide Range Just how far does Pluralism extend? Recall that according to the Ritva, it applies to nearly any view that the sources can be reasonably taught to support: “[Moses] was shown, concerning each matter, forty-nine reasons for allowing and forty-nine reasons for forbidden” [emphasis added]. Recall also the Talmudic passage that “the Torah can be [taught] 49 ways impure and 49 ways pure.”⁸ The claim that there are 98 legitimate interpretations, half of which contradict the other half, is an explicit endorsement of Talmudic Pluralism, and an extension of it to nearly every bivalent question that can be answered either way on a plausible reading of the sources. In another Talmudic text, Rab Judah says in the name of Rab that any sage fit for membership in the elite parliament of legal decisors, the Sanhedrin, must be able to prove the ritual purity of a rodent (sheretz), which is uncontroversially regarded as impure.⁹ Think of it as akin to demonstrating that a pig is kosher. On certain readings (where “proving P” demonstrates the truth of P), that suggests that Pluralism extends beyond even hard or controversial cases. And the Ritva’s reference to “each matter” suggests that it applies in any halakhic dispute between two incompatible holdings (pure vs. impure, kosher vs. unkosher, permitted vs. forbidden). There may, however, be reason to resist such a far-reaching application of Pluralism. Despite the express claims mentioned above, the Talmud (like the Torah) refers to errant courts and rabbinic assemblies, and there are at least some core legal doctrines that are never disputed.¹⁰ For that reason, I will assume for now that Talmudic (realist) pluralism applies at least, but perhaps only, to: (a) answers to what Dworkin calls “dispositive bivalent” questions of law—is X kosher or unkosher, forbidden or permitted, pure or impure?— where (b) either answer is reasonably supported by the sources. Nothing in what follows turns on whether we apply that understanding of Pluralism, or the more wide-ranging version of the Ritva and like-minded authorities. ⁸ Babylonian Talmud, Sanhedrin 4b. ⁹ Babylonian Talmud, Sanhedrin 17a. Not everyone reads this literally, as “proving” the ritual purity or cleanliness of the sheretz, which implies the proof is correct, that the sheretz is (at least possibly) pure. The “proof” can alternatively be read as a kind of mental acrobatics, a clever argument for a false conclusion (Rosensweig 1992). ¹⁰ Thanks to Dani Rabinowitz for reminding me of this point.

A Jurisprudential Puzzle as Old as the Talmud

65

4.2. FAITHFULNESS Even on the Ritva’s rather extravagant view of pluralism, individual decisors are not licensed to make the law whatever they’d like it to be. They may not simply weigh the two (or more) answers to a disputed legal question and, secure in the knowledge that there are “49 reasons” this way and that, pick whichever one they’d prefer. Indeed, in the various presentations of pluralism, the principle is announced at the end of an argument, or investigation, itself often described as vigorous, heated, and otherwise interminable. In the case of the famous Akhnai’s Oven story—which yielded the immortal “Not in Heaven” verdict— the sages were said to have argued the case in so many different, imaginative ways, twisting and turning the texts in a tangle of clashing interpretations, that their argument evoked the image of coiled snakes (one meaning of the word “Akhnai”). Beit Hillel and Beit Shammai are likewise described as arguing for years. This fact reflects another principle of rabbinic jurisprudence that has been implied by the characterization of Talmudic debate so far but not made explicit, namely the principle of Faithfulness: in interpreting a text, rabbinic decisors must strive to get the correct answer, especially in contrast to what they might wish it to be or prefer it to be. To that end, the Talmud records rabbinic decisors praying as follows: “May it be Thy will, O lord my God, that no mishap occur through me and that I not err in a matter of Halakha . . . that I not declare the impure pure or the pure impure.”¹¹ The aim of getting the correct halakhic answer—captured in this Talmudic prayer—has ever remained a norm of rabbinic jurisprudence. For example, the legendary twentieth-century decisor R. Moshe Feinstein argues that a sage discerns the law, on a particular matter, “after he has researched appropriately to clarify the decision in the Talmud and the decisors, according to his expertise, with a sense of seriousness and in awe of God.”¹² Along similar lines, Rabbi J. David Bleich offers the following account, comparing halakha to physics: Both [halakha and physics] have as their subject matter a closed, immutable system of law—physical in the case of the latter, regulative in the case of the former. . . . Halakha is a science in the sense that, in its pristine form, there is no room for subjectivity . . . Disagreement abounds in the natural sciences no less so than in Halakha. But, in picking and choosing between contradictory and conflicting theses, the scientist acts on the basis of the canons of his discipline as understood

¹¹ Babylonian Talmud, Berakhot 28b. ¹² Responsa, Igrot Moshe, Orah Haim, v. 1, quoted in Freundel 2004: 142–3.

66

Jeffrey S. Helmreich

by his quite fallible intellect, not on the basis of subjective predilections. The halakhic decisor faces the same constraints. (Bleich 1995, xiii)

Halakha, in other words, requires an objective investigation of the sources not influenced by one’s personal preferences. Decisors must find out what the law actually holds, in contrast to what they’d like it to be. Unlike Pluralism, this principle is only occasionally made explicit in the Talmud. It is, rather, most powerfully illustrated by example, including that of nearly all Talmudic debates. In the disputes cited above, such as that between Beit Hillel and Beit Shammai, the interlocutors are described as arguing intensely and interminably about what the sources actually say. Indeed, Beit Hillel is given final authority to dictate halakha only because of a virtue of that camp’s investigatory practice, one which placed finding the truth above personal vanity or a desire to win the argument. Indeed, much of the Talmud consist in arguments as to what the proper ruling should be in light of Torah and Tannatic sources, nearly every turn of which presupposes the shared end of obtaining the mind-independently correct answer.

4.3. THE P ROBLEM We can now summarize the two Talmudic principles as follows: Pluralism (“Elu v’ Elu . . . ”): in many, perhaps all, non-obvious questions about what the Torah law holds in a particular case, there are least two incompatible but correct answers. For example, to the question of whether quinoa is kosher for Passover, an answer of no and of yes is correct. Faithfulness: in setting out to rule on what is the law about a particular case, legal decisors are required to try to determine the correct answer—to derive the answer from the relevant authorities and similar evidence—especially in contrast to deciding which answer they would prefer. The question of whether quinoa is kosher for Passover, then, should be decided by way of trying to discover which view the authoritative sources favor, and which they rule out. Again, both principles are deeply entrenched and widely accepted by scholars and practitioners of halakha. The problem is that it is nearly impossible to live by both of them, or at least to do so consciously. That is because one cannot investigate which of two incompatible answers the sources favor—as Faithfulness requires—while accepting a consequence of Pluralism, which is that either answer could lay equal claim to being favored by the sources. Suppose, for example, I am a decisor faced with a question like whether it is permissible to publicly shame a corrupt leader, perhaps by publishing an op-ed about him. I could read the prohibition on character assassination (accurate or

A Jurisprudential Puzzle as Old as the Talmud

67

not),¹³ known as lashon harah, to prohibit the exposé. On the other hand, I could read the commandment to rebuke one’s fellows (hocheach tochiach et amitecha . . . )¹⁴ to require the public shaming, or at least sanction it in this case. As Faithfulness demands, I must try to get the correct answer—what does the law really hold?—as between these two possibilities. The problem is that Pluralism effectively rules out that there is any such answer to be found. This case being one (let’s assume) in which the sources can reasonably be read or taught either way, Pluralism warrants the presumption that the actual law—the Torah, as Ritva defines it—counts both contradictory answers as correct. That is not to say I can pick an answer at random. I can’t just flip a coin; I have to try to uncover the correct answer from the sources, as Faithfulness demands. But if I know—and keep in mind—that neither of the two incompatible answers is singled out as “the” correct one, how can I seek the one established by the sources? How can I look for the answer favored or grounded by authorities that I already know favor neither one? Yet what else is it to consult the sources so as to see which answer is correct and (by implication) incorrect? The very act of reading sources as establishing P—regarding bivalent dispositive questions such as whether something is forbidden—involves viewing them as ruling out the alternative, not P. Yet Pluralism already tells me that doing so would be unwarranted. It may be worried that this point proves too much, however. If Pluralism undermines the attempt to get the sources right, then wouldn’t it challenge both Beit Hillel’s and Beit Shammai’s claim that “the law,” as a whole, is “like us”? Doesn’t Pluralism refute the opinions it vindicates, thereby contradicting itself, to say nothing of Faithfulness? This challenge brings out an important distinction. The views that Pluralism vindicates—Beit Hillel’s and Beit Shammai’s, for example—do not actually claim that the sources admit of only one reading. They simply take or apply one of multiple possible readings, which they rightly infer favors their view, and rules out the alternative. True, Faithfulness arguably demands that they believe their reading is the correct one, at least in coming to it. But there is no reason to doubt that they did believe that, even as it contradicts Pluralism. That belief—about their position—was not part of the position itself, which simply argued for a certain legal conclusion based on a reasonable, if not the only reasonable, reading of the sources. For example, the Talmud relates a Tannatic dispute about a passage in Deuteronomy, commanding of debt collectors that, “If [the debtor] is a needy man, you shall not go to sleep in his [collateral] pledge, you must return the ¹³ It is arguably an embarrassment of contemporary Anglo-American defamation law that accuracy, or the mere reasonable belief in it, is usually enough to shield from liability any public statements meant (maliciously) to destroy another’s reputation. ¹⁴ Leviticus 19:17.

68

Jeffrey S. Helmreich

pledge to him at sundown.”¹⁵ The Torah goes on to say that, in the case of a widow, “You shall not take a widow’s garment for a pledge.” The Talmud then relates a dispute between two sides, that of R. Yehuda and that of R. Shimon, as to the scope of the prohibition on taking “a widow’s garment” for a pledge.¹⁶ R. Yehuda claimed it applied to widows in general, so that debt collectors must never seek a pledge of this type from any widows. In contrast, R. Shimon held that it applied only to poor widows, as a special case of the prohibition on taking a poor person’s pledge and keeping it overnight. The Torah, he pointed out, has already implied that the debt collector, if he takes the pledge, must continually return it, then take it again, then return it, and so on. If this same procedure were to be followed with a widow, reasons R. Shimon, with a (presumably male) debt collector calling upon her morning and night, observers would probably get the wrong idea, so to speak. The poor woman would be scandalized. Notice that the two sides read the passage about widows differently. Importantly, though, both of them reasonably infer from their readings of the sources that a prohibition applies to a certain population (widows, to one of them; poor widows to the other), and does not apply to the rest. Each side, in other words, reads the sources to favor one view and rule out the other. Where they differ is in how they read those sources. Pluralism, then, could be understood as counting both contradictory readings as correct, even if neither reader sees it that way. Decisors like Beit Hillel and Beit Shammai, on this understanding, could be forgiven for believing their reading was the correct one. The revelation of elu v’ elu had not yet happened when they first interpreted and debated the texts. The same applies afterwards, even with elu v’elu, to any decisor who has managed somehow to come to an interpretation already. The problem, instead, is for those who first set out to interpret the sources and evidence as to which view they favor, and who, unlike Beit Shammai and Beit Hillel, are now fully aware of Pluralism. For these later generations of decisors, Faithfulness blocks the initial choice of a particular reading, as long as it would rule out the alternative that, Pluralism assures us, is likewise supported. Of course, a rabbinic decisor is free to ignore or forget about pluralism. It is perfectly compatible with the truth of elu v’elu that decisors be required to act as though it is false, even if they acknowledge it in principle. That path may commit them to Moorean oddities, such as, “The sources do not favor either answer, but I believe, after a thorough investigation, that they favor Answer A.” As with Moore’s actual paradox, however, this conjunction is not, strictly speaking, incoherent.

¹⁵ Deuteronomy 24:12–13.

¹⁶ Babylonian Talmud, Baba Metzia 115a.

A Jurisprudential Puzzle as Old as the Talmud

69

The problem, rather, is with the task of faithfully rendering a decision, in a reasonably contested case, if Pluralism is accepted and kept in mind. It is this sort of decisor—who seeks to live by both principles—who is stuck trying to do something he knows can’t be done. As foreshadowed above, it is as though a diner says to a waiter, “I have no preference as to which entrée you give me, as long as you pick the one you think I genuinely prefer.” A halakhic decisor is like God’s or the Torah’s waiter on this analogy; hence the problem.

4.4. SOLUTIONS

4.4.1. Theory and Practice If I have described things correctly up to now, the Talmud has placed rabbinic decisors in a nearly impossible spot, at least when they come to a question with a non-obvious answer: for their ruling to count as legitimate, they must reach it in a way that ignores a principle they well know, that of Pluralism. And yet, decisors have used the Talmud for centuries as a guide to rulings, even as they piously praise the wisdom of elu v’ elu. Indeed, one former pulpit rabbi responded to a version of the problem as follows: “I get it intellectually, but for some reason I’ve never found it to be a problem in doing my job.” One explanation (which the rabbi suggested) may be that most cases that come up are not what Ronald Dworkin calls “hard cases,” in which no clear direction is provided by the relevant sources and the judge is forced to investigate or interpret anew—which is where the problem arises. Another explanation, though, is that the tension presented here is illusory, no trouble for rabbinic decisors, after all. This possibility is pushed by Stanley Fish with respect to judges. Fish claims that the work of judges is entirely unaffected by the features of the law that legal theorists uncover, be they indeterminacy, plasticity, bias, the thinly veiled preservation of unjust status quos, or what have you (Fish 1987). That is because, Fish claims, judicial activity has its own, independent rules, which are not sensitive to the deliverances of abstract jurisprudential theories like legal realism, for example, or critical legal studies. Along similar lines, we might say that rabbinic decisors have their methods for interpreting the sources, and they are free to follow them down to whatever legal ruling they appear to support, without worrying about grand theories like Pluralism. Indeed, Pluralism itself arguably vindicates this claim. In saying there are two correct, if contradictory, options for interpreting the sources, the Pluralist in effect concedes that there are ways of interpreting the sources legitimately, ways that—on their own terms—do not commit the reader to Pluralism, and that point towards a definite answer. All that rabbinic decisors need to

70

Jeffrey S. Helmreich

do—even if, in the abstract, they acknowledge Pluralism—is proceed down one of those interpretive paths, precisely the sort they already learned to navigate with the toolkits honed in seminaries and sermons. The problem with this response is that it depends on a distinction between the implications of legal theories and the answers to specific legal questions that is not, at bottom, sustainable. Recall that the Heavenly Voice in the debate between Beit Hillel and Beit Shammai said “These and those” are acceptable readings. It pointed to the specific answers that, according to each side, ruled out the opposition, and the announcement of elu v’elu refuted that latter claim (if not the answers themselves), the very claim to which the interlocutors otherwise clung. Despite its generality, characteristic of legal theories, Pluralism directly responded to the first-order views of both sides, at least as regards to the merit of their opponent’s view. Similarly, Faithfulness requires that legal decisors search for which answer the sources, taken as a whole, actually favor. Pluralism directly refutes that such a holy grail even exists, at least in many cases. In that way it is directly responsive to the end that legal decisors otherwise take for themselves. When faced with a legal question—is quinoa kosher for Passover?—a decisor must set about discovering which answer, on balance, the sources favor. Pluralism already reveals that there is no such thing. In that way, it frustrates the interpretive enterprise before it starts. Still, it could be argued that this does not matter. Faithfulness could be interpreted behaviorally, as requiring only that decisors act as if there is a right answer. That, in turn, could require only that they go through the process of interpretation that they would undertake if the sources favored one outcome over another.¹⁷ This proposal might work for contemporary judges, at least assuming that certain self-contained legal sources—statutes, for example—could be interpreted using various canons of construction, or more sophisticated guides like default logic (Horty 2007). On this possibility, there would be a procedure for investigating what answer the sources favor, and judges could perform this procedure regardless of whether they believed what Dworkin called “the right answer thesis”—that the sourcs favor one answer and rule out its alternative (Dworkin 1985). But no such procedure is available to rabbinic decisors. Although the famous R. Ishmael instructions offer some guidance on the interaction of generalizations (such as “Keep the Sabbath”) and more specific elaborations (violate the Sabbath to prevent death), they cannot adjudicate between competing directives at the same level of generality. As noted above, the commandment to rebuke wrongdoers is arguably in tension with the

¹⁷ Thanks to Aaron James for articulating this possibility.

A Jurisprudential Puzzle as Old as the Talmud

71

commandment against accurate defamation (lashon hara), but it is not obvious, on the text alone, which one is more general or foundational. Rabbinic decisors have ways of resolving such clashes, of course, some of which appeal to context, or to what Eliezer Berkovitz calls “core principles” that underlie the entire set of positive laws (Berkovitz 2010). But there is no single established method for applying these extra-textual sources across all cases and questions, much less for interpreting ambiguous phrases and passages. Sometimes the peshat or literal meaning is followed, while other times it is simply presumed to be an encoded message (consider “Do not cook a kid (goat) in its mother’s milk”).¹⁸ What’s missing—and this is no defect; it may even be a benefit—is a unified decision procedure for halakhic interpretation. To be clear, I am not arguing that there is no way to interpret the sources such that they favor one answer over another. Indeed, if Pluralism is right there must be at least two such readings in a great many cases. I am, rather, arguing that the methodologies for doing so are not sufficiently structured or self-contained so as to insulate rabbinic decisors from the implications of Pluralism, once they come up. A decisor has no basis for saying, in effect, “I don’t care if there’s a right answer, I’m going to follow steps 1, 2, 3 . . . etc. of rabbinic legal interpretation and search for it.” There simply are no such steps, and the only essential feature of rabbinic interpretation, under Faithfulness, is that it involves an attempt to explore the whole body of source material so as to uncover which legal ruling it favors. And on Pluralism, we already know that it can often be read to favor either alternative.

4.4.2. Creative Faithfulness Another way around the dilemma is to deny the link between Faithfulness and the Right Answer Thesis. There is, in fact, logical space between deciding entirely for oneself, according to which answer one prefers—which is to say, being lawlessly unconstrained by the sources—and seeking the correct answer. Another way to be faithful to the sources is to make sure one’s decision is a product of engagement with them, rather than a self-conscious attempt to act independently of them. Consider a poet tasked with leading people in a prayer that evokes the awe they feel about the universe, or Creation, when viewing a perfect sunrise.¹⁹ There is clearly no single right answer as to how to capture this sensation or recognition. But it is certainly possible to fail in the requirement that one be constrained by the appropriate sources—in this case the sunrise or the awe in ¹⁸ Exodus 23:19; 34:26; Deuteronomy 14:21. The passage is read as prohibiting the simultaneous consumption of meat and dairy. ¹⁹ Thanks to Josh Weinstein for suggesting a solution along these lines.

72

Jeffrey S. Helmreich

question or the properties of the world or God that these reflect. If, instead, the poet adds a line because it will be catchy or betray her inimitable trademark style, so that readers will know it is her work, she has violated the boundaries of her charge. She has ceased to act on what the proper sources inspired or otherwise moved her to do. In a similar way, we could see legal decisors as engaged in a kind of poetic enterprise, where their inspiration is the textual sources—and as long as they act on this inspiration, they remain properly constrained. They are finding law, rather than making it, even if they could have found a different law by the same method. They overstep only when they intentionally act on different sources of inspiration or guidance altogether, such as political pressure or personal preference. Ironically, for all the affinities between poetry, art, and religion, this attractive solution may better suit legal judges than rabbinic decisors. In addressing a legal question where the answer is not obvious—does fabricating a Facebook profile that caricatures a real person violate his right in tort against False LightInvasion of Privacy?—a judge can be constrained by the sources as long as she appeals to a principle or legal reason that she took from them, or takes to be among them (as the US Supreme Court arguably did in unearthing a general right to privacy), even without regard to whether a competing principle or reason outweighs it. As long as she was constrained by such sources, she did not overstep her judicial bounds. She applied rather than innovated. In other words, for judges—unlike rabbinic decisors—the demands of fidelity, their version of faithfulness, may be entirely negative: a judge should try, above all, not to legislate, not to make the law on her own. Meeting this constraint, then, requires only that she reach her decision as a result of consulting the sources, instead of intentionally doing otherwise. In contrast, rabbinic decisors have a positive requirement that they check the sources a certain way. Faithfulness dictates that they must seek the correct answer, or the answer that the sources, on balance, favor. For example, faced with the question of whether a terminally ill and suffering patient is religiously permitted to take enough painkillers so as to risk death as a side effect, the decisor is tasked with uncovering whether the sources—which arguably prohibit suicide and euthanasia—might nevertheless allow this sort of medicating. It is not, in contrast, whether there is something in the sources that points one way or the other (even if overridden or outweighed), or whether the decisor reaches an answer by way of a religiously inspired directive or principle. The inquiry is whether, all things considered, the overdose would violate the Torah law. There is arguably no way of pursuing this inquiry except by trying to determine which answer the sources, overall, favor. And, on the present argument, that cannot be rationally done by a decisor who accepts Pluralism and keeps it in mind.

A Jurisprudential Puzzle as Old as the Talmud

73

4.5. SOLUTIONS (CONTINUED): MODIFYING THE P RINCIPLES

4.5.1. The History of Rabbinic Discretion The problem I have outlined depends on reading Faithfulness and Pluralism in ways that may strike the reader as stark or strict. For example, I argued that faithfulness requires that rabbis, unlike judges, pursue legal decision-making by checking which of the alternatives the sources favor overall. It may be recalled, however, that his interpretation of Faithfulness was reached in part by appeal to example: this is the pattern of argument displayed in the Talmud and exemplified by Beit Hillel, Beit Shammai, R. Eliezer and his interlocutors in the Akhnai’s Oven story, and nearly every other well-known disputant. That, however, invites an appeal to counterexamples, of which there are a famous handful. Indeed, both in the Talmud and throughout the history of rabbinic jurisprudence, decisors have at times drawn on extra-legal factors or values so as to “read in” the answer they favored, stretching the sources to suit their agendas. As Blu Greenberg famously remarked, “Where there’s a rabbinic will, there’s a Halakhic way.” Perhaps these “renegades” are following a much looser version of Faithfulness, one that should be preferred to the above interpretation. On this alternative construal, Faithfulness may only require that a decisor find a reasonable reading of the sources that supports her ruling, however she may in fact have arrived at it. Such a reading would avoid the problem posed here. It would be perfectly compatible with Pluralism, perhaps even presupposing it. There can be no doubt, as a historical matter, that mainstream rabbinic decisors have engaged in this practice of creative, agenda-driven interpretation. But the implications of this fact are not clear. As a psychological matter, rabbinic decisors—like judges and police officers—are biased in their ostensibly pure application of sources. Their own values and preferences seep in. But Faithfulness concerns what counts as a legitimate reason or basis for a halakhic ruling, rather than what actually causes it. A cop may give a ticket because he is in a bad mood, but he cannot cite or use this as his reason, or the ticket will (or should) be thrown out in traffic court. Put differently: people may have been biased, in deciding halakha, but that does not show that their doing so reflected the correct understanding of halakhic standards, or that they even thought it did. Of course, there have been famous cases of decisors intentionally—and legitimately—flouting correctness, narrowly understood. Reportedly the twentieth-century decisor known as the Brisker Rav once responded to an impoverished woman, who asked whether her chicken was kosher, by saying, “First, let me ask you a question: How many chickens do you have?” The Talmud itself featured the famous cases of the “Rebellious Son,” where rabbinic

74

Jeffrey S. Helmreich

authorities grabbed any pretense on the books so as not to enforce the law. Arguably they did the same with the death penalty, insisting on evidentiary requirements so stringent as to render the penalty nearly unenforceable. These examples are misleading, though, for two reasons. First, they’re exceptional, which is part of why they’re famous. One wonders whether a decisor would have attained the authoritative stature of the Brisker Rav if this were known to be his general practice, instead of a celebrated departure from it. Second, the process of faithfully consulting sources need not be understood narrowly. There’s more to “correctness” than what the explicit textual sources dictate about the question at hand. As Eliezer Berkovitz argued, the authoritative sources also include underlying or core principles—such as mercy, justice, “ways of peace in the world,” and so on—that can sometimes trump positive law in settling the final ruling (Berkovitz 2010: 28–9). Appealing to such principles, as the Brisker Rav arguably did, is a more sophisticated way of seeking correctness, not an alternative to it. Far more importantly, the modified version of faithful rabbinic decisionmaking—“where there’s a rabbinic will . . . ”—tends to look better outside the actual practice of halakhic inquiry. Imagine things from the inside, on the other hand: closely poring over the text, struggling to determine whether, say, the Sabbath ban on lighting fires applies to electric circuits (or is that “building”?). It seems hard to understand this exegetical activity other than as investigating which answer the sources favor, and which they rule out. What else could it mean to “check the sources” to see if the answer is P or not P? The practice seems unintelligible except as a search for the correct answer. Most important, this interpretive practice is taken very seriously, perhaps more so than judges take their legal research (itself a more faithful exercise than legal academics cynically claim). Rabbinic decisors are exhorted to investigate thoroughly and humbly, asking God’s help in preventing a mistake.²⁰ Again, this strenuousness—like all trappings of seriousness, integrity, and effort in halakhic research—becomes absurd if the opposing answer would be equally correct. Why worry or work hard?

4.5.2. Modified Pluralism As an alternative to modifying Faithfulness, we could modify Pluralism. Rather than say that both answers to a dispositive, bivalent question—is quinoa kosher for Passover?—are correct, we could say, following a suggestion due to Aaron Segal, that both are good enough to count as correct, for practical purposes, even though only one gets the sources right. ²⁰ Babylonian Talmud, Berakhot 28b.

A Jurisprudential Puzzle as Old as the Talmud

75

This version of Pluralism has the advantage of avoiding the tension discussed up to now. Pluralism so modified does not imply that the sources favor neither of two competing answers; as a result, a decisor who accepts it can still search for the truly correct answer, as Faithfulness demands. It is, however, unclear what else about Pluralism remains on this proposal. That depends, in part, on precisely what merit the incorrect but legitimate reading is taken to have. The proposal is compatible, for example, with a version of pluralism that is purely procedural, and that arguably follows automatically from the authority given rabbis and enshrined in slogans like “It is not in Heaven.” On this “procedural pluralism,” rabbinic decisors have the authority to render legal rulings based on how they read the sources, and those rulings count regardless of whether they get things right. Indeed, they may be wrong every time. If that is all that pluralism amounts to, though, we might lose at least one of its main benefits: halakhic pluralism has been praised as saving a great many actual religious viewpoints and practices from being little more than earnest mistakes.²¹ There are, after all, hundreds of competing approaches to halakha. If substantive pluralism is false and there is only one right answer, most of them—and the practices based on them—would be in error, however wellmeaning. As one sage, R. Yannai, said, “If the Torah had been handed down cut and dried, no leg would stand.” Instead, “the Torah might be taught 49 ways impure and 49 ways pure.”²² To avoid this cost, we could opt for a different version of the same proposal: a modified pluralism that is nevertheless substantive, inasmuch as it finds genuine value in both answers to the halakhic questions decisors face—even if only one of them reads the sources correctly. A variety of post-Talmudic commentators take versions of this approach. Rashi, for example, proposes that while there may be only one reading of the sources that captures what to do in a particular case, the alternative reading applies in slightly different cases or in different contexts, perhaps not yet realized.²³ In a similar spirit, Hatam Sofer describes the elu v’elu pronouncement as follows: “And it is known that which is written, ‘elu v’elu divrei . . . ’ There is nothing in all the Torah which has no significance . . . and what appears now to be contrary to reason nevertheless will be true in some other place or gilgul [reincarnation].”²⁴ Indeed, a postTalmudic tradition emerged of reaching for the alternative reading, the one that failed to become halakha (the way Beit Shammai’s failed in the elu v’elu case, or R. Eliezer’s in Akhnai’s Oven), in times of strife, where there may be unique pressure to depart from the heretofore traditional answer (Lichtenstein 2002). ²¹ ²² ²³ ²⁴

I first saw this benefit pointed out in Freundel 2004. Jerusalem Talmud, Sanhedrin 4b. Rashi Commentary, Babylonian Talmud, Ketubot 57a, cited in Rosensweig 1992. Commentary of the Hatam Sofer on Pesahim 3b, cited in Sokol 1994: xxiii–xxxv.

76

Jeffrey S. Helmreich

Another way of finding value in either of two incompatible readings draws on their status as conclusions faithfully “learned out” from the sacred sources. One interesting version of this idea is what Sagi calls the “anthropological model,” which he traces to the commentator Meir Ibn Gabbai and, in a very different form, Solomon Luria. On this model, the various options in a halakhic dispute, delivered by faithful investigation, are all part of an ongoing, collective revelation of the answer, which no one is yet in a position to establish once and for all (Sagi 2007: 72). Every faithful ruling and interpretation is thus a voice in the discussion, a contribution to the collective revelation. To recap, this proposal would not solve the main problem, the tension between Pluralism and Faithfulness. It does not allow a decisor to search for the single answer favored by sources that he knows favor no particular answer over its opposite. Instead, it offers a different understanding of pluralism, in effect denying a deep, substantive pluralism in favor of a modified one that still confers genuine value on the opposing viewpoints. Each of them, on this model, contributes to an ongoing investigation, which no single decisor or commentator has the power to conclude. In this connection it is worth recalling that the immortal elu v’elu does not state that each side is correct. Instead, it states that each one constitutes “the words of the living God.” The phrase “living God” evokes a divine author who is still working it out, together with His students, far from resolution. By way of illustration, consider this Talmudic story from Baba Metzia: There was a dispute in the Heavenly Academy regarding laws of leprosy . . . God said “pure” and the entire Heavenly Academy said “impure.” They decided to ask Rabbah b. Nachmeni to resolve this dispute, since he once said, “I am unique in my knowledge of leprosy and tents.” They sent a messenger to get him . . . ²⁵

Far from depicting a divine author with the answer already in stone, the Talmud here evokes—as much as it everywhere embodies—a sprawling collective of disputants aiming at the same truth, where each side has something to contribute and no one gets the last word. BI B LI OGR APHY Berkovitz, E. (2010) Not In Heaven. Jerusalem: Shalem Press. Bleich, J. D. (1995) Contemporary Halakhic Problems IV. Jerusalem: Ktav. Dworkin, R. M. (1985) “Is there Really no Right Answer in Hard Cases?” In: R. Dworkin, A Matter of Principle. Oxford: Oxford University Press, pp. 119–45. Elon, M. (1994) Jewish Law: History, Sources, Principles. Philadelphia: Jewish Publication Society. ²⁵ Babylonian Talmud, Baba Metzia 86a.

A Jurisprudential Puzzle as Old as the Talmud

77

Fish, S. (1987) “Dennis Martinez and the Uses of Theory.” Yale Law Journal 96: 1773–96. Friedman, H. (2017) “The Value of Argumentation and the Danger of Absolute Certainty: A Jewish Perspective.” ResearchGate, at https://www.researchgate.net/ publication/319234573. Freundel, B. (2004) “Masorah, Mahloqet and Emet: Origins of Rabbinic Debate and the Search for Truth in the Halakhic Process.” Circulated manuscript. Horty, J. (2007) “Reasons as Defaults.” Philosophers Imprint 7(3): 1–28. Lichtenstein, A. (2002) “The Human and Social Factor in Halakha.” Tradition 36: 89–114. Luban, D. (2004) “The Coiled Serpent of Argument: Reason, Authority, and Law in a Talmudic Tale.” Chicago Kent Law Review 79: 1253–8. Rosensweig, M. (1992) “Elu v’Elu Divre Elokim Hayyim: Halakhic Pluralism and Theories of Controversy.” Tradition 26(3): 4–23. Sagi, A. (1994) “ ‘Both are the Words of the Living God’: A Typological Analysis of Halakhic Pluralism.” Hebrew Union College Annual 65: 105–36. Sagi, A. (2007) The Open Canon. London: Continuum. Seidman, L. M. and Tushnet, M. (1996) Remnants of Belief. New York: Oxford University Press. Shapiro, S. (2002) “Authority.” In: J. Coleman and S. Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford: Oxford University Press, pp. 382–439. Sokol, M. (1994) “What Does a Jewish Text Mean? Theories of elu ve’elu divrei elokim hayim in Rabbinic Literature.” Da‘at 32–3: xxiii–xxxv. Tushnet, M. (1983) “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles.” Harvard Law Review 96(4): 781–827.

5 A Commentary on a Midrash Metaphors about Metaphor Samuel Lebens

In this chapter I offer a reading of a Midrash from Shir Hashirim Raba (1:8); a Midrash that David Stern (1994: 63) calls “the most programmatic description of the mashal [Hebrew for metaphor, or parable] in all Rabbinic literature, and possibly the most extensive statement about a literary form that the Rabbis ever made.”¹ This Midrash, I argue, partially prefigures various modern theories about the nature of figurative language. Strikingly, it doesn’t state any theories of metaphor so much as provide an array of competing metaphors for metaphor; and thus, this Midrash provides us with illuminating and surprisingly current metaphors about metaphor. The purpose of this chapter is to unpack, to some extent, those metaphors. The Midrash in question is offered as an explanation of the first words (and title) of the Song of Songs. In the rabbinic tradition, the Song of Songs receives canonical status because it was regarded as a parable—an extended metaphor about God’s relationship with His beloved people, Israel. The Midrash begins by arguing that since this extended metaphor was written by Solomon, who the rabbis identified with Koheleth—and, since Koheleth was, apparently, the master of metaphors, similes, and parables (a category captured by the Hebrew word, mashal), the Song of Songs is, divine inspiration aside, likely to be worthy of its name: a song that is, in some sense or other, superior to all others: “The Song of Songs . . . ,” this relates to that which is said in the scriptures, “And even more so: Because Koheleth

‫ד''א שיר השירים זהו שאמר הכתוב ''ויות ר‬ ‫שהיה קהלת חכם'' אלו אדם אחר אמרן היית‬ ‫צריך לכוף אזניך ולשמוע הדברים האלה ויותר‬

¹ The Midrash in question is well known. It receives extensive treatment in Daniel Boyarin (1994) and, in medieval times, was repeatedly quoted in the introduction to Maimonides’ Guide to the Perplexed (1974). Samuel Lebens, A Commentary on a Midrash: Metaphors about Metaphor. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0005

A Commentary on a Midrash

79

was a sage . . . [an incomplete quote from Ecclesiastes 12:9]” Had another person said [the Song of Songs], you would have had to incline your ears and listen to these words, “And even more so” given that Solomon said them. Had he said them from his own mind, you would have had to incline your ears and listen to them, “And even more so” given that he said them under the influence of the Holy Spirit.

‫שא מר ן שלמה ו איל ו מדע תו אמר ן היי ת צ רי ך‬ ‫לכוף אזניך ולשמעם ויותר שאמרן ברוח הקודש‬

[The full quote from Ecclesiastes:] “And even more so: Because Koheleth was a sage, he continued to instruct the people. He weighed up, sought out, and established many maxims (mashalim).” [1] He weighed up words of Torah. [2] He sought out words of Torah. And [3], he made handles for the Torah. And one finds that before Solomon arose, there never was such a thing as a dugma.

‫''ויותר שהיה קהלת חכם עוד למד דעת את העם‬ ‫וא ז ן ו ח ק ר ת ק ן מ ש ל י ם ה ר ב ה ' ' ו אז ן ד בר י ת ו ר ה‬ ‫ ואת מוצא‬,‫וחקר דברי תורה עשה אזנים לתורה‬ ‫שעד שלא עמד שלמה לא היתה דוגמא‬

The word dugma usually means “example”—from the Greek, δεῖγμα, an “example” or “pattern.” But here it seems clear that it’s being used as a synonym of “mashal.” And thus, Maurice Simon (Freedman and Simon 1983) translates “dugma,” in this instance, as parable.² Before Solomon, there were no parables. Of course, the authors of the Midrash don’t think Solomon to be the first person in history to have fashioned a parable or an extended metaphor (we have a clear biblical example predating Solomon, in Nathan’s parable offered in rebuke of David (II Samuel 12)).³ Instead, this is hyperbole, intended to express Solomon’s unparalleled mastery of the art. There is wordplay involved in Solomon’s weighing up the words of the Torah and creating handles for them. The verb for “weighing up” comes from the same root as the Hebrew word for the ear. Also, the Hebrew word for

² David Stern (1994: 300, fn. 1) agrees with Simon’s translation of “dugma,” as do the standard rabbinic commentaries to the Midrash. Jastrow (1903: 282–3) uses this Midrash as an instance of “dugma” as mashal. ³ Carl Mosser suggested this example to me as I was searching my cobwebbed memory for a pre-Solomonic example of a biblical parable.

80

Samuel Lebens

handle shares this root. Handles on ancient pottery resemble ears, and, like ears, they were used in ancient pottery for balance (the handles were often placed at the bottom of earthenware to add stability). It is noteworthy that Solomon is presented as understanding the Torah’s content before fashioning metaphors for it. This will become a controversial thesis, as we shall see. Furthermore, we’ve already been presented with our first Midrashic metaphor about metaphors: metaphors that encode the message of x are handles for x.⁴ We’ll return to this metaphor later. I move to the next section of the Midrash, marking with subscript numbers the fact that the Midrash uses a corresponding number of different cognate words for “understanding”—a feature of the Midrash that we’ll return to. R. Nachman [gave] two [illustrations]. R. Nachman said it is like a large palace that had many entrances, and everyone who entered it got lost from the entrance. A wise man came and took a coil of string, and attached [one end of it] to the way of the entrance. Thereafter, everyone came in and left by way of the coil of string. Likewise: until the rise of Solomon, nobody was able to understand1 words of Torah. And, after Solomon arose, everyone began to understand2 the Torah.

‫רב נחמן תרתין רב נחמן אמר לפלטין גדולה‬ ‫שהיו בה פתחים הרבה וכל שהיה נכנס בתוכה‬ ‫ ב א פ ק ח א ח ד ו נ ט ל‬, ‫ה י ה טו ע ה מד ר ך ה פ ת ח‬ ‫הפ ק ע ת ו תל א ה ד ר ך הפ ת ח ה י ו הכ ל נכ נ ס י ם‬ ‫ כ ך ע ד ש ל א ע מד ש למ ה‬, ‫ו י ו צ א י ן ד ר ך ה פ ק ע ת‬ ‫ל א ה י ה א ד ם י כ ו ל ל ה ש כ י ל ד ב ר י ת ו ר ה ו כ יו ן‬ ‫שע מ ד של מ ה ה ת ח י ל ו הכ ל ס וב ר י ן ת ו ר ה‬

We now have a second mashal for depicting the power of Solomon’s mashalim, in terms of the wise man attaching string to an entrance of the palace. Upon entering, you can grab on to that coil of string, unwinding it as you go. You’ll never get lost, because you can follow the string back to the entrance. The string imposes some sort of structure to your journey, imposing a set end and starting point. There were initially many entrances; then the wise man selected one to function as everybody’s start and end point. But, where you go in the middle is up to you; just keep holding onto that string, attached to the entrance, and you’ll be fine.⁵ For some reason, R. Nachman didn’t think his first illustration was sufficient. He supplemented it with another.

⁴ This metaphor, like many of the following metaphors, appears elsewhere in the rabbinic corpus (e.g. Tractate Yevamot 21a); but my comments, in this chapter, are going to focus on this Midrash in isolation. ⁵ This metaphor and the next one also appear in Kohelet Rabba 2:11 and Bereshit Rabba (Theodore Albeck’s edition), Parshat Bereshit 12.

A Commentary on a Midrash R. Nachman’s second illustration: It is like a thicket of reeds that nobody was able to enter. A wise man came and took a scythe and cleared [a path]. Thereafter, everyone began to come in and leave by way of the path that had been cleared; so too with Solomon.

81

‫רב נח מן ל ישנא חורי לחורשא של קנ ים ולא‬ ‫הי ה אד ם יכול להכנס ב ה וב א פק ח א חד ונטל‬ ‫את המ גל וכ סח הת חילו הכל נ כנס ין דרך‬ ‫ כך שלמה‬,‫הכ סו ח ויוצאין‬

This second illustration sheds quite a different light upon the nature of mashalim. It differs from the palace metaphor in three salient respects: (1)

(2)

(3)

It suggests that the metaphor cuts a specific route through the conceptual territory, so to speak; the travelers through the field don’t have the freedom they have in the palace. It suggests that the wise man couldn’t have traversed the territory himself without the metaphor (though he could have chosen a different metaphor, by cutting a different path)—that is to say, recourse to metaphor was unavoidable; in the palace metaphor it is at least an open possibility that the wise man could have found his own way out without the rope, which he attached perhaps only for others. The metaphor damages the terrain (the thicket of reeds now has a man-made path beaten through it). The palace, on the other hand, was left unaltered.

The metaphor at the heart of the Song of Songs is supposed to impart some deep theological truth. According to the palace metaphor, the Song of Songs provides a way to think about the relationship between the human and the Divine, without saying much that’s very specific. It’s as if we’re told: think of the relationship between God and Israel in terms of a loving relationship. No fine-grained propositional content is conveyed by such an instruction, but, we’re given free reign to construct our own theologies within the boundaries somehow presented by the metaphor. In other words, according to the palace metaphor, Solomon’s rope constrains our journey through the palace of theological speculation, but it doesn’t constitute a very tight leash. This gels well with Menachem Kellner’s (1999) presentation of the Hebrew Bible and pre-medieval Jewish theology, according to which there is no officially sanctioned systematic theology, despite some general coarse-grained constraints. The thicket of reeds metaphor disagrees. According to that metaphor, a very specific path is cut through the conceptual territory by Solomon’s metaphor. We’re somehow presented, by Solomon’s extended metaphor, with a whole set of, potentially, very fine-grained theological theses. Given that this sounds so alien to the theological liberalism of pre-medieval Judaism, it’s tempting to say that R. Nachman sides with his first illustration, his palace metaphor, when it

82

Samuel Lebens

comes to what I have labeled point (1). The reason that R. Nachman didn’t think that his palace metaphor was sufficient, I would suggest, is that he sided with the thicket of reeds metaphor over the palace metaphor when it came to points (2) and (3). Siding with the reeds metaphor when it comes to point (2), R. Nachman seemingly prefigures the general attitudes at the heart of Nietzsche’s approach to metaphor, and at the heart of Lakoff and Johnson’s ambitious research program in the philosophy of language and cognitive sciences. Nietzsche was of the opinion that all language use was, in some sense or other, metaphorical.⁶ His famous pronouncement to that end said that truth is a “mobile army of metaphors, metonyms, and anthropomorphisms.”⁷ Lakoff and Johnson hope to add some scientific rigor to Nietzsche’s basic thesis with their claim that, given a sophisticated appreciation of cognitive science and developmental linguistics, it becomes clear that all language and thought is inherently metaphorical. Lakoff and Johnson (2003: 167–8) illustrate their point with an example. Take the allegedly non-metaphorical sentence, “The fog is in front of the mountain.” In order to understand it, we first have to view “the fog” and the “mountain” as entities, when in fact they have no clear boundaries, and to treat them as discrete entities is really to engage in ontological metaphor (thinking of something non-bounded and non-discrete in terms of something bounded and discrete). Second, “we must project a front–back orientation on the mountain”; speakers of Hausas, for example, make a different projection than we do and would rather say that “the fog is in the back of the mountain” in situations which we would describe as the fog being in front of the mountain (p. 161). These orientational projections are just a new species of metaphor. They involve our transferring the orientation that we learn from experiencing our bodies onto other objects. Part of what Lakoff and Johnson want to point out is that we structure our experience metaphorically. Ontological and orientational metaphors are perhaps the tamest ways in which we do this. More radical, and equally pervasive, is our attempt to structure our less well-delineated experiences by thinking of them in terms of other, better-delineated experiences. A good example is the experience of love. As they point out (p. 86), love is not a very well-delineated experience. It can often be intensely powerful, and yet it is certainly difficult to express what it is exactly. So, we structure it in terms of a whole array of culturally entrenched metaphors: we think of love as a journey when we say, “it’s been a bumpy road, but we’ve come a long way together”; we think of love as a patient when we say, “I really feel that we’re on the mend”; we think of love as a physical force when we say, “We were drawn together”; and we think of love in terms of mental illness when we say, “I’m crazy for her.”

⁶ For a very clear presentation of Nietzsche’s view on this matter, see Hinman 1982. ⁷ Quoted in Hinmann 1982: 184.

A Commentary on a Midrash

83

As I read R. Nachman, he’s telling us that metaphor is just as pervasive as Nietzsche and Lakoff and Johnson claim (or, at least they are in the realm of theology—our real subject matter). That’s why the palace metaphor isn’t sufficient for R. Nachman. He doesn’t think that anybody can enter the palace, even the wise man, without the aid of something like the coil of string. The wise man cannot go in unaided and attach a coil of string for everybody else as he leaves. If there’s no coil there, even the wise man will get lost. Matters theological are just too abstract to think about unless we think about them, metaphorically, in terms of less abstract things. R. Nachman therefore moves to the metaphor of the reeds because he wants to capture the fact, and to make clear, that even the wise man couldn’t traverse this terrain unless he took a scythe and carved a path. The path that he carved—i.e., the metaphor—wasn’t the only path he could have carved, but if there were no path at all, he couldn’t so much as enter into the terrain. R. Nachman is disagreeing with the anonymous preamble to the Midrash. It could not be that Solomon first understood the Torah and only then forged the metaphors. Preferring the reeds metaphor over the palace metaphor vis-à-vis point (2), R. Nachman leans towards Lakoff and Johnson. However, on my reading, he also prefers the reeds metaphor over the palace metaphor vis-à-vis point (3). This constitutes a step back from Lakoff and Johnson’s most radical thesis. Lakoff and Johnson, at their most extreme, believe that their work has done enough to motivate a wholesale rejection of the notions of objective meaning and objective truth—Nietzsche certainly thought the same thing. According to them, language never neatly corresponds to the world, passively mirroring it, in the ways envisaged by many analytic philosophers of language. Instead, thought imposes structures upon the world and plays a significant role in constructing reality. The “myth of objectivity” is merely a myth: it fails to realize the numerous and pervasive ways in which language and thought actually structure, rather than simply mirror, our reality. R. Nachman seems to demur. There is an underlying reality. There is a thicket of reeds. It’s true that the path that we cut through it does damage to the thicket. The path obscures certain features; it imposes an artificial structure upon it. But, the very fact that we can talk about the damage done to the field indicates that we have some understanding of an underlying objective reality that we’re having trouble doing justice to in the metaphors that we use to explore it. On my reading, R. Nachman presents his two metaphors in tandem because he prefers the metaphor of the palace in respect of point (1), but he prefers the metaphor of the reeds in respect of points (2) and (3). This suggests an outlook that combines the pre-medieval theological liberalism that Kellner would urge us to respect as historical fact, with a restricted form of Nietzscheanism: all thought, or at least all thought about theological matters, is bound to be structured according to some metaphor or other, even though there really is an objective reality out there, hazily grasped through metaphors that both convey and do damage to the content of that reality.

84

Samuel Lebens The Midrash continues:

R. Yossi said: it is like a great basket of fruit, and it had no handles, and nobody was able to move it. A wise man came and made handles, and began to move it by way of [these] handles. Likewise: until the rise of Solomon, nobody was able to understand1 words of Torah. And, after Solomon arose, everyone began to understand2 the Torah.

‫א''ר יוסי לקופה גדולה מלאה פירות ולא היה לה‬ ‫אזן ולא היתה יכולה להטלטל ובא פקח אחד‬ ‫ כך‬,‫ועשה לה אזנים והתחילה להטלטל ע''י אזנים‬ ‫עד שלא עמד שלמה לא היה אדם יכול להשכיל‬ ‫דברי תורה וכיון שעמד שלמה התחילו הכל‬ ‫סוברין תורה‬

In contemporary English, we describe ourselves getting a handle upon a complicated thought or notion. R. Yossi’s idea, echoing the preamble to the Midrash, is that metaphors do just that; they help us to get a handle upon something otherwise difficult to contemplate. It’s not that metaphor is essential for “moving the fruit,” but instead, metaphor offers us ease and speed. However heavy the pile of fruit may be, we could, if we wanted to, and had the time, move the fruit one by one, re-piling them in the desired location. The handles on the basket allow us to move the pile with much greater convenience. Metaphors (at least in theology) are essential according to R. Nachman, but optional for R. Yossi. But it seems to me that there is more to R. Yossi’s metaphor than the mere denial of R. Nachman’s (restricted) Nietzscheanism. According to Max Black (1954–55), one of the really important functions of a metaphor is to bring two sets of association into conversation. For every common word in English, the English-speaking community has a set of what Black calls “commonplace associations.” Some of these associations may be completely false. The word “wolf” might conjure up associations of cunning cruelty, when wolves may in fact be loving creatures. And, indeed, within subcultures, say the Anglian Wolf Society (which I found online), the commonplace wolf-associations might be quite different from the wider culture’s wolf-associations. Nevertheless, in any given conversational circumstance, the interlocutors will be able to tap into the same system of commonplace associations with wolves. Similarly, the English word “man” conjures up a whole different system of commonplace associations. Against this backdrop, Black explains (p. 288), “The effect, then, of (metaphorically) calling a man a ‘wolf ’ is to evoke the wolf-system of related commonplaces. If the man is a wolf, he preys upon other animals, is fierce, hungry, engaged in constant struggle, a scavenger, and so on.” But the metaphor doesn’t attempt to impose all of our wolf-associations upon man. Wolf-associations that gel less well with our man-associations are not at all emphasized by the metaphor. And thus, due to the ways in which the two systems of associations interact, the wolf metaphor emphasizes man’s ferocity; but not his inclination to live among the

A Commentary on a Midrash

85

trees and eat raw meat. Black goes on to construct his own metaphorical device for talking about metaphors (pp. 288–9): Suppose I look at the night sky through a piece of heavily smoked glass on which certain lines have been left clear. Then I shall see only the stars that can be made to lie on the lines previously prepared upon the screen, and the stars I do see will be seen as organised by the screen’s structure. We can think of a metaphor as such a screen, and the system of “associated commonplaces” of the focal word [i.e. “wolf ”] as the network of lines upon the screen. We can say that the principal subject [i.e. man] is “seen through” the metaphorical expression . . .

On Black’s account metaphor doesn’t merely convey certain content—that men are ferocious and prey upon the weak. It does more. In Black’s words (pp. 291–2), “The metaphor selects, emphasizes, suppresses, and organizes features of the principal subject [i.e. man] by implying statements about it that normally apply to the subsidiary subject [i.e. wolves].” You can paraphrase the content of the “man is a wolf” metaphor with a list of the propositions conveyed. The problem is that, when you’re confronted with the metaphor, you’re given a sense of which of these propositions have most weight. Given the various systems of commonplace associations in play, which of these propositions did you infer most strongly and most quickly? A sanitized paraphrase will merely give you all of the propositions that were conveyed by the metaphor, but it will give them each an equal weight. According to Black, this isn’t easily recovered with some sort of further proposition telling you how to weight all of the resulting propositions, because these matters are very subtle. Of course, it would be absurd to suggest that R. Yossi had prefigured any of the specific mechanics of Black’s view of metaphor. And yet, what R. Yossi’s metaphor does illuminate is this: metaphors are used not merely to convey first-order content, but in order to respect second-order relations that obtain between different elements of that first-order content. The handles on the basket allow you to move the fruit, not one by one, but as they are; in the arrangement and formation in which they’re currently piled. Moving the fruit in this basket with its handles preserves the structure of that pile of fruit, which could easily be destroyed if you moved the fruit one by one. It seems to me that R. Yossi agrees with Max Black, at least to the extent that they both see metaphors playing a role, not just in conveying propositional content, but in imposing some meta-structure upon that propositional content. I move on to the next stage of the Midrash: R. Shila said: it is like a large jug of boiling water, and it had no handle with which to move it. A wise man came and made a handle for it and began to move it by way of its handle.

‫א''ר שילא לקיתון גדול שהוא מלא רותחין ולא‬ ‫היה לו אזן להטלטל ובא אחד ועשה לו אזן‬ ‫והתחיל להטלטל ע''י אזנו‬

86

Samuel Lebens

R. Shila’s comment is presented as a critical response or emendation to R. Yossi: “No, it’s not a barrel of fruit! It’s a jug of boiling water that gets moved by the handles of the wise man.” On one level, this could be viewed as a disagreement, not about the nature of metaphor, but about the nature of Torah. According to R. Yossi, the Torah contains fruit-like nuggets that can be appreciated, one by one, without the structural metaphors imposed upon the whole by Solomon. According to R. Shila, the Torah viewed not through the prism of Solomon’s metaphors is dangerous: there are no fruit-like nuggets that can be processed or enjoyed in isolation from an appreciation of the whole. R. Shila’s assertion that the Torah is dangerous shorn of later metaphorical and interpretative glosses is reminiscent of other Midrashim with antiSadducee (or anti-Karaite) undertones. For example, according to one Midrash (Tanchuma, Teruma 8), the words of the Pentateuch can be compared to the words of the forbidden woman mentioned in Proverbs 5. Given half the chance, she will lead you astray; to death. You shouldn’t heed her word, nor fall for her temptations. Instead, you should heed the voice of wisdom. The Midrash in question casts the Pentateuch in the role of the forbidden woman, and casts rabbinic interpretation in the role of wisdom. The suggestion is: if you do as the Sadducees and Karaites, and hope to understand the Bible shorn of interpretation, you’ll be lost. Likewise, if you drink the water in R. Shila’s jug, you’ll scald your mouth. Of course, behind their debate about the nature of Torah, there is a debate about metaphor too. A metaphor, according to R. Shila, isn’t used to preserve the internal structure of the contents of the jug. Water has no internal structure comparable to a pile of fruit—or, at least, it doesn’t until you discover the existence of water molecules. For R. Yossi, metaphors help us to perform two jobs: (1) they help us convey, speedily, a great deal of propositional content; (2) they help to convey the internal structure that holds between that propositional content. For R. Shila, a metaphor is simply for the first of these jobs—conveying content. But, even though metaphors do less for R. Shila, their job, on his account, is more important. For R. Yossi, metaphor allows you to perform two jobs that could be performed (albeit clumsily) without metaphor. But, for R. Shila, the content of the Torah is the sort of stuff that simply cannot be moved without a container. Like R. Nachman, R. Shila thinks that, at least when Torah is the subject matter, metaphor is inescapable. Why? It seems as if the content of the Torah just isn’t a normal type of content. The content of this chapter, for example, can be divided into sections, paragraphs, and sentences. But, the content of the Torah, for R. Shila, is different somehow. He’s inviting us to widen our notion of content. Some content can be conveyed in normal sentences. Some can’t. That is why, sometimes, metaphor is essential. Perhaps this prefigures, in some way, Elisabeth Camp’s view (2006), according to which we can use metaphors to ostend towards properties that we don’t currently have the linguistic resources to express without metaphor.

A Commentary on a Midrash

87

The Midrash continues: R. Hanina said: it is like a deep well full of water. And its waters were cold, and sweet, and good. But, nobody was able to drink from it. A man came along and tied string to string, and rope to rope, and drew from the well and drunk. Thereafter, everybody began to draw and drink [from it]. So too, [moving] from word to word, and from mashal to mashal, Solomon was able to understand3 the secrets of the Torah. As it is written, “The Proverbs of Solomon, the son of David, King of Israel: [For learning wisdom and discipline; for understanding4 words of discernment” (Proverbs 1:1–2). [This means]: By means of his mashalim, Solomon came to understand3 the words of the Torah.

‫א ' ' ר ח נ ינ א ל בא ר עמ ו ק ה מל א ה מ י ם ו ה י ו מ י מ י ה‬ ‫צ ונ נ י ן ומ ת ו ק י ם ו טו ב י ם ו ל א ה ית ה בר י ה יכ ו ל ה‬ ‫ ב א אד ם א חד ו ס פ ק ל ה ח ב ל‬, ‫ל שת ו ת מ מנ ה‬ ‫ב חב ל משי חא ב משי חא ו דלה מ מ נה ושתה‬ ‫ כ ך מד בר לד בר‬, ‫ה ת ח י ל ו ה כ ל ד ו ל י ן ו ש ו ת י ן‬ ‫ממשל למשל עמד שלמה על סודה של תורה‬ ‫דכתיב ''משלי שלמה בן דוד מלך ישראל ]לדעת‬ ‫חכמה ומוסר להבין אמרי בינה'' ע''י משלותיו של‬ ‫שלמה עמד על ד''ת‬

It is hardly surprising that this suggestion is attributed to R. Hannina. R. Hannina is the thinker responsible for perhaps the most apophatic moment in the entire Babylonian Talmud (Tractate Brachot 33b). When he heard an unnamed Jew leading the communal prayers and adding new superlatives to the officially sanctioned liturgical descriptions of God, R. Hannina waited until the man had finished and then asked him sarcastically if his finishing was supposed to indicate that he had managed to complete an accurate and adequate description of God. R. Hannina goes on to say that even the words that are officially sanctioned are actually offensive to God, but since we have to say something, and since Moses formulated the relevant list of superlatives, we say what we have to say, and no more. R. Hannina’s complaint is based upon his assumption that even the most accurate praise we could coin in our own language would be like praising a king who has a tremendous collection of gold for all of the silver he had. Maimonides, it seems to me, was not misreading this Talmudic story when he explains that, according to R. Hannina, using words of human language to talk about God is simply to use the wrong sort of currency: silver instead of gold.⁸

⁸ Maimonides, Guide to the Perplexed, I.59 (1974: 142–3).

88

Samuel Lebens

In our Midrash, the same rabbi implies that the content of the Torah lies beyond the reach of any word; and even beyond the reach of any metaphor. You have to tie metaphor to metaphor, and only then will you be able to access the water. Here, R. Hannina presents us with something of an antidote to his apophaticism. True, there may be things that lie beyond the reach of literal language. But certain types of metaphor may be of use. An entrenched metaphor is one that can’t be faithfully cashed out without reference to further metaphors. When I say that so-and-so has a cold heart, my metaphor can be cashed out metaphor-free via the following translation: So-and-so lacks compassion; thus, my metaphor wasn’t entrenched. But, when Romeo describes Juliet as the sun, he says something that we struggle to translate without recourse to further metaphors: his life revolves around her; she sustains him; she gives him warmth and light; life without her would be dark. Some of these metaphors can be translated, in turn, into metaphorfree sentences; some may give rise, in their explanation, to new metaphors; either way, the first metaphor was entrenched. A metaphor is entrenched when its explanation requires at least one more metaphor. The chain of metaphors in an entrenched metaphor supervenes upon a chain of associations: the mind moves from the sun, to warmth and light, and from there to sustenance, etc. A chain of associations moves in an order; it is, in some sense or other, a directional affair. Negative theology, especially as developed by Maimonides, tries to point us towards the ineffable God. Maimonides’ negations move in a very specific order. First we deny that God has eyes, recognizing that the Bible’s talk of his eyes is supposed to indicate that God can see. Then we deny that God can see, recognizing that our earlier claim was merely indicating that he has knowledge of our actions. Then we deny that he has knowledge of our particular actions, recognizing that our earlier claim was merely intended to communicate his perfection. By telling us all the things that we shouldn’t say about God, and by doing so in a specific order, we are lead in a direction that supposedly transcends the limits of language, towards a God who cannot be spoken about. R. Hannina’s claim is that entrenched metaphor is actually a more powerful vehicle for performing the same feat. By moving in steps, in a certain direction, we give rise to this notion of pointing; where Maimonides points with a chain of negations, R. Hannina points with a chain of associations. Perhaps the idea of metaphors pointing beyond our linguistic capabilities develops further Camp’s notion of metaphors that ostend towards things that we can’t currently name. The view here, unlike the views of R. Yossi and R. Shila, is that metaphor doesn’t contain the content that it wants to convey. Even if the content in question cannot be squeezed into a proposition that we could grasp, we can still be pointed in the direction of that content with a potentially infinite chain of associations: metaphors within metaphors.

A Commentary on a Midrash

89

We can now move on to the final section of the Midrash: Our Rabbis say: don’t look lightly upon this notion of the mashal. For, by way of the mashal, a person is able to understand3 the words of the Torah. It is like a king who lost some gold in his house, or a precious jewel. Doesn’t he find it using a wick that’s worth a penny? Likewise: you shouldn’t look lightly upon this notion of the mashal because, by using the mashal, a person can understand3 the Torah. Know that this is so, for Solomon understood3 the subtleties of the Torah by way of this notion of the mashal.9

‫ור ב נן אמ ר ין א ל יה י ה מש ל הז ה ק ל ב עי נ יך‬ , ‫ש ע' ' י ה משל הז ה אדם י כול לע מוד בד' 'ת‬ ‫משל ל מלך שאבד זה ב מב יתו או מר גלי ות‬ ‫טובה לא ע''י פתילה כאיסר הוא מוצא אותה‬ ‫כך המשל הז ה ל א י היה קל בע י ניך ש ע' ' י המ של‬ ‫ תדע לך ש הוא כן שהר י‬,‫אדם עומד על ד'' ת‬ ‫שלמה ע''י המשל הזה עמד על דקדוקיה של‬ .‫תורה‬

The metaphor of the wick has a great deal in common with the metaphor of R. Hannina. Both disagree with the notion that a metaphor somehow contains the content it wants to convey; instead, it points you towards the content it wants you to apprehend. In this respect, both R. Hannina and the rabbis pre-echo the approach that Donald Davidson adopts towards metaphors and their meanings. There is a temptation, when thinking about metaphors, to say that they contain two layers of meaning. When I say that, “Peter has a cold heart,” my words have a literal meaning and a metaphorical meaning. The literal meaning, which I didn’t mean to convey, concerns the temperature of Peter’s cor humanum. The metaphorical meaning, which I did intend to convey, concerns Peter’s character. Donald Davidson (1978) rejects this picture. Words just mean what they mean. There are no two layers of meaning. There is only literal meaning. Davidson brings a number of arguments to motivate his peculiar thesis. One of his central arguments has been usefully paraphrased by Marga Reimer (2001), in terms of the following modus tollens: (4)

(5)

If a metaphor had a metaphorical meaning in addition to its literal meaning, then it would be possible to give literal expression to this (putative) meaning. It is not possible to give such a complete non-metaphorical paraphrase for a metaphor.

⁹ A textual matter that isn’t clear here is whether the rabbis are saying, “don’t look lightly upon this particular mashal,” i.e., upon the extended metaphor of the Song of Songs, in particular, or whether they’re saying, as I’ve provisionally translated it, “don’t look lightly upon this notion of the mashal,” i.e., don’t belittle the power of metaphors/parables in general. The paragraph could be read either way.

90

Samuel Lebens (6) Conclusion: a metaphor has no special meaning above and beyond that which is expressed by its literal meaning.

In order to undermine this argument, we could claim that meaning isn’t always sentential in its form; if that’s the case, then it won’t be true that a meaning/proposition can always be given a literal expression. Just because I can’t paraphrase the metaphorical meaning of my words into the literal meaning of some other words, it doesn’t mean that there was no metaphorical meaning to begin with; not all meaning can be stated literally. Reimer defends Davidson against this charge. If we think that some meanings can be put into literal words and that some meanings can’t be put into literal words, then we lose sight of an important distinction. Indeed, it is clear that Davidson doesn’t deny that metaphors are representational; he isn’t trying to deny that Romeo was trying to represent the world in a certain way when he described Juliet as the sun. Davidson is, instead, trying to distinguish between propositional content and non-propositional content. Calling both sorts of content, meaning, threatens to blur the distinction. Some content is well placed to be expressed by propositions; some content isn’t, and it might even be deceptive to call it “content” or “a meaning,” because that implies that it is some neatly delineated bundle of information, when in fact, we might be talking about something that has no formal end; hence the impossibility of paraphrasing a metaphor (or at least many metaphors). Metaphors are, according to Davidson, what we can use when we want to represent something about the world that no proposition can contain. Meaning is something quantifiable. The metaphor just means what the words say. We should, instead, be talking about the metaphor’s point. Why did Romeo say those odd words about Juliet being the sun, when he knew that she wasn’t a burning ball of gas? What was his point? When we try to say what a metaphor “means,” we soon realize there is no end to what we want to mention . . . How many facts or propositions are conveyed by a photograph? None, an infinity, or one great unstatable fact? Bad question. A picture is not worth a thousand words, or any other number. Words are the wrong currency to exchange for a picture. (Davidson 1978: 46–7)

For R. Yossi and R. Shila, the content conveyed by the metaphor is in the metaphor: the basket contains the fruit; the jug contains the water;¹⁰ but, for R. Hannina and the rabbis, the metaphor leads you to find the body of water or the ruby that lies beyond. In this respect, R. Hannina and the rabbis are proto-Davidsonians.

¹⁰ Perhaps I’m being unfair here to the sophistication of R. Yossi and R. Shila. To be fair to them, the jug and the barrel are not supposed to represent Solomon’s metaphor so much as the handle. In this paragraph I’m choosing to overlook that distinction as not pertinent to their point.

A Commentary on a Midrash

91

Where R. Hannina and the rabbis seem to come apart is on the notion of cheapness. The rabbis’ metaphor allows for the possibility that once you’ve understood what the metaphor was trying to convey, you can throw the metaphor away. Once you realize that talk of God’s hand is a metaphorical device for conveying information about his providence, you can discard all talk of his hand. Sometimes, Maimonides seems to adopt this attitude towards metaphors.¹¹ R. Hannina’s illustration seemingly gives the metaphor a longer life of service. A chain of rope at a well can be used many more times than a wick. Furthermore, if we take seriously the notion of content that can only be grasped via chains of association, then even the wisest of the wise will need to use those chains. Without the candle, you could stumble in the dark until you find what you’re looking for with your groping hands. Without the ropes, on the other hand, the water in that well remains inaccessible. Another element of the Midrash calls out for explanation: its collection of synonyms for understanding. The following phrase appears with exactly the same Hebrew formulation within the R. Nachman section of the Midrash and within the R. Yossi section of the Midrash:¹² “Until the rise of Solomon, nobody was able to understand₁ words of Torah. After Solomon arose, everybody began to understand₂ the Torah.” The first verb for understanding is lahaskil. The second verb for understanding is lisbor. What are these two types of understanding? Philosophers often refer to belief, knowledge, and understanding (among other things) as propositional attitudes. When I believe, or know, or merely understand the claim that Paris is the capital of France, then there needs to be a proposition—the proposition that Paris is the capital of France—and, I need to be standing in a certain relation to it. Furthermore, philosophers generally argue that knowledge is just a very privileged form of belief. Knowledge is a belief that is both true and well justified. So, it turns out that knowledge is also a propositional attitude; the attitude of belief plus some other stuff. In order to stand in the knowledge-relation to a proposition, you must be standing in the belief-relation to that proposition, and, in order to stand in the belief-relation to a proposition, you have to stand in the relation-of-understanding to that proposition: you can’t straightforwardly believe a proposition that you don’t understand.

¹¹ In the introduction to his Guide, Maimonides argues that once a metaphor has been cashed out in terms of a literal analogue, the image presented by the metaphor itself loses all of its worth (1974: 11). He then argues that with a particularly well-constructed metaphor, the worth of the metaphor can be compared to the worth of silver, whereas the worth of its literal analogue can be compared to the worth of gold (1974: 12). And, even then, the lasting worth of the metaphor may merely lie in its social utility when taken literally by the ill-educated. I quote: “Their external meaning contains wisdom that is useful in many respects, among which is the welfare of human societies . . . Their internal meaning, on the other hand, contains wisdom that is useful for beliefs concerned with the truth as it is.” ¹² Some of the remainder of this chapter echoes parts of Lebens 2013.

92

Samuel Lebens

Fighting against this standard view, Eleonore Stump (2010: chpts. 2, 3, and 4) argues that some types of interpersonal knowledge are non-propositional.¹³ She motivates her claim by comparing neuro-typical people and people with autism. Commonly a person on the autistic spectrum will find it hard to infer your emotional state from your facial expression. A neuro-typical person, on the other hand, doesn’t feel that they have to work much out, in order to see that another person is happy or angry. Contemporary neuroscience seems to indicate that the processes involved in a neuro-typical person and in an autistic person, when registering the emotions of another, are mediated by quite different neurological mechanisms. When a neuro-typical person sees somebody smiling, mirror neurons in the parts of their brain that are generally responsible for making them smile, will fire. Though we don’t understand the mechanisms well,¹⁴ what does seem to be clear is this: a neuro-typical person seems to have something that you might want to call direct access to another person’s happiness. But, the autistic person, who we now know suffers from decreased mirror neuron activity,¹⁵ has to work out that you are happy. They don’t have any direct access. We could put it this way: the neuro-typical person simply sees your happiness; the autistic person, lacking in mirror neuron function, doesn’t see your happiness. At best, he or she works out that you’re happy. The autistic person has propositional knowledge of your happiness. The neuro-typical person’s knowledge of your happiness, on the other hand, isn’t mediated by any proposition. Against this background we can return to our two verbs lahaskil and lisbor. Lahaskil, I would argue, is the normal propositional form of understanding. ¹³ The view that there can be such a thing as non-propositional knowledge would strike some contemporary epistemologists as something akin to a category error (although see, footnote 21, below). Nevertheless, it has long been a mainstream position in the philosophy of language, and especially in the metaphysics and epistemology of meaning, that a certain species of propositional knowledge (viz. de re knowledge) can only make sense if it is somehow undergirded by a species of non-propositional knowledge. The basic intuition runs as follows: in order to entertain a proposition that is about x, and in order to have epistemic mastery over that proposition, you better already have some sort of cognitive contact with x. How can you assert a de re proposition, or have epistemic mastery over it, if you don’t have some sort of epistemic contact with that which the proposition is about? Since the x in question doesn’t have to be a proposition, the thought is that the first level of epistemic contact, your contact with x, will have to be non-propositional. See, for example: Russell (1912: ch. 5; 1914) and Fitch (1990). Russellian acquaintance is often thought to place the epistemic bar too high. A looser variety of cognitive contact might suffice. David Kaplan (1968) talks about a “rapport” with x; Jaegwon Kim (1977) talks about having “direct cognitive contact” with x; Chisolm (1957) talks about “episemtic intimacy” with x; and John Campbell (2011) talks about a species of acquaintance that’s mediated via a standpoint. Kent Bach (1987: 15) thinks that all such approaches misfire, but he characterizes the approach—and its motivation—well, when he says that “Russell’s doctrine of acquaintance . . . can be said to be to Russell’s semantics what foundationalism is to traditional epistemology” (p. 123, fn. 2). It’s fair to say that non-propositional knowledge is a going concern. ¹⁴ Stump (2010) points out a number of relatively crude philosophical errors made by scientists who are trying to describe these findings; e.g., pp. 69–71. ¹⁵ Ramachandran and Oberman 2006.

A Commentary on a Midrash

93

But the word lisbor is much more exotic. Let’s look at some words that share the same root: • sever, which refers to a person’s facial countenance—the sort of thing that a neuro-typical person can understand directly, but poses real obstacles before an autistic person;¹⁶ • sabar, a great storyteller;¹⁷ • sever, which can mean hope¹⁸—hope is an attitude towards a proposition, but one that doesn’t answer to the normal standards of evidence and warrant. Optimism can be warranted only if you have good reason to believe that there’s a 51 percent chance, or more, of things turning out well. But hope, on the other hand, is often justified come what may, or more accurately, it doesn’t answer straightforwardly to justification or warrant; we often hope against all odds.¹⁹ And thus, the word, lisbor, as a form of understanding, conjures up the image of somebody who understands people; somebody who understands faces; somebody who tells good stories; somebody whose attitudes don’t answer to regular epistemic norms. Most of these things are not propositional. You’d have to have a very crude philosophy of art if you think that a story can be reduced to a list of propositions. And, even though hope is a propositional attitude, it certainly isn’t one that conforms to the norms of classical epistemology. Solomon’s greatness, according to this phrase of the Midrash, was that he opened the door to the non-propositional content of the Torah. That the exact same phrase appears in the mouths of R. Nachman and R. Yossi is good reason for thinking that the phrase really belongs to the editor of the Midrash. Perhaps it’s something that all of the personalities in the Midrash could have agreed to, perhaps not, but it certainly seems to be the view of the editor and doesn’t seem to contradict anything said by any of the particular rabbis. What it says is this: Whatever else a metaphor may do—whether it contains propositional content or points you to some; whether it contains its own type of ineffable content, or gestures in the direction of the unsayable—it also has the power to transmit non-propositional knowledge. For instance, religiosity doesn’t just depend upon the knowledge of certain propositions—propositions of the form “God is Φ”—religiosity also depends upon the personal, non-propositional, knowledge of God (Lebens 2013). Solomon’s metaphors, whatever else they could do, and however they managed to do it, also had the power to transmit that sort of personal knowledge of God. ¹⁶ This word is used with this meaning in Mishna Avot 1:15. ¹⁷ This word is used with this meaning in Tractate Sofrim 16:7. ¹⁸ This word is used with this meaning in Bereshit Rabba 91:1. ¹⁹ I first heard of this distinction between hope and optimism from Lord Jonathan Sacks, the Chief Rabbi Emeritus of the UK.

94

Samuel Lebens

The only other type of understanding explicitly²⁰ mentioned by the Midrash is understanding₃—my translation of the phrase ‫עמד על‬, which literally means stood upon. The claim of the Midrash is that, in virtue of his metaphors, Solomon stood upon the secrets of the Torah (‫ ;)סודה של תורה‬he stood upon the subtleties of the Torah (‫)דקדוקיה של תורה‬. It’s interesting to note how English describes cognitive mastery as standing under something (i.e., understanding) where rabbinic Hebrew describes cognitive mastery as standing over something. But, as we shall see, perhaps there’s a big difference, in this Midrash, between understanding and overstanding; although I admit that my comments on this distinction are speculative. One type of knowledge regularly claimed to be distinct from propositional knowledge is know-how. Knowing how to play piano doesn’t obviously reduce to the knowledge of a particular set of propositions.²¹ There simply seems to be a gap between knowing any particular propositions about how to play piano, and being able to play the piano. Your knowing how to play piano, more than cognitive mastery over a set of propositions, seems therefore to be, or to require, a disposition to perform certain actions; actions that tend to require training. Perhaps Solomon’s standing over the subtleties of the Torah is just too subtle to reduce to his understanding certain propositions. Something more fine-grained is going on. Solomon has achieved, via his metaphors, a certain sensitivity and sensibility that give him a mastery over the non-propositional content of the Torah. He has achieved a certain vantage point (standing over the terrain) in which he can apprehend things that are too subtle for words to convey; perhaps his new found standing gives him new dispositions. The Midrash has presented us with a number of metaphors for metaphor. Those metaphors express a divergent array of attitudes towards the nature of metaphor, be those attitudes Nietzschean, Blackean, Campean, or Davidsonian. They encode debates about the dispensability of metaphors, their function and the nature of the content that they seek to convey. Furthermore, the editor of the Midrash seems set upon one thesis that is compatible with all of the various views on offer: whatever else metaphors are good for, they have the (mysterious and still unexplained) power to transmit non-propositional knowledge.²²

²⁰ Understanding₄, (‫ )להבין‬which appears in the translation doesn’t appear explicitly in the Midrash, but merely in the continuation of a verse that the Midrash partially quotes. It merits further consideration, how understanding₄ is supposed to relate to understanding₃ (‫)לעמד על‬, given that the verse that includes understanding₄ (Proverbs 1:2) is supposed to motivate the Midrash’s claim that Solomon achieved understanding₃. ²¹ The most prominent defense of intellectualism, the view that know-how reduces to propositional knowledge, can be found in Stanley and Williamson 2001 and Stanley 2011. But the proposal has serious obstacles to overcome: see Bach 2012, Kumar 2011, and Glick 2015— some of these obstacles are alluded to in the continuation of this paragraph. ²² Thanks are due to the many people (too numerous to name) who have taught me Midrash and learnt Midrash with me, in many settings over many years.

A Commentary on a Midrash

95

B I BL I OG R A P H Y Bach, K. (1987) Thought and Reference. Oxford: Oxford University Press. Bach, K. (2012) “Review of: Jason Stanley’s, Know How.” Notre Dame Philosophical Reviews, https://ndpr.nd.edu/news/know-how-2/. Black, M. (1954–55) “Metaphor.” Proceedings of the Aristotelian Society 55: 273–94. Boyarin, D. (1994) Intertextuality and the Reading of Midrash. Bloomington: Indiana University Press. Camp, E. (2006) “Metaphor and that Certain ‘Je Ne Sais Quoi’.” Philosophophical Studies 129: 1–25. Campbell, J. (2011) “Consciousness and Reference.” In: B. McLaughlin, A. Beckermann, and Sven Walter, eds., The Oxford Handbook of Philosophy of Mind. Oxford: Oxford University Press. Chisholm, R. (1957) Perceiving: A Philosophical Study. Ithaca: Cornell University Press. Davidson, D. (1978) “What Metaphors Mean.” Critical Inquiry 5(1): 31–47. Fitch, G. W. (1990) “Thinking of Something.” Noûs 24: 675–96. Freedman, H. and Simon, M. (trans.) (1983) Midrash Rabbah, volume 9 of 10. London: Soncino Press. Glick, E. (2015) “Practical Modes of Presentation.” Noûs 49(3): 538–59. Hinman, L. (1982) “Nietzsche, Metaphor and Truth.” Philosophy and Phenomenological Research 43(2): 179–99. Jastrow, M. (1903) A Dictionary of the Targumim, the Talmud Babli and Yerushalmi, and the Midrashic Literature. New York: G. P. Putnam’s Sons. Kaplan, D. (1968) “Quantifying in.” Synthese 19: 178–214. Kellner, M. (1999) Must a Jew Believe Anything? London: The Littman Library of Jewish Civilization. Kim, J. (1977) “Perception and Reference without Causality.” Journal of Philosophy 74: 606–20. Kumar, V. (2011) “In Support of Anti-Intellectualism.” Philosophical Studies 152(1): 135–54. Lakoff, G. and Johnson, M. (2003) Metaphors We Live By. Chicago: University of Chicago Press. Lebens, S. (2013) “Epistemology of Religiosity: An Orthodox Jewish Perspective.” International Journal for Philosophy of Religion 74(3): 315–32. Maimonides, M. (1974) Guide of the Perplexed, trans. Shlomo Pines. Chicago: University of Chicago Press. Ramachandran, V. and Oberman, L. (2006) “Broken Mirrors: A Theory of Autism.” Scientific American 64: 62–9. Reimer, M. (2001) “Davidson on Metaphor.” Midwest Studies in Philosophy 25: 142–55. Russell, B. (1912) The Problems of Philosophy. Oxford: Oxford University Press. Russell, B. (1914) “On the Nature of Acquaintance.” Monist 24: 435–53. Stanley, J. (2011) Know How. Oxford: Oxford University Press. Stanley, J. and Williamson, T. (2001) “Knowing How.” Journal of Philosophy 98: 411–44. Stern, D. (1994) Parables in Midrash: Narrative and Exegesis in Rabbinic Literature. Cambridge, MA: Harvard University Press. Stump, E. (2010) Wandering in Darkness: Narrative and the Problem of Suffering. Oxford: Oxford University Press.

6 Catharsis and the Epistemology of Repentance in the Talmud and Jewish Law Dani Rabinowitz

At its core, Judaism is wedded to an austere form of legalism. All adult Jews, apart from a limited number of exceptions, are required to observe a vast array of relevant laws. Success in this endeavor is handsomely rewarded and failure severely punished. Fortunately, this system involves a divine pardon for those individuals who repent. Section 6.1 discusses the mechanics of this clemency as it unfolds in the hands of Moses Maimonides. On the back of a Talmudic passage, Section 6.2 introduces and explores an epistemic puzzle underpinning Maimonides’ conception of the divine clemency achieved by repentance. The chapter concludes with a reading of the Talmudic passage through the lens of recent nonstandard views on the semantics of “knows.”¹

6 . 1 . T H E DY N A M I C S O F REP E N T A N C E An austere form of legalism lies at the heart of Judaism. Apart from a limited set of exceptions, e.g. diminished mental capacity, every adult Jew is required to abide by a large number of laws. The full gamut of these laws has an interesting and complex structure. For present purposes, there is a marked distinction between laws that are of biblical origin and those that have their ¹ This chapter is an extension of Rabinowitz (2018) which focuses on applying Timothy Williamson’s views on the safety condition for knowledge (Williamson 2005, 2009a, and 2009b) to the nature of repentance within the Jewish tradition. This chapter turns its epistemic focus elsewhere in an attempt to round out the full picture that emerges once epistemic considerations are brought to bear on the nature of repentance. The first part of that paper features here as it is essential for building the case for the epistemic work done in this chapter. Dani Rabinowitz, Catharsis and the Epistemology of Repentance in the Talmud and Jewish Law. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0006

Catharsis and the Epistemology of Repentance

97

roots in rabbinic fiat. The former are typically treated with more severity and take precedence over the latter. Both sets of laws can be further divided into (i) positive commandments (requiring some action) and negative commandments (prohibiting some action), and (ii) obligations towards God and obligations towards one fellow. While there is some seasonal fluctuation in the number of laws live at any one moment, e.g. the consumption of bread is only prohibited during Passover, the daily set of obligations is remarkably extensive. Further refinements depend on age, gender, location, and tribal affiliation insofar as certain laws only pertain to adults, women, inhabitants of the land of Israel, or priests. Needless to say, almost every sphere of the human condition is regulated in one way or another.² A central feature of this legalism is the judgment accompanying the relevant success or failure in respect of these obligations. A final judgment, regarding the afterlife, takes place at the moment of death while an annual judgment, concerning the nature of the year ahead, takes place on Rosh Hashanah (Jewish New Year) and is concluded on Yom Kippur (Day of Atonement). Maimonides describes the process as follows: A person whose merits exceed his sins is righteous. A person whose sins exceed his merits is wicked. When [one’s sins and merits are] equal, one is termed a beinoni [in-betweener] . . . Just as one’s merits and sins are weighed at the time of one’s death, so, too, the sins of every inhabitant of the world together with his merits are weighed on the festival of Rosh Hashanah. If he is found righteous, he is sealed for life. If he is found wicked, he is sealed for death. A beinoni’s verdict remains tentative until Yom Kippur. If he repents, he is sealed for life. If not, he is sealed for death.³

Repetitive cycles of fastidious bookkeeping are a central element of the Jewish calendar. The meticulous weighing of sins and good deeds holds the key to life, both temporal and eternal.⁴ Fortunately, the system provides ample opportunity for one to forestall a punitive judgment. Repentance is the vehicle via which one can obtain atonement for past misdemeanors. The scope of repentance is quite remarkable insofar as a single act of repentance can cover the full extent of one’s life: Even if one transgressed throughout one’s entire life and repented on the day of one’s death and died in repentance, all of one’s sins are forgiven as it [Ecclesiastes ² Given the overwhelming extent of the legal apparatus at the center of Judaism it is hardly surprising to find some openly admitting that legal concerns monopolized rabbinic energies at the expense of rigorous Jewish philosophical theology (Halivni 1991: 89). ³ Code, Laws of Repentance 3.1–3 (all refs. to Code are from Maimonides 1997). This description also generates vexing metaphysical problems, viz. at what moment in time does this judgment occur? Not only does it raise the specter of the problems associated with God’s relationship to time, it also generates a worry that people will fail to repent before the appropriate time of the judgment. These concerns, however interesting and relevant, are beyond the confines of this chapter. ⁴ The calculation of merits vs. sins is not merely numerical in nature for a severe sin can outweigh many good deeds, and vice versa (Code, Laws of Repentance 3.1–3).

98

Dani Rabinowitz

12.2] states: “Before the sun, the light, the moon, or the stars are darkened and the clouds return after the rain . . . ” This refers to the day of death. Thus, we can infer that if one remembers one’s Creator and repents before one dies, one is forgiven.⁵

It is interesting to note that repentance is not taken to be a mere codicil to the law providing for extra-judicial clemency. Rather, as Maimonides writes, one is commanded to repent (Code, Laws of Repentance 1.1). Failure to repent is itself a sin. On this picture repentance, while a panacea of sorts, is an integral part of the legalism described above. Given the stakes, it is hardly surprising that Maimonides goes into some detail when discussing the nature of repentance. In a somewhat rare turn of events, Maimonides devotes a lengthy subdivision of the Mishneh Torah, his magnum opus of Jewish law, to the elucidation of a single biblical obligation, in this case the obligation to repent. For present purposes, the following analysis can be gleaned from Maimonides:⁶ (REPENTANCE) God forgives subject S for sin x if and only if: 1. S stops committing sin x; 2. S removes thoughts of sin x;⁷ 3. S resolves to never commit sin x in the future; 4. God knows that S’s resolve in (3) entails that S will never repeat sin x in the future; 5. S regrets sin x; and 6. S verbally confesses as follows: “I implore You, God, I sinned, I transgressed, I committed iniquity before You by doing sin x. Behold, I regret and am embarrassed by my deeds. I promise never to repeat sin x again.” The necessary and jointly sufficient conditions for a single act of repentance call out for a significant decree of change—one’s doxastic and emotional state must undergo a transformation that leads to a change in one’s future behavior. And these changes must be accompanied by an open and honest “fessing up” to God. One false step in the future, one minor backsliding in a moment of weakness, invalidates what appears to be a sincere moment of contrition in the present. An act of penitence requires, to use the graphic biblical metaphor, a radical cut, a circumcision of the heart (Deuteronomy 30.6).⁸ ⁵ Code, Laws of Repentance 2.1. The story of R. Dordaya in B.T. Avodah Zara (17a) exemplifies this principle. Thanks to Samuel Lebens for this reference. ⁶ Code, Laws of Repentance 1.1 and 2.2. ⁷ By this Maimonides assumedly means that either the person refrains from contemplating the repetition of that sin or the person repents to the extent that the thought of committing that sin no longer appeals to the person and is thereby absent from her thoughts. ⁸ One may argue that Maimonides admits of repentance in degrees such that REPENTANCE lays down the necessary and jointly sufficient conditions for complete repentance only. Such a reading can be motivated by Maimonides’ use of the term “complete repentance” and a brief

Catharsis and the Epistemology of Repentance

99

Before considering some philosophical points associated with the dynamics of repentance, as detailed by Maimonides, it is important to note that atonement is not the sole aim of repentance. Rather, atonement is the key ingredient of spiritual catharsis. The cathartic effect of repentance, which will be the focus of discussion from Section 6.3 onwards, is extolled in several key biblical verses: For on this day [Yom Kippur] he [the high priest] shall provide atonement for you to cleanse you; from all your sins before God shall you be cleansed. (Leviticus 16.30) Abundantly cleanse me from my iniquity, and from my sin purify me. (Psalms 51.4) If your sins are like scarlet they will become white as snow; if they have become red as crimson, they will become [white] as wool. (Isaiah 1.18) With purity and cleanliness they will be cleansed and purified, they will be renewed like the new [angels] of morning, with their stain scrubbed clean. (Amidah, Yom Kippur)⁹

Only once one has been forgiven for one’s sins can one feel cleansed or purged of their weight, freed of their stain. Repentance accordingly performs a dual function—in the legal domain it secures atonement and reward, while in the psychological domain it contributes towards a feeling of spiritual revitalization. The goal of catharsis was captured by a rather bizarre miracle that occurred during the Yom Kippur Temple service. At one point during the high priest’s service, a scarlet strap was tied to the horns of a sacrificial goat, termed the Azazel goat. The high priest then placed his hands on the goat and confessed as follows: I beseech thee God, your people the house of Israel have failed, committed iniquity and transgressed before you. I beseech you, God, atone the failures, the reference to levels of repentance (Code, Laws of Repentance 2.1). Admittedly, a gradable view of repentance can be used to answer some of the concerns raised in this chapter about REPENTANCE and is worthy of a thorough investigation. Indeed, the thrice-repeated daily, silent prayer (Amidah) contains a plea for a return to God in complete/full/perfect repentance. Three lines of thought can be pursued in response to this claim. First, some of the philosophical problems troubling REPENTANCE will similarly trouble an account of partial or incomplete repentance. Second, one could read Maimonides’ reference to “complete repentance” and levels of repentance as his insistence that only complete repentance will suffice for atonement (since refraining from the sin in similar circumstances is merely a restatement of condition (1) of REPENTANCE). Finally, those advocating a gradable view of repentance owe us an equally plausible and corresponding account of partial and complete divine forgiveness. Maimonides does seem to make a nod towards gradable levels of forgiveness in 1.4. when he speaks about “complete atonement” for those who disgrace God’s name. (For psychological readings of Maimonides’ use of the phrase “complete repentance,” see R. Yitzchak Hutner (Pakhad Yitzchak, Yom HaKippurim, ch. 19) and R. Joseph B. Soloveitchik (Peli 2000: 187–227).) ⁹ See Artscroll Makhzor, Yom Kippur, pp. 568–9.

100

Dani Rabinowitz

iniquities, and the transgression which your people, the house of Israel, have failed, committed, and transgressed before you, as it is written in the Torah of Moses, your servant, saying: “For on this day he shall provide atonement for you to cleanse you; from all your sins before God shall you be cleansed” (Leviticus 16.30).¹⁰

The Azazel goat was then pushed off a cliff in the desert.¹¹ When the strap turned white the nation rejoiced in the knowledge that their sins had been forgiven, as extolled in the Amidah recited on Yom Kippur: “[The nation] rejoiced when informed that the scarlet wool had turned snow white.”¹² Catharsis is the goal, repentance the key.¹³

6 . 2 . T A L M U D A N D E P I ST E M OLO G Y The core epistemic problem thrown up by Section 6.1 is as follows. Suppose that S commits sin x and then attempts to repent over x by fulfilling the conditions of REPENTANCE. Once S has fulfilled those conditions and believes as much, is it the case that S knows that S has been forgiven for sin x (for repentance entails forgiveness)? The central question requires some clarification and finessing. First, talk of knowledge attributions or denials is facile without reference to method individuation since beliefs are formed via methods of belief formation. It is such methods that deliver beliefs that are safe, sensitive, warranted, or whatever. As will become apparent below, method individuation is an integral part of the mechanics of knowledge attributions.¹⁴ For this reason the focus of this chapter will be knowledge of satisfaction of REPENTANCE or knowledge of forgiveness via the method of introspection. While “introspection” will itself require further refinement (e.g. introspection while drunk counts as a different method to introspection while sober), that introspection is the method of choice is warranted from a close reading of the Talmud itself. Recall from Section 6.1 that knowing one has satisfied the conditions of repentance is necessary for catharsis. Knowledge of forgiveness is therefore essential for a

¹⁰ B.T. Yoma 66a. ¹¹ Code, Laws of the Yom Kippur Service. There is a strong thematic connection between the Azazel sacrifice and the Atonement in Christian theology since both involve penal substitution. The problems identified by David Lewis (1997) for the latter will assumedly trouble the former as well. More on this goat, termed the Azazel goat in Sections 6.2 and 6.3. ¹² Artscroll Makhzor, Yom Kippur, pp. 568–9. ¹³ See Rabinowitz (2017) for a discussion of various philosophical problems facing the picture of repentance painted in this section. ¹⁴ See Rabinowitz (2011) for a demonstration of such mechanics in the context of the safety condition for knowledge.

Catharsis and the Epistemology of Repentance

101

healing of one’s spiritual state. Given the manner in which the Talmud describes the miracle of the Azazel strap, knowing that one had been forgiven required witnessing the strap turn from crimson to white. At first, according to the Jerusalem Talmud (Shabbat 9.3), one would tie the crimson strap to one’s window on Yom Kippur. If one was found to be righteous, one’s strap miraculously turned white. If one was found to be wicked, then one’s strap remained crimson or became more red according to some opinions in the Talmud (loc. cit.). However, this led to some people becoming embarrassed when their strap did not turn white when their neighbor’s did. To prevent this kind of embarrassment from occurring, the practice was replaced by the tying of a single strap to the Temple door. Moving the strap from the house to the Temple had two epistemic consequences: (A) In so doing, the sign of individual divine forgiveness was removed. It is unclear whose forgiveness (or lack thereof) was indicated by the strap on the Temple door. In light of the verses from Leviticus 16.30 (quoted above), we are led to believe that the nation as a whole had a persona and the strap’s color was an indication of the nation’s righteousness (or lack thereof).¹⁵ It was evidently not the case that the color of the strap indicated the spiritual state of any one particular individual. (B) Knowing that one had been forgiven had been a matter of perception viz. witnessing the color of one’s strap. Once one’s strap was removed from the household, knowledge of forgiveness, or the lack thereof, became a matter of introspection for there was no other method available to the individual by which such knowledge could come to hand. (I’m assuming that knowledge via prophecy or testimony from a prophet etc. was unavailable in the quotidian case.) The second and epistemically more complex refinement of the central question concerns the relationship between a particular sin and catharsis. From the biblical verses mentioned in Section 6.1, catharsis is achieved from knowledge of overall forgiveness. While it is true that with respect to a single sin one might be able to achieve a form of catharsis with respect to that individual sin by knowing that one has fulfilled REPENTANCE with respect to that sin, the kind of catharsis described in the Bible, and which is the topic of this chapter, is a state achieved at the culmination of Yom Kippur with

¹⁵ A number of complex mereological issues plague this kind of thinking, e.g., insofar as sins and good deeds are concerned, in what does a national persona consist for the purposes of adjudication apart from the collective sin–good deeds profiles of the individual members of the nation? R. Joseph B. Soloveitchik was interested in issues, both legal and philosophical, relating to the different planes of forgiveness—individual and communal (Peli 2000: 107–43). While he speaks of the nation as a whole having a distinct “mystical kind of self, as an independent entity in its own right” (p. 118), he unfortunately doesn’t develop that notion further.

102

Dani Rabinowitz

respect to all of one’s sins. It must be stressed that the crimson strap only indicated that overall the individual was righteous (by turning white) or wicked (by remaining crimson or becoming more red). It said nothing about particular sins or merits. Importantly, one cannot achieve this kind of catharsis by tallying up the number of one’s sins and knowing that one has fulfilled REPENTANCE with respect to the majority of them for Maimonides specifically tells us that one cannot appreciate the mechanics of the metric by which God weighs sins and merits.¹⁶ Whether or not Maimonides appreciated as much, but the skepticism entailed by this comment cuts deep for even the person for whom it is evident that their merits numerically outstrip their sins cannot know that overall they have been forgiven for the weight of a seemingly minor infraction may outweigh the tally of numerous merits. And a failure to satisfy REPENTANCE for that minor infraction may eclipse the weight of merits on the merit pan of the scale. Similar considerations arise with respect to the person for whom it is evident that their sins numerically outstrip their merits for one of their merits may eclipse all of their sins. One can therefore only obtain the knowledge required for catharsis by knowing, with respect to each individual sin that one has committed, in that year that one has fulfilled REPENTANCE with respect to each of those sins. With this knowledge in hand one can infer, and thereby come to know, that one’s merits exceed one’s sins. One can thereby come to know that one has achieved a favorable judgment. Catharsis ensues. With this background in mind, I propose that the following Talmudic debate can be read as addressing the epistemic issue at hand: The Rabbis taught: “Transgressions that one confessed this Yom Kippur one should not confess them again on another Yom Kippur. But if one repeated the sins, one needs to confess again on another Yom Kippur. And if one did not repeat them and yet confesses them again, regarding such a person Scripture says, ‘Like a dog that returns to its vomit so is a fool who repeats his foolishness’ (Proverbs 26.11).” Rabbi Eliezer the son of Jacob says: “All the more so is one praiseworthy, as it is stated, ‘For I recognize my transgressions and my sin is before me always’ (Psalms 51.5). So then what do I [Rabbi Eliezer] establish as the subject of the verse ‘like a dog that returns to its vomit . . . ?’ That verse can be explained in accordance with Rabbi Huna’s observation, as Rabbi Huna said, ‘Once a person commits a sin and repeats it, it becomes permitted to him.’ ” (B.T. Yoma 86b)

The rabbis and R. Eliezer are clearly arguing over something. But what exactly? It’s not entirely clear why S should repent for sin x in year N when S has not repeated sin x in year N and has already repented for sin x in year N–1. Needless and repetitive self-flagellation of this sort is bizarre. It is obvious

¹⁶ Code, Laws of Repentance 3.1–3.

Catharsis and the Epistemology of Repentance

103

that the debate can be read independent of epistemic considerations. For instance, the rabbis and R. Eliezer might differ as to the relationship between repentance and propitiation. R. Joseph B. Soloveitchik differentiates two types of confession—a confession that is part of repentance in contradistinction to a confession as propitiation: “If confession is the ultimate act in the process of repentance, what place is there for ‘confessing again’ if one ‘remains steadfast in his repentance?’ We may thus infer that confession has another aspect” (Peli 2000: 254–8). When viewed in this light, the rabbis dispute the necessity of repetitive repentance as an act of propitiation whereas R. Eliezer considers confession as both an element in repentance and as an act of propitiation. For Rabbi Eliezer, a sin leaves a stain that is never quite removed by atonement; rather, the repentant must consistently aim to repair the breach in her relationship with God via the mechanism of perpetual confession. Despite options in these directions, an epistemic gloss to the Talmudic debate is nevertheless worth pursuing in light of R. Solomon Yitzkhaki’s note on the debate, Yitzkhaki (commonly referred to as Rashi) being the central commentator on the Talmud and Old Testament. Yitzkhaki (B.T. Yoma 86b) with reference to the verse in Psalms 51.5 quoted by R. Eliezer, writes, “I am of the opinion or believe that I have not been forgiven and so the sin is a constant indictment against me.” And in his commentary on Psalms, Yitzkhaki writes on that verse: “Since I regret [my sin] and worry about it, it is as though it is constantly before me, always.” Yitzkhaki introduces an epistemic element to the debate by making reference to the doxastic state of the sinner. In the first instance, the sinner entertains the thought or flat out believes that she has not been forgiven despite her act of repentance. In the second, Yitzkhaki can be read as saying that the sinner is worried that he hasn’t been forgiven despite his repentance. In both cases the sinner’s epistemic state is such that she does not know that she has been forgiven, even if she has. As a precautionary act the sinner repeats her repentance. And so on for every year and for every sin for the remainder of her life. The rabbis, on the other hand, maintain that someone who has fulfilled the necessary and sufficient conditions for repentance does know that they have been forgiven and as such need not repeat their repentance. In current epistemic parlance, we can restate the argument as a difference of opinion as to whether knowledge is closed under the following entailment: (A) I know that I have satisfied conditions (1)—(6) of REPENTANCE with respect to each of the sins {x, x*, x ** . . . } that I committed this past year. (B) If I know that I have satisfied conditions (1)—(6) of REPENTANCE with respect to each of the sins {x, x*, x ** . . . } that I committed this past year, then I know that God has forgiven me for sins {x, x*, x ** . . . }. (C) Therefore, I know that God has forgiven me for sins {x, x*, x ** . . . }.

104

Dani Rabinowitz

The rabbis argue that knowledge is closed under entailment in this case while R. Eliezer denies that (A) is true thereby committing himself to the denial of (C) and, by consequence, the cathartic value of repentance.¹⁷ Since the presence or absence of knowledge in (A) can be accounted for in a variety of ways, there are a number of ways in which one can parse out the epistemology of repentance lying at the heart of this debate. This should not be considered a fanciful exercise in theoretical epistemology but very relevant to the debate itself as the matter has not been resolved in halakha (Jewish law).¹⁸ While the majority of legal authorities rule in accordance with R. Eliezer, an epistemic analysis of this debate is also a means of shedding light on the distinct positions held by the legal scholars on this issue. Those scholars whose positions rest on stronger epistemic foundations will emerge as more compelling. More importantly, those siding with R. Eliezer for epistemic reasons will thereby deny repentance cathartic powers while those who are motivated to support the rabbis’ position for epistemic reasons will secure repentance its very important cathartic function.¹⁹

¹⁷ In recasting the debate in this parlance, the intention is not to anachronistically attribute to its protagonists the alleged epistemic commitments; rather, the intention is to craft their positions in a manner that provides an epistemic sharpness to the debate and, perhaps, gives voice to their underlying concerns in a language and conceptual framework familiar to us. ¹⁸ Both R. Isaac Alfasi and R. Asher ben Yechiel (B.T. Yoma) quote the debate in full. R. Jacob ben Asher (Orach Chayim 607.4) can be read as supporting both views given the language in which he words the law, as the disagreement between R. Joseph Karo and R. Yoel Sirkus indicates. Maimonides (Code, Laws of Repentance 2.8), R. Karo (Orach Chayim 607.4), R. Y. M. Epstein (ibid. 8), R. Israel Kagan (ibid. 13–14), and R.M. Hariri (Mikrei Kodesh, Laws of Repentance 3.8) all rule according to the opinion of R. Eliezer. Most of these scholars are motivated to rule in accordance with R. Eliezer’s opinion because of the legal principle that states that in a matter of dispute the law is according to the opinion of R. Eliezer (B.T. Eiruvin 62b). Matters are complicated because some of those who support R. Eliezer’s opinion, e.g. Karo (ibid.), nevertheless word the entry on this issue using the verb yakhol (can) instead of the more legally binding verb khayav (obligated). In other words, one can confess one’s sins again, though one is not obligated to do so. The manner in which the law is recorded thus makes it difficult to determine how some of the legal scholars stand on this issue. R. Jonah Gerondi and R. Joseph B. Soloveitchik take the opposite view. Gerondi (B.T. Yoma 4:21), living before the above scholars, writes that one should not repeat one’s repentance. In support of his view Gerondi quotes the Midrash on Psalms 32.2 which warns against repetitive repentance. However, matters are complicated because when Gerondi discusses the issue at hand he switches the opinions of the Rabbis and R. Eliezer around. This reversal is also found in the Midrash (ibid.). Owing to this textual anomaly it is possible to argue that Gerondi, like the above scholars, was motivated by the principle in Eiruvin 62b. Finally, today Jews typically recite a fixed communal confession on Yom Kippur according to the text of which the individual repents for a whole gamut of sins, including ones that individual did not fall into again this year or sins that individual never committed. The existence of this communal confession does not make the issue of this chapter irrelevant as one has the entire year to repent for one’s sins. ¹⁹ See Rabinowitz (2017) for a discussion of epistemic readings of the debate involving knowledge of the future, self-deception, the safety condition for knowledge, and epistemic defeat.

Catharsis and the Epistemology of Repentance

105

6.3. KNOWLEDGE AND HIGH STAKES Maimonides’ choice of metaphor in the Laws of Repentance (3.4) gives rise to a fascinating development of Yitzkhaki’s epistemic gloss and which will occupy the remainder of this section: Throughout the entire year, a person should always look at himself as equally balanced between merit and sin and the world as equally balanced between merit and sin. If one performs a single sin, one tips one’s balance and that of the entire world to the side of guilt and brings destruction upon oneself. If one performs one mitzvah [good deed], one tips one’s balance and that of the entire world to the side of merit and brings deliverance and salvation to oneself and others.

Taken at his word, Maimonides hinges the fate of the entire world to a single act of repentance. The individual, by repenting, can tip the scale in favor of life for the world. Conversely, obstinate refusal to repent can tip the scales towards destruction for the individual along with the entire world. The stakes couldn’t be any higher. The relationship between knowledge attributions and stakes has become a major research project in recent years. Some have argued that non-evidential factors salient to the ascriber ought to have some bearing on the truth of knowledge ascriptions. In opposition, others have pushed for the view that it is non-evidential factors salient to the subject of the knowledge ascription that makes for differences in the truth-value of knowledge ascriptions. Both recognize that high stakes are one such factor. The tools of contextualism, the former view, and sensitive invariantism (SI), the latter, provide ample machinery for the development of our Talmudic debate. In light of there being a number of competing accounts within each of these two camps, I have, for strategic purposes, chosen to focus on David Lewis’s contextualist account as he is one of the few contextualists to describe the kinds of rules that govern the non-evidential machinery central to contextualism. These rules will provide the structure around which the discussion in the latter parts of this section will gravitate. Common to contextualism and SI is the claim that in addition to the standard conditions for knowledge, a number of non-evidential factors need to be taken into account when making knowledge ascriptions. However, the major point of contention between the two schools concerns whether it is factors relevant to the ascriber or factors relevant to the subject that make for differences in knowledge ascriptions. Contextualism favors the former and SI the latter. With respect to contextualism, it is evident that contextual factors have a bearing on language. Indexicals are a trivial example of this phenomenon, where the referents of indexicals such as “I,” “she,” and “there” differ depending on the context of use. Similarly, utterances involving gradable adjectives differ in truth-value depending on the context of use. A mathematics professor may look

106

Dani Rabinowitz

at a mathematical problem and truly utter “this is an easy problem.” A freshman mathematics student may look at the same problem and truly utter “this is a difficult problem.” As the standard of difficulty in the first context of utterance is much higher than that in the second, both utterances come out true. The contextualist invites us to think that the truth-value of knowledge ascriptions displays a similar sensitivity to contextual factors relevant to the ascriber. Hence, at time t, in the mouth of one ascriber the sentence “S knows that p” is true while in the mouth of another ascriber in a different context that sentence is false all the while both ascribers are speaking of the same subject S and proposition p at t. The verb “knows,” the contextualist would have us believe, displays sensitivity to contextual factors much like indexicals or gradable adjectives such that the word “knows” expresses a different relation in different contexts. Thus far the “bare bones” of contextualism. According to Lewis (1996), the shift in context is explained by a shift in the different error possibilities relevant to the ascriber. Though by no means an exhaustive list, Lewis provides us with a number of rules that explain why there is the shift in the attributor’s attention to or ignoring of certain error possibilities. Given that the discussion below hinges on these rules, it is important to summarize them here. As shall become evident, these rules are somewhat vague and their application can lead to conflicting results. Lewis (1996: 554–8) begins by mentioning four rules governing which error possibilities the attributor may not properly ignore: (1) The Rule of Actuality: the actual case cannot be ignored. Where the subject’s case and the ascribers case are different, it is the subject’s case that matters. (2) The Rule of Belief: “a possibility that the subject gives a sufficiently high credence to is not properly ignored, whether or not he is right to so believe. Neither is one that he ought to give sufficiently high credence to— one that evidence and arguments justify him in believing—whether or not he does so believe . . . If the stakes are sufficiently high, few error possibilities may be ignored.” (3) The Rule of Resemblance: if an error possibility E2 is sufficiently similar to an error possibility E1, and E1 is a possibility that cannot be properly ignored, then E2 cannot be ignored. This rule explains why subjects in Gettier cases do not count as knowing. Truly believing at noon that it is noon from a stopped clock sufficiently resembles falsely believing at 12.15 that it is noon from the same stopped clock. (4) The Rule of Attention: any possibility that is currently being attended to cannot be properly ignored: “No matter how farfetched a certain possibility may be, no matter how properly we might have ignored it in some other context, if in this context we are not in fact ignoring it but attending to it, then for us now it is a relevant alternative.”

Catharsis and the Epistemology of Repentance

107

Lewis (1996: 558–60) then provides the following list of rules governing which possibilities may be properly ignored: (1) The Rule of Reliability: with respect to methods that are typically reliable (e.g. perception, memory, testimony), possibilities in which such processes are unreliable can properly be ignored. The Rule of Reliability is defeated by the Rule of Actuality and/or Resemblance in Gettier cases. (2) The Rule of Conservatism: those possibilities that are commonly ignored and known to be commonly ignored by those around the ascriber, may be ignored by the ascriber. Many find the appeal of contextualism to lie in the manner in which it solves the skeptical challenge from closure. Here is the skeptic’s argument: (1) (2) (3) (4)

I know that I have hands. If I know that I have hands, then I know that I am not a brain in the vat. I do not know that I am a brain in the vat. Therefore, I do not know that I have hands.

The contextualist argues that there is an illicit shift of context from (1) to (3). In the context in which (1) is uttered the possibility of my being a brain in the vat is properly ignored. However, in the context of (3), when I am attending to the possibility of my being a brain in the vat, that skeptical possibility can no longer be properly ignored. The context in which the speaker truly utters (1) is also the context in which (3) is false. And the context in which (3) is true is a context in which (1) is false. To use a crude toy model to demonstrate the above point, suppose that the word “knows” picks out a low standard for knowing in (1) while in the context of (3) the word “knows” picks out a different relation associated with a higher standard for knowing. If the context of utterance is kept fixed throughout, then one knowsLOW that one has hands and knowsLOW that one is not a brain in the vat. Similarly, assuming a fixed context of utterance throughout, it is not the case that one knowsHIGH that one has hands and it is not the case that one knowsHIGH that one is not a brain in the vat. The skeptic, so argues the contextualist, draws us into skepticism by concealing the fact that the word “knows” in the context of (1) and the word “knows” in the context of (3) pick out two different relations. In the spirit of Lewis’s rules, those error possibilities that can be properly ignored in (1) remain properly ignored in (3) when the context of (1) remains fixed throughout. Similarly, those error possibilities that are not properly ignored in (3) cannot be properly ignored in (1) if the context of (3) remains fixed throughout. Before moving onto sensitive invariantism, it will prove helpful for the discussion ahead to mention a distinction that Stewart Cohen (2000: 103) identifies in Lewis’s rules. On the one hand, one group of rules determines

108

Dani Rabinowitz

what can be properly ignored from the perspective of the subject. For instance, the Rule of Actuality states that the actual case cannot be ignored, where the actual case is that of the subject not the attributor. Similarly, the Rule of Belief concerns the belief of the subject. On the other hand, the second group of rules determines what can be properly ignored from the perspective of the speaker. The remaining rules are part of this group. The Rule of Attention is an example of this kind of rule—those error possibilities to which the attributor is attending cannot be properly ignored. The first group of rules Cohen labels “subject-sensitive” and the second “speaker-sensitive.” While the sensitive invariantist agrees with the contextualist that additional non-evidential factors must be considered when making a knowledge ascription, the sensitive invariantist insists that these additional factors make for differences in knowledge ascriptions only in so far as they are of relevance to the subject of the ascription and not the ascriber. When viewed from this perspective, the word “knows” picks out the same relation between subject, proposition, and time regardless of context. It is in this sense that SI is an invariantist semantics for “knows.” It will therefore not be the case that two ascribers can both speak truly of the same subject if the first ascriber utters “S knows p” and the second utters “S does not know p.” By way of analogy, suppose that by “is rich” we mean “has more money than anyone in one’s country.” This meaning of “is rich” differs from the more standard meaning “has a lot of money.” In this scenario an agent S may count as being rich in country x but not in country y. Thus it is not the case that two different ascribers can both point to S in x at t and both speak truly of S if the one says S is rich while the other says S is not rich. As far as the skeptical argument from closure is concerned, John Hawthorne argues that “certain inferences are what we might call anxietyprovoking for certain subjects” (2004: 161); that is, if certain error possibilities become salient to a subject in the process of making an inference from a known proposition, the inference will “destroy knowledge of the premises, rather than producing knowledge of the conclusion” (p. 161). In other words, if skeptical error possibilities become salient to the subject in the process of making the inference from her having hands to the proposition that she is not a brain in the vat, then she loses her knowledge in the premise that she has hands. Closure is maintained so long as the variety of error possibilities remains constant throughout the inference. Of the various error possibilities that can become “anxiety-provoking” for the subject, the notion of high stakes has been emphasized by some sensitive invariantists. Jason Stanley (2005: 1–15) motivates his version of SI by offering up a series of cases involving varying degrees of stakes for a subject. The objective of his presentation is to draw on the intuitive hesitation to attribute knowledge to subjects who are in high-stakes situations where those subjects knowingly have a significant amount riding on the truth of the proposition

Catharsis and the Epistemology of Repentance

109

under consideration. While not denying the force that high stakes has in the sensitive invariantist formula, Hawthorne (2004: 185–6) claims that SI outperforms standard invariantism and contextualism across a range of difficult puzzles, which is, by his lights, sufficient motivation for preferring sensitive invariantism over standard invariantism and contextualism. It should now be apparent that a central feature of Lewisian contextualism (LC) and Lewisian sensitive invariantism (“LSI”) is relevant error possibilities and high stakes. The purpose of the discussion below is to demonstrate how Yitzkhaki’s gloss on error possibilities and Maimonides’ claim about high stakes interact with these two semantic theories. Additionally, at the heart of both contextualism and SI lies the distinction between the attributor and the subject. Herein lies a second relevant connection to the Talmudic debate at hand. The rabbis and R. Eliezer are debating law; that is, they are looking at all subjects and deciding what the law should be with respect to the repetition of repentance. Should epistemic considerations be at the forefront of their debate, then they are arguing as to how a knowledge attribution or denial impacts what the law should be. Their concerns do not touch upon the matter of self-ascriptions or denials of knowledge by the subject; that is, should the law be underpinned by a knowledge attribution but the individual subject denies to herself knowledge in the relevant case, the law takes precedence. The legislator’s attribution trumps the subject’s denial. The discussion below will therefore gravitate toward a focus on the ascriber, high stakes, and error possibilities. Let us now consider how a rabbinic scholar, tasked with the authority to determine law, might engage with the question of REPENTANCE, and the satisfaction thereof by a model subject, while concurrently having the above epistemic models at the forefront of their mind. Rather than being comprehensive in nature, the treatment will merely be a first step in the investigation of such an application of these models to REPENTANCE. For the sake of ease, the model subject will be Samuel who believes that p, where p is the proposition that he has satisfied REPENTANCE with respect to sin x.

6.3.1. The Rule of Belief According to Cohen this rule is subject-sensitive. Therefore, if Samuel is considering the question of his own satisfaction of REPENTANCE with respect to a sin x and either gives a sufficiently high credence to a certain error possibility obtaining or he has evidence available to him that ought to make him have a sufficiently high credence in that proposition, then Samuel does not know that he has satisfied REPENTANCE with respect to x since he cannot properly ignore such an error possibility.

110

Dani Rabinowitz

A closer look at Samuel’s psychological state in this case proves how this rule operates. As far as the first disjunct in the antecedent of the above conditional is concerned, the following line of thought proves illuminating. Despite having tried his best to satisfy REPENTANCE with respect to x, a number of error possibilities may nevertheless trouble Samuel so much so as to lead him to have a sufficiently high credence in at least one of them. Samuel may, e.g., be troubled by the fact that he has exhibited backsliding with respect to x in the past, or knows that he is often insincere when making commitments, or actually enjoys the feelings associated with sin x thereby casting doubt on the sincerity of his remorse, or he is aware of the research indicating the degrees to which people are often self-deceived, etc. In particular, Samuel may be troubled as to whether he sincerely regretted having committed x or whether he sincerely resolved to never commit x again (conditions 3 and 5 of REPENTANCE). Apart from enjoying attention from a few philosophers of language, sincerity has been largely overlooked by philosophers. Even in the philosophy of emotion literature it does not seem to be a special case. In the context of repentance, it features in a central way for REPENTANCE requires regret over past sins and the resolve to never commit them again in the future. Assumedly both emotions must be sincere for the regret and resolve to be efficacious in the attainment of atonement and the enjoyment of the ensuing catharsis. This intuition is substantiated by none other than Maimonides himself when he writes, Anyone who verbalizes his confession without resolving in his heart to abandon [sin] can be compared to [a person] who immerses himself [in a mikvah for the purposes of purification] while [holding the carcass of] a lizard in his hand [which is impure]. His immersion will not be of avail until he casts away the carcass.²⁰

Stuart Hampshire (1972) proposed a singlemindedness view of sincerity according to which sincerity with regard to p is the property of a mind undivided with regards to p.²¹ While somewhat opaque, the rough idea is that sincerity requires the absence of intra-mental-state conflict, a coherence of sorts. This includes the absence of conflict on the subconscious level. With regards to the example of regret, Hampshire views sincere regret as feeling that emotion “with one’s whole mind” (1972: 246). Samuel, to channel Hawthorne, might become anxious and give a sufficiently high credence to the proposition that he hasn’t satisfied REPENTANCE with respect to x. Perhaps he does this as a result of suspecting that in some deep recess of his mind he harbors a

²⁰ Code, Laws of Repentance 1.3. ²¹ For alternate views on the nature of sincerity, see Hare 1963 and Williams 1971. Each of these will generate its own problems for REPENTANCE once the notion of sincerity begins to cause anxiety in the repentant.

Catharsis and the Epistemology of Repentance

111

desire for sin x and a motivation to persist in its performance. Samuel may therefore fear that he hasn’t repented properly. And so on. When the above considerations are on Samuel’s mind and he gives a sufficiently high credence to at least one of them, then the legal scholar cannot truly ascribe knowledge that p to Samuel. As discussed above, the second part of the Rule of Belief is vague. That is, even if these error possibilities are part of Samuel’s evidence, they may have slipped his mind at the time of the case, in which case he would count as knowing p. To avoid this counterintuitive result, Samuel won’t count as knowing as per the second disjunct in the above conditional since he ought to give a sufficiently high credence to at least one of the above error possibilities. The role of high stakes in Lewisian contextualism complicates the above results. Lewis writes that “when error would be especially disastrous, few possibilities may be properly ignored. Then even quite a low degree of belief may be ‘sufficiently high’ to bring the Rule of Belief into play” (1996: 551). Given Lewis’s mention of high stakes, it is important to point out the kinds of high stakes that could be in play for Samuel. If Maimonides is taken at his word, the fate of the entire world can hang on whether or not Samuel repented for x: “If one performs a single sin, one tips one’s balance and that of the entire world to the side of guilt and brings destruction upon oneself.”²² Failure to perform repentance with respect to x as well as the performance of x could have disastrous ramifications. The stakes couldn’t be any higher in Maimonides’ view. Therefore, even if Samuel gives very low credence to the error possibilities mentioned above, the presence of very high stakes may make such low credences sufficiently high to rule out Samuel’s knowing p. When such considerations are taken on board, the legal scholar considering the epistemic possibilities on Samuel’s mind cannot but deny that Samuel knows that he has fulfilled REPENTANCE with respect to x. R. Eliezer’s position can be read as an expression of this result.

6.3.2. The Rule of Attention If the legal scholar is currently attending to an error possibility then in his context Samuel will fail to know p. Therefore, much hangs on the scholar’s frame of mind. Though Lewis does not say as much, this is another point in his account where high stakes may make a difference. When nothing much hangs on whether Samuel knows p, the legal scholar may properly ignore the kinds of error possibilities discussed above. In the converse case, however, the legal scholar may attend to such error possibilities. Perhaps he has in mind Maimonides’ dire warning about the global consequences of failing to repent ²² Code, Laws of Repentance 3.4.

112

Dani Rabinowitz

for a sin. When so much hangs in the balance he may demand a higher level of knowledge from a repentant than cases in which not much hangs on their repentance. On the other hand, there are other considerations that may lead the legal scholar to disregard such error possibilities despite the high stakes. If, for example, the scholar has the utmost faith in Samuel or is in awe of the work he has done towards spiritual self-improvement, then it is unlikely that he will attend to any error possibilities. In these kinds of cases it may not even occur to the scholar that Samuel may make a mistake. That error possibilities may be central to R. Eliezer at the time he considers the matter of repentance may account for the divergence of his opinion from that of the rabbis who, it might be assumed, were less concerned with the kinds of error possibilities discussed thus far.

6.3.3. The Rule of Reliability If the speaker presumes a method M to be reliable, then cases in which M fails to be reliable may be properly ignored. As far as the legal scholar is concerned, the Rule of Reliability can cut both ways. On the one hand, the scholar may be impressed by the degree to which Samuel has reformed his ways and may naturally assume his repentance to be of the sincere type. In this frame of mind it may not even occur to him that the method by which Samuel comes to believe that he has satisfied REPENTANCE with respect to x might be unreliable. In that context he may properly ignore cases in which introspection is unreliable. On the other hand, the scholar may have recently become interested in account of self-deception and sincerity, as discussed above, to the extent that he harbors grave concerns about the reliability of our introspective processes vis-à-vis sincere regret and sincere resolve (both being necessary conditions of REPENTANCE). When in this skeptical frame of mind, he cannot properly ignore cases in which introspection is unreliable; that is, the Rule of Attention will defeat the Rule of Reliability. So much for a contextualist treatment of the debate between the rabbis and R. Eliezer. How might the sensitive invariantist approach the debate? LSI differs from Lewisian contextualism in that all six of Lewis’s rules are taken to be subject-sensitive. For this reason no two speakers can both count as speaking truly if the first ascribes knowledge to a subject S while the second denies that S knows. In light of this characterization of Lewis’s rules, LSI will deliver the same results as LC did with respect to Samuel’s belief that p in those rules which focus on Samuel’s state of mind rather than the scholar’s; that is, only factors relevant to Samuel can make for a difference in the truth-value of a knowledge ascription to Samuel. Pragmatic encroachment has featured heavily in several sensitive invariantist semantics for “knows,” where said high stakes factors are those relevant to the subject, not the speaker. LSI

Catharsis and the Epistemology of Repentance

113

subscribes to the relevance of pragmatic encroachment by incorporating high stakes considerations affecting the subject’s state of mind in any or all of Lewis’s rules. The demonstration above vis-à-vis the Rule of Belief is one demonstration of how the mechanics play out in the hands of a sensitive invariantist for subject-sensitive considerations lie at the heart of that discussion. One significant difference between a contextualist and sensitive-invariantist reading of the dispute between the rabbis and R. Eliezer lies in the divergence between the truth-values of their disparate attributions—in the contextualist’s eyes both parties speak truly despite their contrasting appraisals of the case whereas the sensitive-invariantist considers only one party to be speaking truly. In the world of halakhic jurisprudence this is a significant result given the vast amount of ink that has been spilled over the truth-value of divergent rabbinic views in legal debates. According to the monist school of thought, only one view can be the correct expression of God’s view on the matter whereas all other views are mistaken. On the other hand is the pluralist view ensconced by the famous Talmudic dictum, “These and these are the words of the living God.”²³ Insofar as knowledge attributions play a role in legal disputes, as demonstrated by the brief consideration of (KN) below, a natural counterpart for pluralism is the contextualist, and monism for the sensitive invariantist. The tools provided by the semantic turn in epistemology provide additional rigor to the monist-pluralist debate in halakhic jurisprudence.²⁴ Before concluding this application of non-standard semantics for “knows” to the question of legal rulings involving knowledge ascriptions, it is worth addressing a further nexus between epistemology and REPENTANCE. Denials of knowledge discussed thus far are insufficient to generate the prescription that repentance must be repeated. Lack of knowledge is one thing; a call to action is another. It seems likely, therefore, that Rabbi Eliezer must also be motivated by the following principle: (KN) If S is commanded to do x and S attempts to fulfill the command to do x, S must attempt to do x until S knows that S has done x. An absence of knowledge is insufficient motivation for Rabbi Eliezer to rule that the repentance must be repeated. Rather, he requires some principle like (KN) that requires an action to be repeated until a specific epistemic state is achieved with respect to x. In the context of halakha, KN is not that bizarre for it appears across the legal spectrum in a different guise. For instance, the number of shofar blasts blown on Rosh Hashanah far exceeds the required amount since we attempt to cover all bases on the debate around ²³ B.T. Eruvin 13b and B.T. Gittin 6b. ²⁴ For a thorough exploration of this debate, see Sagi 2007. As for the metaphysical upshot of this debate, see the excellent discussions by Helmreich and Segal in this volume.

114

Dani Rabinowitz

the required number by exceeding any disagreement. Similarly, many exceed the minimum amount of matzah that needs to be eaten on Passover in an attempt to know that one has consumed the required amount. Erring on the side of caution is a prevalent feature of Jewish law.²⁵ Actions are performed in such a way as to ensure that the practitioner knows that she has achieved her desired goal. The Sabbath, for instance, is brought in earlier than required and taken out later than required so as to ensure that the observer knows that he is not infringing certain transgressions relating to the Sabbath. There are thus sufficient grounds within Jewish law for a principle like KN. When KN is combined with Rabbi Eliezer’s denial of knowledge, we have the making of the repetitive annual requirement for the sinner who has not repeated a particular sin to nevertheless repeat REPENTANCE with respect to that sin. An alternate means of promoting R. Eliezer’ position is therefore via the knowledge–reason connection defended by Hawthorne and Stanley (2008: 581): “where one’s choice is p-dependent, it is appropriate to treat the proposition that p as a reason for acting iff you know that p.” In the mouth of R. Eliezer the Reason–Knowledge Principle results in the claim that treating the satisfaction of REPENTANCE with respect to a sin x as the reason for not repenting for that sin this year is only appropriate if you know you have satisfied REPENTANCE with respect to that sin. Since you don’t know that, you must repeat REPENTANCE for that sin this year. And so on. The upshot of the epistemology grounding R. Eliezer’s view is in tension with the cathartic value of repentance ensconced in the verses in Leviticus, Isaiah, and Psalms mentioned in Section 6.1. When the absence of knowledge, coupled with (KN), results in the annual repetition of unrepeated past sins we have the makings of a cycle of repentance wherein the sinner is never relieved of his or her past sins. The act of sin remains a burden to be carried throughout one’s life. Never is one able to feel a kind of spiritual cleanse, no matter how righteous one’s current life. Perhaps the cathartic value of repentance and Yom Kippur captured in those verses is a regulative ideal that one never achieves.

6.4. DOING RELIGIOUS EPISTEMOLOGY ON THE GUILLOTINE Both the contextualist and the subject-sensitive invariantist invite us to take seriously the idea that variations in the relevance of error possibilities and high ²⁵ The principle safeik doraita lekhumra (stringency in the case of doubtful performance of a biblical commandment) is relevant here.

Catharsis and the Epistemology of Repentance

115

stakes make for differences in knowledge ascriptions, where the relevance is that of the ascriber for the contextualist and that of the subject for the subjectsensitive invariantist. While each of these ideas may boast a range of strengths in dealing with a number of puzzles within mainstream epistemology, their value has yet to be tested in the context of religious epistemology. This chapter has taken some tentative steps in that direction with respect to the question of knowing one has satisfied REPENTANCE with respect to a sin one committed in the past. Repentance is a central tenet of Judaism. It underpins Jewish eschatology and has profound implications in the legal sphere. Yom Kippur, the holiest day of the Jewish calendar, is devoted to it. Repentance enjoys a similar level of importance in Christianity and Islam. Casting aspersions on the cathartic value of repentance has the potential for a devastating critique of religion. Success with lottery-like problems aside, a failure by LC and LSI to capture the epistemic credentials of a phenomenon taken by so many to be intuitively compelling does constitute a significant liability on the balance sheet of any semantic for “knows.”

B I BL I OG R A P H Y Cohen, S. (2000) “Contextualism and Skepticism.” Philosophical Issues 10: 94–107. Halivni, D. W. (1991) Peshat and Drash: Plain and Applied Meaning in Rabbinic Exegesis. Oxford: Oxford University Press. Hampshire, S. (1972) Freedom of Mind. Oxford: Clarendon Press. Hare, R. M. (1963) Freedom and Reason. Oxford: Oxford University Press. Hawthorne, J. (2004) Knowledge and Lotteries. Oxford: Oxford University Press. Hawthorne, J. and Stanley, J. (2008) “Knowledge and Action.” The Journal of Philosophy 105(10): 571–90. Lewis, D. (1996) “Elusive Knowledge.” Australasian Journal of Philosophy 74: 549–67. Lewis, D. (1997) “Do We Believe in Penal Substitution?” Philosophical Papers 26(3): 203–9. Maimonides (1997) Code (Mishneh Torah). Trans. E. Touger. New York: Moznaim Publishers. Peli, P. (2000) On Repentance: The Thought and Oral Discourses of Rabbi Joseph Dov Soloveitchik. New Jersey: Aronson. Rabinowitz, D. (2011) “The Safety Condition for Knowledge.” Internet Encyclopedia of Philosophy. http://www.iep.utm.edu/safety-c/. Rabinowitz, D. (2018) “Knowledge and the Cathartic Value of Repentance.” In: M. Benton, J. Hawthorne, and D. Rabinowitz, eds., Knowledge, Belief, and God: New Insights in Religious Epistemology. Oxford: Oxford University Press, pp. 78–103. Sagi, A. (2007) The Open Canon: On the Meaning of Halakhic Discourse. London: Continuum. Williams, B. (1971) “Morality and the Emotions.” In: J. Casey, ed., Morality and Moral Reasoning. London: Routledge.

116

Dani Rabinowitz

Williams, B. (2002) Truth and Truthfulness. Princeton: Princeton University Press. Williamson, T. (2005) Knowledge and its Limits. Oxford: Oxford University Press. Williamson, T. (2009a) “Reply to John Hawthorne and Maria Lasonen-Aarnio.” In: P. Greenough and D. Pritchard, eds., Williamson on Knowledge. Oxford: Oxford University Press, pp. 313–29. Williamson, T. (2009b) “Probability and Danger.” The Amherst Lecture in Philosophy 4: 1–35, http://www.amherstlecture.org/williamson2009.

7 Hume and Maimonides on Imaginability and Possibility Mark Steiner

This chapter is about imagination and its historical role in the philosophy of mathematics of the eighteenth-century Scottish philosopher David Hume, and the great twelfth-century Jewish philosopher and legalist Moses Maimonides (1138–1204). We will demonstrate some surprising connections between philosophers who would seem to have had nothing in common. Nor should we be surprised to discover the continuing relevance of this subject in recent philosophy. Accordingly, we shall conclude the chapter with a short discussion of the work of a contemporary philosopher of mathematics, Charles Parsons, who stresses the role of the imagination as providing a foundation for mathematical intuition.¹ Maimonides, in his Eight Chapters, defines the imagination as “the power that preserves the impressions of sensibly perceived objects after they vanish from the immediacy of the senses that perceived them. Some impressions are combined with others, and some are separated from others” (Maimonides 1983: 63). He concludes that the imagination can present what is impossible to perceive. David Hume’s definition of the imagination is not much different,² though his epistemological attitude towards the imagination is radically different from that of Maimonides. As we will see shortly, Hume holds that what ¹ In fact the present chapter originated in a talk I gave at a conference in honor of Parsons, at the Van Leer Jerusalem Institute, January 2014. ² “WE find by experience, that when any impression has been present with the mind, it again makes its appearance there as an idea; and this it may do after two different ways: either when in its new appearance it retains a considerable degree of its first vivacity, and is somewhat intermediate betwixt an impression and an idea; or when it entirely loses that vivacity, and is a perfect idea. The faculty, by which we repeat our impressions in the first manner, is called the MEMORY, and the other the IMAGINATION” (Treatise 1.1.3; SBN 8ff.). References to the Treatise are to Hume, A Treatise of Human Nature, ed. Norton and Norton, hereafter cited in the text as Treatise, followed by Book, part, and section number, and to Hume, A Treatise of Human Nature, ed. Selby-Bigge, rev. by Nidditch, cited in the text as “SBN” followed by the page number. Mark Steiner, Hume and Maimonides on Imaginability and Possibility. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0007

120

Mark Steiner

we imagine is always the object of a possible sense perception, since the only qualitative difference between imagination and sense impressions is that the latter is more vivid than the former. Our discussion will therefore center on the following Proposition: Proposition I:

A state of affairs is possible if and only if it is imaginable.

Proposition I is the basis of many of the most important and controversial doctrines of the Treatise. And it is formulated, but emphatically rejected by Maimonides (Eight Chapters, Ch. 1; The Guide of the Perplexed, 1:73). Here is Hume’s formulation of Proposition I: . . . nothing we imagine is absolutely impossible. We can form the idea of a golden mountain, and from thence conclude that such a mountain may actually exist. We can form no idea of a mountain without a valley, and therefore regard it as impossible. (Treatise 1.2.4; SBN 32)

Strangely, Hume nowhere argues for Proposition I formally, from his basic principle that every simple idea originates in simple impressions and that simple ideas resemble exactly the impressions from which they are derived (Treatise 1.2.3). In discussing Proposition I, he says, Whatever can be conceived by a clear and distinct idea necessarily implies the possibility of existence; and he who pretends to prove the impossibility of its existence by any argument derived from the clear idea, in reality asserts, that we have no clear idea of it, because we have a clear idea. It is in vain to search for a contradiction in any thing that is distinctly conceived by the mind. Did it imply any contradiction, it is impossible it could ever be conceived. (Treatise 1.2.4; SBN 43)

Hume is here identifying possibility with CONCEIVABILITY, which he supposes is noncontroversial even among the Rationalists. But he then identifies conceivability with imaginability, since conceiving X is having an idea of X; and for Hume, having an idea of X and imagining X is one and the same thing. This is the closest he gets to a proof. Nevertheless, Proposition I is given very heavy use by Hume. It is the basis for some of the most radical positions in the Treatise: 1. That given any event, any other event whatever could succeed it; 2. That there could be a perception not in any mind (i.e. an unsensed sensation); 3. That space and time are not infinitely divisible; and thus: 4. That there are minimal spaces and times (i.e. space and time are “granulated”); 5. That mathematical points, thought of as dimensionless, are impossible; 6. That Euclidean geometry is only approximately true.

Hume and Maimonides on Imaginability and Possibility

121

Thesis 1 is, of course, notorious—Hume uses it to eliminate the idea of a necessary connection between events (Treatise 1.3.3). Thesis 2 is less well known, but it is used to prove that the existence of “body” (i.e. objects that exist independently of, and outside, the mind) is at least possible, in his very difficult discussion of the existence of external “bodies” (Treatise 1.4.2). The theses concerning space will mainly concern us in what follows, so we move to Theses 3–6. All of these theses are the subject matter of Book I, Part II. Theses 3–5 supposedly follow from the fact that there is a threshold to visual (and other) perception—“Put a spot of ink upon paper, fix your eye upon that spot, and retire to such a distance, that at last you lose sight of it; ’tis plain, that the moment before it vanish’d the image or impression was perfectly indivisible” (Treatise 1.2.1; SBN 27). Since imagination can’t go beyond perception, imagined space also has a threshold, and thus there must be a minimal interval. Similarly, mathematical points are unperceivable, hence unimaginable, and hence impossible.³ The nonexistence of mathematical points is one of the reasons why Euclidean geometry cannot be true exactly (i.e., Thesis 6): When geometry decides any thing concerning the proportions of quantity, we ought not to look for the utmost precision and exactness. None of its proofs extend so far. It takes the dimensions and proportions of figures justly; but roughly and with some liberty. Its errors are never considerable; nor wou’d it err at all, did it not aspire to such an absolute perfection. (Treatise 1.2.4; SBN 45)

In my lectures on Hume over the years, and now in my Introduction to the Hebrew translation of the Treatise (Steiner 2013), I have raised the following objection to Hume’s identification of possibility with imaginability. If whatever is imaginable is possible, then certainly what is perceivable is possible, and even more so, what is actually perceived is possible. Now one cannot be in doubt of what is actually perceived (meaning what impressions are before the mind), since, as Hume says (Treatise 1.4.2; SBN 189), “all sensations are felt by the mind, such as they really are,” a rather strong doctrine of “transparency” of the mind. Therefore what we seem to perceive is what we perceive, and is certainly possible. This is in accordance with Hume’s basic conception that all the ideas in our mind are derived from (indeed, resemble) our impressions (sense perceptions), as against the rationalist view that the mind itself brings to bear on sense experience its own a priori ideas. Hume would then seem to be committed to the following proposition: no simple report of our sense

³ The existence of minimal spaces and times is a live issue even today in physics. In various theories, we come upon integrals over all “wavelengths”—given quantum mechanics, this means all energies. If space is infinitely divisible, some of these integrals are infinite, i.e. they are not defined. Since space is taken to be infinitely divisible, various techniques have been developed to replace the offending integrals by others that converge, while still giving the right numbers.

122

Mark Steiner

impressions and their development over time can be incoherent, i.e. in conflict with the very conceptual scheme which is derived from those impressions. Here, then, is a counter-example. Consider an “analogue” clock, i.e. an old fashioned clock with hands. How does the minute hand move? For Hume, it would be enough for each of his readers to try an “experiment” with his own perceptions. In small clocks, as we gaze at the minute hand, we do not perceive it moving; yet in a minute or so we perceive it in a different place from before. For Hume, as I said above, it makes no sense to “correct” our “subjective” perceptions by some outside theory. On the contrary, he says (Treatise 1.4.2), For since all actions and sensations of the mind are known to us by consciousness, they must necessarily appear in every particular what they are, and be what they appear. Every thing that enters the mind, being in reality as the perception, ’tis impossible any thing shou’d to feeling appear different. This were to suppose, that even where we are most intimately conscious, we might be mistaken.

It thus appears inescapable that we sometimes perceive a body without interruption, in apparent continuous existence, but no apparent movement, somehow appearing to end up someplace else without appearing to change its place while we are looking at it. So for Hume it should be possible for a body actually to stay in the same place for a couple of minutes, after which it is actually someplace else. (After all, this is the same kind of argument that Hume himself endorses, when he argues from the fact that there is a threshold to our perception of distance that there is a threshold to distance itself.) I.e. we have perceived what most impartial observers would regard as impossible, in violation of Proposition I. Thus, it appears to me most reasonable to reject Proposition I, and in fact Hume’s extreme empiricism, rather than to accept this weird conclusion.⁴ Objects can simply be in motion, without our perceiving them move—our experience is not veridical. We don’t even need to invoke motion to give a counter-example to Proposition I. Consider the famous Penrose “tri-bar,” known as the “impossible object” (Fig. 7.1). If we simply report on our sense impressions here, we say that what is perceived (even subjectively!) is a triangle with three right angles, which we ourselves regard as impossible (in ordinary space). Escher’s drawings are well known for this property, which is why people are made uneasy by looking at them. Here our perceptions are not unveridical in the standard sense that they incorrectly report the empirical world (e.g. we feel the water to be hot, when in fact it is cold), but in the radical sense that the report is incoherent (i.e., when we attempt to put the report of the senses into words, we lapse into ⁴ The conclusion is more incoherent than Hume’s atomism of space and time, because the mathematical concept of a dimensionless point, and even that of infinite divisibility of a line segment, is not part of our everyday conceptual scheme, but is a mathematical abstraction.

Hume and Maimonides on Imaginability and Possibility

123

Fig. 7.1 The Penrose “tri-bar.” From https://commons.wikimedia.org/wiki/File:Penrosedreieck.svg (accessed September 5, 2018). We acknowledge the work of its creator, Tobias R.

incoherence). It would certainly seem reasonable, therefore, to reject Proposition I, and with it, Hume’s extreme empiricism. Another argument I have used is this: according to Hume, motion can take place only when an object disappears from one atom of space and reappears in another. There would thus be a maximum velocity of one unit of space in one unit of time. Lesser velocities would be possible if the “point” particle moves from one point of space to another after waiting one or more units of time. Nevertheless, at all perceived velocities, motion can be, and often is, perceived to be continuous. My conclusion has thus always been that the extreme empiricist position adopted by Hume is incoherent, since there is no way simply to “report” on the deliverances of perception. Recently, I was surprised to learn that these issues were debated in the Middle Ages. Maimonides in a number of his writings conducts a continuing polemic against the Kalam thinkers—the so-called mutakallimūn, Islamic thinkers and their Jewish followers—whom Maimonides dismisses as “theologians.” (Only the Aristotelians are given the honorific title “philosophers” by Maimonides.) A closer look at the Kalam positions which Maimonides trashes reveals that they are Hume’s ideas, formulated over 600 years earlier! In Maimonides’ first work on Jewish law, his monumental Commentary to the Mishnah, which he finished in 1168, at age 30, he included an introduction to ethics, known as the Eight Chapters. The first chapter discusses the parts of the soul in an Aristotelian manner, and one of the parts is the imagination— we have already seen that Maimonides defines the imagination there more or less as Hume did. The imagination, Maimonides continues, has thus the power to conjure up impossibilities—though his examples of impossibilities include

124

Mark Steiner

flying machines, an embarrassment for Maimonideans (see Maimonides 1983: 63). Another is an animal with a thousand eyes. He then launches an attack on the Kalamist theologians, the mutakallimūn, for building their entire sophistry on the “repulsive error” (1983: 63) of basing all the modal concepts—the necessary, the contingent, and the impossible—on the imagination; in other words, on what I have been calling Proposition I. In his Guide of the Perplexed, Maimonides, in a long chapter (1:73), sets forth the postulates of the Kalam theology (he refuses to call it “philosophy” as it ignores truth established demonstratively by Aristotle), which are twelve in number. The Kalamist doctrine coincides with Hume’s position with respect to Proposition I, as well as his position on the atomicity of space, time, and matter. This coincidence includes views that Hume does not state explicitly though he is committed to them. It should be noted, for the record, that scholars have not been able to identify all twelve postulates in available writings of the historical Kalamists. Indeed, scholars have not found a single Kalamist who set forward all twelve. Indeed, a very competent scholar, the late Prof. Michael Schwarz of Tel-Aviv University, in the notes to his Hebrew translation (Maimonides 2002) of Guide 1:73, repeats several times that no Kalamist he knows asserts (what I am calling) Proposition I, and that some Kalamists assert propositions inconsistent with it. Since an Aristotelian would hardly assert Proposition I, It seems likely that Maimonides simply made it up (in order to refute it). It is reasonable therefore that Maimonides (perhaps deliberately) created a caricature of the historical Kalam positions because he wanted to discredit them—I will not dwell here upon the reasons for this animus.⁵ What Maimonides seems to have done is what Plato did before him in the Theataetus— constructed an imaginary and tendentious composite of his opponents and then tried to dispatch them all in one blow. As for Proposition I, I incline to think that Maimonides held that the known Kalamist positions opposing science, mathematics, and causality presupposed Proposition I—whether or not they consciously adopted it. Indeed, Maimonides’ attempted reduction of the Kalam to Proposition I gets striking support in Hume’s (independent, of course) reduction of his own philosophy to Proposition I in the Treatise! We could say, then, that Maimonides invented “Hume’s theory” in an effort to discredit the Kalam by reductio ad absurdum. The irony of it all is that Maimonides accuses the mutakallimūn (Kalamists) of deliberately adopting “empiricism” to undermine science (Guide 1:71), in order to leave room for the possibility of miracles, while Hume uses the

⁵ In Guide 1:71, Maimonides charges the Kalamists with the intellectual sin of choosing their philosophy to suit their preconceived theological fundamentalism. There may have been personal animosities as well.

Hume and Maimonides on Imaginability and Possibility

125

same principles to undermine the belief in miracles (Enquiry concerning Human Understanding, ch. 10).⁶ Let us begin with Proposition I itself in light of its centrality to the “Kalam” position, according to Maimonides. According to the Kalam position, Maimonides says, the geocentric theory of the universe, an established scientific fact, is not necessary, since we can imagine a heliocentric universe (his example isn’t exactly this, but I have adapted it from Guide 1:73). Similarly, the Aristotelian theory of gravity as “motion toward the center” is not necessary, since we can imagine bodies defying gravity. Indeed, say the Kalamists, the imagination does not distinguish one point of space from another; hence there are no singular “places” such as the center. (All of this, of course, makes the Kalam position much more attractive to “us” than it was to Maimonides.) What we regard as natural law, the Kalamists say, for example the falling of “heavy” bodies toward the center of the earth, is nothing but the “continuance of a habit,” no different in principle from “the habit of a sultan not to pass through the market places of the city except on horseback, and he has never been seen doing it in a way other than this” (Guide 1:73, p. 206).⁷ The atomicity of time supports this denial of “necessary connections” between events, since what happens at each atom of time is independent of what happens at the next one. Of course the comparison of this to Hume’s Treatise is inevitable. For example (one of very many): We may define a cause to be “An object precedent and contiguous to another, and where all the objects resembling the former are plac’d in like relations of precedency and contiguity to those objects, that resemble the latter.” (1.3.14; SBN 170)

This “definition” similarly labels all natural laws as “merely” contingent.⁸ One could, with even greater justice, compare the position of the Kalamists to that of Berkeley, who, in his Principles of Human Knowledge says, We could not know how to act any thing that might procure us the least Pleasure, or remove the least Pain of Sense. That Food nourishes, Sleep refreshes, and Fire warms us; that to sow in the Seed-time is the way to reap in the Harvest, and, in ⁶ For Hume, the concept of a miracle, a violation of a law of nature is incoherent: laws by definition have no violations. Furthermore, the credibility of the reports of miracles are undermined if we assume the existence of well established laws of nature (which are constant conjunctions). Finally, Hume has no room for a concept of Divine agency which could contravene laws of nature. On this issue, the better parallel to the “Kalam” is Berkeley, not Hume; cf. p. 126 below. ⁷ All English translations of the Guide are taken from Maimonides 1963. ⁸ There is a common misconception that Hume denies the possibility of certainty in empirical science. This is a confusion between “knowledge” and “certainty.” In fact Hume is quite clear on this matter: “By knowledge, I mean the assurance arising from the comparison of ideas. By proofs, those arguments, which are deriv’d from the relation of cause and effect, and which are entirely free from doubt and uncertainty” (Treatise 1.3.11; SBN 124).

126

Mark Steiner

general, that to obtain such or such Ends, such or such Means are conducive, all this we know, not by discovering any necessary Connexion between our Ideas, but only by the Observation of the settled Laws of Nature (§XXXI)⁹

Berkeley, like the Kalamists, does not intend to reduce all causation to constant conjunction, as did Hume, but only natural causation. God, for both, is the ultimate cause of all our ideas: But whatever Power I may have over my own Thoughts, I find the Ideas actually perceived by Sense have not a like Dependence on my Will. When in broad Daylight I open my Eyes, it is not in my Power to choose whether I shall see or no, or to determine what particular Objects shall present themselves to my View; and so likewise as to the Hearing and other Senses, the Ideas imprinted on them are not Creatures of my Will. There is therefore some other Will or Spirit that produces them. (§XXIX)

Hume makes no exception in the case of Divine causality: For if every idea be deriv’d from an impression, the idea of a deity proceeds from the same origin; and if no impression, either of sensation or reflection, implies any force or efficacy, ’tis equally impossible to discover or even imagine any such active principle in the deity. (Treatise 1.3.14; SBN 160)

I nevertheless prefer to compare the Kalamist positions with those of Hume, rather than Berkeley, because the Kalamist anti-Euclidean ideas on space, time, and geometry could have been lifted, as it were, from the Treatise, Book I, Part II; both are much more radical than Berkeley’s published work.¹⁰ And even on the topic of necessary connections between events, there are topics on which the Kalam “sides” with Hume, rather than Berkeley.¹¹ Finally, because Proposition I is so central to Hume’s discussions, and because Maimonides regards the same axiom as central to the “Kalam” (and thus objectionable), it is natural to make Hume the stand-in for the “Kalam.” ⁹ All passages from the Principles are from Berkeley 1988. ¹⁰ But see Jesseph (1993: ch. 2). Jesseph points out that Hume’s radical anti-Euclidean philosophy of space and time was also adopted by Berkeley in his unpublished Philosophical Commentaries, while in the Principles, Berkeley eliminated the anti-Euclideanism. Hume almost certainly could not have known about Berkeley’s pre-Principles views, so I continue to attribute the views to Hume, who published them. ¹¹ Maimonides reports that the Kalamists were divided on the issue of human agency. Some of them actually adopted Hume’s position that human agency is nothing more than a constant conjunction of the human will with what we call its “consequences,” i.e. there is no necessary connection between the human will and human action. These Kalamists came very close to Hume’s positions. (Berkeley certainly believed in human agency, in the sense that the mind can cause ideas to come into being.) Another Humean position which (some of) the Kalamists adopted was the denial of any kind of essential continuity in human life. They saw the entire universe, including every person, as renewing itself at every atom of time, so that in principle my knowledge today could not be identical to that of yesterday. So they created for themselves the same issue of personal identity which plagued the seventeenth and eighteenth centuries.

Hume and Maimonides on Imaginability and Possibility

–5

127

5

Fig. 7.2 The asymptotes of a hyperbola (image generated by the author using Symbolab, https://www.symbolab.com/)

Maimonides dismisses Proposition I, since the imagination is a very crude guide to questions of possibility and necessity. “Accordingly,” Maimonides says, “it follows necessarily from all these premises [of the Kalam] that man is not more fitted to cognize intellectually than a beetle”¹² (Guide 1:73, p. 209). To say what is possible and impossible requires grasp of universals, the imagination deals only with particulars. Those familiar with Hume’s Treatise will recall that Hume in fact has a chapter on the reason of animals (1.3.16). Maimonides gives an interesting counter-example to Proposition I, a proposition which is not only possible but necessarily true, though it is not imaginable. Citing Appolonius’ Conic Sections, Book II, he gives the example of the asymptotes of a hyperbola which approach the curve and indeed converge to it, but do not intersect it even to infinity (Fig. 7.2). He writes, This cannot be imagined and can in no way enter within the net of the imagination. Of these two lines, one is straight and the other curved, as has been made clear there in the above-mentioned work. Accordingly it has been demonstrated that something that the imagination cannot imagine or apprehend and that is impossible from its point of view, can exist. (Guide 1:75, p. 210)

¹² Compare Plato in the Theaetetus, in an attack on Protagoras’ doctrine: “Man is the measure of all things”: “Soc. I am charmed with his doctrine, that what appears is to each one, but I wonder that he did not begin his book on Truth with a declaration that a pig or a dog-faced baboon, or some other yet stranger monster which has sensation, is the measure of all things” (161b, Jowett trans.).

128

Mark Steiner

Of course, one man’s modus ponens is another’s modus tollens. We have already mentioned that Hume did not balk at accepting the radical position that Greek mathematics is not true, or is only approximately true: I wou’d fain ask any mathematician what infallible assurance he has, not only of the more intricate and obscure propositions of his science, but of the most vulgar and obvious principles? How can he prove to me, for instance, that two right lines cannot have one common segment? Or that ’tis impossible to draw more than one right line betwixt any two points? Shou’d he tell me, that these opinions are obviously absurd, and repugnant to our clear ideas; I wou’d answer, that I do not deny, where two right lines incline upon each other with a sensible angle, but ’tis absurd to imagine them to have a common segment. But supposing these two lines to approach at the rate of an inch in twenty leagues, I perceive no absurdity in asserting, that upon their contact they become one. (Treatise 1.2.4; SBN 51)

Maimonides gives a counter-example to the other direction of Proposition I; i.e., he gives an example which, he says, proves that what is imaginable might still be impossible. His example cannot be from Aristotelian physics, since we have seen that Maimonides’ “Kalamists” rejected its necessity (and its truth also). His example is ad hominem against the Kalam theology: namely, the incorporeality of God. He takes the Kalam to agree with him that it is a fundamental principle that God has no material properties. Yet the imagination delivers only material bodies and properties; we cannot imagine an incorporeal God: It has similarly been demonstrated that something the imagination considers as necessary is impossible—namely, that God, may He be exalted, should be a body or a force in a body. For according to the imagination, there are no existents except bodies or things in bodies. (Guide 1:75, p. 211)

Hume, similarly, but of course with glee, does not exempt the idea of God from the rule that all ideas are based on sense impressions, as we have already seen (p. 126). At any rate, we know that Maimonides waged war against the corporealists in his own and other religions; he was the only religious thinker in the Middle Ages who held that it is forbidden to allow the masses to believe in the corporeality of God.¹³ So it is possible that one reason for Maimonides’ opposition to the Kalam was fear that their theory could lead to the heresy of anthropomorphism and corporealism. The “Kalam,” or Maimonides’ Kalam, like Hume, regard not only matter, but space and time, as atomic. There is only one velocity, and the illusion of

¹³ Unlike the Islamic philosophers, who did not believe that the masses were capable of philosophical thought, Maimonides believed that it is forbidden for any Jew to believe that God has material properties. In the Guide, he equates anthropomorphism with idolatry, which is forbidden by the Torah. So the matter is a central question of Jewish law, indeed the Ten Commandments.

Hume and Maimonides on Imaginability and Possibility

129

different velocities is caused by the fact that a particle “rests” for a number of instants, before it moves on to the next atom of space.¹⁴ Here it would seem that the “Kalam” differ with Hume, because in order to explain away why we perceive all motion as continuous, and not jerky, the Kalam introduce Postulate Twelve, which says: “the senses commit mistakes and that many of the objects of their apprehension elude them.” And thus, they say, in Maimonides’ reconstruction, “In fact your thinking that a certain object is moving in continuous motion is due to an error of the senses, for many of the objects of the perception of the senses elude the latter, as they lay down in the twelfth postulate” (Guide 1:73, p. 197).¹⁵ One might say that the twelfth postulate is in blatant contradiction to Proposition I, common to the “Kalam” and Hume. But notice that Hume himself was forced to introduce something equivalent to the postulate to save himself from philosophical embarrassment here and there. I will cite an example which is relevant to our subject. Hume, basing himself on what he takes to be sense impressions and Proposition I, we have noted, holds also that space and time are atomic and granulated. It would seem that we have here a criterion of identity for the length of intervals: simply count the atoms. Hume demurs, however: But though this answer be just, as well as obvious; yet I may affirm, that this standard of equality is entirely useless . . . For as the points, which enter into the composition of any line or surface, whether perceived by the sight or touch, are so minute and so confounded with each other, that it is utterly impossible for the mind to compute their number, such a computation will Never afford us a standard by which we may judge of proportions. No one will ever be able to determine by an exact numeration, that an inch has fewer points than a foot, or a foot fewer than an ell or any greater measure: for which reason we seldom or never consider this as the standard of equality or inequality. (Treatise 1.2.4; SBN 45)

It is for this reason that Hume denies the possibility of geometrical knowledge, reserving the term knowledge only for algebra and arithmetic: There remain, therefore, algebra and arithmetic as the only sciences, in which we can carry on a chain of reasoning to any degree of intricacy, and yet preserve a perfect exactness and certainty. We are possest of a precise standard, by which we can judge of the equality and proportion of numbers; and according as they correspond or not to that standard, we determine their relations, without any possibility of error. When two numbers are so combined, as that the one has always an unite answering to every unite of the other, we pronounce them equal; and it is for want of such a standard of equality in extension, that geometry can scarce be esteemed a perfect and infallible science. (Treatise 1.3.1; SBN 71) ¹⁴ See above, p. 123. ¹⁵ I have substituted “postulate” for “premise” in Pines’s translation for greater comprehension.

130

Mark Steiner

Something like Postulate Twelve is needed here to explain away how we perceive space and time as atomic, yet are unable to use the obvious identity criterion for intervals. Maimonides’ Kalam on this point are on firmer ground actually than Hume. Hume adopts throughout what I call the transparency of perception—everything is in the mind as it appears to be—and uses this principle in a polemical way. All ideas, he maintains, are grounded in sense impressions. But what does it mean to say that the appearances are of “atoms confounded with one another”? On the face of it, such a report of appearances would be a rank contradiction. The Kalam (even Maimonides’ Kalam) never adopted such an extreme empiricism, and never said that all ideas are generated from sense impressions. Maimonides cites the following objection to the “Kalamist” theory of space and time: consider a rigid disk (a millstone) rotating at constant angular velocity. A point close to the center moves more slowly than a point on the circumference, which means on the “Kalam” hypothesis that the point close to the center “rests” while the point on the circumference is moving, contradicting the experienced rigidity of the disk. This objection is an attack, not only on Proposition I, but on the coherence of “raw” imagination. Proposition I implies, as Hume says, that there must be a limit to the division of matter, since the infinite divisibility of matter is not imaginable (because not perceivable), while atoms are imaginable. At the same time, we can imagine a rigid disk. Maimonides in effect is saying that the imagination, and pure sense perception, uncorrected by the mind, gives contradictory indications. In giving my arguments against Hume’s theory of the imagination based on the clock, I should have known that Maimonides preceded me by hundreds of years. To this objection, the “Kalamists” reply that the absolute rigidity of any disk is an optical illusion, and the twelfth postulate covers this. In this kind of motion, the particles of the disk move independently. The next objections to the Kalam involve their “horrific” denial of the exactness of Euclidean geometry. The opinions which Maimonides attributes to the Kalam would almost make it seem that Hume read their work: Furthermore, the doctrine that I have mentioned to you with regard to motion is not more abhorrent than the assertion going with this view that the diagonal of a square is equal to one of its sides, so that some of them say that the square is a nonexistent thing. To sum up: . . . all geometrical demonstrations become invalid, and they belong to either one or the other of two categories. Some of them are absolutely invalid, as for instance those referring to the properties of incommensurability and commensurability of lines and planes and the existence of rational and irrational lines and all that are included in the tenth book of Euclid and those that resemble them. As for the others, the demonstrations proving them are not cogent, as when we say we want to divide a line into two equal halves. For in the case in which the number of its atoms is odd, the division of the line into two equal parts is impossible according to their assumption. (Guide 1:73, p. 198)

Hume and Maimonides on Imaginability and Possibility

131

Compare to this the quotations from Hume (pp. 128 and 129). The account of the infinite which Maimonides attributes to the “Kalam” is thoroughly Humean. Aristotle, of course, rejected the actual infinite, but notoriously accepted the potential infinite. In fact, this is one of the central applications of his distinction between the potential and the actual. In his Physics, for example, he speaks of an infinite chain of Olympic games (Physics Book III, Part 6): at no time do we have a history of infinitely many games, but at the same time, it is always possible to add another event four years later. Both Hume and the “Kalam” deny all kinds of infinities: the interval, as we have seen, for both of them, is not infinitely divisible even potentially, since the division ceases when we hit an atomic interval; nor is time, as a series of atomic “events,” infinite. Maimonides claims that here Proposition I suits their theology, as they wanted to eliminate even the possibility of the world being eternal (in either direction). This leads me to an interesting point. All Maimonides’ counter-examples to Proposition I involve examples of possibility, which are actually also examples of necessity. The properties of the asymptotes of the hyperbola are possible, but the reason is that they are necessary. He never gives an example of a proposition that is contingent (possible but not necessary) which is unimaginable. The reason seems to be that for Maimonides, as for Aristotle, what is possible is that which will be actual in the fullness of time.¹⁶ The Kalam, however, didn’t believe in the fullness of time, so counter-examples like that would beg the question. We can now take stock. Maimonides’ attack on the imagination as a guide to possibility includes an argument which purports to show that “raw” imagination, unaided by the mind, gives an incoherent picture of the world. In my opinion, similar arguments can be brought against Hume’s extreme reliance on the imagination to arrive at a non-Euclidean mathematics identical to the one that repelled Maimonides in the Middle Ages. I would like now to apply the preceding analysis to contemporary philosophy. A recent attempt to found arithmetic on the imagination is Charles Parsons’s Mathematical Thought and its Objects. Parsons, to be sure, does not believe that everything possible is imaginable even in his sense, since even mathematical intuition is incapable of grounding many mathematical propositions that Parsons would not dream of questioning. But he does seem to believe that what is imaginable is possible. Perhaps he would accept Hume’s formulation: “Nothing we can imagine is absolutely impossible.” In his chapter on mathematical intuition (Parsons 2008: ch. 5), Parsons refers repeatedly to imagination and its connection to intuition when he mentions Husserl (p. 145), Kant (p. 150), and Hilbert. Here I will focus only

¹⁶ Schwarz points this out in a note; I was alerted to the fact that the main historical difference between the conception of the modalities in Maimonides and in the Kalam was this by Josef Stern.

132

Mark Steiner

on what Parsons himself has to say about the connection between the two when he says (p. 155) that he “views the intuition that concerns us as founded on perception and imagination.” This implies that intuition is not imagination, but is “founded” in part on the latter. This doctrine of Parsons is part of an attempt to demonstrate that mathematical intuition is a legitimate foundation for the most elementary part of mathematics. I will argue that to make even this point, which I myself am sympathetic with, Parsons needs to strengthen the traditional notion of imagination to the extent that the distinction between founding intuition on imagination and identifying intuition with imagination becomes moot. Inspired by Hilbert, Parsons considers “strings” of strokes, where the strings are not physical objects, but are related to physical strokes as types are to tokens. Parsons speaks of tokens as “instantiating” types, although there is a puzzling passage¹⁷ in which he talks about a physical string ||| | “imperfectly instantiating” the type of the token ||||, which reminds me of the “participation relation” of Plato’s Republic. Parsons insists that we can perceive, and imagine, not only the tokens, which he calls “stroke inscriptions,” but also the types themselves or the strings of strokes, since the latter are what he calls “quasi-concrete.” These perceptions and imaginations are the foundation of mathematical intuition, according to Parsons. Now although there may not be enough material in the world to make indefinitely large tokens, or stroke inscriptions, we can always imagine that there is; hence imagination can be added to perception as a “foundation” of intuition. Parsons argues that we can imagine an “arbitrary string,” i.e. a string with no imaginable number, and imagine another one being added. What is imaginable is possible. This is the intuitive foundation of the axiom that every number has a successor. Though some, like Bishop Berkeley, balk at the notion that an “arbitrary string” is imagined as having a number at all, Parsons insists that there is nothing wrong with the idea of imagining an arbitrary stringinscription, and hence nothing wrong with the idea of imagining an arbitrary string, and even imagining it as having a number, without being able to say what number it is being imagined to have. Parsons recognizes (2008: 246) that he needs to show that by adding a stroke to a string, we get a different string than the one we had before—in order to ground the axiom that the successor of a number is not equal to the number itself, i.e. that the successors of two numbers are the same, only if the numbers themselves are the same. He argues that in fact this is the case, because when we imagine a new stroke, we can separate it from the old one in

¹⁷ Ofra Rechter was kind enough to point out this passage to me.

Hume and Maimonides on Imaginability and Possibility 1 3 1

1

2 3

2

2

3

3

1

4

3 3

2

5

133

3

6

1

7

2

8

3

9

1

10

Fig. 7.3 10 = 3 × 3 + 1 (Wittgenstein 1978: 74)

the imagination in such a way that the old string remains the same and thus we have a different one from before (in the imagination). But here we run up against a famous passage from Wittgenstein’s Remarks on the Foundations of Mathematics (Wittgenstein 1978: 74): The following might serve as a model of an “internal property”: Now when I say: 10 strokes necessarily consist of 3 times 3 strokes and 1 stroke—that does not mean: if there are 10 strokes there, then they have always got these figures and loops round them.—But if I put them in, I say that I was only demonstrating the nature of the group of strokes.—But are you certain that the group did not change while you were writing those symbols in?—“I don’t know; but a definite number of strokes was there; and if it was not 10 then it was another number, and in that case it simply had different properties.—”

Similarly, we can ask: if we would like to ground the intuition that every number has a successor on the imagination, it seems plausible to me that one should be able to imagine a long string-inscription being extended by one stroke-token with the others remaining the same. Now try to imagine the same thing, except that the remainder shrinks by one token, imperceivably. To me these are the same thing. This Hume-style thought experiment persuades me, at least, that intuition (a notion that I am sympathetic with) needs more than the traditional concept of imagination here, so that I don’t know what is gained by saying that intuition is founded on imagination, other than saying that the axiom that every natural number has a successor, “forces itself upon us as true,” to paraphrase Gödel on set theory (Gödel 1984). B I BL I OG R A P H Y Berkeley, G. 1988. Principles of Human Knowledge / Three Dialogues. London: Penguin Books. Gödel, K. 1984. “What is Cantor’s Continuum Problem?” In: P. Benacaraff and H. Putnam, eds., Philosophy of Mathematics: Selected Readings. Cambridge, MA: Harvard University Press, pp. 470–85. Jesseph, D. M. 1993. Berkeley’s Philosophy of Mathematics. Chicago and London: University of Chicago Press.

134

Mark Steiner

Maimonides, M. 1963. The Guide of the Perplexed. Trans. S. Pines. Chicago: Chicago University Press. Maimonides, M. 1983. “Eight Chapters.” Ethical Writings of Maimonides. Ed. and trans. R. L. Weiss and C. E. Butterworth. New York: Dover, pp. 59–104. Maimonides, M. 2002. The Guide of the Perplexed. Trans. (into Hebrew) Michael Schwarz. Tel Aviv: Tel-Aviv University Press. Parsons, C. 2008. Mathematical Thought and its Objects. New York: Cambridge University Press. Steiner, M. ed. 2013. A Treatise of Human Nature: Translated into Hebrew with an Original Introduction by Mark Steiner. Jerusalem: Shalem Press. Wittgenstein, L. 1978. Remarks on the Foundations of Mathematics. Cambridge, MA: MIT Press.

8 Dispassion, God, and Nature Maimonides and Spinoza Daniel Frank

Ever since the heyday of Wolfson, Strauss, and Guttmann, and more recently, though some decades ago now, since the appearance of important work by Pines (1987, 1990) and Harvey (1981), and finally in even more recent work by, inter alios, Nadler (2008, 2014), Ravven (2001a, 2001b), and Fraenkel (2006), historians of philosophy have discerned connections between Maimonides and Spinoza on a variety of philosophical positions. Issues in prophetology, epistemology, ethics, law, cosmology, politics, philosophical anthropology, modal necessity, metaphysics, and eschatology have all been scrutinized in a comparative way. Some scholars conclude their analyses by seeing Maimonides as a kind-of Spinozist malgré lui (committed to “naturalist” positions with regard to prophecy and cosmology), others conclude by seeing Spinoza as the last of the medievals, and still others, in wishing to maintain a strict dichotomy between Athens and Jerusalem (Parens 2012), see an unbridgeable gulf between Maimonides and Spinoza. Connections, real or imagined, have been discerned between these two thinkers who lived almost 500 years apart, and perhaps all taking an interest in these two thinkers come away pausing to reflect on the plausibility of periodizing the history of philosophy in Europe in the strict, compartmentalized ways as we normally do. A recent collection, edited by Nadler under the title Spinoza and Medieval Jewish Philosophy (2014), certainly forces a salutary reconsideration of the roots of early modern philosophy, and of the deep dichotomous division between medieval and early modern philosophy that sees the history of philosophy proceeding unidirectionally. In passing, it should be noted that this attenuation of historical markers is paralleled in work revealing connections between Descartes (the first “modern” philosopher) and his medieval and even ancient forebears (Menn 1998). Perhaps the lesson to be learned from reading philosophy in context is that time’s arrow runs bidirectionally in the history of philosophy, Daniel Frank, Dispassion, God, and Nature: Maimonides and Spinoza. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0008

136

Daniel Frank

between anachronism and antiquarianism. Our dialogue with the past is both evaluative and contextualizing. This chapter participates in this philosophical dialogue between Maimonides and Spinoza. It is part of a bigger project, tentatively entitled Dispassion and Engagement: Studies in Maimonides and Spinoza. As the subtitle indicates, it is a comparative study in the history of philosophy, and this chapter presents a few thoughts on dispassion in Maimonides and Spinoza. For Maimonides and Spinoza, respectively, knowledge and imitation of God, on the one hand, and a deep understanding of and assimilation to divine, eternal Nature, on the other, is the summum bonum, and this entails dispassion (freedom from the passions, apatheia) and a considerable diminution of affect toward the world and what is conventionally taken to be of value. This (what we might call) “Stoic” element in their moral psychology is interesting and even surprising for a number of reasons. First, it seems to ill-consort with Maimonides’ general “Aristotelianism” (in the present context, his commitment to the development of a pretty standard set of character virtues);¹ and second, given the severity of Spinoza’s critique of Maimonides and the entire medieval theistic tradition, a fine irony may be discerned in the very commonality of their views of the human good and the importance that each places on dispassion as a corollary of any deep understanding of God or Nature.

8.1. MAIMONIDES ON ANGER AND IMITATION OF GOD Maimonides is hardly the first philosopher to locate the summum bonum in imitatio Dei. We already find this choice in Plato’s Theaetetus (176a–c), where he writes, “to become like a god (homoiosis theo) is to become just and pious, with intelligence,” for “a god is as just as is possible to be and there is nothing more like a god than one of us who has become as just as possible.” (Doubtless, Plato has Socrates in mind, who at his death is described at the very end of the Phaedo (118a) as “the wisest and the most just”—phronimotatos kai dikaiotatos.) Further, divine providential concern is alluded to in Republic 10 (613a–b), where Plato says of a just man, that “he will never be neglected by the gods if he is willing to be serious about becoming just, practice virtue, and become as much like god as it is possible for a man to be.” To escape our mortal nature to the extent that we can demands assimilation to divine-like ways. Here the gods are presumed to be moral paradigms who guide, or ought to guide, our human journey. ¹ MT Hilkhot De‘ot, chapter 1.

Dispassion, God, and Nature: Maimonides and Spinoza

137

With Aristotle, the issue at hand is rather more complicated. Famously addressed at the very end of the Nicomachean Ethics (10.7–8), Aristotle poses there a kind-of beauty contest between lives, between a life devoted to moral virtue and a life devoted to intellectual virtue. For Aristotle, a life devoted to theoria, the very highest of intellectual activities, takes the prize. And such a life, a function of the activity of nous, is divine by its very nature, for god is (identified with) nous. To the extent that we humans identify with this (divine) part of our being and act in accordance with it, we achieve the summum bonum, even a kind-of immortality (athanatizein, at 1177b33). It should be noted that such a life is amoral by its nature, and Aristotle (2009) writes, We assume the gods to be above all other beings blessed and happy; but what sort of actions must we assign them? Acts of justice? Will not the gods seem absurd (geloioi) if they make contracts and return deposits, and so on? Acts of a brave man, then, confronting dangers and running risks because it is noble to do so? Or liberal acts? To whom will they give? It will be strange (atopon) if they are really to have money or anything of the kind . . . (NE 1178b)

Well, you get point. The gods are above mortal and mundane concerns, and so should we be if we are to achieve the summum bonum. With this very brief survey, we are able to isolate two understandings of divine activity, activity that provides the telos for human life. Put another way, we have in Plato and Aristotle two glosses on imitatio Dei: a moral/political gloss and an amoral one. Both are founded on views of human nature, and in this sense both Plato’s and Aristotle’s positions are species of ethical naturalism. All this is pretty obvious, and we could at length debate various tensions between Plato’s metaphysical dualism and his choice of moral paradigmatism on the one hand, and Aristotle’s hylomorphism and his own choice in the Ethics of the contemplative ideal on the other. But for present purposes I wish just to set out these options. And now I want to signal that Maimonides chooses neither of these options. Of course, there is no reason he has to choose one, but he doesn’t. We can get our bearings by inspecting an important passage in Maimonides’ Guide of the Perplexed, his philosophical magnum opus. At the very end of 1.54 he writes (1995), The highest virtue to which man can aspire is to become similar to God as far as this is possible, [and] that means we must imitate His actions by our own, as has been indicated by our Rabbis in their comment on the words, Ye shall be holy [Lev 19.2]: “As He is gracious, so be thou gracious; as He is merciful, so be thou merciful” [Siphre on Deut 10:12]. The outcome of our discussion [Maimonides concludes] is thus that the attributes which are applied to Him are attributes of His actions, but He himself has no attributes.

This passage, nested within Maimonides celebrated discussion of divine attributes, is full of interest. Prima facie it appears that Maimonides’ choice of the

138

Daniel Frank

summum bonum bears close comparison to the moral paradigmatism of Plato we noted above. For both it appears that becoming godlike is to be just and gracious and merciful. Never mind that the Greek list and the rabbinic list of virtues do not overlap. For now, I stress the prima facie choice for both of moral paradigmatism as the summum bonum. But there is an important lacuna to be noted, and it falls out of Maimonides’ explicit and full presentation of the divine and His ways, as well as Plato’s silence. Let me elaborate. For Maimonides, imitatio Dei is to imitate divine activity: As the rabbis commented on Deuteronomy, “As He is gracious, so be thou gracious; as He is merciful, so be thou merciful” (Siphre on Deuteronomy 10:12). It is crucial that we understand this aright. To engage in divine activity, to act as God acts, is not just to do certain actions, but to do them just as God performs them. And how does God perform acts of mercy, etc.? In a word, “dispassionately,” without affection. On pain of idolatrous anthropomorphism, God is incorporeal, and a corollary to this is a complete absence of any (corporeal) feeling or emotion as He acts. Maimonides writes, God is called jealous, vengeful, wrathful, and furious. This means that such actions as with us would spring from psychological states like jealousy, revenge, hatred, or anger, emanate from God because those that are punished thereby have deserved them, not in consequence of any affection—far be it from us to impute to Him such lack of perfection. In the same manner all divine acts are actions that resemble human actions springing from certain affections and psychological states, but with God they do not spring from anything that is in any way superadded to His essence. (Guide 1.54)

And he continues: A ruler—if he is a prophet [and here I just note that prophecy, paradigmatically Mosaic prophecy, is the Farabian-Maimonidean analogue to the Platonic philosopher-king who legislates to the community—in fact, creates a community analogous to God creating the world²] . . . must model his conduct on these [divine] attributes. Acts of this kind should with him spring from mature reflection and be commensurate with the crime, rather than from mere affection. He should never give rein to his anger or allow his affections to get the better of him, for all affection is evil, but he must keep aloof from them as far as that is possible for man. If he does so, he will on some occasions be “gracious and merciful” [Exodus 34:6–7] to some men, not out of tenderness and sympathy, but because such a course is indicated. To others he will be “jealous, revengeful, and angry” [Nahum 1:2] because they deserve it, not out of mere annoyance. This will go as far that he may give orders to burn a man alive without being annoyed or angry or ill-disposed towards him, only because he considers that he has deserved such treatment and realizes the great benefit that is likely to accrue from such an action to many others. (Guide 1.54) ² See Berman (1961, 1974) and Frank (forthcoming).

Dispassion, God, and Nature: Maimonides and Spinoza

139

We here discern retributive, utilitarian, and desert features in the way the ruler, or the prophet, should act. But of greater importance for us now is the way in which justice is meted out. Maimonides is clear that to act as one ought, if one is to model one’s actions on the divine, is to act dispassionately, without anger, mercy, or any affection. Davidson puts the point this way: “Maimonides is exhorting the man who attains knowledge of God to imitate Him in the manner in which he interpreted imitation of God earlier in the [Guide]. God possesses no qualities, characteristics, or moral virtues; acts of lovingkindness, justice, and righteousness flow not from qualities in the soul but dispassionately, from human reason.”³ God, an incorporeal being, cannot act from any kind of habituated disposition, so the moral exemplar, the prophet, must act dispassionately, rationally if you will. We can say still more. We can philosophically contextualize Maimonides’ comments in the following manner: In adopting this gloss on imitatio Dei, Maimonides sets himself in direct opposition to Aristotle. For Aristotle, the virtue of good temper is a mean between irascibility and inirascibility (NE 4.5); for Maimonides, however, the Aristotelian vice of inirascibility is a cardinal virtue. In fact, even this latter formulation is too weak to capture Maimonides’ position, for his considered view is that total inirascibility, a complete extirpation of feelings of anger, is a virtue. The inirascible (dispassionate) person for Maimonides is one in whom the feeling of anger is absent on all occasions, even those occasions in which “it is proper to be angry” (MT Hilkhot De‘ot 2.3). For Aristotle, such a character is “slavish” (andrapododes, NE 1126a8). For him, the virtue is an appropriate anger manifesting itself in an appropriate manner on each occasion in which it is called for. There is a direct linkage for Aristotle between inner (feelings) and outer (actions). But for Maimonides, in those cases in which anger is shown, the display of anger is, in the case of the virtuous man, a total dissimulation. The (Aristotelian) linkage between inner and outer is broken. The virtuous man’s display of anger is no indication of inner feelings. In fact, if it were otherwise, if the display of anger were a manifestation of a correlative feeling of anger, then for Maimonides the actor would in no way be accounted as virtuous. The point could not be more un-Aristotelian. Let us not be misled by Maimonides’ assertion about the inirascible man, that “his mind shall be tranquil within himself, like a man who feigns anger but is not angry” (Guide 1.54). The point is not the Aristotelian one that the good-tempered man is “not led by passion . . . but as reason dictates” (NE 1125b33–1126a1). The Aristotelian good-tempered man, though not consumed by anger and feelings of revenge, is not unaffected. He feels anger, yet he controls it in the sense of directing it as reason demands in the

³ Davidson (2011: 265–6); see also Stern (2013: 340–9) and Frank (1990: 269–81).

140

Daniel Frank

appropriate manner. To feel no anger at all when one ought is no mark of virtue for Aristotle. But for Maimonides, it is precisely this lack of feeling that is praiseworthy. For Maimonides, the virtuous, inirascible man feels no anger; the emotion has been extirpated, and when the inirascible man acts angrily, he does so on the basis of no correlative feelings. Why is inirascibility, an Aristotelian vice, a virtue and a norm for Maimonides? The short answer is because inirascibility, in fact total inirascibility, is a “way” (middah) of God and Maimonides’ moral theory rests upon the commandment “to imitate His ways (derakhim)” (Deut. 28:9). As earlier noted, Maimonides’ discussion of anger and inirascibility is nested in the context of his explication of the aforementioned commandment. Once again, Maimonides’ belief that inirascibility, total inirascibility, is a virtue because it is a “way” of God must be understood aright. In imitating God’s inirascibility we are not imitating God’s lack of anger on occasions in which He ought to be angry: on such occasions He invariably is angry! Rather, we are imitating God’s lack of any feeling of anger on such occasions when He is angry. The commandment “to imitate His ways” is an injunction to perform divine-like actions as God Himself does. And given that God is by His (incorporeal) nature not subject to emotions, the commandment enjoins us to perform such actions dispassionately and without emotion, rationally if you will. When, for example, we imitate God in His mercy (Psalms 103:13; Malachi 3:17) we are, according to Maimonides, not only acting mercifully, but also acting mercifully as God does, dispassionately. God Himself feels no mercy (given His incorporeal nature), and our imitation of Him and His ways should come as close to this (lack of) feeling as possible. So far, then, we have seen Maimonides disagreeing with Aristotle in at least two ways: (1) we have noted his disagreement with Aristotle over the latter’s understanding of the summum bonum as bereft of any moral and political aspect. For Maimonides, knowledge of God and His acts of governance over His creation entail the kind of affectionless (impartialist?) engagement in the world that we have noted—and again Mosaic legislative prophecy, modeled as it is on divine creation and providential concern, is paradigmatic in this context; and (2), we have noted Maimonides’ disagreement in his critique of Aristotle’s virtue theory that grounds virtuous action in rectitude of action and feeling. Maimonides would not write, as does Aristotle, that “the man who does not rejoice in noble actions is not even good; since no one would call a man just who did not enjoy acting justly; nor any man liberal who did not enjoy liberal actions; and similarly in all other cases” (NE 1099a18–21). Nor would Maimonides hold, as does Aristotle, that “we must take as a sign of character the pleasure or pain that supervenes on acts . . . For moral virtue is concerned with pleasure and pains” (NE 1104b4–5, 8–9). For Maimonides, imitating God and His ways, following the (divine) law in the spirit in which it was promulgated, leads to apatheia.

Dispassion, God, and Nature: Maimonides and Spinoza

141

Apart from their disagreement about the summum bonum, given the very conclusion of the NE, with its claim on behalf of a contemplative ideal, grounded in divine nous and its (self-regarding) theoretic activity, we can I think pretty straightforwardly capture the disagreement here between Aristotle and Maimonides on the foundations of morality. For Aristotle, the phronimos, the man of practical (even pretty conventional) understanding who sees what must be done on any given occasion and acts accordingly, from a settled disposition and with élan, is paradigmatic. Contrarily, for Maimonides, an incorporeal, affectionless divinity plays this normative role, directing us through an eternal law. Perhaps then we should turn back to Plato and his moral paradigmatism to better understand Maimonides’ position on imitatio Dei and the summum bonum. There is much to compare here, especially fruitful is his Mosaicprophetic reworking of the Platonic notion of the philosopher-king, and in this regard, as often noted, Maimonides follows in the footsteps of Farabi. Both philosopher and prophet order the state on the basis of eternal truths and divine creation.⁴ But there is no analogue in Plato that I readily discern to the kind of imitatio Dei that entails an extirpation of all affect. “To become just and pious, with intelligence” (Theaetetus 176a–b) tells us nothing about the nature of the divine paradigm we are to imitate. To act as God acts by performing actions in an affectionless manner is not easily to be found in Plato. “Participation” in the form of Justice by acting justly is not an analogue to acting as God acts. Furthermore, Platonic tripartition of the soul (ex hypothesi no mere metaphor), with, in its optimal state, reason ruling in a harmonizing way (Republic 442c–d), offends against imitatio Dei as grounded in divine unity, which would hardly seem to entail a harmonizing and “agreement” of disparate psychic parts. As we have noted, imitating God and His ways, and following the (divine) law in the spirit in which it was promulgated, leads to apatheia, not metriopatheia. I note just in passing that in an interesting article, “The Ideal of Godlikeness,” David Sedley suggests that Plotinus in Ennead 1.2 “has good [Platonic] textual warrant” for an (amoral) gloss on Platonic homoiosis theo (godlikeness).⁵ For Sedley, Plotinus picks up hints in the Republic and the Timaeus about the diminution of the habituated virtues (called “demotic” [demotike] at Republic 500d8) and a correlative presumption about, as Sedley puts it, “the godlike state of the rational soul taken in isolation.”⁶ If Sedley is to be followed here in this amoral reading of Platonic (and Plotinian) homoiosis theo, then, as he puts it, “Platonic [Plotinian] and Aristotelian contemplation are very much the same intellectual activity,” and the best life (for Plotinus, ⁴ See Galston (2014: chapter 3) and Frank (forthcoming). ⁵ Sedley (1999: 322–4). ⁶ Sedley (1999: 323). MacKenna (1991) translates the relevant passage in Ennead 1.2.5, “the soul withdraws to its own place.”

142

Daniel Frank

a life of “purificatory” virtue) is seemingly shorn of any practical, moral aspects.⁷ And with this we must turn our attention elsewhere to draw together those aspects of Maimonides’ normative moral theory in which dispassion is a corollary.

8.2. A STOIC INTERLUDE AND THEN SPINOZA

8.2.1. Stoics That extirpation of the passions, acting in an affectionless way, need not entail contemplative otherworldliness and can be rendered consistent with exemplary moral action is shown by a passage such as this: “The good man will do his duty, undismayed and undaunted; and he will do what is worthy of a good man without doing anything unworthy of a man. ‘My father is about to be killed—I will defend him; he has been killed—I will avenge him; not because I am pained, but because I should’” (Seneca, De Ira 1.12.2). Earlier in this chapter we highlighted anger and saw how it could serve to distinguish Aristotle’s virtue theory from Maimonides’, a theory that was grounded in phronesis and the phronimos from one grounded in incorporeal divinity and eternal, divine law. Now with a Stoic model, the sage—the Stoic moral exemplar—we can I think get a better sense of the arc of prophecy. At the top end, the Stoic sage and the Maimonidean prophet, especially Moses, join company, at least insofar as they both ground paradigmatic moral action as modeled on a dispassionate, divine agent. In the case of Maimonides, the dispassionate agent is the incorporeal God, and imitatio Dei and acting as God acts entails, as we have seen, affectionless dispassion. In the case of Stoicism, the role of God is taken by Nature, and living in accordance with divine Nature, or, as Chrysippus says in book one of his lost treatise On Goals, “living according to the experiences of events which occur by nature,” entails apatheia. How so, precisely? As a bridge from where we have been to where we are going, let this last characterization of the summum bonum of Chrysippus suffice. Understanding and following/“living according to” (determinist) impersonal Nature decenters us, transforms our values and priorities, and catapults us beyond the kind of parochialism and localism that stands in the way of more universal, global, and “selfless” concerns. The self is amplified as our reason syncs with the logos, the order of nature. The progression of oikeiosis (“akin-ity” as we might call it) is from self-preservation and self-concern to global, cosmopolitan concern. ⁷ See also Dillon (1996: 320–1).

Dispassion, God, and Nature: Maimonides and Spinoza

143

Such a transformation carries with it an alienation from narrow self-regard and a correction of the (misguided) belief about the absolute value of what the Stoics characterized as “indifferents” (adiaphora). The Stoics understood the ultimate goal for rational beings as homologia (“agreement” or “consistency”), an “agreement” with our rational nature and the divine Nature of which we are a part.⁸ All this is pretty standard Stoic stuff, but I think Mosaic legislative prophecy comes into clearer focus from this vantage point. The Maimonidean prophet and the Stoic sage, by contrast to the Aristotelian phronimos, ground moral and political action in a being eternal, infinite, indivisible, rational, and one. It is also a being that guides the world providentially and through divine, exceptionless, and rational law, or even is (is to be identified with) that order. If the summum bonum is to be understood as imitation of God, acting as God acts, or as living in accordance with (impersonal) Nature (kata phusin), aligning one’s priorities with reason and a rational order, then modeling one’s actions on the divine entails dispassion (apatheia) and an exceptionless, impartial legalism, law-likeness, even, we might say, a “dutyboundness.” Such a viewpoint, grounded as it is upon a divine agent and an impartial, universal law, also carries with it a keen sense of the finitude of human life and existence. So, we read in Maimonides, The fool and his fellow from among the vulgar look upon the world only from the point of view of a human. Every fool thinks the whole world exists for his sake, as if there were nothing but he himself: if things turn out contrary to his desires, he concludes that all the universe is bad. If man would but examine the universe and picture it to himself, and realize clearly his small importance within it, he would understand the truth in all its clarity. (Guide 3.12)⁹

For Maimonides, indeed for the Stoic sage as well, knowledge and the right perspective are key to overcoming the mental travail and fear that besets one who has, and orders his life according to, deeply misconceived expectations. Knowledge of God and His ways, and imitating those, and living, ordering one’s life in accordance with and an understanding of an eternal, invariant order (a rational logos) has the effect of rendering the agent invulnerable, safe from fortune’s vicissitudes, precisely because one has a keener sense of what is and what is not under one’s control and of what is of real, durable value. From the divine perspective (sub specie aeternitatis), everything happens as it should, as it must, given divine providence—whether I approve or not. Stoic indifference to and sundering passionate engagement with material goods, and the rectification of belief with respect to false judgments of value accorded to ephemeral, material goods follows. For Maimonides, the fable of Job and his ⁸ Diogenes Laertius (DL), Lives of the Philosophers, 7.87–9. ⁹ Looking ahead, compare this passage with the preface to Spinoza’s Tractatus TheologicoPoliticus (TTP), as well as the appendix to part I of the Ethics.

144

Daniel Frank

suffering follows along the same lines.¹⁰ So long, and just so long as, Job did not know God—that is, did not understand the ways of the world on account of his following hearsay and a vulgar understanding—he suffered. His suffering was very much of his own making, grounded in a false conception of what was valuable and what was under his control. But once his perspective was altered (through divine intervention to be sure), his suffering—again, grounded in a false conception of value—dissipated. Divine providential concern and the invulnerability that attends this liberation is a function of wisdom, and Maimonides says in Guide 3.51 (128a), “When a man has achieved purity of thought, clear perception of God by the proper methods, and beatitude through that which he perceives, it will never be possible for evil of any kind to befall him, because he is with God and God is with him . . . ” It is no different with the Stoic sage, whose understanding the nature of and consequent indifference to material goods follows hard on an understanding of the cosmos and of what is in our power. Such intellectual insight is salvific. It corrects misunderstandings about the real value of material goods, and such rectification of belief dissipates the irrational and passionate attachments to them, rendering one less vulnerable to misfortune. While material goods have an instrumental and local value, they have no absolute value or inviolability. And this insight carries with it a diminution of concern about them, and a correlative diminution of emotional involvement and attachment. In the end, moral agency is to be understood as decisively severed from emotional attachment and the vulnerability that this entails. There is no fragility of goodness in this story.

8.2.2. Spinoza We turn now to Spinoza. Spinoza’s critique in the Tractatus TheologicoPoliticus of the entire monotheistic tradition, with its superstitious beliefs in a transcendent creator, miracles, etc., is the most robust of the early modern period, and, without going into details now, he has Maimonides firmly in view.¹¹ He finds Maimonides’ way of proceeding to be deeply objectionable, question-begging, and insufficiently historical.¹² For Spinoza, divinity is not to be applied to a transcendent, incorporeal being, but rather to Nature, a selfsufficient causa sui—the one, infinite, absolute substance. Nature through herself is the cause of everything else, which latter owes reality and understanding to this source. As we shall proceed, a fine irony is hard to miss. Spinoza, the harsh critic of Maimonides, shares with him dispassion as falling out of a proper understanding of divinity. No less than the dispassion that is ¹⁰ Guide 3.22–3. ¹¹ TTP chapter 7 (Curley 2016: 7.75–87). ¹² For some thoughts on Spinoza’s critique of Maimonides, see Frank (2017: 46–55).

Dispassion, God, and Nature: Maimonides and Spinoza

145

entailed by knowing and loving God, and acting as God acts, so a salvific dispassion flows from an understanding of Nature and the causal necessity that inheres in it, or perhaps even is it. In getting clear on, in coming to understand precisely how singulars are causally dependent on, embedded in, their source, ultimately on divine Nature, we are pushed from contingency, from the way we were when we lacked such understanding and lived “from too much love toward a thing which is liable to many variations and which we can never fully possess” (Ethics 5p20, scholium). In Ethics 5p3, Spinoza writes, “An emotion, which is a passion, ceases to be a passion, as soon as we form a clear and distinct idea thereof.” As we come to comprehend the etiology of the passion, whence it arises and upon what it draws life, it loses its grip on us. What holds us in thrall is emasculated by an understanding of its real (unreal!) nature. And in 5p6 and the scholium ad loc., he writes, “The mind has greater power over the emotions and is less subject thereto, in so far as it understands all things as necessary”; and in the scholium: The more this knowledge that things are necessary is applied to particular things, which we conceive more distinctly and vividly, the greater is the power of the mind over the emotions, as experience also testifies. For we see that the pain arising from the loss of any good is mitigated as soon as the man who has lost it perceives that it could not by any means have been preserved . . .

Spinoza is clear that mental and emotional disturbance (grounded in our dependence upon the (external) source of the irrational passion) is a function of lack of knowledge (5p38). For Spinoza, knowledge of foundational principles, the order of nature, and the causal understanding that proceeds from this, is salvific. It is transformative, as it was for the classical Stoics, even as Spinoza is clear that the mind’s power over the affects is limited (preface to Ethics 5). In achieving a kind of immortality by understanding things sub specie aeternitatis, we are delivered, as was Job, from “sickness of the mind and misfortunes” by correcting false judgements about the (presumed) real value of material goods. Spinoza is clear that we are vulnerable and at risk (perhaps “mortal” in this sense) when we live and prioritize our life “from too much love toward a thing which is liable to many variations and which we can never fully possess” (5p20, scholium). The enemy of our happiness, our blessedness, are those false judgments, and passive affections, that wed us to the transitory and the ephemeral, to the ever-changing flux of worldly goods— a point Spinoza makes from as early as the Treatise on the Emendation of the Intellect.¹³ To come to understand the true nature of these objects and their place within Nature is to come to an understanding and a modus vivendi that is disengaged from a deep, abiding, and troubling commitment to what is in fact not under our control. Dispassion, freedom from “human bondage,” ¹³ TIE, ab init., paragraphs 1–11 (Curley 1985).

146

Daniel Frank

attends such understanding and the rectification of belief. What follows for Maimonides from knowledge and love of God, and acting as God acts, follows for Spinoza from an understanding of Nature and her order, and living in accordance with this understanding. No less than for Maimonides, such dispassion is divine. The mind’s intellectual love of God (amor Dei intellectualis) is an active, stable, abiding love for a perfect being, whose nature is by necessity dispassionate, a “God without passions,” as Spinoza puts it in 5p17.¹⁴ And the greater our love and understanding of this object, the more power we gain over the affects and mitigate their power over us;¹⁵ in this way, a kind-of divine providential concern attends such divine love and understanding. Dispassion, modeling oneself on God (being godlike), is a function of understanding. And living in the light of such understanding is true blessedness and “freedom from bondage,” for Spinoza. For both Maimonides and Spinoza, the summum bonum for human beings is a function of knowledge and understanding, and divine providential concern, an invulnerability emanating from God or Nature, attends this.¹⁶

8.3. CONCLU SION In further, related work I will say more about connections between divine law, impartiality, and the summum bonum in Maimonides and Spinoza. Meanwhile, in this chapter I have tried to shed light on some unexpected links between Maimonides and Spinoza. “Unexpected” because Spinoza is such a critic of Maimonides. So, we have here a case of “(s)he doth protest too much.” I have tried to compare them both, each in his own way, as reminiscent of classical Stoicism. Often one reads of this with regard to Spinoza, and there are books and lots of articles about Spinoza’s indebtedness to Stoicism. To my knowledge one never, or at most rarely, sees this connection with regard to Maimonides,¹⁷ except via a secret Maimonidean commitment to the eternity of the world and the determinism that is taken to follow from this—and generally this commitment is understood as an “Aristotelian” moment in his thought.¹⁸ ¹⁴ For remarks on the nature of love of God in Spinoza, and “why [it] is not just another passion,” see Nadler (2006: 258–9). ¹⁵ Ethics 5p6 and scholium. ¹⁶ The corollary to 5p36 clarifies the close connection, indeed identity, between salvific divine love (providential concern) and the intellectual love of God. This corollary bears comparison with the end of Guide 3.17 (37b). ¹⁷ For a mention of Stoicism with regard to Maimonides, see Ivry (2016: xii, 219), Davidson (2011: 265), and Stern (2013: 368). ¹⁸ Guide 2.25; see also Guide 2.36 for attribution to Aristotle of the “shame” that attends the sense of touch and corporeal desires.

Dispassion, God, and Nature: Maimonides and Spinoza

147

For my part, I discern no explicit Maimonidean commitment on this latter score, but it does seem to me to follow that knowledge of God and acting as the incorporeal one acts entails dispassion, no less than does an understanding of natural necessity and the correlative disengagement from ephemera and from what is outside our control that acceptance of this latter entails. I am not really in a good position to judge, but in the end the debate here between theism and determinism seems to foreground one between Spinoza and his own critic, Leibniz, on the nature of divine freedom and the connection between perfection and necessity. But that’s another story.¹⁹ B I BL I OG R A P H Y Aristotle (2009) The Nicomachean Ethics (trans. W. D. Ross; rev. L. Brown). Oxford: Oxford University Press. Berman, L. (1961) “The Political Interpretation of the Maxim: The Purpose of Philosophy is the Imitation of God.” Studia Islamica 15: 53–61. Berman, L. (1974) “Maimonides, the Disciple of Alfarabi.” Israel Oriental Studies 4: 154–78. Curley, E., ed. and trans. (1985 and 2016) The Collected Works of Spinoza, 2 vols. Princeton: Princeton University Press. Davidson, H. (2011) Maimonides the Rationalist. Oxford: Littman Library of Jewish Civilization. Dillon, J. M. (1996) “An Ethic for the Late Antique Sage.” In: L. P. Gerson, ed., The Cambridge Companion to Plotinus. Cambridge: Cambridge University Press, pp. 315–35. Fraenkel, C. (2006) “Maimonides’ God and Spinoza’s Deus sive Natura.” Journal of the History of Philosophy 44: 169–215. Frank, D. (1990) “Anger as a Vice: A Maimonidean Critique of Aristotle’s Ethics.” History of Philosophy Quarterly 7: 269–81. Frank, D. (2017) “Meaning, Truth, and History.” In: D. Frank and A. Segal, eds., Jewish Philosophy Past and Present: Contemporary Responses to Classical Sources. New York and London: Routledge, pp. 46–55. Frank, D. (forthcoming) “Law and Order: The Birth of a Nation and the Creation of the World.” In: S. Kepnes, ed., The Cambridge Companion to Jewish Theology. Cambridge: Cambridge University Press. Galston, M. (2014) Politics and Excellence: The Political Philosophy of Alfarabi. Princeton: Princeton University Press. Harvey, W. Z. (1981) “A Portrait of Spinoza as a Maimonidean.” Journal of the History of Philosophy 19: 151–72. Ivry, A. (2016) Maimonides’ Guide of the Perplexed: A Philosophical Guide. Chicago: University of Chicago Press.

¹⁹ Thanks to Chris Martin, Steve Nadler, Brandon Rdzak, Lynn Parrish, and Tom Doyle for helpful discussions on this topic.

148

Daniel Frank

MacKenna, S., trans. (1991) Plotinus: The Enneads (abridged, with introduction and notes, by J. Dillon). London: Penguin Books. Maimonides (1995) The Guide of the Perplexed (trans. C. Rabin). Indianapolis: Hackett. Menn, S. (1998) Descartes and Augustine. Cambridge: Cambridge University Press. Nadler, S. (2006) Spinoza’s Ethics: An Introduction. Cambridge: Cambridge University Press. Nadler, S. (2008) “Theodicy and Providence.” In: S. Nadler and T. Rudavsky, eds., The Cambridge History of Jewish Philosophy: From Antiquity through the Seventeenth Century. Cambridge: Cambridge University Press, pp. 619–58. Nadler, S. (2014) “Virtue, Reason, and Moral Luck: Maimonides, Gersonides, Spinoza.” In: S. Nadler, ed., Spinoza and Medieval Jewish Philosophy. Cambridge: Cambridge University Press, pp. 152–76. Parens, J. (2012) Maimonides and Spinoza: Their Conflicting Views of Human Nature. Chicago: University of Chicago Press. Pines, S. (1987) “Spinoza’s Tractatus Theologico-Politicus and the Jewish Philosophical Tradition.” In: I. Twersky and B. Septimus, eds., Jewish Thought in the Seventeenth Century. Cambridge, MA: Harvard University Press, pp. 499–521. Pines, S. (1990) “Truth and Falsehood versus Good and Evil: A Study in Jewish and General Philosophy in Connection with the Guide of the Perplexed.” In: I. Twersky, ed., Studies in Maimonides. Cambridge, MA: Harvard University Press, pp. 95–157. Ravven, H. (2001a) “Some Thoughts on What Spinoza Learned from Maimonides about the Prophetic Imagination, Part One: Maimonides on Prophecy and the Imagination.” Journal of the History of Philosophy 39: 193–214. Ravven, H. (2001b) “Some Thoughts on What Spinoza Learned from Maimonides about the Prophetic Imagination, Part Two: Spinoza’s Maimonideanism.” Journal of the History of Philosophy 39: 385–406. Sedley, D. (1999) “The Ideal of Godlikeness.” In: G. Fine, ed., Plato 2: Ethics, Politics, Religion, and the Soul. Oxford: Oxford University Press, pp. 309–28. Stern, J. (2013) The Matter and Form of Maimonides’ Guide. Cambridge, MA: Harvard University Press.

10 The Fabric of Faith Howard Wettstein

. . . one speaks of the moral feeling, of the religious feeling, as if they were absolute unities; in reality they are streams with a hundred sources and tributaries. Friedrich Nietzsche (2006: 23)¹ The thoughtless believes every word, but the prudent looks where he is going. Proverbs 14:15

At the heart of religion—at least the way we think about it nowadays—is the belief that there exists a supernatural God. How strange it will seem that the concept of belief is not to be found easily in the Hebrew Bible. One has to look long and hard for anything like our “cognitive assent” idea.² Not so for a related notion, emunah (in Hebrew), one that is closer to our word “faith” than it is to “belief.” What is emunah? How exactly is it different from belief? The notion is central to the religious way of Tanakh (the Hebrew Bible). C. S. Lewis in Mere Christianity provides an entry point for discussion. For Lewis, belief based on reason is fundamental; he does not recommend belief in Christianity unless one sees it as rationally plausible. Having come to Christianity in some such way, however, it will not be long until one is tempted to fall short of one’s commitments (Lewis 2001: 140). Faith—quite a different thing than belief— is primarily a matter of follow-through, the ability to live up to one’s commitments.³

¹ He concludes, anticipating James, Dewey, and especially Wittgenstein’s family resemblance idea, “Here also, as so often happens, the unity of the word is no security for the unity of the thing.” ² The quote from Proverbs is thus the exception. How ironic, given its message. ³ Failing this—Lewis thinks that human nature makes this impossible—one comes to see that he must rely upon God (Lewis 2001: 141–3). Howard Wettstein, The Fabric of Faith. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0010

184

Howard Wettstein

The late Robert Bellah, a liberal Christian sociologist, goes an important step further, one that brings him into contact with Jewish writers like Heschel and Buber.⁴ Belief, he insists, is not the biblical notion, not even for a great portion of the New Testament. Nor is it the pivotal notion in traditional western religion: Unbelief, like “theology” is a product of the Greek mind . . . Where the word “belief” is used to translate the biblical Hebrew and Greek it means not the “belief that” of Plato, but “belief in,” a matter not of cognitive assent but of faith, trust, and obedience . . . Plato’s “theology” is not in fact an accurate apprehension of traditional religion. It is the self-conscious intellectual’s translation of that religion into terms that he can understand. (Bellah 1991: 216)

A. J. Heschel (1997: 53) makes the point this way: In Judaism, yirat hashem, the awe of God, or yirat shamayim, the awe of heaven, is almost equivalent to the word “religion.” In biblical language the religious man is not called “believer,” as he is for example in Islam (mu’min), but yere hashem.

Martin Buber, in Two Types of Faith (2003), provides an elaborate and elaborated treatment of the conception that I am after. It is not so much that he exhausts the topic—as I’ll explain, I’m not sure that can be done. But he does point the way, providing more than enough to make evident the richness of the topic, the streams and tributaries of which Nietzsche wrote. What follows is inspired by Buber’s discussion, integrated with my own sense of religious life. Buber’s distinction between two types of faith is just the distinction to which I have been attending, between the doxastic notion, belief in doctrine, and the Bible’s emunah. Buber knowingly oversimplifies, writing as if the first is the Christian idea and the second, the Jewish. Both approaches are available in each tradition. Still, thinks Buber, faith, emunah, has a special connection to Jewish tradition. Likewise with belief in doctrine in Christian tradition.

1 0. 1 . F A I T H , E M U N A H, AS A STANCE: TURNING, TRUST, S UBMISSION, AND OPENNESS Emunah is not to be thought of as cognitive assent to a proposition. It is no mere state of the head, something internal to consciousness.⁵ It is rather, in my language, a stance, an attitude in an almost nautical sense, as if the agent were ⁴ See esp. “Religion and Belief ” in Bellah 1991. ⁵ Not that belief is simply a state of the head. See chapters 8 and 9 of my book, The Magic Prism (Wettstein 2004), for my treatment of belief. But unlike belief (that some philosophers have certainly taken to be a state of mind), it is not even tempting to view emunah in that way.

The Fabric of Faith

185

facing, tracking the sun.⁶ And as with tracking the sun, faith is dynamic; one does not face God in a static way.⁷ What God wants of us, what He needs,⁸ changes over time and circumstances. Such wants/needs include not only— perhaps not centrally—attention to Him. Reflecting on Jeremiah 16:11, “They have forsaken me and have not kept my Torah,” the Midrash has God comment, “Would that they had forsaken me but kept my Torah.”⁹ Faith involves, in addition to the ritual life, one’s ways with others, with life, with triumph and defeat, with darkness and evil, and much more. I like the idea of faith as a stance, not least because it sees faith as a way of the person, not just of the head or the mind. It is no throwaway that “stance” is a metaphor of the body. Faith—certainly a robust faith—is embodied, enacted in one’s life. An inert faith is like an inert love that has little or no impact on life. “Faith as a stance” is suggestive of a number of faith’s features. A central focus in Jewish religious life is ‫( תשובה‬t’shuvah), translated often as repentance or return (presumably to God). Those who become religious are called ‫( בעלי תשובה‬ba’alei t’shuvah) which means roughly “those who have returned.”¹⁰ Translation of ‫ תשובה‬is not simple: “repentence” has something of a Christian resonance, and “return” is a strange term to apply to one who never left, one who is a newcomer to religious life. “Turning,” not “returning,” seems a more apt translation for ‫תשובה‬, in many although not all contexts.¹¹ I mentioned tracking the sun as a model for the religious attitude. The dynamism of that attitude involves a certain readiness: think of it now as standing ready to turn, a ready responsiveness, the sort of thing crucial to a relationship between people,¹² and similarly for one’s relation to God.¹³ One’s readiness to turn, a matter of being attuned to demands of the spirit, is related to a number of other aspects of faith, trust in God for example. Such trust facilitates one’s readiness to turn—one does not fear, one is eager. Trust is another of Nietzsche’s non-unities: One can point to human goings-on ⁶ I’ve been grappling with the idea of a stance for some years. It is not Buber’s terminology but I think it gets at his vision. ⁷ It is the dynamism that the notion of stance suggests that makes the metaphor more apt than that of the similar “orientation.” ⁸ If we are to be anthropomorphic—seems inevitable in religious life—let’s not be shy about it. God’s dependencies are all over the Hebrew Bible. Wants are also anthropomorphic; even plans are and will is more generally. So avoiding anthropomorphism in religious thought is quite a project. ⁹ Midrash Rabbah, Lamentations, Proem 2. ¹⁰ Literally, “masters of return.” ¹¹ Buber speaks throughout his book about “turning.” Or so the translation from the original German has it. The same point was emphasized by the late Rabbi Mickey Rosen, z’l. One might stay with “return,” and see the baal t’shuvah as one who returns to the ways of his people. ¹² As Gilla Rosen suggested to me. ¹³ I am writing this during the period known as the ten days of t’shuvah, the period between Rosh Ha’shanah, the New Year, and Yom Kippur, the Day of Atonement. During this period, one’s focus is on t’shuvah, on renewing one’s directedness to the big questions, on turning towards God. Here turning and returning merge.

186

Howard Wettstein

that exhibit trust; trying to capture it in articulate form is another matter. The problem is not just one of the difficulty of verbalization. Like other non-unities—like Wittgenstein’s family resemblances—the concept fails of definition. Clarification is more a matter of obtaining a sense of the range of examples and their similarities and dissimilarities. In Robert Duvall’s film, The Apostle, Duvall’s character is a devout former minister of stunning David-like passion. Fierce lust and anger—manslaughter and womanizing, only a partial inventory—join with piety in a way that suggests a deep connection between these things. Penniless and alone, in exile after killing his estranged wife’s lover, he wakes up in a strange place, walks resolutely, and says, “Lord, what do you have in store for me today?” Trust, in its incarnation of special interest to me, does not mean that one has surety about one’s success, the sense that things will work out. Or even that justice will prevail. It’s more in-the-moment than that, a confident, centered eagerness to greet what comes. Its focus is not on outcome; that’s to be dealt with later, as it were. Such trust is related to—it comes together with—a kind of submission. In conventional religious thinking this means submitting to God’s will and wisdom, that the untoward events of life make sense in some larger and unfathomable sense. Consider especially the first four stanzas of this Tennyson poem: Tennyson: “In Memoriam,” LIV Oh, yet we trust that somehow good Will be the final goal of ill, To pangs of nature, sins of will, Defects of doubt, and taints of blood; That nothing walks with aimless feet; That not one life shall be destroy’d, Or cast as rubbish to the void, When God hath made the pile complete; That not a worm is cloven in vain; That not a moth with vain desire Is shrivell’d in a fruitless fire, Or but subserves another’s gain. Behold, we know not anything; I can but trust that good shall fall At last—far off—at last, to all, And every winter change to spring. So runs my dream: but what am I? An infant crying in the night: An infant crying for the light: And with no language but a cry.

The Fabric of Faith

187

The last stanza qualifies the earlier ones; “so runs my dream.” For many religious people it is more than a dream; it is fundamental to their outlook. However, religious thought, even biblical literature, is hardly univocal here. The Book of Job, for example, seems to portray the universe, the actual world, as lacking a plan that coordinates with the just and the right.¹⁴ Equally of interest, the Job narrative does not suggest that there is some other world, some form of afterlife, in which justice is achieved. Perhaps the submission that is involved here is simply submission to the ways of God’s world. This brings to mind the well-known prayer of Alcoholics Anonymous, that we have the wisdom to accept what we cannot change. It also brings to mind images of rolling with the waves rather than fighting them. Which makes room for seizing upon openings for decisive action when such openings occur. Central to the Jewish morning liturgy is a prayer that, reflecting Isaiah 44:6, speaks of God as creating light and dark, good and . . . everything. The prayer echoes the Isaiah passage but alters it dramatically. The biblical passage ends with the remark that God (also) creates evil, but in the prayer everything is substituted for Isaiah’s evil. Still, the prayer retains the sense from the original text that God is the origin, not only of light but also of dark. The Bible speaks of accepting the “yoke of the commandments” and the Talmud remarks on “the yoke of heaven.” I’ve thought that offering the Isaiah-inspired prayer early every morning represents a commitment to another yoke, the yoke of the world: to its wonder and its awfulness, the love it asks for and gives, as well as the loneliness and pain. One thus commits to life, submits to it. John Dewey was not conventionally religious. He was however taken with the power and virtues of religious life. He sets out, in A Common Faith (Dewey 1991), to understand the psychology of that life, to see how much of it is replicable in a naturalistic framework. The religious attitude, he suggests (1991: 16–17), involves a note of submission. But it is voluntary, not externally imposed; and as voluntary it is something more than a mere Stoical resolution to endure unperturbed throughout the buffetings of fortune. It is more outgoing, more ready and glad, than the latter attitude, and it is more active than the former. And in calling it voluntary, it is not meant that it depends upon a particular resolve or volition. It is a change of will conceived as an organic plenitude of our being, rather than any special change in will.

It is significant that Dewey emphasizes the active aspect of submission. It would be easy to see trust and especially submission as passive and so incompatible

¹⁴ Interpreting Job is a risky business. I surely don’t claim that the opposite has never been said. For my own view see my papers, “Against Theodicy” and “God’s Struggles,” in Wettstein 2012.

188

Howard Wettstein

with the sort of autonomy that is implicated by our agency. Activity also suggests that the relevant sort of submission is no mere internal attitude or feeling. It pertains instead to how one lives in the world. Submission seems almost diametrically opposed to another faithphenomenon: bearing witness to injustice. One who bears witness refuses to submit, to sit quietly in the face of injustice. Here I’m inclined to think—in an Aristotelian spirit—that what’s called for is situation-dependent and subtle. Faith, moreover, has a way of thriving in different environments; it may issue in different dispositions in people of different natures, nurtures, and cultures. The life of faith thus constitutes a large tent. Larry Wright commented that with respect to many instances of injustice, we would do well to substitute for anger a sense of irony about the human condition and its limitations. This seems wise and it’s been a helpful reminder to me from time to time. But it’s hardly a universal recipe for response to injustice, as Wright would readily agree.¹⁵ One attuned to the demands of the spirit may achieve an admirable openness, another important feature or consequence of the faith-stance. The universe has a way of repeatedly knocking us about, a consequence of which can be self-protectiveness, limiting the world’s access. It is here that our faith traditions can have crucial impact, helping us to avoid a kind of self-involved smallness.¹⁶ Faith, as I’m seeing it, involves a wide range of ideas, practices, and affective phenomena. Some but not all directly pertain to one’s relationship with God. Others to how one addresses life, others, the world. Faith asks not only for attention to these things, but a readiness to attention. It asks for an active submissiveness that gives way at the right moment to bearing witness. And it issues, when things go well, in an openness to life and to others. Bypassing particulars, Heschel sometimes speaks of faith as responsiveness to the holy dimension. Quine wrote about the web of belief; what we are noticing is another sort of web, what I’ll call the fabric of faith.

1 0 . 2 . M O D E S OF FA I T H Dewey advanced a naturalistically flavored way of thinking about submission, one that has great appeal for me. Another aspect of Dewey’s naturalism is his unwillingness to see the universe as morally structured, as answering to the

¹⁵ Related to Wright’s irony-comment, humor certainly has a role here. ¹⁶ “God breaks the heart again and again and again until it stays open.” Sufi mystic, Hazrat Inayat Khan.

The Fabric of Faith

189

demands of justice. Dewey is critical of those who, in his language convert, an ideal like justice into the real, a feature of the actual world. Such people evince a lack of moral faith. Faith that something should be in existence as far as lies in our power is changed into the intellectual belief that it is already in existence. When physical existence does not bear out the assertion, the physical is subtly changed into the metaphysical. In this way, moral faith has been inextricably tied up with intellectual beliefs about the supernatural. (Dewey 1991: 21–2)

The thought that injustice sometimes, often, prevails, that it’s just the way the world is, is admittedly painful. It is tempting to say, as many do say, that it’s just not supposed to be that way. If the appearances stand, if injustice is the reality, it can seem that the universe is mocking us, almost contemptuous of our moral pretentions.¹⁷ Morality, people often feel, is solidified, grounded, by the assumption that good is rewarded and evil is punished. Indeed, the term “moral faith” is sometimes applied to just that assumption, that the universe answers to our moral sense. Dewey, by contrast, saw moral faith as an open-eyed commitment to the moral life come-what-may: “The world may not cooperate, but that’s who I am, that’s what my life is all about.” The moral life is thus lived out on a limb. The assumption that the universe responds to us in a morally sensitive way is wishful thinking. Real moral commitment is not solidified, grounded in any such way. It’s one thing to deny that the universe is morally structured. But Dewey goes considerably further, that one who converts the ideal to the real misses the point, that she violates the spirit of moral faith. Dewey is speaking of moral faith, not religious faith. But it’s not outlandish to suppose that Dewey would say the same about the latter: the advocate of theodicy evinces a lack of religious faith. What a strange and intriguing idea. How deep does theodicy or theodicy-related thinking (as in, “there is a plan”) go in traditional religious thought? Consider nmber eleven of Maimonides’ thirteen principles of faith: “I believe with perfect faith that the Creator, blessed be his name, rewards those who keep His commandments, and punishes those who transgress them.”¹⁸ Maimonides’ principle more or less generalizes into the conventional religious wisdom of Tennyson’s poem quoted above, that “everything happens for a reason,” that good and bad things that occur in one’s life reflect God’s will, and that contrary to appearances, there is no real injustice. First, a general reflection: Robert Bellah, in the article mentioned above, says that while giants of our traditions often formulated principles of faith—doctrinal essentials—when one looks at the fine print of their own works things look ¹⁷ As Jeff Helmreich put it to me. ¹⁸ This quote is taken from a popular liturgical summary of Maimonides’ principles (Sacks 2007: 167).

190

Howard Wettstein

much more complicated. Doctrinal principles were formulated for popular consumption, out of the sense that people need such things; theological depth, by contrast, yields all sorts of subtleties, some of which may dramatically change the popular picture. Maimonides’s own considered view—the fine print—about providential justice¹⁹ is that only those who have a special relation to the Active Intellect come under the umbrella of providence. The rest of us are simply caught up in the world’s natural processes. Famines, cancer, early death, long life, wealth or poverty, these are all just part of the way of the world. Think about how far that is from conventional religious thought: injustice is the norm. Nor is it only Maimonides, notoriously radical in some of his theological views. Nachmanides,²⁰ whose mysticism stands in contrast to Maimonides’ rationalism/naturalism, advances a view parallel in its placing limits on providence. For Nachmanides, providence is restricted to the righteous.²¹ Perhaps on this matter the difference between these giants is not as great as it might appear, since Maimonides presumably thinks that the righteous are just those in the appropriate cognitive relation to the Active Intellect. Jewish tradition thus provides examples of Bellah’s point.²² More important, the views on providence of Maimonides and Nachmonides serve to enlarge the tent of the faithful. Biblical works like the Book of Job, depending of course on how one reads them, perhaps do something similar. Still, there is much in traditional texts, biblical and liturgical, that clearly go in the other direction. Consider the middle paragraph of the Sh’ma, a centerpiece of Jewish liturgy: And it will be, if you will diligently obey My commandments which I enjoin upon you this day, to love the Lord your God and to serve Him with all your heart and with all your soul, I will give rain for your land at the proper time, the early rain and the late rain, and you will gather in your grain, your wine and your oil. And I will give grass in your fields for your cattle, and you will eat and be sated. Take care lest your heart be lured away, and you turn astray and worship alien gods and bow down to them. For then the Lord’s wrath will flare up against you, and He will close the heavens so that there will be no rain and the earth will not yield its produce, and you will swiftly perish from the good land which the Lord gives you. Therefore, place these words of mine upon your heart and upon your soul, and bind them for a sign on your hand, and they shall be for a reminder between your eyes. You shall teach them to your children, to speak of them when you sit in your house and when you walk on the road, when you lie down and when you rise. And you shall inscribe them on the doorposts of your house and on your ¹⁹ Guide to the Perplexed, III:17. ²⁰ Maimonides lived from 1135 to 1204. Nachmanides, later that century: 1194–1270. ²¹ See his commentary on Deuteronomy 11:13, where he restricts special providence to the especially righteous, but also to the especially wicked. ²² Bellah was thinking, no doubt, about the giants of Christianity.

The Fabric of Faith

191

gates—so that your days and the days of your children may be prolonged on the land that the Lord swore to your fathers to give to them for as long as the heavens are above the earth. (Deuteronomy 11:13–21)

Such texts have a plain meaning obviously at odds with my outlook. I have no wish to provide an alternative interpretation; the text says what it means to say. But singing about God’s justice—as we do morning, noon, and night— constitutes for me a stunning irony: First, a dream that the literature articulates with grace. But then the crushing truth that it just ain’t so. And whatever it is that I feel—and this varies with occasions—does not typically include depression or anger, but rather a focused seriousness, what Henry Bugbee refers to as a mood of ultimate concern,²³ a mood that is, I think, characteristic of faith. As a young man I once attended the funeral of a baby girl, roughly a year old. Joy was her name. I worked for her father and although he and I were not particularly close, I somehow experienced Joy’s death in a very personal way. I circled ordinary life in a kind of orbit for a week or more. Experience took on a kind of weight that was not altogether unpleasant, as if her death brought me into contact with the seriousness of life, or with God. It’s something of that sense that I sometimes return to when reading, or hearing powerful music, or praying, for example, praying the exquisite passages about God’s justice. It’s a seriousness that I prize, another aspect of emunah. And if one takes to heart the anthropomorphic characterization of God as exquisitely vulnerable,²⁴ then our pain reflects His own. We are in it together. My own moral experience comports with Dewey’s: the sense that it may not work out and the occasional crushing disappointment, these feel almost internal to moral faith. Similarly, the equally if not more crushing sense that not even God makes it all right is internal to the sort of unconditional concern that is (my) religious faith. One sits at a funeral with such faith; it comforts notwithstanding the lack of conviction that the other is quite literally in a better place. Asked to explain the comforting quality, I will invite the inquirer for a long-term visit. Certainly part of it is the sense, mentioned before, that we are in it together, God and us. In prayer, we go to God. At moments of great distress, He comes to us. I’ve been trying to create a feeling for these moments or aspects of faith in the context of a more naturalistic outlook than is usually associated with traditional religion. It is tempting to go with Dewey not only in his rejection of theodicy, but also in his sense that theodicy violates something deep in faith. At the same time, it could not be more clear that theodicy and related ideas go very deep in our religious traditions. My inclination, then, is not to restrict the tent to those who

²³ The term derives of course from Tillich (Bugbee 1999: 216). The mood in question deserves a great deal of attention, articulation. As does the very idea of a mood. ²⁴ Mishnah, Tractate Sanhedrin 6:5.

192

Howard Wettstein

see it my way, but rather to create a large tent, these ways representing different species, modes of faith, variations on the theme of religious commitment.²⁵

10.3. INTIMACY: AN UNDERAPPRECIATED ASPECT OF F AITH Jerusalem’s Yakar Synagogue, founded and directed by the late Rabbi Michael Rosen, z’l, was for many years a focus of my religious life. Rosen, an Orthodox rabbi, profoundly religious, was possessed of a contagious intimacy with God. His adaptation/interpretation of Hasidic melodies made Friday night services sources of inspiration and uplift. Spontaneous harmonies would emerge from the 200 or so women and men in the smallish synagogue. Rabbi Rosen’s relationship with God had ethical and political implications, attitudes that for him went without saying. He was, for example, deeply committed to justice for the Palestinians, and social justice more generally. From time to time, he would drive people away with a forthright sermon, highly critical of the conventional wisdom. But they could not stay away. His sincerity, and his music, would bring them back. It was late shabbat afternoon, a few summers back. (On shabbat, after a morning service, a meal, perhaps rest, we reconvened for a ritual third meal. At Yakar this meant very little food—perhaps some stale cake—some conversation, and much music.) A man wandered in, an American; he sat down and asked somewhat aggressively, “Why do you people bother with these minutiae?” He was referring to the details of Jewish religious practice, some notoriously exotic. Mickey, as (I hope) he liked to be called: “It’s the way we express our intimacy.” I was stunned. The comment was well worth the hours I later gave to it. The idea, as I came to understand it,²⁶ was that the ritual life might be seen on analogy to domestic life. In a long-term love relationship, partners find all sorts of ways to express intimacy: nicknames, gestures, touches, things to do for and with one another. One can see our religious rituals in this way, as expressions of the intimacy shared by God and Israel, ways we live together. This, it seemed to me, would give new meaning to, for example, the dietary rituals. More generally, it suggested a promising understanding of the practices known in the tradition as hukim, practices that don’t carry their significance on their face. The significance of such practices has long been a subject of dispute; some try to give reasons, for example, symbolic reasons. Others ²⁵ And similarly in the moral case, that we are dealing with different species of moral faith. ²⁶ I’m happy to give credit to Mickey for the idea. But I don’t want to burden his memory with too much of where I went with this.

The Fabric of Faith

193

object that to do so is to mind-read God, an ambitious undertaking that hardly recommends itself. Instead, or so it’s argued, why not see the hukim as simply commanded, to be followed just because God so commanded. This, however, has the unfortunate ring of “because I said so,” as issued by a parent. So what I took from Mickey was very promising, opening up a new way with the hukim and similar things. But the value of his focus on intimacy was not limited to its explanatory value for the hukim. Consider: For if ye shall diligently keep all these commandments which I command you, to do them, to love the Lord your God, to walk in all his ways, and to cleave unto him . . . (Deuteronomy 11:22, King James Version)

Nachmanides makes a number of suggestions (ad. loc.) about the Bible’s talk of cleaving, ‫דבקות‬, but one is to me particularly intriguing, ‫ דבקות‬as a supreme religious achievement: one’s thoughts constantly include God, one is never without God. When I first came across Nachmanides’ comments I was put off. His idea seems to be this: even when I’m with another person, even in intimate moments with another, God is always present, always with me. I thought: God should not be an interloper. He is supposed to facilitate my relationships with others; not stand around, as it were, watching. Eventually I got the point: When one falls in love, one sometimes walks around in an altered state, in a way that in bad movies is referred to as “all lit up inside.” For at least a temporary period, one is, as it were, never without one’s lover. This, however, need not constitute an obstacle to other friendships; they may even be enhanced. Some of the person’s best instincts may be evident. Perhaps it’s like that with “cleaving,” ‫דבקות‬. A friend might be able to see a certain light in one’s eyes. One may be able to confront everyday adversities in a more effective way, putting things in perspective. And moments of meaning, of joy, may take on new resonance. ‫ דבקות‬is not an all or nothing affair. Nor is spiritual growth linear; there are steps forward and sometimes backward. But when things go well, there may be genuine growth over time. One’s relationship with God, as with one’s relationship with one’s human partner, can develop. The idea explored above, that the ritual practices be seen as quasi-personal gestures, is natural in this context: one can begin to see the practices of Israel in this way. And not only to see them in this way, to so experience them. When one fails to follow through in the ritual life one may have the sense of letting one’s partner down. Indeed, that we sometimes feel this way provides a kind of evidence for the power of this way of thinking about ritual. Let’s turn to intimacy in prayer. One davens—to use the humble Yiddish expression—the most inspiring poetry, as in the Psalms; one praises or expresses gratitude or makes requests, all using canonical texts. The project is in part to work up a kind of focused attention appropriate to the power and beauty of the language, a difficult undertaking. But when one has succeeded

194

Howard Wettstein

one is met—sometimes—with a sense of having made contact. And it is here that something like intimacy is achieved. That I’m over my head merely in saying this is plain. This point—that in talking of the divine, we don’t know of what we speak—is something one finds in biblical and Talmudic literature as well as in the later antianthropomorphist philosophical theologians. It is indeed a widespread intuition in religious traditions, among religious people. If you ask me to say more about the divine with which (I have the sense that) I have made contact, I’m at a loss. But the experience has its own character. It’s elevating, humbling, moving. It can also be exhausting. A Hasidic master allegedly remarked that it would be easier to give a long Talmudic discourse of several hours than it is to stand at attention for 10 or 15 minutes of such focused prayer. There is another respect in which I am over my head in speaking of contact and intimacy. It is not only that I can’t say much about the Other Party; my ability to describe the experience—the phenomenology we might say—is very limited. I said that it can be humbling and moving; but so much is going on— so many bases touched in thought and imagination—one is at a loss to discern, to articulate what one is thinking, feeling, imagining, hoping. The phenomenon is a perhaps more extreme example of what it’s like for us in certain personal interactions, certainly including sexual intimacy. Indeed, analogies with the latter seem powerful and suggestive. Here’s still another mode of davening, a level beyond focused attention. It’s something that I’ve been exploring only lately, both in thought and in practice. But first some background. The Amidah is central to every Jewish prayer service. One stands at attention during the prayer, one’s feet together, and whispers the prayer. One begins by taking three steps backward and then three forward, approaching God. Rabbi Yosef Kanefsky suggested to me that one might think of the steps forward as ascent, a transition from our world to God’s. The whispering is also significant; Max Kadushin writes that one whispers only when one senses that the other is very close (Kadushin 2001: 220–1). Here another feat of imagination suggests itself: one not only addresses God, one shares the moment with Him. To get what’s new about this, think about other shared moments, both parties fully engaged. Needless to say, we are not always so “there” in our conversations with others. To be so engaged is an ideal; we often fall short, even in interaction with those to whom we are very close. Prayer offers an opportunity for intimacy. Having tried to engage prayer in this way, I can say that it raises the level of difficulty and yields a very different experience. It is powerful and exhausting. Focus gets new meaning, as the words can strike one in a different sort of way. On one occasion I imagined that God might be irritated by the overabundant praise: “OK. I get it. Enough.” Shared attention is an interesting and difficult topic. It seems insufficient for such sharing that each person merely figures in the phenomenology of the

The Fabric of Faith

195

other’s experience. At the same time, it doesn’t require warmth and good feeling; think of an intense interaction between siblings, or mother and daughter. Nor does it seem to require that I know exactly with whom I’m involved; I’ve had powerful moments in which I prayed in the first-person plural with a large group of others. One has a sense of such joint experience at certain concerts. I teach a Film and Philosophy class. My experience of the films and our subsequent discussions seem completely different when we view the films together, instead of watching at home and then discussing. And having certain moments with one’s partner, for example of seeing the Taj Mahal or of childbirth, makes dramatic the phenomenon of shared attention.²⁷ However such experience is ultimately to be delineated and understood, it is clear that we have such moments with others, and fascinating to think about how this might apply to prayer. The liability of fixed prayer traditions like my own is that there is a danger to which we all succumb some of the time: making the performance just that, a performance, something more or less mechanical. A deeper sort of prayer experience is that of focused attention. “Know before whom you stand” is a biblical injunction that one finds prominently displayed in many synagogues. And many achieve a kind of seriousness, a focus, when they pray. When one participates in shared attention episode of prayer, one has left behind the problem of mechanical performance.

10.4. CONCLUSION A life of faith is a centered life. The contrast is with one who is buffeted, knocked about, by life’s vicissitudes. When faith works its wonders, stability may increase; the agent may be able to withstand with relative calm a range of otherwise troubling happenings. This may reflect self-knowledge and selfconfidence; it may also reflect the fact that one is never quite alone. Of course there are no guarantees. People of faith can also be banged up by life. But all else equal, the tendency to centeredness is an aspect of faith. ²⁷ It has been suggested that autism is characterized (at least in part) by a shared attention impairment. Adam Green (2009) cites developmental psychopathologist Peter Hobson (2004), that this impairment in autism is rooted in “an inability to enter into intersubjective engagement through recognizing the expression of attitudes in bodily cues.” Green, and his teacher, Eleonore Stump are interested, as I am, in the implications of shared attention for religious experience. But their way with it is different than my own. I’m interested in the phenomenology of shared attention on the part of the religious person. Green, perhaps especially, wants to explore the implications for religious epistemology, specifically for Alston’s attempt to argue for the epistemic respectability of mystical experience.

196

Howard Wettstein

A person of faith acts in God’s tempo. So Buber introduces a suggestive temporal image to complement the spatial imagery of centeredness.²⁸ Here’s an example:²⁹ A brother in a monastery is accused of something shameful. His superiors and fellows believe the story and he decides not to fight it. While altogether untrue, it would be too embarrassing to debate in public, unworthy. Some ten years pass. The truth emerges. He smiles. He live in monastic time, in God’s tempo. One who is firmly rooted, centered, is both unhurried and responsive, timely in her interactions with others as in her moving around the world. It’s as if someone were conducting the orchestra and she caught on to the tempo, and to the appropriate changes in tempo. In reflecting on faith, I raised the question to myself and others as to whether faith is the religious attitude, par excellence. Perhaps faith is the essential component in the religious life. I never resolved the matter to my satisfaction but over some time, a resolution took hold: I’m inclined to think that there is no single such factor. If one tries to see faith as such a single factor one builds things into faith. Consider the roles of awe, love, and gratitude in religious life. These are central but are they part of faith or not? I think we should decline to answer. They are related, closely related, in religious life. The attitude, the stance we seek, includes awe-responsiveness as it does the ready responsiveness I mentioned earlier, along with the readiness to submit to God’s will, as it were, and to walk in God’s tempo.

BI B LI OGR APHY Bellah, R. (1991) Beyond Belief: Essays on Religion in a Post-Traditionalist World. Berkeley, Los Angeles, and London: University of California Press. Buber, M. (2003) Two Types of Faith: A Study of the Interpenetration of Judaism and Christianity. Syracuse: Syracuse University Press. Bugbee, H. (1999) The Inward Morning: A Philosophical Exploration in Journal Form. Athens, GA, and London: The University of Georgia Press. Dewey, J. (1991) A Common Faith. New Haven: Yale University Press. Green, A. (2009) “Reading the Mind of God (Without Hebrew Lessons): Alston, Shared Attention, and Mystical Experience.” Religious Studies 45(4): 455–70. Heschel, A. J. (1997) Between God and Man: An Interpretation of Judaism. New York: Free Press Paperbacks. Hobson, P. (2004) The Cradle of Thought: Exploring the Origins of Thinking. Oxford: Oxford University Press. Kadushin, M. (2001) The Rabbinic Mind. Binghamton: Global Publications. Larkin, P. (1995) Me and That Train. [Sound recording] (BMG Entertainment). ²⁸ See Buber 2003: 22. ²⁹ I believe its source is Kathleen Norris, but I’ve been unable to track it down.

The Fabric of Faith

197

Lewis, C. S. (2001) Mere Christianity. Revised ed. New York: Harper Collins. Nietzsche, F. (2006) Human, All-Too-Human: Parts I and II. Mineoloa: Dover Publications Inc. Sacks, J. (2007) Authorised Daily Prayer Book of the United Hebrew Congregations of the Commonwealth. London: Collins. Wettstein, H. (2004) The Magic Prism. Oxford: Oxford University Press. Wettstein, H. (2012) The Significance of Religious Experience. Oxford: Oxford University Press.

9 Maimonides and his Predecessors on Dying for God as “Sanctification of the Name of God” Josef Stern

9. 1 . WHY D IE F OR GO D? Dying for God or, as it is more frequently called, martyrdom holds a special, if controversial, place in Christianity, Judaism, and Islam. For some it is an obligatory act in certain circumstances, for others a religious ideal to be sought after. But its justification, or rationale, is much less clear. Although martyrologies—especially the historical ones that describe the suffering, trials, testimonies, and death of the victims—have served to strengthen the resolve and faith of believers, no consequentialist argument based on these benefits can plausibly justify dying or even a willingness to die.¹ At least four other kinds of explanations have figured historically in the three faiths. (i) Based on its etymology from the Greek martys, a martyr is a witness, not an observer or testifier, but rather “one who bears witness to,” or offers himself as evidence of, a truth or cause. Such witnessing classically occurs in what I will call “martyrdom scenarios”: the martyr-candidate is confronted by an external coercive power with two mutually exclusive and exhaustive alternatives: either (a) renounce, violate, or abrogate some principle or practice of her religion, national identity, or deeply held cause (or advocate an objectionable principle or perform a sinful, blameworthy action) or (b) be killed or suffer an extreme penalty. Presented with this dilemma, the martyr-candidate who chooses (b) over (a)—who is willing to die—sacrifices his own life for the truth or significance of the principle, practice, religious faith, or identity. ¹ See Adams 1997: 1–3. Blau 2016–17 applies Adams’s “symbolic” interpretation to the rabbinic laws of martyrdom. Josef Stern, Maimonides and his Predecessors on Dying for God as “Sanctification of the Name of God”. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0009

150

Josef Stern

(ii) The martyr offers his life as a sacrifice or gift to God. For this purpose, it may not be enough to be willing or ready to die; the would-be martyr must actually die or at least suffer.² Thus the Christian martyr, by actually sacrificing his own life, figuratively or vicariously participates in the crucifixion of Christ.³ (iii) The martyr affirms her distinctive identity as a member of her religious or national community by defiantly resisting the demand, or temptation, to assimilate, convert, or violate something representative of it. (iv) The martyr is a soldier either on an external battlefield or in an inner struggle (as in classical conceptions of Islamic jihad), heroically cultivating and then manifesting the virtue of courage despite his fear of dying— fighting for truth, the glory of God, and the reward of eternal life.⁴ I mention these different views of martyrdom, or dying for God, mainly to contrast them with the very different conception we find in the writings of Moses Maimonides (1138–1204), the greatest medieval Jewish jurist, Talmudist, and philosopher. Philology aside, a key to Maimonides’ view of the significance of dying for God, I will argue, is his understanding of the phrase the rabbis appropriated (at least by the Middle Ages) for dying in martyrdom scenarios—“Either transgress [a commandment] or be killed” (ya’avor o yehareg)—namely, Qiddush HaShem, literally: “Sanctification of the Name [of God],” which is to be understood as sanctification of God.⁵ The origins of this euphemism are not clear. The Hebrew Bible states that God is sanctified by the people of Israel in verses such as “And ye shall not desecrate [tehallelu, also translated as “profane”] My holy name; but I will be sanctified [niqdashti, hallowed] among the children of Israel: I am the LORD who sanctify [hallow] you” (Lev. 22:32). Both sanctification and desecration seem to be acts performed by humans (Israelites) whose object or patient is God or His name. However, there is no explicit reference in Scripture to dying as the mechanism of sanctification. Nor does the Torah tell us what constitutes “desecration”

² Aquinas, Summa Theologica Q124 A4. ³ See also Aquinas, Summa Theologica Q124 A3 on martyrdom as a species of the genus of charity. ⁴ See Aquinas, Commentary on the Nicomachean Ethics (Aquinas 1964): III, Lect. 2, 395–7, commenting on Aristotle, Nic. Ethics III, 6 1115a 24–1115b6, for whom the soldier’s willingness to face death fearlessly is courageous because, as the end of life, there are no goods or evils after death, implying that one who believes in an afterlife should not fear death and therefore his willingness to die should not count as courageous. In response, Aquinas argues that for one who believes in an afterlife, death is still the end of all this-worldly visible goods and evils; since goods of the afterlife are invisible and unknown to us, they do no lessen our fears. Compare Summa Theologica Q124 A2, and see Fortin 1972. ⁵ See Maimonides 1963, I:63:155 (all further references to this work are to this translation, by Part, chapter, and page), who says that when a reference to God would be inappropriate, the Bible and then the rabbis revert to “the name of God.”

Maimonides and “Sanctification of the Name of God”

151

(Hillul Hashem) and whether its prevention requires dying. However, sanctification and desecration are subsequently juxtaposed as opposites. The first (and in rabbinic history, relatively late) text to connect the term “sanctification of the Name of God” with dying is found in the Babylonian Talmud, where, in answer to a question by a fifth-century sage why earlier, but not later, generations of sages merited the occurrence of miracles, he is told that it is because they “handed over their lives for the sanctification of the Name” (al-qedushat ha-shem) (Babylonian Talmud Berakhot 20a), thus connecting the phrase qiddush hashem with the phrase “surrendering one’s life” (mesirut nephesh).⁶ Once this linguistic connection was made, the identification of sanctification with dying in martyrdom scenarios became a common motif.⁷ Unlike the classic terms in Christianity and Islam “martys” and istishhad that both mean “witnessing,” the term Qiddush HaShem is derived from the same root q-d-sh as the words qadosh (holy) or qedushah (holiness, sanctity).⁸ These predicates that apply primarily to God and only derivatively to creatures—unlike, say, “merciful” that applies primarily to creatures and only derivatively to God—make God, “The Holy One, may He be blessed,” the paradigm of holiness. A holy life is presumably, then, a divine life or a life in imitation of God and His holiness. What would constitute such a life? In rabbinic Judaism, whose core is performance of the Mosaic commandments as elaborated by the rabbis, such a life would seem to require that every commandment be fulfilled perfectly and exactly. Thus Maimonides defines the commandment, “You shall be holy” (Lev. 19:2) and “Sanctify yourselves, and be you holy” (Lev. 11:44) [as] charges to fulfill the whole Torah, as if He were saying: “Be holy in doing all that I have commanded you to do and in guarding against all the things I have enjoined you from doing.” . . . There is then no difference between His saying, “You shall be holy” (Lev. 19:2) and “Do My commandments.” (Book of Commandments, Principle 4)⁹

For Maimonides, a holy life is no more but also no less than a life constituted by complete, perfect performance of all commandments in the Mosaic Law

⁶ Urbach 1986: 88, 91. ⁷ Henceforth, I use the shortened terms “Sanctification” and “Desecration,” dropping “of the Name.” ⁸ The root q-d-sh literally means to protrude, stick out, to be separated or to separate. It thus comes to refer to a constellation of notions related to separatedness, and especially the sacred precincts of the Temple (miqdash). Over time, the terms qadosh/qedushah come to designate exemplary forms of behavior and states. ⁹ Note that Maimonides does not enumerate Lev. 19:2 among his 613 commandments, Instead, it is a “general commandment,” or underlying principle for the body of commandments. All English translations of BC are my own, although I consulted Maimonides 1984. For the Arabic and Hebrew text of BC, I used Maimonides 1971, from which I have taken the Hebrew and Arabic terms I cite.

152

Josef Stern

without exception. But if this is the ideal, what is the status of an imperfect life, however sincere and devout it might be, in which one sometimes transgresses a commandment, albeit under coercion? Is it still holy? Does the idea of a holy life itself take into account imperfect reality in which one is sometimes forced to transgress commandments? Does the ideal of observing all the commandments and, hence, the ideal of holiness allow for—indeed mandate in specific circumstances—transgressing rather than dying, especially when coerced? Or does a truly holy life require nothing less than perfect performance of all commandments allowing for no violations under any circumstances? We are all too familiar with religious personalities who harbor no compromises and placed in a martyrdom scenario would—indeed believe that they should—opt to die rather than commit the least transgression. Is this the kind of personality that the Law wishes to cultivate, even if only as an ideal, for the community at large? This is the question, I propose, that lies behind Maimonides’ concern with qiddush hashem, sanctification or dying for God: What does a truly holy life require? The view that demands perfect observance of all commandments in all circumstances, I will call “holiness perfectionism.” Maimonides, I shall argue, offers a critique of this view.¹⁰

9.2. THE P REHISTORY OF S ANCTIFICATION AND DYING FOR GOD: MA IMO NIDES ’ SOURCES Our earliest knowledge in Jewish literature of sanctification by dying dates from the late Second Temple period (500 BCE–70 CE), for example, 2 Maccabees (6:10–11, 18ff.; 7) which describes individuals who martyred themselves rather than violate commandments such as the Sabbath, circumcision, and the dietary prohibitions on pigs, practices that differentiate Jews from non-Jews and express a distinct national identity.¹¹ But there is one other, less frequently mentioned but roughly contemporaneous martyrdom scenario found in the Book of Daniel (c. 164 BCE), chs. 3 and 6 (although the term “sanctification” is not used). When the Babylonian king Nebukhadnezzer orders everyone to worship an idolatrous statue on pain of death, three young “friends” of Daniel, Hananiah, Mishael, and Azariah, refuse and are put in life-threatening situations (thrown into a furnace or lion pit). However, in these narratives, unlike those of Maccabees 2, the would-be martyrs do not actually die; the three friends are miraculously saved deus ex machina. This suggests two possible ¹⁰ On perfectionism in the study of Jewish history, see Baumgarten 2007: 43–56. Thanks to Haym Soloveitchik for bringing this paper to my attention. ¹¹ See Shepkaru 2006: 6–33, and his excellent bibliography. For the classic discussion of martyrdom, especially with reference to the Aqedah and Ashkenaz, see Spiegel 1993.

Maimonides and “Sanctification of the Name of God”

153

morals. First, it is the willingness, readiness, or preparedness to die, rather than actually dying, that counts. Second, it is tempting to conjecture that the original idea of sanctification was the revealed manifestation of God’s power to save the would-be-martyrs from death, which the gentile persecutor then publicly acknowledged, and that only later did its meaning shift to dying. We shall see in Maimonides that this original sense of “sanctification” did not entirely disappear. Turning now to rabbinic texts, it is important to distinguish those that spell out the norms, or laws, of sanctification by dying for God and those that articulate the rabbis’ attitude(s) toward sanctification by dying.¹² The main example of the former is Babylonian Talmud Sanhedrin 73a–b which records two rulings, each with its own justification for sanctification. The first, reported by R. Yohanan, which we will designate as the House of Nitzah, holds that in martyrdom scenarios one should always transgress and never give up one’s life, with three exceptions: idolatry, grave sexual offenses (e.g., incest, adultery), and murder. In the last two cases, the reason for dying rather than transgressing is common sense (svara): one cannot save one’s own life by victimizing another, either her life or dignity.¹³ The first case, idolatry, however, is a victimless sin. The reason for dying rather than transgressing this prohibition, offered by R. Eliezer, is that one must love or value God— including performance of His commandments—above all else, including one’s own life. A choice to save one’s life by transgressing the prohibition on idolatry would reveal (apart from the forbidden act of idolatry) that he loves, values, indeed worships, his life over God—itself an act of idolatry. Thus one way to express one’s highest love of God is by choosing to die rather than transgress in a martyrdom scenario. The second ruling, of R. Ishmael, prima facie disagrees in the case of idolatry: one should surrender one’s life only if the act of idolatry is bepharhesya, which we will translate for now as “in public.” For all (victimless) sins (including idolatry) not “in public,” one should transgress rather than die because the Torah states “And you should live by them and not die by them” (Lev. 18:5).¹⁴ An act of idolatry “in public,” however, is different because it also

¹² For examples of the latter, see Shepkaru 2006 and Schwartz 2010: 343–53; also Boyarin 1999 and Mandel 2014. For a close reading of the Sanhedrin text, see Rosenberg 2004. ¹³ Henceforth, when referring to the ruling of the House of Nitzah, I shall not mention the two cases of grave sexual offences and murder whose explanation is entirely different from idolatry. David Shatz has called my attention to Mishneh Torah (henceforth: MT) “Laws of the Foundations of the Law” (henceforth: FL) iv, 5 which is an interesting case of sexual offence and murder that puts the community as a whole into a martyrdom scenario, making it more like the example of idolatry. I hope to discuss that situation elsewhere. ¹⁴ Hebrew does not distinguish linguistically between the jussive or permitted (“may”) and the imperative or “obligated” (“must”). Hence, the ruling that one should transgress rather than die in specific martyrdom scenarios is ambiguous between being permitted or obligated.

154

Josef Stern

involves desecration, thereby transgressing not just the prohibition on idolatry but also the prohibition: “And you shall not desecrate (tehallelu) my holy name and I will be sanctified (veniqdashti)” (Lev. 22:32). Therefore, to prevent desecration one must let oneself be killed, thereby sanctifying God. This occurrence of veniqdashti (“And I shall be sanctified”) may be the ancestor of the phrase qiddush hashem (“sanctification of the Name”), but the crucial point is that R. Ishmael’s idea of sanctification is nothing more than the prevention of desecration. That the coerced individual dies as a result accomplishes nothing per se, and only where there would be desecration is there sanctification by dying. We could call this—sanctifying by not desecrating—a negative notion of sanctification. What is desecration? R. Ishmael does not tell us but, according to contemporary Bible scholars, the meaning of the Hebrew term h-l-l (“desecrate,” “profane,” “treat with dishonor or disregard,” “pollute,” “defile”) varies with context.¹⁵ Syntactically it appears to be a verb referring to an action done by the human to God or to His Name (which frequently co-occurs with the verb), but in the context of Lev. 22, it seems to refer to improper treatment of sacrifices in the Temple cult or improper behavior by or states of the priests.¹⁶ In other contexts, the verb means to “de-sacralize” by substituting for a sacred object (say, tithes) an ordinary object (which assumes some of its sacred status) or its monetary value. All of these meanings have either a cultic or, if you will, a metaphysical sense: desecration causes a change in a property of the object or in its sacred character, but none of these senses seems directly relevant to martyrdom scenarios or to dying for God. As significant, all these meanings are very different from the contemporary meaning of “desecration of the Name [of God],” which functions like an evaluative predicate in judgments about agents or actions that express severe reproach and condemnation.¹⁷ As we will see, Maimonides plays a crucial role in this transformation of the meaning of the phrase. Nor does R. Ishmael define what counts as bepharhesya (“in public”). However, later Palestinian and Babylonian rabbis (amora’im, 200–500 CE) explicitly define “in public” as the presence of a quorum of (at least) ten Jews.¹⁸ Here, too, Maimonides will change the significance of this quorum but,

Maimonides forcibly disambiguates this norm: whenever one is not obligated to die, one must commit the transgression. See Soloveitchik 2014a: 276. ¹⁵ See, e.g., Milgrom 2000: 1887–90. ¹⁶ Abraham ibn Ezra takes Lev. 22:32 to be addressed to the priests. ¹⁷ Analogously for the contemporary use of qiddush hashem as an expression of commendation. ¹⁸ See Babylonian Talmud Sanhedrin 74b; cf. Babylonian Talmud Bekhorot 21b. A rejected minority opinion allows the ten to include non-Jews.

Maimonides and “Sanctification of the Name of God”

155

to anticipate his interpretation, consider some other ways in which the ten are understood in other contexts as well as martyrdom. (a) Because a quorum of ten males is required for “sanctified communal rituals” (devarim shebeqedushah, e.g., certain prayers or the synagogue reading of the Torah), derived hermeneutically from the same verse Lev. 22:32,¹⁹ for some rabbis the occurrence of the martyrdom scenario in a quorum of ten ritualizes the martyrdom scenario.²⁰ (b) The presence of ten creates an audience of spectators that makes the martyrdom scenario a spectacle.²¹ (c) The quorum of ten stands for, or symbolizes, the people or nation of Israel, and the martyr is their representative—by analogy to the individual who leads pubic prayers, the shali’ah tzibbur, literally, the representative of the community or congregation. (d) Taking (c) one step further, “public sanctification” might refer to collective or group acts of sanctification as distinct from acts of sanctification by individuals.²² Apart from defining what counts as bepharhesya (“in public”), the amoraim, as again reported by R. Yohanan, also expand the ruling of the House of Nitzah in two directions. (i) During periods of persecution (sha‘at ha-shmad), one should let oneself be killed rather than transgress any commandment or prohibition—or perform any action that merely appears to be (though in fact it is not) a transgression—even when it is not in public and (ii) when it is not a period of persecution, one should die rather than transgress anything major or minor when but only when it is in public. Occurring during a persecution even in private is, in effect, equivalent to occurring in public even when it is not a period of persecution. Both of these expansions in effect reconceptualize the notion of desecration as any action that threatens the future or survival of the

¹⁹ The hermeneutic inference links the repeated use of betokh of Lev. 16:21 and 22:32 and of Num. 14:27 (defining edah as ten males). The restriction to males may reflect social and gender conditions during antiquity that excluded women from the public sphere. However, nothing in the Talmud suggests that the ten required for the quorum for martyrdom need be all male; women can equally well sanctify God, whether by dying or living. See also Maimonides (FL v, 2) who requires only “ten of Israel,” not ten males for “public martyrdom.” See Minhat Hinukh 295, Gilyon Rasha, Yoreh De’ah 157, Shakh, sec 4., s.v bi-Finei ‘Asarah. I am indebted here to Aaron Segal and Haym Soloveitchik. ²⁰ In this light, we might understand why medieval Ashkenazic rabbis (forced to baptize their children during the Crusades) recited the ritual blessing for the slaughter of cattle and fowl, before killing their children in resistance. On these episodes, see Spiegel 1993: 22, 24. ²¹ Note that this explanation fails to explain why the audience must be exclusively Jews. ²² I know of no explicit statement of this interpretation—although Maimonides’ references to the “ten martyrs of the emperor” (asarah harugei malkhut) could be so read.

156

Josef Stern

Torah and of its people, and only in those circumstances should one sacrifice one’s life. More generally, desecration becomes a function, not only of what is transgressed, but also where and when. Again, we will see Maimonides’ reconfiguration of these categories. Finally, I want to mention a third influential model of sanctification based on the Talmudic story of R. Aqiba and his execution by the Romans (Babylonian Talmud Berakhot 61b).²³ This account makes the very moment or event of death—not just willingness to die or the prevention of desecration—the ultimate expression of one’s love for God, an expressive act by the martyr of a deeply personal, intense, passionate state in which he, the lover, returns to and unites with his beloved: by prolonging his recitation of the word “one” in the creedal verse “Hear O Israel, the Lord is our God, the Lord is one” as he dies, R. Aqiba enacts “one-ing,” or uniting, with God.²⁴ On this reading, the very experience of dying out of love of God becomes the climax of the religious life. With this background, we turn to Maimonides’ discussion of sanctification in his two major halakhic works, the Book of Commandments (Sefer HaMitzvot; henceforth BC) and the Mishneh Torah (MT). An earlier discussion is found in his “Epistle on Forced Conversion” (Iggeret Ha-Shemad, also called “Treatise on the Sanctification of the Name” [Ma’amar Qiddush HaShem]; henceforth: “Epistle”) but because its major claims are repeated in later writings, I will only mention where the “Epistle” differs from BC and MT.²⁵ Because of its prominence in the halakhic works, it is striking that nowhere in the Guide of the Perplexed does Maimonides explicitly mention the topic of dying for God.²⁶ Despite the entirely new problematic of “holiness perfectionism” in which he reconceptualizes dying for God, Maimonides must work within the legal options given in the Talmud which, in turn, will result in radically new interpretations of the Talmudic terms and ideas. But in both BC and MT, R. Eliezer’s, R. Ishmael’s, and R. Aqiba’s classic rabbinic models of dying for God provide the context for Maimonides’ analysis.

²³ For the rich literature on this story, see Mandel 2014 and Boyarin 1999: 101–14. ²⁴ It is tempting to see Neo-Platonic influence here but there are no explicit texts. ²⁵ On the “Epistle,” see Soloveitchik 2014b: 310. Given the historical circumstances that precipitated the Epistle, it does not seem to have been written with the problem of perfectionism in mind, although one might describe the rabbi whom Maimonides attacks in the “Epistle” as a perfectionist. One difference between BC Pos. 9 and the “Epistle” concerns Shi’a-like dissimulation, or taqiyya, in martyrdom scenarios: the “Epistle” approves of it, while BC requires transparency. ²⁶ Cf. Septimus 1994: 450, n. 11 and Soloveitchik 1975. For a different argument against the ideal of voluntary martyrdom based on Maimonides’ interpretation of Gen. 22, see Stern ms.

Maimonides and “Sanctification of the Name of God”

157

9.3. MAIMONIDES: THE B OOK OF COMMANDMENTS, POSITIVE COMMANDMENT 9 Maimonides divides the general subject of dying for God in BC into two commandments: the 9th positive commandment to “sanctify the name of God” and the 63rd negative commandment that prohibits “desecration of the name.” This double enumeration is not exceptional and follows Maimonides’ Principle Six in the Introduction to BC. However, Maimonides’ expositions of the positive and negative commandments appear to depart from their rabbinic sources and their own relation to each other is unclear, especially his description of Negative 63 as the “opposite” of Positive 9. I begin with the positive commandment. The Ninth Commandment that we have been commanded concerns the sanctification of the Name, as it is said, “I am to be sanctified among the children of Israel” (Lev 22:32). The meaning of this commandment . . . is that we are commanded to publicize (lepharsem) the true belief (dat; also religion) in public and not to fear harm by any aggressor. Even if there comes upon us a mighty coercive [power], who demands of us that we be unfaithful to God, we will not hearken to him but we will submit ourselves to death and we will not deceive him into thinking that we are unfaithful [to God] even while in our hearts we believe in Him. And this is the commandment of qiddush hashem that the Israelites as a whole have been commanded, that is, the willingness to die at the hand of a coercive power for the love of God and belief in His unity, as Hananiah, Mishael, and Azariah did at the time of Nebukhadnezzer the evil one when he decreed that all must bow to the idol and all people, including Israel, bowed, and no one present sanctified the name of God, and this constituted a great disgrace to Israel that this commandment was lost to all of them and that there was no one there to fulfill it; but they were all afraid. And this commandment applies only in circumstances like that great gathering in which the entire world was afraid and when it was an obligation to publicize the Unity [of God] and to decree it at that time. And God had already promised through the prophet Isaiah that the disgrace of Israel would not be total at that gathering; but that young men would appear among them at that hard gathering whom death would not deter; and that they would sacrifice their lives and publicize their faith and sanctify the name in public, as we have been commanded by Moses our Rabbi, and this is the saying: “Jacob shall not now be ashamed, neither shall his face now wax pale; when he sees his children, the work of My hands, in the midst of him, sanctifying My name; for they shall sanctify the holy one of Jacob and shall reverence the God of Israel” (Isaiah 29:22–23). In the words of the [Midrash] Sifra: “For this purpose I have taken you out of the land of Egypt, that you sanctify my Name in public.” And in the Babylonian Talmud Sanhedrin, they asked: Is or is not a Noahide commanded to sanctify the Name of God? Come and Hear: [It is written:] The Noahides were given seven commandments. But if you include this one [i.e., sanctification of the Name], there will be eight. Thus it is shown that [sanctification of the Name of

158

Josef Stern

God] is one of the commandments incumbent [exclusively] on Israel, for which they bring proof from the verse in which it is written “I am to be sanctified among the children of Israel” (Lev 22:32).

This definition of sanctification will surprise readers familiar with Maimonides’ rabbinic sources. The core of this commandment of sanctification is to publicize, or publicly disseminate, basic truths of the religion fearlessly. Dying and martyrdom scenarios make a side appearance only to mark the limit of fearlessness. The two cardinal sins of murder and sexual transgressions go unmentioned. The “public” seems to be the entire world or at least the entire nation of Israel, not a quorum of ten Jews. And Maimonides’ paradigm example of sanctifiers, Daniel’s three friends, is striking because they never die but are saved by divine intervention. Apart from its relation to the sources, the place of this commandment in BC is also unclear. As part of the third positive commandment, “To love God,” Maimonides has already enumerated an almost identical prescription—to preach and call all people to God’s service and to believe in Him. The third commandment: That we are commanded to love Him; that is, we should contemplate and cognize His commandments and His actions until we apprehend them, and we should take enjoy absolute pleasure in apprehending Him; this is the obligatory love . . . [T]hrough intellectual understanding, the apprehension of God will be verified, and pleasure will follow, and [the requisite] love will necessarily follow. And [the rabbis] already said²⁷ that this commandment also contains [the prescription] that we should preach and call all people to His worship and to believe in Him. The reason is that just as when you love someone, you give him your complete attention, praise him, and seek to make others love him, so when you love God truly to the degree to which you can apprehend what He truly is, you will undoubtedly preach and call upon the heretics and fools to knowledge of the truth that you know. In the words of the [Midrash] Sifri: “And you shall love the Lord” (Deut. 6:5)—[you should make Him] beloved by creatures, like Abraham your patriarch . . . just as Abraham who, because of his love for God—as Scripture describes him, “Abraham My lover” on account of the greatness of his apprehension [of God]—sought to summon people to belief [in God] out of his strong love [for God], so you too should love Him so strongly that you summon people to Him.

R. Eliezer and R. Aqiba took sanctification, by which they meant dying for God, to express love of God, but here Maimonides takes the love of God, achieved through intellectual understanding of His natural creations and commandments, to be expressed in sanctification, by which he means the public ²⁷ David Shatz (p.c.) suggests that Maimonides’ rabbinic source is Babylonian Talmud Yoma 86a which interprets Deut. 5:6 as saying that God comes to be loved through the exemplary actions of humans.

Maimonides and “Sanctification of the Name of God”

159

dissemination of the true religion. Like a human lover who is completely absorbed in his beloved and, the more he loves her, the more he wants others to love her and therefore cannot stop talking about her; so the more one knows and thereby loves God, the more one will talk about Him, praising and extolling Him to others. This love-driven compulsion to disseminate one’s knowledge of God to all humankind clearly anticipates the “publicizing” (pirsum) of true beliefs that constitutes sanctification in Positive 9. Why, then, the separate commandment? One obvious difference is that Pos. 3, unlike Pos. 9, makes no mention of dying or willingness to die to mark the limit to which one must go in order to disseminate these beliefs. However, I want to propose a more fundamental distinction. Some Mosaic commandments are addressed to individuals qua individuals; others are prescribed to the whole People or Community (tzibbur) of Israel, and individuals enact those commandments qua representatives of the corporate body.²⁸ The prescription to call upon people to worship and believe in God in Pos. 3, as an expression of one’s love of God according to one’s knowledge of Him, is a commandment issued to individuals qua individuals. Individuals, not communities, are subjects of knowledge and stand in relations of love. Hence, one commandment of sanctification is incumbent on each individual as an expression of his intellectual love of God. Maimonides’ source for this “individual-addressed” commandment of sanctification is Deut. 6:5, the same verse cited by R. Eliezer to support the ruling of the House of Nitzah (though with a different interpretation). We will return to the individual commandment of sanctification when we turn to Neg. 63 in the next section. For the remainder of this section, I will concentrate on Pos. 9. Just as Pos. 3 is addressed to the individual qua individual, I propose that Pos. 9 is a commandment of sanctification addressed to the entire People or Community of Israel, and individuals who perform the commandment act, not qua individuals, but qua representatives of their People or Community. This is Maimonides’ intent in writing that “this is the commandment of sanctification of the Name that the Israelites as a whole have been commanded”—which is echoed, as we will see in Section 9.5, in the opening line of the first halakhah of MT FL v, “All [members of] the House of Israel are commanded to sanctify the great name [of God].” Likewise, his reference “in the midst of the Children of Israel” (Lev. 22:32) means through the people or nation of Israel, using the same word tokh employed in the hermeneutical derivation that a quorum requires ten Jews who, we will see, stand for the people or community as a whole. Similarly, when Maimonides cites the Sifra that God took the nation of Israel out of Egypt in order that they would ²⁸ For an explicit statement of this distinction, see Maimonides (1971: 177), although the examples he cites are all commandments that are exclusively either on the individual or on the community.

160

Josef Stern

sanctify His name in public (be-rabbim), he means that their distinctive mission as a community or nation is sanctification. And in concluding that this ninth commandment of sanctification is specific to the nation of Israel— as opposed to Noahides—he is saying that (even though idolatry is also forbidden to Noahides) the prescription that one must be willing to sacrifice one’s life to publicly disseminate the true beliefs, namely, for sanctification, is a commandment that differentiates the Community or People of Israel from others. I also want to propose that R. Ishmael’s ruling is Maimonides’ source for the communal commandment of sanctification. Earlier we took R. Ishmael to be disagreeing with the House of Nitzah: that the victimless sin of idolatry should be committed rather than require that one let oneself be killed because of the verse Lev. 18:5 (“And you shall live by them”). It is only when it is “in public” that he agrees that one should be willing to die—and “in public” means in the presence of ten Jews. But the significance of the quorum of ten for Maimonides is not that their presence makes the martyrdom scenario into either a “sanctified communal ritual” or a public spectacle; rather the quorum of ten Jews represents, or symbolizes, the entire People or Community of Israel, and by dying, or risking his life, in the presence or as one of the quorum, the individual surrenders it not as an individual but as their representative, qua member of the People or Community.²⁹ Thus his (self-surrender to) death symbolizes the death, or willingness to die, of the entire corporate body that constitutes Israel. The difference R. Ishmael’s bepharhesya, or being in the presence of ten Jews, makes for Maimonides is that it marks sanctification as a commandment incumbent not on the individual but on the collective people or community whose representative is the martyr.³⁰ For Maimonides, R. Ishmael not only disagrees with the House of Nitzah about the commandment of sanctification incumbent on the individual; he adds an additional communal commandment. Although Maimonides distinguishes two commandments of sanctification, he tends to weave them together in his legal discussions in both the Book of Commandments and Mishneh Torah. However, as we shall argue, only by distinguishing them can we render his complete set of rulings consistent. The two commandments, insofar as they are both instances of sanctification, also share certain motifs. Both are connected to love of God. But the commandment to love God is the motive force of the individual prescription of Pos. 3, while in Pos. 9 love is the final end of the communal commandment: “the ²⁹ Haym Soloveitchik has observed (p.c.) that there is a clear halakhic difference whether “in public” means in the presence of a distinct quorum or being part of a quorum inclusive of the coerced in situations where only nine other Jewish males are present. ³⁰ For another possible source for Maimonides’ communal commandment of sanctification, see Mekhilta de-Rabbi Ishmael 2004: 197–205.

Maimonides and “Sanctification of the Name of God”

161

willingness to die . . . for the love of God and belief in His unity.” Furthermore, both commandments take love of God to be intellectual, a function of acquiring and teaching true beliefs about God, His unity, and His acts, the natural world. This shift to true beliefs and their public dissemination reflects Maimonides’ original definition of idolatry as kufr, or infidelity— the same term he uses in Pos. 9 to describe the coercer’s demand: that the coercee “be unfaithful to (lekfor) God”—which he characterizes as a false belief about the deity rather than a bodily act like bowing or sacrificing.³¹ But Maimonides emphasizes different false beliefs about God in different works. In MT, “Idolatry” i, 1–2 he identifies it as the error that created intermediaries like the spheres or stars are worthy of worship and that God desires that humans worship them. Hence, its counter-prescription, in Pos. 3, is to call to people to worship God alone. In Guide I: 36 Maimonides defines the worst form of idolatry as the false beliefs that God is multiple, corporeal, composite, anthropomorphic, or anthropopathic—all of which contradict His unity. In that light, the literal description in Pos. 9 that Nebukhadnezzer ordered everyone to bow to an idol might be understood in Maimonidean terms as saying that Nebukhadnezzer demanded that everyone believe that a material and corporeal substance is the deity and worthy of worship. And by teaching the public the true belief that God is a unity, the sanctifier denies that false, idolatrous belief—and thereby refuses the coercer’s demand—and, as a result, renders himself vulnerable to being killed. The individual and communal commandments of sanctification also differ in the import they place on dying. As we said, there is no mention of death in Pos. 3.³² In Pos. 9, however, Maimonides makes “the willingness to die at the hand of a coercive power” and “not to fear harm by any aggressor” a constitutive part of the communal commandment of sanctification. But it should be emphasized that what is required is the person’s willingness or preparedness to die, not that he actually dies. Unlike R. Aqiba, Maimonides does not take the very moment or event of dying as a climactic moment of union with God. Instead, the willingness or readiness to die serves only as a measure of fearlessness, the length to which one must go to make known a true belief.³³ Maimonides could have written that one must be willing to do everything humanly possible, period. Surrendering one’s life is simply a vivid way of making the point. Maimonides drives this point home by his choice of examples of sanctifiers: Hananiah, Mishael, and Azariah, in the Book of Daniel, are all aspiring but not actual martyrs, saved despite their heroic willingness to die. Another example is Abraham, to whom Maimonides also ³¹ See Halbertal and Margalit 1998 and Steiner 2017. ³² However, Neg. 63 rules in accordance with the House of Nitzah that even the individual qua individual should let himself be killed rather than commit idolatry. ³³ Cf. “Kings” vii, 15, where fearlessness itself, rather than dying, marks sanctification.

162

Josef Stern

refers in Pos. 3 as “My lover,” who “sought to summon people to belief [in God] out of his strong love [for God].” In MT “Idolatry,” i, 2 Maimonides depicts Abraham as “publicizing,” or teaching, belief in the existence and unity of God and the denial of idolatry at the risk of being killed by the Chaldeans. Recalling the story from Daniel in Pos. 9, we are told that “when [Abraham] prevailed . . . with his arguments, the king sought to slay him. Yet, he was miraculously saved and emigrated to Haran.” Abraham did everything humanly possible—including actions that clearly endangered his life—to publicize the truth about God. But his fearless “publicizing,” his willingness to die to spread the truth, did not terminate in actual death. He was saved.³⁴ Maimonides does not, then, require even for the communal commandment of sanctification that the sanctifier actually die, only that he be willing and ready to do so. However, his core conception of sanctification, depicted at the beginning of Pos. 9, is also strikingly different from the reactive structure of martyrdom scenarios in which the coercee submits to dying only when he is made to choose between two evils. Pos. 9, in contrast, commands the sanctifier to commit to public teaching of the truth, even at risk to his life, proactively, spontaneously, and at his own initiative. One should “publicize,” teach, and disseminate belief in One God, in all circumstances and at all times, unconditionally, wholeheartedly, transparently, and regardless of its potential consequences, up to and including risking one’s life. However, this stance, in turn, raises a red flag in Maimonides’ eyes. In the terms in which we opened this chapter, sanctification so characterized quickly leads to the perfectionist state of mind that tolerates no limits or compromises, a love of God so intense that sanctifiers should (and would) be willing to die for the least infringement on their enactment of any commandment at any time. That is, Maimonides’ description of the commandment of sanctification at the beginning of Pos. 9 raises the dangers inherent in the excesses of holiness-perfectionism, especially as a communal ideal for every citizen. To anticipate this concern, Maimonides next attempts to counter this perfectionist risk in the second half of Pos. 9 by setting up a constraint on the application, or enactment, of the communal commandment of sanctification. The constraint appropriates R. Ishmael’s requirement of bepharhesya to restrict the very commandment incumbent on the community that Maimonides, ³⁴ See also Guide III: 51: 624 on the Patriarchs: “the end of all their efforts was to spread the doctrine of the unity of the Name in the world and to guide people to love Him,” almost verbatim the description of Sanctification in Pos. 9. When Maimonides next writes, “This rank [of the Patriarchs] is not a rank that, with a view to the attainment of which, someone like myself may aspire for guidance,” is he suggesting that their “rank” of sanctification cannot be humanly (i.e. by “someone like myself ”) attained? A third example of a sanctifier, whom Maimonides mentions in MT, FL v, 4, is R. Aqiba in the story of his execution. Elsewhere I intend to address that story which is prima facie a counterexample to Maimonides’ emphasis on willingness to die, rather than actual dying.

Maimonides and “Sanctification of the Name of God”

163

as we saw, reads R. Ishmael as introducing. “This commandment applies only in circumstances like that great gathering in which the entire world was afraid and when it was an obligation to publicize the Unity [of God] and to decree it at that time.” That is, the communal commandment of sanctification should be performed only in circumstances when no one in the whole world rises to publicize the true beliefs about God because everyone, including Israel, is in fear of the coercer. Only in such an extreme context of desecration should one go to the other extreme of risking one’s life in order to prevent it by promulgating belief in divine unity fearlessly. Only desecration of this degree is an evil that is worse than one’s own death. Echoing R. Ishmael’s idea that sanctification is the prevention or avoidance of desecration, Maimonides is saying that only the prevention or avoidance of such global desecration can justify sanctification by dying. However, precisely because R. Ishmael is Maimonides’ source for this constraint, it is especially striking that nowhere in Pos. 9 does Maimonides mention the Hebrew term hillul hashem, “desecration of the Name.” Instead, in every place where we would expect to find that phrase, Maimonides refers to the “great disgrace” (Ar; khizy; Heb: herpah) of Israel. By substituting “disgrace” for “desecration,” Maimonides makes yet another original move: he completely reconceives the meaning of the phrase. Instead of describing an action or offence against God or His name (say, swearing falsely by it), or a (metaphysical) change of property or status (e.g., desacralization of cultic objects in the Temple), or the improper treatment of something holy, Maimonides redefines the “logical grammar” of “desecration” to make it an evaluative expression. By identifying desecration with disgrace or ignominy, hillul hashem is now a negative evaluative predicate in a value judgment about a human agent or action. This evaluative sense of the phrase hillul hashem, which severely reproaches a human agent and holds him blameworthy for his scandalous behavior, is, as we mentioned earlier, close to our contemporary use of the phrase, and Maimonides is, to the best of my knowledge, the first thinker in the rabbinic tradition to mark this shift in its meaning.³⁵ And similarly for “sanctification” (qiddush hashem) which (apart from being a euphemism for dying for God) is now a positive evaluative predicate. Maimonides’ translation of Lev. 32:22 would more accurately be “Do not bring disgrace or disrepute upon my Name, and I shall be venerated through the Community of Israel.” Disgrace (or ignominy) is a species of shame. But not only is it shame to a high degree. We say that someone has brought disgrace onto his family, education, religion, or people—all those institutions that contributed to his identity. Unlike the shame of an individual which accrues only to him ³⁵ To be sure, the Talmud, e.g., Babylonian Talmud Yoma 81a, gives examples of desecration that present it as an evaluative judgment (examples Maimonides cites in Neg. 63 and in MT), but Maimonides is the first to explicate the category to which those examples belong.

164

Josef Stern

individually, disgrace also implicates the agent’s community, upbringing, ethnicity, and their respective institutions, making them all responsible and therefore blameworthy for his action. Possibly this is how Maimonides understood the phrase “Desecration of the Name”: what is disgraced is not only the human agent but God’s name—His reputation or public face. Three other features of disgrace illuminate Maimonides’ conception of desecration. First, individual shame, unlike guilt and regret, can take as its objects the involuntary and necessary (e.g. one’s skin color). The agent in a martyrdom scenario obviously does not voluntarily or freely commit idolatry, but he does act voluntarily, or to some degree of his own choosing, by committing idolatry rather than letting himself be killed; he is judged responsible for his so acting; and in so acting, he brings disgrace upon himself (and on the “Name of God,” etc.).³⁶ On the other hand, one might also argue that the agent is coerced to make the very choice either to transgress or let himself be killed in the martyrdom scenario. Indeed Maimonides recognizes a distinction here: although the coerced person in a martyrdom scenario is blameworthy for transgressing rather than dying (when the latter is prescribed)— thereby presupposing that he acted freely—he cannot be punished in court by lashes or death because he was coerced.³⁷ Second, as writers frequently observe, the experience of shame requires a second party, an observer, judge, or evaluator, because exposure, or the possibility of being exposed, and the consequent unpleasantness of being discovered in a shameful situation, is essential to the experience. The observer/evaluator need not be real and external to the subject. It is enough that the agent can imagine being exposed and judged (hence, that it is merely possible) and often the judge is internalized—so long as he is independent enough of the agent that she holds herself accountable to his evaluations. The same is generally true for disgrace, and may in part explain why desecration cum disgrace must be in public or involve at least two; it can never occur entirely in isolation or where no one other than the agent can ever discover the act.³⁸

³⁶ Avishai Margalit has suggested to me that disgrace is no different from shame: both embrace the necessary and involuntary. Thus the commander may act disgracefully when he panics in war, hence, acts not freely, and consequently loses soldiers. It is less clear to me that one can be disgraced (as distinct from being ashamed) for a property she possesses involuntarily, e.g., a skin color, disfigured nose, or being Jewish or black. ³⁷ See also Aristotle, Nich. Ethics III 1, 1110a4–13. Legal punishment requires, as Maimonides alludes to in Neg. 63, that the person act intentionally (bemazid), willingly (beratzon), be observed by witnesses, and be warned, hence, more than the conditions for moral responsibility. Compare Soloveitchik 2014a: 232 on “absolute” and “relative coercion.” ³⁸ See, however, FL v, 2–3 where Maimonides seems to contrast the quorum of ten Jews with beno u-bein atzmo and beno u-bain ha-’akum. In his yet to be published translation of the Book of Knowledge, Bernard Septimus, obviously sensitive to the problem, translates hayah beno u-bein atzmo ve-ein sham asarah mi-yisrael as “by himself (that is, not in the presence of ten Israelites).”

Maimonides and “Sanctification of the Name of God”

165

Third, what specifically was the desecration cum “great disgrace to Israel” in the Daniel story? Maimonides’ formulation is subtle and nuanced: “no one present sanctified the name of God [i.e., publicized the true belief that God is one], that this commandment was lost to all of them, and that there was no one there to fulfill it.” The desecration was not that the Jewish people worshipped an idol, even in public. It was their disgraceful failure as a whole community or people to stand up for, or make publicly known, the unity of God and falsity of idolatry, their omission rather than commission of an act, that they had “lost” the commandment, that it was simply out of mind and out of their consciousness, albeit out of fear. It was this disgrace, or desecration, that the three friends sought to counter or undo. In the Guide Maimonides distinguishes between two kinds of standards by which we judge an action shameful. Either it is because of a “generally accepted opinion,” i.e., relative to the norms of particular communities, or because it “is shunned by the intellect” (III: 8: Pines, 434), i.e., universally wrong inasmuch as any human intellect ought to condemn it.³⁹ In Pos. 9, what is disgraceful, hence, the desecration, is not idolatry per se, but the failure of the entire community to perform the act of sanctification, publicizing the unity of God and the falsity of idolatry. Now, idolatry is a universally disgraceful act because it rests on an intellectually demonstrable false belief, but the commandment of sanctification, Maimonides emphasizes, is legislated only to Israel, not to all Noahides. Hence, it is community-relative and the disgraceful failure to perform it is also specific to that community.⁴⁰ Thus the People of Israel in the situation Maimonides describes in Pos. 9 act disgracefully with respect to a community-specific norm for failing to react to a universally disgraceful act. With this understanding of desecration as disgrace, we can now better appreciate Maimonides’ constraint on the “application” of the communal commandment of sanctification. To make his case, Maimonides gives us a remarkable, original interpretation of the story of Daniel’s three friends in the second half of Pos. 9. Consider the typical martyrdom scenario: a situation (like that of the Second Temple Maccabees or the Judeans in Hadrianic Palestine) in which a coercive power has issued decrees forbidding the members of the subject population to practice their religion. The subjects must either obey out of fear or resist at risk to their lives. As a message to the people at large, the coercer singles out one individual who is forced into a martyrdom scenario, intending to break his will to resist and thereby the will of the community. In this ³⁹ On this distinction, and on Maimonides’ conception of shame more generally, see Stern 2013: 369–77. ⁴⁰ The other two cardinal sins, murder and forbidden sexual relations, are also intellectual vices insofar as their prohibition is based on svara, reasoning.

166

Josef Stern

situation the coerced individual clearly stands for and indeed is in place of his community. But the situation Maimonides depicts is very different. When Nebukhadnezzer decreed that everyone in his global empire must commit idolatry, Maimonides says that everyone—“all people including Israel”— complied. “No one present sanctified the name of God.” All of Israel assimilated to the rest of the world, acquiesced to idolatry, and lost its will to resist.⁴¹ Insofar as sanctification is the distinctive and distinguishing mission of the People of Israel, as the Sifra states, we could say that in this situation Israel had lost its mission, its unique identity; hence, the very People of Israel was on the verge of dying. When the three friends rise on that occasion to sanctify God—to proclaim His unity and the falsity of idolatry—they do not act preemptively to prevent desecration from occurring but, like reformers, to protest and call for radical rectification of an already existing state of (almost) total desecration or disgrace. They are not representatives acting on behalf of the community of Israel; they stand opposed as much to the general populace of Israel as to Nebukhadnezzer. The three friends exclusively represent the true Israel.⁴² This depiction of “the great disgrace of Israel” explains the full force of Maimonides’ corrective to the excesses of holiness-perfectionism. Maimonides’ concern is that someone—a perfectionist religious personality—might construe the communal commandment to publicly teach God’s unity— spontaneously, everywhere, at every time, to everyone, and fearlessly—to mandate risking his life even in circumstances when it is not necessary. By introducing the constraint that the commandment applies only when the disgrace of the community of Israel, indeed of “the entire world,” is total, or near total, Maimonides is proposing a corrective to the potential for excess. Unlike R. Ishmael’s original statement that public idolatry is a sufficient condition for desecration that justifies dying, for Maimonides being in public—understood as the disgrace consequent on communal failure to publicize the truth about God—is a necessary condition on the pursuit of sanctification. Only when the disgrace cum desecration is such that all of Israel, no different from the rest of the world, has sunk to a universal state of corruption by idolatry and to a numb acquiescence to its falsity; only when Israel has fully assimilated and its distinct identity is almost gone—only when its state is (almost) completely imperfect, is there a commandment to do everything humanly possible, including risking one’s life, to publicize the truth. To those who think that a life that is less than perfect is not worth living,

⁴¹ I take such acquiescence to be sufficient assent to idolatrous behavior even if it lacks the commitment of voluntary belief. Thanks to Aaron Segal for pushing me on this point. ⁴² Maimonides’ description and terminology in this passage recalls his Almohad context, although I have not found explicit references. On the Maimonides–Almohad connection, see Stroumsa 2009: 53–83 (and her papers cited therein) and Fierro 2000, 2010, and 2016.

Maimonides and “Sanctification of the Name of God”

167

Maimonides replies that only a (almost) totally imperfect life is one to be resisted by a willingness to die.⁴³

9 . 4 . M A I M O N I D E S II : THE B OOK OF COMMAND MENTS , NEGATIVE COMMANDMENT 63 The 63rd Negative Commandment. We have been warned not to transgress the prohibition against the desecration of the Name; this is the opposite of sanctification of the Name which we have been commanded whose explanation was explained earlier in Positive Commandment 9; as it is said: And you shall not desecrate My holy name (Lev. 22:32). This sin is divided into three parts, two concerning people in general, one particular individuals. (A) The first of the parts that concern people in general is that if someone is demanded to transgress any one of the commandments during a period of persecution, whether the coercer intends to make [him] transgress either a minor or major commandment, or one who is demanded to transgress [the prohibitions on] idolatry, forbidden sexual relations, or murder even during a period which is not one of persecution—in all these cases one is obligated to surrender his life, and to let himself be killed and not to transgress, as we explained in the Positive Commandment 9. And if he transgressed and was not killed, he has desecrated the name of God and transgressed this prohibition. And if this was in public, i.e., among ten Israelites, then he has desecrated the name of God in public, and he transgresses God’s statement “And you shall not desecrate my holy name” and his sin is very severe. However, he is not punished with lashes because he was coerced, because the court can execute a punishment of lashes or the death penalty only when the person acted intentionally, willingly, with witnesses and warning . . . Thus it should be clear to you that the one who commits idolatry under coercion is not guilty of karet (being cut off) and a fortiori of death by court, but he did transgress the prohibition on desecration. (B) The second part which also concerns a generality is when a person does a prohibited act for which he has no desire or enjoyment, but his actions show disregard and disobedience. This person also desecrates the Name of God and is punished by lashes. The verse therefore says, “Do not swear falsely by My name; [if you do so], you will be desecrating the name of your God” (Lev. 19:12), because this shows disregard for this commandment and it gives no bodily enjoyment. ⁴³ I repeatedly qualify “total” by “almost” because Maimonides writes in Pos. 9 that God “promised . . . that the disgrace of Israel would not be total at that gathering” because the three friends would appear to “publicize their faith” in public.

168

Josef Stern

(C) The third part that applies to particular individuals concerns a person who is known for his piety and integrity who does something which seems to ordinary people to be a sin, an action of the sort that it is improper for such a pious person to perform it, even though it is permissible. This person has desecrated the Name of God. As our Sages said, “What is an example of desecrating God’s Name? [Rav said,] If someone like me would take meat from the butcher without paying immediately. Another Sage said, ‘If someone like me would walk four cubits without learning Torah or wearing phylacteries.’ ” This prohibition is repeated in the verse “[Do] not desecrate the name of your God; I am the Lord” (Lev. 18:21).⁴⁴

Neg. 63 opens by describing the prohibition on desecration as “the opposite” of sanctification which was discussed in Pos. 9. By “opposite” Maimonides seems to mean neither “contraries”—that they cannot both be true of a given action at the same time—nor “contradictories”—that any action is a sanctification if and only if it is not a desecration—but rather that in every martyrdom scenario in which one is directed by the Law to sanctify God by dying rather than transgressing, if instead one transgresses rather than lets himself be killed, he has committed an act of desecration. Neg. 63 raises a number of questions. To begin with, Maimonides’ explicit division of Neg. 63 into three “parts” is, to the best of my knowledge, unique in BC. The Eleventh Principle in his Introduction states that “parts” of commandments are not enumerated as distinct commandments, for example, each of the “four species” (palm branch, etrog, myrtle, and willow branch) waved together in the ritual of the holiday of Sukkot, i.e., components or elements of a (structurally complex but legally simple) commandment. The different “parts” in Neg. 63 are not components or elements but different kinds of behavior that manifest desecration. Furthermore, the second and third parts concern acts of desecration not mentioned in our original text in Babylonian Talmud Sanhedrin (although they have other rabbinic sources) and, unlike the first part, do not fit the model of martyrdom scenarios. What, then, is the relation between the three parts? In what sense of “desecration,” are they all desecrations?⁴⁵ Second, in section 9.3 we argued that Maimonides distinguishes two commandments of sanctification, one incumbent on the community as a whole, which individuals perform qua representatives of the community; the other ⁴⁴ See Babylonian Talmud Yoma 86a; the verse is Maimonides’ addition. In MT FL v, 10–11, Maimonides complements examples of desecration like those in Neg. 63 B and C with examples of corresponding kinds of sanctification. The B-kind examples, in turn, fit Maimonides’ explication of “performance of the commandments out of love” (avodah me-’ahavah) and “for the sake of heaven” (leshmah) in MT “Repentance” x, 1–6 where Abraham is again cited as the true “lover of God” recalling his description in BC, Pos. 3 and FL v. Likewise, in the “Epistle” Maimonides defines sanctification in the B and C cases as serving God for no reason except to serve God. ⁴⁵ I do not know why Maimonides emphasizes that the first two parts “concern people in general” and the last “particular [i.e., special] individuals.”

Maimonides and “Sanctification of the Name of God”

169

incumbent on individuals qua individuals. The former is the commandment enumerated as Pos. 9, the latter is “included in” Pos. 3, the commandment to love God. Are there corresponding communal and individual negative commandments on desecration? Do they have different scriptural prooftexts? Third, by directing the reader back to Pos. 9 (where there is no corresponding reference to Neg. 63), Maimonides both appears to be instructing her to read the latter in light of the former—for example, to understand (communal) “desecration” as disgrace and sha’at shemad (a period of persecution) as a state of universal corruption like that depicted under Nebukhadnezzer’s decree in Pos. 9—and to be deliberately drawing our attention to two apparent contradictions between Pos. 9 and Neg. 63. In Pos. 9 Maimonides tells us that it is only in an “almost total” state of disgrace that the commandment of sanctification by dying applies. According to Neg. 63 (A) one must sanctify God by dying rather than commit idolatry even in periods when there is no persecution and even where there is no quorum of ten. Furthermore, what counts as public (bepharhesya or, in Maimonides’ Hebrew, be-rabbim) in Neg. 63 is simply the presence of a quorum of ten; there is no condition, as in Pos. 9, that the entire world or the totality of Israel be present. How can we resolve these apparent contradictions? To address these problems, I want to argue that Maimonides does distinguish two negative commandments of desecration, one incumbent on the individual, one on the community. The distinction is most clearly manifest in the second and third parts (B and C), while the first part contains both prohibitions and also shows how they are related. Employing the distinction between the two kinds of commandments, we can in turn resolve the contradictions. I begin with C moving through the three parts of Neg. 63 in reverse. C concerns acts of desecration that are unbefitting for particular persons of high social stature, given expectations held by “ordinary people,” even when the actions in question are legally permissible. For example, it is a desecration for “a person who is known for his piety and integrity” to delay paying his bills. Maimonides’ point here is not only that normative standards are sensitive to agents’ statuses and social roles, so that a sage may be accountable for actions that the ordinary person is not.⁴⁶ The more important point is that, if “desecration” means disgrace, pious individuals and sages are taken as representatives of their communities, both by their members, who look up to them for guidance and leadership, and by outsiders who judge communities by their leading figures. Therefore, anything such a pious individual or sage does reflects, for better or worse, on his community. Even if he would not be accountable qua individual for some action—even if it ⁴⁶ Although failure to act in a supererogatory way is never desecration, Maimonides does state that acting supererogatorily (lifnim mi-shurat ha-din, lit: “within the rule/line of the Law”) constitutes sanctification (FL v, 11).

170

Josef Stern

would not be disgraceful for him to do as a private citizen and indeed may be legally permissible—it may be disgraceful for him to do qua representative of his community. Thus the sage or pious person who acts disgracefully by the standards demanded of him as a representative of his community violates the communal negative commandment on desecration—even if he transgresses no prohibition on desecration qua individual and indeed, as an individual, acts permissibly within the law. In contrast, I will now argue that B concerns a prohibition on desecration for individuals qua individuals, sharpening still more the distinction between the individual and communal commandments. Maimonides begins by describing these acts of desecration as transgressions individuals commit, not to satisfy any desire or for enjoyment, but rather to “show disregard and disobedience.” His one explicit prooftext is Lev. 19:2, a prohibition on false oaths—e.g., oaths sworn in the name of God to do something which the agent does not fulfill—whose transgression Maimonides argues in Neg. 61 shows “disregard,” i.e., that the agent attaches little or no value to this prohibition and therefore treats it heedlessly and negligently. Maimonides does not cite a verse in B to support his characterization of certain transgressions as desecration that shows “disobedience” but his source is almost certainly the prohibition literally against cursing God (Lev. 24:15–16; Ex. 22:27, enumerated in Neg. 60) which he identifies in the Mishneh Torah with the prohibition not to “revile” God (megadeph, Num. 15:30) under which he subsumes the transgression of any commandment committed “with contempt and highhandedly” (MT L. Idolatry ii, 5–8).⁴⁷ Maimonides further explains that the one who “transgresses in a high-handed manner” does so—echoing his language in Neg. 63—“not because of a desire or because, on account of his evil nature, he wishes to obtain things forbidden by the Law but in order to oppose and combat the Law . . . [and] only because he holds the opinion opposed to the foundation of the Law,” i.e., only because he believes in idolatry. He then adds: “to my mind the same applies in the case of any transgression in which the wish to ruin and oppose the Law manifests itself,” including cases where the person “holds [a] prescription in slight esteem” because “he does not believe in the truth of [its] legislation.” In sum, Maimonides subsumes any transgression that shows either disregard for or disobedience to the Law under the umbrella of idolatry, and what makes their deliberately high-handed and careless

⁴⁷ Four commandments, (Neg. 60) the prohibition on cursing God with His name, (Neg. 61) the prohibition on false oaths (shevu‘at sheqer), (Neg. 62) the prohibition on oaths taken in vain (shevu‘at shav’), and (Neg. 63) the prohibition on desecration of the name of God form one unit in BC and it seems that Maimonides intends all of the first three to show either disregard or disobedience. His explicit citation of Neg. 61 is presumably because the second half of its prooftext is the prohibition on desecration. For a detailed explanation of megadef and idolatry, see Steiner forthcoming.

Maimonides and “Sanctification of the Name of God”

171

transgression an act of desecration is their expression of “the wish to ruin and oppose the Law.” Maimonides gives us several reasons to think that one who performs an act of desecration of this kind is acting as an individual and not as a representative of his community. First, the high-handed transgressor is the fourth and worst in a series of transgressors, the first three of whom (one who transgresses under compulsion, inadvertently, and deliberately) are clearly individuals acting as individuals. Second, he distinguishes the high-handed individual transgressor from “the inhabitants of a city led astray” and from the tribes of Reuben and Gad, implying that the individual transgressor is acting qua individual and not qua representative of a collective. Third, his prooftext, Lev. 22:32 is in the singular person (in contrast to the plural number of R. Ishmael’s Lev. 18:5), suggesting it is addressed to the individual qua individual. Finally, the one who transgresses out of disregard or disobedience shows how little he cares about or values God and His commandments, the opposite of the individual sanctifier of Pos. 3 who acts as an individual out of his love for God, because he so values Him that he cannot stop talking about Him so that everyone will love, or value, Him. Maimonides will sharpen this characterization of individual desecration in part A of Neg. 63. But we can already see the entirely different profiles of desecration associated with the negative commandments incumbent on the individual and on the community. The desecration associated with the communal negative commandment is the disgrace that results from the agent’s failure, out of acquiescence in fear to a culture of idolatry, to publicize the truth about God and love for Him. The desecration associated with the individual negative commandment is the agent’s intention to oppose and destroy the Law, his attack on the very existence and survival of the Law. In neither case is the desecration the act of idolatry itself or holding the worst kind of false belief about God, however major a transgression that is, and in neither case is the desecration the very fact that the coercee, confronted in a martyrdom scenario, does not die for God.⁴⁸ Rather the desecration because of which one should let himself be killed is either great disgrace or the threat to the survival of the Torah and the People of Israel, and Maimonides’ clear implication is that it is only when the transgression leads to either of these kinds of desecration that one should risk his life. In other words, these kinds of desecration are not only good reasons for dying but constraints on when one ought to let himself be killed. With this background, we turn to part A which describes three instances of desecration in martyrdom scenarios in the following order: (1) during a period of persecution, when one transgresses any commandment, major or minor, ⁴⁸ In the “Epistle” Maimonides excludes martyrdom scenarios from his category of “desecration of the Name,” as already noted by Soloveitchik 2014b: 310.

172

Josef Stern

(and for all we are told, even in the presence of less than a quorum of ten Jews) rather than submits to death; (2) during a period when there is no persecution (and not in the presence of ten Jews), when one commits an act of idolatry rather than be killed; and (3) either of the first two scenarios when the transgression is also “in public (be-rabbim)—in the presence of ten Israelites.” There are three surprising features in this tri-partite division. First, given the Talmudic reports in the name of R. Yohanan, which begin with the earlier ruling of the House of Nitzah concerning idolatry and then continue with the later amoraic expansions to include any transgression in a period of persecution and in public, one would have expected Maimonides to follow the same chronological order: to cite the case of idolatry first and then the later extension to any commandment in a time of persecution. Why shift the order? Second, as we said in Section 9.2, the two amoraic expansions make martyrdom scenarios during a persecution but even in private equivalent to ones in public when it is not a period of persecution. Maimonides, however, distinguishes between transgressions in and not in public even during a period of persecution (and, for the transgression of idolatry, at any time), breaking the equivalence and apparently giving the presence of the quorum a different significance. Why? Third, Maimonides treats the third case of desecration in public much more gravely than the first two cases about which he concludes simply that the coercee transgresses the negative commandment on desecration; in the third public case he explicitly cites the verse “And you shall not desecrate my holy name” and adds, “his sin is very severe.” Why the greater condemnation? I want to propose that the first two rulings, both cited in the name of R. Yohanan, concern the negative commandment against desecration incumbent on the individual qua individual. As our discussion of Part B showed, the transgression of idolatry of whatever kind (including reviling God) at any time and no matter how many are present, is not only prohibited in virtue of being idolatry—taken as an act of forbidden worship or as a false belief—but also in virtue of being desecration: a hostile act intended to destroy the Law and People. Hence, the desecration of idolatry must be avoided by, and is therefore forbidden to, the individual qua individual even in private (in the presence of less than ten Israelites). The amoraim in turn make even a minor transgression during a persecution (and even in private) into the equivalent of such an act of idolatry, i.e., an act aimed against the very existence and survival of the Torah and Israel. Hence, it too must be avoided and is forbidden to the individual even in private. By reversing their order of presentation, Maimonides is telling us how to interpret idolatry as a prohibited act of desecration: that we should reconceptualize the original ruling of the House of Nitzah concerning idolatry in light of how the amoraim understood it in their expansive interpretation to include even minor commandments in a time of persecution. What makes both of them acts of desecration is that they are aggressive performances intended to oppose and destroy the community and its institutions. That is

Maimonides and “Sanctification of the Name of God”

173

sufficient to warrant dying as a preventive measure even if the coercee is threatened in the presence of less than ten. At the same time—and as he did in Pos. 9—Maimonides wants to impress on his reader that, while this kind of desecration calls for dying rather than transgressing, it is only in circumstances like this—where the, or any, transgression endangers the very existence and survival of the Jewish community— that one should risk his life. Like R. Ishmael, Maimonides rules that idolatry per se, however major a transgression it is, does not warrant dying, a fortiori minor transgressions. Only where the transgression also constitutes an act of aggression against the existence and survival of the Torah and Israel, is it desecration that demands dying and it is only in those circumstances that one is allowed to surrender his life. Thus a proper understanding of the desecration in question also serves as a constraint on its application to anticipate and prevent the perfectionist excesses of the personality who sees desecration everywhere. Unlike the first two martyrdom scenarios in A which concern the prohibition on desecration incumbent on individuals qua individuals, the third martyrdom scenario involves the communal prohibition on desecration: desecration—i.e., great disgrace—where the individual qua representative of his community must let himself be killed rather than transgress. This scenario involves transgressing either idolatry at any time or a minor transgression during a period of persecution but in either case with the added proviso that the transgression is committed in the presence of ten Israelites. Earlier we mentioned that this ruling that one must die rather than commit idolatry in the presence of ten seems to contradict Pos. 9 that requires the presence of the entire people of Israel facing the world of nations.⁴⁹ But recall now that for Maimonides the quorum of ten stands for or symbolizes the People or Community of Israel as a whole. Therefore, transgression of a commandment in the presence of ten Jews is in the presence of a sample of the whole People or community (tzibbur) of Israel. But here the role of the quorum standing for the whole community is not to witness the coercee’s death or to ritualize the scenario. Instead the fact that ten Jews, or the whole community they symbolize, are present and, for all we are told, do not react to the martyrdom scenario—they neither criticize the coercee to dissuade him from transgressing nor rise up in resistance to prevent the coercer from killing the coercee— the fact that, for all we know, the ten cum community stands there in silence without reacting, is nothing less than acquiescence or tacit assent to the

⁴⁹ I am indebted to Haym Soloveitchik for “challenging” me to address this contradiction and to Dov Friedberg for helping me to solve it. Cf. Friedberg 2014: 185–6, who offers a different explanation: that Maimonides’ wording might imply that an act of desecration can occur among less than ten but that it is only among ten that the transgression is scriptural rather than rabbinic. Since Maimonides adds a verse to B, it seems to me that he takes it to be scriptural as well.

174

Josef Stern

idolatrous transgression before their eyes. This kind of communal acceptance of the transgression, their failure to rise to sanctify God and publicize the true religion in protest or reform, is the very same situation Maimonides depicts in Pos. 9 at the time of Nebukhadnezzer: a life of collective disgrace to which death would be preferable. Here the presence of the quorum of ten transforms the individual’s performance of idolatry (or of a minor transgression during a period of persecution) into the kind of desecration that is forbidden to him not (just) qua individual but qua representative of his community.⁵⁰ Hence, Maimonides judges the transgression of the communal negative commandment to be “very severe” and, given his citation of the actual verse, the communal prohibition also seems to be the primary negative commandment on desecration for Maimonides. However, as with the prohibition on the individual qua individual, Maimonides is also indirectly telling the perfectionist that it is only “in public”—only when the disgrace is so great— that the individual qua representative of his community ought to risk his life. There remains one final lacuna in Neg. 63 that, again, points to Maimonides’ concern with perfectionism. He spells out in detail exactly (i) when one must be willing to be killed rather than transgress, (ii) when transgressing rather than letting oneself be killed constitutes desecration, and (iii) when one is obligated to transgress rather than let oneself be killed. However, Maimonides omits one crucial case: What is the status of one who is not obligated to submit herself to death and is permitted to transgress (e.g. transgress a minor commandment in private not at a time of persecution), but nonetheless does let herself be killed because she would rather not transgress any law under any circumstance? This person makes herself a (self-)righteous exception, going beyond the dictates of the law. Is such voluntary or supererogatory willingness to die for God, or voluntary martyrdom, recommended, allowed, or condemned? Maimonides takes up this problem of perfectionism in the MT.

9.5. MISHNEH T ORAH The fifth chapter of FL lays out, for the first time in rabbinic literature, laws, or norms, governing the sanctification of the Name, or dying for God. All [members of] the House of Israel are commanded to sanctify this great name [of God]. As it is said: “And I shall be sanctified among the children of Israel” (Lev. 22:32). And they are warned not to desecrate it, as it is said, “And you shall not desecrate My holy name” (Lev. 22:32). How [do we fulfill these ⁵⁰ Hence, the presence/absence of the quorum of ten plays an entirely different role for Maimonides than does transgression during/not during a period of persecution. The latter transforms a minor transgression into a major one; the former transforms the kind of desecration that is caused by the transgression.

Maimonides and “Sanctification of the Name of God”

175

commandments]? When an idolater arises and [violently] coerces an Israelite to transgress any one of the commandments mentioned in the Torah under the threat of death, he should transgress [the commandment] and not [allow himself to] be killed. For it is said concerning the commandments, “which, if a man do them, he shall live by them” (Lev. 18:5). [This implies that] he “shall live by them,” and not die by them. And if he suffers death and does not commit the transgression, he is accountable for [the loss of] his life [mithayev benafsho]. (FL v, 1)⁵¹

This opening paragraph is remarkable on several counts. It is the first halakhah in the Code to refer specifically to the “House of Israel.” The preceding four chapters of FL lay out the basic knowledge of natural philosophy and metaphysics that Maimonides expects all humans to possess, making no mention of Israel or the Jewish people. Sanctification of the Name is the first commandment presented in the Mishneh Torah that is specifically Mosaic, i.e., incumbent exclusively on the Jewish people and, as we have mentioned, it is the commandment of sanctification incumbent on the People which individuals perform qua representatives of the community of Israel.⁵² Second, the order in which Maimonides presents its laws is even more remarkable. Instead of beginning with the classic example to which the phrase “Sanctification of the Name” traditionally refers—when one should submit himself to be killed rather than transgress—Maimonides begins with the case of minor commandments in private and in peace: the case when one should transgress rather than be killed. But not only should one transgress; by transgressing rather than letting himself be killed, one sanctifies God! Third, and without precedent, Maimonides adds that the individual in those same circumstances who, rather than transgress the Law, instead submits himself or seeks to be killed is “accountable for his [loss of] life”—i.e., he has taken his own life for which he alone is to be blamed.⁵³ Maimonides’ point is not only that there is no place for voluntary or supererogatory martyrdom.⁵⁴ The perfectionism that would lead one to voluntarily surrender his life in order to avoid any transgression in any circumstance is culpable, tantamount to a suicide, literally and figuratively. In a radical change in the meaning of the term, Maimonides is ruling that sanctification of God sometimes requires transgression.

⁵¹ I am indebted to Bernard Septimus for making available to me his forthcoming translation of Maimonides’ Book of Knowledge in the Yale English edition of the Mishneh Torah. ⁵² See Kaplan 1985. Others take “House of Israel” to exclude gentiles from the commandment of sanctification; see MT “Kings” x, 20; BC Pos. 9. Since the broader context of Lev. 32:22 is addressed to the Priests, it might also be intended to emphasize that the obligation is on all Jews, not only the Priests. ⁵³ In the “Epistle” Maimonides depicts this voluntary martyr as someone who thinks of himself as “more precious than the sages and more exacting in his performance of the commandments” while in fact he is a “rebellious sinner” whose “blood is on his own head” (mithayev benafsho), citing Lev. 18:5. ⁵⁴ See Twersky 1992.

176

Josef Stern

In halakhot 2–4, Maimonides spells out all the rabbinic laws governing sanctification and desecration elaborated in the Talmud. However, the order in which he presents them in the Mishneh Torah—transgression first, dying second—transforms the problematic underlying the whole subject of dying for God in martyrdom scenarios.⁵⁵ Picking up on the rabbis’ choice of term “sanctification,” Maimonides uses it as a window onto the deeper question: What constitutes a holy life and does it require perfect performance of all of the commandments? Is it better to give up one’s life than violate a single commandment? Or does the idea of a holy life allow for imperfect performance of the Law, for a life in which individuals sometimes must commit transgressions, say, under compulsion? According to Maimonides, the answer to this question is determined by the institutions of the Law itself. The Law sets out both an ideal, or idealized, model of communal welfare—including intellectual welfare, the inculcation of correct beliefs and values—together with constraints on its realization, correctives that accommodate the ideal to reality and necessities. These correspond to the different conceptions of sanctification and desecration that we have met in BC. One is the communal obligation to publicize and teach the Unity of God, especially in the face of the community-wide disgrace of idolatrous corruption. This kind of sanctification is absolute and unconditional: everywhere—in public and in private—at all times—at peace and under persecution—fearlessly, with no limits and without fear even of death. On this ideal, there are no exceptions or compromises to the demand for perfect performance of sanctification. This “perfectionism” is the view sketched at the beginning of Positive 9 and it also surfaces in Negative 63 which places no constraints on when the individual qua individual should die rather than commit the desecration of idolatry. But Maimonides is also acutely sensitive to the dangers of perfectionism, not only the particular actions it warrants but also the kind of personality or the character traits it cultivates. Perfectionists in the execution of the commandments who admit no exceptions are personalities who tend toward overperfection: to seek sanctification even where there is no desecration or, better, to see desecration everywhere. Their fearless, wholehearted devotion to the strict performance of the Law leads them to dying for God where fearlessness is not demanded by the Law. Therefore, while the ideal model of the Law calls for perfect, fearless, unconstrained, spontaneous sanctification, Maimonides imposes constraints on that very ideal to prevent excesses of perfectionism. One constraint is his restriction of communal sanctification to contexts of extreme disgrace, like the totally corrupt state of the world and Israel in his interpretation of the Book of Daniel. A second constraint is that the individual

⁵⁵ Contrast the order of presentation in the MT with that in the “Epistle” and Neg. 63.

Maimonides and “Sanctification of the Name of God”

177

qua individual should risk his life to prevent desecration only where that constitutes an aggressive assault on the existence and survival of the Jews and Torah. Nonetheless one might also argue that the Law itself is ambiguous about the status of the perfectionist personality type. The phrase Maimonides uses to condemn this person—“is accountable for [the loss of] his life” [mithayev benafsho]—is a very strong expression of condemnation but it is not a strictly legal term like “guilty,” innocent,” “forbidden,” “obligated,” or “permitted.”⁵⁶ It is legally unenforceable but it is meant to shape how people will be disposed to act, to cultivate a personality type. The extra-legal term serves to correct excessive abuses of the Law from within the Law. Both of Maimonides’ constraints aim to correct the dangers of excess— excessive love of God—inherent in the perfectionist ideal.⁵⁷ As we suggested earlier, Maimonides’ depiction of the extreme disgrace of Israel in Positive 9 is his appropriation of R. Ishmael’s requirement of “in public” as a constraint on the communal commandment he introduces. However, here at the beginning of FL v, 1, Maimonides also cites R. Ishmael’s other prooftext, “And you shall live by them” (Lev. 18:5), which, recall, the sage cited to support his general rule that one should commit coerced transgressions rather than let oneself be killed. But here again Maimonides changes the meaning of this verse which has a rich history of interpretations in rabbinic literature. In practical deliberations, the rabbis employ the verse to justify violating prohibitions to save someone’s life.⁵⁸ In polemical contexts with early Christians who charged that one achieves atonement and ultimate salvation by voluntarily dying out of self-sacrifice, thereby witnessing Christ, the rabbis used the verse to show that it is rather a life performing the commandments and studying the Torah that leads to ultimate happiness and eternal life.⁵⁹ And Maimonides himself elsewhere argues that the verse teaches that the “laws of the Torah are not vengeance upon the world, but rather mercy, lovingkindness, and peace in the world,” hence, that the Torah sometimes requires even the sage or very pious person to transgress a commandment, including the prohibitions on desecrating the Sabbath (hillul Shabbat), in order to save a life.⁶⁰ ⁵⁶ For similar uses of this term, see Babylonian Talmud Nidah 17a, MT “Forbidden Foods,” xvii, 31 and MT “Gifts to the Poor,” x, 19; C. Mishnah, Berakhot I, 7. For two other uses that mean “subject to capital punishment,” see MT “Slaughtering” i, 29; and MT “Damage and Injury,” vii, 6 and viii, 12. ⁵⁷ For another example of a constraint on the Law that corrects from within the Law, see Stern 2004. ⁵⁸ See Babylonian Talmud Avodah Zarah 27b, Babylonian Talmud Yoma 85a, FL v, 6–8 where the verse functions within a practical deliberation, including expert opinion, unlike martyrdom scenarios. Curiously, in Yoma, R. Ishmael cites a different verse in support of saving a life, while Lev. 18:5 is cited in the name of the amora Samuel. ⁵⁹ See Schwartz 2010. ⁶⁰ Maimonides, MT “Sabbath,” ii, 3; cf. Tosefta Sabbath 15:17 (Vilna ed. 16:14) and Tosephta KePeshuto, Moed (Lieberman 1962). This reason seems to allude to the Pauline criticism that the

178

Josef Stern

For Maimonides in FL v, 1, in contrast, the verse is not just about life but about a life of sanctification. A truly holy, or sanctified, life is not only the life in which one keeps every commandment perfectly, a life in which death is better than living with the imperfection of even the least transgression of a minor commandment. Rather a sanctified life is living a life that sometimes requires transgression of a commandment, an imperfect life. Not that one becomes sanctified by committing transgressions, but if one commits a transgression rather than be killed because that is what the Law so rules, then that transgression is in fact what the sanctified life demands. It is part of a life obedient to the Law, which aims at the welfare of the community at large. Under these circumstances, it is not merely permitted to transgress; the transgression becomes a duty that sanctifies one’s total life. To be sure, some circumstances require dying to prevent desecration, either the disgrace of the whole community or aggressive assaults on its existence, and Maimonides praises individual representatives of the community like Daniel and his friends and R. Aqiba who gave their lives to publicize the truth of the Law to counter such desecration.⁶¹ But these are exceptions that Maimonides mentions only after the general rule with which he opens his discussion of dying for God in FL v, 1. The general rule defines what it is to live for God and it is through that lens that Maimonides determines what it is to die for God.⁶²

BIBLIOGRAPHY Adams, R. M. (1997) “Symbolic Value.” Midwest Studies in Philosophy 21: 1–15. Aquinas (1964) Commentary on the Nicomachean Ethics. Trans. C. I. Litzinger. Chicago: Henry Regnery. Baumgarten, A. (2007) “On the Nature of Religious Extremism” (Heb.) In: M. Likvak and O. Limor, eds., Religious Extremism. Jerusalem: Shazar Center for Jewish History, pp. 43–56. Blau, Y. (2016–17) “Idolatry and Martyrdom.” The Torah u-Madda Journal 17: 35–45. Boyarin, D. (1999) Dying for God. Stanford, CA: Stanford University Press. Law only exacerbates original sin. I am indebted here to Dov Friedberg for directing me to this point. ⁶¹ I cannot explain why Maimonides says both in the “Epistle” and in FL v, 4 that Daniel, Hananiah, Misha’el, and Azariah actually died as martyrs, contrary to the scriptural text. ⁶² I wish to thank R. Yair Kahn, Ayelet Libson, Kalman Neuman, Mark Steiner, David Shatz, members of Kehillat Kol Dodi (Jerusalem), and especially Dov Friedberg, Aaron Segal, and Haym Soloveitchik for valuable discussion, criticisms, and comments on earlier versions of this chapter. Early versions of this chapter were presented at the Center for Interdisciplinary Study of Monotheistic Religions (CISMOR) at Doshisha University, Kyoto, Japan and at a working group meeting of the “Project on Virtue, Happiness, & the Meaning of Life” (December 2016), made possible by a generous grant from the John Templeton Foundation.

Maimonides and “Sanctification of the Name of God”

179

Fierro, M. (2000) “Spiritual Alienation and Political Activism: The Guraba’ in Al-Andalus during the Sixth/Twelfth Century.” Arabica 157. Fierro, M. (2010) “Conversion, Ancestry, and Universal Religion: The Case of the Almohads in the Islamic West (Sixth/Twelfth–Seventh/Thirteenth Centuries).” Journal of Medieval Iberian Studies 2(2): 155–73. Fierro, M. (2016) “The Religious Policy of the Almohads.” In: S. Schmidtke, ed., Oxford Handbook of Islamic Theology. Oxford: Oxford University Press. Fortin, E. L. (1972) “St. Thomas Aquinas.” In: Leo Strauss and Joseph Cropsey, eds., History of Political Philosophy, 2nd ed. Chicago: Rand McNally, pp. 223–50. Friedberg, D. (2014) Crafting the 613 Comandments: Maimonides on the Enumeration, Classification, and Formulation of the Scriptural Commandments. Brighton, MA: Academic Studies Press. Halbertal, M. and Margalit, A. (1998) Idolatry. Cambridge, MA: Harvard University Press. Kaplan, L. (1985) “Maimonides on the Singularity of the Jewish People.” Daat 15: 5–27. Lieberman, S., ed. (1962) Tosephta KePeshuto, Moed. New York: Jewish Theological Seminary Press. Maimonides (1963) Guide of the Perplexed. Translated by Shlomo Pines. Chicago: University of Chicago Press. Maimonides (1971) Sefer Ha-Mitzvot (Arabic and Hebrew). Edited and Translated by R. Joseph Kafih. Jerusalem: Mossad ha-Rav Kook. Maimonides (1984) The Book of Commandments. Translated by C. D. Chavel. London: Soncino Press. Mandel, P. (2014) “Was Rabbi Aqiva a Martyr? Palestinian and Babylonian Influences on the Development of a Legend.” In: R. Nicolsky and T. Ilan, eds., Rabbinic Traditions between Palestine and Babylonia. Leiden: Brill, pp. 306–54. Mekhilta de-Rabbi Ishmael (2004) Trans. J. Z. Lauterbach. 2nd ed. Philadelphia: Jewish Publication Society. Milgrom, J. (2000) Leviticus 17–22. Anchor Bible Commentaries. New Haven: Yale University Press. Rosenberg, S. G. (HaRav SHaGaR) (2004) I Have Loved You Unto Death (Heb.). Efrat, Israel: Siach Yitzhaq Press. Schwartz, D. (2010) “Martyrdom, the Middle Way, and Mediocrity (Genesis Rabbah 82:8).” In: Z. Weiss, O. Irshai, J. Magness, and S. Schwartz, eds., “Follow the Wise”: Studies in Jewish History and Culture in Honor of Lee I. Levine. Winona Lake, IN: Eisenbrauns, pp. 343–53. Septimus, B. (1994) “Narboni and Shem Tov on Martyrdom.” In: I. Twersky, ed., Studies in Medieval Jewish History and Literature, vol. II. Cambridge, MA: Harvard University Press, pp. 447–55. Shepkaru, S. (2006) Jewish Martyrs in the Pagan and Christian Worlds. Cambridge: Cambridge University Press, pp. 6–33. Soloveitchik, H. (2014a) “Halakhah, Hermeneutics, and Martyrdom in Asheknaz.” In: Collected Essays II. Oxford: Littman, pp. 228–87. [This essay was originally published in two installments in JQR 94 (2004), pp. 77–108, 278–97.] Soloveitchik, H. (2014b) “Maimonides’ Iggeret ha-Shemad: Law and Rhetoric.” In: Collected Essays II. Oxford: Littman, pp. 288–330. [This essay was originally

180

Josef Stern

published in L. Landman, ed., Rabbi Joseph Lookstein Memorial Volume. New York, 1980, pp. 281–319.] Soloveitchik, J. B. (1975) Pinchas Peli, ed., Al ha-Teshuva. Jerusalem: World Zionist Organization, Department for Torah Education and Culture in the Diaspora. Spiegel, S. (1993) The Last Trial. Woodstock, VT: Jewish Lights. Steiner, M. (2017) “Philosophy and Subphilosophy in Maimonides: Two ‘Perplexities.’ ” Iyyun 66 (January): 27–57. Steiner, M. (forthcoming) “Megadeph, Oved Avodah Zarah, Ve-Over Averot beSha’at Nephesh, be-Mishnato shel ha-Rambam.” (Heb.) In: M. Z. Cohen, A. Koller, and A. Moshavi, eds., Semitic, Biblical, and Jewish Studies: Festschrift for Richard Steiner. Jerusalem: Bialik and Yeshiva University Press. Stern, J. (2004) “Maimonides on Amalek, Self-Corrective Mechanisms, and the War against Idolatry.” In: J. Malino, ed., Judaism and Modernity: The Religious Philosophy of David Hartman. London: Ashgate, pp. 371–410. Stern, J. (2013) The Matter and Form of Maimonides’ Guide. Cambridge, MA: Harvard University Press. Stern, J. (ms) “The Unbinding of Isaac: Maimonides on the Parable of the Aqedah.” manuscript. Stroumsa, S. (2009) Maimonides in His World. Princeton and Oxford: Princeton University Press. Twersky, I. (1992) “Sanctification of the Name and Sanctification of Life—Aspects of Holiness in the Teaching of Maimonides.” (Heb.) In: I. Gafni and A. Ravitzky, eds., Sanctity of Life and Martyrdom: Studies in Memory of Amir Yekutiel. Jerusalem: Zalman Shazar Center for Jewish History, pp. 167–90. Urbach, E. A. (1986) The Sages: Their Beliefs and Opinions. Jerusalem: Magnes Press.

11 Should Theists Eschew Theodicies? David Shatz

In his Torat ha-Adam (The Instruction of Man), after a lengthy discussion of theodicy, Moses Nahmanides (1194–1270) turns to the following objection to his entire effort: Since there is a hidden matter in [God’s] judgment and we must believe in His righteousness insofar as He is the true judge [i.e., the judge whose judgments are true], why do you trouble us and command or instruct us to learn the claims that we [i.e., Nahmanides] have explained and the secrets to which we have alluded? Why do we not hinge everything on the support we will arrive at eventually, that there is no iniquity or forgetfulness before Him, but rather all His ways are just?

To which Nahmanides replies, This [objection] is the claim of fools, despisers of wisdom [kesilim mo’asei he-hokhmah]. For through the above-mentioned study [of theodicy], we will benefit ourselves by becoming wise people and knowers of God, may He be Blessed, from [contemplation of] His ways and deeds. . . . Likewise, it is the obligation of every creature who serves [God] out of love and fear to investigate in order to make [His] justice right and to show the judgment true, according to his ability . . . in order that his mind become composed in this matter [kedei she-tityashev da‘ato ba-inyan], and the verdict of his creator will appear true to him.¹

The critic Nahmanides describes seems to object not only to the position (held by Nahmanides) that it is a duty to pursue theodicy, but even to the weaker claim that it is permissible to pursue such an enterprise. After all, the critic would argue, given the (claimed) superfluity of theodicizing, wouldn’t it be wrong to waste time and mental energy on an activity that is not needed and will snatch time away from other theological and religious pursuits? Isn’t it a kind of bittul Torah (wasting time from Torah study)?

¹ Translation adapted from Nahmanides (1985: 468). David Shatz, Should Theists Eschew Theodicies?. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0011

Should Theists Eschew Theodicies?

199

Nahmanides’ rejoinder is that the pursuit of theodicy is not only legitimate, it is mandatory from a religious standpoint. This is so for two reasons. One is that theodicizing affords us yishuv ha-da‘at—repose, tranquility, peace of mind, equanimity.² When people justify God’s ways, he argues, belief in God’s justice becomes entrenched in their minds, and they achieve serenity and secure belief. Now, this first rationale for theodicizing would not require theodicists to have a correct theodicy—only to have one that makes them feel secure and serene, with peace of mind. But Nahmanides also contends (as a second reason for theodicizing) that knowing the truth about God is important. “We will benefit ourselves by becoming wise people and knowers of God, may He be Blessed, from [contemplation of] His ways and deeds.” For this purpose, a theodicy that affords yishuv ha-da‘at is not enough; the theodicy must also be true. Nahmanides may be dubiously assuming that a correct theodicy will prove subjectively satisfying. Pace this assumption, the point has often been made that logical cogency does not always spell pastoral effectiveness. Moreover, it is striking how confident Nahmanides is in his own explanation for evil, especially when we consider the wide range of options in prior rabbinic literature. However one approaches these matters, Nahmanides’ position is clear: that for the sake of these two goods, equanimity and truth, theodicizing is a duty.³ Theodicizing is a natural activity for many theists, and as we have just seen, its value can be argued for. In this chapter, however, I explore a position that is the very antithesis of Nahmanides’—a position that we may call, following John Hick (1985: 6–11), anti-theodicy. Anti-theodicy, as I use the term here, is the position that it is irrational and/or unethical and/or otherwise deleterious, inappropriate or wrong for theists even to seek theodicies, to wonder what a good theodicy might look like.⁴ Theists believe in God’s perfection, of course, including perfect goodness and justice, but to figure out how that goodness and justice is present in the world, is, for an anti-theodicist, wrong. The problem is not that theodicies are uniformly false or logically irrational—that viewpoint ² Actually, I’m not clear whether yishuv ha-da‘at means for Nahmanides what it means today (peace of mind); it could mean something akin to well-grounded belief. But his argument as I’ve construed it carries some interest, I think. ³ Is it everyone’s duty to theodicize? Perhaps when Nahmanides says that “it is the obligation of every creature who serves [God] out of love and fear to investigate in order to make [His] justice right and to show the judgment true, according to his ability,” he means to restrict this duty to those who already serve God out of love and fear; or perhaps he means that by theodicizing one can attain love and fear. For present purposes, either reading will do. ⁴ Marvin Fox (2003: 175) describes anti-theodicy as “the view that human beings cannot and need not justify his ways.” If “cannot justify” implies only that the problem of evil has no intellectual resolution, Fox’s definition falls short of stating a moral objection to theodicy and boils down to the “futility” argument used later to motivate anti-theodicy, coupled with the idea that having a theodicy would be superfluous because we can simply affirm that God is perfectly just and good. Zachary Braiterman (1998) uses “anti-theodicy” to denote the atheistic view that there is unjustified evil. This differs from Hick’s (and my) usage, as well as Fox’s.

200

David Shatz

would put theists in an awkward position—but that the activity of theodicizing is wrong in some way or other from a believer’s standpoint. Do anti-theodicists tell us, then, to ignore the existence of evil, to put it out of our minds, to shove it under the rug and leave it there to be forgotten eternally? No; their position, or at least that of the opponents of theodicizing to be featured in this chapter, is that although we shouldn’t theorize about why evil exists, we should focus on properly responding to evil. We must react to evil, but not try to justify it. We must try to combat it, to empathize with sufferers, to relieve suffering, and to repair our faults, but not to theorize about why evil is there.⁵ Writes Rabbi Joseph B. Soloveitchik (2000: 15), “We do not inquire about the hidden ways of the Almighty, but rather about the path wherein man shall walk when suffering strikes.” The fundamental question, he says, is not why people suffer, but rather “What obligation does suffering impose upon man?” An anti-theodicist does not proffer a “metaphysic of evil,” but only “an ethic of evil” (Soloveitchik 2002a: 101–2). To cite yet other formulations found in the literature: Metaphysics gives way to praxis. Anti-theodicy abandons the logic of explanation and highlights the logic of response (“response” here obviously denotes responses other than theorizing (see Sokol 2013: 75)). The way human “reaction” to evil should unfold is clear when it comes to sympathizing with others and acting to alleviate their suffering. But what are the proper responses for the sufferer? Well, sufferers may, as a result of their own suffering—as in a film The Doctor, about a crass physician who becomes a cancer patient—gain empathy with others, or gain humility. Suffering may obliterate a sufferer’s grandiose visions of power and perhaps immortality (“a fall from the heights of an illusory eternity” is how Soloveitchik describes such changes⁶). Realization of our mortality also enables us to appreciate the significance of a given moment, or feel closer to God. Some of these transformations may occur automatically or naturally, without choice, which somewhat undercuts anti-theodicists’ stress on choice in the face of evil. But we readily get the general picture: that “act rather than theodicize” applies to both sufferings of others and your own. The experience of suffering must not go to waste; one must not squander opportunities for self-creation and growth. While normative questions about what religious people should do in the world—the fight against evils outlined above—is the focus of many antitheodicists, some also focus on religious phenomenology (the psychology and inner lives of believers) and/or the nature of and rationales for religious actions, e.g. ritual. Anti-theodicists are unified not only in rejecting the enterprise of theodicy, but in finding some replacement or other for it, if not for metaphysics generally. ⁵ It may seem odd that the reaction to one’s suffering should be repairing one’s faults if one rejects a retributivist theodicy. I discuss this question in Shatz 2010: 294–7. ⁶ Soloveitchik 2000b: 131.

Should Theists Eschew Theodicies?

201

11.1. THE ROOTS OF A NTI-THEODICY The anti-theodic position has generally been advanced by authors steeped in Continental philosophy (for example, Rabbi Joseph Soloveitchik and Emmanuel Levinas). Indeed, in his provocative book The End of Philosophy of Religion, Nick Trakakis sees the attempt at theodicy as a distinctive mark of (theistic) analytic philosophy of religion as opposed to Continental, and the repudiation of theodicy as at least to some degree a repudiation of analytic philosophy of religion.⁷ Journals of analytic philosophy like Faith and Philosophy and Religious Studies, as well as books galore, abound in arguments for and against particular theodicies such as the soul-making theodicy. Authors steeped in Continental philosophy express their anti-metaphysical orientation in contemporary anthology titles like Religion After Metaphysics and Religion without Theology. The flight from theodicy possibly accelerated due to despair over finding a theodicy that adequately explains the Holocaust;⁸ some believe, in fact, that this despair has stimulated the general Continental hostility to metaphysics. Yet, notwithstanding the contemporary link to Continental metaphysics and perhaps the Holocaust, the dispute between pursuers of theodicies and opponents of the pursuit is ancient. On the one hand, midrashic and Talmudic works are replete with theodicies; on the other hand, we find texts such as Menahot 29b, where God literally tells Moses to “shut up” when Moses inquires about why Rabbi Akiva is undergoing a tormentful death.⁹

⁷ Trakakis 2008, esp. ch. 1. A few decades ago logical positivism was the basis for an antimetaphysical thrust in the philosophy of religion; but in the present case, anti-metaphysics grows out of the Continental rather than Anglo-American traditions. Trakakis does not chalk up the theodicy–anti-theodicy divide entirely to differing attitudes to metaphysics. He considers a varied set of reasons for anti-theodicy. ⁸ I am not saying that there is a deductive logical route from “We don’t know why God allowed the Holocaust” to “We shouldn’t pursue theodicy,” though shortly I will take up a futility argument of this kind. Nor am I saying that theodicies used in earlier times will definitely not apply to the Holocaust; this may depend on whether we are using the deductive problem or the evidential one, and even in the case of the evidential one someone might argue that magnitude of evil makes no difference and the old theodicies work for the Holocaust as well. But historical causation—events impacting on ideas—doesn’t always follow a rigorous logic. Historically, the Holocaust may have brought a virtual end to theodicy. There are recent Jewish thinkers who “did” metaphysics and theodicy, such as Rabbi Eliezer Berkovits (1973), who utilize a free-will defense to explain the Holocaust, but professions of ignorance dominate theological literature about the Holocaust. Jewish theologies have always had to contend not only with evil per se (sufferings, deaths, murders) but with an additional problem—God’s seemingly having broken his promise to His people. How, it is asked, can we explain Jewish communal suffering and death given the divine promise? The apparently broken promise and the need to explain suffering and death on so large a scale, compounds for a Jewish theologian the task of explaining the Holocaust. ⁹ For sources, see Fox 2003.

202

David Shatz

It is intriguing that in recent years many analytic philosophers who are theists have been drawn to a cousin of anti-theodicy—the “skeptical theism” approach to evil. Skeptical theism responds to the objection from evil by contending that we have no epistemic right to assume that we could fathom the ways of an omniscient being. After all, the latter may know facts we don’t know and/or know moral principles that we do not. We may have no good enough grasp of the big picture such that we can declare some evils unjustified. The cousins—anti-theodicy and skeptical theism—are not identical, however, even though both have the result of not requiring a theodicy. Analytic skeptical theists submit their confessions of ignorance as an outlook within the theodic enterprise rather than as a repudiation of it. They see themselves as pointing to a flaw in the standard argument from evil against God’s existence. Skeptical theists may not be against seeking theodicies; perhaps they merely want to show that failure to find a convincing one does not show there is no justification for evil.¹⁰ By contrast, Continental philosophers are not bent on finding dubious steps in a regimented argument, but, rather, simply want no part of the discussion. These differences acknowledged, we may speculate that skeptical theism reflects the same sense of defeat as sometimes motivates antitheodicy, but couches matters differently.¹¹ Another point of difference between analytic and Continental discussions of evil is that analytic philosophers submit their confessions of ignorance after contemplating one fawn’s suffering in a forest, the fawn described in William Rowe’s celebrated example,¹² while non-analytic discussion focuses on the Holocaust, an evil of enormous magnitude.

11.2. ON EVALUATING ANTI-THEODICY Let me move to some general comments about evaluating anti-theodicy.¹³ First, there is a difference between how a theist views an anti-theodic position and how a neutral observer or atheist views it. In the observer’s eyes, “perfect being” theists who repudiate theodicizing are flailing about trying to evade a critical task for a philosopher: confronting the objection ¹⁰ Or this may be only a first impression. In truth, skeptical theists may be against seeking theodicies and would not welcome any. They might insist that no theodicy, no matter how cogent it seems to us, should be endorsed because we cannot reconstruct the thinking of a perfect being, period. Even when our reconstruction seems satisfying, it is based on limited knowledge. ¹¹ I often wonder: Why wasn’t this “We don’t know what a perfect being will and will not do” answer on the analytic philosophers’ table much earlier? It’s so old! ¹² See Rowe 1979 and the discussion and references in Oppy 2013. ¹³ Discussions relevant to anti-theodicy are found in, inter alia, Phillips 2004, Surin 1986, Tilley 2000, and Trakakis 2013.

Should Theists Eschew Theodicies?

203

from evil and either trying to refute it (in other words, finding a good theodicy), or else conceding to the critics. Most analytic philosophers, even the theists among them, are likely to be unsympathetic to anti-theodicy, viewing it a surrender of intellectual integrity.¹⁴ But anti-theodic insiders have no thought of questioning God’s perfection, because they are theists talking to other theists. In that context, for neither party is the issue about holding on to belief in God; it’s about perpetuating or terminating a certain enterprise, a certain philosophical activity within a theistic framework. Whether to engage in theodicy for public relations purposes, that is, to prevent theism from looking feeble in the public arena, and “to know how to answer the heretic” (in the Mishnaic phrase) [Avot 2:19] is another question, one that is complicated morally and I will here sidestep. Second, there is a difference between rejecting an argument for antitheodicy and arguing against anti-theodicy—in other words, positively arguing that theodicizing is valuable. Most of what I have to say rejects “pro-anti-theodicy” arguments (pardon the clumsy phrase) but does not offer positive reasons for theodicizing. There are such reasons (for better or for worse): the argument (Nahmanides’) that only if armed with a theodicy may one know what is meant by affirming God’s justice; the argument (also Nahmanides’) that having a theodicy yields composure of the mind; the argument that lack of a theodicy renders the universe morally unintelligible for theists; and the argument that for philosophers the default position is always that one must investigate objections in the absence of a compelling reason not to.¹⁵ But I am interested here in arguments leveled against anti-theodicy. Third, what are the criteria for evaluating anti-theodic and pro-theodic arguments? The following passage I wrote for another purpose deals with theodicy, but it can apply to assessing anti-theodic approaches as well: There are many theodicies in Jewish tradition, and it is difficult if not arbitrary to isolate one as dominant. Jewish theodicies contradict one another . . . I propose that a Jewish theodicy should satisfy two desiderata: (1) overlap or at least connectivity, or at the very least, compatibility with Jewish tradition, and (2) philosophical cogency. There is no guarantee that the theodicy that is the most cogent philosophically is dominant in Jewish tradition, or even connected with it at all, or even compatible with Jewish theological ideas; in the last two cases it is not clear in what sense it is a Jewish theodicy. And the most philosophically plausible theodicy may be marginal in or absent from the tradition. If a theodicy is constructed as a fusion, however cohesive, of scattered elements in the ¹⁴ And out of sync with their day jobs. To put the point seriously, one might think that a nonphilosopher has no duty to investigate in the absence of a compelling reason not to. The impropriety of not theodicizing might be regarded as a function of one’s profession and perceived professional responsibilities. Or so it might be argued. ¹⁵ The last two of these arguments were suggested to me by Alex Sztuden. The one about moral intelligibility has been raised by Thomas Nagel.

204

David Shatz

tradition, perhaps its Jewishness is diminished because the theodicy per se is not in the tradition. Thus . . . the Jewish philosopher’s task would be either to find a theodicy with a reasonably loud voice in tradition and show it is philosophically cogent, or take a cogent theodicy and locate it reasonably well in the tradition, or build a theodicy out of elements in the tradition. The “Jewishness” of the theodicy will be a matter of degree. (Shatz 2013: 309–10)

What applies to justifying various theodicies “Jewishly” applies, mutatis mutandis, to justifying anti-theodic positions “Jewishly.” Ideally, anti-theodic or theodic positions should be both well grounded in Jewish sources and philosophically cogent; realistically we might win less. In terms of which sources to use—for reasons of convenience, I will utilize sources of the Bible, Talmud, and Midrash, but in a longer paper other sources would be incorporated. Because both anti-theodicy and theodicy can marshal supporting texts from Jewish tradition, each side must “privilege” one set of texts over another based on what is philosophically cogent to them or what strikes them as the dominant thrust of tradition and/or most coherent with key elements of the tradition. Anti-theodic arguments will fail to persuade theists who don’t share certain religious “sensibilities” and antecedent beliefs, but they will appeal to those with different sensibilities and antecedent beliefs. One payoff of our discussion will be locating philosophical issues and religious sensibilities that affect the privileging of particular texts. The method here is akin to a common way of studying Talmud: to “explain a mahaloket” (dispute) by finding the principles animating each position. That said, I think that problems for antitheodic arguments emerge. I will divide anti-theodic arguments into three categories: moral objections to theodicizing; objections that accuse the enterprise of being pointless; and a third category that fears the contravention of religious values.¹⁶

11.3. MORAL OBJECTIONS

11.3.1. The Objection from Arrogance C. S. Lewis (2014) spoke of atheists placing “God in the dock.” But some theists find it arrogant not only for atheists to prosecute God in the dock, but also for theists to defend Him in the dock. Theists, goes the argument, must not judge God: we stand before Him in judgment, not the other way around. It is arrogant even to try to read God’s mind: “For as the heavens are high above ¹⁶ I thank the publisher for permission to use, in parts of the ensuing discussion, some material from Shatz 2013: 319–23 (copyright John Wiley & Sons 2013).

Should Theists Eschew Theodicies?

205

the earth, so are my ways high above your ways and my thoughts above yours” (Isaiah 55:9). Accepting that God is good and just, without trying to fathom His ways and judge them, exhibits proper humility. So argue anti-theodicists. There are really two problems, then—the apparent arrogance in claiming to read God’s mind, and the apparent arrogance in judging or evaluating his intent. To be sure, even to simply declare “God is just” based on tradition is in some sense to judge Him; but the objectionable sort of judging involves evaluating by our own reasoning whether God has good enough reason for allowing evil.¹⁷ But, to begin with, the arrogance objection runs into a simple problem: Great sages of Jewish tradition have given theodicies. These theodicists claim to read God’s mind and to judge the reasoning they ascribe to Him (as good reasoning—“well done, God”). Surely a religious Jew would not want to brand all these sages as arrogant. To be sure, in a text already cited, God silences Moses when Moses asks why Rabbi Akiva, whose future suffering is revealed to him, will undergo such torment.¹⁸ Other texts likewise squelch theodicizing. Nonetheless, if we allow each side to privilege certain texts over others, then theists who pursue theodicy need not be fazed by the arrogance objection, because they have authoritative support—even though anti-theodic theists choose to privilege, instead, sources that reject theodicizing. If theodicizing is arrogant, it is licensed arrogance. However, it is one thing to privilege some texts over others; it is another to brand many Talmudic and midrashic sages as flawed personalities—as arrogant towards, no less, God. So the abundance of theodicies in tradition does effectively repel the arrogance objection. In talmudic and midrashic sources, moreover, biblical figures do something more arrogant than defend God—they challenge God, speaking in “the audacious language of anger and demand” (Braiterman 1998: 32). And they do so with impunity! Jeremiah, the rabbis say, refused to praise God with the formula introduced by Moses—“great, mighty, and awesome” (he omitted “awesome”)—because the Temple had been taken over by Israel’s enemies and the people were enslaved; Daniel, perturbed by the enslavement of Jews during the Babylonian exile, omitted the encomium “mighty.”¹⁹ There is no suggestion that Jeremiah and Daniel were punished or rebuked. And what about Job,

¹⁷ An at least roughly analogous situation obtains with regard to God’s commands. Even if God’s commands can be given an independent justification, nevertheless (so it might be argued), for a person to judge that there is such and such a justification, and to evaluate the putative justification, is to exhibit arrogance and indeed a lack of Yir’at Shamayim, fear (or awe) of Heaven. Thus, the enterprise of taamei ha-mitzvot is arrogant, it might be said, since even if one does not claim to know God’s actual justification, stating that such-and-such is a good reason to have commandment X is sitting in judgment over God. This applies even if one would obey the commandment regardless of the results of the investigation. Cf. James Rachels’s argument (1971) that no being is worthy of worship. ¹⁸ Babylonian Talmud, Menahot 29b. ¹⁹ Babylonian Talmud, Yoma 69b.

206

David Shatz

whom God commends at the end of the book, despite Job’s occasional bursts of protest? Perhaps the Sages at times legitimized reactions like these because they found them so understandable, so natural, so difficult to resist, and recognized that they come from a place of empathy, or devotion to the Temple and the people, or moral sensitivity. The protests have been called “pious irreverence.”²⁰ From a Jewish standpoint, then, a degree of theological arrogance is permitted; moreover, if it is permissible to challenge God, it would seem that arrogance in defense of God should be permitted as well—a fortiori. If it’s OK to criticize, it seems to follow that it’s OK to defend. My a fortiori argument has been questioned on the following grounds.²¹ A professor doesn’t mind her students asking probing questions, or even raising criticisms. But, it would be impudent to answer questions on the professor’s behalf; it would be impudent to presume that you know what her answers to your questions are. The arrogance of theodicy could be presented as the arrogance of speaking on God’s behalf, presuming to know what God thinks, and presuming to understand Him—not the arrogance of challenging Him. Criticism and questioning, even protesting, do not presume to speak on God’s behalf. Theodicies do.²² Another consideration comes to mind as well. As we said, protest might be sanctioned because it shows empathy and devotion to the Temple and the people. Presenting a theodicy does not particularly reveal these traits. In fact, as we shall see later, some theologians believe that theodicizing shows insensitivity. Yet, believers normally do not fault someone who attributes to God thoughts, desires, and intentions that human beings consider good. Consider someone who thinks that whatever happens is done by God for the good, and takes certain good events in her life as the realization of God’s purpose.²³ Is something amiss here? Should this rosy outlook be excoriated because it involves reading God’s mind and judging God? If not, why not attempt to fathom God’s mind—and judge Him favorably!—in a theodicy?²⁴

²⁰ This is the title of Weiss 2016, which provides a historical and philosophical examination of Jewish protest literature. ²¹ The ensuing objection was raised by Nichole Marques and reported to me by Samuel Lebens. ²² I thank Lebens for an email that formulated much of this paragraph. ²³ See Babylonian Talmud, Berakhot 60b (quoting R. Akiva). Arnold Davidson pointed out to me, however, that when metaphysical statements are made, they should be made in the service of praxis. And there are examples besides evil that illustrate an anti-metaphysical stance: reasons for commandments (don’t try to fathom God’s mind, ask what the mitzvah does for you personally) and prayer (don’t ask why God responds to some prayers and not others, ask what prayer is from the insides of the person praying). These impact on praxis. ²⁴ Rabbi Soloveitchik is caught in an at least ostensible contradiction in this regard. In Soloveitchik 2000, he maintains that we can’t read God’s mind with respect to the Holocaust, but then does exactly that as regards the Jewish state, declaring that God was knocking and summoning us to support the state. See Walfish (2008: 64–7).

Should Theists Eschew Theodicies?

207

Samuel Lebens²⁵ suggests other grounds for “allowing” defenses of God: When Abraham pleaded with God to spare the city of Sodom because God must not destroy the innocent with the guilty, he did venture to speak on God’s behalf; he presumed that God lives by a standard of justice according to which the righteous should not be punished along with the wicked. And, Abraham was vindicated. God does operate, apparently, according to that principle, but it just so happens that there weren’t as many righteous people in Sodom as Abraham had thought. Abraham is praised for his question even though his question had a written-in presumption as to what standards of justice God lives by.

Note, however, that these last replies to the objection that uses the professor example obviate the a fortiori argument at which the professor example was targeted. They provide a direct defense of reading God’s mind. Some may counter the arrogance objection in another way. The counter takes as its starting point a distinction drawn by Peter Van Inwagen (2006) and others between defenses and theodicies. A theodicy is a story that is claimed by the storyteller to be the truth about why God allows evil (or specific evils); a defense is a story that the defender merely maintains could be true for all we know, and the epistemic possibility of which makes the prosecutor’s argument fail. Theodicies profess to read God’s mind; defenses do not, and so (since defenses don’t judge what God actually does) defenses are not subject to the arrogance objection.²⁶ Why, then, asks the critic of anti-theodicy—granted that giving a theodicy is arrogant—can’t theists at least offer a defense? Perhaps anti-theodic theists will reply that defenses are not really less arrogant than theodicies. When someone who believes that p has evidence against p, and can think of only one scenario in which p would be the case despite the evidence, that gives the person reason to think that the scenario actually obtains. We reason this way all the time. Suppose a person I know for years to be a gentle soul is accused of a vicious, brutal murder. Some evidence emerges—his wallet is at the crime scene. The only “defense,” in Van Inwagen’s sense, is that evidence has been planted. If I can think of only one scenario that can provide a defense, and I have very strong reason to believe my friend is innocent, it’s hard for me to avoid committing myself to the actuality of that solitary scenario. The attempt to defend eventually becomes an attempt to explain. Thus the defense–theodicy distinction collapses, and, says the antitheodicist, it is arrogant to construct a defense and not only arrogant to construct a theodicy, because they amount to the same thing.²⁷ In this way anti-theodicists rebut the charge that they should see no problem with constructing defenses as opposed to theodicies. (See also McBrayer 2010.)²⁸ ²⁵ In correspondence. ²⁶ See also McBrayer 2010. ²⁷ It is also possible that to evaluate even a proffered defense is arrogant. ²⁸ As Aaron Segal noted, this point would not apply to someone who thought up multiple defenses but didn’t profess to know which one is true.

208

David Shatz

A theodicist still can return to the bottom line that Jewish tradition is replete with theodicies. Furthermore, we have not shaken off the question of why, according to the arrogance objection, reading and judging God’s “good” thoughts are not objectionable. But perhaps the best reply by a theodicist is this: there are cases and there are cases. The arrogance objection is right that one’s approach to theodicy can sometimes reflect a religiously objectionable attitude, e.g., judging God. But others might be humbly seeking understanding of His ways, just as they do by finding teleology in the physical universe via, say, the fine-tuning argument. There is no good across-the-board anti-theodic objections from arrogance—it depends on attitude. One can attain the requisite humility by recognizing that one’s theodicies are tentative and revisable, and by approaching the task with a consciousness of human fallibility and a measure of trepidation. Some anti-theodic theologians will not be satisfied with this response. They will find the risk of hubris too great even if someone begins his or her inquiry modestly. In addition, they may assert that there is something unseemly simply in treating God as a subject for investigation regardless of the investigator’s attitude. Aaron Segal describes the objection this way: While it does not follow from the fact that a servant has probed into the character of his Master that the servant is in fact any less indentured, such probing— especially with an ambition of comprehensiveness—can easily engender within the servant an attitude of hubris, the feeling that the yawning gap has been closed ever so slightly. “Now I have penetrated his inner workings; I understand what makes him tick,’’ haughtily mutters the servant. (Segal 2012–13: 188)

Segal goes on to quote Merold Westphal, elucidating Heidegger: “What we lack [goes the argument] is not so much the power to pull off this project (though, of course, we do) as the right to attempt it” (Westphal 2001: 12).²⁹ Westphal’s statement suggests that even if one is humble, one may simply lack the right to investigate God—independent of his or her attitude. Perhaps “presumptuousness” is the right word for Westphal’s concern.³⁰ So, to counter the anti-theodic position, theodicists have to deny that there is too big a risk of hubris and that we have no “right” to investigate our master. I maintain that these denials are plausible. Those who want still more humility than I have described (more than tentativeness, recognition of human fallibility, trepidation), or who insist we have no right to inquire into God, seem to be asking us not just to drop theodicizing but to stop theologizing altogether. For it sounds like the truth about God is nobody’s business; how dare anyone try. That approach is the death of theology. The arrogance argument thus proves too ²⁹ Segal proceeds to analyze ways of meeting the charge. See also Michael Rea’s discussion of Westphal’s critique in Rea and Crisp 2011. ³⁰ An analogy: Soloveitchik believes that to pray to God requires a “mattir,” some special means of being permitted to pray. See Soloveitchik 2002c.

Should Theists Eschew Theodicies?

209

much—except for those who abjure theology. Some there are—among Jewish thinkers, Isaiah Leibowitz is best known—who do precisely that. For such thinkers, anti-theodicy is a fallout of a general hostility to metaphysics. Nonetheless, I think it worth exploring whether, even if one allows metaphysical theorizing, as do the large majority of theistic analytic philosophers of religion, there may be a special reason to reject theodicizing. We have not found one—at least not yet.

11.3.2. The Objection from Moral Complacency The next anti-theodic argument is that asking “Why am I suffering?” produces adverse consequences because theodicizing distracts us from sympathy and moral action, or, better put, makes sympathy and moral action unrationalizable. For suppose I have a particular theodicy T. If T is correct, why should I battle evil? Doesn’t T imply that the evil is justified? Emmanuel Levinas thus writes, “the justification of the neighbor’s pain is certainly the source of all immorality” (2007: 453). It would seem that the aim of theodicy is to make peace with evil—whereas the aim of moral agency and halakhic action, the action dictated by Jewish law, is to make war on evil. Theodicy, goes the objection, spells quietism, passivity, moral complacency. Arguably we have here a theistic version of Camus’s Dr. Rieux.³¹ The concern over complacency has been framed vividly by Lord Jonathan Sacks, Chief Rabbi Emeritus of the United Kingdom. Rabbi Sacks draws upon a homiletic idea of his teacher Rabbi Nahum Rabinowich, one focused on Moses’ encounter with God at the burning bush: “Moses hid his face because he was afraid to look at God” (Exodus 3:6). Why was he afraid? Because if he were fully to understand God he would have no choice but to be reconciled to the slavery and oppression of the world. From the vantage point of eternity, he would see that the bad is a necessary stage on the journey to the good. He would understand God but he would cease to be Moses, the fighter against injustice who intervened whenever he saw wrong being done. “He was afraid” that seeing heaven would desensitize him to earth, that coming close to infinity would mean losing his humanity. (Sacks 2005: 22–3) ³¹ In the words of Dr. Rieux in The Plague, “Mightn’t it be better for God if we refuse to believe in Him, and struggle with our might against death, without raising our eyes toward the Heavens when he sits in silence?” (Camus 1975: 128). Rabbi Soloveitchik’s approach to evil is to an extent a religious version of Camus. The Camus–Soloveitchik similarity is noted by Sagi (2009: 172). Soloveitchik’s Jewish version of this response has been called the halakhic response to evil. See Sokol 2013, who seems to think that the response is unique to Judaism and can be used only by Jewish thinkers (and hence is what I call a strongly particularist theodicy). It does not strike me this way, though, since other religions and also atheists agree that people are obligated to relieve suffering. It is just that the details of laws concerning humans’ treatment of one another are so minutely developed in Jewish law.

210

David Shatz

I am reminded of the bon mot (or is it so bon?), “If the world were perfect, it wouldn’t be perfect.” Knowing God’s reasons, it is said, would lead us to abandon the fight against evil. Soloveitchik similarly argues that, whereas theodicies view evils as a necessary part of a greater good, the halakha views evil “as a dreadful fiend with whom no pact may be reached, no reconciliation is possible.” Soloveitchik distinguishes an “ethic of suffering” from a “metaphysic of suffering”; a metaphysic of suffering implants moral complacency (2002a: 101–2).³² The complacency argument seems weak on the following grounds. First of all, isn’t it a problem that Jewish ethics demands that people do things that make no sense according to Jewish theology? The disconnect is striking and undesirable. How could God allow evils while demanding that we try to remove them? Second, the complacency argument seems to be saying at least one of the following: 1) A person’s having a theodicy psychologically precludes, or at least reduces the likelihood of, that person’s engaging in moral action. 2) A person’s having a correct theodicy logically precludes, or at least reduces the rationality of, that person’s engaging in moral action. I know of no empirical evidence for either disjunct in 1, and much empirical evidence against them. Religious people perform great acts of charity and benevolence, even though many of them have their own theodicies. Moreover, it seems that if 1 is true, it is not just having a theodicy that would preclude, or render unlikely, a religious person³³ engaging in moral action, but even believing that there is some unknown justification for evil. It would be difficult to find a traditional theist who did not believe that. Nor is 2 correct. For what if the reason that God allows evils is, precisely, to enable human beings to exercise sympathy, perform benevolent acts, develop faith, and grow in virtue? Or for humans to exercise free will to carry out responsibilities? For someone who holds such a theodicy, moral action would not only not be precluded but would be mandated. Indeed, it seems to me that the complacency argument eventually can motivate a soul-making theodicy or free-will theodicy. For suppose we start by saying, with Sacks, that the world is really perfect, but then we add, “God wants humans to act to remove evil anyway.” How shall we understand this? After all, wouldn’t it be irrational and unethical for God to risk human beings messing up His perfect world? ³² Wettstein 2012 is relevant to this discussion though he moves in a different direction. ³³ One could call such a person a “theodicist,” but “theodicist” would then refer to someone who not only tries to find a theodicy, but who endorses a particular theodicy. Elsewhere I use the term to refer to someone who pursues theodicies, regardless of whether he or she arrives at one. Hopefully context will disambiguate my usages of the word.

Should Theists Eschew Theodicies?

211

Rather, it is better to hold that God deliberately leaves the world imperfect because part of its hoped-for perfection is that humans participate in making it better—they are “partners in the work of creation” (Tanhuma to Leviticus 12:3). In short, the best way to both have a theodicy and engage in moral action is to develop a theodicy where the reason for evil is one that encourages moral action. A soul-making theodicy fills that bill; others might as well (such as a free-will theodicy). Converting anti-theodicy into a soul-making or freewill theodicy can also explain the disconnect between God’s ways and our own, because advocates of such theodicies provide an explanation.³⁴ If I am correct, the anti-theodicist’s insight in the complacency argument— that the fact human beings must engage in moral action stands at odds with the idea that all evil is justified—can be explained only if we embrace a theodicy like soul-making or free will. In sum, the complacency argument fails to establish anti-theodicy and indeed leads easily into a theodicy.³⁵

11.3.3. The Argument from Detachment Another anti-theodic argument is that theodicizing is abstract and detached.³⁶ One reading of this charge is that people who engage in theodicizing are detached, unemotional people. In this form, which sounds like armchair psychology, the charge is utterly untenable. Were the countless theists of all religions who thought extensively about theodicies and endorsed some, one and all detached, unemotional people?³⁷ Are we supposed to believe that the majority of those theists who have performed prodigious acts of charity and altruism through millennia are people who did not engage in theodicy? The charge must be limited to the claim that pursuing a theodicy, taken alone—the activity in itself, as opposed to the people who engage in it—is detached. But what does that mean, and is it bad? Consider a neuroscientist who all day at work looks at diseased brains, pokes around them, and so on. ³⁴ Defending a soul-making theodicy, Clement Dore (1970) suggests that if God were to follow the principle “Remove suffering wherever you can,” the result would be vastly counterutilitarian, since He can remove all evil and hence all the good that in our world the evil makes possible. But if all humans were to follow that principle of relieving evil wherever they can, this “bad” effect (of there being no evils to remove, and hence no possibility of certain types of goods) won’t occur because people are not omnipotent. (So thank God there’d be all those evils left over!) There are surprisingly few explicit statements in Jewish sources of a soul-making theodicy. But see Shatz 2010 and Harris 2016–17. Harris develops for Judaism a “divine intimacy” theodicy of the sort proposed by Laura Ekstrom for Christianity and proposes it as an understanding of yissurin shel ahavah (tribulations of love). ³⁵ Arnold Davidson pointed out to me, however, that even if one has a theodicy, the theodicy would not be a motivator of action even if it is consistent with moral action. ³⁶ See Trakakis 2008: 24–30. ³⁷ Cf. Trakakis 2013: 364, who separates the question of the morality of theodicists from the question of the morality of theodicy.

212

David Shatz

Yes, while researching, the researcher treats human beings like clumps of matter. At the same time, the researcher cares deeply about helping people who suffer or will suffer from brain disease. Should the researcher abandon her research? Are we supposed to desist from enterprises that require detachment while doing them? Those who will become detached perhaps should refrain from theodicizing. But detachment doesn’t seem to be a threat to theodicists in general.

11.3.4. The Objection from Fatalism The next anti-theodic moral argument, propounded by Rabbi Joseph Soloveitchik (2000), is that asking “Why am I suffering?” produces adverse consequences because it makes us feel we are living an existence of “fate” (Hebrew: goral) in which outside circumstances control us, rather than an existence of “destiny” (yi‘ud) in which we are not objects but rather freely willing subjects. This can be classified as a moral objection because it rests on a certain view about proper living. Man is born like an object, dies like an object, but possesses the ability to live like a subject, a creator, an innovator, who can impress his own individual seal upon his life and can extricate himself from a mechanical type of existence and enter into a creative, active mode of being. Man’s task in the world, according to Judaism, is to transform fate into destiny; a passive existence into an active existence; an existence of compulsion, perplexity and muteness into an existence replete with a powerful will, with resourcefulness, daring, and imagination . . . (Soloveitchik 2000: 6)³⁸

Moshe Sokol summarizes the argument well: by theodicizing “We allow ourselves to be ensnared by a discourse [the discourse of fate] that is antithetical to our essential humanity” (2013: 72). A few comments are in order. First, as Sokol asks (2013: 75), why can’t theorizing about evil itself qualify as an active response? Second, some theodicies affirm our subjecthood by affirming human responsibility. A retributivist theodicy maintains that people suffer because of their own freely willed deeds. Your fate is due to your choices. Soul-making theodicies likewise affirm subjecthood. Soloveitchik is correct that suffering can result in choices, to wit, responses to the suffering. But it is also true that suffering can result from choices, and theodicies can make people conscious of how their choices contributed to evils that befell them. Finally, there are times when we should view ourselves as subjected to forces outside our control in order that we gain a measure of control by discovering ³⁸ Note that, by contrast, for Spinoza, understanding causes results in freedom.

Should Theists Eschew Theodicies?

213

those causes; think of abuse victims, or those with diseases. We are subject to causes; and the need to recognize these causes attests to our needing to be, to a certain extent, objects—precisely in order to then act as subjects who control our circumstances.

11.4. ARG UMENTS F ROM P OINTLESSNESS: THE OBJECTION FROM FUTILITY Notwithstanding the existence of many Jewish theodicies, a Talmudic passage relates (this is one of two views in the passage) that even Moses was not told why the righteous suffer and the wicked prosper (Berakhot 7a). That we are ignorant of the reasons for evil, in fact are unable to know them, is rooted in many other sources too (e.g. Yoma 69b; Avot 4:19; Menahot 29b).³⁹ The standard interpretation of Job runs along these lines: God overpowers Job by showing him the puniness of his understanding as compared to God’s.⁴⁰ Some anti-theodicists abjure theodicizing for the same reason Kant abjured metaphysics: you’ll never get what you want.⁴¹ Perhaps because of the massive amount of suffering in the Jewish experience, there are more such appeals to ignorance in Jewish approaches to evil than in Christian ones (a possibility pointed out to me by Aaron Segal).⁴² To invoke a by now familiar motif, the argument just presented privileges certain classical sources over others; why not privilege the sources that proffer theodicies? One rationale for privileging the futility material is that attempts to account for the existence of evil have until now failed, which invites an inductive argument that they will continue to fail. A claim of failure-to-date, however, requires an anti-theodicist to canvass, scrutinize, and reject existing theodicies, both old and new—an enterprise that he or she is unlikely to want to pursue since the anti-theodicist wants to eschew evaluating theodicies. If he or she wants to claim that all theodicies to date are wrong—well, is there a way to know that in advance without pursuing theodicies? And why would failureto-date assure failure-in-the-future?⁴³ Over time, theistic philosophers have found, if not entirely new theodicies, then improved formulations of old ones. ³⁹ See also Braiterman 1998: chap. 3, and Fox 2003. ⁴⁰ I have argued elsewhere for a reading of Job that attributes to the book a soul-making theodicy, or, if not a theodicy, then at the least the view that suffering can improve character. See Shatz and Carmy (2009: 12–15). ⁴¹ Kant’s position about metaphysics is of course more complex than this statement suggests. ⁴² I am looking at the alleged futility of explanations of evil in general. By contrast, one could maintain a softer claim of futility: that we can know what theodicies (plural) are correct but do not know to which cases each applies. ⁴³ This last point (about the possibility of progress) was raised by Alex Sztuden.

214

David Shatz

They have also argued that a theodicy may licitly invoke premises drawn from one’s tradition even if atheists don’t share them.⁴⁴ These are advances. When Nelson Pike and Alvin Plantinga argued in the 1960s that the deductive argument against evil is fallacious—that was an advance. (The “evidential” problem à la Rowe has therefore become the focus of philosophers.) Peter Van Inwagen (2006) has elaborated upon the difficulty in specifying a cutoff point for determining when the world has too much evil, while raising other issues too. These approaches point to the possibility of progress in theodicy. So far, anti-theodicists still need an argument for the futility of theodicy. Well, like what? Let’s try an argument prevalent today: that inferring from the existence of evil to the nonexistence of God is a non sequitur because we lack the knowledge God has. How, it is asked, can we figure out the reasons of an all-knowing being? We don’t know everything God knows, and therefore our efforts to know His reasons are doomed. This is the position called skeptical theism, mentioned earlier. But how do we know our efforts are doomed? Maybe our having even a limited part of God’s knowledge would produce a successful theodicy. Thus, the claim that theodicies are doomed to fail (a claim that atheists will cheerfully accept, of course) still needs justification. Proclaiming ignorance of God’s reasons, furthermore, confronts a familiar objection. If we can’t figure out God’s reasons, we must be very bad at ethics— after all, evils that look to us clearly, even self-evidently, unjustified must in truth be justified, since God allows them. Hence, we face skepticism about our trusting our moral judgments. Would you use a calculator to solve complex multiplication problems if it has yielded wrong answers to what seem like far simpler questions? Even where relieving suffering is not at issue, but instead we confront quandaries about truth-telling, impartiality, equality, and tolerance, perhaps we must take our ability at moral reasoning to be faulty. Granted, God presumably has a good reason not just for allowing evil but also for not explaining why He allows evil; perhaps, for example, His principles are so complex that we would make too many mistakes if we tried to apply His standards (just as a utilitarian may say that it would be disastrous if people knew utilitarianism is true, because they would miscalculate consequences). But this just reinforces skeptical theism—even if we knew God’s reasons, we would err because we would misapply them. Some philosophers have taken the argument against the “We don’t know” (or “I dunno”) approach to broader horizons, like wondering how we can trust anything God says, since it may be the case that (i) He is lying, but (ii) our (feeble) ethical judgments about such prevaricating behavior are incorrect.⁴⁵ ⁴⁴ Among those who have argued for this perspective are Marilyn McCord Adams, Ira Schnall, Moshe Sokol, Eleonore Stump, and Peter Van Inwagen, all cited in Shatz 2013. ⁴⁵ On divine lies, see Wielenbeg 2010 and the rebuttal by Segal 2011.

Should Theists Eschew Theodicies?

215

Others have argued that once you’re a skeptical theist, you should be a skeptic about a lot more—even the reliability of your senses.⁴⁶ The assertion that theodicizing is futile grants all these problems a foothold. But let’s stick to ethics. Does skeptical theism leave us without a moral compass?⁴⁷ Ira Schnall (2007) proffers the reply that Judaism, at least, can turn back this challenge to skeptical theism. For Jewish ethics is derived from God’s commands. Take the question of why we should try to save a particular life given that we can’t trust our ethical judgment. God commands us to save life whenever we can, regardless of any philosophical considerations that might make us hesitate or decide otherwise. Judaism’s adherents can therefore have confidence that they ought to relieve suffering and save lives whenever they can. Schnall cites several biblical laws to show that Scripture mandates that humans relieve suffering. As Schnall also indicates, however, in his example of a physician having biblical license to heal, the interpretation of Jewish law is decided by rabbinic authorities.⁴⁸ (See Deuteronomy 17: 8–11.) One might ask, however: rabbis are human; so, why, given skeptical theism, should they and their disciples trust the rabbis’ determinations of right and wrong? The skeptical theist may retort in turn in two ways. First, even if we have to harbor skepticism about the rabbis’ moral judgments (they are all in the same boat as we are), what matters when the rabbis interpret a biblical or Talmudic passage is whether the rabbis’ interpretive skills are reliable. Second, God commands Jews to follow rabbinic interpretations and determinations even if rabbis don’t arrive at the law God believes is correct (Bava Metzi’a 59a). In particular, furthermore, many have argued that Judaism calls upon rabbis to use their independent ethical judgments in order to interpret legal texts and make legal judgments. They and their “constituencies” have divine permission to trust those judgments. Hence, ignorance of God’s reasons for allowing evil does not leave human beings in the dark about how to act. God teaches the way, notwithstanding that we don’t know why He’s satisfied with our using our ethical judgment even though it goes astray. Some may reject this approach because it focuses on heteronomously accepting divine commands that are prodigiously perplexing. Why does God issue commands (to relieve suffering) that He Himself does not obey?⁴⁹ Such reservations raise large issues that I cannot consider here except for a brief reference later. However, the skeptical perspective we have attributed to the ⁴⁶ See McBrayer 2009. ⁴⁷ The argument against skeptical theism is related to an argument Mill gives, viz. that if we don’t know what terms that denote God’s attributes mean, our religious attitudes must be affected. Why worship Him? Why call Him good? ⁴⁸ The sources Schnall cites demonstrate a permission for physicians to undertake healing. Other sources put forward a mandate, however, so his point can be easily modified. ⁴⁹ Exacerbating the problem is that, apart from allowing evil, God does or commands harsh acts that contravene His standards. He commands destroying the Amalekite nation, for example.

216

David Shatz

doomsayers does not yield a reason for thinking that theodicies fail. As I noted earlier, maybe we have enough knowledge to come up with a theodicy; the soul-making and free-will theodicies, according to numerous philosophers, fare pretty well. So let us turn to yet another group of anti-theodic arguments.⁵⁰

11.5. OBJECTIONS BASED ON CONTRAVENING RELIGIOUS VALUES

11.5.1. The Objection from Mystery What about the anti-theodic objection that mystery is crucial to religious life? While “mystery” is closely associated with Christian theology, there is support for mystery’s importance in Jewish tradition, specifically in theologies that distinguish God-in-Himself from God’s manifestations, human conceptions of God, etc.—a point on which Maimonides and Kabbalists, strange bedfellows, agree. Those who savor additional doses of mystery will want to keep God’s reasons for allowing evil beyond their ken. (The mystery argument in my sense does not reduce to the futility argument. For the mystery argument does not say that we cannot know the explanation of evil, only that we should not pursue it, because mystery is a good thing. If one presents a mystery argument that asserts that we can’t understand God’s ways, that’s a futility argument.) But isn’t the concept of God and His nature sufficiently mysterious and capable of satisfying our appetite for mystery even if we have a theodicy? Given all the complexities about understanding divine attributes, aren’t theists up to their necks in mysteries already? If we aspire for more and more mystery, where does it all end? Surely there are distinctions to draw—God’s essence might be unfathomable while His ways lie within our grasp (especially if all we lack to explain evil is factual information). There seems to be no good reason to aspire to monger mysteries and have them procreate without resolution, nor even (as is the case here) to passively let unexplained questions accumulate without trying to answer them.⁵¹ Put another way: It isn’t clear what drives anti-theodicists to find more mysteries and to keep existing ones ⁵⁰ Alex Sztuden raised another argument for futility, one that at this juncture I am still pondering. He argues that the moral principles that generate the problem of evil are more certain than any proposed justification. So theodicies must fail. ⁵¹ Moses Nahmanides’ arguments, cited earlier, point in the same general direction. The phrase “mystery mongering” is from Wainwright 2009, who quotes Hume as accusing religion of this. Wainwright notes that, with exceptions cited in the article, analytic philosophers rarely discuss mystery—the indexes to handbooks sometimes contain no reference. Besides Wainwright’s article, see Alston 2005. (Alston gives two cheers to mystery, not three.)

Should Theists Eschew Theodicies?

217

in place, as opposed to questing for progress in understanding the divine. Of course, if the divine can’t be understood, questing for any progress in theology is a waste of time (except progressing to the realization that progress is impossible). Yet calling a moratorium on fathoming God is a very costly course, albeit, as I noted earlier, some philosophers will embrace it.

11.5.2. The Objection from Superfluity Here I refer to the critics of theodicy whom Nahmanides mentions and I quoted at the outset: theists who think it is enough to say, “we must believe in His righteousness insofar as He is the true judge”—and leave it at that. The critic overlooks something here: some people may lose their faith if they don’t have a theodicy; for them, a theodicy is not superfluous. Nahmanides’ arguments (noted at the outset of this chapter) point in the same general direction. This brings me to the next objection.

11.5.3. The Objection from Risk Surely one danger in seeking a theodicy is that if one fails to find a satisfying one, one may lose faith. Whereas Nahmanides exuded confidence that he had in hand a not only objectively correct theodicy but a subjectively convincing one, the present anti-theodic argument focuses on the consequences of failure to convince. Producing heretics contravenes religious ethics.⁵² The issue between theodicists and anti-theodicists on this score will be: which policy carries greater risks? Which sows more doubt and defection? This is an empirical issue and can’t be settled in an armchair. It certainly isn’t clear why, across a wide population, not attempting to find a theodicy would result in less religious doubt or rejection. People naturally ask “Why?” and harbor doubts when an explanation is not forthcoming.⁵³

⁵² Some will regard the risk of error as too great even if the error would not constitute heresy; better no conception of God than a wrong one. See also Segal 2012–13. ⁵³ As noted by Berger and Kaplan (1990: 38), Jewish tradition does not shrink from including texts that present evils in a way that may sow doubts. Think of Lamentations, or the narrative of the Ten Martyrs of the Yom Kippur and Tish’ah be-Av liturgies, or the vivid depictions of the horrors of the Crusades in the selihot prayers of the High Holiday season. In the debate between theodicists and anti-theodicists, it is not clear where such observations cut. On the one hand, they suggest a tradition that takes risks—risks that give rise to questions which may produce defectors. On the other hand, the prayers do not answer the question “Why?” suggesting that no answer is needed or that no answer is possible.

218

David Shatz

11.5.4. The Argument from Faith It could be argued that to believe in God’s existence despite lack of a theodicy is to exemplify greater faith than to believe while armed with a theodicy. The question as to whether it is best for faith to be accompanied by reason (rationalism) or to be challenged by it without rational resolution (fideism) has ancient roots and is not manageable here. Suffice it to suggest that a person of faith can seek reasons as long as his or her faith is strong enough to persist even if contrary to reason. As we take leave of anti-theodic arguments, it would be good to distinguish the objections to anti-theodicy that I’ve explored here from another type of antitheodic argument discussed in the literature.⁵⁴ Some anti-theodicists express moral discomfort about particular theodicies; for example, they charge that soul-making theodicies, which attribute the suffering even of children to a need for others to develop sympathetic and benevolent personalities, coldly treat people as means.⁵⁵ While such criticisms have merit and the abstract character of soulmaking theodicies must be confronted critically, this is not the sort of anti-theodic argument I have addressed.⁵⁶ The argument just cited targets specific theodicies that have been advanced and—unlike the ones I examined—do not seek to kill the whole enterprise of theodicy ab initio, prior to any theodicies arriving on the scene. Our concern in this chapter is not with the impact of this-or-that theodicy on the religious person’s mindset, though there is much to discuss about that, but with presumed psychological, aretaic, behavioral and other effects of the whole enterprise. And of course there may be other theodicies that do not generate moral discomfort, so the objections based on, say, the imputed insensitivity of a soulmaking theodicy, do not justify abandonment of the enterprise. Tyron Goldschmidt has noted⁵⁷ that you can endorse a theodicy (believe in its truth) once it is presented, or once you accidentally hear it, without thinking it would have been good to pursue it. Some of the objections considered here are direct objections to pursuing theodicies, while others are objections to having a theodicy. But objections to having a theodicy may turn into arguments for pursuing them: why pursue something it’s bad to have? The arguments from arrogance, futility, fatalism, mystery, superfluity, and faith are direct arguments for eschewing theodicy. The argument from moral complacency is an argument based on the negative impact of having a theodicy. The arguments from detachment and risk can fall into either category, depending on exactly how the arguments are formulated. ⁵⁴ Trakakis 2008: ch. 2, discusses this second sort. ⁵⁵ See Surin 1986. ⁵⁶ I did earlier consider the objection that theodicy in general is detached. ⁵⁷ Goldschmidt made this point in his response to an ancestor of this chapter at a session of the Association for the Philosophy of Judaism.

Should Theists Eschew Theodicies?

219

11.6. CONCLUSION Because different theists can have opposing sensibilities, each may privilege different texts in authenticating the Jewishness of his or her views. Rarely will one find a knockdown objection to a particular sensibility that can’t be turned back by accepting certain consequences—one person’s reductio ad absurdum is another’s in hakhi nami (= one person’s modus tollens is another’s modus ponens).⁵⁸ My own pro-theodic proclivities are probably visible from this discussion, but even if I shouldn’t have these proclivities, I hope I’ve brought out some of the issues that divide the camps. When we assess the merits of the antitheodic position, the future agenda of theological work hangs in the balance. The anti-theodicists’ stress on marshalling moral action and sensitivity in the face of evil is a welcome corrective to treating evil as a piece of equipment for intellectual acrobatics. But the arguments we have considered against the activity of theodicizing have proved unconvincing.⁵⁹

BIBLIOGRAPHY Alston, W. (2005) “Two Cheers for Mystery.” In: Andrew Dole and Andrew Chignell, eds., God and the Ethics of Belief. New York: Cambridge University Press, pp. 99–114. Berger, D. and Kaplan, L. (1990) “On Freedom of Inquiry in the Rambam and Today.” The Torah u-Madda Journal 2: 37–50. Berkovits, E. (1973) Faith After the Holocaust. New York: Ktav. Braiterman, Z. (1998) (God) After Auschwitz: Tradition and Change in Post-Holocaust Jewish Thought. Princeton, NJ: Princeton University Press. Camus, Albert (1975) The Plague. Trans. Stuart Gilbert. New York: Vintage Books. Dore, C. (1970) “An Examination of the Soulmaking Theodicy.” American Philosophical Quarterly 7: 119–30.

⁵⁸ In hakhi nami is a Talmudic phrase that means basically, “Just so.” That is: you objected that according to my view, such-and-such is the case, but I reply, “Yes, indeed, I affirm that suchand-such is the case.” ⁵⁹ Work on this chapter was supported by the project “Virtue, Happiness, and the Meaning of Life,” sponsored by the John Templeton Foundation and the University of Chicago. I thank the scholars in the project for their valuable comments in discussion. An early version was presented at a meeting of the Association for the Philosophy of Judaism (APJ) held at the Eastern Division meetings of the American Philosophical Association, and a later one at a conference at the University of Haifa co-sponsored by the John Templeton Foundation, the University of Haifa, and APJ. Portions were also presented at the University of Chicago and Spertus Institute in Chicago, as well as the Bernard Revel Graduate School of Jewish Studies, Yeshiva University. I thank Rabbi Yitzchak Blau, Tyron Goldschmidt, Samuel Lebens, and the audiences at the various venues for their comments.

220

David Shatz

Fox, M. (2003) “Theodicy and Anti-Theodicy in Rabbinic Literature.” In: M. Fox, Collected Essays on Philosophy and on Judaism. Lanham, MD, and Oxford: University Press of America, pp. 173–87. Harris, M. J. (2016–17) “ ‘Yissurin Shel Ahavah’ as Divine Intimacy Theodicy.” The Torah u-Madda Journal 17: 64–92. Hick, J. (1985) Evil and the God of Love. Houndmills, UK: Palgrave. Levinas, E. (2007) “Useless Suffering.” In: Steven T. Katz, Shlomo Biderman, and Gershon Greenberg, eds., Wrestling with God: Jewish Theological Responses During and After the Holocaust. New York: Oxford University Press, pp. 451–4. Lewis, C. S. (2014) God in the Dock and Other Essays. Grand Rapids, MI: Wm. B. Eeerdmans. McBrayer, J. (2009) “CORNEA and Inductive Evidence.” Faith and Philosophy 26(1): 77–86. McBrayer, J. (2010) “Sceptical Theism.” Philosophy Compass 5(7): 611–23. Nahmanides (1985) Ramban (Nachmanides): Writings and Discourses. Ed. and trans. Vol. 2. Charles B. Chavel. Brooklyn, NY: Shilo Publishing. Oppy, G. (2013) “Rowe’s Evidential Argument from Evil.” In: Justin McBrayer and Daniel Howard-Snyder, eds., The Blackwell Companion to the Problem of Evil. Oxford: Blackwell, pp. 48–66. Phillips, D. Z. (2004) The Problem of Evil and the Problem of God. London: SCM Press. Rachels, J. (1971) “God and Human Attitudes.” Religious Studies 7(4): 225–37. Rea, M. and Crisp, O. (eds.) (2011) Analytic Theology. New York: Oxford University Press. Rowe, W. (1979) “The Problem of Evil and Some Varieties of Atheism.” American Philosophical Quarterly 16: 335–41. Sacks, J. (2005) To Heal a Fractured World. New York: Schocken Books. Sagi, A. (2009) Jewish Religion After Theology. Boston: Academic Studies Press. Schnall, I. M. (2007) “Sceptical Theism and Moral Scepticism.” Religious Studies 43: 49–69. Segal, A. (2011) “Sceptical Theism and Divine Truths.” Religious Studies 47(1): 85–95. Segal, A. (2012–13) “A Religiously Sensitive Jewish Philosophical Theology.” The Torah u-Madda Journal 16: 186–202. Shatz, D. (2010) “On a Seeming Disconnect between Halakhah and Theology.” In: Yamin Levy (ed.), Mishpetei Shalom. New York: Yeshivat Chovevei Torah, pp. 457–83. Shatz, D. (2013) “On Constructing a Jewish Theodicy.” In: Justin McBrayer and Daniel Howard-Snyder, eds., The Blackwell Companion to the Problem of Evil. Oxford: Wiley Blackwell, pp. 309–25. Shatz, D. and Carmy, S. (2009) “The Bible as a Source of Philosophical Reflection.” In: Shatz, Jewish Thought in Dialogue. Boston: Academic Studies Press, pp. 3–26. Sokol, M. Z. (2013) “Is There a ‘Halakhic’ Response to the Problem of Evil?” In: Sokol, Judaism Examined. Boston: Academic Studies Press, pp. 67–82. Soloveitchik, J. B. (2000) Fate and Destiny. Trans. Lawrence J. Kaplan. Hoboken, NJ: Ktav. Soloveitchik, J. B. (2002a) “A Halakhic Approach to Suffering.” In: David Shatz, Joel Wolowelsky, and Reuven Ziegler, eds., Out of the Whirlwind: Essays on Suffering, Mourning, and the Human Condition. New York: Toras HoRav Foundation, pp. 86–115.

Should Theists Eschew Theodicies?

221

Soloveitchik, J. B. (2002b) “Out of the Whirlwind.” In: David Shatz, Joel Wolowelsky, and Reuven Ziegler, eds., Out of the Whirlwind: Essays on Suffering, Mourning, and the Human Condition. New York: Toras HoRav Foundation, pp. 116–150. Soloveitchik, J. B. (2002c) Worship of the Heart: Essays on Jewish Prayer. Ed. Shalom Carmy. New York: Toras Horav Foundation. Surin, K. (1986) Theology and the Problem of Evil. Oxford: Blackwell. Tilley, T. (2000) The Evils of Theodicy. Eugene, OR: Wipf & Stock. Trakakis, N. (2008) The End of Philosophy of Religion. London and New York: Continuum. Trakakis, N. (2013) “Anti-theodicy.” In: Justin McBrayer and Daniel Howard-Snyder, eds., The Blackwell Companion to the Problem of Evil. Oxford: Blackwell, pp. 363–76. Van Inwagen, P. (2006) The Problem of Evil. New York: Oxford University Press. Wainwright, W. (2009) “Theology and Mystery.” In: Thomas P. Flint and Michael C. Rea, eds., The Oxford Handbook of Philosophical Theology. New York: Oxford University Press, pp. 78–102. Walfish, A. (2008) “Re-Engaging Theology.” In: Chaim I. Waxman, ed., Religious Zionism Post-Disengagement: Future Directions. New York: The Michael Scharf Publication Trust of The Yeshiva University Press, pp. 57–91. Weiss, D. (2016) Pious Irreverence: Confronting God in Rabbinic Judaism. Philadelphia, PA: University of Pennsylvania Press. Westphal, M. (2001) Overcoming Onto-Theology: Toward a Postmodern Christian Faith. New York: Fordham University Press. Wettstein, H. (2012) “Against Theodicy.” In: Wettstein, The Significance of Religious Experience. New York: Oxford University Press, pp. 151–61. Wielenberg, E. (2010) “Sceptical Theism and Divine Lies.” Religious Studies 46(4): 509–23.

12 A Proof of Exodus Yehuda HaLevy and Jonathan Edwards Walk into a Bar Tyron Goldschmidt

12.1. A J EWISH P ROOF I’m going to prove that the miracles of the exodus happened. Some of you already believe as much. You picked up a volume on Jewish philosophy. Much more interesting if you believe the religion is true. But imagine this: trying to convince skeptics that the ten plagues, the splitting of the sea, and the revelation to the Israelites at Mount Sinai happened. That’s what I’m up to. You, dear skeptics, will think the proof the dumbest thing you’ve ever seen. You, dear believers, will too. At first. You’ll think I’m telling the skeptic to believe in miracles just because everyone else believes they happened. Or just because the Bible says they happened. Either way, pretty dumb. Did I miss the class on argumentum ad populum or petitio principii? I wouldn’t put such moves past me. I promise it’s not what I’m up to here. Strictly speaking, nothing outside mathematics and such like can be proved. We’re not speaking strictly. We’ll discover evidence. I hope you’ll be convinced by the end. Convincing a philosopher of anything is harder than splitting the sea. Certainly for me. Probably for God too. I should be satisfied if you come away thinking it all not the dumbest thing ever. Of course, I’ve lost half the audience already. But for those willing to read on, I plead for patience: get to the end before giving up on me. The Jewish tradition does not advertise much natural theology, though it’s not averse to it. There were medieval Jewish natural theologians: Saadya, Maimonides, Crescas, et al. But there’s nothing as impressive as such as Thomas Aquinas or Richard Swinburne. The rabbis don’t care much for the business. They prefer to rely on testimony. A talkative lot. The Torah itself Tyron Goldschmidt, A Proof of Exodus: Yehuda HaLevy and Jonathan Edwards Walk into a Bar. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0012

A Proof of Exodus

223

insists on testimony about the miracles of the exodus and revelation at Sinai. Try on Deuteronomy 4:32–43 for size: For please ask . . . whether there has been anything like this great thing or heard like it: Has a nation heard the voice of God speaking from the midst of the fire, as you heard, and lived? Or has God tried to take himself a nation from the midst of a nation, with trials, with signs, and with wonders, and with war, and with a strong hand, and with an outstretched arm, and with great terrors, like everything the Lord your God did for you in Egypt before your eyes?

Or Exodus 13:7–10: Unleavened bread will be eaten throughout the seven days . . . You will tell your son on that day, saying: ‘This is because of what the Lord did for me when I went out of Egypt.’ It must be a sign for you on your hand and a memorial between your eyes, so that God’s law will be in your mouth, for with a strong hand the Lord brought you out of Egypt. You must observe this rule in its season forever.

Ask about it. Tell about it. The festivals and the sabbath are reminders of the exodus. The phylacteries and the redemption of the first born too. To say that the entirety of Jewish religious teaching and practice is about relaying and receiving the testimony would be an exaggeration. But almost all of it is. The testimony also makes for some natural theology, albeit less abstract than the ontological, cosmological, or even design arguments. The testimony is evidence for the miracles of the exodus. The proof is especially Jewish: supported by and supporting the central Jewish narrative. No circularity. Best served with matzo balls. But it’s not the only Jewish proof: there’s also the unlikely survival of the Jews, their disproportionate contribution to ideals, the unlikely fulfilment of prophecies, etc.—a cumulative case (see Gottlieb 2017).

12.2. THE KUZARI P RINCIPLE We know a lot on the basis of testimony. If you never visited Napoleon, then you should believe about him on the basis of testimony: of course, there was a Napoleon. All this makes sense so long as testimony should usually be believed. But, believe me, testimony should not always be believed. I drive a Ferrari. QED. We shouldn’t believe just anything on the basis of testimony either. If your neighbor reports his visit to Napoleon, keep your kids close. A Principle of Testimony (POT) close enough to the truth then: Testimony should usually be believed, except in special circumstances. Special circumstances are sundry enough. You already know that Napoleon is long dead. Your neighbor smells of something. And it isn’t France. Something like POT is widely enough diffused by philosophers, for whatever their testimony is worth. Applied to our case POT gives us: we should believe testimony about the miracles of the exodus, unless we have special reason

224

Tyron Goldschmidt

not to. This doesn’t get us far. You, dear skeptics, will have sundry reasons not to. But I’m planting a seed. Now that you’ve been softened towards testimony generally, I work my way to another principle about testimony. Enter Saadya Gaon (ninth–tenth century)—Jewish philosopher and head of a rabbinical academy in Babylonia. He presents a quick argument for the miracle of the manna: Now it is not likely that the forbears of the children of Israel should have been in agreement upon this matter if they had considered it a lie. Such [proof] suffices, then, as the requisite of every authentic tradition. Besides, if they had told their children: “We lived in the wilderness for forty years eating naught except manna,” and there had been no basis for that in fact, their children would have answered them: “Now you are telling us a lie. Thou, so and so, is not this thy field, and thou, so and so, is not this thy garden from which you have always derived your sustenance?” This is, then, something that the children would not have accepted by any manner of means. (Saadia Gaon 1948: 30)

I couldn’t convince you that your father grew up on meringues baked and delivered by Dwight Eisenhower. Even if dad was the strong and quiet type, he’d have told you that. Harder yet to convince everyone in the neighborhood that their parents enjoyed a daily visit from Eisenhower. But how about more distant ancestors? Your great-great-great- . . . grandfather grew up on meringues baked and delivered by Pope Boniface IX. You don’t believe me. How could I know such things? The rest of the neighborhood won’t believe me about their ancestors. Even so, it’s not as if you’d have heard about it either way. The Pope’s kindness might easily be forgotten after a few generations. I’d have at least more of a chance at convincing you. And what if you and your neighbors were extremely gullible? Weren’t the ancient Israelites extremely gullible? Some fraudster spins a wild tale about their parents. The Israelites, however gullible, just won’t bite. If it really happened to their own parents, they’d have heard of it before. But what if he told them a tale about their quite distant ancestors? Gullibility increases with distance. Enter Yehuda HaLevi (eleventh–twelfth century)—Jewish philosopher and poet in Spain. He sets up the same line of reasoning, along with an answer to the question about distance. In his dialogue book, a king is trying to find himself, and summons religious representatives. He ends up particularly puzzled about the rabbi’s statement of faith: “I believe in the God of Abraham, Isaac and Israel, who led the children of Israel out of Egypt with signs and miracles” (HaLevi 1964: 44). Why the God of Abraham rather than the God of the philosophers? Why jump into the exodus rather than a more abstract apologetic? Isn’t it more impressive to introduce the first cause of the universe, instead of the deity of some shepherds? The rabbi answers that national continuous testimony is better than abstract

A Proof of Exodus

225

theological reasoning: “fitting for the whole of Israel who knew these things, first from personal experience, and afterwards through uninterrupted tradition, which is equal to the former” (1964: 44). But we needn’t insist that tradition is equal to personal experience. We could do with less. The rabbi applies the general point to establish the credibility of Jewish chronology, which the king enthusiastically agrees to. Much better than “Yes, Socrates”: An arrangement of this kind [i.e., continuous nationwide testimony of miraculous interventions] removes any suspicion of untruth or common plot. Not ten people could discuss [i.e. make up] such a thing without disagreeing, and disclosing their secret understanding [i.e. letting slip their plot]; nor could they refute any one who tried to establish the truth of a matter like this. How is it possible where such a mass of people is concerned? Finally, the period involved is not large enough to admit untruth and fiction. (HaLevi 1964: 49–50)

The last point about the distance of time is reiterated by the rabbi about national events more generally: “Is it likely that any one could to-day invent false statements concerning the origin, history, and languages of well-known nations, the latter being less than five hundred years old?” If you want to sell a tale about all the ancestors of even the most gullible people, you’d better set it in the very distant past. As it turns out, some skeptical scholars insist that the Torah reached its final form around the fifth century BCE, quite long after the exodus would have occurred. The evidence for this is weak, at least in my amateur opinion. Still, even the skeptical scholars grant that the miracle stories were floating around long before—well within HaLevi’s five-hundred-year limit of the events described. Some put the Song of the Sea in the twelfth century—near contemporaneous with the events described (see Russell 2009: 142–5; and see e.g. Kitchen 2003 for evidence putting much of the authorship earlier). If you agree that the Torah was around during the twelfth century BCE, then the game’s over. We can circumvent debates about how close to the alleged events the Israelites accepted their records. I needn’t insist on any particular date. What really matters is whether they would not have heard about the miracles of the exodus one way or the other. Enter Dovid Gottieb (currently quite with us)—formerly philosophy professor and mathematical logician at Johns Hopkins. Not likely to commit elementary fallacies. Gottlieb distills the argument around the Kuzari Principle, named after HaLevi’s dialogue. He states it on one foot: “National Experiential Traditions are true” (Gottlieb 2017: 144). A National Experiential Tradition is: 1. a tradition accepted by a nation about its own history; 2. a tradition that describes a national experience (of a previous generation of that nation); 3. a national experience that would be expected to create a national memory that would continue until the time when the tradition is in place” (Gottlieb 2017: 144).

226

Tyron Goldschmidt

Distilled into one sentence: The Kuzari Principle: A tradition is true if it is (1) accepted by a nation; and describes (2) a national experience of a previous generation of that nation; and (3) the national experience would be expected to create a continuous national memory until the tradition is in place.

You can recite it standing on one foot too. Better you do, and keep practicing. Because if you lose sight of any of the conditions, the argument flops. If you keep them in sight, the objections dissipate. In condition (1), by a nation we need not mean absolutely everyone. After all, some don’t believe any pre-medieval history. Maybe we don’t even need a majority: a nation might believe something even if only a minority of its citizens do (compare Lackey 2016). But a majority will do. In condition (2), by an experience we mean an alleged experience. We are not beginning by assuming that the experience really happened, but arguing to it. In condition (3), by a national memory we mean a report of the alleged event on a wide enough scale. For safety’s sake, we need not be quite so absolute as the principle. We can convince some of the people some of the time of just about anything. Maybe we can even convince all of the people. We should insert a likely: “A tradition is likely true if . . . ” We should also insert an absent evidence to the contrary: “A tradition is likely true, absent evidence to the contrary if . . . ” More play with the principle below. Convincing skeptics that the miracles of the exodus are likely true—or even likely true absent evidence to the contrary—will be more than enough for the time being. Applied: the principle tells us that e.g. the National Experiential Tradition of the American Civil War is likely true, absent evidence to the contrary, since it (1) is accepted by the Americans about their own history; (2) describes a national experience of a previous generation of Americans; and (3) the experience would be expected to create a continuous national memory. Whatever other evidence we might dig up about the Civil War, the tradition of it is evidence enough. Applied to the case at hand: the principle tells us that the National Experiential Tradition of the miracles of the exodus is likely true, absent evidence to the contrary, since it (1) is accepted by the Jewish nation; (2) describes a national experience of a previous generation of Jews; and (3) the experience would be expected to create a national memory. As for (1): 3000 years of historical evidence has the tradition as a central part of the Jewish narrative. The tradition was accepted by all Jews until just three centuries ago. It is accepted by all Orthodox Jews today. Under the influence of Spinoza and others, some abandoned it. But hardly because they weren’t taught it. As for (2): the tradition of the miracles of the exodus is about the Jews’ own history. Jews today are descendants of the tribes of Judah and Levi, et al., which

A Proof of Exodus

227

were among the Israelite tribes that supposedly witnessed the miracles. Converts joined along the way to become co-nationals. In fact, HaLevi’s dialogue is about the conversion of the Khazar king and his subjects (though the extent of the conversion is disputed by historians and geneticists; see Stampfer 2013). In any case, converts didn’t bring the tradition to the Jews— but vice versa. As for (3): the experiences of the miracles of the exodus would have created a national memory because they would have caused “an immediate sweeping change in the beliefs and behavior of the people” (Gottlieb 2017: 160). The revelation also reports that it must and will be transmitted so as to never have been forgotten (see e.g. Deuteronomy 4:9–11, 31:9–13): “How are we to imagine accepting belief in a story that says that it will not be forgotten, at a time when the story is unknown?” (Gottlieb 2017: 180). So the Kuzari Principle tells us that the National Experiential Tradition of the miracles of the exodus is likely true. The line of reasoning from the Kuzari Principle is the Kuzari Argument. But the Kuzari Argument is only as strong as the principle. Is there any reason for believing the Kuzari Principle? Again, if Dwight Eisenhower baked meringues for your dad, how come you never heard of it? And how come the Australians never heard that their ancestors all arrived 500 years ago by swimming from Durban to Perth? Pressing questions. Here’s some speculative projection onto ancient psychology. Ancient Israelites would protest a teller of such tall tales: “If God performed these miracles in front of all our ancestors, wouldn’t we have heard of it?” Still, the ancient Israelites might not have been so much like us. Ancient psychology is a risky business. It certainly wouldn’t bring home the bacon in ancient Israel— though it probably would’ve paid the bills better than ancient philosophy. The real force of the Kuzari Principle is that it gives all the right verdicts, and no wrong verdicts—so far as we can otherwise tell. It’s serviceable. Substitute into it: Mohammed’s conquests of Arabia, the American Civil War, the Allied victory of World War II. These traditions satisfy the three conditions. And they are likely true. Contrast: Florence Nightingale’s conquest of China, the Australian Civil War, the Axis victory of World War II. The principle does not give us the wrong verdicts on these. Gottlieb summarizes: The Kuzari Principle describes what people actually do when they decide what to believe. It is an assertion about how people behave in the real world. The only way to find decisive evidence for the Kuzari Principle is to survey the beliefs that people have actually held and see that it holds true. This includes finding National Experiential Traditions that are known to be true. The only way to find evidence against the Kuzari Principle is to find real cases in human history of people whose beliefs violate it. If we find many National Experiential Traditions that are true, and no National Experiential Traditions that are false, then we have decisive evidence that the Kuzari Principle is true. (Gottlieb 2017: 165; non-italics not in original)

228

Tyron Goldschmidt

We can settle with less than decisive evidence. An extensive survey of mythology, especially from ancient times—the same milieu of the Jewish tradition—turns up no counterexample to the Kuzari Principle (see Gottlieb 2017: 248–83). The myths violate the conditions insofar as they variously describe events that did not happen to the entire nation, happened to another nation, would not have created national experiences, would not have created national memories, or were not even believed by any nation. The most tricky case not addressed by Gottlieb is from the Lotus Sutra. More on this alleged counterexample below.

1 2 . 3 . P R E A C H I N G TO AN O T H ER CH O I R The same kind of argument is defended by early modern Christian theologians too, even while they would likely never have read Saadya or HaLevi. Great minds think alike! Enter Charles Leslie (seventeenth–eighteenth century)— Anglican theologian and polemicist. He first lays down four conditions to test historical claims, and then he shows that the miracles of the exodus satisfy the conditions: 1st. That the matters of fact be such as that men’s outward senses, their eyes and ears, may be judges of it. 2nd. That it be done publickly, in the face of the world. 3rd. That not only publick monuments be kept up in memory of it, but some outward actions to be performed. 4th. That such monuments, and such actions or observances, be instituted, and do commence from the time that the matter of fact was done. (Leslie, 1841: 5–6)

The conditions refer to both history and practice. The first two conditions rule out a fraudster selling a tale to an audience about what they would have personally experienced. Applied to the case at hand: No fraudster is likely to convince the Israelites that the sea split for them yesterday. The next two conditions rule out the fraudster selling tales about the distant past, since the audience will dispute the existence or meaning of the monuments and observances said to have continued uninterrupted. For example, a fraudster won’t convince us that for the last thousand years everyone had “a joint in his little a finger” (Leslie 1841: 7) amputated in memory of some event. We’d just take a look at our fingers. Easier than Moore. Applied to the case at hand: the fraudster would not have successfully sold the Torah to a later generation of Israelites because the Torah describes itself as the law of the land, and the audience would have discovered no such thing: just as no fraudster could “invent a book of statutes or acts of parliament for England, and make it pass upon the nation, as the only book of statutes that ever they had known,” so too no fraudster could “have persuaded the Jews,

A Proof of Exodus

229

that they had owned and acknowledged [the Torah], all along from the days of Moses” (Leslie 1841: 9–10). Convincing a nation to adopt a long-lost history or a new code of law would be hard enough; convincing a nation to adopt history and laws that are supposed to have been long-preserved is even harder. The Torah further contains historical rationales for the laws and historical institutions, especially about the festivals, Sabbath, temple services, and priestly paraphernalia. The fraudster could not have convinced the Israelites that they and their ancestors had all observed such and other things: [W]as it possible to have persuaded a whole nation of men, that they had known and practised all these things, if they had not done it? or, secondly, to have received a book for truth, which said they had practised them, and appealed to that practice? (Leslie 1841: 12)

The critic might object that the laws and institutions were already in place, but that the fraudster conferred a new religious meaning on them: for example, that the Israelites already refrained from leaven over a week, but the fraudster convinced them that the practice was in memory of the exodus. Groundless speculation straining credulity. First, because some of these laws are fitting just to their purported history: the Israelites refrain from leaven one week since their leaven had no time to rise as they hurried from Egypt, they reside in booths one week since they resided in booths in the desert, etc. Second, because imbuing so many laws with new religious meaning would have been very tricky, or—to use Leslie’s preferred term—impossible. Not strictly. But close enough. To illustrate: [S]uppose I should now forge some romantic story of strange things done a thousand years ago; and in confirmation of this, should endeavour to persuade the Christian world that they had all along, from that day to this, kept the first day of the week, in memory of such an hero, an Appollonius, a Barcosbas, or a Mahomet; and had all been baptized in his name; and swore by his name, and upon that very book, (which I had then forged, and which they never saw before,) in their public judicatures; that this book was their gospel and law, which they had ever since that time, these thousand years past, universally received and owned, and none other. (Leslie 1841: 13)

Similarly, imbuing monuments with new religious meaning would have been impossible. Leslie illustrates with the mysterious Stonehenge: [S]uppose I should write a book to-morrow, and tell there, that these stones were set up by Hercules, Polyphemus, or Garagantua, in memory of such and such of their actions. And for a further confirmation of this, should say in this book, that it was wrote at the time when such actions were done, and by the very actors themselves, or eye-witnesses; and that this book had been received as truth and quoted by authors of the greatest reputation in all ages since. Moreover, that this book was well known in England, and enjoined by act of parliament to be taught our children, and that we did teach it to our children, and had been taught it ourselves when we were children. (Leslie 1841: 13–14)

230

Tyron Goldschmidt

Such a fraudster would sooner be “sent to Bedlam” (1841: 14) than believed. Leslie draws the same moral about the memorial stones set up by Joshua at Gilgal (Joshua 4:6–9; compare Joshua 8:30–2). A fraudster could not have succeeded here. Leslie further argues that the reasoning should convince Jews about the miracles of the Gospels as much as the miracles of the exodus. His four conditions are supposed to apply similarly to support Christianity, but not Islam or any other religions (see Leslie 1841: 20–1). However, his treatment of Gospel miracles is much shorter, and not nearly as convincing. The Christian miracles described are not nearly as public—and not at all public in the sense of national at work throughout his argument for the exodus, or in condition 1 of the Kuzari Principle (see Gottlieb 2017: 153, n. 5). The Gospel miracles don’t satisfy the other conditions of the Kuzari Principle either. Here is not the place for a disputation between Judaism and Christianity though; I hardly want a bar fight. Leslie is not the only Christian theologian to invoke a kind of Kuzari Argument. Enter Jonathan Edwards (eighteenth century)—American revivalist preacher and theologian. His philosophical works display a genius and style rivalling any of his contemporaries; had he written more philosophy, he might have surpassed even Hume or Leibniz. But, hell, he had other priorities. Yet he leaves us a scrappy but useful manuscript on the antiquity and Mosaic authorship of the Torah—by which he likely means written by Moses at the dictation of God (see Edwards 1743; also compare Edwards 1722). That’s the Orthodox Jewish view, or close enough. Whatever his precise views, he includes an argument against a fraudster selling the Torah to the Israelites. That’s unlikely since: If any would palm this book containing the laws and history of facts, they must make the people believe that they always had those laws and this account of facts among them, and all those things in their state dependent on the laws and facts from the beginning, though the senses of the whole nation would contradict it, and all would know that it was now new, and that they never had heard of it before. (Edwards 1743)

Just as Leslie emphasizes both legal practice and historical testimony, Edwards writes of both “laws and facts.” We can distill two points—naturally enough, one about laws and one about facts. The point about facts: the fraudster would have had a really hard time fabricating a National Experiential Tradition. Edwards first lists some general considerations about what makes forgery more or less likely to succeed: A forgery of a great and wonderful fact pretended to be in SIGHT of a WHOLE NATION, every man, woman and child in it, is more easily detected than what is pretended to be seen only by a few; and a forgery published among that very nation, before whom the fact is pretended to be done, is more likely to be detected

A Proof of Exodus

231

than that which was pretended to be before some other nation; and a forgery of such a fact pretended to be done on the spot where the forgery is first published, or in places in view, is more easily detected than of a fact pretended to be in some remote corner. (Edwards 1743)

Edwards captures here, as elsewhere, just the kind of conditions listed in the Kuzari Principle: that the testimony be accepted by the nation about their own national experiences that are likely to have created a continuous memory. He then applies the conditions to the case at hand—with the addition of some useful details. For example, Edwards adds this point about the manna: [F]orgers of the history would not be likely to put into it such things as would be likely to lead people to suspect the truth . . . such precepts as those, where they were commanded to lay up a part of their manna to be kept for their generations, that their posterity might see what bread their forefathers lived upon in the wilderness [see Exodus 16:33]; which naturally, whenever the history first came abroad, would excite such inquiries as these: Where is this pot of manna? what is become of it? how came it to be lost? (Edwards 1743)

Of course, the fraudster could make up stories, but he’d be setting himself up for more work. Like Leslie, Edwards notes the trickiness about monuments in particular: “One of the laws of Moses was to set up great stones as an altar in the land of Canaan, and engrave the words of the Law very plainly, Deuteronomy 27:1, Deuteronomy 27:8; which we have an account of the fulfillment of, in Joshua 8: 30–32” (1743). A pot is as easy to discover as to misplace; great stone monuments—not so much. A fraudster could set up the monuments and spin some tale about why no one ever noticed them before, or if he chooses to do without the monuments, he could spin some tale about their removal. Either way, he’s setting himself up for more work, and more risky work: maybe his audience just won’t buy it. Another addition: the tradition is in part insulting towards the Israelites. The Torah recounts in detail “the faults of the whole nation, excepting a very few”: the patriarchs and the Israelites—even Moses—sin, and the punishments are severe. Edwards summarizes: The behavior of the children of Israel in Egypt and the wilderness, is represented as in the highest degree vile and odious, foolish, childish, as well as monstrously unreasonable and wicked. They are set forth as worse than other people, often stigmatized as a stiff-necked people. (Edwards 1743)

Shaming the ancestors of the audience seems to run yet another risk. You don’t usually sell a product by insulting your customer. It may be better to flatter. Was ancient psychology really so different? They likely thought more of their ancestors than moderns do. The Greeks and Romans said they descended from gods. That’s the way to go.

232

Tyron Goldschmidt

The most significant addition to the argument from Leslie and Edwards is their focus on laws. The fraudster would have a hard time fabricating a tradition about laws. Getting any law in place is hard enough. These laws would be even harder. Leslie emphasizes their number and fit with the narrative; Edwards their related universality, difficulty, and severity. As for universality, the laws govern every aspect of Israelite life. According to the rabbinic enumerations, the Torah includes 613 commandments and prohibitions governing absolutely every aspect of personal as well as national life: clothing, food, sex, labor, housing, worship, war. As for difficulty, the laws are restrictive and costly: prohibiting certain clothing, certain foods, sex for a period each month, work one day every week, and a complete cessation of agriculture one year of every seven—for an agrarian society. As for strictness, the laws are enforced with various punishments, commercial, corporal, and capital. The relevance of laws hasn’t fallen beneath the Jewish radar. Enter Ezra Zuckerman-Sivan (currently quite with us). You can’t do better on such a topic than an economic sociologist at MIT. If the arguments don’t convince you, then the credentials should. I’m trying everything I can here. Argumentum ad verecundium is at least better than argumentum ad populum and petitio principii. It’s certainly better than argumentum ad baculum, but you’re warned to be careful with your criticisms. Zuckerman-Sivan formulates the problem specifically about the Jewish week—a novel innovation not connected with any natural cycle (ms; see Zerubavel 1985). He identifies seven connected problems the fraudster would face in trying to convince the Israelites to adopt the seventh day, including creating, coordinating, and maintaining the timing and rules among geographically disparate communities who have every economic incentive to reject the timing and rules, given the impact on productivity. I can’t do justice to the trickiness of every aspect of this, and so I won’t. Yet the problems dissipate if the Israelites were all commanded in the Sabbath in a national theophany after the miracles of the exodus. There’d be no problems of coordination and motivation. The skeptical side has a hard time making sense of the adoption of the Sabbath; the religious side does not. That counts in favor of the religious side. The Torah insists that the Sabbath is “a sign between me and you throughout your generations to know that I the Lord sanctify you” (Exodus 31:13). Zuckerman-Sivan takes the Torah to address the skeptic directly: You could not have done this on your own! You could not have overcome the coordination problems, the communication and commitment problems, the social dilemma, and the fact that no one could have appreciated the Shabbat before experiencing it, and thereby got the Jewish week off the ground, to initiate and institutionalize it. But look and what do you see? The Shabbat is observed! . . . And this leaves only one possibility: God, Creator of the world, intervened in history to make this happen. (Zuckerman-Sivan ms; non-italics not in original)

A Proof of Exodus

233

Leslie and Edward’s focus is on the fit between the content of the laws and the context of the historical narrative. Zuckerman-Sivan’s response is a little different: economics and sociology restrict the practices likely to take hold naturally. The coordination problem can be treated alone or connected to the Kuzari Principle. The connection is natural enough for Edwards to treat them together. The Kuzari Principle is about what people will believe, the point now is about what people will practice. We can jumble all this together by adding conditions to the principle: Jumbled Kuzari Principle: A tradition is likely true if it is (1) accepted by a nation; describes (2) a national experience of a previous generation of that nation; which (3) would be expected to create a continuous national memory until the tradition is in place; is (4) insulting to that nation; and (5) makes universal, difficult and severe demands on that nation; etc.

So far as speculative psychological projection goes, this principle is even more plausible than the previous, and so far as precedent goes, there are no counterexamples. Just imagine trying to convince the Nepalese that 300 years ago Napoleon visited their country for fifty years, and that everything he touched turned into gold. And also that: most everyone he visited tried to molest him, and so he put a curse on them—their enemies will enslave them unless they fast once a week, and tell the story to their children every day. And that they did tell the story to their children every day. It’s not going to happen. The Nepalese would not believe this unless it happened. Now imagine adding such aspects to the Jewish tradition: that e.g. God commanded them to give up work one day every week, to give up agricultural work one of every seven years, not to eat many foods, to refrain from physical contact with spouses for a period every month, that they must constantly retell the tradition and make literary and symbolic reminders of it, and that they did do this continuously, etc. What is the relevant difference between this story and the previous one? Nothing. Except that it happened. The Israelites did believe this. They would not have believed this unless it happened. Saadya, HaLevi, Gottlieb, Leslie, Edwards, Zuckerman-Sivan—this chapter might have been a bit too ambitious. And there are many more scriptural and philosophical details strengthening the argument—especially in the last four authors listed. They’re each profound and entertaining reads—recommended to readers who have reached this far. But your objections might be running out of patience.

12.4. OBJECTIONS AND REPLIES Some objections are silly; careful readers will immediately see that they have already been accounted for. But there’s only so much time in the day—not

234

Tyron Goldschmidt

enough for everyone to read carefully. So quick responses to silly objections might be instructive. Some objections are not silly though; I respond to more serious objections, especially from Yehuda Gellman—another Rabbi Yehuda, but who does not invest as much in the Kuzari Argument as his namesake does. Objection 1: Nigel. Nigel believes Florence Nightingale conquered Australia for the Axis. You’ll overhear similar things at the asylum, or a meeting of the American Philosophical Association. Contrary to the Kuzari Principle, some will believe just about anything. Answer: check condition 1. Nigel does not a nation make. Objection 2: Holocaust deniers. Besides a few white supremacists in the West, millions motivated by anti-Semitism or anti-Zionism in the Middle East deny the holocaust, or blame the Jews for it, or deny it and blame the Jews for it. Answer: check conditions 2 and 3. Holocaust deniers do not believe that the event happened in their own history or that it would have created a national memory—not least because they do not believe it happened at all. They don’t ignore the absence of expected evidence, but instead deny the abundance of evidence (see Gottlieb 2017: 146–7, n. 100 for further reply). Objection 3: Ad populum. The Kuzari Argument has us leap from popular belief in national experiential testimony to the truth of that belief. But lots of people believe false things—alien abductions, blood libels. The Jewish proponent of the argument might have noticed that there are far more Christians, Muslims, and atheists than there are Jews. So, if we should leap from popular belief at all, we should more quickly leap into Christianity or Islam—or into nothing at all. Answer: check condition 2. Alien abductions and blood libels would not have been experienced by a nation, but are instead supposed to happen in the dark of night. More generally, the principle makes no leap from popular belief to truth, but a carefully choreographed waltz from a national tradition with special features. Objection 4: Petitio principii. The Kuzari Argument relies on the tradition of the exodus and Sinai revelation, thus assuming that the narrative of Exodus is true, and assuming what it set out to prove: that the Torah is true, and that the miracles of the exodus happened. Answer: the argument relies on the tradition of the exodus and Sinai revelation but does not assume at the outset that the tradition is true. The argument begins by pointing out that there is such a tradition—neutral on the truth or falsity of its content. Then it shows that the tradition is a National Experiential Tradition. Then it applies the Kuzari Principle to show that the tradition is true. No circularity. Objection 5: Forgetfulness. Solomon Schimmel (2008: 36) objects: “the Bible itself says that there were periods when the Israelites were unaware of their

A Proof of Exodus

235

own early history.” He does not tell us what the problem is here, as elsewhere. Presumably the point is that the Bible tells us that the Israelites were unaware of National Experiential Traditions that were easily enough reintroduced. So, the Jewish tradition does not satisfy condition 3 of the Kuzari Principle, at least if the Bible is true. The tradition then is at odds with this argument for the tradition. Where does the Bible tell us the Israelites were not aware of the exodus and Sinai? Presumably Schimmel has in mind the discovery recorded in 2 Kings 22–3. Go read that and return here. Presumably then: The Jews were steeped in idolatry, and so were unaware of a national experiential tradition of the exodus, etc. After all, if they were aware of it they’d never have pursued idolatry—just like modern Jews aware of the tradition never assimilate! But the king convinces everyone to adopt the National Experiential Tradition easily enough. This interpretation usually takes the story to disclose the discovery or composition of Deuteronomy by Josiah’s court. First answer, courtesy of Gottlieb: The last presumption is not likely, since 2 Kings 22–3 does not take all the Israelites to be steeped in idolatry or to have lost the tradition: there is the “House of the Lord,” “Huldah the Prophetess” by whom royal servants must “inquire of the Lord,” and “the altar of the Lord in Jerusalem”—“the Lord” being the proper name for the God of Israel. Further, the Jews were aware of Deuteronomy: compare 2 Kings 14:6, 17:13, 18:4, and Deuteronomy 24:16, 18:21. An interpretation that does fit with the rest of the tradition: The Jews had not lost the tradition, but many had succumbed to syncretism (compare e.g. 1 Kings 6:1, 11:5, 18:21). A very old or otherwise impressive Torah scroll is discovered in the Temple (see Deuteronomy 21:36), and the prohibitions against idolatry are read to the king. This makes an impression, and he strictly imposes the prohibitions on all the Jews. As straightforward as convincing. A second answer if you dither: how to interpret the story is not clear. Well, I think it’s clear. But, if not clear, then we do not have a clear objection against the Kuzari Principle. Objection 6: The Lotus Sutra. The Buddhist scripture reports miracles performed by the Buddha and witnessed by millions of witnesses: flowers rain from the skies, light emanates from the Buddha’s head, illuminating the universe and beyond, etc. Indeed: The events recounted in this sutra are of such a spectacular magnitude as to make the Sinai story quite unimpressive by comparison. No other religion has ever made claims to miraculous cosmic events of such a grandiose degree . . . How could any Buddhist have come to believe these things happened if they really didn’t? (Gellman 2016: 80)

Since we reject such reasoning about the narrative of the sutra, we should reject it about the exodus.

236

Tyron Goldschmidt

First answer: so far as I can tell, there’s no need to reject the narrative of the sutra. Jews can accept that narrative, and Buddhists can accept the miracles of the exodus. For the counterexample to bite, we’d need to discover a contradiction between the National Experiential Traditions and that God would not allow such a contradiction. Or, if not a contradiction, at least some probabilistic tension. Gellman argues elsewhere that God need not tell the truth (see Gellman 1997: 97–9); by his lights, it wouldn’t be beyond God to issue contradictory revelations. Second answer: check condition 3. The Lotus Sutra tradition wasn’t continuously transmitted or commemorated: “Mahayana tradition teaches that the Lotus Sutra was written at the time of Buddha, then hidden away for hundreds of years and brought to light only after that” (1997: 79). In contrast, the Jewish tradition teaches that it was passed down in an unbroken chain: “You will tell your children” (Exodus 13:8); “Ask you father and he will recount it to you; your elders and they will tell you” (Deuteronomy 32:7); etc. Gellman doesn’t think the Buddhist gap matters: When the Lotus Sutra was rediscovered, if people had not known about it already, they would never have believed a word of it. Vast numbers of Buddhists would not have believed the historical truth of this text without a very good explanation for why they had never heard of its contents, if true. No such explanation has been recorded, and it is hard to see what would be such an explanation. (Gellman 2016: 80)

But the difference on condition 3 does matter. The Jewish tradition insists that it was continuously commemorated and transmitted. Thus, there should always have been witnesses to the original events or to the transmission of the narrative—which will make a fabrication harder to get away with. In contrast, the Buddhist tradition reports a gap of hundreds of years. A gap gives gullibility a foothold. The Jewish tradition has no gap. Whether the Buddhists would have accepted reports of a national experience without a national memory depends, in part, on whether they would have expected the events to produce a national memory. Would light from the Buddha’s head or flowers raining from the sky have been witnessed beyond the locale? Could the witnesses have known how far the events extended? Would the events have been remembered after hundreds of years? Hard questions. Third answer: one counterexample is not so bad. Never draw to an inside straight—a fine principle, even if someone draws to an inside straight and wins. The Kuzari Principle can still be a guiding principle, even after a counterexample. Even after one-and-a-half counterexamples. So long as there are no more, a National Experiential Tradition is still evidence of truth. Exercise: How does the alleged counterexample fair against the Jumbled Kuzari Principle?

A Proof of Exodus

237

Objection 7: Partiality. The argument applies only to the Exodus miracles since the tradition about them is a National Experiential Tradition. But the less spectacular events in the Torah are not: Genealogies and etymologies in the Bible could have been added at a later time, along with such details as the names of Esau’s wives, place-names where Abraham wondered, how many days a plague lasted, . . . and so on for many other small details. The populace would not be in a position to claim that had those details been true, they would have known about them. (Gellman 2016: 77)

Two answers. The first is concessive: if the argument proves only that the miracles of the exodus happened, that would still be impressive. Compare: theistic arguments usually prove only this or that divine attribute, if they prove anything at all. Cosmological arguments would prove a first cause. But is the first cause also intelligent? Design arguments would prove an intelligence. But is the intelligence also the first cause? Stock objections. Nevertheless if either argument shows anything, that’s impressive. Second answer: proving the Exodus miracles confirms the other details too. Compare: theism—all the attributes—is confirmed by evidence of a first cause, or by evidence of design, if such evidence is more to be expected given theism than otherwise (compare Swinburne 2004). Similarly, the truth of the Torah— all the details—is confirmed by the evidence of the National Experiential Tradition, because such evidence is more to be expected given the truth of the Torah (compare Gottlieb 2017: 188). Anyhow, the big miracles are what need the most evidence. Place names and minor details require less evidence—since they’re anyway more credible. What would be the point of anyone subsequently adding or changing e.g. the place names of Abraham’s journey? The addition of a prohibition against tampering with the Torah (Deuteronomy 13:1) would have been an audacious touch. Objection 8: Exclusivity. The Kuzari Argument is not exclusively Jewish. Christians can adopt it. They accept the Exodus narrative, though less centrally. It doesn’t support Judaism over Christianity. Answer: Christians can like matzo ball soup too. It’s hardly a problem with the argument—with any argument—that it convinces Christians. Still, there’s the objection that the argument is useless for particularly Jewish apologetics: If the Kuzari Argument is to be a defense of Judaism in today’s world, its advocates seriously have to address important contemporary defenses of Christianity by such people as Richard Swinburne and William Craig. It is not enough to point out difficulties with Christianity, here and there. To my knowledge this has yet to be done in a satisfactory way. (Gellman 2016: 77, n. 3)

Joseph Albo (fourteenth–fifteenth century) makes a case for Judaism over Christianity on the basis of the same evidence as the Kuzari Argument: since Judaism is founded on the Exodus miracles and Sinai revelation, no religion

238

Tyron Goldschmidt

could supersede Judaism without miracles and revelation of similar national publicity—which Christianity doesn’t advertise (compare Lebens forthcoming: ch. 7; also see Gottlieb 2017: 152–3, n. 105, appendix I). But there’s only so much time in a day. It will be enough to convince skeptics of the exodus—or at least that the argument isn’t all that bad. To convince them to then convert to Judaism rather than Christianity will take a little longer: I’m guessing another whole essay. Objection 9: Speculation. Gellman sketches seven scenarios to show how a National Experiential Tradition could easily enough have been false (see Gellman 2016: 81–7). The first four scenarios illustrate a partial fabrication. In each, a small band of a thousand people escape slavery. Then their charismatic leader: Scenario 1: inspires a deep spiritual experience in the band, and informs them, as sincerely as mistakenly, that God was appearing to them. Scenario 2: takes advantage of a lightning storm, convincing the band that God was appearing to them. Scenario 3: stages a revelation with secret accomplices, lighting fires and banging drums to fool the band into thinking God was appearing to them. Scenario 4: slips the band hallucinogens, and then hypnotizes them into thinking that God was appearing to them. They are overawed. They return to their families in slavery to recount their experience—embellishing it quite a bit too. Nobody wonders why there is no memory of the experiences: the band does remember; the rest should not expect to. But they are all delighted that God revealed himself to the band— and via them to the rest. Thus everyone applies the revelation to themselves, and passes it onto their descendants as such—just as converts and their descendants take the history of the Jews to be their own. The next three scenarios illustrate a complete fabrication of a National Experiential Tradition, without any basis in memory whatsoever. In each, the nation is easily subject to authority, superstition, and wishful thinking: Scenario 5: They are suffering and despondent. Their revered leader teaches them how God chose to appear to them. The story excites and comforts them. So they make themselves believe it, and relay it enthusiastically to their descendants, who eventually embellish it by adding that their ancestors always believed it. Scenario 6: The leader has a dream in which God reveals how he appeared to the nation, and also commands the leader to tell them about it. The leader superstitiously believes the dream, and teaches the story to the nation. Since they revere the leader, they accept the story without question, and just assume there must be some reason or other the story was forgotten.

A Proof of Exodus

239

Scenario 7: The nation have abandoned God for idol worship. A prophet rebukes them. He tells them how God appeared to their ancestors and commanded them to worship God alone. He explains how the events were forgotten in their turning to idolatry. He scares them with promises of punishment for further abandonment of God. In their fright they accept his stories. Gellman’s target is the Kuzari Principle, not the Exodus tradition; none of the scenarios is actually adopted by Gellman. He proposes merely “that there is nothing absurd, stupid, or implausible in thinking that something like them could have happened” (Gellman 2016: 81). Two answers. First: Insofar as they’re not absurd in the strict sense of impossible, the scenarios are neither here nor there. The Kuzari Principle is about the formation of belief in the actual world; mere possibilities are not relevant. The possibility of the scenarios would bear against the principle only if the conditions were not flagrantly violated and if the principle were stated as necessarily exceptionless. No such stipulation is made (see Gottlieb 2017: 173–6). The principle is a mere empirical generalization. Like the generalization that all cats like catnip. Imagining some cats that don’t won’t help. Better: look at actual cats. If you discover any that don’t, you might reasonably settle with something less than a perfect generalization. And if you discover enough that don’t, then you might reasonably doubt whether Tibbles will. Second Answer: I wouldn’t go as far as to say there’s nothing implausible in the scenarios (compare Gottlieb 2017: 53–4, 179–80). Gottlieb argues that, if National Experiential Traditions arose naturalistically and gradually: There ought to be other cases where this process produced beliefs that clearly violate the Kuzari Principle—false beliefs in national events that would have created national traditions. While there are certainly many examples of the gradual principle regarding “small and not-particularly-memorable” events, if there are no such parallels regarding large-scale, national memorable events, then the believer in the gradual option is appealing to a hypothetical psychological process of which there are no known instances. That is clearly unreasonable. (Gottlieb 2017: 176)

But there are no parallels generally, and no precedent of National Experiential Traditions emerging in the way Gellman describes—even while others would have been no less subject to authority, superstition, and wishful thinking than the Israelites were, and even while others would have had incentive to create their own National Experiential Traditions to rival the Jewish tradition. I await with due trepidation the criticism that I have not understood the complex dynamics of myth-formation or what-not. Off target. On target: real counterexamples showing that such dynamics produce false National Experiential Traditions. Better yet: real counterexamples against the Jumbled Kuzari Principle.

240

Tyron Goldschmidt

Objection 10: Counterevidence. Even if our little argument is some evidence for the Exodus miracles, there’s much better evidence against. Biblical scholars and archeologists have proven the story a fabrication or something close enough. Thus: Maybe you believe that the Kuzari Argument in isolation makes the historical accuracy of the Torah somewhat more probable . . . Even were that so, when taken together with the total evidence, the increase in the total probability seems too small to matter. The Kuzari Argument in isolation has too little force to overcome the modern critical understanding. (Gellman 2016: 90)

The modern critical understanding includes e.g. documentary hypotheses about the later and multiple authorship of the Torah (see Baden 2012; also see Gellman 2016: 33–44 for a summary of the textual and archaeological evidence against the traditional view of the authorship of the Torah—and the rest of Gellman’s book for an ingenious defense of Jewish tradition). Two answers. First: I wanted to give some evidence, and I welcome any concession. But I’m in no mood for concessions myself. So second answer: the relevant parts of biblical scholarship are often based on the thinnest evidence and are sometimes even pseudo-science. I don’t know where to begin, and so I won’t, but refer the interested reader to Joshua Berman (2017) and Umberto Cassuto (2006). Gellman objects against apologists picking out alternative scholars who prove the historicity of the Torah: the apologists “are not in a position to judge whether the scholars they cite have indeed succeeded in proving their views, or even whether their argument is to be considered from a scholarly point of view” (Gellman 2016: 59). And citing e.g. Cassuto (2006) in support of the traditional view when he goes on to reject that view too? Hutzpah. Two answers. First: we need not pick out scholars to prove the historicity of the Torah, but to show that the field is in disarray. Gellman recognizes as much, and criticizes Mordechai Breuer, an Orthodox biblical scholar, for depending on the documentary hypothesis. Second: amateurs are entitled to verdicts about biblical scholarship. It’s not the Langlands program. We can easily enough follow and endorse Cassuto’s objections against skeptics, even while we can easily enough follow and not endorse his own skepticism. While I don’t care much for credentials generally, philosophical credentials should be flaunted. After all, the academic job market in philosophy is a disaster. And, more to the point, philosophers might be better placed to assess a subject than those ensconced in it; philosophers of science will be in the best position to distinguish science from pseudo-science. A more philosophical point against documentary hypotheses—close historical and textual analysis bypassed—makes relevant the Relevance Criterion. Roughly: evidence supports one theory over another just in case the evidence is likelier given the one theory than given the other (see Mackie 1969—cited

A Proof of Exodus

241

just for the sake of hutzpah; but the application is Gottlieb’s). Grant just for the sake of argument: diverse textual styles, etc., support documentary hypotheses over the Mosaic hypothesis. Conclude: Moses didn’t compose the Torah. But Orthodox Jews take the Torah to have been dictated by God to Moses. The relevant comparison then: the likelihood of diverse textual styles, etc., given the documentary theory vs. given the theory of divine authorship. How likely is God to write in diverse styles, etc? Any pretense at divine psychology here will be more hutzpah than anything I’m capable of. My therapist says I underestimate myself. So far skeptical biblical scholarship. What of archeology? Similar points, but far less stridently. There is, for example, widespread disagreement in the field (compare Kitchen 2003 vs. Finkelstein and Silberman 2002; also see Gottlieb 2017: appendix IV). I wanted to be an archaeologist, but my parents persuaded me that it was not a lucrative career path. So I decided on a career in philosophy instead. The reader might find this bit of biography reason enough to evaluate the topic for themselves.

12.5. CONCLUSION Objections of a much broader nature remain: arguments against the possibility of miracles or against the existence of God altogether (but see Johnson 1999; Gellman 1997; Swinburne 2004). And then there are further Jewish arguments too; what we’ve considered is only a part of a cumulative case (see Gottlieb 2017: chs. 5, 8). There’s only so much time in a day. I have focused on the arguments of Saadya, HaLevi, Leslie, Edwards, Gottlieb, and ZuckermanSivan, and objections that apply especially against them. I might’ve done more, but not so much more in the space of a chapter. HaLevi and Edwards walk into bar. I’m good at introductions. But there’s no pretense of real originality on my part. I mix some ideas and answer some objections in new ways. New isn’t always better.¹

BIBLIOGRAPHY Baden, J. (2012) The Composition of the Pentateuch: Renewing the Documentary Hypothesis. New Haven: Yale University Press. ¹ For helpful comments and criticisms, thanks to Yehuda Gellman, Dovid Gottlieb, Liz Jackson, Joseph Jedwab, Robert Koons, Tyler Dalton McNabb, Calum Miller, Michael Willenborg, and Ezra Zuckerman-Sivan; profuse thanks to Sam Lebens and Karen Zwier.

242

Tyron Goldschmidt

Berman, J. (2017) Inconsistencies in the Torah: Ancient Literary Convention and the Limits of Source Criticism. New York: Oxford University Press. Cassuto, U. (2006) The Documentary Hypothesis and the Composition of the Pentateuch. Jerusalem: Shalem Center. Edwards, J. (1722) “Whether the Pentateuch was Written by Moses.” In: S. Stein, ed., Works of Jonathan Edwards Online, Volume 15, Notes on Scripture. Yale University: Jonathan Edwards Center, pp. 423–71. Edwards, J. (1743) “Defense of Pentateuch as a Work of Moses.” In: Jonathan Edwards Center, ed., Works of Jonathan Edwards Online, Volume 28, Minor Controversial Writings. Yale University: Jonathan Edwards Center. Gellman, J. Y. (1997) Experience of God and the Rationality of Religious Belief. Ithaca: Cornell University Press. Gellman, J. Y. (2016) This Was From God: A Contemporary Theology of Torah and History. Brighton: Academic Studies Press. Gottlieb, D. (2017) Reason to Believe. New York: Mosaica Press. HaLevi, J. (1964) The Kuzari: An Argument for the Faith of Israel. Trans. Hartwig Hirschfeld. New York: Schocken Books. Johnson, D. (1999) Hume, Holism, and Miracles. Ithaca: Cornell University Press. Kitchen, K. (2003) On the Reliability of the Old Testament. Grand Rapids: Eerdmans. Lackey, J. (2016) “What Is Justified Group Belief?” Philosophical Review 125(3): 341–96. Lebens, S. (forthcoming) The Principles of Judaism. Oxford: Oxford University Press. Leslie, C. (1841) A Short and Easy Method with the Deists. London: Gilbert and Rivington. Mackie, J. (1969) “The Relevance Criterion of Confirmation.” The British Journal for the Philosophy of Science 20(1): 27–40. Russell, B. (2009) The Song of the Sea: The Date of Composition and Influence of Exodus 15:1–21. New York: Peter Lang Publishing. Saadia Gaon (1948) The Book of Beliefs and Opinions. Trans. Samuel Rosenblatt. New Haven: Yale University Press. Schimmel, S. (2008) The Tenacity of Unreasonable Beliefs: Fundamentalism and Truth. New York: Oxford University Press. Silberman, N. and Finkelstein, I. (2002) The Bible Unearthed: Archaeology’s New Vision of Ancient Israel and the Origin of Its Sacred Texts. New York: Touchstone. Stampfer, S. (2013) “Did the Khazars Convert to Judaism?” Jewish Social Studies 19(3): 1–72. Swinburne, R. (2004) The Existence of God (2nd ed.). Oxford: Oxford University Press. Zerubavel, E. (1985) The Seven Day Circle: The History and Meaning of the Week. Chicago: University of Chicago Press. Zuckerman-Sivan, Ezra. Manuscript. The Shabbos Hypothesis: Sabbath Observance as Self-Verifying Testimony to the Torah.

13 Atzmut and Sefirot A New Approach Joshua Golding

13.1. INTRODUCTION One of the central teachings in the Kabbalistic tradition is the doctrine of atzmut and sefirot. The term atzmut designates the divine essence. One way of speaking about the divine essence is to use phrases such as “God, as he truly is,” or “God, as he is, in and of himself.” Often, the divine atzmut is described as ein sof, that is “without end” or infinite. On the other hand, the sefirot have to do with the ways in which the divine essence is manifest or expressed. To some degree, this doctrine is motivated by the notion that while God’s essence is infinite, perfectly one, inscrutable and unknowable, the sefirot are (at least in some sense) finite, multiple, and comprehensible to human beings. The dual doctrine of atzmut and sefirot aims to preserve the notion that while God’s essence is perfectly one, it is also true that this essence manifests itself in many different ways, and particularly in ways that finite beings such as ourselves can understand. In virtue of the sefirot, we can relate to God as a person or “rational agent” who has character traits such as benevolence, compassion, and justice. If not for the sefirot, it would be impossible for us to have any kind of relationship with infinite God. In this chapter, we shall explore different ways of understanding this doctrine. In particular, we shall focus on two different ways of understanding the “ontological status” of atzmut and sefirot. Our main question is, must we (and should we) understand atzmut and sefirot as entities that exist? Or, is there some alternative way of understanding this doctrine? This chapter articulates first what I shall call the “standard” understanding of the doctrine, and then proposes an “alternative” approach. The standard view is that atzmut is an entity or being, and that the sefirot are also entities or beings. The alternative approach is that neither atzmut nor sefirot designate entities or Joshua Golding, Atzmut and Sefirot: A New Approach. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0013

244

Joshua Golding

beings. Rather, atzmut designates Being itself, and the sefirot designate the ways in which Being is manifest. This proposal requires explanation, which comes in the latter part of the chapter. Having articulated both views, I shall argue that the alternative approach has several philosophical or conceptual advantages over the standard approach. Among other things, I shall argue that the doctrine of tzimtzum or divine “contraction” makes more sense on the alternative approach rather than on the standard approach. I shall also argue that the “justification conditions” for believing in the doctrine of atzmut and sefirot are more easily met on the alternative approach. Overall, we shall find that the alternative approach represents a more plausible way of understanding God and his attributes, within a framework that allows us to think of God as infinite and unique, yet also providential and personal.¹ A guiding notion of this chapter is that the project of making good conceptual sense of Kabbalistic doctrines is a worthy exercise. Perhaps some readers may find this very project surprising. In some quarters, it is thought that Kabbalah and philosophy are necessarily at odds. It is true that what is probably the single most important Kabbalistic text, namely, the Zohar, is not a philosophical treatise, and its highly metaphorical and midrashic style does not seem to concern itself with philosophical rigor and conceptual coherency. Moreover, some Kabbalists (such as Meir ibn Gabbai) explicitly discourage philosophical thinking about Kabbalistic doctrines.² However, the fact that the Zohar is not itself a philosophical work does not rule out the possibility that its doctrines may be formulated in a philosophically rigorous and logically coherent manner. Indeed, this is precisely what leading Kabbalists such as Moshe Cordovero (Ramak) and Moshe Chaim Luzzatto (Ramchal) set out to do in many of their works.³ After all, the Bible itself is not a philosophical work, but this did not stop Moses Maimonides and other philosophers from trying to present the teachings of Judaism in a philosophically rigorous and systematic manner. Finally, some of the writings of Isaac Luria (Ari) indicate a propensity to address conceptual problems and resolve them with answers in a rationalistic way.⁴ The present chapter is offered in that same rationalistic spirit. Whether the effort is successful or not is another question, which is left to the judgment of the reader. ¹ In the Kabbalah of Isaac Luria (Ari), significant attention is paid not only to sefirot but also to the divine partzufim (= countenances). The same question may be raised in connection with partzufim—namely, whether they should be understood as entities, or rather as ways in which Being is manifest or expressed. I would make the same case that the alternative way of understanding the partzufim has conceptual and philosophical advantages over the standard conception. However, in this chapter, I focus on sefirot alone. ² See Avodat Hakodesh, Part III: chapters 15 and 16. Nevertheless, it remains a vexed question to what extent Gabbai intends to condemn any rationalistic thinking about Kabbalistic doctrines, and to what extent he intends to condemn specifically Aristotelean doctrines. ³ See Ramchal, Klach Pitchei Chochmah and Ramak, Pardes Rimonim. ⁴ For example, see Etz Chaim, I:1, 2.

Atzmut and Sefirot: A New Approach

245

13.2. THE STANDARD VIEW On the standard view, the atzmut (essence) of God is conceived as an entity or a being that exists. It is a very special entity, but it is an entity nonetheless. This entity is ein sof or infinite. It is eternal, unchanging, perfectly one, and supremely powerful. It is a non-physical entity, and it is in some sense the cause or ground for everything else that exists. The atzmut itself is unknowable and transcendent. We cannot relate directly to the atzmut. However, thankfully, the atzmut is manifest and expressed through the ten sefirot. On the standard view, the sefirot themselves are also regarded as entities. Of course, they are not physical entities; they are spiritual entities of some sort. It is through the sefirot that we are able to know of and relate to the atzmut. There are many names for the sefirot, but perhaps the most common names (and translations) are Keter (Will), Chochmah (Wisdom), Binah (Intelligence), Chessed (Benevolence), Gevurah (Justice), Rachamim (Compassion), Netzach (Victory), Hod (Glory), Yesod (Foundation), and Malchut (Kingship). We may have some difficulty understanding the sefirot, but relative to the atzmut they are much easier for us to understand. Although we are not able to “wrap our minds” around the atzmut, we are able to have some understanding of what is meant by divine will, divine wisdom, divine benevolence, etc. Indeed, the ten sefirot are mimicked by ten aspects of the human being. For, humans have will, wisdom, intelligence, benevolence, etc. Of course, we do not have these powers or abilities in the same way that God has them; but there is some correspondence or correlation between the sefirot and these human powers. Moreover, the ten sefirot are correlated with ten parts of the human body.⁵ Keter, Chochmah, and Binah correspond to various aspects of the head; Chessed, Gevurah, and Rachamim correspond respectively to the right arm, left arm, and torso; Netzach, Hod, and Yesod correspond respectively to the right thigh, left thigh, and sexual organ; Malchut corresponds to the feet or to the feminine aspect of humanity. Because we are familiar with these powers and aspects of ourselves, we are able to have some understanding of the sefirot, and so in turn, we have some understanding of atzmut. If nothing else, at least we understand that atzmut is the cause of the sefirot. Moreover, it is in virtue of the sefirot that we are able to relate to God as if he were a person, that is, a rational agent who knows and understands the world. This is the God of the Hebrew Scriptures, i.e., the God who makes choices, who guides and directs the world with providence, who gives commandments, who rewards and punishes, who loves the people of Israel, and so on. In this way, the doctrine of sefirot reconciles the God of the Scriptures with the notion that God’s essence is infinite.

⁵ See the section from Zohar 17a known as Patach Eliahu.

246

Joshua Golding

Now, let us consider the ontological status of atzmut and sefirot. On the standard view, atzmut itself is a being or entity that exists, along with the ten sefirot. Hence, the view requires belief in many (to be precise, eleven) nonphysical entities. Offhand this may not seem like such a big problem, for doesn’t any theist have to believe there is a non-physical entity called God? And, once a person believes in God, why not believe in other non-physical entities as well? However, if there is an alternative way of understanding God’s essence and the sefirot, such an alternative would certainly do better by the principle of “Ockham’s razor,” which states that, all other things being equal, a theory that requires less entities is preferable to a theory that involves more entities. This is not simply a matter of esthetic simplicity. A theory that has fewer entities will be easier to justify than a theory that has more entities. We shall return to this point later. A more serious problem with the standard view is the following. How are we to understand the relationship between the atzmut and the sefirot? We are faced with the following dilemma. Either the atzmut is not identical with the sefirot, or it is identical with the sefirot. It seems that on either option we end up with difficulties. Suppose we say that the sefirot and the atzmut are not identical. The atzmut is one entity, and the sefirot are separate entities from the atzmut. Now, one of the motivations for the doctrine has to do with the effort to bridge the gap between the infinite, unitary, and unchanging essence and the finite, multiple, and changing world. Yet, on the present supposition, the very same problem arises with regard to the gap between the atzmut and the sefirot. If the atzmut is infinite, unitary, and unchanging, how does it give rise to, and interact with, that which is finite, multiple, and subject to change? If we insist that there is no problem with the interaction between atzmut and sefirot, the question arises as to what function the theory of sefirot serves, as it seems God (the atzmut) could do without the sefirot and generate directly the finite, changing, and multiple world itself. But indeed, there is a deeper problem lurking here as well. Again, how can the infinite and unitary atzmut give rise to, and interact with, that which is finite, multiple, and subject to change? One might try to resolve this problem by appealing to the doctrine of tzimtzum, or divine “self-contraction.” Somehow, the infinite, unchanging, and perfectly unitary essence has the ability to constrict itself into a finite, multiple, and changing set of entities. Yet, how does the appeal to tzimtzum really solve the problem? The question is simply pushed back. How can tzimtzum take place? How can the infinite entity contract itself, so that it may be expressed in a set of finite entities? There is another, related problem. The whole point of the theory of sefirot is to say that we can have a relationship with atzmut, albeit one that is mediated by the sefirot. The Kabbalists do not want to assert that we have a relationship only with the sefirot and not with the essence of God, for that would be

Atzmut and Sefirot: A New Approach

247

tantamount to idol worship. Indeed, the sefirot must allow us in some way to speak of the essence itself as having wisdom, understanding, benevolence, justice, etc. Differently stated, we want to be able to characterize the essence itself as wise, just, benevolent, etc. But, if the sefirot are separate entities from God, how can our talk about the sefirot allow us to characterize the atzmut itself as wise, benevolent, just, etc.? On the other hand, suppose the sefirot are identical with the atzmut. Indeed, this seems to be the more commonly preferred approach among Kabbalists. This seems to be the teaching of Tikkunei Zohar (3b) in its pronouncement that “He [God] and his essence are one with them (i.e., the sefirot).” Elsewhere, Kabbalists speak of the “realm of Atzilut” which is the realm of the sefirot, and they describe that realm as entirely divine.⁶ Certainly, the sefirot are not conceived as angels or spiritual beings that are separate from the essence; they are (somehow) aspects of God himself. But such a view becomes highly problematic if the sefirot themselves are regarded as entities. If the sefirot are entities that are identical with the atzmut, it turns out that the atzmut itself is multiple and composite. And, since there are interactions among and between the sefirot, it turns out that there is change within the atzmut. This entails that the atzmut is neither perfectly one nor unchanging. Again, one might try to resolve the problem by appealing to the doctrine of tzimtzum. Somehow, the infinite and perfect atzmut engages in an act of self-restriction so that it is expressed within the sefirot. But this still doesn’t escape the problem. If the sefirot are identical with the atzmut, then the atzmut is composite and multiple after all. Another suggestion is that from our point of view, the sefirot exist, but from the point of view of the divine atzmut, they don’t really exist. We may label this the “perspectival” approach.⁷ This approach implies that from the point of view of the atzmut, there really is no such thing as the sefirot; but from our point of view, it appears that there are sefirot. But, on this approach, none of the attributes really applies to the atzmut, and the belief that God is wise, intelligent, just, benevolent, etc. is an illusion. On this approach, the very problem that the doctrine of the sefirot is intended to solve is not solved at all. God is not really a person in any sense—He just seems like one. So much for problems with the standard view. Perhaps these problems are not insurmountable within the standard framework. Such a view was held by many great minds; surely they would have responses to these quibbles. Nevertheless, these problems are sufficient to motivate the quest for an ⁶ For example, see Kitvei Ari: Etz Chaim, 42:5. ⁷ Schneur Zalman Barukhovitch employs this strategy in defending his understanding of “ein od milvado”—nothing exists other than God (!) (see Tanya: Sha’ar Hayichud Ve-haemunah, especially chapters 6ff.). On this view, ultimately, God is the only entity that exists; everything else just appears to exist from our point of view. On this view, we don’t exist either—we just think we do. Chaim Ickovits suggests a similar strategy (see Nefesh Hachayim, 3:6–7).

248

Joshua Golding

alternative approach regarding the ontological status of the atzmut and the sefirot. This brings us to the next section.

13 . 3 . ATZMUT: BE ING ITS E L F Let us consider, then, an alternative way of understanding atzmut and sefirot. First, let us focus on atzmut. On this approach, the atzmut of God is not a being or an entity. Rather, the atzmut of God is Being itself. In saying this, I do not mean that God’s essence is identical with the totality of all things that exist. Such a view would be tantamount to pantheism. Rather, Being itself is that which the mind thinks about when it thinks about what all beings have in common. The best way to explain this is by discussing briefly one of Plato’s arguments for his famous theory of the forms.⁸ Roughly speaking, what I have in mind by “Being itself ” is what Plato might have referred to as the “Form of Being.” However, let the reader be aware that the proposal here does not endorse every aspect of Plato’s theory, particularly what is probably its most problematic and controversial claim, namely, that the forms exist as separate entities.⁹ Most emphatically, the proposal here does not endorse the notion that the form of Being is an entity that exists. One of Plato’s arguments for the forms is as follows. We shall use the example of triangularity; the argument may be reiterated for countless other examples. The argument runs as follows. There are many triangles in the world. Some are large, some are small, some are isosceles, some are obtuse, some are white, some are black, etc. Many triangles have come and gone, and many triangles are yet to be. Despite all their differences, there is some nature that they all share in common, and that is what we designate by the word, triangularity. We can think of triangularity itself, rather than some specific or particular triangle, and we can say that all triangles “express” or “exhibit” triangularity. Triangularity itself is not something that is diminished or affected by what happens to particular triangles. As Plato might say, triangularity is a form that is independent from the vagaries of the physical world. In some of his writings, Plato asserts that many forms such as triangularity exist, in a realm of non-physical entities. We do not go so far here. Rather, let us suffice with the notion that the mind has some ability to formulate the notion of triangularity, and to realize that triangularity is not the same thing as just another triangle.

⁸ See Phaedo in Five Dialogues (1985: 112ff.) and Republic (1974: 135ff.). ⁹ It is well known that in some of his so-called later dialogues, such as Parmenides, that Plato himself recognized problems with certain aspects of his theory of the forms.

Atzmut and Sefirot: A New Approach

249

We can generate a similar argument for the form of Being as follows. Obviously, many beings and many things exist in our world. Usually, the word “being” is reserved for a living entity; the term “thing” is used to designate an inanimate entity. In any case, all beings and all things have something in common, namely, being or reality. That is to say, all things and all beings exhibit or express Being itself. In the case of triangles and triangularity, the English language has two different words to connote the particular triangle, and the essence that all triangles have in common, namely, triangularity. It is something of an accident of the English language that the same word “being” is sometimes used to designate a particular being, but it is also used to designate that which all beings have in common, namely, being (or perhaps one might say, “being-hood” or “being-ness”). Here we shall use the upper-case Being to designate that which all beings have in common. In any case, surely we can formulate the idea of Being, and realize that when we think about Being, we are not thinking about a particular being. As stated earlier, here we do not need (nor want) to suggest that Being itself is an entity that exists. Here we are content to say that, clearly, we can formulate the idea of Being, and we can recognize that Being is not the same thing as any particular being or any collection of beings. This, then, is the proposal. We may think of the essence or atzmut of God as Being itself. It makes good sense to think of the atzmut as Being itself, for, much of what the Kabbalists say about the atzmut applies to Being itself. First, the notion of Being is “ontologically prior” to all other notions. Everything that exists exhibits or expresses Being, but no particular being can fully express or exhibit Being. If we think about the basic building blocks of reality, such as number, shape, space, time, and motion, surely the most basic thing we can think about is Being. This corresponds to the Kabbalistic teaching that atzmut is primordial to everything else in the universe. Second, there is something mysterious and elusive about the notion of Being. It is in some sense the most basic and obvious notion that one might think about, for anything that one can think of or perceive with one’s senses implies the notion of Being. Yet, in another sense, it is very hard to think about the notion of Being, because it has no specific or delineated content (unlike Triangularity, Beauty, Benevolence, etc.). Precisely because it is so basic and all-inclusive, one cannot “wrap one’s mind” around the idea of Being. As the Kabbalists put it, “no thought can grasp you [i.e., the essence of God] at all.”¹⁰ Arguably, following Maimonides, one might say that the most accurate way and perhaps the only way one can genuinely think about Being itself is negatively, that is, one can recognize what is not true of Being. Here we shall not pass judgment on whether one can have ¹⁰ Tikunei Zohar, 17a. The use of the term “grasp” is instructive. The author of this text is not saying that we have no comprehension whatsoever of the essence. Rather, we cannot “grasp” or “catch” the essence all by itself; we can only do so through the intermediary of the sefirot.

250

Joshua Golding

only a “negative” comprehension of the essence. In any case, the notion of Being is at once the most familiar, yet also the most difficult notion to grasp. Furthermore, if we think of atzmut as Being itself, we can easily see why atzmut is regarded as ein sof or infinite. As stated above, there are an infinite number of possible ways in which Being can be manifest. Indeed, it would be impossible for any world (including ours) to fully exhibit all the possible ways in which Being might be expressed. Our world is only one of an infinite number of possible worlds. This coincides with Kabbalistic teaching that nothing can fully express God’s essence—including even the sefirot. There always remains an aspect of Being that transcends its expressions—even at the highest levels. The Hebrew word used to express this notion is kedushah or transcendence. At the same time, the notion of tzimtzum also makes good sense. Everything that exists exhibits Being, but only in a partial or limited manner. How this occurs may still be something to wonder about, but it is surely a fact, and it is no more mysterious than the fact that no single triangle fully exhibits the entire nature of triangularity. More on tzimtzum follows in the next section. On further reflection, we notice certain other features of Being, aside from its infinite character. In some sense, Being is unique and unitary. The Hebrew word to express this notion is achdut or oneness. Being itself is not made up of parts; it is not an entity and it is not composite. Of course, the world (or sum total of all things that exists) is made up of parts; but we must remember not to confuse Being itself (atzmut) with the world. Indeed, the expressions and manifestations of Being are composite and multiple, but Being itself is not composite or multiple. While there are many different objects in the world, there is only one self-same Being which all of these things represent or express. It surely would not make sense to think that there are two or more BeingItselves (!). No matter how many worlds or realms of worlds there might be, now or ever, all of them express or manifest the very same notion of Being. Aside from its infinite character, another feature of Being is that we can make a distinction between that which is necessary, that which is impossible, and that which is possible. The laws of logic (and some would say, the laws of mathematics) are necessarily true; no possible world can “violate” the laws of logic. There are certain things that are impossible, for example, a round square cannot exist, and, as Plato said, “the same thing cannot both exist and not exist at the same time and place and in the same respect.” Finally, there are many things that are possible to exist in our world, but do not actually exist. To be sure, the nature of the necessary, the impossible, and the possible are matters of philosophical inquiry and dispute. Some philosophers (including myself) think that the laws of logic (and mathematics) describe reality as it is; others would “reduce” these laws to mere descriptions of how humans think or use language. We cannot enter this dispute here. The fact is that reality as we know it must obey certain necessary rules; therefore, we may say that reality or Being

Atzmut and Sefirot: A New Approach

251

is such that certain things are necessary, certain things are impossible, and certain things are merely possible or contingent. We have said that the atzmut or essence of God is Being itself. Being itself is not an entity or a thing, and so, on this approach, it is incorrect to say that the essence of God exists. For, the only kind of thing that can exist is an entity or a being; if the atzmut of God is not an entity, then it is a “category mistake” to think that “God exists.” Hence, on the surface, the present proposal may sound shocking, for it denies that the essence of God exists! Isn’t this tantamount to atheism? However, we are only half way through the theory, as we have yet to expound what are the sefirot on this alternative approach. As we shall see shortly, on the present approach, it is the doctrine of sefirot that carries much of the weight of traditional theism (especially the notion that God may be regarded as a person). But, before expounding the sefirot, it is worth noting that on the present approach, the standard version of atheism is also wrong. For, typically, the atheist also conceives God as an entity; he then goes on to assert that this entity does not exist. On the present approach, God’s essence is not an entity, so the atheist is making a category mistake. Indeed, nothing can be more certain than the fact that things and beings exist; that we can formulate the notion of Being; that Being is one, unique, and unitary; that all things and beings express or manifest Being in some way; that Being is such that certain things are necessary. On the present approach, many of the traditional Kabbalistic beliefs about atzmut turn out to be self-evident, and do not require reliance on faith or revelation to be believed. Shortly, we shall see that it is rather certain aspects of the doctrine of sefirot that require faith or revelation in order to be believed. On the present approach, this is where the atheist truly parts company with the theist. Let us turn then, to the sefirot.

13.4. THE S E F I RO T : THE W AYS IN WHI CH BEING I TSELF I S MANIFEST On the alternative approach, the atzmut of God is not a being; it is Being itself. Similarly, the sefirot are not entities or beings; rather the sefirot are the basic ways in which atzmut or Being is manifest or expressed in the world.¹¹ There is no doubt that our world operates in certain ways rather than others; Kabbalah asserts that the world operates in certain specific ways, and that ¹¹ Some Kabbalists, such as Moshe Chaim Luzzatto, seem to understand the sefirot not as entities, but rather as ways of taking about God’s actions. The sefirot are divine modes (middot) of behavior. See his Klallim Rishonim (2001: chapter 1). This approach is closer to the alternative offered here, but not quite as radically different, for it seems Luzzatto regards atzmut as an entity that exists. See, for example (Luzzatto 2006), Derech Hashem, I:1.

252

Joshua Golding

these ways express or manifest certain aspects of Being. Differently stated, the sefirot are the “metaphysical principles” in accord with which the world runs; these principles describe how certain features of Being are manifest or expressed in the world. In explicating the sefirot, we shall also see how it makes sense to regard God as a person and as a “moral agent.” It is in virtue of the sefirot that God is providential, benevolent, just, and compassionate; God commands, God speaks, God listens, God rewards, etc. This is the sort of God depicted by the Bible. Kabbalah teaches that there are precisely ten sefirot or ten basic ways in which Being is manifest in the world. In what follows, we shall explain how each of the sefirot may be regarded as a way of talking about some aspect of the structure or character of our world, as we know it. It is impossible here to give a full exposition of all the sefirot.¹² The idea here is to sketch briefly what each sefirah signifies on the present approach, where the sefirot are not understood as entities. I do not claim that the exposition that follows is the only correct way or even the best way of understanding the content of the sefirot. However, some articulation of the content of the sefirot is necessary in order to flesh out the present approach, and to show how the sefirot allow us to relate to God as a person.

13.4.1. Keter (Will) Kabbalah teaches that some sefirot are “higher” and some are “lower” than others.¹³ On the present approach, this means that the lower sefirot are to be explained in terms of the higher sefirot. Differently stated, the higher sefirot are the “explanatory ground” of the lower sefirot. Still, the ultimate explanatory ground for the sefirot lies in certain features of atzmut or Being itself.¹⁴ Keter is the highest sefirah. On the present approach, keter designates the fact that there is a cosmic process going on, such that Being is manifest or expressed, in just such a way that eventually the world will constitute the greatest or fullest possible expression of Being. As noted earlier, aside from the notion of Being itself, there are certain features of Being, including oneness (achdut) and transcendence (kedushah). Keter signifies the fact that there is a grand teleological process going on, such that Being itself, as well as the oneness and transcendence of Being, are destined to be expressed as fully as ¹² For a fuller account, see Golding 2018: 25–8, 41–6, 75–90, 125–30, 189–203. ¹³ Thus, the first three sefirot are often referred to as the “three upper ones” and the remaining seven are referred to as the “seven lower ones.” See, e.g., Yosef Gikatillia, Shaarei Orah (1994: chapter 5). ¹⁴ Perhaps this is how we may understand what some Kabbalists mean when they say that the sefirot are “k’musim” or hidden within atzmut ein sof. See, for example, Elimelech Weisblum (2014), Noam Elimelech: Bamidbar, 4:4.

Atzmut and Sefirot: A New Approach

253

possible in the contingent world. Kabbalah teaches that all events that happen in the world are part of this cosmic process, but some events are more significant than other events. For example, the exodus of Israel from Egypt, the giving of the Torah, and the building of the Temple are major steps along the way. In virtue of this divine process, cosmic and especially human history is heading toward a divinely ordained unity, which includes universal peace and harmony, between man and man, man and his environment, and man and God. This end is sometimes referred to as tikkun olam.¹⁵ One important aspect of this end is that humans will realize that this process is not a matter of luck or circumstance, but rather that this process is part of the very fabric of the cosmos. Also, Kabbalah teaches that human beings, and especially the people of Israel, play a critical role in bringing about this great end. It is in virtue of keter that all the other sefirot are operative. In other words, keter is the explanatory ground of all the other sefirot.¹⁶ It must be emphasized that keter signifies a process that is not yet complete. As things stand now, atzmut or Being itself is only partially expressed in the world. The question may be raised as to why this is so. (This question is really another version of the classic “problem of evil.”) A traditional Kabbalistic answer involves the notion that the only way the atzmut can be fully expressed is if human beings play a free role in bringing about that expression; this requires a process. Further discussion of this issue is beyond the scope of this chapter. In any case, as we shall see shortly, the fact that the expression is not yet realized has important ramifications, particularly in that the “lower” sefirot are not yet fully operative.

13.4.2. Chochmah (Wisdom) On the present approach, chochmah is not an entity. Rather, we may understand chochmah as follows. A great artisan or inventor may have a goal that he seeks to accomplish. But, it is one thing to have a goal; it is another thing for him to implement the means necessary to reach that goal. His creative wisdom is displayed in that he designs the artwork or invention in just such a way that ¹⁵ Another aspect of the divine goal is known as the divine desire for “dirah batachtonim” (= dwelling in the lower realms). This is especially prominent in the Tanya. See chapters 36, 37, 50. The precise relationship between tikkun olam and dirah batachtonim is a topic for further exploration. ¹⁶ One might press the question, what explains keter? That is, why is it the case that such a cosmic process is taking place, such that the world is destined to constitute the fullest possible expression of Being? A discussion of this question is beyond the scope of this chapter. Some Kabbalists would say, there is no answer that we can give to this question. Differently stated, God just willed it to be so (kach alah birtzono). For an attempt at a more rationalistic approach, see the discussion in Golding (2018: 89–196).

254

Joshua Golding

it fulfills the goal. Similarly, the sefirah of chochmah represents the fact the world is designed in just such a way as to realize the divine goal stated above, namely, the fullest expression of Being. In order for the goal to be realized, certain things must happen in the world rather than others, and certain things must happen at certain times and not at other times. This is the notion of divine providence. Because the world is on course toward some great end, there are certain rules in accord with which the world operates, so that it meets that end. In particular, the Torah is an expression of divine chochmah. For, the Torah is the divine teaching that serves as the guide for human beings as to how they may participate in bringing about the divine end of tikkun olam. The mitvzot (commandments) of the Torah describe the main ways in which humans can bring about the expression of divine oneness and transcendence in the world. In any case, the significant point is that chochmah need not be understood as an entity, but rather as designating the fact that the world is designed in just such a way as to meet the divine goal (described above in the discussion of keter).

13.4.3. Binah (Intelligence) Binah represents the fact that the universe has an order and structure. The Greeks noted this by speaking of the universe as a “cosmos.” Because the world has an order, it is intelligible to us, and we can make predictions about the future based on past experience. We often take this fact for granted, but the fact that the universe has an intelligible structure is remarkable. Of course, there are many different possible orders or structures that the world could have had. A world in which the moon goes around the earth in 49 days would also have an order; a world in which there are no humans could also have an order. However, the particular order that the world has is determined by the divine end stated above. In other words, while binah designates the orderliness of the world, it is chochmah and ultimately keter that determine more specifically what kind of ordered world we live in. Again, the significant point is that binah need not be regarded as an entity, but rather as designating the fact that the world has an order that is expressive of Being itself or atzmut.

13.4.4. Chessed (Benevolence) Kabbalists teach that one of the ways in which atzmut or Being itself is manifest is through the sefirah of chessed. They speak about chessed as involving a giving or sharing of “shefa” or abundance. Roughly speaking, we may take this to mean that the world is such that there is an “outpouring of being.” The phrase “outpouring of being” is used with caution here. I do not

Atzmut and Sefirot: A New Approach

255

wish to imply that the atzmut is a vast reservoir of “being” from which other beings emerge, like rivers flowing from an ocean. That would be to revert to the standard approach, which conceives of the atzmut as an entity. A more judicious way to put the matter is to say that chessed involves a “sharing of sustenance” in the world. This is true on a massive or global scale. The world is such that the sun shines, rain falls, crops grow, humans and animals are nourished. We live, grow, love, and multiply. Humans themselves are capable of sharing with others in so many ways. Indeed, the very existence of the world and its contents is itself an expression of chessed. Putting the point more colloquially, undeserved good things happen all the time. The very existence or being of the world is an expression of chessed. One of the ways in which Being is manifest is in the very fact that there is a contingent world, and in the fact that the contents of the world are continuously generated, sustained, and regenerated. We may take this remarkable fact for granted, and some try to explain this fact naturalistically. But, Kabbalah teaches that this remarkable fact is not an accident. Rather, the existence of our world and its generally benevolent nature is part of a divine plan. Chessed (like all the other sefirot) are rooted in keter. Earlier we said that keter signifies that there is a cosmic process going on such that there will eventually be a full expression of being. That process is not yet complete. While it is true that there is much “sharing” going on in the world, and many underserved good things happen, it also seems that the world could be a more benevolent place than it currently is. Some landscapes are barren, some parents cannot have children, some people are not generous, and so on. It is only when the divine goal of tikkun olam is realized that chessed will be fully operative.

13.4.5. Gevurah or Din (Restraint or Justice) Gevurah (Restraint) is the notion that the universe is such that the world exhibits restraint or limitation (tzimtzum). In a sense, gevurah is the opposite of chessed. While chessed connotes the sharing of abundance or “outpouring of being,” gevurah connotes the restraint or limitation involved in that sharing or “outpouring.” The truth is that without gevurah, there could be no chessed. For, anything that exists must perforce exhibit restraint or limitation. Anything that exists has certain features or powers, but not others. Humans walk and talk, but they do not fly. Birds fly, but they do not bear fruit. Trees bear fruit, but they do not walk or talk. And so on. Anything that exists exhibits limitation. Kabbalistically stated, anything that exists exhibits gevurah. Kabbalah teaches that there is another aspect of gevurah, namely, that the universe operates in accord with the principle of Justice (din). Whereas chessed signifies that undeserved good things happen, gevurah signifies that people

256

Joshua Golding

(and to some degree, animals) can earn or merit what they get or have. This happens in two ways. One is that people (and to some degree animals) can merit or deserve what they have by working. A farmer sows seeds and then reaps what he sows. A carpenter builds a home and then enjoys its protection. We take this fact about the world for granted, but it is remarkable. Judaism teaches, and Kabbalah emphasizes, that yet another way in which we are able to get what we deserve is that we are rewarded for good deeds (mitzvot) and punished for bad deeds (averot). The world is structured in just such a way that, eventually, humans get what they deserve. Once again, the sefirah of gevurah does not designate an entity. Rather, it designates a way in which the world operates. As in the case of the sefirah of chessed, the sefirah of gevurah is not yet fully operational. It is often the case that people work hard and don’t reap what they sow. And, it is often the case that, at least in this world, the righteous are not rewarded and the wicked are not punished. Again, as stated above, it is only when the goal of tikkun olam is realized that gevurah will be fully operational.

13.4.6. Rachamim (Compassion) Rachamim signifies that the universe is structured in just such a way that the needs of people (and animals and plants) are met. The hungry are fed and the sick are cured. Countless humans, animals, and plants have their needs met on a daily basis. Rachamim is regarded as a blend (mizug) of chessed and din. It is an offshoot of chessed, as in many cases needs are met without having been earned or deserved. On the other hand, rachamim may also be regarded as an offshoot of din, for a starving person in some sense “deserves” to be fed, given his need. Again, as in the case of the two previous sefirot, the sefirah of rachamim is not yet fully operative or realized. Many who are hungry are not fed; many who are sick are not cured. It is only when tikkun olam is realized that rachamim will be fully operative.

13.4.7. and 13.4.8. Netzach and Hod (Splendor and Glory) So far we have said that the world is structured in accord with the principles of chessed, gevurah, and rachamim. We experience undeserved sustenance; our needs are continually met; we are able to earn and deserve what we have, at least to some extent. But there is another aspect of our world, namely, that it has an esthetic character. Whereas chessed, gevurah, and rachamim signify the divine moral attributes, here we take netzach and hod to represent divine esthetic qualities. For example, it is not only the case that food nourishes us. It is also the case that food can taste delicious. It is not only the case that the

Atzmut and Sefirot: A New Approach

257

sun nourishes us with energy. The sun is also beautiful and awesome to behold. So, netzach represents that the world is structured in just such a way that we experience many things as beautiful or splendid. The sunset, a meadow of wild flowers, and the human form are examples of the beauty that we find in nature. On the other hand, hod represents that the world is such that we experience many things as glorious or awesome. For example, the starry skies, the sea, the Grand Canyon, the Alps are awesome. There is a tension between netzach and hod, for what is beautiful attracts us, and what is awesome scares us. This parallels the tension between chessed and gevurah. Again, as in the case of the previous sefirot, the sefirot of netzach and hod are not yet fully operative. Many sunsets are not so beautiful; many landscapes are not awesome. Perhaps it is in the very nature of the beautiful and the awesome that it must be relatively rare. Still, it often seems that the world could be more beautiful and awesome than it is. Kabbalah teaches that when tikkun olam is reached, the world will be as beautiful and awesome as it can possibly be.

13.4.9. Yesod (Foundation) While chessed signifies the “sharing” or “outpouring of being” that we find in the world, yesod signifies something more specific; namely, the fact that the world is structured in just such a way that there is reproduction in the world. Many things (humans, animals, plants, etc.) have the ability to reproduce themselves. It is one thing for someone to express or manifest himself in some other thing (such as a book or an invention). And it is one thing for a person to share his wealth by acting generously. It is quite another thing for a person to reproduce himself. The difference is that only in the latter case does the entirety of the original creator correspond or match in some way to the entirety of the “reproduction.” A reproduction is not merely an expression or manifestation but rather in some way a “copy” of the original. Judaism teaches and Kabbalah emphasizes that, in some sense, the human being is a “reproduction” of God. Of course, this is not intended literally. Rather, there is a correspondence between the entire human and God, insofar as God is manifest in accord with the ten sefirot. As noted earlier, the human has ten aspects that correspond to the ten sefirot. This is the meaning of the biblical teaching that the human was created “in the image of God.” It is also taught that the Torah in some sense represents or reproduces God in his entirety. Like the previous sefirot, this sefirah too is not yet fully operational. While it is true that the human being is a “reproduction” of God in some sense, this “reproductive” process is not yet complete because the human species is still in a process of reaching moral and spiritual maturity. Only then will the human being fully mimic the divine nature, that is to say, God as expressed in all ten sefirot. This process will culminate in the future, during the time of tikkun olam.

258

Joshua Golding

13.4.10. Shechinah (Presence) Earlier we said that the highest sefirah, keter, signifies that there is a cosmic process going on which eventually will result in the fullest possible expression of Being. Keter is the explanatory ground for all the other sefirot. The “lowest” sefirah is malchut or shechinah, which signifies the sheer fact that Being is manifest in the world at all. Everything that exists in the entire universe is a manifestation or expression of Being. Everything in the universe, from a grain of sand to a star in the sky, from a droplet of water to a vast ocean, is an expression or manifestation of Being (atzmut ein sof ). This is related to the notion of divine omnipresence, that is, the notion that “God is everywhere.” There are many other aspects of shechinah, but this exposition suffices for the present purpose. * * * In sum, the alternative approach understands the sefirot not as entities but rather as signifying the various ways in which Being is manifest or expressed in the world. This approach preserves the notion of God as a person and a “moral agent.” God’s personhood or rational agency is understood in light of keter, chochmah, and binah. God’s moral agency is understood in terms of the sefirot of chessed, gevurah, and rachamim. Divine providence is understood as the doctrine that the world is structured in such a way that it is heading toward the goal of tikkun olam, which includes the fullest possible expression of divine achdut and kedushah in the world. Human beings, and particularly the people of Israel, play a critical role in this cosmic process. By learning Torah and fulfilling the commandments, humans promote the divine goal of tikkun olam.¹⁷

1 3 . 5 . A D V A N TA G E S O F T H E AL T E R N A T I V E APPROACH The alternative approach avoids the problems that plague the standard approach. On the standard approach, atzmut is a non-physical entity, and the sefirot constitute another ten non-physical entities. This makes it difficult to understand the Zohar’s teaching that ihu ve-garmohi chad b’hon—the atzmut and the sefirot are united as one. On the alternative approach, the ¹⁷ One objection a person might have to the alternative approach is that if God is not conceived as an entity, it does not seem to make sense to strive for a “relationship with God.” What it means to have a relationship with God on this approach must be understood as “walking in God’s way,” that is, living in accord with the sefirot. For more details on the Jewish spiritual path according to the alternative approach, see Golding (2018: 34ff.).

Atzmut and Sefirot: A New Approach

259

doctrine does not posit any entities whatsoever. Atzmut is understood as Being itself, and the sefirot characterize the ways in which Being is manifest in the world as we know it. Of course, there is a conceptual distinction between atzmut and sefirot, but they are not separate entities. Thus, we can make better sense of the Zohar’s teaching that atzmut and sefirot are “one.” The sefirot signify the ways in which atzmut is manifest or expressed. Clearly, the alternative approach is more ontologically parsimonious than the standard approach. For this reason, as well as others, the “justification conditions” for believing in the doctrine are less demanding than on the standard approach. On the standard approach, atzmut is understood as an entity which is perfectly one, unique, and necessary, and which is the causal source of all things that exists. That entity has a will and a mind, and He knows the world. He is unchanging, yet the contents of his mind seem to change. The question arises as to whether such a being is conceptually plausible. Even if it is plausible, the question arises as to whether there is a rationale for believing that such a being exists. Here we shall not pass judgment on the answer to this question. However, if divine atzmut is understood as Being itself, there is no question that we can formulate this notion, and we can recognize the unity (achdut) and transcendence (kedushah) of Being. On this approach, certain aspects of the doctrine of atzmut are self-evidently true. It is evident that Being is manifest in the world, in certain general ways, and in an endless number of things. The doctrine of tzimtzum also makes good sense. Any finite thing that exists manifests Being to some degree; but nothing that exists can exhibit or manifest Being completely. In order for something to exist, there is inevitably a “constriction” or limitation that is also displayed by that being. With regard to the rationale for believing in the doctrine of sefirot, the situation is more complicated. To some degree, the justification conditions for the doctrine are easily fulfilled. It is evident that that the world as we know it has an order and structure (binah). It is evident that undeserved good things happen (chessed), that many needs of people and animals are constantly being met (rachamim), and that, generally, people are capable of working for what they have and getting what they deserve (gevurah or din). It is evident that the world appears to us as awesome and beautiful (netzach and hod), and that reproduction is a feature of our world (yesod). It is evident that Being is manifest or expressed in many things (shechinah). However, surely, the doctrine that the world is undergoing a cosmic process such that it is heading toward the fullest possible expression of Being is not self-evident. (Indeed, many if not most contemporary philosophers question whether the world is headed toward any teleological end at all.) As noted, this doctrine is signified by keter, but it also involves the related doctrine that all of the remaining sefirot will at some future time be more fully realized. Judaic belief in this doctrine is based at least partly on the mesorah or tradition of revelation.

260

Joshua Golding

It requires faith of some sort to believe that this grand cosmic process is happening, and, surely, one’s faith is tested when one experiences the incompleteness (read: pain and suffering) in the world. A discussion of faith would take us beyond the scope of this chapter. The point here is that even on the alternative approach, some aspects of the Kabbalistic teachings are based on the mesorah. But that is only to be expected. Even if some of its doctrines are rationally plausible, Judaism is, after all, a religion that is based on revelation. In sum, quite apart from the question of how to interpret Kabbalistic teachings, the alternative way of understanding God and his attributes has certain advantages over the standard approach. Certain conceptual puzzles regarding God’s nature are dissolved. Certain aspects of God’s nature are selfevidently true. Those who are not rationalistically inclined may not view this as a great advantage; but those who follow in the footsteps of the great Jewish rationalists such as Maimonides, Ramak, and Ramchal will consider this an advantage. For the rationalist, we are not bidden simply to accept religious doctrines, but to know them as well, and knowledge requires some rational basis. The alternative approach offered in this chapter is more rationally plausible than the standard approach.

BIBLIOGRAPHY Barukhovitch, S. Z. (2014) Tanya. New York: Kehot Publication Society. Cordovero, M. (2018) Pardes Rimonim. Jerusalem: Machon Pardes HaRamak. Gabbai, M. Ibn (1992) Avodat Hakodesh. Jerusalem: Shvilei Orchot Chaim. Gikatillia, J. (1994) Shaarei Orah. New York: HarperCollins. Golding, J. (2018) The Jewish Spiritual Path: The Way of the Name. Jerusalem: Urim. Ickovits, C. (2012) Nefesh Hachaim. Teaneck: New Davar Publications. Luria, I. (1984) Etz Chaim. Jerusalem: Yeshivat Kol Yehuda. Luzzatto, M. C. (2006) Derech Hashem. Jerusalem: Mechon Ramchal. Luzzatto, M. C. (2008) Klach Pitchei Chochmah. Jerusalem: Mechon Ramchal. Maimonides, M. (1974) The Guide of the Perplexed. Trans. S. Pines. Chicago: University of Chicago Press. Plato (1974) Republic. Indianapolis: Hackett. Plato (1985) Five Dialogues: Euthyphro, Apology, Crito, Meno, Phaedo. Indianapolis: Hackett. Plato (1996) Parmenides. Indianapolis: Hackett. Weisblum, E. (2014) Noam Elimelech. Jerusalem: Pe’er Mikdoshim. Zohar (1984) London: Soncino Press.

14 The Morality of Biblical Deception Misleading Truths, Geneivat Da’at, and Jacob’s Deception of Isaac Shira Weiss

Lying is generally perceived as morally reprehensible; however, philosophers dispute the ethical nature of misleading truths. The permissibility of a similar concept, geneivat da‘at, is debated in Jewish law. Both philosophical and halakhic (Jewish legal) categories can be of use when approaching the challenging biblical ruse depicted in Gen. 27, in which Jacob deceives Isaac in order to obtain the blessing of the firstborn. The literal reading of the narrative describes Jacob overtly lying to his blind father by pretending to be Esau. An ethical analysis of the text, in light of philosophical and legal considerations, can offer alternative interpretations, and provides deeper insight into the moral nature of Jacob’s motivations and conduct.

14.1. DECEPTION AND MISLEADING TRUTHS The topic of lying and deception has been the subject of much debate in moral philosophy. Eighteenth-century German philosopher Immanuel Kant asserts an absolutist position that lying is always morally wrong and at odds with the categorical imperative. Lying, for Kant, is considered the archetype of all immorality, as it violates one’s duty to humanity. He writes, “Truthfulness is a duty which must be regarded as the ground of all duties based on contract . . . To be truthful (honest) in all declarations, therefore, is a sacred and absolutely commanding decree of reason, limited by no expediency” (Kant 1949: 347). Kant reasons that humans are born with dignity, an “intrinsic worth” since they are uniquely rational agents. He argues that to Shira Weiss, The Morality of Biblical Deception: Misleading Truths, Geneivat Da’at, and Jacob’s Deception of Isaac. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0014

264

Shira Weiss

be human is to possess the rational power of free choice; and to be ethical is to respect that capacity in oneself and others. Lying, therefore, corrupts the essence of humanity, namely the individual’s ability to make free, rational choices, which provides humans with moral worth. Human dignity and autonomy are diminished since the lie leads one to make different choices than one would have had one known the truth. Kant believes that humans have an absolute duty to prevent any impairment to one’s ability to make free and rational decisions. Kant’s absolute prohibition is not the result of a misplaced effort to be consistent, but rather comes from an ideal of human relations which is the basis of his ethical system.¹ In opposition to Kant, Benjamin Constant, an eighteenth-century SwissFrench philosopher, defends the lawfulness of lying when necessary and challenges Kant’s assertion by raising a hypothetical objection. If, according to Kant, truth telling is a universal imperative, then it follows that one must (if asked) tell a known murderer the location of his target (Constant 1797). Kant responds as Constant inferred, that one has a moral duty not to lie to the murderer: “Truthfulness in statements that cannot be avoided is the formal duty of man to everyone, however great the disadvantage that may arise therefrom for him or for any other” (Kant 1949).² Constant objects and argues that truth telling is only a duty towards one who has a right to the truth. Therefore, it is ethical to lie to the would-be murderer: It is a duty to tell the truth. The concept of duty is inseparable from the concept of right. A duty is that on the part of one being which corresponds to the rights of another. Where there are no rights, there are no duties. To tell the truth is therefore a duty, but only to one who has a right to the truth. But no one has a right to the truth, who injures others. (Constant 1797: 124)

Constant does not mean that the murderer’s violation of the law prohibiting murder justifies the liar’s violation of the universal law of truth telling. Rather, he demonstrates through his objection that in such a case the liar does not violate the law at all. However, even though Kant believes humanity has a truth-telling duty, he, uninterested in consequences, distinguishes between overt lies and misleading truths though they have the same purpose and, if successful, have the same effect: to deceive the listener. Kant conceives of a lie as the making of an

¹ See Korsgaard 1986: 327. ² In response to the murderer objection, Kant assumes there is no way to remain silent or evade the question. Therefore, Kant rules that one has an ethical obligation to be truthful (although one does not have to be particularly forthcoming about such information). (In his Lectures on Ethics, Kant writes, “We may knowingly deceive the other in a permissible way, if we try by our action or utterance to promote the truth, or overt an evil; e.g., a pretended journey, to uncover or thwart a crime” (Lecture on Ethics, 27:700).)

The Morality of Biblical Deception

265

untruthful statement with the intention that it be believed to be true. Therefore, a misleading truth, an utterance which is technically true, but intended for the listener to interpret in a false manner, would not constitute a lie. In an effort to adhere to the moral imperative, he permits misleading truths since they, unlike outright lies, pay homage to duty and respect the moral law which justifies their evasion of truth to some degree. Kant uses this distinction in his own defense (Kant 2001: 239–43). King Friedrich Wilhelm II and his censors demanded that Kant refrain from writing or lecturing on topics that deprecated religion. With the intention to continue to write and speak about religion, Kant promised, “As your Majesty’s faithful subject, I shall in the future completely desist from all public lectures or papers concerning religion.” When the King died shortly thereafter, Kant considered himself absolved of the promise, since in his misleading truth he only committed to deprive himself of such freedom during the King’s lifetime when he was the King’s “faithful subject.” Kant writes that he chose his phrasing carefully “so that I should not be deprived of my freedom . . . forever, but only so long as His Majesty was alive,” since Kant knew that the King’s death was expected imminently. Kant did not view his utterance to be dishonest because he fulfilled his commitment. His promise was deceptively equivocal and it was not his responsibility if others made an inference from his promise that he would refrain permanently from such topics. Cameron Shelley (2012) objects that misleading truths are not consistent with the categorical imperative and are, therefore, not morally permissible from a Kantian perspective since manipulation, impermissible in Kantian ethics, is intended by the speaker. The onus is, therefore, on the speaker to avoid deliberately misleading the audience. However, Alasdair MacIntyre interprets Kant as claiming that “My duty is to assert only what is true and the mistaken inferences which others may draw from what I say or what I do are . . . not my responsibility, but theirs” (MacIntyre 1994: 337). One’s duty is confined to the truth of what one asserts; the belief of others is not the responsibility of the speaker, as long as the speaker articulated only the truth. Jonathan Adler adds, “The underlying idea is, presumably, that each individual is a rational, autonomous being and so fully responsible for the inferences he draws, just as he is for his acts. It is deception, but not lies that require mistaken inferences and so the hearer’s responsibility” (Adler 1997: 444). Insofar as one is not telling a lie, he is not violating the duty of truthfulness. The victim who is misled bears partial responsibility because he had to make an inference and then forms the belief that what he has inferred is true, whereas the liar assumes full responsibility. Michael Sandel explicates Kant’s distinction: “A misleading statement that is nonetheless true does not coerce or manipulate the listener in the same way as an outright lie. It is always possible that a careful listener could figure it out” (Sandel 2009: 137).

266

Shira Weiss

1 4 . 2. GENEIVAT DA‘ AT The concept of misleading truths can be compared to the principle in Jewish law of geneivat da‘at (theft of one’s mind, wisdom, or knowledge), which causes the listener to have a mistaken assumption, belief, or impression. The criteria for violation of geneivat da‘at are: (1) the offender knows that the victim has a false impression and (2), the deception is the result of the victim’s reasonable interpretation of the circumstances.³ Just as there are various philosophical views regarding misleading truths, this halakhic concept is also subject to debate. The Talmud examines three categories of geneivat da‘at: (1) an offering which one knows will be declined; (2) a transaction in which the recipient believes that he is receiving some greater benefit or appreciation than is actually so; and (3) the appearance of incurring loss or doing something on behalf of another when actually there is no loss or the action would have been done for oneself (Tractate Hullin 94a–b). In the Talmud, Samuel states that it is prohibited to steal the minds of people, including an idolater (Hullin 94a). However, the Talmud explains that this ruling was not stated explicitly, but derived by inference. A Baraita (an oral tradition not included in the Mishnah) insists that one should not invite a guest or offer gifts to someone he knows will not accept, thereby giving the false impression of generosity. The Talmud further illustrates the other categories of the concept of geneivat da‘at in additional cases. If a Jew sells non-kosher meat to idolatrous meat sellers, it will be assumed that the meat is kosher. Thus, if the Jew says nothing, it is considered geneivat da‘at and the idolater may think that the meat is more valuable than it actually is and even go on to claim that it is kosher and sell it to Jews. Similar to Kant in the philosophical debate, the underlying argument of the prohibition of geneivat da‘at is that one does not have a right to diminish another person’s ability to make a fair and honest evaluation. However, as in philosophers’ explanations of Kant’s exclusion of misleading truths from the categorical imperative, the Talmud suggests a counterargument that the idolater is misleading himself and is to blame for assuming that the meat is kosher without inquiring. Aaron Levine (2005: 390) suggests that anyone who does not correctly understand the intended point of the seller is guilty of self-deception. This example is the prototype case that serves as a defense against charges of geneivat da‘at.⁴ The Talmud cites support from another example in which Mar Zutra was travelling and met Rava and R. Safra

³ See Levine 2005: 11. ⁴ However, Levine argues that there is “limited license to classify as self-deception interpretations of an implicit message that differ from what the message designer himself intended.” He cautions, “the leniency should certainly not apply when the target audience is large and heterogeneous” (Levine 2005: 390).

The Morality of Biblical Deception

267

along the way and assumed that they had burdened themselves by coming to greet him. R. Safra confessed that they did not know Mar Zutra was coming, but had they known, they would have certainly come to meet him. Rava asked R. Safra why he offered the truth voluntarily, which disheartened Mar Zutra? R. Safra responded that had he kept silent, Mar Zutra would have been misled into thinking they had come to honor him. Rava countered that it was Mar Zutra who misled himself, therefore, they had no obligation to correct his erroneous impression. Talmudic decisors deem Rava’s view appropriate because Mar Zutra was guilty of self-deception, since he had no reason to presume that his chance meeting with them was an intentional welcoming party. Rava’s argument seems to be consistent with Kant’s view of misleading truths, putting the onus not on the misleader, but rather on the listener to interpret the statement (or misleading silence) in order to discern the truth. Rabbi Shlomo Yitzchaki (otherwise known as Rashi), an eleventh-century Jewish exegete, asserts that this exception to the geneivat da‘at prohibition applies in any case in which the recipient is not led to believe it is being done on his behalf.⁵ For instance, Rava and R. Safra did not state that they had come to greet Mar Zutra and in no way led him to believe that they were there to honor him. In fact, it is not clear that they even knew he was traveling. Rashi requires an explicit misleading utterance to violate the prohibition of geneivat da‘at which he derives from the biblical prohibition (Exodus 23:7), “Midvar sheker tirḥak (Distance yourself from falsehood).”⁶ However, the Tosafists contend that the prohibition of geneivat da‘at is violated even if the victim was not explicitly misled. Rather, the only situation excluded from the prohibition is a situation in which the recipient should realize on his own that the act is not being done on his behalf. Tosafists derive the prohibition of geneivat da‘at from the biblical imperative (Leviticus 19:11), “Lo Tignovu [You shall not steal]”;⁷ the plural verb broadens the prohibition to include more situations than physical theft. The Tosefta (Baba Kama 7:8) argues that of all forms of geneiva (theft), “the first among them all is geneivat da‘at.”⁸

⁵ Rashi on Tractate Hullin 94. ⁶ Rashi on Tractate Hullin 94. ⁷ Rabbi Yom Tov b. Abraham Asevilli (otherwise known as the Ritva), in the name of the Tosafists, derives geneivat da‘at from this biblical prohibition (Ritva on Tractate Hullin 94). Similar arguments are advanced by two works that enumerate the 613 commandments: Sefer Mitzvot Gedol (otherwise known as the Semag) in prohibition 155 and Yerei’im in 124. Obadiah Seforno extends the meaning of the singular version of the law, the eighth commandment of the Decalogue (Exodus 20:13), “Lo Tignov [You shall not steal],” which primarily refers to kidnapping, to also include stealing and geneivat da‘at. The Minḥat Ḥ inukh (Commandment 224) explains that the reason that the prohibition of geneiva is so expansive is because it is rooted in deception, and, therefore, geneivat da‘at is its quintessential form, since it is the act of deceit which the Torah forbids. ⁸ The Tosefta, a supplementary halakhic tradition not included in the Mishnah, considers geneivat da‘at the most egregious type of theft.

268

Shira Weiss

Had R. Safra and Rava known that Mar Zutra was on the way, they would have gone out to greet him. Why, then, according to the Tosafists, would their failure to correct his misconception be a violation of geneivat da‘at? This case is juxtaposed to an episode described earlier in Tractate Hullin 94a. There, a case is recorded in which a host opens a barrel of wine for his guest, of which some of its contents had been previously sold. A host should not make his guest think that he has acted toward him with magnanimous hospitality when in fact he had not done so. Opening a barrel of wine in honor of a guest reflects a gesture of generosity, since the remaining wine in the barrel may deteriorate when it is exposed to air. If the host sold some of the contents of the barrel of wine just before the guest arrives and does not inform the guest of the sale, the host violates geneivat da‘at, since the guest will feel an undeserved sense of indebtedness to his host. The Talmud describes R. Judah opening a barrel of presold wine for his guest, Ulla.⁹ The Talmud explains that R. Judah notified his guest, but then offers an alternative rationale. The Talmud defends R. Judah even had he not divulged, since Ulla was very dear to him and, therefore, R. Judah would have made the same hospitality gesture whether or not he incurred a great expense. Thus, the Tosafists explain the Talmud’s exclusion of R. Judah from the violation of geneivat da‘at and the difference between this case and that of Mar Zutra. They argue that R. Judah’s opening of the barrel was not deceptive, but was intentionally done to honor Ulla. Not disclosing the sale does not violate geneivat da‘at since R. Judah did not mislead Ulla into thinking he was magnanimous, for he would have spent generously in order to honor his guest. In contrast, R. Safra and Rava’s journey was not for the purpose of honoring Mar Zutra. Therefore, R. Safra and Rava’s obligation to correct the false impression cannot be relieved simply because they would have honored Mar Zutra had they known he was on the way, since honoring Mar Zutra was not part of their original intention.¹⁰

⁹ Rashi explains that the owner of the barrel only violates geneivat da‘at if he states explicitly that he opened the wine for his guest; therefore, R. Judah would not be in violation of the prohibition. Whereas, the Tosafists argue that generally geneivat da‘at is violated even if not as a result of an explicit utterance since a false impression still arises and the owner garners, or misappropriates, undeserved good will. ¹⁰ R. Aryeh Judah b. Akiba qualifies that the exemption to correct misunderstandings is only when the host is of exceptional moral character like R. Judah, who could honestly evaluate that he would confer a generous gesture of hospitality upon his guest. However, a regular host may delude himself into thinking he would do so, even at significant cost. Aaron Levine (1987: 24) argues that a host who is willing to incur such an expense is free from the obligation to correct a false impression only if geneivat da‘at is regarded as pertaining to a form of falsehood. However, if geneivat da‘at is regarded as a form of theft, it is difficult to understand how an assessment of selfless generosity frees the host from the obligation to correct the false impression since it would still cause the guest to feel an undeserved sense of indebtedness to the host.

The Morality of Biblical Deception

269

14.3. BIBLICAL DECEPTION The various ethical positions on misleading truths and halakhic views of geneivat da‘at can advance diverse evaluations of biblical deception. In one of the most blatant episodes of deception in the Bible, Jacob deceives his father in order to obtain the blessing Isaac intended to bestow upon Esau. Old and blind, Isaac summons Esau, his elder and favored son,¹¹ to hunt and prepare savory food so he could bless his firstborn before his death. Rebekah, having received a divine prophecy while pregnant that her elder son shall serve his younger brother (Genesis 25:22–3), overhears Isaac’s request of Esau and facilitates a plan in which Jacob pretends to be Esau to receive the blessing from his father. According to a literal reading, Jacob explicitly lies to his father. Since Rebekah prepared the food for Jacob to bring to Isaac while Esau was hunting, the brief time that elapsed between Isaac’s request and Jacob’s presentation of food aroused Isaac’s suspicion. When he approaches his father with food, Isaac asks Jacob to identify himself. Jacob responds, “I am Esau your firstborn; I have done according to what you have requested of me. Arise, I beg you, sit and eat of my venison, that your soul may bless me” (Genesis 27:19). Jacob continues to use deceptive speech to explain how he arrived so quickly with the food. Jacob states, “For the Lord your God sent me good speed” (27:20). Blind and reliant on his sense of touch, further doubts are articulated by Isaac when he requests of Jacob, “Come near, I beg you, that I may feel you, my son, whether you are my son Esau or not” (27:21). In addition to falsely identifying himself as Esau, Jacob puts goat hair on his arms and neck and allows his father to feel his hairy disguise (27:22–3), and dresses in Esau’s clothes which smelled of the field (27:27). Isaac acknowledges, “The voice is the voice of Jacob, but the hands are the hands of Esau” (27:22). Unconvinced, Isaac continues to probe, “Are you my son Esau?” to which Jacob succinctly replies, “[It is] I” (27:24). The underlying prohibition in Kant’s arguments and in the Talmudic cases of geneivat da‘at is that an individual has no right to diminish another’s ability to make a fair and honest evaluation. According to the literal reading of the text, Jacob’s disguise and false claims deprive Isaac of his ability to make free and rational choices. As a result, Isaac acts differently than he would likely have had he been informed of the truth of his son’s identity. Unlike the deceived murderer in Constant’s objection, Isaac is deserving of the truth; thus, it appears that Jacob is wronging him by lying under these circumstances.

¹¹ “Now Isaac loved Esau, because he did eat of his venison; and Rebekah loved Jacob” (Genesis 25:28).

270

Shira Weiss

It can be argued that by creating an erroneous impression as he pretends to be Esau, Jacob violates geneivat da‘at, since he fulfills both of its criteria: (1) Jacob (and Rebekah), the offender, knows that Isaac, the victim of deception, has a false impression of him, and (2) the deception is the result of Isaac’s reasonable interpretation of the circumstances confronting him. Geneivat da‘at is only violated if a “reasonable man” would be misled and would, therefore, read into the message that which is incorrect. Exceptions to the geneivat da‘at prohibition apply only in cases in which the recipient was not led to believe a falsehood, as described in the Mar Zutra case in which Rava and R. Safra had no obligation to correct the misimpression that Mar Zutra arrived at on his own. As we saw, a reasonable person could regard the rabbis’ encounter with Mar Zutra as clearly coincidental. Because Mar Zutra’s assessment that the rabbis constituted a greeting party for him was unreasonable, the rabbis bore no responsibility to disabuse him of his misimpression. By contrast, it was reasonable for Isaac to be misled by Jacob’s wording and conduct. As Rashi asserts, a misleading statement constitutes geneivat da‘at and is derived from the biblical prohibition against lying (i.e. Exodus 23:7). Even if Isaac could have investigated further, Jacob certainly led him to believe that he was Esau, the appropriate recipient of the blessing in Isaac’s eyes. Furthermore, the halakhic exception to permit sheker (falsehood) and geneivat da‘at to promote peace (darkhei shalom) only applies when the object is to end discord or prevent a rift.¹² Jacob’s ruse does not warrant such an exception since his deception causes a rift with Esau. Once Esau realizes Isaac has bestowed his blessing upon Jacob, Esau seeks to kill his brother, forcing Jacob to flee to his uncle, Laban’s house for twenty years, never to see his beloved mother again. Conduct that buys only temporary peace, but will ultimately result in bad relations in the long term, violates the halakhic principle of bakesh shalom (derived from the divine mandate bakesh shalom ve-rodefehu—Seek peace and pursue it (Psalm 34:15)—which is a component of the command, “You shall love your neighbor as yourself” (Leviticus 19:18)) and imitatio Dei. Even though Esau commits not to kill his brother while their father is alive, Jacob’s deception surely creates bad relations in the long term, which Jacob feels responsible for and the need to ameliorate much later in the narrative when he sends gifts to Esau prior to their eventual meeting.

¹² R. Israel Meir ha-Kohen Kagan argues that lying in order to preserve peace is permissible only when the objective cannot be achieved without lying (Hafetz Hayyim, Hilkhot Rekhilut 1:8). Aaron Levine (2012: 36) suggests that the darkhei shalom motive “legitimizes the telling of a lie, even if the one who tells the lie realizes that the lie will be exposed with time and the peace it achieves will dissipate,” because even lying to secure temporary peace is legitimate. “Nonetheless, if the peacemaker assesses that when his lie is exposed, the discord that it ended will reemerge in an exacerbated form, darkhei shalom does not permit the telling of the lie”; see R. Nahum Yavruv’s Nir Sefatayyim, Hilkhot Issurei Sheker, 4th ed., helek 1, kelal 2:8:33.

The Morality of Biblical Deception

271

Nevertheless, considerations raised in the philosophical debate over the ethical nature of deception and truth telling, as well as in the legal discussion of geneivat da‘at, can support alternative interpretations of the complex tale. Based on Kant’s distinction between lies and misleading truths, it is possible to exonerate Jacob of wrongdoing by arguing that he did not lie altogether, but only uttered a misleading truth. Rabbinic and exegetical interpretations go to great lengths to explain biblical depictions of deception as technically true, despite being misleading. While Jacob’s identification as “Esau, your firstborn” (Genesis 27:19) seems to be an explicit lie, exegetes repunctuate the words to avoid attributing an overt lie to Jacob. Rashi interprets Jacob’s response as a mental reservation, in which only a partial but highly misleading truth with the intent to deceive is uttered, while adding in one’s mind the missing words that would render the statement non-deceptive, in order to not be responsible for the “misinterpretation” made by the listener. Rashi interprets Jacob’s response to his father: “I am he who brings to you, and Esau, he is your firstborn.”¹³ Similarly, later in the narrative when Isaac attempts to confirm his son’s identity, “Are you really my son Esau?” Jacob answers, “I am” (and not “I am Esau”), once again not uttering an outright lie (Genesis 27:24). It is possible that Jacob did not lie at all since he is entitled to identify himself as the firstborn after he legitimately purchased Esau’s birthright. Following the sale in Genesis 25, Esau is referred to as “the elder son,” and no longer as the “firstborn.”¹⁴ Therefore, when Jacob comes to take the blessing that was meant for the firstborn, he was entitled since he acquired the birthright from Esau, who had relinquished it and sold it to him. Thus, Jacob may have technically upheld the duty of truth telling, even if he intended to mislead his father, since he knew Isaac was unaware of his exchange with Esau. As we saw, philosophers justify Kant’s condoning of misleading truths since they do not coerce or manipulate the listener who can discern the truth. Accordingly, Jacob’s misleading claims are technically true and therefore do not deprive Isaac of his ability to carefully interpret his son’s words. Isaac had the responsibility of discerning who would be the rightful recipient of the blessing and may have erroneously evaluated Esau’s character. The Midrash and exegetical commentaries exonerate Jacob of his deceptive conduct by suggesting that Isaac misperceived Esau’s worthiness of the blessing, which needed to be corrected through deception since Isaac would not acknowledge the truth or be persuaded through direct means. The Midrash explains that Isaac loved Esau because his oldest son deceived him by pretending to be pious. Regarding the biblical description of Esau as a hunter, the Midrash suggests, “He (Esau) was a trapper and a fieldman, trapping (i.e. deceiving) at home and

¹³ Rashi on Genesis 27:19.

¹⁴ See Genesis 27:1, 15, and 42.

272

Shira Weiss

trapping in the field. Trapping at home (by asking) ‘How do you tithe salt?’; in the field (by asking) ‘How do you tithe straw?’”¹⁵ Rashi refers to this Midrash in his explanation that since both salt and straw do not require tithing, Esau led his father to believe he was punctilious in his observance.¹⁶ With foreknowledge gained from her prophecy that the younger son would rule the elder, Rebekah devises a plan to thwart Isaac’s intention. As a result of the ruse, Isaac is able to correct his intended wrong which was due to his misjudgment of his sons, and, thereby, actualize the divine prophecy. Even though Isaac voices initial suspicions, he does not continue to question or seek confirmation that it is actually Esau who would receive the blessing. He did not verify through a third party, insist that Jacob present himself or wait until his doubts were addressed. Isaac may have considered the possibility that it was Jacob whom he was blessing, and nevertheless decides to proceed. Upon smelling the smell of the field on Jacob dressed in Esau’s clothes, Isaac blesses his son with prosperity and leadership: “Let peoples serve you, and nations bow down to you. Be lord over your brothers, and let your mother’s sons bow down to you” (Genesis 27:29). David Berger (1996) suggests that Rebekah and Jacob may have underestimated Isaac, who had intended to bless Esau, the pragmatic and aggressive hunter, with temporal supremacy, but had planned from the outset to give the blessing to perpetuate the Abrahamic lineage to Jacob, the spiritual shepherd. The deception, nevertheless, was still necessary for Jacob’s supremacy. Shortly following Jacob’s exit after his receipt of the blessing, Esau presents his food to his father and identifies himself as “I am your son, your firstborn, Esau” (Genesis 27:32). Isaac trembles exceedingly and questions whom he had blessed earlier, but confirms that the blessing upon Jacob shall stand. “Who then is he that has taken venison, and brought it me, and I have eaten of all before you came, and have blessed him? Indeed, and he shall be blessed” (27:33). Despite his trembling, Isaac demonstrates no reproach or rage towards Jacob for his deception. Ann Engar (1990) suggests that Isaac may have trembled once he realized that God had achieved His ends despite Isaac’s own wishes. Thus, Isaac’s trembling may not reflect his regret, but rather may be due to his long misperception of his sons which he mended through the blessings. Alternatively, Charlotte Katzoff (2008) argues that Rebekah’s plot succeeded because Isaac cooperated in his own deception, since he wanted to believe Jacob. Isaac’s “dim eyes” may not only refer to his physical blindness, but also to his reluctance to see the truth of Esau’s character due to his ¹⁵ Genesis Rabbah 63:10; Tanhuma Toledoth 7. Additional Midrashic and Aggadic literature disparage Esau’s character further in an effort to justify the divine choice of Jacob; see Midrash Shahar Tov 14:4; Midrash Tanhuma Toledoth 8; Tractate Baba Batra 16b. ¹⁶ Rashi on Genesis 25:27.

The Morality of Biblical Deception

273

affection for his son. Blindness is a common scriptural metaphor for a lack of moral discrimination. “For the bribe blinds the eyes of the wise” (Exodus 23:8). The Midrash connects Isaac’s blindness to his poor judgment, and alludes that the delicacies Esau regularly brought his father served as a bribe which blinded him (Genesis Rabbah 65:6).¹⁷ By the time of the episode of the blessing, Isaac may have realized that Jacob was the appropriate recipient of this blessing as well, despite his favor of Esau. Due to his love for Esau, Rebekah may have needed to deceive him and help him deceive himself. Therefore, even if Isaac suspected Jacob was tricking him, he still blessed him, and when the guise was revealed to him, he reaffirmed the blessing upon Jacob instead of expressing anger or transferring it to Esau as he originally intended. David Daube (1947: 191) argues that the blessing was valid and ratified by Isaac after he was informed of the fraud. Isaac’s reaffirmation, “Indeed, and he shall be blessed,” is a confirmation of the blessing, as Isaac was conscious and responsible for giving the blessing to Jacob; thus it was irrevocable. As discussed in the Talmud’s counterargument in the Mar Zutra case, Mar Zutra misleads himself and is to blame for not inquiring about Rava’s and R. Safra’s motivations. Similarly, Isaac misperceives Esau as the worthy recipient of the blessing and could have asked Jacob to further identify himself in order to ensure he bestows it appropriately. Instead, Isaac allows himself to be deceived and is responsible for giving the blessing to the wrong son. Menahem Kasher (in the Torah Shleima on Genesis 27:19 #76) quotes Sekhel Tov and argues that Jacob’s lying to his father when he represented himself as Esau was justified as necessary due to the extenuating circumstances resembling those mentioned in Tractates Bava Mezia and Yebamot.¹⁸ Jacob was similarly justified for stealing the heart of his father-in-law, Laban, as it states later in the narrative (Genesis 31:20), Jacob “stole the heart of Laban, his uncle, when he did not tell him that he was fleeing with his family (Laban’s daughters and grandchildren).” Laban confronts Jacob and inquires, “What have you done, you have stolen my heart? You have led my daughters away as if they were captives of the sword. Why did you flee so secretly, and steal from me?” (Genesis 31:26–7). Samson Raphael Hirsch suggests that had Jacob given Laban the slightest indication that he was leaving, it would have been impossible for him to get away.

¹⁷ Parallels of an old father who misjudges the impropriety of his sons or fails to rebuke them can also be drawn to Eli, Samuel, and David: “and (Eli) did not restrain them” (1 Samuel 3:13); “And it was, when Samuel was old, that he made his sons judges over Israel” (1 Samuel 8:1); “and his father had never grieved [reproached] him” (1 Kings 1:6). Similarly, old and blind Isaac fails to realize Esau’s true character and mistakenly desires to bestow the blessing upon him. ¹⁸ In Tractate Bava Mezia 23b–24a, the Talmud lists exceptions when it is permitted to conceal the truth in order to preserve humility, privacy, and modesty, or to prevent exploitation. Furthermore, in Tractate Yebamot 65b, the Talmud teaches that one can alter a statement in the interest of peace and cites a biblical prooftext from 1 Samuel 16:2, in which God told Samuel to tell Saul only that he was offering a sacrifice, not that he was anointing a new king in his stead.

274

Shira Weiss

Jacob’s geneivat da‘at here consisted in his not allowing Laban to notice by his looks, word or deed that he had observed the alteration in Laban’s feelings towards him. (Gen. 31:1–2) But he had to have recourse that such self-control, perhaps even to dissimulation, “because he did not tell him,” could not tell him, because “only as a fugitive could he get away.” Had he told him that he—as he was fully entitled to— was leaving his service, Jacob would have had to expect, as Laban openly told him later on, that Laban would throw him out, naked and alone as Jacob had arrived.¹⁹

It can be argued similarly in the earlier episode as well. Even though Jacob may have been entitled to the blessing, he justifiably had to resort to geneivat da‘at in order to obtain that of which he would have otherwise been deprived. The application of philosophical and halakhic arguments to the narrative that depicts Jacob’s deception of his father affords alternative interpretations of the ethically challenging episode. A literal reading of the text leads one to the conclusion that Jacob’s ruse violated the categorical imperative against lying and the halakha of geneivat da‘at, as he created an erroneous impression and thereby unethically deprived his father of his human ability to make a free and rational decision. Jacob leads his father to think he is Esau and knows that Isaac has a false impression of him that is the result of Isaac’s reasonable interpretation of the circumstances confronting him. Isaac, as a result, unintentionally bestows the blessing upon Jacob instead of Esau and trembles when he realizes his mistake, since it seems he would not have done so had he been aware of Jacob’s true identity. However, consideration of the moral status of misleading truths and the alternative legal positions of geneivat da‘at support a close reading that does not render Jacob guilty of wronging his father. Accordingly, Jacob can be exonerated since he does not overtly lie, but rather employs misleading truths and mental reservations, leaving the subtlety for Isaac to discern. Jacob’s misleading claims are technically true and therefore do not deprive Isaac of his ability to carefully interpret his son’s words. Such conduct does not violate Kant’s categorical imperative since misleading truths do not coerce or manipulate the listener who can uncover the truth. Isaac had the responsibility of discerning who would be the rightful recipient of the blessing. Even though Isaac voices initial doubts, he does not continue to question or attempt to verify Esau’s identity through a third party or wait for Jacob to arrive. Rather, Isaac misleads himself, and Jacob is under no obligation to correct his father’s misperception, as indicated in a Talmudic explanation of geneivat da‘at.²⁰ Isaac expresses no reproach or rage towards Jacob for his deception after he discovers the ruse, further confirming the ethical nature of Jacob’s motive, behavior, and character throughout the narrative. ¹⁹ Samson Raphael Hirsch, Commentary on Genesis, 31:20. ²⁰ As referenced earlier, the counterargument in the Talmudic case rules that geneivat da‘at was not violated since Mar Zutra misleads himself and is to blame for not inquiring about Rava’s and R. Safra’s motivations.

The Morality of Biblical Deception

275

Such a philosophical and halakhic analysis attempts to elucidate the apparent moral problems and ambiguity within this challenging biblical text. Diverse readings demonstrate the complexity of the narrative and the various perspectives from which to evaluate its characters. The reader gains a sense of competing values, motivations, and factors that are embedded in moral conflict, both in those portrayed in the Bible and those encountered in reality. Examination of the conduct of biblical figures and sensitivity to the inner tension that motivated their acts can not only contribute to a deeper understanding of Scripture, but can also heighten contemporary readers’ moral reflection when faced with their own ethical debates.

BIBLIOGRAPHY Adler, J. (1997) “Lying, Deceiving or Falsely Implicating.” Journal of Philosophy 94(9): 435–52. Berger, D. (1996) “On the Morality of the Patriarchs in Jewish Polemic and Exergesis.” In: S. Carmy, ed., Modern Scholarship in the Study of Torah: Contributions and Limitations. Lanham: Jason Aronson, Inc., pp. 131–46. Constant, B. (1797) “On Political Reactions.” France 6(1): 123. Daube, D. (1947) Studies in Biblical Law. Cambridge: Cambridge University Press. Engar, A. (1990) “Old Testament Women as Tricksters.” In: V. Tollers and J. Maier, eds., Mappings of the Biblical Terrain: The Bible as Text. Plainsboro: Associated University Presses, Inc., pp. 143–57. Kant, I. (1949) “On a Supposed Right to Lie from Altruistic Motives.” In: Critique of Practical Reason and Other Writings in Moral Philosophy. Chicago: University of Chicago Press, pp. 346–50. Kant, I. (2001) Religion and Rational Theology. New York: Cambridge University Press. Katzoff, C. (2008) “Jacob and Isaac: A Tale of Deception and Self-deception. In: C. H. Manekin and R. Eisen, eds., Philosophers and the Jewish Bible. Bethesda: University Press of Maryland, pp. 143–65. Korsgaard, C. (1986) “The Right to Lie: Kant on Dealing with Evil.” Philosophy & Public Affairs 15(4): 325–49. Levine, A. (1987) Economics & Jewish Law. Hoboken: KTAV. Levine, A. (2005) Moral Issues of the Marketplace in Jewish Law. New York: Yashar Books. Levine, A. (2012) Economic Morality and Jewish Law. New York: Oxford University Press. MacIntyre, A. (1994) “Truthfulness, Lies and Moral Philosophers: What Can We Learn from Mill and Kant?” Tanner Lectures on Human Values. Princeton: Princeton University Press, pp. 309–69. Sandel, M. (2009) Justice: What’s the Right Thing to Do? New York: Farrar, Straus and Giroux. Shelley, C. (2012) “On the Impermissibility of Telling Misleading Truths in Kantian Ethics.” Open Journal of Philosophy 2(2): 89–91.

15 Neither Authoritarian nor Superfluous A Normative Account of Rabbinic Authority Yonatan Y. Brafman

15.1. INTRODUCTION The normativity of the commandments and the legitimacy of rabbinic authority are central issues in modern Jewish life and thus in modern Jewish thought. With the collapse of Jewish communal autonomy, thinkers as diverse as Moses Mendelssohn, Samson Raphael Hirsch, and Franz Rosenzweig revisited the classical topic of the reasons for the commandments (ta‘amei ha-mitzvot) with even greater urgency. Now that the Jewish community (kehillah) no longer possessed coercive power, it became all the more important to provide individuals with reasons for their observance.¹ While study of the project of justifying the commandments has often been conducted from a historical perspective, for example in the work of Isaac Heinemann (1956), it has recently become the focus of philosophical analysis in the work of David Novak (1998) and Daniel Rynhold (2005). However, the legitimacy of Jewish authorities, like rabbis or rabbinical courts, is an area of philosophical inquiry that is still completely neglected.² This, despite the fact that contemporary philosophers of halakha, like Eliezer Berkovits, have attempted to establish the legitimacy of rabbinic authority. Importantly, this attempt is distinct from, but related to, investigation into the reasons for the commandments, for it is possible to justify the content of individual commandments without establishing the legitimacy of rabbinic authorities. Contrariwise, it is possible to establish the legitimacy of rabbinic

¹ See Eisen 1998. ² The seeming exception is Michael Berger 1998. But, as the subtitle of his work indicates, Berger’s subject is specifically the authority of the Talmud as opposed to later rabbis and rabbinical courts. Yonatan Y. Brafman, Neither Authoritarian nor Superfluous: A Normative Account of Rabbinic Authority. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0015

A Normative Account of Rabbinic Authority

277

authorities without justifying the content of their directives. Indeed, these tasks even compete in a certain way, for to the extent to which commandments are independently justified based on their content, rabbinic authorities become superfluous. Inversely, to the extent to which the content of their directives is not justified, rabbinic authorities become authoritarian. In this chapter, I explore the possibility of establishing the legitimacy of rabbinic authorities by engaging in both reconstruction of Berkovits’s position and argumentation based on contemporary philosophy of law. Crucially, I do not directly establish the legitimacy of rabbinic authority; rather, I explore the structure of an account that would render it neither superfluous nor authoritarian. I begin by examining the relation between the effort to justify the commandments and the attempt to establish the legitimacy of rabbinic authority in Berkovits’s writings. Through an analysis of his thought in the context of moral and legal theory, I argue that he offers a teleological philosophy of halakha by showing how the commandments advance a moral purpose and how this purpose guides Jewish legal practice (pesikah). His attempt to establish the legitimacy of rabbinic authority on the basis of democratic principles is then analyzed. I contend that though this is a wellintentioned effort to avoid authoritarianism, it renders rabbinic authority superfluous. Rabbinic authorities only direct their subjects to perform actions that they already have reason to do, specifically the reasons that Berkovits indicates in his justification of the commandments. Rabbinic authorities thus do not make any practical difference to their subjects’ practical deliberations. Then, drawing on Joseph Raz’s service conception of legal authority, I offer a model for establishing the legitimacy of rabbinic authorities that links it to the justification of the commandments but that also secures its practical significance. I show how Berkovits’s philosophy of halakha would have to be modified to be compatible with a service conception of authority. In concluding, I reflect on its relation both to modern religiosity and to classical rabbinic tradition.

15.2. E LIEZER BERKOVITS’S HALAKHIC TELEOLOGY Over the course of his long and varied career and in his many writings, Berkovits developed a teleological philosophy of halakha. According to him, the commandments aim at the creation of the morally perfect society and this purpose should guide their interpretation, determination, and application to generate halakhic norms. Such an account thus both serves to justify the commandments in the context of ta‘amei ha-mitzvot and to regulate decision-making in the context of pesikah. Whereas the former is best analyzed through the lens of moral theory, the latter is naturally described by legal theory. I examine them in turn.

278

Yonatan Y. Brafman

15.2.1. Ta‘amei ha-mitzvot and Moral Theory In his major work of Jewish philosophy, God, Man, and History, Berkovits maintains that what is traditionally understood as the question of ta‘amei ha-mitzvot is actually comprised of two questions, which correspond to two different classes of commandments. These classes are traditionally described as mitzvot beyn adam le-makom and mitzvot beyn adam le-ḥavero. Following him, let us call them “ritual commandments” and “interpersonal commandments.” Berkovits’s background assumption about justification is that norms, like these commandments, are justified by their purposes. Purposes justify norms by showing what is accomplished by performing the actions they prescribe (or by refraining from the actions they proscribe) and thus why they should be done (or not done). Given that, these two classes of commandments present complementary questions concerning justification. For whereas the ritual commandments seem to lack any purpose that would justify their performance, the interpersonal commandments seem to be fully justified by their moral content and thus need not be commanded. The first question is thus the classic question of the reasons for the commandments, specifically: What is the purpose of the ritual commandments that justify their performance? The second question is less frequently raised in classical Jewish literature, though it does appear: Given that the interpersonal commandments could be rationally derived, what is the purpose of their being commanded? (Berkovits 2004: 91–4). Berkovits (2004: 95) proceeds to answer these questions in Jewish philosophy by posing two questions in moral theory: What is the source of moral normativity? And what is the method for creating moral motivation? His answers to these questions clarify both why the interpersonal commandments must be commanded and the purpose of the ritual commandments. Berkovits brings two Kantian premises about morality to this discussion: (1) Moral imperatives bind unconditionally and (2) compliance with moral imperatives must be autonomous. Moral theory must substantiate the unconditional obligation of moral imperatives and show how the motivation to act according to them derives from human freedom. Simultaneously, however, Berkovits also assumes a Humean account of reason, according to which, “Reason as such may neither command nor induce action . . . The source of all obligation is a will, and the motivation of a will is a desire.”³ This complicates matters. For whereas Kant could assume that a universalistic conception of practical reason supports both the unconditional claim of morality and autonomous moral action, Berkovits cannot.

³ Berkovits 2004: 103. Cf. David Hume 1969: 462.

A Normative Account of Rabbinic Authority

279

A Humean account of reason yields what is called reason/motives internalism, which in its most general form holds that “A necessary condition of p’s being a reason for S to do A is that S can have, and under suitable conditions would have, some motivation to do A by virtue of a suitable awareness of p” (Darwall 1997: 307). Reasons/motives externalism, in contrast, denies this; that is, p can be a reason for S to do A, even if S does not have any motivation to do A. Reasons/motives internalism and externalism, in turn, are related to another internalism versus externalism debate in contemporary philosophy: morality/reasons internalism and externalism. In this context, internalism holds that “If S morally ought to do A, then necessarily there is a reason for S to do A consisting either in the fact that S morally ought so to act, or in considerations that ground that fact” (1997: 306). Morality/reasons externalism denies this; according to it, that S morally ought to do A, does not necessarily entail that S has a reason to do A. Though not requiring it, reason/ motives internalism encourages morality/reasons externalism. For if the reasons for action that an individual possesses depend on his or her motivations, then there is no necessary connection between moral obligations and individuals’ reasons for action. Whether moral obligations yield reasons for action for an individual would depend on his or her contingent motivations. Reasons/motives externalism, in contrast, is congenial to morality/reasons internalism. For if the reasons for action that individuals possess do not depend on their motivations, the fact that individuals are unmoved by being presented with moral obligations would not undermine the claim that they issue in reasons for action. So Berkovits must substantiate the unconditional claim of morality and the autonomy of moral action, but he cannot do so based on their common origin in reason. Specifically, regarding the latter, he must show how moral imperatives provide everyone with a reason for action, even though, in general, reasons for action stem from individuals’ contingent motivations. In response, Berkovits proposes a divine command theory of moral obligation, which answers both the moral question about the source of normativity and the religious question about the need for the interpersonal commandments to be revealed. He claims that a shared assumption lies behind these questions: reason can make a purpose binding. Instead, he claims that reason cannot make a purpose normative. Attempts to rationally demonstrate that moral imperatives are unconditionally binding are thus misguided. He distinguishes between the axiological question of the good and the deontological question of obligation, such that, without the divine command, a moral purpose could be identified but it would still not be normative. Indeed, Berkovits surveys a range of ethical theories and claims that, though each of them may have offered a coherent definition of the good and detailed the reasons for action that follow from it, they have not justified one’s obligation to act in accordance with it. Correspondingly, the fact that the interpersonal commandments achieve a

280

Yonatan Y. Brafman

moral purpose does not justify them because the normativity of this moral purpose itself has not been established (Berkovits 2004: 95–6). But if all normativity stems from preexisting motivations, or what Hume and Berkovits call “desire,” how can the unconditional claim of moral imperatives be supported? Here Berkovits’s theology of revelation enters the picture. Human beings possess relative desires. Pursuant to reasons/motives internalism, such relative desires create conditional normativity, that is, reasons for action for the individual who desires. God, in contrast, possesses what Berkovits calls “absolute desires,” which create unconditional normativity, that is, reasons for action that apply to everyone. By commanding the interpersonal commandments in revelation, God discloses God’s absolute desire for a moral purpose and makes it unconditionally normative (Berkovits 2004: 105–6). This does not ensure, however, that an individual’s relative desires agree with God’s absolute desire. The question of moral motivation now looms large. Berkovits thus also surveys a range of positions on this issue and finds them inadequate. Pursuant to his Humean account of reason he rejects intellectualist theories. Just as only desires make a purpose normative, so too only it creates motivation. He also dismisses what he calls the “DeterministicEvolutionary” theory, which builds moral motivation into human nature because it undermines the autonomy of compliance with moral imperatives. While the former thus places the moral demand too far outside the individual to motivate, the latter makes it too innate to be moral. In contrast to both, Berkovits asserts that what he calls “Judaic critical optimism” holds that human beings possess a non-determining predisposition to desire the moral purpose (Berkovits 2004: 108–11). Because this predisposition is non-determining and does not immediately issue in motivation or action, it does not interfere with the autonomy of moral action. Instead, training is necessary to cultivate the predisposition into a motivation. This is the purpose of the ritual commandments. They are a form of training in order to stimulate the motivation for moral action. Berkovits claims that this education consists of two main components: From a negative perspective, the ritual commandments “increase the intensity of the desire for the good by sublimating some of the egocentric inclinations of the human nature” (Berkovits 2004: 111–12). From a positive perspective, they educate the body for ethical action by making it rehearse actions that do not originate in its own desires. The ritual commandments are thus justified by their contribution to the achievement of the moral purpose. And since the normativity of this moral purpose has been established by revelation, Berkovits concludes that the ritual commandments are normative as well. In sum, then, Berkovits provides a teleological justification of the commandments in terms of their moral purpose. The ritual commandments indirectly achieve that purpose by stimulating moral motivation. The interpersonal

A Normative Account of Rabbinic Authority

281

commandments directly achieve it by being moral actions. The normativity of the moral purpose itself is, in turn, justified by divine command. Berkovits’s teleological justification of the commandments certainly contains difficulties. Once he has explicitly adopted a Humean conception of reason and thus a commitment to reasons/motives internalism, his recourse to divine command to save morality/reasons internalism and thus unconditional moral obligation seems under-motivated. This is reinforced by the lack of an extended philosophical discussion of the normativity of the divine command or even a theological interpretation of God’s absolute desire. A bridge could be established between God’s absolute desire as manifest in God’s command and the individual’s non-determining predisposition to moral action and thus incipient reasons for action through a theology of creation. Yet, Berkovits does not pursue this discussion. These difficulties are afield from the present discussion, however. Whatever the soundness of Berkovits’s argument for the source of normativity, for our purposes, it suffices to recognize that, according to him, the commandments are justified by their moral purpose and this is, in turn, grounded in divine command. This is because in Berkovits’s account of pesikah this moral purpose issues in principles that guide the interpretation, determination, and application of the commandments in changing circumstances. The source of the purpose’s normativity in divine command and, as will be shown, explicit expression in Scripture is significant for identifying Berkovits’s underlying legal theory.

15.2.2. Halakhic-Legal Practice and Legal Theory Berkovits’s account of Jewish legal practice is mainly expressed in two related texts: the English volume Not in Heaven: The Nature and Function of Halakha and the Hebrew volume Ha-Halakha: Koḥah ve-Tafkedah. I draw on both in what follows to reconstruct his account of pesikah. Berkovits is clear that it is teleologically oriented. He writes (1983: 71), Halakha is the wisdom of the application of the written word of the Torah to the life and history of the Jewish people. However, this wisdom cannot be contained in any book. No written law can deal in advance with the innumerable situations, changes of circumstances, and new developments that normally occur in the history of men and nations. The eternal word of the Torah required a time related teaching in order to become effective in the life of the Jewish people. This was the tradition passed on by the living word from generation to generation the Torah sh’baal’Peh, the Oral Torah, beside the Torah she’be’Ktav.

The problem that motivates Berkovits’s description of Jewish law is that given that the commandments have the aim of creating a morally perfect

282

Yonatan Y. Brafman

society, how can they be applied to achieve that purpose under changing circumstances? Shatz (2012: 5) points out that, in this, Berkovits articulates a form of the problem of uncodifiability: How can norms be applied consistently in view of the complexity and variability of social reality? Following in the footsteps of the medieval Jewish philosophers Moses Naḥmanides and Joseph Albo, Berkovits resolves this problem by introducing principles alongside the commandments. These principles guide the interpretation and application of the commandments so that they achieve their purpose under changing conditions. Indeed, in describing the role of human reason in halakhic ruling and decision-making, Berkovits stresses that it is regulated less by concern with logical consistency among its basic concepts than by attention to practical consistency in achieving its aims. Berkovits describes sevara, the Talmudic term for human reason or reasoning, as “moral-pragmatic reason” or simply “practical reason.” He writes (1983: 81), “it is practical reason in the sense that it requires consistency in the halakhic endeavor to realize Halakha’s two guiding ideals, as presented to it by the Torah, ‘Thou shalt live by them . . . ’ [Leviticus 18:5], and ‘All its ways are pleasantness, and its paths, paths of peace’ [Proverbs 3:17].” In addition to promulgating the individual commandments, Scripture itself, according to Berkovits, sets out in these verses the principles that must guide the commandments’ interpretation. The Talmud (b. Gittin 59b) understands the verse from Proverbs as meaning that “the Torah in its entirety exists for the sake of the ways of peace.” Berkovits calls this principle “the Priority of the Ethical,” which entails the negative criterion that “God forbid . . . there should be anything in the application of the Torah to actual life situations that is contrary to the principles of ethics” (1983: 19). And while the verse from Leviticus in its plain-sense is an exhortation to observe the Torah and in its Talmudic interpretation (b. Yoma 85b) is an injunction concerning the preservation of life, Berkovits understands it as establishing the principle that he calls “the Wisdom of the Feasible.” It entails that “the practicality and effective functioning of the material, economic, and social structure of Jewish existence” must also guide the application of the commandments (1983: 77). Taken together, these principles aim to ensure that the commandments are applied in a manner that suits their purpose—establishing a morally perfect society. In his writings, Berkovits tracks the influence of these principles on Jewish legal practice. He contends that, though they are not invoked by name in rabbinic literature, the verses upon which they are based as well as other texts do appear. Additionally, he shows how other Talmudic rules are expressions of them. In effect, he traces how these principles issue in a ramified structure of subprinciples, whose effect is evident in pesikah, leading to the interpretation and even circumscription of biblical commandments and the legislation of rabbinic enactments to extend them. Overall, this interpretive and legislative activity is guided by the moral purpose of the Torah (Berkovits 1981: 45–99; 112–40).

A Normative Account of Rabbinic Authority

283

It is crucial to Berkovits’s account that these moral principles are established by the Torah itself. As indicated in the discussion of Berkovits’s moral theory, the only way they could be normative is due to their having been commanded by God. In the context of legal theory, this distinguishes his view of Jewish law from natural law as a form of legal positivism called inclusive legal positivism. In the main, legal theories can be differentiated based on their answers to two related questions: What makes a law, a law? And how should legal interpretation, that is, the determination and application of the law, proceed? Obviously, these two questions are linked, since in legal interpretation a judge or an individual who seeks to conform to the law must be able to identify it. Stated most generally, natural law theories hold that for a putative “law” to be a law it must satisfy at least some minimal moral criteria. In the dictum attributed to Augustine of Hippo, lex iniusta non est lex.⁴ Whatever their content, these moral criteria are independent of the legal system. Legal positivism, in contrast, acknowledges no such independent criteria on what makes a putative “law” a law. Instead, as its name suggests, a law is a law by being positively enacted by the authorized institutions and procedures of a legal system. Jules L. Coleman and Brian Leiter have identified two central theses held by all legal positivists: 1. The Social Thesis: What counts as a law in any particular society is fundamentally a matter of social fact or convention. 2. Separability Thesis: There is no necessary connection between law and morality. (Coleman and Leiter: 1996: 241) The social thesis entails the separability thesis. Since there is no necessary connection between social facts or conventions and morality, and if the conditions for legal validity consist entirely of social facts or conventions, then there is no necessary connection between law and morality. The law just is whatever is enacted in accordance with the social facts or conventions within a society for establishing laws. This could be the resolutions of a legislature, the decrees of a king, or even the commands of God. As indicated, natural law and legal positivism can be differentiated based on how they view legal interpretation as well. According to legal positivism, because the law just is whatever is positively enacted by the institutions and procedures of a legal system, someone who interprets the law should only consult authorized statements of it. In contrast, according to natural law, because there are independent moral criteria for law, someone who interprets the law may have to engage in independent moral reasoning. For perhaps the putative “laws” positively enacted by the institutions and procedures of the legal system violate morality and so are not laws at all.

⁴ Augustine’s closest statement of this form is De libero arbitrio 1.15.11.

284

Yonatan Y. Brafman

In the early stages of the modern debate between legal positivists and natural lawyers, it seemed like the legal positivist was committed to the view that law was a system of rules without any connection to morality. However, during debates between H. L. A. Hart and Ronald Dworkin the legal positivist position was refined. Against legal positivism, Dworkin argued that actual legal interpretation involves not only appeal to rules but also principles. Rules differ from principles in that whereas rules either apply or do not apply to specific circumstances, principles have what Dworkin called “weight” and must be balanced against each other; a principle can thus apply to particular circumstances but still be swamped by a competing principle. Moreover, such principles often are moral in character (Dworkin 2004: 87–92). The simple legal positivist picture of the enactment, identification, and application of morally neutral rules thus fails to make sense of actual legal practice. In response, Hart clarified that legal positivism possessed a capacious understanding of what could be positively enacted by the institutions and procedures of a legal system. Moral principles could be incorporated into a legal system so long as this was done through such processes (Hart 1994: 259–72). Consequently, neither the social nor the inseparability theses were breached. Because the moral principles were only part of the law by being positively enacted, what counts as law was still fundamentally a matter of social fact or convention. And there was still no necessary connection between law and morality, since this connection was conditional on their positive enactment, which is a contingent feature of any particular legal system. The resulting form of legal positivism has been described as inclusive legal positivism.⁵ For though at its base it retains the positivist view on the origin of law, it allows that law can include moral principles that influence legal practice. Yet, they may do so not because of their independent moral normativity but because their legal validity has been established by positive enactment. As I will show below, however, inclusive legal positivism has been criticized by other positivists. In the main, Berkovits’s view of pesikah fits with the model of inclusive legal positivism. As mentioned, due to his moral theory and justification of the commandments, it is crucial that the moral purpose of the commandments and thus the moral and pragmatic principles that regulate halakha be revealed in Scripture. These principles may regulate the determination and application of the commandments, not because they have independent moral normativity, but because they were positively incorporated into Jewish law by the command of God. Berkovits’s commitment to inclusive legal positivism is also evident in one of his most controversial positions in Jewish law. Marriage, according to

⁵ See, for example, Waluchow 1994 and Himma 2004.

A Normative Account of Rabbinic Authority

285

classical halakha, is a bilateral but asymmetrical neo-private contract between a man and a woman.⁶ It is bilateral in that both the man and the woman must consent to it and have rights and obligations under it. But it is asymmetrical in that the man has the exclusive right to initiate and terminate the marriage. Additionally, while a woman can only be married to one man, a man can, at least under biblical law, be married to multiple women. This may result in the problem of chaining (‘igun), in which marital life has effectively ended, due to the husband’s disappearance or irreconcilable conflicts between the spouses, but the husband cannot or will not divorce the wife by serving her with a bill of divorce (get). In such a case, the woman is left “chained” to the marriage because she cannot marry anyone else until she is divorced, and she cannot end the marriage on her own. And due to the neo-private contractual nature of marriage, rabbinical courts do not understand themselves as authorized to unilaterally dissolve the marriage. They may only adjudicate matters of fact, such as whether the marriage contract was properly formed or has been breached. The Talmud does countenance situations where a rabbinical court might employ an unrelated power, such as the power to expropriate property, to retroactively render the marriage contract improperly executed.⁷ However, these powers are seldom exercised by contemporary courts. Berkovits undertook to solve the problem of ‘igun in his work, Tenai be-Nisu’in u-ve-Get: Berurei Halakha, by, among other means, understanding the marriage contract as conditional on the fulfillment of certain provisions. Violation of these provisions by the husband would render the marriage invalid. A rabbinical court would thus not be usurping the husband’s exclusive right to dissolve the marriage but would only be determining if he has breached its terms. Berkovits’s suggests that these provisions could either be expressly stipulated in the marriage contract or they could implicitly be included in every marriage contract by rabbinic enactment. The provisions would be targeted to prevent cases of ‘igun. Some that Berkovits mentions are specific: The marriage could be made conditional on the husband not extorting the wife or marrying another woman. But he also suggests that the marriage could be conditioned on the husband not “act[ing] against her in a manner that is opposed to the moral principles of Judaism” (Berkovits 1966: 72). Crucially, the validity of this provision depends on their being objectively identifiable “moral principles of Judaism,” which a rabbinical court could determine that the husband has violated. Otherwise the rabbinical court would be usurping the husband’s exclusive right to end the marriage in favor of its own subjective judgment. On Berkovits’s view, then, these moral principles must be positively incorporated within Jewish law through divine command.

⁶ This account is indebted to the analysis by Broyde (2001). ⁷ See b. Yebamot 110a, b. Bava Batra 48b, b. Gittin 33a, b. Gittin 73a, and b. Ketubot 3a.

286

Yonatan Y. Brafman

15.2.3. The Legitimacy of Halakhic-Legal Authority Because of Berkovits’s teleological and dynamic view of Jewish law, halakhiclegal authority is a central topic of his account. Unsurprisingly, he points to the classic Talmudic story of the Oven of Akhnai and Rabbi Joshua’s declaration, “It [the Torah] is not in heaven” (b. Bava Metzia 59b), as authorizing human reason in determining and applying the commandments as halakhic norms. Scripture itself, according to the Talmud, authorizes human understanding of the divine word. According to Berkovits, though, this story also describes how humanity should exercise this understanding through legal institutions. In addition to rejecting Rabbi Eliezer’s miracles to prove his position, Rabbi Joshua proposes the principle of majority rule to settle disputes. While Berkovits recognizes this as an equitable way to decide between conflicting positions, he limits its applicability to disputes within a sitting rabbinical court. Later courts, or even individual rabbis, may adopt a minority position if they think that it is more reasonable or appropriate to their particular situation. Indeed, overall, Berkovits works to strengthen the authority of present-day rabbinical authorities in relation to those of the past. The Talmudic dictum, ayn le-dayan eleh mah she-‘eynav ro’ot (b. Bava Batra 131a), which he translates as “a judge must be guided only by what his own eyes sees,” is, in his view, “one of the basic principles of halakhic authority” (Berkovits 1983: 54). It entails that, “in all matters in which a [rabbinic authority] makes a decision, he must follow his own understanding” (1983: 54). A contemporary rabbinic authority is only loosely bound by earlier canonical texts and precedents. It is his right to deviate from them when they conflict with his understanding of the proper ruling. Correlative to this right of contemporary rabbinic authorities relative to the halakhic tradition is an obligation of the Jewish people to obey them. The Bible (Deut. 17:8–9) states, “If a case is too baffling for you to decide . . . you shall appear before . . . the magistrate in charge at the time.” The Talmud (b. Gittin 36b) establishes this to mean that, “Once a person has been appointed to be the [authority] for the community, may he be ever so insignificant, he is like the mightiest among the mighty.” In Berkovits’s view this means that “You have only the judge of your own day to turn to” (1983: 75). The Jewish community is obligated to accept the legitimacy of contemporary rabbinic authorities to interpret, determine, and apply the commandments as halakhic norms in the present. This Talmudic interpretation of the Bible merely asserts the legitimacy of rabbinic authority, however. It does not offer a justification for it. Berkovits offers his own that emphasizes the democratic and ethical aspects of such authority as the basis of its legitimacy. Following Maimonides’ interpretation of the biblical command, “Judges and officers thou shalt give unto yourself in your gates” (Deut. 16:18),⁸ Berkovits (1983: 116) argues that this means that ⁸ Maimonides, Sefer ha-Mitzvot, Positive Commandment, #176.

A Normative Account of Rabbinic Authority

287

the Jewish people establish their political and legal rulers. Rabbis, rabbinical courts, and even canonical texts like the Mishnah and the Talmud are legitimate authorities only because they have been accepted by the Jewish people. According to Berkovits, there is thus a strong democratic tendency in Jewish law, for the Jewish people determine their own authorities. However, as Raz (1988: 90–4) has noted, such a consensual approach to legitimacy leaves unanswered the normative question of upon what basis the people should accept a particular authority. In a less well-known work, Towards Historic Judaism, Berkovits (1944: 102–5) offers a suggestion: “Rabbinical authority . . . is not that of an office; it is an authority of a calling, of an ideal . . . It [is] an authority of being, the authority in which an ideal has taken concrete shape.” It seems then that, according to Berkovits, a rabbi deserves to be accepted as an authority when he embodies the moral purpose of the Torah. This is also evident in Crisis and Faith when Berkovits discusses the classical sage Hillel’s enactment of the prosbul, which was a legal device for preventing the cancellation of debts during the sabbatical year to ensure that loans continued to be offered. He writes, “Where did Hillel find the authority for his innovation? . . . He could find the solution . . . within his own understanding of the comprehensive ethos of Judaism as he was able to gather it in his own heart and in his own conscience from the totality of the Torah-teaching and Torah-way of life” (1976: 86–7). Presumably, Hillel’s authority was legitimate because it was accepted by the Jewish people. But the reason that they had for accepting him as an authority lies in his embodying the principles of the Torah and thus being someone who they could trust to interpret the commandments to realize them. Berkovits suggests that the same grounds should be the basis for accepting contemporary rabbinic authority. An attractive feature of Berkovits’s philosophy of halakha is its unity. The creation of a morally perfect society both justifies the commandments and guides their interpretation. Consequently, if the justification of the commandments holds and pesikah is properly guided, the rulings of rabbinic authorities should inherit the justification of the commandments. Halakhic norms should track the justification of the commandments. It is tempting to suppose that since their rulings are therefore justified, rabbinic authorities would be legitimate. However, this account actually renders them superfluous.

15.3. I NCLUSIVE LEGAL P OSITIVISM AND THE INSTABILITY OF L EGAL AUTHORITY Berkovits’s account of pesikah renders rabbinic authority superfluous precisely because the moral purpose that justifies the commandments directly regulates

288

Yonatan Y. Brafman

their interpretation. Rabbis and rabbinical courts therefore simply restate to their subjects what they already have reason to do. And such rabbinic authorities themselves are not effectively guided by the halakhic tradition, since they must engage in their own reasoning to determine whether canonical texts and precedents conform to this moral purpose. This problem is best seen through a debate within legal positivism between inclusive and exclusive legal positivists, which itself must be placed within general questions about authority in legal theory. Scott Shapiro (2002: 383) has identified what he describes as the paradox of authority: “When authorities are wrong, they cannot have the power to obligate others—when they are right, their power to obligate is meaningless. It would seem that the institution of authority is either pernicious or otiose.” It is pernicious because, if authority can obligate even when it is wrong, then it is authoritarian. It is otiose because, if authority can obligate only when it is right, then it superfluous. This insight can be stated in terms of autonomy and rationality, both of which concern the requirement of acting based on reasons. The challenge from autonomy begins with the premise that to act autonomously is to always act on the basis of reasons. Now the directives of authorities can be seen as giving their subjects a reason for action. However, these are an odd type of reason that has been described as content-independent: That the authority has issued the directive, as distinct from the specific content of the directive, is meant to be the subject’s reason for action. The subject is supposed to perform the action because the authority said to do it. The challenge from autonomy denies that such content-independent reasons are reasons at all. The challenge from rationality begins with the premise that to act rationally is to act, not just on the basis of reasons, but on the balance of reasons. Now, again, the authority’s directives may perhaps reflect the balance of reasons. Yet, this still makes acting on the basis of the directive either irrational or impossible. If the directive of the authority does not reflect the balance of reasons, then it is irrational to obey it. And if the directive of the authority does reflect the balance of reasons, then one simply does what one had reason to do anyway. One does not obey the authority, though one action’s may conform to its directive. Raz argues that authorities should be seen as offering reasons that are preemptive as well as content-independent. In addition to serving as reasons for action because of their source as opposed to their content, an authority’s directive is meant to preempt their subjects’ reflection on the balance of reasons. Resolving the paradox of authority thus requires showing how one could autonomously and rationally act on the basis of a content-independent reason and even when it is opposed by the balance of other reasons. Raz argues that acting autonomously and rationally is compatible with obeying an authority, so long as the authority satisfies certain requirements. In fact, he proposes a “service conception of authority,” which is based on two insights: First, authority is a type of normative power, in that its exercise

A Normative Account of Rabbinic Authority

289

changes its subjects’ reasons for action. Second, the normal role of authority is to serve its subjects by enabling them to act on their independently applicable reasons for action. Raz (1988: 38, 46, and 53) explicates these insights through three theses: The Dependence Thesis: “All authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directives.” The Normal Justification Thesis: “The normal way to establish that a person has authority over another person involves showing that the alleged subject is likely to better comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.” The Preemptive Thesis: “The fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.” The Dependence Thesis is a moral thesis about how authorities should use their normative power. It requires that an authority’s directives should reflect the reasons for action that independently apply to their subjects. The Normal Justification Thesis builds on this claim to argue that an authority is legitimate when its subjects are more likely to comply with those reasons by obeying the authority than by relying on their own reasoning. The authority thus provides a service to the subjects by allowing them to better comply with their independently applicable reasons for action. This service makes the authority legitimate. Moreover, these two theses entail the Preemptive Thesis. In order to take advantage of the service provided by an authority, an individual must allow the authority’s directives to preempt his own reasoning. He should assume that the authority has already weighed the balance of reasons for action and so the directive should exclude reasons against the action and replace any substantive reasons in favor of the action. So long as an authority complies with the Dependence Thesis and thus satisfies the Normal Justification Thesis, an individual can thus be autonomous and rational in obeying the content-independent and preemptive reasons for action it provides through its directives. Importantly, this is even the case if an authority occasionally makes mistakes in weighing reasons for action. If the authority satisfies the Normal Justification Thesis and so the individual is generally more likely to comply with his reasons for action by obeying its directives, he may sometimes act against the balance of reasons. Raz’s service conception of authority provides a useful model for thinking about the relations among ta‘amei ha-mitzvot, pesikah, and rabbinic authority;

290

Yonatan Y. Brafman

it also illuminates the strengths and weaknesses of Berkovits’s teleological philosophy of halakha. The service conception of authority explains how the legitimacy of authority can be grounded in independently applicable reasons, but without being reduced to merely restating those reasons. Similarly, the legitimacy of rabbinic authority can be grounded by showing how its directives track the reasons for the commandments, but without thereby being rendered superfluous. Pursuant to the Dependence Thesis, one could argue that the rulings of a rabbinic authority should be based on the reasons for the commandments that independently apply to its subjects. One could further argue, following the Normal Justification Thesis, that a rabbinic authority that generally bases its rulings on such reasons so that its subjects are more likely to comply with them by obeying it than by relying on their own reasoning is legitimate. And then, consistent with the Preemptive Thesis, one could argue that the rulings of a legitimate rabbinic authority would not simply restate its subjects’ independently applicable reasons for action but would preempt their own reasoning. This exercise of normative power is essential to the service provided by rabbinic authority. On this account of the legitimacy of rabbinic authority, like that of Berkovits, ta‘amei ha-mitzvot and pesikah are drawn together. Rabbinic authorities are legitimate when their rulings generally reflect the underlying reasons for the commandments. Berkovits is thus correct that the purposes of the commandments should guide their interpretation, determination, and application. He is also correct that this provides a basis for the legitimacy of rabbinic authority. However, Andrei Marmor (2002: 104–24) has argued that inclusive legal positivism, like that espoused by Berkovits, is incompatible with Raz’s service conception of authority as well as the basic insight of legal positivism. The basic insight of legal positivism is that law should be able to guide the actions of individuals and groups without requiring them to engage in their own substantive practical reasoning. In some sense, law provides an actionguiding heuristic for individuals or groups. Instead of depending on their own attempts at practical reasoning, they rely on the practical reasoning that is embedded in the law. But this heuristic is only provided if individuals and groups actually rely on the law to guide their actions. If they continuously reassess the law on the basis of considerations that the law was already supposed to reflect and to settle, then they do not receive the practical benefits of law.⁹ This insight lies behind Raz’s conception of authority, insofar as legal authority is meant to provide a service to its subjects’ practical reasoning and so its directives should preempt such reasoning. Without the preemption there is no service.

⁹ Shapiro (1998: 469–507) has articulated this objection as the Practical Difference Thesis.

A Normative Account of Rabbinic Authority

291

Inclusive legal positivism undermines the service conception of legal authority because by positively incorporating moral principles into the law it requires its subjects to engage in substantive moral deliberation in order to determine what they ought to do. The directives of the legal authority thus no longer preempt their reasoning and so no service is provided. Now it might seem possible to prevent this problem by restricting inclusive legal positivism to legal actors, like judges in the secular case and rabbis in the Jewish one. Only such legal authorities should determine the law by combining its “black-letter” statements with the moral principles that have been positively incorporated within it. Their subjects, however, should presume that their directives reflect all the reasons that independently apply to them. And so even within inclusive legal positivism, the directives of legitimate authorities should preempt their subjects’ practical reasoning and thus provide a service to them. However, this problem reappears when the question of authority is raised a level. For just as ordinary individuals relate to judges as authorities, so too do judges relate to statutes, precedents, and constitutions as authorities. In the Jewish context, just as ordinary Jews relate to rabbis and rabbinical courts as authorities, rabbis and rabbinical courts relate to the halakhic tradition, including canonical texts like the Mishnah, Talmud, Mishneh Torah, Arba‘ah Turim, and Shulḥan Arukh, as well as precedents expressed in the myriads of responsa, as an authority. But inclusive legal positivism renders such textual authorities superfluous as well. For if the halakhic tradition incorporates moral purposes, then a rabbi or rabbinical court that consults it to determine how they ought to rule is simply directed by it back to their own deliberative resources. Such textual authorities thus no longer preempt their reasoning and provide any service. Indeed, the heuristic action-guiding function of law itself is undermined. This is brought out clearly in Berkovits’s strong interpretation of the Talmudic dictum ayn le-dayan eleh mah she-‘eynav ro’ot (b. Bava Batra 131a), which was discussed above. If a rabbinic authority has only “his own eyes” to rely upon in issuing a ruling, it certainly renders halakha responsive to contemporary issues by freeing him from the bonds of the past; however, this dynamism comes at the price of the benefits to practical reasoning that law is meant to provide. Raz provides a reinterpretation of the features of legal practice that inclusive legal positivism highlights. This reinterpretation aims to capture the fact that legal systems do sometimes refer to moral values and principles as criteria for the determination and application of their laws, while avoiding the problem that would be entailed by such principles and values actually being incorporated into the legal system. Raz (1996: 222–37) argues that such instances should be seen as the assignment by the legal system to judges of legislative powers in certain circumstances. When those circumstances are met, judges are no longer interpreting existing law, but are now enacting new law. In this

292

Yonatan Y. Brafman

legislative activity, they are, however, limited and guided by the moral principles that the legal system has indicated. This reinterpretation is useful for modifying Berkovits’s account of rabbinic authority. For it allows the retention of his basic point that, in the main, halakhic norms should track the justification of the commandments in order for authority, whether of the halakhic tradition or of rabbis and rabbinical courts, to be legitimate. It also shows what service such authority provides to the practical reasoning of its subjects. But in order for this service to be realized, deviations by later rabbis or rabbinic courts from earlier authorities must be understood, not as exercises of interpretation, but as the enactment of legislation. This conclusion may not have bothered Berkovits, however, as it only seems to heighten the independent authority of contemporary rabbinic authorities.

15.4. CONCLUSIO N: M ODERN RELIG IOSITY AND CLASSICAL RABBINIC LITERATURE In an essay entitled “What was Authority?” Hannah Arendt (1958: 81–112) suggests that authentic experiences of authority have vanished from the modern world. In her view, authentic authority is experienced as indisputable. The very fact that modern political theorists, philosophers, and even religious thinkers must reflect on and argue about the legitimacy of authority means that it has already slipped away. The normative account of rabbinic authority offered in this chapter would do little to convince her otherwise. Instead of presenting rabbinic authority as the indefeasible ground of communal Jewish life, I have argued that its legitimacy may be grounded by the service it provides to individual Jews. Nevertheless, offering an account of rabbinic authority that is consistent with modern religiosity seems more generative than evoking a romantic image of a world that has disappeared. If the philosophical expression of modern religiosity is the commitment to act on the basis and balance of reasons even in the realm of religion, then we can see a service conception of rabbinic authority as enhancing the autonomy and rationality of the individual religious practitioner. And the fact that legitimate authority is established even against the background of those commitments, may serve to correct the outsized individualism of modern religiosity. But, in closing, I would like to suggest that this conception of authority may not be limited to modern religiosity but may capture and reconcile tendencies in earlier sources. Avi Sagi (1995: 1–24) has identified two models of authority in classical and medieval rabbinic literature, which he has dubbed the deontic

A Normative Account of Rabbinic Authority

293

and epistemic models. While they are expressed in many different texts, the differences between them are best distilled through the interpretation of a single biblical verse. In the context of a discussion of resolving disputes by appealing to priests or judges, Deuteronomy (17:11) states, “You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left.” The halakhic tradition understands this verse as establishing the authority of rabbinical courts.¹⁰ The Jerusalem Talmud (Horayot 1:1) interprets this verse as follows: “Is it possible that [if the court] tells you about right that it is left, and about left that it is right, that you should obey them? Scripture says, ‘to the right or to the left,’ meaning, they tell you about the right that it is right and about the left that it is left.” In contrast, the Sifrei (Shoftim #154) states, “‘to the right or to the left’—Even if it seems to you that [the court is telling you that] the left is right and that the right is left, obey it.” Sagi identifies these interpretations with different models of authority. The first interpretation, according to which one must obey the rabbinical court only when it is correct, offers an epistemic model. Rabbinical courts are assumed to be particularly good at interpreting, determining, and applying the commandments and the later halakhic tradition. This expertise is what grounds their authority and what limits it. When a rabbinical court is incorrect, it can claim no obedience from its subjects. The second interpretation, according to which one must obey a rabbinical court even when it is incorrect, offers a deontic model. Rabbinical courts have an important role within the Jewish legal system; they establish the proper interpretation, determination, and application of the commandments and the later halakhic tradition. This role is what grounds their authority and, correlatively, imposes a duty on their subjects. They must obey a rabbinical court even when it is incorrect. Sagi traces the development of these models in later rabbinic literature and elucidates their differing implications for relations among members of the Jewish community and even its religious ethos. He also notes attempts to harmonize them: Some proponents of a generally epistemic model have claimed that those individuals with little knowledge should treat rabbinic authority according to the deontic model. Even though the basis for rabbinic authority is expertise, not everyone is well situated to evaluate whether it is exercised correctly. Such individuals should obey the authority, even when it seems mistaken to them. Individuals with greater knowledge, however, may disobey the authority when it seems wrong. Similarly, some proponents of a generally deontic model have claimed that certain mistakes are so egregious that it undermines the authority of a rabbinical court and so no one is obligated to obey its ruling. Less egregious mistakes, however, do not

¹⁰ See, for example, Mishneh Torah, “Laws of Rebels,” 1:1–2 and Sefer ha-Ḥ inukh, #496.

294

Yonatan Y. Brafman

compromise its authority, and so the duty of obedience remains intact (Sagi 1995: 22–4). Sagi does not, however, point out how both models are susceptible to the paradox of authority. The epistemic model makes rabbinic authority otiose, whereas the deontic model makes it authoritarian. A service conception of authority resolves this paradox by fusing the epistemic and deontic models. Like the epistemic model, it bases rabbinic authority on expertise and so explains why it is not authoritarian. Like the deontic model, it provides rabbinic authority with normative power and so explains why it is not superfluous. Tellingly, the service conception also accounts for both attempts at harmonization. When the legitimacy of an authority is established according to the service conception of authority, it should distinguish between different subjects and between different errors. Rabbinic authority may not provide the same service to all its putative subjects. While those with little knowledge may benefit greatly from obeying it, those with much knowledge might do better by relying on their own reasoning. And not all errors are the same. Frequent and evident mistakes would undermine the legitimacy of a rabbinic authority by calling into question whether it is actually providing a service to its subjects, but occasional and less evident mistakes would not. While not dispositive, these reflections suggest that, in addition to being consistent with modern religiosity, a service conception of authority may capture and reconcile tendencies in the classical rabbinic tradition. Like Berkovits’s teleological philosophy of halakha, it represents an authentic way of expressing the idea that rabbinic authority ought to help the Jewish people to achieve the divine purposes of the Torah.

BIBLIOGRAPHY Arendt, H. (1958) “What Was Authority?” In: C. J. Friedrich, ed., Authority. Cambridge, MA: Harvard University Press, pp. 81–112. Berger, M. (1998) Rabbinic Authority: The Authority of the Talmudic Sages. Oxford and New York: Oxford University Press. Berkovits, E. (1944) Towards Historic Judaism. Oxford: East and West Library. Berkovits, E. (1966) Tenai be-Nisuʼin u-ve-Get: Berurei Halakha. Jerusalem: Mosad ha-Rav Kook. Berkovits, E. (1976) Crisis and Faith. New York: Sanhedrin Press. Berkovits, E. (1981) Ha-Halakha: Koha ve-Tafkedah. Jerusalem: Mosad ha-Rav Kook. Berkovits, E. (1983) Not in Heaven: The Nature and Function of Halakha. New York: Ktav. Berkovits, E. (2004) God, Man, and History. Jerusalem: Shalem Press.

A Normative Account of Rabbinic Authority

295

Broyde, M. J. (2001) Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America. Hoboken: Ktav. Coleman, J. and Leiter, B. (1996) “Legal Positivism.” In: D. Paterson, ed., A Companion to Philosophy of Law and Legal Theory. Oxford and Malden Blackwell, pp. 241–60. Darwall, S. (1997) “Reasons, Motives, and the Demands of Morality: An Introduction.” In: S. Darwall, A. Gibbard, and P. Railton, eds., Moral Discourse and Practice: Some Philosophical Approaches. New York and Oxford: Oxford University Press, pp. 305–12. Dworkin, R. (2004) “The Model of Rules.” In: J. Coleman and H. G. Feinberg, eds., Philosophy of Law. Belmont: Wadsworth/Thomson, pp. 82–100. Eisen, A. (1998) Rethinking Modern Judaism: Ritual, Commandment, Community. Chicago: University of Chicago Press. Hart, H. L. A. (1994) The Concept of Law. Oxford and New York: Oxford University Press. Heinemann, I. (1956) Ta‘amei ha-Mitzvot be-Sifrut Yisrael (Vols. 1–2). Jerusalem: ha-Histadrut ha-Tziyyonit. Himma, K. E. (2004) “Inclusive Legal Positivism.” In: J. Coleman and S. Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford and New York: Oxford University Press, pp. 125–65. Hume, D. (1969) A Treatise on Human Nature. London and New York: Penguin. Marmor, A. (2004) “Exclusive Legal Positivism.” In: J. Coleman and S. Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford and New York: Oxford University Press, pp. 104–24. Novak, D. (1998) Natural Law in Judaism. Cambridge and New York: Cambridge University Press. Raz, J. (1988) The Morality of Freedom. Oxford and New York: Oxford University Press. Raz, J. (1996) Ethics in the Public Domain: Essays in the Morality of Law and Politics. Oxford: Clarendon Press. Rynhold, D. (2005) Two Models of Jewish Philosophy: Justifying One’s Practices. Oxford and New York: Oxford University Press. Sagi, A. (1995) “Models of Authority and the Duty of Obedience in Halakhic Literature.” AJS Review 20(1): 1–24. Shapiro, S. (1998) “On Hart’s Way Out.” Legal Theory 4(4): 469–507. Shapiro, S. (2002) “Authority.” In: J. Coleman and S. Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford and New York: Oxford University Press, pp. 382–439. Shatz, D. (2012) (unpublished). “Berkovits and the Priority of the Ethical.” Waluchow, W. J. (1994) Inclusive Legal Positivism. Oxford: Clarendon Press.

16 A Classical Jewish Approach to “The Normative Question” Melis Erdur

16.1. THE NORMATIV E QUESTION We don’t think about the nature of morality every day.¹ When we do reflect on moral matters, we usually inquire about the right thing to do under certain circumstances, and why it is the right thing to do under those circumstances: “Is supporting this war morally right—and, if it is, why?” “Is this sort of discrimination morally impermissible—and, if it is, why?” “Am I morally obligated to tell him the truth—and, if I am, why am I?” However, occasionally, when what morality seems to require of us is especially difficult or costly, we may raise a more fundamental question regarding the very authority or significance of moral obligations. We may ask, in other words, why we should care about the demands of morality at all. The moral philosopher Christine Korsgaard describes the likely scenario in which this question—which she calls “the normative question”—would arise as follows: . . . the day will come, for most of us, when what morality commands, obliges, or recommends is hard: that we share decisions with people whose intelligence or integrity don’t inspire our confidence; that we assume grave responsibilities to which we feel inadequate; that we sacrifice our lives, or voluntarily relinquish what makes them sweet. And then the question—why?—will press, and rightly so. Why should I be moral? (Korsgaard 1996: 9)

The conventionally philosophical way to address such a question would be by way of offering a philosophical argument, which starts from allegedly plausible premises, and draws the conclusion from them that we are, after all, justified ¹ This work was supported by the John Templeton Foundation and the Herzl Institute. I am grateful to Yoram Hazony, Shai Lavi, Sam Lebens, Howard Wettstein, and the anonymous referees at Oxford University Press for comments on earlier drafts. Erdur Melis, A Classical Jewish Approach to “The Normative Question”. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0016

A Jewish Approach to “The Normative Question”

297

in continuing to care about moral obligations—that such obligations are genuinely binding for us. That is, in fact, what all the major meta-ethical theories do, if they are in the business of “grounding” or “vindicating” the authority of moral obligations at all.² For instance, moral realists have been offering versions of the following argument: (1) There is a moral realm that exists independently of what anyone thinks, and determines the objective facts pertaining to what we are morally obligated to do; and (2) If there are objective facts about a matter, then we must acknowledge them and live accordingly; therefore, (3) We really must acknowledge and act in accordance with what we are morally obligated to do.³ By contrast, moral anti-realists have offered versions of the following argument: (1) We, as humans and human societies, already make certain basic value judgments (say, concerning the badness of pain, betrayal, deception, animal cruelty, and the goodness of friendship); and (2) If we already value (or disvalue) certain things, then we must act in a way that promotes what we value, and prevents what we disvalue, and this amounts to acting in accordance with our moral obligations; therefore, (3) We really must act in accordance with our moral obligations. Finally, Kantian ethical rationalists have basically argued that: (1) As rational beings, we are already bound by the demands of rationality, and (2) Moral obligations follow from the demands of rationality; therefore, (3) We are genuinely bound by the demands of morality. In short, the conventionally philosophical way to answer “the normative question,” namely, “Must I really do this? Why must I do it?” has been by way of a philosophical argument that starts from universally compelling premises, and draws from them the conclusion that we are, after all, really bound by the requirements of morality. Each of these major philosophical approaches, however, has proved to be deeply problematic. Kantian arguments purporting to derive moral obligations from the requirements of reason (as their premise (2) claims to do) hardly ever succeed: either we put too little in the requirements of reason and are unable to get the requirements of morality out of them, or we put too much in the requirements of reason and are unable to show that we are already bound by them merely in virtue of our rationality. Moral realism has always relied on a key but highly controversial premise, namely, the existence of an independent existing “moral realm” underlying moral truths, to which we can

² In this respect, Aristotelian ethical theories may be considered different because they do not focus on moral obligations (or explaining their alleged authority) at all, but rather on ethical virtues and the general guidelines for being good and living a good life. ³ This doesn’t necessarily mean that we must always do what morality tells us to do, but rather that, whether or not moral obligations end up being trumped by other (non-moral) considerations, we are always obligated to take the moral obligations into account. They always have authority over us.

298

Melis Erdur

have access.⁴ And, as its critics often point out, moral anti-realism seems to mistakenly conflate what we happen to value with what we really ought to value. Perhaps there can be significant improvements within these conventionally philosophical paths. However, in this chapter, I would like to explore a fundamentally different approach to the “normative question” that we formulated at the beginning. It will be based on a peculiar, and, I believe, philosophically fruitful aspect of the Jewish tradition. So, I would first like to pose a parallel “normative question,” as it would arise in a Jewish context, and seek the appropriate classical Jewish response to it. Then, based on that classical Jewish approach, I will offer a way of responding to the normative question as it is asked in contemporary moral philosophy.

16. 2. T H E JE W I S H ( N OR M A TI V E ) QU E ST IO N Just like morality, Judaism revolves around questions of what to do under what circumstances. Sometimes the question concerns a recognizably universal moral issue, such as the permissibility of killing someone or the duty to give to the poor, and other times it concerns a more esoteric aspect of Jewish living, such as the permissibility of eating a certain food, wearing a certain sweater, or riding a bicycle at a certain time. In most cases, such questions are satisfactorily answered (for the time being, at least) once a good case is made to the effect that the Jewish canonical texts, as interpreted by the tradition, require or permit a Jew to do or refrain from doing something. However, as in the case of morality, there may be times at which one is tempted to raise a more fundamental question about the authority or the significance of the whole practice of Judaism. The rules concerning daily Jewish life are many, and it takes years of training and constant mental, physical, and financial effort to properly observe them. There are, moreover, the well-known risks of being alive in public as a Jew. So, it is not difficult to imagine a Jew asking himself at some point, why he should continue leading a Jewish life—why, in the end, bother with all this?⁵ Why not just put a little parmesan on spaghetti Bolognese? Why pass on the delicious grilled octopus? And why leave your birth place, your language, everything that is familiar to you, so that you can continue worrying about grilled octopi? Really. Why? Is there a traditionally Jewish way to respond to a question like that?

⁴ For a different, substantive moral objection to moral realism, see Erdur 2016. ⁵ For the sake of brevity, I stick to the grammatical rule of using “he,” “his,” “him,” etc. generically to refer to both men and women, wherever gender is irrelevant.

A Jewish Approach to “The Normative Question”

299

1 6 . 3 . T H E CLAS S I C A L L Y J E W I S H A N S W E R ( A C C O R D I N G TO SO M E ) It has been noted time and again that classical Judaism lacks a systematic theology.⁶ To be sure, there are certain key ideas, such as the existence of a just, merciful, and powerful God, his creation of the universe and human beings in a certain manner, and the covenant between him and the Jewish people, without which Judaism would be unintelligible. However, overwhelmingly, these ideas involve imprecise and fluid concepts, and do not belong to a clearly defined hierarchy, or a system. What we do not find in classical Judaism, namely the Bible and the rabbinic texts, are conventionally philosophical accounts that are built on a few precise foundational principles, from which everything else is purported to follow. That means, first and foremost for our purposes, that the classical Jewish answer to “the normative question,” if there is one at all, will not consist in the familiar sort of philosophical argument that starts from (allegedly) universally plausible and sufficiently precise premises, and draws from them a universally compelling conclusion such as that “therefore, every Jew is genuinely bound by the commandments / by the normative framework of the Torah.” A number of contemporary Jewish thinkers explain such lack of systematic theology in classical Judaism by appeal to Judaism’s emphasis on right behavior and practice, rather than on right thought.⁷ However, even if it is true that Judaism focuses more on correct action than correct thinking,⁸ that would not really account for the lack of a precise, systematic philosophical “ground” in traditional Judaism. For, presumably, morality too is primarily interested in right actions rather than right thoughts or beliefs, and yet time after time we see philosophers proposing “grounds” for morality in terms of precise and systematic propositions. A systematic set of propositions may be regarded necessary not just to clarify and order obligatory beliefs (if there are obligatory beliefs at all in the framework), but also to justify obligatory actions—that is, to

⁶ By classical Judaism, I mean the Bible, Talmud, and midrash. ⁷ Menachem Kellner, for instance, claims that, at least until the Middle Ages, when prominent Jewish thinkers were strongly influenced by the (Greek) philosophies of their Muslim neighbors, Judaism lacked a system of foundational beliefs. Kellner explains this lack of systematic precise philosophy by appeal to the tradition’s emphasis on “behavior over . . . words, actions over declarations” (1999: 13 n.). Similarly, Howard Wettstein claims that classical Judaism lacks a systematic theology and, instead, operates with a multitude of “discordant” and “impressionistic” ideas (2012: 101). Like Kellner, Wettstein points to Judaism’s emphasis on right action, rather than right thought, to explain this. He says that the rabbis “see themselves as articulating a way of life” (2012: 115), “developing a manual, a set of instructions for a life of holiness” rather than “a theoretical treatment of holiness” or a “science of the subject” (2012: 96). According to Wettstein, the rabbis “were engineers, as it were, not physicists” (2012: 96). ⁸ And there are contemporary Jewish thinkers who argue against this common presumption about Judaism’s focus on behavior. See, for example, Shapiro 2004: 29–30.

300

Melis Erdur

explain why they are obligatory. In other words, mere focus on correct action, rather than correct thought or belief, cannot be the whole story in explaining the lack of a precise, systematic philosophical foundation. I think that, unless we are willing to entertain the possibility that the prophets and the rabbis were incapable of providing good philosophical arguments, the lack of the familiar kind of philosophical accounts and arguments in classical Judaism indicates that the intellectual/reflective side of Judaism never really aims at offering universally compelling evidence or justification for its claims. That is to say, when the tradition ascribes a specific obligation to a Jew under certain circumstances, it does not aim at justifying that ascription in a way that any reasonable human being could appreciate. The whole point of offering the typical philosophical argument, based on universally plausible premises and drawing logical conclusions from them, is to show the truth of something—it could be a very local truth concerning a very specific circumstance—in a way that would in principle be apparent to any rational human being. The lack of this sort of effort in classical Judaism shows that the founders of the religion were not trying to demonstrate the truth of their claims to anyone with a rational mind. In other words, they did not really have the aim of “converting” people to their framework. That is, in fact, precisely what Martin Buber claimed to be distinctive of Judaism. In his Two Types of Faith: A Study of the Interpenetration of Judaism and Christianity, Buber distinguishes between two types of “faith”—one typically Israelite, the other typically early Christian. The first kind, according to him, is a matter of trust, whereas the second is a matter of acknowledging something to be true. He articulates the distinction as follows: “You find yourself ” in the first (typically Jewish) kind of “faith,” whereas “you are converted to” the second kind (2003: 9). Having “faith” in the first (typically Jewish) sense is a matter of “persisting-in,” “acting in God’s tempo” and a “state of persevering” (pp. 10, 22). By contrast, “faith” in the second (typically Christian) sense is a matter of “facing-about” (p. 10)—where a demand or instruction comes from the outside, and one has to make “a leap” (p. 10). I think this provides us with the core of a more comprehensive explanation of why traditional Judaism does not seem to be interested in providing a universally compelling philosophical “ground” or justification for its claims. If the goal is to “convert” people to a set of beliefs, that is to say, to start from zero and show to any reasonable person why the conclusion is true or justified, then one would need arguments with universally plausible premises that entailed the desired conclusion. One would, in other words, need a conventional philosophical argument. On the other hand, if the primary goal is to help the participants of a practice persevere in the practice, or to restore their good “tempo” when they lose it, then categorical and universal arguments, which are supposed to categorically work on any rational person, whether or not he has any kind of prior commitment to, or investment in, the practice, are

A Jewish Approach to “The Normative Question”

301

both unnecessary and inappropriate. People who are already committed to a practice do not need to be “converted” to it by way of being shown how any reasonable person would see the point or validity of their practice. The participants who are in a crisis of faith do not really start from zero—they are in crisis because they are partial to what they have been participants of. Moreover, the way one person gets alienated from a practice that he has been committed to, or loses his “tempo” in that way of life, will be very different from another person’s. Even for the same person, the source of the alienation or loss of tempo at one point in his life may be very different from the same problem at a different time. That is why figuring out how to persevere in a practice is fundamentally distinct from the theoretical task of demonstrating the universal truth or validity of certain claims in a way that any reasonable human being could appreciate—the former is really a technical problem.⁹ In the light of this, how can we characterize the (or a prominent) classical Jewish response to the (Jewish) normative question? Suppose that a Jew, who has been committed to the normative framework of classical Judaism, is faced with an especially challenging obligation, or after doing all that he is supposed to do, and receiving nothing but headaches and heavier burdens as a result of it, asks himself whether the whole thing is really worth it—whether he really must do what is required of him according to the normative framework of Judaism. Once again, it is crucial to keep in mind that the normative question is not a question asked by a disinterested but intellectually open outsider. It is asked by someone with prior commitment to the practice or the normative framework, and therefore is already feeling the force of the obligation or the sacrifice that he is expected to fulfill. The problem, therefore, is how to help him persevere in, and refresh his commitment to, his practice. Accordingly, anything that would genuinely refresh his commitment, energize him as a participant, and feel the force of his practice anew, would constitute a successful answer to the normative question.

⁹ Yoram Hazony’s account of a biblical notion of truth may be regarded as complementary to what I have just said. Hazony notes that the Hebrew word for truth, emet, comes from the root aleph–mem–nun, and argues that it “is employed time and again to refer to things and persons that are reliable, steadfast, and faithful. They refer to the quality of an object or person—a tentpeg or a king, a city or a wife or a pair of hands—that can be relied upon to hold firm under conditions of stress” (Hazony 2012: 198). In other words, biblical truth is not a matter of correspondence to a reality that is awaiting discovery. That something is true does not mean that it has a special kind of metaphysical quality, but rather that it can be relied upon to hold firm under conditions of stress. If that is the case, arguably, there can hardly ever be a theoretical problem in classical Judaism, as we would understand it today. If truth is a matter of holding firm under conditions of stress, “demonstrating” the truth of something (such as a practice, a normative framework) will not be a global, once and for all theoretical problem of proving that it has some metaphysical quality (truth), but rather, always a local technical problem of making sure that it holds firm under the specific conditions of stress in question.

302

Melis Erdur

That task, difficult as it is, could be achieved in countless ways. What would work could be an especially effective and relevant story, a teaching, or an intense experience in the community. But let me offer here what I believe is a great example of God Himself answering the normative question asked by Abraham. By the fifteenth chapter of Genesis, Abraham had been promised by God that he would have offspring that would become a nation, and that they would be given a land, but years pass by and he doesn’t have any children. So, when in that chapter God tells Abraham again that all will be good and his reward will be great, Abraham expresses doubt and frustration by saying that he doesn’t have any children yet, so it looks like his servant will inherit what he has. To my ears this sounds exactly like an expression of the normative question. Abraham has been committed to the normative framework that God provided him with, and in accordance with the plan, Abraham is expected to make great sacrifices. But in a moment of (understandable) alienation from the framework, he basically asks, “Must I really keep making these sacrifices? Why?” What is interesting is that God does not offer him an obvious argument, something like: “I created the universe, including you, and I know better than you. Therefore, you must do as I say.” Instead, He does the following: The word of the Lord came to him in reply, “That one shall not be your heir; none but your very own issue shall be your heir.” He took him outside and said, “Look toward heaven and count the stars, if you are able to count them.” And He added, “So shall your offspring be.” (Genesis 15:4–5¹⁰)

And the Torah adds, “And because he put his trust in the Lord, He reckoned it to his merit.” But what did God really say to Abraham that made him recover his trust in God again? What is God’s argument here? What is new? God had already promised him many descendants, and here he simply repeats the promise. If one has doubts about the realization of a promise already, how does it help exactly if the promise is merely repeated? If Abraham is wondering about the point of going along with God’s plans and promises, how can hearing the same thing once more reassure him? But, to be fair, God does not just repeat the promise. He does not simply say “I told you that you would have offspring, and they would have a land, didn’t I?” Rather, He adopts a sympathetic tone, and says “that one” will not be your heir. One can almost hear the hint of His outrage or offense at the very thought of Abraham’s servant being his heir. God is on Abraham’s side—He understands and empathizes with Abraham’s predicament. But that is not all. God then takes him outside and shows him the stars. He says, “Look at the stars and count them, if you can—that is how your offspring will be.” True,

¹⁰ Translations of biblical verses are taken from the JPS Hebrew–English Tanakh (1999).

A Jewish Approach to “The Normative Question”

303

this is not a logical argument that could make any rational human being appreciate why Abraham really must keep walking with God. But Abraham is not any rational human being. He has a history with God. And, somehow, the reformulation of the promise in that particular manner, and the almost romantic gesture of God taking him outside and showing him the stars, works for Abraham. Abraham renews his trust in God and recommits to His normative framework. The way Moses responds to God’s frustration after the Golden Calf incident may be regarded as another successful answer to the normative question, this time asked by God. In Exodus 32, God says to Moses that because of what the Israelites did, He is ready to destroy them and make another nation from Moses. He was committed to the normative framework, according to which He would take them out of Egypt and help them arrive in the land that He has promised them. But, now He is questioning whether He should care about that at all. In a sense, God is asking the normative question, “Must I really do this? Why?” And Moses answers Him by saying: Let not Your anger, O Lord, blaze forth against Your people, whom You delivered from the land of Egypt with great power and with a mighty hand. Let not the Egyptians say, “It was with evil intent that He delivered them, only to kill them off in the mountains and annihilate them from the face of the earth.” Turn from Your blazing anger, and renounce the plan to punish Your people. Remember Your servants, Abraham, Isaac, and Israel, how You swore to them by Your Self and said to them: I will make your offspring as numerous as the stars of heaven, and I will give to your offspring this whole land of which I spoke, to possess forever. (Exodus 32:11–13)

And the Torah says, “And the Lord renounced the punishment He had planned to bring upon His people.” As we see above, when God expresses His readiness to give up on the Israelites, and, in effect, abandon the normative framework that He has been committed to since the days of Abraham, Moses responds by (1) emphasizing that the Israelites are His people, whom He delivered from Egypt, (2) making God imagine “what the Egyptians would say,” if He destroyed the Israelites, and (3) reminding Him of the promises He has made to the fathers of the Israelites (and perhaps the better times and relationships that He had with them). I don’t think that these amount to a philosophical argument purporting to establish that God really must abide by the original normative framework—in such a way that any rational being could appreciate that God, under those circumstances, must really remain committed to the original plan. But, once again, here the goal is not demonstrating the universal truth of the judgment “that God must not destroy the Israelites,” but, rather, helping God persevere in the normative framework that He is already committed to, and restore, so to speak, His “tempo.”

304

Melis Erdur

In the above cases, the answers may be regarded successful in that they help the person (or God), who is asking the normative question, “Must I really do this? Why?” end up thinking that he really must do it. But what about the “Why?” part? In God’s response to Abraham, or Moses’ response to God, is there an answer as to why they must act in accordance with the existing normative framework, as well as that they must really do it? I think what is crucial is to note that neither Abraham nor (obviously) God is coerced to act in accordance with the existing normative framework. That means that they find something appealing and effective in what God and Moses, respectively, say and do. However, as I have said, since the reflective side of classical Judaism does not seem to ever aim at providing global, universally compelling arguments for its claims, we do not have anything in God’s or Moses’ response that makes it obvious to all reasonable human beings of all times and places that Abraham or God in that context should recommit to the framework. That doesn’t mean that no one other than Abraham or God can ever appreciate why, in that context, they had to recommit to the original framework. If we could sufficiently identify with Abraham or God in that context (to the extent that it is possible), then presumably we could also somewhat appreciate why they found the responses appealing. These are just two examples of how a successful (classical Jewish) answer to the normative question would look like in a Jewish context.¹¹ There is no general formula, sweeping, globally, and eternally compelling argument or evidence that would always constitute a successful answer to the normative question. And, in many cases, we may not even understand what exactly in a successful answer made it successful in that context. Perhaps the only way to get a better sense of what would be a successful answer, and what wouldn’t, is to see and study as many successful answers as possible. Now let’s turn back to morality, and ask how what we have seen in the context of classical Judaism may be applied to morality in general.

¹¹ For an apparently unsuccessful response to a clear normative question, see the case of Elisha ben Abuyah (i.e. “Aher”) in Babylonian Talmud Hagiga 15, and Jerusalem Talmud Hagiga 77. Elisha ben Abuyah loses faith in the Jewish practice in which he has been participating (for a variety of possible reasons, according to the tradition), and begins violating certain Jewish rules and visiting schools of Jewish study to ask the students what is the point of what they are doing. On the other hand, he still does get involved in discussions and teaching of Torah (with his devoted student R. Meir), and does things, such as counting the steps that he took with R. Meir on Shabbat, that suggest that he still has some sort of commitment to the normative framework of the Torah (if he had thought that it didn’t matter at all, he wouldn’t have been telling R. Meir to turn back after walking a number of steps). In any event, it is highly instructive how R. Meir responds (although, seemingly unsuccessfully) to Elisha’s underlying question, “Why bother with all this?”

A Jewish Approach to “The Normative Question”

305

16.4. ANSWERING THE NORMATIVE Q UESTION (AS I NSPIRED BY CLASSICAL JUDAISM) Suppose that a moral agent is faced with a difficult obligation. Suppose he is made aware of the horrible circumstances that some people are living in just a bit further away from where he is enjoying a nice and comfortable life. Now that he is aware of those circumstances, say, he feels bound by morality to give up some of the nice things he has, and go help them, perhaps risking his own life. Or suppose that he sees someone being scolded and vilified by a mass of people because of what he said, and that our moral agent actually thinks that the vilified person is right and, at the very least should not be treated as he is being treated. So, suppose that our moral agent now cannot help thinking that he is morally obligated to interfere and publicly side with the scolded person— virtually making sure that he will soon find himself in the exact same situation of vilification. And he asks, “Must I really do this? Why?” If we want to answer such a question using the classical Jewish model, we should not try to come up with a sweeping, universally compelling argument that would once and for all, and for all reasonable human beings, show the real force of moral obligations in general. Rather, we should try to come up with a response that would somehow help the agent reconnect to morality and re-appreciate the authority of the moral framework. Let’s not forget that the agent in question has been committed to morality until he has been confronted with a difficult situation. He is not someone who has been indifferent to morality, and just wants to be told what is so good about it.¹² What could we say in defense of the difficult moral obligations that the agent is confronted with? Really, must he take all the trouble, give up his nice and comfortable life, take risks, and go and do something to improve the horrible lives of the strangers that are living a little further away? Why? Or, must he speak out in defense of the wrongly vilified guy who just said something unpopular? Why bother? Here there are endless possibilities. To the agent who is asking whether he really must do something about the horrible circumstances in which the strangers are living, we can offer more information about those circumstances, or an excellent novel about people living in miserable conditions. Or, perhaps ¹² This discussion is irrelevant to those people, if they exist, who are genuinely indifferent to morality. The consolation is that no allegedly universally compelling philosophical argument can really convince anyone like that, either. One good philosophical reason as to why no argument can convince people to start caring about morality is provided by David Hume, in his A Treatise of Human Nature 3.1.1. He noted that it is simply impossible to derive value judgments without presupposing some other value judgments. So, in order to have any sort of justification for a moral conclusion, we must start with some moral assumptions. In short, there cannot be any effective arguments that can show the point or force of morality to those who are genuinely indifferent to it.

306

Melis Erdur

we could have someone that he respects and trusts tell him that he really must do something about the situation. To the agent who is asking whether he really must publicly stand with the guy wrongly vilified and abused by the crowd, we can ask how he would feel if he were in the vilified guy’s shoes, or whether he is sure that he won’t be next. The point is that there is no single one way to successfully address the normative question—the question of whether we should care about morality at all, and why—but that any sort of response that helps the agent to genuinely recommit to morality, appreciate the force of moral obligations, and re-energize as a moral agent, is a successful answer to the normative question. That is because, if we are using the classical Jewish approach as a model, the normative question is to be viewed not as a theoretical matter of demonstrating the universal and eternal truth or validity of morality’s demands, but rather as a technical matter of helping moral agents persevere— helping them re-find their right “tempo” as moral agents. If we are using the classical Jewish approach as a model for meta-ethics, the main goal is not to “convert” any reasonable human being to morality, but rather, help the ones who have already found themselves in morality persist in morality.

BIBLIOGRAPHY Buber, M. (2003) Two Types of Faith: A Study of the Interpenetration of Judaism and Christianity. New York: Syracuse University Press. Erdur, M. (2016) “A Moral Argument against Moral Realism.” Ethical Theory and Moral Practice 19(3): 591–602. Hazony, Y. (2012) The Philosophy of Hebrew Scripture. Cambridge: Cambridge University Press. Kellner, M. (1999) Must a Jew Believe Anything? London: The Littman Library of Jewish Civilization. Korsgaard, C. (1996) The Sources of Normativity. Cambridge: Cambridge University Press. Shapiro, M. (2004) The Limits of Orthodox Theology. London: The Littman Library of Jewish Civilization. Wettstein, H. (2012) The Significance of Religious Experience. Oxford: Oxford University Press.

17 The Good, the Bad, and the Nonidentity Problem Saul Smilansky

What is a Jewish holiday? “They tried to kill us, we survived . . . let’s eat!”

Anyone coming to reflect on Jewish history should surely be in awe of his or her task. This history is so long, rich, complex, meaningful, and often tragic. Reflection on Jewish history of course has a long history of its own. Fortunately, my task here is much more limited: I wish to reflect on Jewish history, but only within the bounds of the implications of the philosophical “Nonidentity” problem or effect (henceforth NIP). This concerns, roughly, the ways in which good and bad events and deeds not only affect people who already exist, but also determine who will exist. The problem has striking and disturbing implications for our attitudes towards the past, primarily since history precedes and determines existence. Our existence, for example, depends upon terrible occurrences that preceded us throughout history. Attitudes towards good and bad states of affairs, and sometimes even good and bad people, become complex and often perverse.¹ To focus on the joke with which my essay began, we will soon see that the NIP challenges almost every word in it: who the “us” and “we” refer to, the proper attitude to those who tried to kill us, and the nature of the commemoration and celebration, i.e., Jewish memory, self-interpretation, and culture. Initially we do not need to determine the nature of being Jewish and can make use of common-sense understandings of the Jewish people and its history, although later we shall see that our topic certainly does raise questions about identity. Our topic can also lend itself to theological concerns, but I will remain here within the bounds of the natural. And since our sweep is so broad, it seems to me that little depends on where one stands concerning various

¹ Some of the issues here come up even without the NIP, but our focus will be on the NIP. Saul Smilansky, The Good, the Bad, and the Nonidentity Problem. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0017

308

Saul Smilansky

questions about what actually happened in Jewish history; the nature of this or that controversy should not affect the general questions and tentative replies. I shall occasionally be speaking in the voice of a Jew, but this is only a matter of rhetorical convenience and is not of course intended to exclude non-Jews from the philosophical discussion. The discussion of the Jewish experience is also a way to explore the pertinence of the NIP for everyone.² Finally, we will be assuming that a typical human life, such as that of the reader, is worth living, and that the existence of the Jewish people is overall a good thing.

1 7 . 1 . T H E NO N I D E NTI TY P RO B LE M AND THE QUESTION OF MORAL P REFERENCE Our focus is on the implications of the nonidentity problem. The philosophical and ethical importance of the chanciness of a person’s coming into existence has been recognized for some time (the philosophical classic here is Parfit 1984). Minor changes would have been sufficient to prevent your parents from having met. Even if they had met and had had a child, this would have resulted in their having had a child at a different time—a child that would not have been you. Biologically it suffices for your not to have been born that your parents would have gone to see a movie that they didn’t actually go to, on the night that they conceived you, or indeed opened a window that had been left shut. The breakage in the causal chain leading to one’s birth could, of course, have occurred much earlier: a minor distraction preventing or delaying the meeting and copulation of either pair of one’s grandparents, or one’s greatgrandparents, or one’s great-great-grandparents, or any other previous ancestors, would have been sufficient to preclude one’s existence. The implications of this fragility have been extensively discussed in contemporary philosophy as they concern future generations (e.g., Sikora and Barry 1978; Ryberg and Tannsjo 2004; Roberts and Wasserman 2009). However, the implications concerning the past have been largely neglected, and the attitudes that we ought to take in this context towards our existence in the light of the evils of history hardly seem to have been discussed.³ ² Previous papers of mine considering the historical significance of the NIP outside of the Jewish context will be discussed below. For my views on the NIP outside of the historical context, see Smilansky 2017. ³ As Robert Merrihew Adams notes, the significance of the chanciness of individual existence was already recognized by Leibniz (Adams 2009: 2). Yet curiously, the importance of this topic for our view of the past has hardly received any attention, outside of the theological context. The only exception is the specific issue of reparations for past wrongs (e.g. Sher 1981). A few of the essays in Tabensky 2009 begin to correct this neglect; see primarily Adams, and the reply by Metz

The Good, the Bad, and the Nonidentity Problem

309

I have recently argued (Smilansky 2013a) that a deeply paradoxical situation arises from viewing the past through the lenses of the nonidentity problem. We can morally compare possible alternative states of affairs, judging that various actual historical occurrences were bad, overall—the Holocaust, World War I, and slavery, for example. We should prefer that such events had not occurred, and regret that they had occurred. But the vast majority of people who now exist would not have existed were it not for those historical events. A “package deal” is involved here: those events, together with oneself; or, the absence of the historical calamity, and the absence of oneself. So, all considered, ought one to prefer to have never existed, and to regret that one does exist (not in itself, of course, but as part of the conjunction)? Given that we regret the tragedy, does this commit us to preferring, overall, a history where it does not occur, even at the price of our not being born? I argued, first, that we confront a paradoxical antinomy which, given the nature of the two sides, presents us with a moral monstrosity: in the allconsidered, realistic-preference sense of regret under discussion, either we regret and must regret that we and our loved ones exist (and also that nearly everyone who ever lived existed); or we do not regret (and are indeed arguably forbidden to regret) most of the calamities of history, such as slavery and the Holocaust. Second, I argued that with at least some major calamities we ought to prefer the first horn of the dilemma: there seems to be a strong case for saying that morally one must wish and prefer that certain historical events had not occurred, even though that would have meant that one would never have existed. One ought to regret, all things considered, that the aggregate state of affairs that includes one’s existence (as well as that of one’s loved ones) is the one that materialized. The claim that perhaps one ought to prefer not to have existed and, in a sense, to be sorry that one does exist, is not a priori. The argument depends on historical contingencies and, in this way, it is in part empirical. There is no logical contradiction in my existing within a historical scenario that excludes the Holocaust, World War I, slavery, and other historical calamities (surely a god could have created me irrespective of the activities or even the existence of my ancestors). And even empirically, there might be individuals alive today to whom the argument does not apply, such as members of some isolated, undiscovered tribe. But in accordance with the way in which the world works, it was not realistically possible for us to exist without the large set of historical (or natural) tragedies that preceded us. Without those tragedies, our

(2009), who both focus on love. See also the specific challenge as to whether we can honestly apologize for the crimes of our ancestors, crimes on which our existence may depend, in Thompson 2000, and a reply by Levy (2002), who claims that the air of paradox follows only from a confusion of temporal perspectives. More recently, R. J. Wallace (2013) considers some related issues, and Guy Kahane (2017) considers our topic in its general form.

310

Saul Smilansky

parents/grandparents/great-grandparents etc. would not have procreated when they did, and hence we would not have existed. The causal conditions realistically required for our existence would have been prevented: the actual chain of events that brought us into existence would have been precluded, and an alternative path was not available in fact. Being sorry can take different forms, and we will not attempt to consider all of them, or the exact relationship between sorrow, preferences, and regret. But some preliminary work needs to be done. First we must distinguish between being sorry for and being sorry that (see Smilansky 2007a: 60). One can be happy that one triumphed over one’s opponent in, say, some sporting event, as well as that the match occurred, and yet at the same time be sorry for the opponent who lost. We will be focusing here on the idea of being sorry that, namely, on regret about states of affairs. Of course we ought to be sorry for the innocent victims of a war, but ought we also to prefer that the war had not occurred, and regret that it did, given that, had it not occurred, we almost certainly would not have existed? In the sense that lies at the basis of this discussion, then, when we inquire whether we ought to regret our existence, we mean to ask whether one takes it to be preferable, overall, that a certain state of affairs had not existed, and (all considered) is sorry that it does exist. A quick way of putting this question into focus would be to ask the following question: If it were within one’s power, would one choose to prevent the relevant state of affairs? This is clearly an important sense of being sorry. When we ask whether one is glad, or regrets, that one married one’s spouse or chose one’s profession, for example, it is natural to understand this as the question whether, if given the choice again, one would choose in the same way. But note that the question about preferences and about regret does not depend on the fact that relevant states of affairs were within one’s control. It makes perfectly good sense to prefer that one had not been forced into a marriage or into a profession, and to regret that one was. It is natural to prefer that good things could co-exist; this will generate a “meta-sorrow” that the absence of (say) the Holocaust and my existence cannot, realistically, co-exist. So even if we are convinced that in fact the calamities of the past are causally necessary for our existence, there is a sense in which we certainly can prefer (and ought to prefer) that things were otherwise; namely, that we wouldn’t have to choose. But in our context these ideal theoretical possibilities are, alas, not what matter most: there is also a more limited sense of preference, related to a robust sense of regret, and here only reasonably probable options should be considered. The option of my coming to be born while the Holocaust was avoided is so improbable that it needs to be dismissed here, when we are thinking about our issue. Given that we could not realistically expect to exist without the calamities of history like the Holocaust, we cannot merely say that we prefer for the Holocaust not to have happened, without being willing to

The Good, the Bad, and the Nonidentity Problem

311

acknowledge that this implies, realistically, that we would then not have come to exist. We need to assume that matters stand in an “either-or” relationship: either the calamities of the past are avoided, but then we do not come to exist, or we do exist, but then the calamities of the past—which, realistically, are necessary for our coming to be born—are to remain.⁴

1 7 . 2. SOM E IM P LI C A T I O N S F O R J E W I S H HI ST O R Y On the basis of the preceding discussion, we can begin to see the difficulties that emerge. The first set of difficulties is a direct extension of my moral argument above. To begin with the personal level, when one is doing any one of a host of things that Jews typically do, such as celebrating a Jewish holiday, what should be one’s attitude, once one has become aware of the NIP? I argued above that moral beings should regret the overwhelmingly great calamities of history and prefer that they had not occurred, even at the price of their not having been born (and likewise with all one’s loved ones). Focusing on a history-related holiday that one is celebrating with one’s family, it seems hard to escape a discomforting thought: as a person who cares about the Jewish people, and individual Jews throughout history, what a pity that I am here to celebrate . . . Surely it would have been better that Jewish history had gone much better at this historical junction which we are commemorating, even if I and everyone I love would not, as a result, have been born. But notice that this sense of regret cannot remain in the personal sphere. It is not as though, if only one is willing to become hypothetically self-sacrificial, the celebration (or commemoration, or thanksgiving prayer, and the like) can go on as before. There does not seem to be a valid way to stop the thoughts in question, in our hypothetical story, before all actually living Jews have ceased to exist. But then very quickly the nature of the celebration becomes quite perplexing. Are we actually celebrating Jewish existence while regretting the existence all of the Jews that actually came to be born throughout Jewish history since, say, Roman times? The NIP quickly leads us here far away from prevalent individualism to some very broad and rather vague collectivism. The actual individuals of this collective, after all, would never have come into existence, if history had ⁴ My argument does not depend on a strong claim such as that only the best possible world is morally acceptable. It suffices that we recognize that some major instances of evil and suffering could have been prevented, without making other things worse, overall—but that this better alternative world would not have included us. We make a pairwise comparison between a situation where an event like the Holocaust occurs, and a situation where it does not because, for example, Hitler is assassinated. Morally, we ought to regret that such an alternative was not the one actualized.

312

Saul Smilansky

taken the less calamitous alternative route that we prefer over what actually transpired. And that vague collectivism is already a significant result. We may well be celebrating the continued existence of Jews (de dicto) but—once we think clearly—we see that we are regretting, in the all-considered preference sense, the existence of the specific Jews that made or make up that group today (de re). But the damage does not stop there. For, to put this simply, the actual people are the ones that made the actual history, and created the actual culture; Jewish civilization as we know and celebrate it. No doubt other leaders, writers, Rabbis, etc. would have done their doings, but we have no access to what that would have been like; and can have no thick, living interest in it. So much of what we do care about is what has come to be developed throughout Jewish history, contingently, but all that suddenly becomes dubious. To make this concrete, consider an example: when on Tish’ah Be’av the destruction of the First and Second Temples (as symbols of Jewish national independence) is mourned, what is the content of this mourning? There is no contradiction in wishing that the Temples would not have been destroyed, the ten tribes lost, and most of the remaining Jewish people exiled. Perhaps the result would have been splendid for the Jewish people and for humanity. Say, a Jewish nation of 200 million people, which would have radically changed history and human culture for the good. But note that, in the process, we have, first, lost every actual Jew who lived in the last 2000 (or 2600) years. Second, we have lost every literary, philosophical, and religious text that those actual people wrote. Third, we have lost our history, here in a sense of a narrative of actual events occurring over long periods of time. We might indulge in some fanciful dreams of a radically different, much better version of history: say, where an independent regionally dominant Judea remains, thereby bypassing thousands of years of existence almost only in the Diaspora; with Judaism becoming the dominant religion of the Roman Empire. But all this has no connection to real Jewish history, and we have no real sense of what is involved in such scenarios. The magnitude of the historical destruction and harm naturally bring about resentment and mourning. At the same time, if we imagine a state where it does not occur, this very magnitude also makes it nearly impossible to remain with anything that can still seem familiar, or be plausibly called Jewish existence as we know it.⁵ ⁵ Of course, one could argue that the alleged misfortunes of Jewish history were in fact only seemingly so, and that, at least collectively, matters would have been likely to turn out even worse without this or that apparent misfortune, or indeed all of them. For example, that only the move to the Diaspora maintained any form of Jewish national identity. Note that this alternative as well puts pressure on ideas like mourning and resentment. There is no need for us to decide on the nature of the misfortune here, aside from the particular difficulties we are concerned with, which concern the NIP. However, note that this raises the problem of “Fortunate Misfortune,” whereby misfortunes to the (individual or collective) agent turn out to be fundamentally beneficial to him, her, or it. As I argued (Smilansky 2007b), such situations can be very perplexing. Sometimes

The Good, the Bad, and the Nonidentity Problem

313

With such varieties of loss all around us, can we not then go and seek to paddle our way back to a situation where most of the actual Jews of history and the culture they developed still exist? Perhaps, but this understandable temptation comes with a severe cost: it involves saying that we, as Jews, would not want the destruction of the First or Second Temples (as symbols of the destruction of Jewish national independence), or the failure of the Bar Kochba revolt, or whatever is under our focus, to have been different—for then not only we personally, but all Jews who came to be born after the given historical event, and nearly all of the Jewish culture which they created, would not have come into being. But that means that we are not really mourning the destruction of the Temples, the failure of the Bar Kochba revolt, and so on, all things considered. We would not prefer that this history would have gone any differently. On the contrary, we are putting our votes, as it were, behind the tragedies occurring as they did. We are, in a sense, rooting for the destructors. Note that on this revisionary account, we could in one sense still mourn individual loss, i.e. be sorry for the individuals who perished. However, we would not, then, be mourning, all things considered, that the state of affairs at issue went as they did, resulting, as a by-product, in the suffering and death of all those people. Another way of seeing what is at issue here is to consider a host of reactive attitudes, attitudes such as resentment, indignation, gratitude, and the like. Once we understand the NIP and its implications, seemingly common-sense attitudes become quite questionable. There is no moral reason to be grateful to the Romans who massacred hundreds of thousands of Jews and brought an end to Jewish national existence in the land of Israel for some 1900 years, till 1948. In fact, the Romans have a much better moral reputation than they deserve. But, if one seeks not only to retain the existence of oneself and one’s loved ones, but that of the Jews that came to be born since, and the actual Jewish culture that they created, then one finds oneself in the odd position of having to be thankful that those evil Romans did what they did. people encounter an apparent misfortune or catastrophe by suffering great unchosen hardships and being confronted with severe undesired difficulties, in ways that facilitate their success and happiness in life. For example, by hardening their character and imbuing them with overwhelming motivation; this may then lead to success (and, let us assume, well-being or whatever our chosen metric may be). In the relevant cases such success is (we are assuming) much beyond what they would have otherwise achieved—this being something that they acknowledge and, all considered, are happy about having undergone. This creates a problem: if a seemingly unfortunate aspect of a life has proven to be beneficial overall, then it would appear not to have been a genuine misfortune. However, certain aspects of actual lives would seem to be obvious misfortunes, irrespective of whatever occurs thereafter. The possible interpretations of such situations are that (a) the events have been misfortunes but not good fortunes; (b) that they have been misfortunes only at first appearance but, overall, it must be admitted that they have been only good fortunes; and (c) the claim that they have been both. The first interpretation is taken up by Mark Sainsbury when he considers my discussion (Sainsbury 2009: ch. 2), the second and third options are explored and defended in my own discussion. I cannot reiterate this discussion here.

314

Saul Smilansky

One can make one’s choices and preferences among the hypothetical alternatives, giving up one’s existence and the possibility of one’s celebrating Jewish existence or not; and giving up on all actual Jews and Jewish civilization as we know it or not. But one cannot sensibly and in good faith mourn, while at the same time celebrating the existence and the culture that have come to be, only because of the purported reasons for mourning! I have recently explored in some detail the implications of the NIP for gratitude in general (Smilansky 2016). Consider World War II. It seems safe to assume that, morally, it is good that the Allies defeated the Germans and the Axis powers. It is certainly good in that morally terrible people were defeated by people who were, overall, morally much better. When we think about longterm consequences we cannot be completely sure: perhaps in two centuries some causal consequent of this will result in the destruction of the world. Yet rationally, for all intents and purposes, surely we can look upon the Allied victory in World War II as a triumph for civilization and morality. Now, the historical significance of the war has been so great that (in light of the fragility of coming into existence which lies behind the nonidentity problem) nearly every person alive today who was conceived after the war owes his or her existence to the war. In other words, but for the victory over the Nazis, neither oneself nor one’s loved ones (and indeed almost everyone that one personally cares about) would have been born. If there is no overall moral reason to regret the Allied victory in the war (quite the contrary), and one has every personal reason to be happy about it, then there is plenty of room for gratitude here. This is, clearly, not just in the vague sense of appreciation, but in directly personal terms. The countless number of people who made the victory possible—such as many of the soldiers (as well as resistance fighters, spies, and countless others) on the Allied side are pro tanto owed our gratitude. However, a dark element emerges when we reflect upon the nature and extent of the beneficial deeds (which were a condition for our coming to be born). It is safe to assume that in many if not most of such cases, the good deeds were not optimal. For example, the benefactors could have done more, or earlier, for the hastening of victory in the War. We, depending upon very fragile conditions in order to be born, depend not only on their gratitudemeriting beneficence, but on its not being too great! Countless soldiers on the Allied side are owed our gratitude but, on reflection, this also includes our thankfulness that they were not more courageous, or resourceful, or determined. Or, indeed, for the battles not having gone considerably better for them, e.g. for the enemy not to have been broken earlier, with significantly fewer losses on the Allied side. For us, any change would have been ‘fatal’; we require the exact same course of events, not less, but also not more, in order to come into existence. There is a tension here between our happiness at our existence, and our patriotism. Just as, similarly, in all likelihood, we exist because penicillin was discovered, but to the very same extent it is the case

The Good, the Bad, and the Nonidentity Problem

315

that we exist thanks to the fact that it had not been discovered earlier. For otherwise, other children and not us would have been born instead.

17.3. RECKONING So, how are we to make sense of these wide and deeply threatening implications of the Nonidentity Problem? Can we salvage anything of what common sense had been telling us, before we adopted the NIP and began to reflect on its implications for Jewish history? It does not, after all, seem like we are asking for a lot: all we want is the idea that we, as individuals and families, and the collective we belong to, will continue to commemorate, mourn, resent, be grateful for, and so on, central tragic and heroic events of Jewish history. However, enter the Nonidentity Problem: once we realize the truth, we have lost our innocence, and there is no simple going back. Biting the philosophical bullet and truly internalizing it involves paying a significant price. One can opt for what we could call Individualistic Minimalism, saying that one mourns and resents only if one’s existence is not at risk. This would mean that one never mourns and does not resent any of the significant historical calamities of Jewish history—because had they not occurred, oneself and ones loved ones would not have come to exist. Going in that direction seems morally callous, as though all the suffering and tragedy of the past are in a sense redeemed by their being necessary antecedents to one’s individual existence (and that of one’s loved ones). This seems like individualistic apologetics for history gone wild, a radical “ego-dicy” (mimicking a theodicy). Consistency and a type of honesty have been thereby gained, but at a very high price which, moreover, separates one from Jewish identification and culture insofar as they involve things like anger at the wrongs suffered by one’s collective and the genuine desire that things had gone better. This seems so absurd that one may well be tempted to opt for a collective version, which we might call Collective Minimalism. Note that this already goes against the grain of the prevailing individualism of contemporary culture in liberal democracies. Here, what makes the past, for all of its hardships and tragedies, worthwhile, is not that oneself and one’s loved ones come to be born as a result, but rather that Jewish history, the millions of Jews who have come to be born, and the life, culture, and history that they created, is saved. However, here as well we have left common sense far behind. For, this position as well is saying that we are not really mourning the loss of national independence, the death of hundreds of thousands, the forced conversion and assimilation of millions, the endless discrimination, persecution, and hardship, but—since we are affirming the collective historical existence more or

316

Saul Smilansky

less as it happened to emerge—we are thereby thoroughly rejecting the narrative of mourning, anger, indignation, and resentment. Should we then—shocked by both of these alternatives—wish to try and go back to common sense, retaining traditional ideas such as collective mourning and resentment, we will soon fall into the place that we already saw as being unlivable; where if the ideas are taken seriously (and once the insights of the NIP are added)—we would be committed to wishing that nearly all actual historical Jews, Jewish history, and Jewish culture had never been. Welcome to the Nonidentity Problem.

17. 4 . TH E P O S I TI V E R OLE OF ILLU S IO N We saw that, once we realize the implications of the Nonidentity Problem, we cannot go on saying and doing what we have been saying and doing for millennia. Much of the Jewish “form of life,” the view we take and the practices we engage in concerning Jewish history, culture, memory, celebration, commemoration, prayer, morning, and the like, simply do not make sense. The problem is that the “form of life” that we have been exploring does not bear critical examination through rational standards; we cannot really be valuing, preferring, condemning, resenting, being grateful, and so on as we claim to be doing. And as we saw, this was not some local inconvenience, to be solved by some limited revision, but a systematic feature of the whole.⁶ What should be done about this problem? One possible solution is to aim to give up on it all. Another option is to opt for lower rational standards, in this sort of case; to make do with what we can call “illusion,” belief-like states and the concomitant reactions and practices that cannot really be rationally defended. In other words, not to take the worries of philosophers about the Nonidentity Problem too seriously, insofar as they affect the matters under concern. We need to broadly continue with the common beliefs, reactions, and practices, without trying to make them consistent with the NIP. This would not be an unusual thing to do. There is abundant and overwhelming evidence, particularly from social psychology, that people widely delude themselves in important ways, and that such bias is broadly beneficial. Most people greatly overestimate matters of self-concern, such as the importance of their job, the abilities of their children, or the way in which others view them. In fact, the only category of people who get that last sort of issue ⁶ This is not to deny that some forms of e.g. gratitude or resentment could be maintained, but they would not be the culturally central and typical ones, and are likely to be limited, and perverse.

The Good, the Bad, and the Nonidentity Problem

317

right are depressives! The issue of whether these prevalent illusions are positive or negative is complex and often context-dependent (see, e.g., Elster 1983; Goleman 1985; Taylor 1989; Taylor and Brown 1994). There is no place here to delve more deeply into these matters. Their importance for us, however, is obvious: such an illusory basis can help us out of our predicament. Humanity wallows in illusion, the effects of which frequently seem to be largely beneficial. Not worrying too much in our case would build upon a typical human form of (lack of) engagement with the world. It might be argued that this confronts opposing values and concerns: primarily intellectual honesty, but also the value of knowledge, veracity, integrity, and authenticity. Note that I am not claiming that we need to induce illusory beliefs concerning Jewish history and the NIP. The question is whether, in this sort of case, we need to be very concerned about all those other values, which clearly ought to be given great weight in some other cases.⁷ I do not think that here we need to do so. The Jewish people are one of the oldest nations, with a glorious history of achievements and contributions. It is all considered good that the history be told, the culture celebrated, cultural traditions continued, the efforts, deeds, attainments, and experiences of past Jews and Jewish communities noted and commemorated, and that Jewish identity be maintained. The implications of the NIP regarding all of this, for all of their philosophical force, should not disturb us too much in practice, with so much else at stake. We have neither a systematic philosophical exploration of the role of illusion in life, nor a thorough understanding of the ethics of illusion and self-deception. Much philosophical work has been done on the morality of honesty and truth telling, but much less on the importance of intellectual honesty. The broad area of our discussion, which we can call “The Moral Philosophy of History,” is also largely neglected. These lacunas are disturbing. So we will have to find our way here by ourselves. An analogy might be helpful here. For many people and in many cultures, being a fan of competitive sports is important. Many central beliefs and beliefrelated reactions and practices in such contexts cannot withstand minimally rigorous intellectual standards: one’s team’s past or present greatness, the inherent evils of the opposition, the consistently unfair attitudes of the referees, are not as a true fan holds them to be. In fact, arguably that emotional sort of bias is what being a fan requires. Moreover, the idea of pride in one’s team, when one is almost certainly incapable of doing anything impressive oneself in the given sport, is suspicious. Yet, except in extremes, all this seems to me an all considered good part of life, despite being intellectually shabby.

⁷ For a discussion of a very different case, see Smilansky 2000; Smilansky forthcoming.

318

Saul Smilansky

These parts of life are often connected to other parts, which do sometimes involve more serious dangers, such as national pride; national Jingoism can, of course, be quite sinister. Feeling enhanced by the achievements of one’s national team in (say) the Olympics, the idea that “we” won and that this makes me somehow better, while common, is not quite intellectually Kosher; it is nevertheless relatively harmless. I cannot discuss here in detail the role of illusions in these contexts. Our focus, to recall, is much more specific: whether the implications of the NIP ought to be taken seriously, in their effects on (for example) Jewish perception of history and Jewish culture; and enlisted to do harm. I do not see a case, all things considered, for welcoming this. Theoretically, the NIP is destructive, but we have excellent pragmatic reasons not to heed these results in practice; not to integrate the insights of the NIP into Jewish culture and self-understanding. How vulnerable in practice are the beliefs, reactions, and practices under consideration? In this case, it seems to me, they are not very vulnerable. Admittedly, fully rational persons could not genuinely feel the resentment, anger, and gratitude; could not evaluate, mark, and mourn in the traditional ways. But as the sporting analogy and countless other indications help us to see, most people can be happily mildly irrational in helpful ways, in such cases. Consider also that Jews continue to celebrate Passover, not caring (quite reasonably) too much about recent doubts posed by historians or archeologists as to whether the ancestors indeed spent time in ancient Egypt. It seems that there is little reason to take the destructive implications of the NIP here to heart, and it is likely that even partial awareness of them will not lead most people to do so. The helpful illusions fortunately seem to be fairly safe.

17.5. THE NONIDENTITY P ROBLEM, JEWISH HISTORY, AND THE IDEA OF A “ CRAZY E THICS ” In previous work (for example, Smilansky 2007a; Smilansky 2013b) I explored in detail various other moral paradoxes and examples of moral perversity. In Smilansky 2013c I introduced the broader idea of a “Crazy Ethics.” I am not using the term “crazy” pejoratively for ethical views with which I disagree (as when one says: “That view is just crazy”), nor am I referring to views that everyone should think are crazy, such as Nazi genocidal views. Rather, I use “Crazy Ethics” (or CE) as a semi-descriptive term for moral views which in spite of being true (or at least plausible) are in another sense crazy. To say that some views on e.g. gratitude are “crazy” in this sense is to say that we have good reasons to believe that plausible views on gratitude strongly exhibit the characteristics of CE. Although the craziness does not present a single

The Good, the Bad, and the Nonidentity Problem

319

common denominator but comes more in the form of a “family resemblance,” the “crazy” features share the idea that common, important, and seemingly reasonable expectations from morality are disappointed, in significant ways, leading to a surprising, discordant, and to some extent even irrational situation.⁸ Our results seem to meet the criteria of CE. Consider the example of gratitude. Gratitude turns out to involve some dark elements indeed, in the light of the Nonidentity Problem: we should often be grateful to good people who happened to have harmed people we care about because of what they did, if this had the right effects; we should be thankful about bad people who were instrumental in generating the casual chains we care about and are dependent upon; we should be happy that the benefactors did not do better for the people we care about and, for all our gratitude, we typically cannot honestly hope that (relevant) matters had gone better for our benefactors, in the contexts that affect our coming to have been born (see in greater detail Smilansky 2016). In the context of gratitude, a notion we typically think of in lofty terms, this is surely a significant disappointment of reasonable expectations; and therefore an instance of moral perversity and CE. A similar story can be told concerning resentment, moral indignation, and so on, in ways which we have seen. More broadly, it turns out that whole aspects of the Jewish experience and the Jewish “form of life” are in fact vulnerable to the NIP; such that trying to clarify things might make common beliefs, emotional reactions, and practices seem like nonsense. Again, we cannot really mean what we say (or commemorate, or pray, or resent, and the like) about the past. The common view of the good and of the bad—of good and bad states of affairs, and of good and bad people—is unsophisticated in the extreme. This result, that so much is, cognitively, quite nonsense, is surely an example of CE. Much of what we have learnt here applies as well to other nations and cultures. The Jewish case is perhaps particularly vulnerable to NIP-related concerns, due to features such as the unusual length, drama, and tragedy of Jewish history, but my discussion can be generalized based upon the investigation of this particular case; and the results seem to be universal.⁹ Finally, when we come to see what we ought to do with our result, the reasonable conclusion, I have argued, is more or less that we ought to do nothing. Intellectual honesty, and the concomitant values, ought not—in this corner of our axiological and moral universe—be given too much active weight. The implications of the NIP ought not to be practically destructive, ⁸ I focus here on “craziness” within normative ethics, and assume a more or less optimistic meta-ethics. Assuming that morality has a stable meta-ethical grounding (any of various metaethical views could serve) is helpful in examining the possibility of “crazy” normative views. ⁹ Just to see the widespread salience of our issue, consider contemporary forgiveness-seeking German attitudes towards the Holocaust, or Palestinian resentment about the Nakba in 1948; while the vast majority of those individual Germans or Palestinians would not have been born but for the respective events.

320

Saul Smilansky

despite their intellectual credentials. The reasons for giving them weight are weak, and the pragmatic reasons against giving them weight are strong. The pertinent beliefs, reactions, and practices matter a great deal, but are dependent upon illusion. Illusion is in this case not a hole in the bagel, but the stuff the bagel itself is made of. In this case, it seems to me, that that’s just fine. And that, as well, is further surprising indication of the salience of CE.¹⁰

BIBLIOGRAPHY Adams, Robert Merrihew (2009) “Love and the Problem of Evil.” In: P. Alexis Tabensky, ed., The Positive Function of Evil. Houndsmills: Palgrave Macmillan. Elster, Jon (1983) Sour Grapes. Cambridge: Cambridge University Press. Goleman, Daniel (1985) Vital Lies, Simple Truths. New York: Simon & Schuster. Kahane, Guy (2017) “History and Persons.” Philosophy and Phenomenological Research. DOI: 10.1111/phpr.12479. Levy, Neil (2002) “The Apology Paradox and the Nonidentity Problem.” Philosophical Quarterly 52: 358–68. Metz, Thaddeus (2009) “Love and Emotional Reactions to Necessary Evils.” P. Alexis Tabensky, ed., The Positive Function of Evil. Houndsmills: Palgrave Macmillan. Parfit, Derek (1984) Reasons and Persons. Oxford: Oxford University Press. Roberts, Melinda A. and Wasserman, David T. (eds.) (2009) Harming Future Persons: Ethics, Genetics and the Nonidentity Problem. Dordrecht: Springer. Ryberg, Jesper and Tannsjo, Torbjorn (eds.) (2004) The Repugnant Conclusion: Essays on Population Ethics. Dordrecht: Kluwer. Sainsbury, R. M. (2009) Paradoxes. 3rd ed. Cambridge: Cambridge University Press. Sher, George (1981) “Ancient Wrongs and Modern Rights,” Philosophy and Public Affairs 10: 3–17. Sikora, R. I. and Barry, Brian (eds.) (1978) Obligations to Future Generations. Philadelphia: Temple University Press. Smilansky, Saul (2000) Free Will and Illusion. Oxford: Oxford University Press. Smilansky, Saul (2007a) 10 Moral Paradoxes. Malden, MA: Blackwell Publishing. Smilansky, Saul (2007b) “Fortunate Misfortune.” In: Smilansky 2007a. Smilansky, Saul (2007c) “On Not Being Sorry about the Morally Bad.” In: Smilansky 2007a. Smilansky, Saul (2013a) “Morally, Should We Prefer Never to Have Existed?” Australasian Journal of Philosophy 91: 655–66. Smilansky, Saul (2013b) “Why Moral Paradoxes Matter: ‘Teflon Immorality’ and the Perversity of Life.” Philosophical Studies 165: 229–43.

¹⁰ I am grateful to the editors for the invitation to participate in this volume; and very grateful to Amihud Gilead, Guy Kahane, Menachem Kellner, Iddo Landau, Sam Lebens, Ariel Meirav, Daniel Statman, and Rivka Weinberg, for helpful comments on drafts of this chapter.

The Good, the Bad, and the Nonidentity Problem

321

Smilansky, Saul (2013c) “Free Will as a Case of ‘Crazy Ethics’.” In: Gregg Caruso, ed., Exploring the Illusion of Free Will and Moral Responsibility. Plymouth, UK: Lexington Books. Smilansky, Saul (2016) “Gratitude: The Dark Side.” In: David Carr, ed., Perspectives on Gratitude. New York: Routledge. Smilansky, Saul (2017) “The Nonidentity Problem: United and Unconquered.” In: S. Matthew Liao and Colin O’Neil, eds., Current Controversies in Bioethics. New York: Routledge. Smilansky, Saul (forthcoming) “Illusionism.” In: Derk Pereboom and Dana Nelkin, eds., The Oxford Handbook of Moral Responsibility. New York: Oxford University Press. Tabensky, Pedro Alexis (ed.) (2009) The Positive Function of Evil. Houndsmills: Palgrave Macmillan. Taylor, Shelley E. (1989) Positive Illusions. New York: Basic Books. Taylor, Shelley E. and Brown, Jonathan D. (1994) “Positive Illusions and Well-Being Revisited: Separating Fact from Fiction.” Psychological Bulletin 116: 21–7. Thompson, Janna (2000) “The Apology Paradox.” Philosophical Quarterly 50: 470–5. Wallace, R. J. (2013) The View from Here. Oxford: Oxford University Press.

18 Jewish Studies and Analytic Philosophy of Judaism Tzvi Novick, and Samuel Lebens, Dani Rabinowitz, and Aaron Segal

18.1. TZVI NOVICK In my studies at the Rabbi Isaac Elchanan Theological Seminary of Yeshiva University, I had the privilege of learning from a brilliant Talmudist, Rav Michael Rosenzweig, a student of the recently deceased Rav Aharon Lichtenstein, who was rabbi to a number of contributors to this volume. When the class came to a new sugya, a new topic in the tractate at hand, he would devote the first few lessons—in principle; in practice, he often ended up devoting all of the lessons—to an exercise in conceptual cartography: He would trace out all possible approaches to the question raised by the sugya. The task took, in its initial stages, a hermeneutic form. It was a matter of reading the Talmud passage and teasing out its ambiguities, then of reading the Talmud commentators (in his case, the rishonim, or “first” commentators, of roughly the first half of the second millennium), and teasing out their ambiguities. Rather quickly, however, Rav Rosenzweig shed the hermeneut’s hat for that of the analyst. If there was a promising conceptual approach that neither the Talmud itself, nor any commentator on the Talmud, seemed to take, he would shoehorn it into one or another commentator’s words, with perfect awareness that this approach did not represent the plain sense of those words. It was wonderful to behold. It was even religiously meaningful, to me at least, and undoubtedly to Rav Rosenzweig himself. But was I learning the Talmud? Could I make the blessing “who commanded us to occupy oneself with words of Torah” over it? What made Rav Rosenzweig’s conceptual approach Jewish, or Talmudic, if it merely represented a possible understanding of the Talmud (or a rishon), rather than what the Talmud (or rishon) “really” meant? Perhaps the very fact that this approach has become traditional, that Rav Rosenzweig Tzvi Novick, Samuel Lebens, Dani Rabinowitz and Aaron Segal, Jewish Studies and Analytic Philosophy of Judaism. In: Jewish Philosophy in an Analytic Age. Edited by Samuel Lebens, Dani Rabinowitz and Aaron Segal, Oxford University Press (2019). © Oxford University Press. DOI: 10.1093/oso/9780198811374.003.0018

326

Tzvi Novick et al.

was following in the path of many predecessors, is enough to afford it the status of Talmud study. But it is not clear how such a tradition can get off the ground as a form of Talmud study unless its status as Talmud study is secured by some other means. The mere fact that this approach (ostensibly) represents an approach to Jewish texts—to the Talmud and its commentators—also seems inadequate to the task, given the infinity of interpretive possibilities. Similar questions arise for me as I consider a number of the contributions in this volume, and the undertaking of Jewish analytic philosophy more generally. The current book is dedicated, according to the Introduction, to the proposition that analytic philosophy, applied to the Jewish tradition, can offer new clarity about and insight into “what it is, in the various streams of Jewish thought, that Jews actually stand for, and why it often matters to them so much.” The study of Jewish thought, including Jewish philosophy, has traditionally occurred within Jewish Studies and religious studies departments, and thus in a historicist mode. Jewish analytic philosophy, perhaps precisely because it largely eschews historical contextualization in favor of conceptual analysis, can, according to the Introduction, allow the academic study of Judaism to escape the bounds of intellectual history, and produce “living Jewish thought,” from theology to ethics. Jewish analytic philosophy is not the only contender for this noble role. Jewish scholars working in Jewish Studies and philosophy departments, among others, have of late begun to turn out complex, constructive works of Jewish theology and ethics, without any particular indebtedness to analytic philosophy. One thinks, for example, of Michael Fishbane and his student Benjamin Sommer in Jewish Studies, and—closer to the work of Jewish analytic philosophy, but still meaningfully different from the work in this volume—of Alan Mittleman and James Diamond in philosophy.¹ Their works reflect a dissatisfaction with the austerely historicist framework within which humanities disciplines ordinarily operate, and a desire to merge the excavatory work of scholarship with the scholar’s faith commitments. In acting on this dissatisfaction and this desire, these scholars arguably return to an older conception of the humanities as a paradigm of inquiry oriented by and toward the true and the good. The strictly historicist posture of traditional Jewish Studies has come under pressure, too, from a different direction: critical theory, and especially its offshoots in gender studies and related fields. Scholars adopting these approaches detect an ideology in the purported objectivity of a historicist humanities, which they expose not for the sake of avoiding ideology; ideology is in fact, on their view, unavoidable. They aim rather to meet it with different and more selfconscious ideologies. (A scholar of this sort might note that of the sixteen

¹ See Fishbane 2010; Sommer 2015; Mittleman 2015; Diamond 2018 (non vidi).

Jewish Studies and Analytic Philosophy of Judaism

327

contributors to the volume, only two are women, and their titles are the only ones to include the words “moral” or “morality.”) This book, by encouraging interaction between scholarship and lived Judaism, puts analytic philosophy forward as a new player in this exciting and diverse field, and it would be interesting to compare the different players. Whatever their weaknesses, these other approaches take interpretation and history seriously. Indeed, Fishbane and Sommer, reflecting their situatedness in Jewish Studies, center their theologies on the phenomenon of creative reception, on interpretation and expansion. Their works bridge the gap between scholarship and theology by thinking about the past as the foundation for the present, and about interpretation as a binding agent securing the upper stories to that foundation. The chapters in the current volume, insofar as they engage in constructive theology, manifest little interest in the dynamics of tradition and interpretation. They tend instead to approach Jewish thought as a static set of conceptual commitments, which can be detected in incipient or implicit form in Jewish texts, and refined by philosophical analysis. Likewise, they are relatively uninterested in the standard tools of exegesis: text criticism, philology, etc. But the concepts on which they focus must in one way or another be meaningfully “in” the texts, or else what the chapters are describing cannot meaningfully be called Judaism. Here, then, is where, it seems to me, the project of Jewish analytic philosophy and the field of Jewish Studies intersect. Judaism and Jewish thought are historical categories, and so, no matter how attenuated its historical interest, Jewish analytic philosophy must acknowledge the force of history. Conversely—for I am thinking of a genuine intersection—if a concept is Jewish, then Jewish Studies ought to take account of its distribution and force, as a historical phenomenon. Importantly, the “Jewishness” of Jewish analytic philosophy should be evaluated not in binary but in scalar terms. We ought to suspect the Jewishness of an analysis that introduces a complex set of debates from analytic philosophy for the sake of glossing a single Talmud passage. By contrast, analysis of a concept that is deeply embedded in Jewish texts has better Jewish bona fides. These labels are loose, of course, but helpful nonetheless. They seem to me to describe, in a rough way, the difference between Jewish analytic philosophy, on the one hand, and analytic philosophy inspired by Jewish texts, on the other; or, in spectral terms, between Jewish analytic philosophy that matters more for Jews and Judaism, and Jewish analytic philosophy that matters less. I steer now toward some specific chapters, to illustrate but also nuance the above remarks. Jeffrey Helmreich’s chapter concerns a “jurisprudential puzzle”: The Talmud seems committed both to the proposition that for a given halakhic question, there are two or more equally correct answers (pluralism), and to the proposition that a rabbinic decisor, in addressing the question, should attempt to reach what he takes to be the correct answer (faithfulness).

328

Tzvi Novick et al.

Scholars of rabbinic literature have written extensively on the pluralism proposition, and Helmreich’s analysis would be enriched by engagement with this work, because it furnishes both a corpus of texts much larger and varied than the usual suspects on which his chapter focuses, and a conceptual apparatus fruitfully different in origin and substance from Helmreich’s own.² Especially pertinent is the recent book by Richard Hidary (2017) on rabbinic literature and classical Greek rhetoric. Hidary demonstrates the deep indebtedness of Talmudic pluralism to Greek rhetorical education, which sought to produce orators capable of arguing both (or all) sides of a case; this insight complicates not only the pluralism proposition but also the faithfulness proposition. At the same time, Helmreich’s analysis can contribute to rabbinics scholarship via its careful account of the faithfulness proposition, which, because rabbinic sources rarely reflect on it, has gone largely unremarked, despite its importance. Dani Rabinowitz’s chapter centers on an “epistemic puzzle”: How does one know that one has successfully repented? Rabinowitz would locate this very interesting question at the heart of a rabbinic debate about whether one who has repented for a sin on the Day of Atonement, and not repeated the sin in the following year, should or should not repent for the sin again on the next Day of Atonement. Rabinowitz suggests that the position demanding repeated repentance is driven by epistemic uncertainty about whether one’s prior repentance truly counted as repentance, coupled with the high stakes of potential error. Rabinowitz readily admits that this is not the only way to read the debate, nor even, perhaps, the most straightforward; he comes to it by linking Rashi’s epistemic understanding of the passage to Maimonides’ characterization of the cosmic importance of repentance. Appreciating the tenuous textual basis for his analysis, Rabinowitz contextualizes it in relation to a general tendency in halakhic practice to err on the side of stringency. A more thorough conversation with Jewish Studies scholarship would yield a richer framework for Rabinowitz’s analysis. As Aharon Shemesh (2004) showed, the notion of minimum measurements appears first to have arisen, or in any case is attested earliest, among the sectarians from Qumran, who evidently introduced it for obligations such as charity, to allay the epistemic anxiety of interest to Rabinowitz: How do I know when I have fulfilled my obligation? The Qumranites were also, famously, a penitential community: Preoccupied with the power and pervasiveness of sin, they defined themselves as penitents, and reenacted their penitential turn in communal rites and personal prayer.³ Early Christians inherited similar anxieties about the law, sin, and penitence.⁴ The rabbis and their forbears, the Pharisees, were in part formed by ² See, e.g., Hayes 2009–10, and the literature cited therein. ³ See, e.g., Newsom 2007. ⁴ See Fredriksen 2017.

Jewish Studies and Analytic Philosophy of Judaism

329

their complex responses to these other Jewish groups. While this historical background is in no way logically essential to Rabinowitz’s argument, it can both serve as a source for further nuance, and confirm the importance of the issue, in broad terms, for Jewish Thought. The contribution by Aaron Segal is perhaps most interesting from the perspective of the intersection between Jewish analytic philosophy and Jewish Studies, because it explicitly invokes not only the criteria of clarity and coherence, in a conventional analytical mode, but also the criterion of historical plausibility. Indeed, its starting claim is straightforwardly historical: “we have little reason to believe that Hazal were trafficking in the very same issues and questions with which a metaphysician is grappling.” The claim is predicated of a historical group (Hazal, or “our sages, of blessed memory”), and occurs in the past tense (“were”). Segal argues that, even when a sage seems explicitly to rest a halakhic view on a metaphysical assumption familiar from philosophy, he is not committing himself to that metaphysical assumption. Nor, however, is he simply offering an ad hoc rationale. We should, rather, best understand him to be making a claim about the metaphysics of halakha, understood as a set of objective properties and relations that carve up the world. Segal concedes that the sages of the Talmud “of course…would not put the question in these terms.” He clearly does not see in this fact a refutation of his conclusion, despite the fact that his aim is to capture what the sages were actually doing. I think he is right: There is nothing unreasonable in positing that the sages were gesturing toward a position on the relationship between halakha and reality that they did not quite have the vocabulary to express. But the attempt to sketch such a projected position is necessarily speculative, and I am not sure how compelling Segal’s conclusion ultimately is. In any case, from a historical perspective, his argument can be further refined. For example, the conclusion is more plausibly predicated of the stam— the anonymous layer from around the sixth century that “narrates” the Talmud—rather than, e.g., of the houses of Hillel and Shammai, from roughly the first century, and this for at least two reasons. First, abstract conceptualization is far more prominent in the stam than in the genuine traditions of the houses. Second, if, as Segal supposes, the Talmud’s commitment to a plurality of valid legal views on a given question offers a reason to distinguish halakhic positions from (conventional) metaphysical assumptions, then this reason is compelling mainly vis-à-vis the stam, as it is mainly the stam, rather than earlier views preserved in the Talmud, that champions legal plurality. I have suggested above ways in which Jewish Studies can inform the project of Jewish analytic philosophy. But Jewish Studies can also learn from Jewish analytic philosophy. There is a tendency in Jewish studies, as more generally in a modern humanities marked by the hermeneutics of suspicion, to downplay the role of concepts, or at least the concepts consciously articulated by

330

Tzvi Novick et al.

historical actors, as engines of history. Such concepts belong to the grain, and the good historian reads against the grain. But there is also a history of the grain, and Jewish analytic philosophy can encourage attention to the concepts therein, and help Jewish Studies sharpen the tools with which it approaches those concepts.

18. 2. S A M U E L L E B E NS , D A N I R AB IN OWI TZ , A N D A A R ON S EG AL Tzvi Novick’s thoughtful reflection on the contents of this book casts some important issues into sharp relief: issues which are likely to divide analytic philosophers of Judaism from scholars within mainstream Jewish Studies; issues which therefore require urgent attention if we are to achieve the cross-pollination and interdisciplinary cooperation that Novick himself would hope for and recommend. Novick is particularly well qualified to instigate this discussion. Indeed, he is a renowned scholar of Jewish Studies who has also engaged with classical rabbinics in a Yeshiva setting, and with analytic philosophy, at Yale. We thank him for his contribution, and offer the following reflections as a first response in what is likely to be an ongoing discussion between our two disciplines. Novick’s primary concern seems to be as follows: (a) In order for what’s being done in this volume to count as Jewish, it has to be meaningfully anchored in some canonical or traditional Jewish texts. But (b) in many of the contributions, the central concepts and claims are unanchored—or at least not meaningfully anchored—in any such text. We take issue with both claims. Let us start with the first. Judaism is no doubt animated by its texts, but it obviously consists in much more than those texts. It includes, among other things, religious practices, cultural mores, sacred melodies, and folk beliefs. A philosophical investigation of any of these things could count as Jewish without being anchored in any text, canonical or otherwise. We don’t see why there couldn’t be a genuinely Jewish philosophical investigation of Yerushalmi kugel (a traditional Jewish food), even absent any specific textual basis. On a more sober and relevant note: If worship, for example, is part and parcel of the lived Jewish experience—and has been for quite some time—and if some of the details of worship as practiced by a good number of Jews raise interesting philosophical questions, then exploring those questions surely counts as Jewish philosophy, whether or not the exploration rests at times on a tenuous textual basis, or even on no textual basis at all. Of course, Novick was responding chapters of this book, all of which were engaged, to some extent or other, with the interpretation of Jewish texts

Jewish Studies and Analytic Philosophy of Judaism

331

(except for Saul Smilansky’s). As Novick has subsequently put it to us (in correspondence), “If the volume included a phenomenological study of Jewish practice that did not invoke texts,” then our point here “would be more apt.” But we would contend that once one accepts that Jewishness isn’t essentially bound up with historically accurate interpretation of texts, then one opens up the door to the possibility that even textual interpretations can be Jewish (in some sense or other) without being historically accurate, or being otherwise textually anchored in the ways that matter to Novick. We add another, more substantive point. Even if any philosophy with Jewish bona fides has to be anchored in Jewish texts, it’s far from obvious that it has to be meaningfully anchored, if by that is meant that it has to attempt to mine the original authorial intent or original meaning of the text in question. Whether it does will depend on a number of philosophical background assumptions. Novick is aware that his historicist attitude is out of kilter with postmodernism and its distrust of objective historical fact and original authorial intent. We are no postmodernists. But other philosophical background assumptions are nonetheless relevant. Suppose a thinker comes to believe in the existence of a God who speaks through the unfolding textual tradition of Judaism. That thinker might well be licensed to ignore, for the time being, what the human authors of those texts may have intended by their words, or what the texts meant in their original context, and focus, instead, on what God likely meant to convey to us, through them, given what we know today on the basis of our philosophical speculation. Thus the claim of an ongoing divine revelation in Jewish texts is a background assumption that is relevant to the degree and sort of “textual anchoring” for which we should be willing to settle in Jewish philosophy. To be sure, Novick would agree that the claim of an ongoing divine revelation in Jewish texts, as a background assumption, would alter the ways in which textual anchoring should proceed. But appeal to divine revelation is completely out of kilter with the methodological naturalism of contemporary Jewish Studies. Methodological naturalism is the doctrine that scientists, while conducting their scientific investigations, should eschew supernatural explanations. The doctrine is adopted even by many theistic scientists, who have good reason to keep God out of the laboratory, so to speak (Clark 2014: 42–4). But we see no reason at all to adopt it ourselves in doing Jewish philosophy (see Plantinga 1984). A philosopher can believe in God, and if she does, then she can certainly appeal to God in her philosophical theories, and in her approach to Jewish texts. Of course, she will have to give some account of why her belief and her theories are warranted. But the possibility of appealing to God in one’s theorizing and explanations sets Jewish philosophy apart from the majority of contemporary Jewish Studies. But by the same token, methodological

332

Tzvi Novick et al.

naturalism sets Jewish Studies apart from Judaism, which is, centrally, a theistic tradition. Indeed, one might ask, What is it that makes Jewish Studies Jewish? History of English literature isn’t English literature. History of science isn’t science. Perhaps, analogously, Jewish Studies doesn’t intend to be Jewish. But Jewish philosophy does. Another background assumption might be relevant here. Even if one doesn’t see the Jewish textual tradition as an ongoing divine revelation, it is certainly a living legal (and philosophical) tradition. Extreme originalists would argue that interpretation of a constitution seeks after the original intent of its authors (Bork 1990). Others would argue that, in the judicial practice of a living legal tradition, such study is futile, irrelevant, misguided, or even selfrefuting (Kaufman 2014). Few would argue that the original intent of the constitution’s framers are wholly irrelevant. Wildly implausible intentions render an interpretation less desirable. But Kaufman points out that this is only one constraint on legal interpretation, and other constraints often trump it. Moreover, a legal tradition is completely unworkable in practice if original intent is always to be the main object of legal interpretation. Indeed, the framers of laws and constitutions understand this. They are fully expecting to be interpreted very liberally. Accordingly, we needn’t doubt that a historical appreciation of the Greek influence over Jewish pluralism may lead to a different understanding of that pluralism than Helmreich’s. And yet a more important question is left open by Novick’s observation: will that more historically accurate understanding of pluralism be a better or a worse option than Helmreich’s for the future of Jewish jurisprudence, considered as a living legal tradition? In parenthesis, Novick points out that the postmodernism that we reject, together with him, claims that ideology interferes with objectivity, rationality, and logic, and that we cannot truly escape our subjective and socially conditioned shells. “A scholar of this sort,” Novick is right to point out, “might note that of the sixteen contributors to the volume, only two are women, and their titles are the only ones to include the words ‘moral’ or ‘morality.’” Philosophers in the analytic tradition haven’t given up on the supremacy of logic and reason, or (for the main part) on the aspiration towards objectivity. These aspirations are neither chauvinistic nor pretentious, as many postmodern philosophers would maintain. Logic is not the possession of any one gender, race, or creed. Indeed, how should we even assess the claim that logic and rationality should be demoted from their pedestal? Should we assess the claim illogically? That being said, philosophers in the analytic tradition are not blind to the fact that our different backgrounds and experiences place us in different epistemic positions, and that we are more likely to inch closer to the truth if we collaborate with ever wider and more inclusive circles of scholars. Gender imbalance is a continuing crisis within analytic philosophy in general; a

Jewish Studies and Analytic Philosophy of Judaism

333

problem that the profession as a whole is committed to addressing. Analytic philosophy of Judaism is no exception to this rule. There are a very small number of Jewishly literate philosophers trained in the analytic tradition. We lament the fact that the vast majority of them are men, but hope that changes in our profession, and in the Jewish community at large, will play a role in changing that fact over time. We take issue with Novick’s second claim as well: the contention that central concepts and claims advanced in the chapters he cited are unanchored—or at least not meaningfully anchored—in the texts that they claim to interpret. Establishing the extent to which any given chapter of this book is or isn’t anachronistic is not the sort of thing we can undertake here. But several points are in order. First, a number of Novick’s remarks about particular contributions are suggestions to enrich or supplement the discussion, either with underexplored possibilities or parallels in historical context. But they do nothing to vindicate Novick’s central contention that our contributors’ readings are textually unmoored. (Not that Novick said otherwise.) We do agree with Novick that Jewish philosophy stands to be enriched by a greater appreciation of Jewish history. “Judaism and Jewish thought are historical categories,” he writes, “and so, no matter how attenuated its historical interest, Jewish analytic philosophy must acknowledge the force of history.” We have no doubt that this is true, but we don’t conclude that the historically naive philosopher of Judaism is ipso facto doing a bad job, even if a broader historical horizon might facilitate an even better job. Compare: a physicist with a broad understanding of the history of science will likely be aided in her job by that understanding, but this doesn’t entail that a physicist with very little historical knowledge will be doing bad physics, even as she continues to be ignorant of the etiology and etymology of forces. A case in point: there is no doubt that our appreciation of the history of penitence can sharpen our appreciation of the puzzle that Rabinowitz animates in this book. On the other hand, there’s also no doubt that the puzzle is a puzzle for any person engaged in repentance. The philosophy here stands on its own; the history would add a certain gravity and depth to our appreciation of the problem, but would be unlikely to affect its philosophical contours, which can be discovered a priori. Second, when Novick does suggest that there’s been a misreading or anachronism, it seems to us that at least sometimes Novick is himself misreading the contribution. For instance, Novick suggests that Segal’s conclusion, even if correct, should be restricted to the sixth-century stam. One of his reasons is that Segal relies in his argument on the Talmud’s pluralism, which Novick notes is championed primarily in the stam, not in earlier sources. But Segal is relying in that “theological argument”—as opposed to his other, “historical argument”—on the truth of pluralism. If pluralism is true, then it’s true of

334

Tzvi Novick et al.

early authorities just as much as of later ones, even if it’s only formulated by later authorities. Pluralism, as formulated in the famous elu v’elu divre Elokim Hayyim passage (Babylonian Talmud Eruvin 13b), is a principle unrestricted by time or place; indeed, it is applied in that very passage to the earlier authorities of Beit Shammai and Beit Hillel. So whether Beit Shammai or Beit Hillel accepted the principle is neither here nor there. It’s true of their disputes if it’s true at all. Third, and more generally, philosophical background assumptions might matter not only for whether or how much we ought to care about what the texts mean but also for what they mean. Take the biblical text for example. Having repeatedly labeled it intellectually dishonest to disregard the findings of biblical criticism, Benjamin Sommer (2015: 262) makes an important admission in a footnote: When I say that denying biblical scholarship is dishonest…I am not…referring to Jews who genuinely find the conceptions of scripture of Late Antiquity or the Middle Ages convincing…Given the assumptions those interpreters made in good faith about the nature of biblical language…it was possible to explain away each individual textual oddity that centuries later led to the development of Pentateuchal source criticism.

If you assume that God wasn’t the principal author of the Pentateuch, for example, then certain textual anomalies are bound to take on a different light. But if you’re open to a personal theism and to the idea that God was intimately involved in the authorship of the Bible, then the same data will take on a different appearance. The meaning of later canonical texts can also turn on certain theological assumptions: indeed, part of Segal’s point is that on a plausible version of semantic externalism, the meaning of Talmudic terms turns on certain theological questions (not on what the Talmudic rabbis believed about those theological questions). We advance this first response to Novick in order to articulate some of the methodological differences that stand between our two disciplines. On the other hand, we recognize that we have much to learn from Jewish Studies, and that it stands to enrich our philosophy. We also hope that analytic philosophy will eventually enrich the conceptual map from which Jewish Studies is able to draw.

BIBLIOGRAPHY Clark, K. J. (2014) Religion and the Sciences of Origins: Historical and Contemporary Discussions. New York: Palgrave Macmillan. Bork, R. (1990) The Tempting of America. New York: Touchstone. Diamond, J. A. (2018) Jewish Theology Unbound. Oxford: Oxford University Press.

Jewish Studies and Analytic Philosophy of Judaism

335

Fishbane, M. (2010) Sacred Attunement: A Jewish Theology. Chicago: University of Chicago Press. Fredriksen, P. (2017) Paul: The Pagan’s Apostle. New Haven: Yale University Press. Hayes, C. (2009–10) “Theoretical Pluralism in the Talmud: A Response to Richard Hidary.” Diné Israel 26–7: 257–307. Hidary, R. (2017) Rabbis and Classical Rhetoric: Sophistic Education and Oratory in the Talmud and Midrash. Cambridge: Cambridge University Press. Kaufman, W. (2014) “The Truth about Originalism.” The Pluralist 9(1): 39–54. Kugel, J. (2007) How to Read the Bible: A Guide to Scripture Then and Now. New York: Free Press. Mittleman, A. L. (2015) Human Nature & Jewish Thought: Judaism’s Case for Why Persons Matter. Princeton: Princeton University Press. Newsom, C. A. (2007) The Self as Symbolic Space: Constructing Identity and Community at Qumran. Atlanta: Society of Biblical Literature. Plantinga, A. (1984) “Advice to Christian Philosophers.” Faith and Philosophy 1(3): 253–71. Shemesh, A. (2004) “Things That Have Required Quantities.” Tarbiz 73: 387–405. Sommer, B. D. (2015) Revelation & Authority: Sinai in Jewish Scripture and Tradition. New Haven: Yale University Press.

Index Abaye 55 Abraham 158, 161–162, 168, 207, 224, 237, 272, 302–304 Adams, Marilyn McCord 17, 214 Aderet, Rabbi Shlomo ben: see Rashba Adler, Jonathan 265 Akhnai, Oven of 46, 62–63, 65, 73, 75, 286 Akiva, Rabbi 156, 158, 161, 162, 178, 201, 205, 206 Albo, Rabbi Joseph 237, 282 Al-Farabi, Abū Naṣr Muḥammad 138, 141 Amida (Standing Prayer) 99–100, 194 (see also Prayer) Analytic Philosophy 1–5, 7, 9, 201, 326–327, 329–330, 332–334 Anscombe, G. E. M. 36 Anti-theodicy: see Theodicy Apophaticism: see Negative Theology Aquinas, Thomas 150, 222 Archaeology 240, 241 Arendt, Hannah 292 Ari (Rabbi Isaac Luria) 244, 247 Aristotle 6, 14, 15–18, 20–21, 25–26, 28–30, 31, 32, 55, 123, 124, 125, 128, 131, 136–137, 139–141, 142, 143, 146, 150, 164, 188, 244, 297 Arithmetic 129, 131 Asevilli, Rabbi Yom Tov ben Avraham: see Ritva Atheism 56, 199, 202, 204, 209, 214, 234, 251 Atonement 97, 99–100, 103, 110, 177 Augustine of Hippo 283 Autism 92, 195 Authority 238, 239, 296, 297, 298, 305 as expertise 65, 293 legal authority 45, 62, 288, 290–291 rabbinic authority 8, 43, 66, 75, 109, 276–277, 286–287, 288, 290, 291–294 service conception of 277, 288, 289–291, 292, 294 Azariah 152, 157, 161, 178 Bar Kochba, Shimon 313 Being 244, 249–259 Bellah, Robert 184, 189, 190 Berger, David 217, 272 Bergson, Henri 3 Berkeley, Bishop George 125–126, 132

Berkowitz, Rabbi Eliezer 71, 74, 201, 277–287, 290–291, 294 Berman, Joshua 240 Biblical Scholarship (i.e., text criticism) 240–241, 327, 334 Black, Max 84–85, 94 Bleich, Rabbi David J. 65–66 Bonaparte, Napoleon 223, 233 Breuer, Rabbi Mordechai 240 Brisker Rav: see Soloveitchik, Rabbi Yitzchak Zev (Velvel) Buber, Martin 1, 184, 185, 196, 300 Buddhism 235–236 Bugbee, Henry 191 Camp, Elisabeth 86, 88, 94 Camus, Albert 209 Cassuto, Umberto 240 Categorical Imperative 263, 265, 266, 274, 300 Catharsis 99–102, 110 Christianity 5, 100, 115, 149, 150, 151, 177, 183–184, 185, 190, 211, 213, 216, 228, 229, 230, 234, 237–238, 300, 328 Chrysippus of Soli 142 Cohen, Hermann 1 Cohen, Stewart 107–109 Coleman, Jules L. 283 Commandments 43, 63, 113, 114, 150, 151, 152, 153, 155–156, 187, 189, 190, 198, 205, 206, 215, 231–233, 238–239, 245, 252, 254, 258, 263, 276–287, 292, 293, 296, 299 not to deceive (geneivat da’at) 267 Positive and negative 97 reasons for (taamei hamitzvot) 205, 276, 277, 278–290 the Ten Commandments 128 to imitate God 140 (see also imitatio Dei) to love God 158, 161, 169 to love your neighbour 270 to rebuke one’s fellows 67, 70–71 to repent 98 (see also repentance) to return a collateral pledge each night 67 to sanctify (and not to desecrate) the name of God 157–178 without reasons 193, 206 Constant, Benjamin 264, 269 Contextualism 105–109, 111–115

338

Index

Cordovero, Rabbi Moshe: see Ramak Crescas, Rabbi Hasdai 222 Daniel 152, 158, 165, 178, 205 Daube, David 273 David 23, 79, 87, 186, 273 Davidson, Donald 89–90, 94 Davidson, Herbert 139, 146 Day of Atonement: see Yom Kippur Deontology: see under Ethics Descartes, René 4, 44, 135 Design 223, 237, 253–254 Destiny 6, 13–14, 20–21, 24, 27, 30, 212 Dewey, John 8, 183, 187, 188–189, 191 Diamond, James 326 Duvall, Robert 186 Dworkin, Ronald 63, 64, 69, 70, 284 Edwards, Jonathan 8, 230–233, 241 Eisenhower, Dwight 224, 227 Eliezer, Rabbi 62, 73, 75, 102–104, 109, 111–112, 112–114, 153, 156, 158, 159, 286 Emunah: see Faith Engar, Ann 272 Epicharmus 34 Epistemology 7, 92, 93, 104, 113–115, 135, 195 Esau 237, 263, 269–274 Escher, Maurits Cornelis 122 Ethics 123, 135, 210, 214, 215, 217, 265, 282, 306, 317 Crazy Ethics (abbreviated to CE) 318–320 Deontology 279, 292–294 Teleology 277, 280–281, 286, 290, 294 Utilitarianism 139, 211, 214 (see also, Categorical Imperative) Evil 138, 144, 150, 157, 162, 163, 170, 185, 187, 189, 199–200, 201, 202, 203, 205, 206, 207, 209–219, 253, 264, 303, 308, 311, 313, 317 Faith (Emunah) 5, 8, 149, 157, 183–196, 210, 217, 218, 224, 251, 260, 300–301, 304, 326 Fatalism 19, 21, 212, 218 Feinstein, Rabbi Moshe 65 Fiction and fictionalism 47–49, 53, 225 Fish, Stanley 69 Fishbane, Michael 326–327 Fraenkel, Carlos 135 Gellman, Yehuda (Jerome) 234–241 Geneivat Da’at: see under Commandment and Halakha Geometry 120–121, 126, 129–130

God 211, 213–219, 222–224, 227, 230, 232, 233, 235–236, 238–239, 241, 243, 249–253, 257–258, 260, 269, 272, 273, 278, 280–284, 299, 300, 302–304, 309, 331, 334 as perfect 88, 138, 146, 199, 202, 247 as person 243, 244, 245, 247, 251, 252, 258, 334 omnipotent 211 omnipresent 258 omniscient 202 Gödel, Kurt 133 Goldschmidt, Tyron 8, 218, 219 Goliath 23 Goltzberg, Stefan 2 Goodman, Nelson 51 Gottlieb, Rabbi Dovid 8, 223, 225, 227–228, 230, 233–235, 237–239, 241 Greenburg, Blu 73 Guilt 105, 111, 165, 177, 207 Guttmann, Rabbi Julius 136 Halakha 6, 16, 18–24, 31, 35–50, 53–57, 60–62, 64–66, 69, 71, 73–76, 104, 113, 156, 159, 160, 175, 209–210, 263, 266, 267, 269–270, 274–275, 276–277, 281–282, 284–288, 290–294, 327–329 Halakhic Interpretation 71 Halakhic Pluralism 75 (see also Pluralism) Halakhic Realism 53 Halakhic tradition 267, 286, 288, 291–293 Halakhic truth 49 Halakha and Physics 65–66 Halakha as theory or inquiry 47–49, 56, 74 Halakhic decisors 69, 75 Halakhic dispute/disagreement 42, 45, 48, 54, 62, 64, 65, 76, 104, 114 Halakhic exceptions 270, 275 Halakhic fiction 46, (see also Fiction and fictionalism) Halakhic norms 286–287, 292 Halakhic rulings (pesikah) 73, 277, 281–282, 284, 287 Halakhic-legal authority: see authority Teological philosophy of 277, 290 The aim of Halakha 209 The halakhic conception of a tenai (condition) 19–24, 25, 285 The Halakhic conception of geneivat da’at (theft of knowledge) 263, 266–271, 274, 287, 289–290 The halakhic obligation to return lost objects 39 The halalkhic principle of shinui koneh (transfer of title via significant change to the object) 39, 45

Index Halevi, Rabbi Yehuda 8, 224–228, 233, 241 Hampshire, Stuart 110 Hananiah 152, 157, 161, 178 Hanina, Rav 38–41, 54, 87–91 Hart, Herbert L. A. 284 Harvey, Zev 135 Hatam Sofer: see Sofer, Rabbi Moshe Hawthorne, John 52, 108–109, 110, 114 Hegel, Georg W. F. 1, 3 Heidegger, Martin 1, 208 Heinemann, Isaac 276 Helmreich, Jeffrey 6, 327–328, 332 Heschel, Rabbi A. J. 184, 188 Hick, John 199 Hidary, Richard 328 Hilbert, David 131–132 Hillel 287 The House of Hillel (Beit Hillel) 38–40, 42, 44–46, 48, 54, 55, 61–63, 65–68, 70, 73, 329, 334 Hirsch, Eli 6, 35, 36, 48, 51, 57 Hirsch, Rabbi Samson Raphael 273–274, 276 Holiness 137, 150, 151–152, 154, 156, 157, 162, 163, 166, 167, 172, 174, 176, 178, 188, 299 Kedusha 151, 155, 250, 252, 258, 259 Holocaust 9, 201, 202, 206, 309–310, 311, 319 Holocaust denial 234 Hume, David 7, 119–133, 216, 230, 278–279, 280–281, 305 Huna, Rav 102 Husserl, Edmund 1, 131 Ibn Gabbai, Meir 76, 244 Identity: Identity Criterion of Intervals 129–130 Jewish (or national) Identity 6, 9, 149–150, 152, 163, 166, 317 Non-Identity Principle (abbreviated to NIP) 9, 307–335 of objects 35, 48, 49, 54–55, 57 of people over time 53, 126 Idolatry 128, 138, 152–154, 157, 160–162, 164–167, 169–176, 235, 239, 247 Idolaters 266 Ilai, Rabbi 38–41, 45–46, 54 Illusion 128, 130, 200, 247, 316–318, 320 Imitatio Dei (“Imitate His ways”) 136–143, 151, 270 Impossibilities: see impossible objects, under objects, and see Possibility and Impossibility Injustice 188–190, 209 Invariantism: see Sensitive Invariantism Isaac 224, 263, 269–274, 303 Isaiah 157, 187

339

Ishmael, Rabbi 70, 153–154, 156, 160, 162–163, 166, 171, 173, 177 Islam 2, 115, 123, 128, 149–150, 151, 184, 230, 234 Jacob (or Israel) 157, 263, 269–274, 303 Jeremiah 205 Jesus 150 Jewish New Year: see Rosh Hashana Job 143–144, 145, 187, 190, 205–206, 213 Johnson, Mark 82–83 Joshua 230 Josiah 235 Kabbalah 8, 216, 243–244, 246–247, 249–260 Kadushin, Max 194 Kalam 123–131 Kanefsky, Rabbi Yosef 194 Kant, Immanuel 1, 3, 131, 213, 263–267, 269, 271, 274, 278, 297 (see also Categorical Imperative) Kasher, Rabbi Menachem 273 Katzoff, Charlotte 272 Kaufman, Whitley 332 Kedusha: see Holiness Kellner, Menachem 4, 81, 83, 299, 320 Koheleth 78–79 Korsgaard, Christine 264, 296 Kotler, Rabbi Aharon 13, 14, 20, 21, 22, 31 Kuzari Principle 224–228, 230–233 objections to the Principle 234–240 The Jumbled Kuzari Principle 233, 236, 239 Laban 270, 273–274 Lakoff, George 82–83 Lebens, Samuel 6–7, 91, 93, 98, 206, 207, 238 Leibniz, Gottlieb 147, 230, 308 Leibowitz, Isaiah 209 Leiter, Brian 283 Leslie, Charles 8, 228–233, 241 Levinas, Emmanuel 1, 201, 209 Levine, Aaron 266, 268, 270 Lewinsohn, Jed 36, 57, 60, 62 Lewis, C. S. 183, 204 Lewis, David 51–52, 100, 105–107, 109, 111–113 Lichtenstein, Rabbi Aharon 75, 325 Logic 1, 2, 5, 6, 30, 53, 54, 163, 199, 200, 201, 210, 225, 244, 250, 282, 300, 303, 309, 329, 332 default logic 70 non-standard 30 the supremacy of 332 Lotus Sutra 228, 235–236

340

Index

Luria, Rabbi Isaac: see Ari Luria, Rabbi Solomon 76 Luzzatto, Rabbi Moshe Chaim: see Ramchal MacIntyre, Alasdair 265 Maimonides, Rabbi Moses 2, 3, 5, 7–8, 78, 87, 88, 91, 96, 97–99, 102, 104, 105, 109, 110–111, 119–133, 135–147, 149–178, 189–190, 216, 222, 244, 249, 260, 286, 328 Mar Zutra 266–268, 270, 273, 274 Mathematics 1, 105–106, 119–121, 122, 124, 128, 131–133, 222, 225, 250 Mendelssohn, Moses 276 Metaphor 2, 6–7, 35, 78–86, 88–91, 93–94, 98, 105, 141, 185, 244, 273 Metaphysics 1, 5, 6, 24, 34–57, 92, 97, 113, 135, 154, 163, 175, 189, 200–201, 206, 209–210, 213, 252, 301, 329 continental metaphysics 201 metaphysical disagreement or dispute 42, 44–45, 46, 48, 51–52, 54–55 metaphysical dualism 137 metaphysical explanation 29 metaphysical indefiniteness 25, 29, 31 metaphysics of evil and suffering 200, 210 of action 36 of material objects: see objects rabbinic (or halakhic) metaphysics 36, 48, 329 Miracles 124–125, 144, 151, 222–228, 230, 232, 234–241, 286 Mishael 152, 157, 161 Mittleman, Alan 326 Mohammed 227 Moore, George E. 1, 2, 68, 228 Moses 43, 63, 64, 87, 100, 142, 157, 201, 205, 209, 213, 229, 230, 231, 241, 303–304 Mutakallimūn: see Kalam Nachman, Rav 80–84, 86, 91, 93 Nachmanides, Rabbi Moses 21–22, 43, 190, 193, 198–199, 203, 216, 217, 282 Nadler, Steven 135, 146, 147 Napoleon: see Bonaparte, Napoleon Natural Law 283–284 Naturalism 135, 187, 188–191, 239, 255 ethical naturalism 137 methodological naturalism 331–332 Nebuchadnezzar 152, 157, 161, 166, 169, 174 Negative theology (apophaticism) 87–88 Neuroscience 92–93, 211 Nietzsche, Friedrich 82–84, 94, 183–185 Nissim, Rabbi, of Gerona: see Ran Novak, David 276 Novick, Tzvi 9, 330–334

Objects 82, 119, 122–123, 125–126, 129, 154, 212–213, 250, 301 cultic objects 163 impossible objects 122 material objects 35–36, 39, 42, 44, 121, 132 the sale of objects 16, 19–20, 22–23 Obligation 153–154, 177, 200, 286, 299–301, 328 obligatory beliefs and actions 4, 299 to compensate for damages or theft 39–40 to God and to man 97 to repent 98, 104 (see also, repentance) to die for God 149, 153–154, 167 to transgress the law 174 to sanctify God’s name 157, 163, 175, 176 to theodicize 198, 199 to relieve suffering 209 to be truthful 264, 267, 268, 270, 274, 296 of morality 278, 297, 281, 285, 296–297, 305–306 the power to obligate 288, 293, 296–297 to love God 158 financial obligation 16, 23, 34–35 Ockham, William of 6, 14, 17–21, 25–26, 28–29, 246 Omnipotence: see God Omnipresence: see God Omniscience: see God Ontology 51–52, 55, 82, 223, 243, 246, 248–249, 259 Parfit, Derek 53, 308 Parsons, Charles 119, 131–132 Passover 66, 70, 74, 97, 114, 318 Peace 175, 176, 177, 199, 209, 253, 270, 273 ways of peace (darkei shalom) 74, 270, 282 Persistence 35, 39, 40–42, 44, 48, 111, 218, 300, 306 Pesach: see Passover Physics 26–27, 29, 31, 32, 52, 65–66, 121, 128, 131, 333 Pike, Nelson 17, 214 Pines, Shlomo 129, 135 Plantinga, Alvin 214, 331 Plato 124, 127, 132, 136–138, 141, 184, 248, 250 Plotinus 141 Pluralism 1, 6, 42–43, 60–76, 113, 327–329, 332–334 Poetry 7, 71–72, 193 Pollock, Frederick 34 Pope Boniface IX 224 Positivism: legal 283–284, 287–291 logical 201

Index Possibility and Impossibility 7, 90, 106–107, 109, 199–121, 124, 125, 127, 129, 131, 207, 211, 239, 241 Postmodernism 3, 331–332 Prayer 65, 71, 87, 99, 155, 187, 191, 193–195, 206, 217, 316, 328, 331 (see also Amida and Sh’ma) Providence 91, 136, 140, 143–144, 146, 190, 244, 245, 252, 254, 258 Qedushah: see Kedusha Quine, W. V. O. 50, 188 Rabbinic authority: see authority Rabinowich, Rabbi Nahum 209 Rabinowitz, Dani 7, 57, 60, 64, 96, 100, 104, 328–329, 333 Ramak (Rabbi Moshe Cordovero) 244, 260 Rambam: see Maimonides Ramban: see Nachmanides Ramchal (Rabbi Moshe Chaim Luzzatto) 244, 251, 260 Ran (Rabbi Nissim ben Reuven) 22 Rashba (Rabbi Shlomo ben Aderet) 15, 23 Rashi (Rabbi Shlomo Yitzhaki) 6, 13–15, 17, 19, 20–21, 24–32, 75, 103, 105, 109, 267, 268, 270–272, 328 Rav 64, 168 Rava 40, 266–268, 270, 273, 274 Ravven, Heidi 135 Raz, Joseph 277, 287–291 Rea, Michael 1, 2, 34 Rebecca 269–270, 272–273 Regret 9, 98, 103, 110, 112, 164, 272, 309–312, 314 Reimer, Marga 89–90 Repentance 7, 96–105, 109–115, 185, 328, 333 Reuven, Rabbi Nissim ben: see Ran Revelation 31–32, 62, 63, 68, 76, 222, 227, 234, 236, 237–238, 251, 259–260, 280, 331–332 Ritva 43, 63–65, 67, 267 Rosen, Rabbi Michael 185, 192 Rosenzweig, Franz 1, 276 Rosenzweig, Rabbi Michael 325 Rosh Hashana 97, 113, 185 Rowe, William 202, 214 Russell, Bertrand 1–2, 4–5, 25, 26, 31, 92 Saadya Gaon 8, 222, 224, 228, 233, 241 Sabbath 70, 74, 114, 152, 177, 192, 223, 229, 232, 304 Sacks, Rabbi Jonathan 93, 189, 209–210 Safra, Rav 266–268, 270, 273, 274

341

Sagi, Avi 43, 45, 62–63, 76, 113, 209, 292–294 Samuel (or Shmuel) of Nehardea 61, 177, 266 Sandel, Michael 265 Saul 15, 23, 273 Schimmel, Solomon 235 Schnall, Ira 214, 215 Schwarz, Michael 124, 131 Sedley, David 34, 141 Segal, Aaron 6, 60, 74, 113, 155, 166, 178, 207, 208, 213, 214, 217, 329, 333–334 Seneca, Lucius Annaeus 142 Sensitive Invariantism (SI) 105, 107–109, 112–115 Sh’ma 190 Shammai: the House of Shammai (Beit Shammai) 38–40, 44–45, 48, 55, 61, 65–68, 70, 73, 75, 329, 334 Shatz, David 8, 44, 57, 153, 158, 178, 200, 204, 211, 213, 214, 282 Shelley, Cameron 265 Shesheth, Rav 38–39, 45, 48 Shila, Rav 85–86, 88, 90 Shimon, Rabbi 68 Shinui Koneh: see under Halakha Sider, Theodore 51 Simon, Maurice 79 Sincerity 98, 110, 112, 192 Skeptical Theism 202, 214–215 Slavery 209, 238, 309 Sofer, Rabbi Moshe (the Hatam Sofer) 75 Sokol, Moshe 75, 200, 209, 212, 214 Solomon 78–81, 83–84, 86–87, 89, 90, 91, 93–94 Soloveitchik, Rabbi Joseph 99, 101, 103, 104, 156, 200–201, 206, 208, 209, 210, 212 Soloveitchik, Rabbi Yitzchak Zev (Velvel) 73–74 Sommer, Benjamin 326–327, 334 Spinoza, Baruch 7, 135–136, 144–147, 212, 226 Stanley, Jason 94, 108, 114 Stern, David 78, 79 Stern, Josef 5, 7–8, 131, 139, 146, 156, 165, 177 Stoicism 36, 136, 142–146, 187 Strauss, Leo 135 Stump, Eleonore 92, 195, 215 Suffering 72, 144, 149, 200, 201, 202, 205, 209–210, 211, 212–215, 218, 238, 260, 311, 313, 315 Swinburne, Richard 222, 237, 241

342

Index

Temple 9, 40, 99, 101, 151, 152, 154, 163, 165, 205–206, 229, 235, 253, 312–313 Tempo 9, 196, 300–301, 303, 306 Tenai: see under Halakha Teleology 208, 253, 259 (see also under Ethics) Tennyson, Alfred 186, 189 Theodicy (and anti-theodicy) 8, 187, 189, 191, 198–219, 315 Tikun Olam (fixing the world) 253–258 Tish’ah Be’Av 312 Tosafot 15–17, 19, 22, 26, 30, 32, 39–40, 267–268 Trakakis, Nick 201, 202, 211, 218 Tzimtzum (contraction) 244, 246–247, 250, 255, 259

Williamson, Timothy 25, 26, 30, 94, 96 Wittgenstein, Ludwig 2, 29, 36, 50, 133, 183, 186 Wolfson, Harry A. 135 World War I 309 World War II 227, 314 Worship 152, 153, 158, 159, 161, 165, 172, 190, 232, 239, 247, 330 Worship-worthiness 161, 205, 215 Wright, Larry 188

Van Inwagen, Peter 47, 207, 214

Yehoshua (Joshua), Rabbi 286 Yehuda (Judah), Rav 64 Yehuda, Rabbi 13, 68 Yitzchaki, Rabbi Shlomo: see Rashi Yohanan, Rabbi 36, 43, 153, 155, 172 Yom Kippur (The Day of Atonement) 97, 99–100, 101–102, 104, 114, 115, 185, 217, 328 Yossi, Rav 84–86, 88, 90, 91, 93

Westphal, Merold 208 Wilhelm, King Friedrich II 265

Zera, Rabbi 40 Zuckerman-Sivan, Ezra 8, 232–233, 241

Ulla 268 Utilitarianism: see under Ethics