Q&A: An Inherent Advantage for the Plain Conservative
An Inherent Advantage for the Plain Conservative
Question
Hello and blessings,
In your last lesson in the series "The Thought of Jewish Law," you dealt with conservatism, and you drew a distinction between "plain conservatism" and "midrashic conservatism." In the lesson you argued that people tend to think that when they express "plain conservatism" they are "playing it safe." However, you argued that this is not accurate. Suppose that regarding accepting testimony from women, the "plain conservative" who does not accept it—if he is mistaken, the price is very heavy indeed. So in any case, there are costs in every direction.
I accept this argument, but I do think there is another consideration—passive omission. In cases of doubt, passive omission is a consideration that should be taken into account. Thus, the "plain conservative" upholds this rule, whereas the "midrashic conservative" bears the burden of proof, since he goes against this rule.
Now I would like to ask: do you accept that the rule of passive omission carries weight? That is, sometimes people think it is merely a practical rule, only for cases of "playing it safe." But in my opinion there is an a priori guiding principle here. Namely, that a person who changes the norm bears the burden of proof. Do you agree?
It is important to note: even if we accept that this rule carries weight, that still does not automatically mean that the "plain conservative" is always preferable, because in cases where the cost is high, the "midrashic conservative" is preferable. Suppose in the case of accepting testimony from women: not accepting it is, in my opinion, an unbearable price. Therefore, logic is on the side of the "midrashic conservative," even though he is acting affirmatively.
I have gone on at length. In short: do you accept that there is an inherent advantage to the "plain conservative," since he passively continues the existing reality, whereas the midrashic conservative, who calls for active change, bears the burden of proof (unless the cost tips the scales, as stated)?
Answer
Exactly right. I accept everything you wrote here. I will just add a few comments.
When I say that there is an advantage to the midrashic conservative, it stems from two things: the cost (as you correctly wrote regarding disqualifying women from testimony) and the reasoning. After all, the midrashic conservative offers an explanation, whereas the plain conservative claims that there is no logical explanation (or that there is an explanation that we do not know).
You are right that if the midrashic conservative does not offer a reasonable interpretive account for the Jewish law under discussion, then he has no advantage. That is obvious, and precisely because of the rule that passive omission is preferable. My claim is that if one takes the cost and the logic into account, then the midrashic conservative has the advantage.
The rule that passive omission is preferable has no logical status, but there is sense in acting by it. It does not say that this is the truth, but for the sake of preserving the system it is worthwhile to act according to it. This is not a rule whose purpose is to play it safe (because, as I explained, it does not offer a safe course, without cost), but I definitely agree that it carries weight and that it is proper to act according to it in the absence of other considerations. My claim is that when there are other considerations (cost or logic), then it is not correct to follow it.
Discussion on Answer
[By the way, regarding the logical status of passive omission—I think that in moral questions, for example the trolley problem, the intuition is stronger in favor of passive omission versus affirmative action. That is, there it is pretty clear to us that once the decision is one of affirmative action, it is automatically less preferable than a decision of passive omission (although this too is of course not a sweeping rule, and it can change in practice, depending on the case). And one should examine whether passive omission and affirmative action in the realm of morality—where the intuition is clear—indicate that this should apply in the realm of law as well. Or perhaps one should distinguish between morality and law. This requires further study.
Rabbi, maybe this is worth a little column?]
That is an interesting question. In my opinion conservatism has no weight in itself, meaning there is no significant advantage to the existing path over new proposals simply by virtue of the fact that it already exists. From this it follows that any consideration, however small, ought to override it. Like presumptive possession, which is only a default rule, and seemingly any evidence, however slight, ought to overcome it. Yet with presumptive possession this is not so, apparently because we want legal stability. There is room for the claim that the same applies to the rules of passive omission.
However, in the background there is the assumption that new proposals always rely on some kind of reasoning, and are not raised just because they are possible. So when speaking about a new proposal, there is always an assumption that it has some logical explanation. It is hard to discuss a proposal with no rationale at all and compare it to an existing state of affairs. That almost never happens.
Therefore, as you suggested, I think it is hard to set a sweeping rule. It depends on the state of the system, the quality of the reasoning in favor of the new proposals, and more.
As for a column, I’ll think about it.
The column is up (570): https://mikyab.net/posts/81320
Yes, I understand. I completely accept that. Thank you very much!
Just one more clarifying question: indeed, the midrashic conservative offers an explanation, and that is his advantage, but his disadvantage lies in the fact that he is making an active change (which requires "broader shoulders," as opposed to passive omission). From this it follows that the less convincing the reasoning offered by the midrashic conservative is, the more it may be that in the final balance, the fact that he has the disadvantage of affirmative action will outweigh it. Right? [That is, the mere fact that he throws out some reasoning does not mean there is any sweeping claim that this reasoning will override the disadvantage of affirmative action.] Or in your view, are affirmative action and passive omission almost insignificant compared to any reasoning that might be proposed?
And now that I write this, it seems to me that your ruling would be that one cannot set up a clear and uniform mechanism here. Each case on its own merits. Though a priori, it would seem that most lines of reasoning are probably preferable to considerations of affirmative action and passive omission.
And what do you think now?