Extra Tactics: Part 3

 

By: Jonathan Seidel

                                                                        Lofty Spirits

R’ Kook not only drew on the prophets ethical philosophy but also their legal thought too. He stressed the need to return to what he termed “prophetic legality”1. He strived for a rigid system. The law is inflexible and practical2. Both R’ Heschel and R’ Kook divided the law and allegory. The former paralleling them in importance3 and the latter in a functional aid to the law4. One perceived them complimentary and the other as dependent. They both ascribed importance to allegory as the growth of spirituality and character. R’ Kook has looked to the prophetic age as a means of sprouting the spiritual components. R’ Cherlow has echoed R’ Kook in advertising a push for prophetic law5. They philosophically agree for an additional extra-legal layer of allegory to the law but disagree legally6. R’ Cherlow tends towards leniency while R’ Kook is stringent7. R’ Kook believed in returning to the prophetic way traditionally passing down formalistically without change. There is a strong connection to the eternal closed code. R’ Cherlow alternatively believes returning to a quasi-prophetic account8. He wishes for allegorical modes of thought but looks to a renewal of the prophetic mind. To be attached to the code and usher a new mode of change. He disagrees with the “strict formalistic categories” created by the sages9. This has limited the law greatly. This codified identity strips the divine will of its latitude. The new wave will recognise an adherence to legality yet aware of change, evolving the law. 

R’ Cherlow has explained the reason for change as well. He avoids the crisis and prophetic errors and focuses on the nature of the system. He delegates the change to a few factors: concretisation of law, failure of prophetic persuasion, inability to recognise the authentic path, uniting nation, and uniform routine. He then proceeds to explain how these changes have failed: a loss of spirit, too routine, too law-centred, externally narrowly-minded, focused on communal objective goal, fearful of external forces, stagnate legislation, internal changes solely acknowledged10. His solution is to chart the prophetic methodology anew. To chart a reformed route. Expanding on legal centricity. Employing meta-leal tactics to adjudicate new issues11. For law to be dynamic. To reevaluate modern conceptions. Deriving from varied or untraditional motives. R’ Goren unorthodoxly derived army law not from saving a life but from when it falls12. This alteration is novel and returns to the prophetic mind what he terms “communal norms”. The community is akin to the prophetic agenda. He opts for this expansive communal mindset expanding deduction possibilities. Ignoring the limited quota of rabbinic interpretation. Exerting allegorical texts to summon a broader methodology tribe living by the divine will. Transitioning from an individualised to communal response. The latter includes the full richness of allegory and philosophy. The army example was transferred to communal comprehension. This appropriation of R’ Cherlow’s vision is not simply ideal, he has demonstrated in countless decisions that he implements his ideas13. He is not simply preaching a revolution but actualising a moment. 

Although he believes he and R’ Kook see eye to eye, it is clear based on his more lenient tendencies it is not too accurate. Their general philosophies may have been more or less identical but their actualisation is divergent. It seems R’ Kook wished to return to the days of old, to the formal strict system, while R’ Cherlow wishes to reinvent the prophetic ideology. R’ Kook wishes to renew while R’ Cherlow desires to anew. One dreams of the past while the other envisions a future. R’ Cherlow following R’ Goren argued the state was sui generis permitting certain never-allowed legislation like autopsies14. He acted unconventionally. His anomalous conception demonstrated in his decisions of clear cut typical cases for most others. He acted intuitively based on the text not much for proceeding rulings. He took their opinions sincerely but offered countermeasures for why his view was legitimate. R’ Goren’s vision was to nationalise legality intertwined with the state15. He famously solved the Seidman case of conversion and the Langer sibling case of bastards16. He used his own autonomy to render decisions. In contrast to R’ Soloveitchik and to an extent R’ Lichtenstein who publicly were more stringent but prompted great autonomy in private17. R’ Goren believed he needed to elevate it to the state level. The individualised exile based system needed to be adapted to a nation based state18. There is a point where halakha is enforced on the nation but as common law not traditional stringent forces. Whether for better or for worse, the religious model is a product for national sovereignty. 

The latitude of legal interpretation is questionable. Mrs. Blu Greenberg wrote, “Where there is a rabbinic will there is a halakhic way”19, R’ Lichtenstein responded that this insults scholars and their abilities20. Not every issue can be solved in the way we want it to be. Law is not always fair. R’ Goren alternatively would presumably agree with Mrs. Greenberg. I am unsure if he could provide a solution for every problem but he sure as well attempted to. Fighting against the grain multiple times to ensure a positive outcome. Some may say this is inauthentic as it is searching to provide leisure, on the other hand he is accurately interpreting. He is not discovering hidden law, he is creating new novelties21. It is through the text and his courage to provide these responses no matter the opposition. R’ Berman has noted the ancient laws were conventional norms, not codes22. They were judgments decided by cultural philosophy. R’ Jakobovits concurred that in Judaism there are obligations, in secularism there are rights23. In this vein it is not simply the social structure but the archetype of ancient common law. Most laws today are statutory, restricting advancement (hence the American constitution). R’ Kook’s return to pure obligation or R’ Cherlow’s push for interpreted obligation. Either the norms are literally eternal from revelation or the norms are reapplied in each generation. R’ Kook was a formalist, R’ Cherlow a realist. R’ Cherlow wishes for the freedom of old legally R’ Kook solely spiritually. R’ Kook’s position disagreed to an extent with Spinoza24. He conceded to legal rigidity but advocated for spiritual elevation. R’ Cherlow wished for the latter but condemned the former. The prophetic mind must be revolutionised not recommenced. It must take on a new form expanding the parameters of the legal system inflating theocratic25 servitude from theonomous attitudes26. Autonomy must rule supreme in absorbing the divine will attributing our full potential to living in authentically27. It must develop beyond simple law exploiting the spiritual and philosophical components. 

Endnotes

1. Abraham Isaac kook, Letters #23. See also: Avinoam Rosenak, Prophetic Halakhah: Rav Kook’s Philosophy of Halakhah, Magnes Jerusalem, 2007.^↩

2. Avinoam Rosenak, “Teaching, Prophecy, and the Student Caught Between Them—On the Philosophy of Education of Rav Kook”, Edah 5:1 pg. 3.^↩

3. Alan Brill, “Aggadic Man: The Poetry and Rabbinic Thought of Abraham Joshua Heschel”. Edah 6:1 pg. 5.^↩

4. Avinoam Rosenak, “Teaching, Prophecy, and the Student Caught Between Them—On the Philosophy of Education of Rav Kook”, Edah 5:1 pg. 4.^↩

5. Yuval Cherlow, “Following Prophetic Halakhah, Additional Perspectives in Halakhah” The Quest For Halakhah, ed. Amihai Berholtz, (Tel-Aviv: Yediot Aharonot and Beit Morashah, 2003)  pp. 102-124.^↩

6. Brill, “Aggadic Man” pp. 18-19. He notes R’ Heschel viewed law more fluidly as other hassidic thinkers did. He thought in terms of European shtetls not urban cities.^↩

7. Benjamin Lau, “The Challenge of Halakhic Innovation” Meorot 8 pp. 11-12. R' Lau praises R’ Cherlow for his compassion and sensitivity in his decisions. Expressing courage for his unorthodox measures at times. R’ Kook’s stringencies are attested by Dr. Rosenak and Prof. Zohar.^↩

8. He affirms the term prophetic legality but his acknowledgement and dismissal of the ancient formal structure seems to assume a newly constructed prophetic account. Including the ethical sensibility and discharging the traditional deciphering rules.^↩

9. Cherlow, “Prophetic Halakhah” pg. 123.^↩

10. Cherlow, “Prophetic Halakhah” pp. 109-116.^↩

11. Eliezer Goldman, “Meta-halakhic Foundations of Decision Making” Judaism Without Illusion, ed. Dani Statman and Avi Sagi (Jerusalem: Keter Books & Hartman Institute, 2009). See: Avidan HaCohen, "Meta-Halakhic Considerations in Halakhic Decision-Making: A Preliminary Outline”, New Streams in Philosophy of Halakhah, eds. Aviezer Ravitzky and Avinoam Rosenak (Jerusalem: Magnes Press and Van Leer Institute, 2008). Isser Yehuda Unterman, “Darkei Shalom Vehidartem” Kol Torah, 1966. Section 4. R’ Unterman, the late chief rabbi, argued for the use of meta-legal tactics to permit what the sages forbid. For a refutation of meta-halakha see Noam Zohar, "Developing a Halakhic Theory as a Necessary Basis for a Philosophy of the Halakha”, New Streams in Philosophy of Halakhah, eds. Aviezer Ravitzky and Avinoam Rosenak (Jerusalem: Magnes Press and Van Leer Institute, 2008). Avinoam Rosenak sums up these three approaches as 1) unveiling internal principles-formalism (Goldman and Soloveitchik) 2) analytical analysis of basic concepts-metaethics (Halbertal and Fisch) 3) researching the principles of the decisions and their decisions-realism (Ben Menachem and Schremer). Describing the first two as halakhic philosophy and the latter as genuine meta-level. Avinoam Rosenak, “Meta-Halakhah Philosophy of Halakha and Jacob Schwab Halakhah, Meta-Halakhah and Philosophy: a Multi Disciplinary Perspective ed. Avinoam Rosenak (Jerusalem: Magnes Press and Van Leer Institute, 2011). Nissan Rubin added a caveat dividing into two sectors the internal (Goldman-legal and Twersky-allegorical) and external (Rosenak-Legal). “Sociological-Anthropological Theories as a Framework for Textual Interpretation” Meta-Halakhah and Philosophy: a Multi Disciplinary Perspective ed. Avinoam Rosenak (Jerusalem: Magnes Press and Van Leer Institute, 2011) [Hebrew].^↩

12. Cherlow, “Prophetic Halakhah” pg. 123. Shlomo Goren, Response to War: Q&A Regarding Army, War, and Security, “Hadira Rabba” Jerusalem, 1982, 9:117 [Hebrew]. See: פיקוח נפש במלחמה / אברהם וינרוט.^↩

13. Lau, ibid.^↩

14. Rabbi Yuval Cherlow- Autopsy in Halacha. For an expansive account see: Jonathan Rosman’s “Autopsies in the modern age” Journal of Halacha and Contemporary Society (2013). Shlomo Goren, Meorot, 2, 5740 (1980) pp. 5-17. Rav Uziel also permitted autopsies in his Mishpatei Uziel Yoreh Deah 28.^↩

15. Why Rav Goren Matters: The Legacy of the Langers - Mida.^↩

16. Halachic Methodology of Rabbi Shlomo Goren Rabbi, Jonathan Ziring: Shelilat HaGolah, Names and Conversion.^↩

17. The Stringent measures for R’ Soloveitchik are clear in his “Ma Dodech Midod” Divrei Hagut ve-Ha'arakha (Jerusalem: WZO, 1982), pp. 57-97 but R’ Lichtenstein has assumed in his private lenient side in “The Human and Social Factor in Halakha” Tradition 30.4 pg. 15 and Texts, Values, and Historical Change: Reflection on the Dynamics of Jewish Law,” in Radical Responsibility (ed. Michal J. Harris, Daniel Rynhold, and Tamra Wright; Jerusalem: Maggid, 2012), pp. 201–16.^↩

18. Chaim Saiman, Halakhah: The Rabbinic Idea of Law. Princeton University Press, 2018 and Aviezer Ravitzky, “Is a Halakhic State Possible? The Paradox of Jewish Theocracy,” Israel Affairs 11:1 (2005): pp. 137-164 question its possibility and whether it is a good idea.^↩

19. Blu Greenberg, On Women and Judaism: A View from Tradition. Jewish Publication Society of America, 1981 pg. 62.^↩

20. Lichtenstein, “Social Factor in Halakha” pg. 13.^↩

21. Adiel Schremer, “Toward Critical Halakhic Studies” The Tikvah Center For Law and Jewish Civilisation, 2010 pg. 52. Prof. Schremer notes in his realist position that scholars create law instead of discovering law as formalists explain.^↩

22. Joshua A Berman, Created Equal: How the Bible Broke With Ancient Political Thought (Oxford University Press, 2008).^↩

23. Immanuel Jakobovits, Jewish Medical Ethics. New York: Bloch Publishing, 1959.^↩

24. Benyamin Ish Shalom,“Between Rabbi Kook, Spinoza and Goethe: Modern and Traditional Foundations in the thought of Rabbi Kook,” Jerusalem Studies in Jewish Thought 13 (1996): pg. 527–556.^↩

25. Samuel Belkin, In His Image. New York: Abelard, 1960 pg. 16. He advocates for a democratic theocracy attributing human participation in the divine order.^↩

26. Walter S Wurzburger, “Covenantal Imperatives” Samuel K. Mirsky Memorial Volume, ed. Gershon Appel. New York: Yeshiva University, 1970, pp. 3-12.^↩

27.   R’ Soloveitchik has pronounced divine mastery of God. God’s creativity is symbolic for man to partake in his own creativity continuing to build the world in a divine partnership. Joseph B. Soloveitchik, Halakhic Man trans. Lawrence Kaplan. JPS, 1983 pp. 100-110 and “The Lonely Man of Faith” Tradition 7:2  pp. 13-15. See: Walter S. Wurzburger, “The Centrality of Creativity in the Thought of Rabbi Joseph B. Soloveitchik” Tradition 30:4 pg 222. R’ Soloveitchik applies the creativity prowess to the halakhist as well as in personal autonomous action. He downplays the allegory in place of a legally empowered model. ^↩