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Jewish Philosophy in an Analytic Age$

Samuel Lebens, Dani Rabinowitz, and Aaron Segal

Print publication date: 2019

Print ISBN-13: 9780198811374

Published to Oxford Scholarship Online: August 2019

DOI: 10.1093/oso/9780198811374.001.0001

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Neither Authoritarian nor Superfluous

Neither Authoritarian nor Superfluous

A Normative Account of Rabbinic Authority

Chapter:
(p.276) 15 Neither Authoritarian nor Superfluous
Source:
Jewish Philosophy in an Analytic Age
Author(s):

Yonatan Y. Brafman

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198811374.003.0015

Abstract and Keywords

This study addresses the project of grounding the legitimacy of halakhic-legal authorities, like rabbis or rabbinic courts. Importantly, this inquiry is distinct from, but related to, investigation into the justification of halakhic norms. I begin by exploring the work of Eliezer Berkovits. I argue that he offers a robust teleological justification of halakhic norms by showing how they are aimed at a moral purpose and how this purpose guides halakhic-legal practice. On this account, the directives of halakhic-legal authorities do not possess any independent normativity, for they only direct individuals to perform actions that they already have reason to do anyway, specifically the reasons that Berkovits indicates in his justification of halakhic norms. I offer a new model for grounding the legitimacy of halakhic-legal authorities that links it to the justification of halakhic norms without reducing it to that effort.

Keywords:   rabbinic authority, Eliezer Berkovits, Joseph Raz, halakhic normativity

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 (p.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 well-intentioned 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. Eliezer 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.

(p.278) 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.

(p.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 (p.280) 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 “Deterministic-Evolutionary” 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 (p.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 (p.282) 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).

(p.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.

(p.284) 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 (p.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.

(p.286) 15.2.3. The Legitimacy of Halakhic-Legal Authority

Because of Berkovits’s teleological and dynamic view of Jewish law, halakhic-legal 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 (p.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. Inclusive Legal Positivism and The Instability of Legal Authority

Berkovits’s account of pesikah renders rabbinic authority superfluous precisely because the moral purpose that justifies the commandments directly regulates (p.288) 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 (p.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; (p.290) 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 action-guiding 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.

(p.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 (p.292) 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. Conclusion: Modern Religiosity 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 (p.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 (p.294) 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.

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Notes:

(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.

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

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

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

(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.

(8) Maimonides, Sefer ha-Mitzvot, Positive Commandment, #176.

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

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