Q&A: Legal Conservatism Among the Religious
Legal Conservatism Among the Religious
Question
For some reason, most religious people who talk about conservatism versus liberalism in the legal sense almost always lean toward conservatism, which says that the language of the law and the intent of the legislator are preferable. But there’s a serious problem here: those same conservatives are usually also religious people who study and believe in the Babylonian Talmud. Yet every yeshiva scholar knows that this approach is exactly the opposite of the Talmudic approach, where the language of the Mishnah or the baraita and the intent of the tanna are not interesting at all, and only the amoraic reinterpretation is correct, even though in most cases it’s clear that it has no connection to what is written or to the intent of the “legislator” (the tanna).
Can one say that religious conservatives should abandon their conservative belief because of this?
Answer
An amusing pilpul. But it is mistaken in two ways: 1. It is not true that in the Talmud the intent of the tanna is of no interest whatsoever. See my article on the reinterpretive readings. 2. Even if that were true there, why should the same thing be applied to the law? In literary interpretation too, am I supposed to follow my Talmudic method? What does one have to do with the other?
Discussion on Answer
1. In my opinion that’s also not true. People definitely do look for the intent of the verse. But that is on the plain-sense level. Midrashic interpretation is a different, parallel plane, which is not bound by the plain sense. But our tradition has instructed us to interpret verses on both planes.
2. Why Lithuanian? You’re saying this about the Talmud itself. Or perhaps you mean the Lithuanian style of Talmud rather than the Babylonian Talmud? I’ve already heard several people claim that Barak is a Lithuanian yeshiva scholar, especially about his book on the laws of deeds and documents. But not because of the connection to the text being interpreted; rather because of the analytical techniques of Torah scholarship.
One of the axes of dispute between conservatives and activists concerns the authority of the interpreter (the judge / the rabbi) as against the legislator (the Knesset / the Talmud) in the context of creating norms that have no explicit source in the law, through expansive interpretation. Many rabbis and religious people hold legal conservatism together with halakhic activism. Since this is a “meta-legal” position, it requires a good explanation for the distinction and the duality, or at least awareness of it.
A close description, but a bit coarse. Not every activism creates norms. It depends whether the interpreter is interpreting the language of the law or expanding it by analogy.
In any case, the question of an interpreter’s authority vis-à-vis a legislator is not universal. If we assume that the Holy One, blessed be He, gave the sages activist authority, while our legislator did not give that to judges, then there is no comparison.
The Holy One, blessed be He, 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 after the Talmud are interpreters, and they do not have the authority to legislate new laws—that is, to add new positive commandments or prohibitions, whether Torah-level or rabbinic, with binding force.
As I understand it, the criticism of activism is precisely that it purports to be an active partner in producing new binding norms in the spirit of what the interpreter (the judge) thinks the law ought to be, even without a source in the law.
This conservative criticism can be directed just as well at many rabbis who rule permitted and forbidden even on matters that have no source in the Talmud, based on what they see as the spirit or purpose of Jewish law, and in doing so effectively create norms without formal authority. Therefore, I think it is correct to argue that many in the religious public hold a position regarding the relation between the authority of the legislator and the judge that contains an internal contradiction.
Dani, I also always had difficulty with this question, like you.
But I think you’re mistaken. In principle, religious people are usually very conservative about everything. Only with the laws of the Talmud do they swallow the frog of non-conservatism and ignore it in one way or another. Or they think that’s what is appropriate there, so they idealize it only there.
But that is the exception that does not testify to the rule.
Regarding 1: I forgot to mention that the intent of the verse is also not interesting there too, and there we’re talking about the divine legislator. In my view that’s even more extreme than the interpretation of mishnayot. Regarding 2: it’s just amusing that most religious jurists are conservatives, while if they actually adopted the principles of the Talmud, it really wouldn’t be that way. And yes, I agree it’s not obligatory; it’s just an interesting correlation. By the way, if you take this in the opposite direction, it comes out that Aharon Barak is the greatest Lithuanian yeshiva scholar there is.