Methodological Paradoxes in Jewish Law

Opening post by the rabbi

Methodological Paradoxes in Jewish Law

Posted on 7/9/2004

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Methodological Paradoxes in Jewish Law

First, a brief inspirational talk in honor of Elul.

In my humble opinion, there is currently a serious dry season in this distinguished forum, and an infusion is needed so that we do not dry up. The public is called upon to contribute its share. Here, then, is my own modest barley offering.

This issue arose for me in the course of a private correspondence with one of the esteemed members of this forum, may he be granted long life. And here is my opening attempt, as briefly as possible, with God’s help.

A methodological discussion in any field must be conducted in the language and conceptual world of the meta-discipline, that is, from outside that field.

However, there are situations in which we are dealing with a foundational field, and we know of nothing that lies outside it. In such a case, we are forced to use tools drawn from that very field in order to discuss it itself.

This is a situation that can lead to what I call ‘methodological paradoxes’.

Two examples:

1. Logic, for there is no field of thought more fundamental than it, and therefore thinking about it is also carried out with logical tools.

2. Jewish law—at least according to certain conceptions (namely, that it is the most fundamental and comprehensive domain, and perhaps according to the imperialists, that nothing exists outside it).

With respect to logic, logical reflection on logic yielded Gödel’s theorem, which in fact is nothing but a methodological paradox (a proof in the meta-language of the surprising proposition that the concept ‘mathematically true’ is not equivalent to the concept ‘provable’).

A classic solution to such problems is found in Russell’s theory of types, which appears in the introduction to his book ‘Principia Mathematica’. There he establishes a hierarchy among statements in a language, and adds the principle that a statement belonging to hierarchy A may not refer to statements in a higher hierarchy.

This is a crude way of dealing with methodological paradoxes (of self-reference), by means of a totalitarian prohibition against uttering and writing statements that we all want—and can, despite the prohibition—to write and utter.

However, the assumption behind Russell’s solution, even if it were correct, is that there is always a prior, external, more basic level of reference. But what are we to do with the most basic level? Can a problem of this kind not emerge there as well?

In the realm of Jewish law, the existence of such paradoxes seemingly proves the existence of a more fundamental domain within and from which halakhic statements can be handled. This is the metalegal domain. One must discuss the nature of this domain, and with what tools it is treated.

But as a beginning, I will present a few examples of such paradoxes:

1. The discussion of the issue of ‘both these and those’, and the disputes over how to understand it. How are we to decide this dispute itself? Does the rule ‘both these and those are the words of the living God’ apply to it as well?

One should note that if we give up the assumption of the totalitarianism of Jewish law (legal imperialism—in Aharon Barak’s terms: ‘the whole world is law’), the problem does not exist. The tools for dealing with the rule ‘both these and those’ are metalegal. Russell’s principle of types, as applied here, would say that the statement ‘both these and those’ does not refer to metalegal inquiry, and therefore at that level there may be only one truth. What will decide is the more fundamental logic.

And one further remark regarding this question: this is an important point from a meta-meta-methodological perspective. By what tools shall we conduct the inquiry into the meaning of the statement ‘both these and those’? Should we survey the canonical legal and philosophical literature? After all, once one is outside Jewish law, there is no Jewish legal authority there either. Therefore such references will not be decisive; they will only provide a source of inspiration (and not a source of authority) for my autonomous decision.

2. Why must I observe the commandments? See the article by Yaakov Yehoshua Ross in the essay collection ‘Religion and Morality’, edited by Sagi and Statman. Here too it is clear that in Jewish law, as in any legal system, the obligation to obey it cannot be part of the system itself. There cannot be a law establishing that there is an obligation to obey laws, for otherwise what is the source of the obligation to obey that very law itself? Haim Gans (Philosophy of Law, Tel Aviv University) noted this at the beginning of his book ‘Obedience and Disobedience’.

It is clear that here too the decision must be made on a personal, metalegal plane. Authority has no meaning here, not even that of the Holy One, blessed be He, Himself (‘Even if God Himself were to say it, Joshua son of Nun would not obey Him’).

Two implications:

A. From here come the well-known remarks of Rabbi Shimon Shkop in the opening of Gate 5 of Sha’arei Yosher, about the obligation to uphold the legal system outside Jewish law.

B. From here as well comes what the Avnei Nezer writes in Yoreh De’ah, sec. 306, about the obligation to keep oaths before the giving of the Torah (and at the giving of the Torah itself, when the obligation to obey Him is described by the Sages as the oath at Mount Sinai).

This has legal implications, such as the obligation to uphold a written oath (see the responsum of Rabbi Yosef ibn Migash cited there in the Avnei Nezer. An interesting question: does this responsum of Rabbi Yosef ibn Migash have legal authority? Quite clearly not. Therefore it is not surprising that some later authorities rule differently from it, although in practice this is probably only because they are unfamiliar with it). Maimonides, in the Laws of Hiring, writes that a minor is not made to swear because he does not know the penalty for an oath. I was utterly astonished, for a minor bears no penalty for an oath at all. Therefore, a clever minor, who knows everything, is precisely the one whom one should not make swear, because he knows that no penalty applies to him.

And it is proven from Maimonides that with regard to an oath there is a penalty even for a minor, in accordance with the view of Rabbi Yosef ibn Migash, his father’s teacher, that the prohibition of an oath is grounded in reason and not only in the Torah’s command. This opens the question of punishment of minors at the hands of Heaven, and of their standing with respect to commandments and transgressions, which is a fascinating issue, but this is not the place to elaborate.

C. The wonderful words of Maimonides in the Laws of Idolatry 3:6, that one who serves out of fear and love does not serve ‘for its own sake’ (unlike Rashi and others in the Sanhedrin passage). And it would seem that the same is true in the service of God. The reason is that fear and love are, for him, motives more fundamental than the service of God itself, and therefore he is serving himself (as the late Yeshayahu Leibowitz held). Service for its own sake is without a reason.

And this is precisely what Rabbi Chaim of Volozhin says in Nefesh HaChaim, Gate 4: that studying Torah ‘for its own sake’ means for the sake of the Torah itself, and not for some end outside it.

3. The dispute between the exoteric and esoteric camps: whether there is any dispute between the exoteric and the esoteric, and which side the law follows.

It is well known from the Vilna Gaon (and he applies this in several places) that there is never any dispute between the exoteric and the esoteric.

In contrast, the Magen Avraham, Laws of Tefillin (sec. 32?), rules that when there is a dispute, the law follows the exoteric side. And some among the exponents of the esoteric differ with him in one respect and agree with him in another: they hold that there are disputes, unlike the Vilna Gaon, but that the law follows the esoteric side.

We must now ask: how are we to decide these two disputes themselves?

How shall we determine whether there are disputes between the exoteric and the esoteric? And how shall we decide the dispute over which side the law should follow?

Since the disputants themselves belong to the two camps under discussion, this is a methodological paradox.

And while on the subject, I will add a similar case: the dispute between the School of Shammai and the School of Hillel (Eruvin 13). Beyond all the specific disputes between these two schools, Tosafot and others write there in the sugya that they disagreed over whether the law follows the numerical majority (= Hillel) or the majority in wisdom (= Shammai, for they were sharper). And this is like the dispute between Rav Hai Gaon and Nachmanides, brought in Sefer HaChinukh, regarding following the majority in a court, but this is not the place to elaborate.

Here we have another example of a methodological paradox, for it is not clear how we should decide this dispute of the School of Shammai and the School of Hillel: by numerical majority or by majority in wisdom (and some versions read: majority of feet or majority of heads).

If there really is here a methodological paradox, then another question arises. Why did those writers bother to express their position at all? In any case, each person adopts it on the basis of his own considerations, and the position has no significance. For example, what was the point of the Magen Avraham writing that the law follows the exoteric side, when the exponents of the esoteric will not accept that very statement itself? This is merely to strengthen the already convinced (as is the custom of most periodicals nowadays, which address only those who agree with them completely, for whom the writing is almost unnecessary).

Still, there is some point to writing in one of two ways:

1. The exoteric camp does not necessarily think that the law follows them in every case, and likewise the School of Hillel does not necessarily think that the law follows numerical majority. Therefore there is some point in revealing the correct position even to members of our own group.

But here this is relevant only for the undecided, since for someone who holds a different view on the matter, the writing and expression of the position will not help change his mind.

2. In order to serve as a source of inspiration, and not a source of authority. That is, as an attempt to persuade, not to rule by authority. But in such a case there is no point in writing without reasons, and one must focus on persuasion by means of arguments. Expressing such a position without reasons is of no use whatsoever for that purpose.

It is difficult for me to continue now, although there is still much more to discuss.

The public may add other paradoxes, methodological and otherwise (there are many more), perhaps also outside Jewish law, and afterwards discuss the questions that arise from engaging with them.

Meitzitz, I am sure that the title will suffice to draw your attention to this thread, and there is no need for a private message.

I look forward to seeing your strong hand here as well, and perhaps this is an interesting topic for our purposes?

Source (forum ‘Stop Here and Think’): http://www.bhol.co.il/forums/topic.asp?topic_id=1101121&forum_id=1364