Monday, February 18, 2008

A "Legal System"?

One of the things that keeps turning over and over in my mind is the claim made by many that Halacha is a "legal system". I suppose in some respects it is true, but there is something about that moniker that strikes me as wrong and misleading, though I am not sure why. It doesn't help that I am neither a lawyer nor someone familiar with the history and concepts of law. So I guess the only way for me to open this game of poker is to lay my misgivings on the table...

It is my presumption that the primary purpose of a legal system is to govern relations in a society of human beings. How should human beings behave in a society - how do they handle disputes, how do they ensure fair treatment, how do they ensure their rights, etc... In torah-talk this would be "bein adam v'chaveiroh".

It is also true that there are aspects of a legal system that try to legislate "morality" to some degree. Polygamy may be a good example. Not being able to buy liquor on Sunday morning (my favorite pet peeve). In many cases, these are vestiges of a more theocratic society that have been preserved to varying extents in legal systems around the world. In torah-talk this is "bein adam v'hamakom".

I don't know if there is a third category that exists in Halacha or whether it is an overdeveloped case of the latter category, but one of the key things that rubs be the wrong way about calling it a "legal system" is the disproportionate amount of "laws" that seem to be absurd from a legal perspective. What direction to align your bed, which shoe to put on your foot first, how to make tuna salad on Shabbos, how to chase away birds from their nests to take their eggs even if you don't have any need for them. When added up, these seemingly minor grains of halacha add up to enormous boulders. What other legal system exists out there where such minutia are regulated with the force of law?

Which brings me to the next question - the origin of many of these laws. What I am about to state is personal opinion and I am sure many will disagree, but the origins of many of these laws seem quite bizarre. We can talk about Bismark and his line about laws and sausages, but frankly, there has to be a limit? I can certainly buy the concept of certain laws being given as Divine Revelation - we can argue about whether they were or weren't, but there is a huge gap between Divine chukkim and reasoning such as:
"The Scriptural source for this advice is derived from the verse: "The belly you fill with your treasure (Tzfuncha) who have sons in plenty" as if to say that placing one's bed from the "tzafon" (north) will lead to having "sons in plenty". Considering that God's presence is said to hover between east and west, it was felt that engaging in marital relations within this corridor would be inappropriate. Therefore one places one's bed north-south so as to avoid a direct collision with the Shechina during marital relations." (Hirhurim blog)2/05/2008


Which brings me to my final point - it has been argued that Halacha is a flexible system. And perhaps it is more flexible than some people admit. But is it possible to have a legal system where it seems like nothing can ever be admitted to require change? Sure your individual case might get a dispensation, but we can never say, this was a mistake and it needs to be changed for everyone. Imagine the situation in the case of Civil Rights for blacks where the United States never ruled that racial segregation was wrong, and instead they said, well, if you ask your local Board of Education, they can look at your case and perhaps allow it, but on the record it is still enforced?

I don't know, am I completely insane in asking these questions? I am not a lawyer, nor am I a talmid chacham, and really my point is not to criticize Halacha, but to ask "Is Halacha something sui generis, or is it just a variant of a legal system?

11 Comments:

Blogger Tobie said...

See, I'm not sure I accept your basic premise as to what defines a legal system. The way I see it (and I'm not sure if this is legitimate per legal jargon) is that it is not the goals, but the methods that define a legal system. The fact that halacha is a bunch of written norms that are applied to new and specific cases over the course of years via interpretation, to me, makes it a legal system. As opposed, say, to a system which governs behavior by saying people should do what feels good. Or what G-d tells them that morning. Or what some random body decides they should do that day.

Nor am I quite sure that halacha is invalidated from being a legal system because of the things that it covers. The fact that it deals in minutia makes it no different from the average tax code. The weird thing is that it deals in minutia that seem to have no moral significance. And that is equally a kasha on its standing as a moral code and a kasha to which I don't really have any satisfying answers, other than to shrug and say, that's how it evolved. The basic reason, I guess, is that when the code addresses questions that aren't covered in civil legal codes, the minutia will address those issues as well. Minutially.

It's true that the halachic system, in general, will not admit that it is evolving or needs to evolve. however, when you watch it, you can clearly see that it is doing so and you can locate occasional voices that admit this to various degrees (e.g. the Rambam's opinion that sacrifices were pandering to the contemporary paganistic impulses, or more modern, very left-wing Orthodoxy opinions)

I personally believe that the degree of Divine sanction to the various norms is secondary to the divine sanction for the system as a system. I love the halachic system particularly because it has been detached from amorphous moral concepts and allowed to live and evolve, flexible but with a hardier backbone than the average feel-good/voice from on High religion.

I, as well, am neither a lawyer (yet!) or a halachic expert, so most of the above is just my personal opinion and may possibly just reflect my fondness for legalism more than proving that halacha has a similar fondness.

February 18, 2008 10:14 AM  
Anonymous Fievel Chuchem said...

Interesting post, SFE.

Chief Rabbi Sachs points out (probably his source is footnoted - can't take the time now to look) that the American legal system was one of the first to integrate the idea that human beings could change the fundamental principles that underlay the laws that govern them. Assuming this is true, this means the American legal concept is "new" in history, essentially less than 300 years old, and it wouldn't be surprising that older systems like halacha would not have incorporated this feature of allowing wholesale amendment.

But that doesn't make it, or the American system, less or more of a "legal system". It merely means that the underlying covenental assumptions are different.

When you realize that most of the American founding fathers were not theists in the conventional sense Jews mean that, but rather deists (meaning, that they believed G-d created the universe and then let its affairs be run by us), it's easy to understand why they instituted an amendment process. They felt that no generation of humans had any superiority over another, and that all socieites have a right to define the laws that govern them. That doesn't mean that they thought people would just "go for what feels good", but rather, they recognized that at the end of the day, we must take responsibility for our deriving the sets of actions and norms we consider acceptable, rather than ascribe these things to a source that in their mind wouldn't have involved himself so intimately in human affairs.

It could be we don't do a good job of that, but that's our fault, not that of the legal system, in the eyes of the Founding Fathers.

February 18, 2008 10:47 AM  
Blogger e-kvetcher said...

As I hope was clear from the tone of my post, I am inviting discussion. i certainly don't have authority to state whether it is or isn't a legal system. I am just trying to crystallize my difficulties with that comparisons.

Like I said, it's not that I don't see similarities to a legal system, but it's the differences that are problematic to me.

>I personally believe that the degree of Divine sanction to the various norms is secondary to the divine sanction for the system as a system.

This is something I hope to address in a later post. The Chazal certainly were brave enough to claim such sanction for themselves. It seems to me that the Sanhedrin had much broader powers than what's allowed by current halacha. For whatever reasons we relinquished this power, and we don't have the balls to reclaim it. We are like little children whose parents disappeared and we keep waiting for them to come back. Decades go by, we are adults already, but we are still locked in the house, squeaking by, afraid to go outside and be adults, waiting for our mommy to come home.

BTW, how about that quote about avoiding "a direct collision with the Schechina during marital relations"? I may have to print that one out and put it over my bed, right under the ketubah :)

February 18, 2008 10:50 AM  
Blogger -suitepotato- said...

Halacha is a way of life. Not a legal system. It describes things in its own way in legalistic terms at times, but more from a chiding, "you know this is right and this is wrong" attitude than from a "do what we say and not what we do" governmental point of view.

Not that the former Israel didn't have a schism between the kings and kohanim. There's always a tension between the ruler of the nation and those who rule on how the nation's citizens should act and live just as there is between the citizens and their conscience and halacha.

It is what it is. No need to tie a tight bow on it and call it a legal system, especially not in today's simple thinking where people might confuse it with the secular governmental legal system to which it has only the slightest passing resemblance. After all, very few people confuse our legal system with ethical or moral. Halacha does not and should not suffer from that.

February 18, 2008 10:52 AM  
Blogger e-kvetcher said...

Fievel,

I think like anything else, you look at similarities and differences when you try to classify things. My point is that by looking at the many things that Halacha considers under it's purview, it seems that it is more different than the majority of "legal systems" out there, even ones like Sharia which are based on a religious code.

I love your blog's style, btw. It reminds me of Sholom Aleichem and Bashevis Singer...

February 18, 2008 10:58 AM  
Blogger e-kvetcher said...

>Halacha is a way of life. Not a legal system. It describes things in its own way in legalistic terms at times, but more from a chiding, "you know this is right and this is wrong"

Suitepotato, I don't know how much "traditional learning" you've done. I've been exposed to about two years of it. You start with a Gemora, go through Rashi and Tosfos, then maybe Tur and Beis Yosef, then some Achronim, Mishna Berurah, R' Moshe, R' Yosef...

Very few of these sources that I've read seem to address the question of do what's right vs wrong. Unless you mean from the pov "What is allowed by Halacha is right"

February 18, 2008 11:03 AM  
Blogger finch said...

K: What other legal system exists out there where such minutia are regulated with the force of law?

Sharia, which is every bit as extensive, intrusive and petty as halacha. In some countries, too, backed up by the force of the state -- if you're a girl in Saudi Arabia, don't try fleeing a burning building without your hijab.

Of course, sharia's a kind of funhouse mirror reflection of halacha, so it's not a fully independent example.

To a lesser extent, Christian canon laws (Roman Catholics, Orthodox, Episcopals, have different versions). Some of these, at least, have been amended, though.

finch

February 18, 2008 11:46 AM  
Blogger finch said...

FC: Chief Rabbi Sachs points out ... that the American legal system was one of the first to integrate the idea that human beings could change the fundamental principles that underlay the laws that govern them. ... it wouldn't be surprising that older systems like halacha would not have incorporated this feature of allowing wholesale amendment.

This is a red herring. While American law may be (anyone know for sure?) the first with a formal amendment procedure, it's evident that older legal systems replaced rules that had become impractical.

Even halacha did that on occasion (think prozbul), before becoming ossified.

The halachic emphasis on the eternal fixity of its rules is an approach shared only with sharia, to my knowledge.

finch

February 18, 2008 12:15 PM  
Blogger finch said...

K: The Chazal certainly were brave enough to claim such sanction for themselves.

Actually, for the most part, they weren't. They claimed authority by wearing the mantle of tradition, and tried hard to avoid the appearance of innovation.

K: It seems to me that the Sanhedrin had much broader powers than what's allowed by current halacha.

There's considerable historical question as to what actual power any Sanhedrin actually held.

The current near-fossilization of halacha seems to me a largely sociological phenomenon.

Until emancipation and reform, if not later, Rabbis spent a considerable chunk of their time finding halachic "cover" for the practices of their communities. In other words, change grew from the bottom up, and could impose tighter (kitniyot) but more frequently looser (business practices) halacha.

Rabbis in the contemporary haredi world may well enjoy the very peak communal authority ever accorded to Rabbis. For several generations now, it's been easier to leave than oppose Rabbinical fiat, and the community has, consequently, grown more extreme in the absence of dissent.

finch

February 18, 2008 12:39 PM  
Blogger e-kvetcher said...

>K: The Chazal certainly were brave enough to claim such sanction for themselves.

Actually, for the most part, they weren't. They claimed authority by wearing the mantle of tradition, and tried hard to avoid the appearance of innovation.


Yes, it is true for the most part, yet "facts on the ground" they introduced a huge amount of innovation, while denying most of it.

For several generations now, it's been easier to leave than oppose Rabbinical fiat, and the community has, consequently, grown more extreme in the absence of dissent.

Yes. Totally agree. This is why I think that a lot of these blogworld calls to arms to reform OJ are doomed to fail. Most people who care enough, just leave.

February 18, 2008 1:04 PM  
Blogger Tobie said...

Oh, also, in my long comment, I totally forgot to be snide about the thing with the bed.

First of all, the shechina is typically in the east. I didn't think it had an orientation beyond that. Secondly, I doubt this is firm halacha- it lacks the tougher legal reasoning that you usually see- it sounds more like those bits with folk medicine and helpful advice that people try just generally slide on by. Not everything in the gemara is halacha, thank G-d. And thirdly, just a general snideness about how adjusting polarities with the shechina promises the ultimate in joy and religious fulfillment: lots and lots of males.

February 19, 2008 8:27 AM  

Post a Comment

<< Home