Tangles in Systems of Rules (Column 93)

With God's help

The current pope, Francis, has emerged as a reformer. Ever since he ascended to the papal throne he has been fighting the corruption of the Church (especially in matters of finances, appointments, and pedophilia), and has also proposed various theological reforms (such as the attitude toward divorce, homosexuality, and more). Not surprisingly, he has met with fierce opposition from the conservative wing. About a week ago, the New York Times reported on a letter from 62 conservative theologians, scholars, and senior church figures who launched an open struggle against him and accused him of heresy against church dogmas and of deviating from its principles. This fascinating report led me to think about several points specifically on the principled and broader plane, and it also connected in my mind with events that have been happening here lately.

The logical problem in the church dispute

The group of scholars claiming that the pope is a heretic and is deviating from church dogmas is actually caught in a logical paradox. At the First Vatican Council, convened in 1869 and lasting several years, the Church adopted the dogma of the pope's infallibility, according to which the pope does not err when he teaches ex cathedra in matters of faith and morality in a manner binding on the whole Church. From that point on, one of the founding principles of Christian theology was accepted: the pope does not err. What he determines is the truth. Therefore the conservatives' claims that he is a heretic are self-contradictory on their face. One may dislike his rulings, but in light of church principles that seems to have no significance whatsoever. He is right by definition, and in fact it is actually they who are deviating from church dogma.

What happens in Jewish law?

In Jewish law it is not clear whether such a situation can arise. True, ostensibly the rulings of the Sanhedrin have absolute force and one may not depart from them (by virtue of the verse "do not deviate" ['you shall not turn aside']). But at the beginning of tractate Horayot the Talmud speaks of "one who errs in the commandment to heed the words of the sages" (one who errs regarding the commandment to heed the words of the sages), and from here a number of commentators and halakhic decisors learned that even the Sanhedrin does not have mandatory authority (only if they say of the right that it is right and of the left that it is left), and if it errs there is no obligation to obey it.

There is one prominent exception to this, namely the fixing of the calendar. In the Mishnah, Rosh Hashanah 25a, it recounts the well-known dispute between Rabban Gamliel and Rabbi Yehoshua over determining the date of Yom Kippur. Rabban Gamliel compelled Rabbi Yehoshua to come before him with his staff and purse on the day that, according to Rabbi Yehoshua's own calculation, was Yom Kippur. Many have brought proof from here that there is no halakhic truth; rather, whatever the Sanhedrin determines is itself the truth (as in the church dogma mentioned above). But this is a mistake, for the Mishnah itself explains that this is a special law relating to the fixing of the calendar. Later in that passage the matter is presented in greater detail:

For it was taught: Rabbi Akiva went and found Rabbi Yehoshua in distress. He said to him: Rabbi, why are you distressed? He said to him: Akiva, he deserves to lie bedridden for twelve months rather than have such a decree issued against him. He said to him: Rabbi, permit me to say before you one thing that you yourself taught me. He said to him: Speak. He said to him: It says, "you, you, you" three times — "you," even if you act unintentionally; "you," even if you act deliberately; "you," even if you are mistaken. Upon hearing this, he said to him: Akiva, you have comforted me; you have comforted me.

With respect to fixing the calendar, Jewish law determines that the decision of the Sanhedrin and its president is itself the truth. Therefore Rabbi Yehoshua could have been right on the merits, but that does not really matter. Even if the court errs, or even acts deliberately, its determination is the truth, because they have mandatory authority in the matter of setting the calendar. From here one may infer that in other matters this is not so. If the Sanhedrin errs, there is no absolute obligation to heed it, and certainly there is no principle that identifies its words with the truth (and the law of the communal bull offering brought for an erroneous ruling of the court proves the point).

The logical problems

These cases raise an interesting logical question. In many situations we act within a system of rules, yet there is still a sense that the result we have reached by using the rules is problematic. For example, those conservatives in the Church might accept the dogma that the pope does not err, yet they feel that here this is simply not true. In their eyes, his decisions are heresy against the Christian-Catholic faith. What are they to do in such a situation? They decided to act against the rules and determine that the pope erred. Ostensibly, according to the rules, it is clear that their claim is illegitimate.

Moreover, one could say that 'he started it'—that is, the pope was the one who first departed from the rules. He too is in effect changing the rules out of a sense that they lead to injustice. But as noted, the rule is that the pope can do this. What he says is what the rules are. If so, the conduct of the conservative camp seems very problematic and contrary to the rules (which they ostensibly came to defend).

On the other hand, think of a party that runs for the Knesset, wins a majority, and decides to dismantle the state, or the Knesset, or to create a dictatorship. Is that legitimate? The formalists will say yes—they are the rulers, and whatever has been accepted by majority opinion is binding. On the other hand, many others will presumably feel that they have exceeded their authority, even though there is no rule that explicitly says so.[1] This reminds me that when I was a student at Bar-Ilan, I thought of running for the student union so as to be elected (by a majority of the physics department's five doctoral students against the three other voters from the entire university, namely those who actually care who will be there), and once elected I would decide to dissolve it.[2]

A contradiction within the rules

It is important to understand that I am not speaking about a situation of contradiction within the system of rules. If the system contains a contradiction, that is, if it is inconsistent, it is difficult to discuss it on the logical plane. Logic tells us that from a contradictory system of rules any conclusion can be derived, and therefore an inconsistent system in fact says nothing. In such cases one has to break the rules and build something anew from outside them.

This is similar to the dispute between Beit Shammai and Beit Hillel described by the Talmud in Eruvin 13. The dispute continued for years without resolution, until a heavenly voice came forth and instructed that the law follows Beit Hillel. The medieval authorities (Rishonim) already raise a difficulty from the Talmud in Bava Metzia 59, which determines that one does not heed a heavenly voice, since "It is not in heaven" ('it is not in heaven'). Tosafot in Eruvin offers several explanations, but it seems to me that the simplest explanation is a different one. Tosafot in Eruvin 6 explains that the basis of the dispute between Beit Shammai and Beit Hillel was that Beit Hillel were more numerous, whereas Beit Shammai were "they are sharper" (sharper, or wiser). The question underlying the dispute was which majority is decisive: the majority of wisdom or the majority of people (what do we count: heads or feet?). How can such a dispute be decided according to the rules of Jewish law? A vote is certainly not an option, because its results would leave us with the majority of wisdom against the majority of people on the very question of how to decide, and again we would be left without a solution. When there is a conflict within the system of rules itself, there is no way to resolve it, and then one needs a heavenly voice (a solution from outside the system, which even conflicts with the rule "It is not in heaven", itself part of the system). Therefore here the sages did decide to heed the heavenly voice. The rule "It is not in heaven" is a rule that instructs us to follow the rules. But it is valid only if the rules give us a solution. When there is no solution within the rules, it is clear that one cannot ignore solutions that come from outside the system.

Interim summary

As stated, our concern here is not with a contradiction between rules, but with the feeling that they lead us to an error. This raises the question: what is the criterion for that error? After all, if these are the rules, then by definition this is the truth. What does it mean to say that there is an error here? An error is a lack of fit according to some standard (= the truth), but the standard itself cannot be mistaken. Thus, for example, the standard meter in Paris is the definitive metric standard, and therefore the question whether it is indeed a meter or not has no meaning. It is what is defined as a meter.[3]

In these cases, one question becomes two: does it even make sense to claim that the results of applying the rules are erroneous (after all, the rules define the truth)? What am I to do with these feelings: is it legitimate, when such a feeling arises, to depart from the rules?

A similar case in our own context

Last Wednesday evening a state ceremony was held to mark fifty years of settlement in Judea and Samaria. The controversy surrounding the ceremony had already arisen the day before, when it was reported that Miriam Naor, President of the Supreme Court, had announced that she would not send representation on her behalf to the ceremony because it was political and one-sided, and chiefly because it concerned a subject of political dispute, particularly since no expression was given to political sides and speakers from the other end of the map (center or left).

As noted, the government determined that this would be a state ceremony, and the law provides that the body authorized to determine the state character of a ceremony is the government (in fact, the Committee on Ceremonies and Symbols). Beyond that, established practice provides that people of 'rank A' (including the judicial system) are required to be present or send representation to every state ceremony. It is therefore no wonder that members of the government (see Yariv Levin and Miri Regev) and their court journalists (see Arel Segal) railed against the politicization of the judicial system and its political bias. In their view, this was a departure from the rules and from procedure because of a political worldview, and the matter is all the more grave when it is done by the judicial system, which is charged with implementing and enforcing those very rules.

[Needless to say, these claims were voiced by exactly those you expected would voice them, and the same goes for the objections. The right is angry about the breach of procedure, quite apart from its views that support settlement in Judea and Samaria, of course, and only because of the importance of the rule of law and the principle of separation of powers. The left, by contrast, opposes participation in the ceremony and justifies Naor, and again this too is of course quite unrelated to its worldview regarding the settlements, but only to concern for the standing of the court and democracy.]

Ostensibly, the court has entered here into an unauthorized political confrontation against the government. The procedural rules provide that the court must be represented at such a ceremony. Therefore the claim that Naor is acting on the basis of her own political (left-wing) agenda rather than on substantive grounds seems correct. On the other hand, any reasonable person understands that this ceremony is a political farce. It is akin to declaring that the opening event of a Likud convention is a state ceremony (or perhaps designating a day of celebrations marking so-and-so many years since the firing on the Altalena as a state ceremony). So what does one do in such a situation? What the government determines is defined by the rules as a state ceremony, and therefore according to the rules it is clear that Naor should have sent representation to the ceremony. On the other hand, it is completely clear that this is a farce and a cynical exploitation of the rules for political purposes. Does that justify departing from the rules? Are the rules themselves open to criticism? (For purposes of the discussion, I will assume that the law contains no definition of what, in terms of its content, ought to count as a state ceremony.)

A side note, but an essential one

If the government had established a ceremony to mark the victory in the Six-Day War, or to mark our return to the land of our forefathers and the connection of the Jewish people to Judea and Samaria, there would indeed have been room to see this as a state ceremony and not as a matter under political dispute. But the ceremony was defined as a celebration of fifty years of settlement in Judea and Samaria. This is plainly a matter under political dispute, and therefore it is clear (to me) that it is not fitting for the judicial system to take part in it.

My son Yossi remarked to me that our connection to Judea and Samaria is also disputed, since many Arabs do not accept it. Therefore, even a ceremony of the sort I proposed should be considered as dealing with a disputed subject. I told him that I do not think this is similar, since the state is a Jewish state, and therefore there is room to see such a matter as consensus despite Arab opposition. By this logic, even the Independence Day ceremony is not a state ceremony, since the Arabs see that day as a Nakba, a disaster (at least in their outward declarations). This is a claim that may hold water on the formalistic plane, but it is clear that there is really nothing to it. This itself reflects the tension between formalistic arguments within the rules and the truth as any reasonable person understands it.

A theoretical difficulty and a practical one

Up to this point I have dealt with the theoretical difficulties: is there truth outside the rules, and what are we to do when it is clear to us that the rules are being used for an improper purpose (is it legitimate to act outside the rules)? But in both of the cases I brought (the dispute in the Church and the political dispute around the ceremony) there is an additional aspect, practical in essence.

When such a clash arises between several centers of power in a system around the rules, the situation is that the rules say one thing, but the challenge concerns the very validity of the rules and the departure from their proper use. Such a challenge cannot be decided by arguments drawn from the rules themselves, for they themselves are the subject of the dispute. So what will happen now? However far-fetched this may sound, at least in an extreme and principled case, the government could send police officers to arrest Miriam Naor, or bring her by force to the ceremony. She would instruct the police that in her view she acted lawfully, and that actually the government and they themselves are acting against the law. Should they (or the police commissioner) obey her or the government? If one pushes things to the limit, such clashes are possible. The rules of the system of government cannot close every gap and ensure that such a clash will never arise. True, all the branches of government must be very careful about creating a situation that could tear apart society and the legal order, and usually they really are careful and do not go to the limit. But in recent years it sometimes seems that the system is heading toward a head-on collision, and perhaps even open war. It is not impossible that a case will arise in which the feeling is that one may no longer yield and there is no room for the required caution, and then an open and frontal confrontation will emerge. Suppose it is decided to go all the way—what will happen in such a situation? Is there a solution to this within the system of rules?

One must understand that any invalidation of a law or of a government decision by the court can in fact lead to such a clash. If the government believes that the invalidation was unlawful and the court believes that it was lawful, then there is a clash. In recent years there have been quite a few cases of judicial intervention that seemed to many (in the government, in the Knesset, and outside them as well) utterly unjustified and beyond the rules. In just the last few weeks there were several judicial decisions that invalidated laws and decisions (the conscription law, the third-apartment tax, private kosher certification, evacuation of settlements, and so on). MK Moti Yogev's statement about taking a D-9 to the Supreme Court reflects this. Incidentally, the resentment and criticism that statement aroused were themselves, of course, beside the point, because they ignored the fact that the dispute is about the court itself—that is, about the rules. They attacked Yogev by force of the rules, whereas in his view those very rules were being used cynically and were therefore invalid.

One must understand that the system of rules does indeed determine that the court may intervene in decisions of the legislative and executive branches (striking down laws is perhaps disputed, but intervention and invalidation of decisions are the very essence of the High Court of Justice), but it is clear that cases may arise in which the intervention appears to one of them to exceed its authority. Many believe that the court has used its authority in an exceptional way in order to advance a political agenda. Others believe that the government is exceeding its authority and undermining the authority of the court. What happens in such a situation?

Again, this may sound far-fetched, but in extreme cases, and if the situation continues and worsens, we may reach a point where the government instructs the executive agencies to act anyway in accordance with its orders against the court's decision. What will the executive agencies do? The court will order them not to act, and they may go to prison if they do; but the government will send them to carry out what it instructed them to do, and once again refusal may itself be a violation of the law. Which side will the police arrest: the minister and his officials, or the judges of the court? Whom will they obey? Perhaps the police commissioner will become the sole ruler, since he has the power and he will be the one who actually decides whom to obey. This is not arbitrariness but a result of the circumstances. In the end he must decide whom to arrest and whom to support, and instruct his subordinates what to do. Even if he wishes to consult an independent body, in the situation that has arisen there is no such body. So it is clear that he will be the one who makes the decision, because the power is in his hands. The two sources of authority are in dispute, and the one beneath them and subordinate to them will have to decide.

Let us continue. What if the police commissioner's decision does not seem right to us, or to some group of citizens? A private militia will be formed to wage an armed struggle against the police. Thus, for example, the government will align with the police if they decide to act according to its instructions, whereas the private militia will act according to the court's instructions. What does the system of rules say about such a situation?

Resorting to force

In extreme situations in which the solution cannot be reached within the system of rules, it will break down, at least de facto. And as we have seen, when that happens we will inevitably arrive at the use of physical force. The citizens and the various forces (police, army, intelligence organizations and clandestine activity, and so on) will take sides and act by force to advance them. In the final analysis, such a struggle is decided by force in the street. This is not apocalypse but a logical result of tangles in systems of governmental and institutional rules. Ultimately, these rules draw their force from the public that accepted them upon itself, and once they no longer express its will, it is even legitimate for the public to break them and act on its own to restore order. Behind the rules stands the force by virtue of which they have validity—the public—and once they break, physical force enters the arena. Discussions of this sort arose at the time of the Disengagement, when the rules were used cynically (that is of course an understatement; they were broken) against the will of a significant part of the public (and especially the majority of the Likud party).

The late Kishon once wrote that he did not understand why we fight again and again against the Palestinians and lose human lives. Logic says that each side should send a chess player, and whoever wins the game wins the war and gets his demands. That way we would save human lives and everything would be wonderful. On the face of it, that really is very logical. So why are conflicts nevertheless always resolved by force? Simply because after the Palestinians defeat us at chess, we will presumably refuse to keep the agreement and give up territory or anything else. What will happen then? The other side will try to use force to enforce the agreement, and we will send our own force against it, and lo and behold—we are back to physical war with casualties and harm to human life. Rules do not truly replace force in any essential way unless both sides agree to them and keep their word. Therefore, regrettably, a chess game cannot replace war.

The conclusion is that behind the rules there always stands social agreement, and in fact it is physical force that gives them validity and backing. Once social agreement breaks down, force turns against the rules, and then they break and lose their meaning. In such a situation, one who argues by force of the rules is simply ignoring (whether unintentionally or deliberately, for demagogic reasons) the root of the problem. The conservative rebels against the pope understand that the rules (that the pope does not err) have broken down. Miriam Naor understood that in light of the government's conduct the rules had broken down. She may try to fit her decision into the system of rules by means of one interpretation or another, but in fact she broke them because she felt that there was no social agreement or substantive justification that could ground the ability to act within the rules.

If so, the practical difficulty on which I have focused here is in fact an expression of the principled and theoretical difficulties described above. The fact is that the rules cannot function without the agreement and force behind them, and therefore when the agreement breaks they have no meaning. Hence, when force turns against them, it will defeat them. These phenomena reflect the shaky significance of rules, and the fact that one cannot see them as the whole of the matter. The rules express some underlying substance, and they do not have an independent standing. Contrary to the tendentious discourse that argues for one side in such a dispute in the name of the rules, the truth is that rules have meaning only so long as there is social agreement. Once they no longer reflect agreement and no longer enjoy social backing, they have lost their meaning. It will not really interest Naor if you prove to her that she acted against the rules, just as it will not really interest Francis's conservative opponents that there is a church dogma saying he is always right. Because in their view, he is not.

The philosophical meaning of such situations

The significance of these phenomena is that even where there are clear rules, and even in a dogmatic system such as the Catholic Church, the rules are not the fundamental basis. The rules reflect some truth, and therefore they can be examined in its light. An argument from the rules holds water only so long as people believe that the rules do indeed reflect the truth. When that breaks down, one must step outside them and create a new decision or renewed agreement, and perhaps also a new system of rules that will return us to conduct within rules (like conduct within a paradigm as opposed to a state of crisis in Thomas Kuhn's philosophy of science).

Regarding the conservative revolt in the Church, this could be formulated as follows: indeed, there is a rule stating that the pope does not err. But should we see this rule as a definition, or is it a claim? If it is a definition, that means the rule does not represent any truth but determines and defines the truth. If this rule is a claim and not a definition, then when one says that the pope does not err, the background assumption is that there is such a thing as an erroneous determination, except that the claim is that the pope does not fail in this regard. In the second conception there is more room for a conservative revolt against the pope. If there is truth, then there is something against which to test his determinations, and it may turn out that the dogma that he is always right is not correct (it itself was an error of earlier popes). The rule has fallen. The question is whether the system of rules reflects the truth or defines it.

The same is true regarding the discussion of Miriam Naor. Even if the rules of ceremony and state procedure determine that the judicial system must send representation to state ceremonies, and even if the body authorized to determine what is state-related is the government, this is still not a definition but a claim. If Naor reaches the conclusion that the ceremony is not a state ceremony despite the fact that the formal conditions according to law and practice were met, then she does not send representation.

In analytic philosophy it is customary to distinguish between two kinds of systems of laws or rules: constitutive rules and regulative rules. Constitutive rules define the domain of discussion/conduct. Thus, for example, the rules of chess define the game. One who does not act in accordance with them is not a criminal. He is simply not playing chess, because that is the definition of the game and he has departed from it. Traffic laws, by contrast, are regulative laws. They describe how one ought to drive, but they do not define correct driving. Therefore one who departs from them is an offender, and therefore there is also room to depart from them when circumstances require it (this is essentially the meaning of the 'general duty of care' clause).

In the two examples I brought (the conservative revolt in the Church and the dispute surrounding the ceremony), the dispute is really over the question whether the system of rules (Israeli law or Christian dogmatics) is constitutive or regulative. The revolt assumes that it is regulative and not constitutive. Miriam Naor assumes that the rules of law are, to some extent, regulative and not constitutive. As noted, this is usually not what the dispute is really about. Each side presents its arguments tendentiously according to its agenda, and chooses whether to treat the system as constitutive or regulative.

Arguments from danger: a slippery slope

This is of course a very dangerous approach, because it leaves interpretation and decision to each of us. The law and the system of rules do not receive mandatory authority. They do not define the truth and constitute it, but rather guide toward it. Therefore, on this conception, the system of rules loses much of its significance. On the other hand, absolute obedience to the rules is no less dangerous. It gives a tool to powerful actors who can make arbitrary and cynical use of the rules for their own purposes. The assumption here, of course, is that the system of rules is not perfect, that is, that it is impossible to formulate a system of rules that will cope with every problem within the system—a system that would provide an answer to every difficulty within the rules and render unnecessary the need to depart from them even in extreme cases. Therefore there is a substantive standard by which one can measure and even criticize the rules. Arguments by force of the rules are not as decisive as they seem to us. Even if someone departed from the rule, that does not mean he lost the argument. And this is not merely a matter of force; it also has philosophical justification.

So what do we do?

First, one is careful not to come close to situations that will break the system of rules. Departure should occur only in sufficiently extreme cases. That is the meaning of sticking to the rules. True, it has no philosophical justification, but it does have practical justification. It is dangerous to break the rules, and it is very worthwhile to preserve them even at significant cost. On the other hand, the threat of departing from the rules and the possibility (not merely hypothetical) of making use of it are essential in order to ensure that all the parties involved are careful not to reach such situations. A system in which one never departs from the rules allows anyone to exploit them for his own needs. This balance is not perfect, but it is what we have. As stated, arguments by force of the rules have rather limited validity.

It remains for us to elaborate a bit further on the significance of rules, the obligation to adhere to them, and the danger inherent in adhering to them—in law, in Jewish law, and in general. I have already had occasion to address this in previous columns, and I will continue doing so in the future.

[1] To be sure, one can discuss the claim that they were not elected on that understanding (their power comes by virtue of the democratic majority, and therefore they are not authorized to abolish the democratic system).

[2] No need to worry—this was purely an intellectual amusement. I never had political aspirations.

[3] There is of course room to split hairs here and argue that the meter is the length of the standard meter on such-and-such a date, before it changed. But if someone challenges the length at the very moment it is fixed—this is a meaningless challenge. That is what defines the meter, and there is nothing to compare it to in order to determine that this is an error. As I recall, I once saw an interesting discussion (though in my opinion a mistaken one) in Doron Avital's book (former commander of Sayeret Matkal, and also a former MK on behalf of Kadima), Logic in Action. The book deals with Wittgenstein's philosophy and its applications to military activity, and it contains a philosophical discussion of the meter in Paris. A few years ago I had a very interesting argument with Avital (at the home of a mutual friend) about the book, and the discussion revolved mainly around rules and their application. Perhaps someday I will make use here of this fascinating book.