On Halakhah #3: Introduction to Values-Based Halakhah, Part One David Zvi Kalman - [email protected] 1. Edwin A. Abbott (England, d. 1926), Flatland: A romance of many dimensions The diminished brightness of your eye indicates incredulity. But now prepare to receive proof positive of the truth of my assertions. You cannot indeed see more than one of my sections, or Circles, at a time; for you have no power to raise your eye out of the plane of Flatland; but you can at least see that, as I rise in Space, so my sections become smaller. See now, I will rise; and the effect upon your eye will be that my Circle will become smaller and smaller till it dwindles to a point and finally vanishes.

There was no "rising" that I could see; but he diminished and finally vanished. I winked once or twice to make sure that I was not dreaming. But it was no dream. For from the depths of nowhere came forth a hollow voice - close to my heart it seemed - "Am I quite gone? Are you convinced now? Well, now I will gradually return to Flatland and you shall see my section become larger and larger." Every reader in Spaceland will easily understand that my mysterious Guest was speaking the language of truth and even of simplicity. But to me, proficient though I was in Flatland Mathematics, it was by no means a simple matter. The rough diagram given above will make it clear to any Spaceland child that the Sphere, ascending in the three positions indicated there, must needs have manifested himself to me, or to any Flatlander, as a Circle, at first of full size, then small, and at last very small indeed, approaching to a Point. But to me, although I saw the -1-

facts before me, the causes were as dark as ever. All that I could comprehend was, that the Circle had made himself smaller and vanished, and that he had now reappeared and was rapidly making himself larger. 2. Fred Brooks, (b. 1931), No Silver Bullet: Essence and Accidents of Software Engineering, 1986 Software entities are more complex for their size than perhaps any other human construct because no two parts are alike (at least above the statement level). If they are, we make the two similar parts into a subroutine--open or closed. In this respect, software systems differ profoundly from computers, buildings, or automobiles, where repeated elements abound. Digital computers are themselves more complex than most things people build: They have very large numbers of states. This makes conceiving, describing, and testing them hard. Software systems have orders-of-magnitude more states than computers do. Likewise, a scaling-up of a software entity is not merely a repetition of the same elements in larger sizes, it is necessarily an increase in the number of different elements. In most cases, the elements interact with each other in some nonlinear fashion, and the complexity of the whole increases much more than linearly. The complexity of software is an essential property, not an accidental one. Hence, descriptions of a software entity that abstract away its complexity often abstract away its essence. For three centuries, mathematics and the physical sciences made great strides by constructing simplified models of complex phenomena, deriving properties from the models, and verifying those properties by experiment. This paradigm worked because the complexities ignored in the models were not the essential properties of the phenomena. It does not work when the complexities are the essence.

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3. Yeshayahu Leibowitz (Israel, d. 1994), Judaism, Human Values, and the Jewish State, 1992 p. 6:

p. 4:

4. Maimonides (d. 1204, Egypt), The Guide of the Perplexed, trans. Shlomo Pines. III:27 The Law as a whole aims at two things: the welfare of the soul and the welfare of the body. As for the welfare of the soul, it consists in the multitude’s acquiring correct opinions corresponding to their respective capacity. Therefore some of them [namely, the opinions] are set forth explicitly and some of them are set forth in parables....As for the welfare of the body, it comes about by the improvement of their ways of living one with another. This is achieved through two things. One of them is the abolition of their wronging each other. This is tantamount to every individual among the people not being permitted to act according to his -3-

will and up to the limits of his power, but being forced to do that which is useful to the whole. The second thing consists in the acquisitoin by every human individual of moral qualities that are useful for life in society so that the affairs of the city may be ordered. Know that as between these two aims...the procuring of correct opinions...is prior in nature and time. III:31 Every commandment from among these 613 commandments exists either with a view to communicating a correct opinion, or to putting and end to an unhealthy opinion, or to communicating a rule of justice, or to warding off an injustice, or to endowing men with a noble moral quality, or to warning them against an evil moral quality. Thus all [the commandments] are bound up with three things: opinions, moral qualities, and political civic actions. III:32 His wisdom, may He be exalted, and His gracious ruse, which is manifest in regard to all His creatures, did not require that He give us a Law prescribing the rejection, abandonment, and abolition of all these kings of worship. For one could not then conceive the acceptance of [such a Law], considering the nature of man, which always likes that to which it is accustomed. At that time this would have been similar to the appearance of a prophet in these times who, calling upon the people to worship God, would say: “God has given you a Law forbidding you to pray to Him, to fast, to call upon Him for help in misfortune. Your worship should consist soleley in meditation without any works at all.” There He, may He be exalted, suffered the above-mentioned kinds of worship to remain, but transferred them from created or imaginary and unreal things to His own name, may He be exalted, commanding us to practice them with regard to Him, may He be exalted. III:34 Among the things that you likewise ought to know is the fact that the Law does not pay attention to the isolated. The Law was not given with a view to things that are rare...it is directed only toward the things that occur in the majority of cases and pays no attention to what happens rarely or to the damage occuring to the unique human being because of this way of determination and because of the legal character of the governance. -4-

5. Oliver Wendell Holmes, Jr. (America, d. 1935), “The Path of the Law,” Harvard Law Review 10 (1897); available at http://constitution.org/lrev/owh/path_law.htm ...I think it desirable at once to point out and dispel a confusion between morality and law...You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. ... I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of the first importance for the object which we are here to consider — a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. I have just shown the practical reason for saying so. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. ... At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the -5-

first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. 6. Rabbi Elisha Ancselovitz (unpublished) This book’s thesis is that those Halakhic arbiters throughout Jewish history who have been widely accepted in their Jewish sub-cultures both in their lifetimes and after their deaths have been sages as opposed to mere legal scholars or jurists. In other words, regardless of the particular methodologies employed at different stages in the history of Judaic Law and of the cultural differences between different locales of Jewish life, the leading authorities have reached their decisions as sages instead of as mere scholars or jurists. These authorities were neither scholars and jurists of legal data, whose ideology was one of static-law, nor activist jurists, whose ideology was one of dynamic law. Rather, they were the people who knew and unpacked all of their (scholarly) culture’s normative positions on life and who attempted to reach consequentialistically good decisions by balancing all of the culture’s insights integratively instead of simply obeying precedents, overthrowing or manipulating precedents, or even making simplistic value judgments of the appropriate response to a contemporary problem. [...] 1. Every halakhah provides an insight on the human condition and on conflicting human needs. 2. It is the insights alone that both inform and command all of us; Halakhic forms are not eternal, ideal or natural, forms but rather contextual decisions that balance values/needs/ perspectives. 3. The written form of a given halakhah, that latest balance of needs, may either remain intact as the best balance for (a specific group’s) contemporary circumstances or may be paskened appropriately for changed circumstances. Thus one must have both a wide breadth of knowledge and deep wisdom in order to rule Halakhically. In the words of R. Joel Sirkes (Poland, 1561-1640): “One needs great wisdom and proficiency in order to reach a sufficiently -6-

justified decision” (Responsa Ba”H, New Series # 42). 7. Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36:1/2 (Jan. 1984) [Description of CLS:] 1. “Law” and “society” are separate social categories, each describable independently from the other but related to each other through various mechanisms of causal linkage. 2. Societies have needs. 3. There is an objective, determined, progressive social evolutionary path. 4. Legal systems should be described and explained in terms of their functional responsiveness to social needs. 5. The legal system adapts to changing social needs. [Critiques of CLS:] Having at last completed the catalogue of variations, let me re- state in summary form those that have done the most to inform the varieties of Critical historiography: 1. The conditions of social life and the course of historical development are radically underdetermined, or at least not determined by any uniform evolutionary path. 2. The causal relations between changes in legal and social forms are likewise radically underdetermined: Comparable social conditions (both within the same and across different societies) have generated contrary legal responses, and comparable legal forms have produced contrary social effects. 3. If a society's law can't be understood as an objective response to objective historical processes, neither can it be understood as a neutral technology adapted to the needs of that particular society. Legal forms and practices are political products that arise from the struggles of conflicting social groups that possess very disparate resources of wealth, power, status, knowledge, access to armed force, and organizational capability. 4. Although they are the product of political conflict, legal forms and practices don't shift with every realignment of the balance of political forces. They tend to become embedded in "relatively autonomous" structures that transcend and, to some extent, help to shape the content of the immediate self-interest of social groups. 5. This relative autonomy means that they can't be explained completely by reference to external political/social/economic factors. To some extent they are independent variables in social experience and therefore they require study elaborating their peculiar internal -7-

structures with the aim of finding out how those structures feed back upon social life. Given what so often appears to be the indeterminacy of instrumental effects, a promising approach for such study may be to treat legal forms as ideologies and rituals whose "effects"- effects that include people's ways of sorting out social experience, giving it meaning, grading it as natural, just, and necessary or as contrived, unjust and subject to alteration-are in the realm of consciousness. 6. Our accustomed ways of thinking about law and history are as culturally and historically contingent as "society" and "law" themselves. Though we can never completely escape from the limitations of our environment, we can to some extent protect against the risk of simply projecting our parochial categories onto the past with a self-conscious effort to relativize our own consciousness, by trying to write the story of its formative context and development and by trying to reconstruct as faithfully as possible the different mentalities of past societies before translating them into our own. 7. It will also help us to relativize our understanding of the past's relation to the present if we see that our conventional views of that relation are mediated by familiar narrative story-lines, that are so deeply entrenched in our consciousness that we are often unaware of their rule over our conception of reality. These story-lines, like other mentalities, have a history filled with ideological purposes, and there always exist-and so we always may draw upon-competing stories that impress the same historical experience with radically divergent meanings. Taken en bloc rather than separately, this set of partial critiques adds up to a position that most people who see themselves as doing Critical legal historiography would probably accept. Many, though by no means all, would want to push the critique still further. ... Yet, in practice, it is just about impossible to describe any set of "basic" social practices without describing the legal relations among the people involved-legal relations that don't simply condition how the people relate to each other but to an important extent define the constitutive terms of the relationship, relations such as lord and peas- ant, master and slave, employer and employee, ratepayer and utility, and taxpayer and municipality. For instance, among the first words one might use to identify the various people in an office would likely be words connoting legal status: "That's the owner over there." "She's a partner; he's a senior associate; that means an associate with tenure." "That's a contractor who's come in to do repairs." "That's a temp they sent over from Manpower." -8-

8. Robert Cover, “Nomos and Narrative,” The Supreme Court, 1982 Term (1983) p. 4

p. 7

p. 9

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‫‪p. 16‬‬

‫‪ .9‬אגרות משה‪ ,‬אבן העזר חלק א סימן ז‬ ‫בדבר ליקח שערס מקאמפאניעס שעושין מלאכה ומסחר בשבת הא חזינן שנתפשט להיתר והטעם פשוט‬ ‫שאין להחשיב את הקונים שערסשהוא רק משהו מהמסחר שאין להם שום דעה בהמסחר אף לענין חלקם‬ ‫לבעלים של"ד לשותפות במקצת שיש לו דעה כבעלים‪ ,‬וגם אין הקונהשערס רוצה להיות בעלים בהמסחר ו‬ ‫אינו רוצה לקנות כלום בהמסחר אלא הוא רק כקונה ריוח והפסד שיהיה בהמסחר לפי סך כך וכך שקנה‪,‬ויו‬ ‫תר נראה שאין בהם גדר קנין בדינא שהוא לקנין דבר שלא בא לעולם‪ ,‬רק מצד קניני דיני המדינה‪.‬‬ ‫ומה שלפי תנאי המכירה יש לבעל השערסדעה לבחירת פרעזידענט ‪/‬נשיא‪ /‬הוא רק פטומי מילי בעלמא כי‬ ‫למעשה משאירין לעצמן יותר מהרוב שלא שייך שיאמרו דעה וגם הקונים איןרוצים לומר דעה בזה כי אין כ‬ ‫וונתם לקנות זה ולכן לע"ד אין לחוש למה שעושים הבעלים דהקאמפאניעס שאינו נוגע להם‪.‬‬ ‫ואף אם יש גםיהודים בהבעלים אין להחשיב מסייע לעוברי עברה שהמסחר יעשו גם כשלא יקנה שערס מה‬ ‫ם כי לא חסר מי שיקנה שערס והקונה קונה רקלטובת עצמו ולכן אין בזה שום איסור וכמו שנוהגין הרבה בנ‬ ‫"א ואף יראי חטא לקנות‪.‬‬ ‫אבל ודאי לקנות מדה מרובה כ"כ עד שיתחשבו בדעתו יש לאסור‪...‬‬ ‫‪9. Igros Moshe (R’ Moshe Feinstein, New York, d. 1986), Even Ha’Ezer 1:7‬‬ ‫‪On the question of buying shares from companies that do melakhah and business on Shabbat:‬‬ ‫‪we see it fitting to be permissive. The reason is simple: the shareholder is not relevant, since‬‬ ‫‪he is simply a part of the business, since the shares have no say in the business — with the‬‬ ‫‪exception of the owners’ portion. There is not enough for there to be a “partnership” in the‬‬ ‫‪- 10 -‬‬

little that he has. As well, the shareholder does not wish to be the business owner, nor does he wish to purchase anything from the business. Rather, it is as though he is purchasing whatever profits or losses there are from the business according to the given amount that he purchased. Moreoever, it appears that, strictly speaking, this is not a “purchase” [qinyan], since he is purchasing something nonexistent. It is only a “purchase” according to the local laws. As for the fact that, according to the conditions of purchase, the shareholder can vote for the president — this [vote] has no [halakhic] legal significance, since in reality they [the corporation] leave for themselves the majority [of shares], so any opinion [the shareholders] express is irrelevant. The shareholders, too, do not [even] want to express an opinion about this, since their intention is not to buy this [company]. As a result, my humble opinion is that one need not worry about what the owners do, since this does not concern [the shareholders]. And even if there are Jews among the owners, they need not be considered accessories to sin, since they will conduct business regardless of whether [the Jewish owner] purchases shares from the company, since there is no absence of buyers [and thus all shares will be held] and since the buyer buys only for his own personal benefit [and not to partner with the Jewish owner]. As a result, there is no prohibition, just as it is the practice of many people and even those who fear sin to purchase [shares]. However, there is reason to forbid the purchase of a quantity sufficiently large that [the owners] will consider his opinion.

Further reading: http://www.edah.org/backend/JournalArticle/bigman2_1.pdf http://www.lookstein.org/links/orthodoxy.htm http://www.amazon.com/Becoming-People-Talmud-Tradition-Medieval/dp/0812243137 http://constitution.org/lrev/owh/path_law.htm http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3690&context=fss_papers http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3687&context=fss_papers - 11 -