Q&A: Overarching Value
Overarching Value
Question
Honorable Rabbi, hello and blessings,
I’m in the middle of reading the Rabbi’s trilogy, and I’m really being enriched by your books. Many thanks.
My first question: the Rabbi writes in his book about the difference between command and experience / value-perception (that is, a good deed). What about the well-known Talmudic expression, “It is logical; why do I need a verse?” Is that considered an actual commandment, or perhaps reasoning is no better than a good deed that my intellect obligates me to do, like intuitive norms.
Second question: the Rabbi defines God’s commands as having the principle of overarching value. My question is a bit unrelated to what is said in the book, but still it is Torah and worth studying… Is “conservative jurisprudence” also based on principles of overarching value, and if not, what is it based on?
Thanks
Answer
“Why do I need a verse? It is logical” is said only where the reasoning interprets a command from the verse. Reasoning that establishes a new Jewish law is not Torah-level. See at length in my article on reasoning: https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%A1%D7%91%D7%A8%D7%95%D7%AA-%D7%AA%D7%95%D7%A8%D7%A0%D7%99%D7%95%D7%AA-%D7%95%D7%9E%D7%A2%D7%9E%D7%93%D7%9F-%D7%94%D7%94%D7%9C%D7%9B%D7%AA%D7%99
I didn’t understand the second question. What is “conservative jurisprudence”?
Discussion on Answer
Is judicial activism triangular? That’s more or less what your question sounds like to me.
Indeed.
What I mean is: what is the foundation of conservative jurisprudence (without activism)? That is, is it based on natural law (positivism), or on the historical school of law?
Conservatism is usually adherence to the law. Activism is expansive filling-in of lacunae (usually according to the judge’s values). In that sense, conservatism is more compatible with positivism (which advocates deductive derivation from the law), and activism with natural law (= the judge’s values, which seem to him natural and binding).
The approach opposite to judicial activism, as then-Minister of Justice Ayelet Shaked declared: “to raise the standing of the conservative alternative in Israel.”