Legal conservatism among Dosim
For some reason, most of the dosis who talk about conservatism versus liberalism in the judicial sense almost always tend towards conservatism, which says that the language of the law – the intention of the legislator – is superior. However, there is a serious problem here, in that those conservatives are usually also religious who study and believe in the Babylonian Talmud. And after all, every scholar knows that this approach is exactly the opposite of the Talmudic approach, that the language of the Mishnah or Baraita and the intention of the Tanna are of no interest at all, and only the Amoraic Okimat is correct, even though in most cases it is clear that there is no connection between it and the Scriptures or the intention of the “legislator” (Tanna).
Can we say that religious conservatives should abandon their conservative faith in such a way?
Amusing babbling. He is wrong in my interpretation: 1. It is not true that in the Talmud the intention of the Tanna is not interesting at all. See my article on validity. 2. Even if that were true, why should the same thing be applied to the law? Even in the interpretation of literature, am I supposed to follow my own method in my approach to the Talmud? What does that have to do with anything?
Regarding 1. I forgot to mention that the intention of the verse (that it refers to the divine legislator) is also not interesting, and in my opinion it is an extreme departure from the Mishnah's interpretation. Regarding 2, it is just amusing that most religious jurists are conservative, while if they had adopted the principles of the Talmud, then it would not have been like this. And yes, I agree that it is not obligatory, it is simply an interesting correlation. By the way, if we adopt it in the opposite direction, it turns out that Aharon Barak is the greatest Lithuanian scholar there is.
1. Also not true in my opinion. They definitely seek the meaning of the verse. But it is in the literal sense. In the Darsh, it is another, parallel level, which is not obliged to be literal. But our tradition has commanded that verses be interpreted on both levels.
2. Why Lithuanian? Are you saying this about the Talmud itself. Or do you mean the Lithuanian Talmud and not the Babylonian? I have already heard several people claim that Barak is a Lithuanian scholar, in particular about his book on the law of deeds. But not because of the connection to the text being interpreted but because of the scholarly analysis techniques.
One of the axes of disagreement between conservatives and activists is regarding the authority of the interpreter (the judge/rabbi) versus the legislator (the Knesset/Talmud) in the context of creating norms that have no explicit source in the law and through its expansive interpretation. Many rabbis and religious adhere to legal conservatism and halakhic activism. Since this is a “meta-legal” position, a good explanation for the division and the differences, or at least awareness of it, is required.
A close but somewhat crude description. Not all activism creates norms. It depends on whether the commentator interprets the language of the law or expands by analogy.
In any case, the question of the authority of a commentator versus a legislator is not universal. If we assume that God gave the sages activist authority and that our legislator did not give it to judges, then there is no comparison.
God is the sovereign and indeed gave authority to the sages – in the Sanhedrin, and in its absence to the Talmud, to interpret His will and shape it as law. Therefore, by analogy, the Talmud is the legislator. The sages who followed the Talmud are commentators and do not have the authority to enact new laws = to add dos and don'ts, from the Torah or rabbinic laws that have binding force.
In my understanding, the criticism of activism is precisely that it claims to be an active partner in creating new binding norms in the spirit of what the commentator (judge) deems appropriate for the law to be even without a source in the law.
This conservative criticism can be directed precisely at many rabbis who rule on what is forbidden and what is permitted even regarding issues that have no source in the Talmud according to what they see as the spirit or purpose of the law, and thus in effect create norms without formal authority. Therefore, I think it is correct to claim that many in the religious community hold a position regarding the relationship between the authority of the legislature and the judiciary that is internally contradictory.
Danny, I too have always had the same difficulty with the question as you.
But I think you are wrong, in principle, religious people are usually very conservative in everything. Only in the laws of the Gamma do they swallow the frog of lack of conservatism and ignore it in one way or another. Or they think that this is what is appropriate there, they only do idealization there.
But this is the exception that does not indicate the rule.
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