Author: moshekoppel

Unencumbered Heidi

Heidi is quite scandalized by Shimen’s community, especially its deference to rabbis and its ineffectiveness at dealing with public policy issues. She prefers for the state to play some of the roles traditionally played by communities.

To be sure, Heidi doesn’t want the state to play all of the roles played by communities in the past. She wants the state to legislate and enforce policies that promote public welfare and equality. She supports, among other things, state-enforced redistribution of income, environmental regulation, safety regulation, minimum wage laws, rent control and anti-discrimination laws. On the other hand, she strongly opposes any state involvement in the enforcement of flavors of morality other than fairness, the ones involving restraint and loyalty. She wishes, for example, to liberalize abortion laws and euthanasia laws and to eliminate any residual legal barriers to recognized homosexual unions. She wants state-funded schools to refrain from inculcating nationalistic or traditional values or encouraging qualities of character generally associated with virtue.

There are several grounds for Heidi’s preferences. First, as we have seen, the kind of morality that is important to Heidi is, to a large extent, subsumed by public welfare and equality. But, if pressed to justify her support for state involvement in welfare but not in the flavors of morality specifically associated with religion, Heidi would appeal to the “veil of ignorance” argument of the late political philosopher John Rawls. Rawls’s thought experiment asks us to imagine that we are a group of people wishing to agree upon certain principles according to which we will organize our society. So far this is the usual “social contract” idea. The wrinkle is that, like everyone else in the game, you know nothing about yourself: neither your age nor your sex, neither your skills nor your income potential, not your religion, your beliefs and commitments, or your social, business or other affiliations. Gornisht.

Assuming we are rational actors, what principles would we agree on? Rawls argues that we’d all agree that each person should have the maximum degree of liberty consistent with others having the same degree. In particular, since we don’t know anything about our prior moral affiliations and commitments, we’d all agree that the state should not impose any particular community’s definition of what constitutes morality. In fact, “comprehensive doctrines” – Rawls’s fancy way of referring to religion – are to be banned from public discourse as grounds for promoting policy.

The second principle that we’d all agree on is that, given some set of possible distributions of goods, we should choose the one in which the poorest member would be the best off (which you’d agree to because that poorest member might be you). That, in very broad strokes, is the argument for the state’s proper purview to include some version of equality and, more broadly, public welfare.

In short, then, welfare and equality are public business but other flavors of morality and the cultivation of virtue are private business. This is a conclusion that Heidi accepts wholeheartedly. Shimen, on the other hand, is of the view that both welfare and virtue should be handled, to a large extent, by communities.

But there’s a weird anomaly in Heidi’s position. Since Heidi wants the state out of the business of promoting virtue, we might expect her to enthusiastically approve of voluntary moral communities like Shimen’s. After all, Rawls ostensibly wants the state out of the morality business precisely so that religious communities like Shimen’s can flourish without state interference. Yet, Heidi disapproves of Shimen’s community, and others of the same type, for oppressing individuals and undercutting the state. What’s up with that?

Teasing out the assumptions that underlie Rawls’s thought experiment gives away the game. How would I wish to organize society after I peeled away my affiliations, loyalties and beliefs and everything else that makes me me? The question scarcely seems coherent since, at that stage, who exactly is left with interests to negotiate. Rawls and Heidi simply assume that there is some “unencumbered self”, as Michael Sandel puts it, independent of and prior to the affiliations that constitute my identity, and that we can somehow imagine all these unencumbered selves organizing themselves politically.

Rawls’s thought experiment resonates more with Heidi than it does with Shimen; it seems that in real life Shimen and Heidi are not equally encumbered. Shimen’s life is defined by his identification with a specific people committed to the perpetuation and development of a specific culture. Shimen knows what it feels like to have nothing, so he doesn’t underestimate the importance of material goods, but these goods don’t have symbolic value for him; what he really wants is the meaning and purpose that he gets from participating in the ongoing project of the Jews. What would Shimen want if he were not a Jew? Not a meaningful question.

On the other hand, banning “comprehensive doctrines” from public discourse doesn’t cost Heidi a thing. While Shimen wants freedom to participate in a specific communal project that connects the past with the future and that gives his life meaning and purpose, Heidi wants freedom from such projects. Heidi’s aspiration for freedom for herself and for others is understandable and worthy, but the struggle for freedom from, that isn’t primarily a struggle for freedom to, generates a lot of negative energy.

Instead of giving moral communities space to flourish, as the Rawlsian model would seem to suggest, Heidi does subtle combat with them. In the name of liberty, she seeks to clip the wings of moral communities so that the flavors of morality that are less meaningful to her are devolved down to individuals. In the name of public welfare, she seeks to crowd out moral communities by having the state take over the roles traditionally played by communities. Heidi’s battle against moral communities gets to march under the high-minded banners of liberty and public welfare, but is thin gruel to build a life around. In the end, a culture of resentment can arouse, but it can’t fulfill.

Moreover, we will see in the next few posts that, high-minded banners aside, one thing that the extension of state power at the expense of communities rarely achieves is the advancement of liberty and public welfare.

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Shuls and Homeowners’ Associations

When Shimen’s friend falls on hard times, Shimen will approach some people in the shtiebel to arrange a gift or a loan; when Heidi’s friend falls on hard times, Heidi will help her petition the authorities for benefits. Shimen is committed to eating kosher food, so he shops in stores under kashrus supervision; Heidi is committed to eating healthy food, so she lobbies her congressman in support of a bill banning trans-fats. When Shimen’s landlord raises the rent suddenly, he gets some friends with clout to appeal to the landlord on his behalf; when Heidi’s landlord raises the rent suddenly, she writes to the State’s Housing Division demanding stronger rent control legislation and enforcement.

Both Shimen and Heidi are members of a community and citizens of a country (the United States in both cases, a significant detail to which we’ll return). But for Shimen, the community is where the action is: he draws his values from his community and he mainly wishes to exert influence within his community. Heidi’s community, on the other hand, is somewhat amorphous and she mainly wishes to exert influence on government policy.

All the fine properties of halacha considered above – robustness, adaptability, intuitiveness and so forth – are possible precisely because halacha is a communal, rather than a governmental, process. Communities don’t legislate and they don’t enforce, one can escape from a community more easily than one can escape from a state and, finally, communities are smaller than states and easily split into sub-communities. Each of these properties is essential for halacha to work.

With regard to legislation and enforcement, the matter is straightforward. Unlike legislation, which is a discrete event and is typically determined by a small group of legislators, who are likely to have their own interests, social norms tend to be stable, adjusting gradually and in accordance with consensus. Furthermore, signaling, the importance of which we’ve discussed several times, is only possible when it is not enforced. If, for example, everybody is compelled by law to buy only kosher meat, buying kosher would fail as a signal – exactly as it would fail if kosher meat were no more expensive or difficult to obtain than non-kosher meat. In such cases, we’d have to invent chumros (stringencies) not required by law for the purpose of signaling piety. Thus, legislation and enforcement undercut key aspects of the way halacha works.

But now we come to the interesting part. Unlike a state, whose jurisdiction falls on all those who live in some territory, a community is defined by the social norms shared by its members. An individual who doesn’t share these norms is ipso facto no longer part of the community; if a large enough sub-group develops different norms than the majority of the community, they become a distinct community. These two facts are crucial for the organic development of halacha. Let’s see why.

If you own a condo, you probably belong to some sort of homeowners’ association. You might also be a member of one of your local shuls. Both of these organizations provide useful services and charge fees and both of them occasionally deal with contentious issues that engender squabbling, arm-twisting and gossiping. But they’re unlikely to occupy the same cell in your brain because the differences between them are so salient.

Members of a shul have a lot in common. They choose to daven a certain way, to observe Shabbes a certain way and to assume a million unspoken truths about the right way to live. These shared norms and values define the shul. If someone doesn’t share at least a fair portion of them, they would simply leave the shul and daven elsewhere or nowhere. If a whole group of people became disenchanted with the shul’s policies, they could try to form a breakaway shul with policies that reflect their own preferences. But for the most part, so much is shared by members of a shul that the things that really matter can remain unsaid.

People who belong to a homeowners’ association share a place of residence. That’s it. They need to decide together when to paint the lobby and whose brother-in-law to hire to repair the roof. If someone doesn’t like the color the board chose for the ceiling in the lobby, there’s not much they can do about it short of selling their apartment. If a whole group of people became disenchanted with the board’s decisions, they could try to replace the board but they couldn’t form a breakaway board. Generally, so little is shared by members of an apartment building that the things that really matter must remain unsaid.

The correlation between the extent to which an association is voluntary and the extent to which it is substantive is not coincidental. Halacha remains substantive and adapts slowly and steadily precisely because those who don’t share its underlying principles cease, by mutual consent, to be voting members (though I acknowledge that leaving a tight-knit community is often painful and difficult).

The development of distinct sub-communities within halacha also contributes to its viability. It is true that when one looks too closely at fissures that split frum communities – from Ponevezh to Woodmere and from Bobov to Satmar – it might appear as if all that is at stake is ego and money, but this is an illusion. When communities exceed a certain size so that inter-personal relationships within the community become overly thin, the urge to seek grounds for splitting becomes irresistible. The short-term results are not always especially aesthetic, but such splits result in more tight-knit and homogeneous communities, each of which takes advantage of local knowledge and is adapted to its situation. Nowadays, when people are largely aware of the variety of extant minhagim, the multiplicity of communities has the ironic consequence of highlighting the common core of halacha that crosses communities. Finally, communities that prove to be poorly adapted, usually because the barriers between them and non-halachic cultures are too low, simply cease to exist, while those that are well-adapted thrive and grow in influence.

Things can, however, go badly wrong when we forget the difference between shuls and homeowners’ associations or, more broadly, between religious communities and governments. Later in this series, we’ll consider the problems that ensue when religious communities seek to exploit the coercive power of the state to enforce their preferred social norms. In the next few posts, though, we return to our friend Heidi, who, oddly enough, wishes to do precisely the same thing.

Between Elitism and Egalitarianism

I wrote a while back that for Shimen Judaism is defined by tradition, so the very idea of “fixing” it is inherently incoherent to him. That glib formulation might suggest to some readers that halacha is mere convention and therefore collective mistakes are impossible by definition. That is not quite right. If Shimen were to wake up in a hundred years to discover that human sacrifice had become a venerable tradition in certain circles that claimed to be practicing halacha, he assuredly wouldn’t respond with a resigned shrug of his shoulders. Shimen acknowledges that tradition is not only convention, but also has underlying principles and a characteristic moral intuition. He doesn’t believe that there is a unique right path for tradition to take, but he acknowledges that there are wrong paths – that is, paths that deviate from these principles and intuitions.

Jewish tradition itself includes a mechanism for making such deviant paths unlikely: it mandates respect for, and hence emulation of, those with deep knowledge of and commitment to the principles and intuition embodied in tradition. The way this works in practice is that each one of us looks to our right and to our left and pays most attention to the practices of those who, as best as we can tell, have the best chance of getting it right. Of course, some people must be starting this cascade of emulation by acting independently and among these there are some, typically prominent rabbis, who are frequently emulated, either directly or indirectly.

The upshot of all this is that the consensus that emerges gives weight to the practices of all those committed to tradition, but gives more weight to those who are recognized as authorities. It is crucial to note that the influence of these authorities is not a function of their position, but rather their position is a function of their influence.

In this post, I’ll explain why this strategy makes sense—and, in particular, why it makes more sense than two alternative strategies: pure egalitarianism (in which everybody gets equal weight) and pure elitism (in which only experts get any weight at all).

Let’s begin with a very crude version of the formal argument for egalitarianism. Suppose that – even after taking into account ignorance, stupidity and self-serving bias – the average Joe has healthy enough instincts that he has a very slightly better than even chance of doing the right thing in some given situation. Now, suppose that many average Joes, acting independently of each other, “vote” through their actions in that situation. Given these assumptions, it can be proved that whatever the majority does is almost certainly right.

The argument is crude – not necessarily wrong, but still crude – because the underlying assumptions generally don’t hold: in real life, people don’t act independently of each other and, moreover, there are whole strata of people who are plainly as likely to get it wrong as to get it right. In real life, mobs sometimes do really bad things.

So, let’s make the more modest assumption that even those who are not bright lights when it comes to figuring out the right thing to do are fairly decent judges of character, so they have a fair chance of emulating the people with the best chance of getting things right. Then, in some complicated way, those who ultimately get the most weight will be those with the best chance of getting it right, while those unlikely to get it right will get no weight. This sort of strategy that distributes weight broadly but not equally is better than egalitarianism and can be optimal under certain conditions. (Note for purists, everybody else please ignore: for binary choice, the optimal method is one in which an independent voter with probability p of getting the right answer is given weight log(p/1-p).) Note that, in particular, the inclusion of many votes even slightly more likely than chance to be right is better than an elitist strategy of reliance solely on a small number of experts.

That’s the simple argument for balancing egalitarianism with elitism. Here’s a more sophisticated argument. If you’re in England, you drive on the left side of the road; in most other places, you drive on the right. Either one of these options is fine, so long as everybody in any given place does the same thing. “Take your pick” is not a good option. We call this kind of thing a “coordination problem”.

There are many examples of coordination problems. There is no shortage of reasonable platforms for online social networks and most of us don’t really care which one we use as long as our friends use the same one. Similarly, there’s really no particular reason for a chassid to prefer a high shtreimel to a low shtreimel; all that matters is that he wear the same one as the chassidim he eats kugel with. These things generally work themselves out. MySpace is history; Gerrers wear high shtreimlech. As soon as a coordination problem is resolved so that everybody is doing the same thing, it will not pay for any individual to buck the trend; in this sense, the process is said to have reached an equilibrium. Obviously, some salient opinion leaders, whether they be rabbanim and chassidishe rebbes or, lehavdil, Brad Pitt and Angelina Jolie, can speed up the process in the direction of one equilibrium or another.

That’s nice, but it’s not the key point. Coordination problems often have multiple possible equilibria, some better than others. But once we are settled in one, it’s hard to escape it, even if it eventually proves to be bad for everybody. Imagine that some savvy startup offers a new social network platform that is more transparent and less invasive than the current leading brand. Since nobody wants to be among the first million people to switch over, we are all trapped in a sub-optimal equilibrium. Not to compare, but clapping for Stalin was another coordination trap; you really didn’t want to be the first to stop.

Social norms, especially those tied up with signaling, are rife with sub-optimal equilibria. We have already seen why signals are necessary for facilitating cooperation, but there are many possible signals that could do the trick and we can get stuck with ones we’re not crazy about. Shtreimlech can get bigger, hotter and more expensive to the point where everybody feels a bit put upon. Bridge-burning signals, like not getting an education or a job, can also prove somewhat onerous. In all these cases, even if everyone would prefer a cheaper signal that would be good enough, who can afford to be the first to stop? In such cases, a rabbi with influence can potentially catalyze an escape from a bad equilibrium. For example, the Gerrer rebbe can instruct his followers to only buy shtreimlech made of artificial fur – or he can simply set an example himself.

Let’s sum up. In the past three posts, we have seen how it is advantageous for halacha to lie on a continuum between law and language: it preserves tradition, leverages both intuition and reason, and balances popular practice and rabbinic leadership. But this subtle balance between egalitarianism and elitism can only be achieved in the absence of a legislative body with power of enforcement. In the next post, we’ll see why this point is crucial. In particular, we’ll see that halacha is viable precisely because its organizing unit is Shimen’s community and not Heidi’s state.

Trolleyology

As we have seen, halachic tradition develops in two ways: through popular practice that is driven mostly by what we might think of as collective intuition and through rabbinic discussion that is driven mostly by reasoning about the law. Let’s separate out two issues: moral intuition versus conscious reasoning and popular practice versus rabbinic leadership. The two issues are closely related but not identical. In this post, we’ll focus on the interaction of intuition and reasoning and consider how they complement each other.

Rabbi Avraham Yeshaya Karelitz, commonly known as “Hazon Ish” (the name of his main literary work), was widely regarded as the leading Talmudic thinker in Israel in the 1940s and early 1950s. In his commentary on the tractate Sanhedrin (published in 1953), he considers the following problem: a projectile is on target to hit and kill a crowd of people, but some observer is in a position to deflect it so that the crowd would be saved but some other individual would be killed. In considering whether the observer should indeed deflect the projectile, Hazon Ish contrasts the case to one in which a group of hostages are threatened with death unless they hand over a random member of the group to be killed. The Mishnah (Terumot 8:4) rules that it is forbidden for the group to save themselves by giving up one of the members. Hazon Ish suggests that the cases are not comparable, since in the case of the projectile, the act of deflection is a positive act with a negative consequence, while in the case of the hostages, the handing over is a negative act with a positive consequence. (This distinction is the core of the “doctrine of double effect”, attributed to Thomas Aquinas.)

In 1967, the British philosopher Phillipa Foot, published an oft-quoted paper comparing two cases identical in substance to those raised by Hazon Ish. Subsequently, the philosopher Judith Jarvis Thompson popularized these dilemmas in the form of what are now known as “trolley problems”. In her version, a trolley is on course to run over five maintenance workers. In one case, we can pull a lever to steer it off course so that it would kill one person instead. In another case, we can push a fat man off a bridge, thereby killing him but stopping the trolley from killing the five workers. Most people confronted with these problems favor pulling the lever, but not pushing the fat man – or at least, that’s what they tell the guy in the lab coat asking the funny questions.

Trolley problems have become popular because they are a convenient way to test people’s intuitions about basic moral dilemmas. If we are prone to resolve such dilemmas based solely on the consequences of our decisions (that is, we are “consequentialists” or “utilitarians”), there should be little difference between the two cases. On the other hand, if we are prone to forbid (or require) particular actions based on certain rigid principles regardless of the consequences (that is, we are “deontologists”), we might (depending on the rigid principles) permit pulling the lever but forbid pushing the fat man.

Deontologists like to point out the folly of consequentialism by noting that the same reasoning would lead to the conclusion that a healthy young man visiting a hospital could be killed for his body parts if they could be used to save the lives of multiple patients in the hospital. Consequentialists counter that particular versions of deontology, such as Kantianism, would require that one never lie, even if it means telling the Nazi at the door that Anne Frank is up in the attic. (To which some Kantians might respond “yeah, so?”, which sort of reminds me of this scene in Ghostbusters.) For these reasons, most normal people are neither consequentialists nor deontologists.

Trolley problems are interesting because they pit our intuitive visceral sense that some things are no-nos against our reasoning about optimal consequences; the philosopher-neurobiologist Joshua Greene has even used fMRI studies to show that the two processes actually activate different parts of our brain. Thus, while the vast majority of people assert that pulling the lever is right and pushing the fat man is wrong, people with damage to the ventromedial prefrontal cortex, the part of the brain where emotions and moral decision-making interact, are more likely to favor pushing the fat man.

Why am I telling you all this? Because it allows us some insight into how and why intuition and reasoning interact to resolve borderline halachic issues.

First of all, moral intuition is inescapable. Kantians and consequentialists both imagine, quite astonishingly, that they are in possession of some formula that resolves moral dilemmas without the need to appeal to intuition. Yet they try to persuade each other precisely by invoking moral intuition: “surely you wouldn’t carve up the healthy visitor!”, “surely you wouldn’t cough up Anne Frank!”. These “surely” arguments are surely nothing but naked appeals to intuition. So a consequentialist might coolly compute what action in some given circumstance would maximize some quantity – in the trolley problems, the number of lives saved – but he first needs to decide intuitively what it is he wishes to maximize.

To see this point more starkly, let’s revisit those poor souls with damage to the ventromedial prefrontal cortex. Their preference for pushing the fat man to save five lives might suggest that they are a bunch of hyper-rational Mr. Spocks not seduced by misleading emotions in the guise of intuition. Should we contemplate emulating them? Well, it turns out that they actually live wretched lives characterized by an inability to make the most elementary social decisions or to manage risk and ambiguity. Without some emotional basis for deciding what it is they want to maximize, they’re as stuck as a deer in the headlights.

Now consider the approach of Hazon Ish to the projectile problem. Hazon Ish takes as his starting point those principles already established as normative, including the ruling of the mishnah prohibiting handing over a hostage and other principles suggested by later commentators. He suggests an intuitive difference between the hostage case and the projectile case; this intuition is almost universal, as recent wide-scale studies suggest. Hazon Ish then translates this intuition into a rule that hinges on whether the resulting deaths are a direct consequence of the contemplated act or mere collateral damage of a defensive maneuver. (He does not suggest that this is the only relevant criterion and indeed philosophers raise numerous other possible criteria, which Hazon Ish very well might accept as relevant.)

Now, if we would, in any event, collectively reach the same conclusion as Hazon Ish based on our intuition, what advantage is there in deferring to rabbinic analysis of the sort that Hazon Ish and his colleagues offer? Why could we not proceed as we do in speaking our native language, employing intuitively understood rules without formalizing them? Translating our intuition into rules is like casting a net and ensnaring a fragile and fleeting bird. Halacha becomes something of a second language, as we saw earlier.

Well, we pay a heavy price for formalizing halachic intuition, but we gain a great deal as well.

First of all, one can easily construct intermediate cases – say, diverting the train saves five people but kills four bystanders or kills a relative – where most people don’t have any clear intuition. A theory of trolley decision can serve us well in such cases. More broadly, then, articulated principles of halacha serve us when we don’t have clear intuitions on the matter at hand.

Also, rules are easier to preserve than intuitions. Thus, under traumatic conditions – persecution, exile, dispersion, the sort of things in which Jews specialize – when our collective memory is likely to fail us, clear rules are more likely to remain stable than vague intuitions, especially if the rules are committed to writing. This is the meaning of the Talmudic stories regarding the reconstruction of halacha during periods of upheaval.

Furthermore, the process of formulating clear principles helps us overcome systemic bias. For example, we might each be more prone to push the fat man if he, say, speaks with a funny accent or is otherwise “deplorable” in some irrelevant way, and the need to reason through our actions forces us to overcome such biases. One particular possible form of systemic bias, which we’ll take up in future posts, results from the rootedness of our basic moral intuitions in small-scale communities rather than in large societies of people, with most of whom we share neither kinship nor friendship. For our commercial and social dealings with an ever-widening circle of strangers to operate efficiently, we are less in need of empathy, for example, than we are of clear rules of exchange. Of course, the body of social norms we carry with us are designed precisely to facilitate such impersonal interactions, but we tend to resist the idea that, as Hayek puts it, we have “to restrain some good instincts to develop the extended order”.

In short, in dealing with cases at the borderline of tradition, we have no choice but to employ both intuition and reasoned formalization of that intuition. We’ll see in the next post that there are also independent reasons to combine popular consensus with rabbinic guidance.

Feeling Lucky?

Old chassidim like Shimen and young yeshivish types like Yitzy might quibble about the weight we ought to give to popular custom relative to written codes, but, unlike Heidi, they both agree that we ought to be very cautious about casually discarding established norms.

In this post, we’ll consider the advantages of fidelity to received tradition – whether it be popular or formalized – for the long-term viability of a society. The structure of the argument is so painfully simple that it alarms me that so few Heidis get it: the social norms that have kept us going this far are more likely to keep us going than the ones that haven’t.

Let’s start with an example, which I’ll take from a context entirely unrelated to our discussion of halacha.

Do you like tapioca? Me neither. It comes from the root of the cassava plant, which is one of the main sources of starch in the South American diet. Cassava root is similar to sweet potato and is one of the root vegetables they use for making those funny-colored potato chip wannabes (often marketed under the Spanish name, yuca). South American tribes have been cultivating cassava for millennia and each has rather complicated and painstaking methods for preparing it for consumption. For example, the anthropologist Joseph Henrich reports that the Tukonoans in the Colombian Amazon use a process involving scraping, grating, washing, boiling, drying for several days and finally baking. If, as Henrich did, you ask them why they go through this complicated rigmarole, they’ll tell you that it’s simply their tradition.

When consumption of cassava spread to parts of Africa in the 18th century, the traditional methods for preparing it did not always follow. Which, as it turns out, is quite a pity. But there is no way that someone not armed with modern knowledge of food chemistry and toxicology could possibly have anticipated the high incidence of goiters and leg paralysis that developed years later in those parts of Africa and that persist until today.

The Tukonoans were not aware, and could not have been aware, of the connection between their rituals and the prevention of cyanide poisoning in the long-term. The ritual developed in the distant past among some of their ancestors for whatever reason (or for no reason) and presumably slowly proliferated because young people have a slight preference – or maybe more opportunity – for learning rituals from people without goiters and leg paralysis.

I do not mean to infer from this example that traditions typically have some direct salutary effect on public health. Rather, the lesson should be that particular traditions proliferate and survive within a society because they contribute to the society’s survival, even if no member of that society actually understands exactly how they do so. We discard such traditions at our peril.

As the late economist Friedrich Hayek puts it: “The cultural heritage into which man is born consists of a complex of practices or rules of conduct which have prevailed because they made a group of men successful but which were not adopted because it was known that they would bring about desired effects.” (Law, Legislation and Liberty, p. 17)

Heidi might respond, quite sensibly, that this makes good sense for Tukonoans only as long as they lack the requisite scientific knowledge and remain unaware of methods of cultivating species of cassava low in cyanide. Once they learned such methods, however, their traditions would be nothing but a drag on resources and they’d be wise to abandon them.

This is a strong argument. But it rests on the assumption that we can retrospectively understand precisely how a given tradition contributes to a society’s long-term viability. In fact, though, systems of social norms are delicate mechanisms; attempts to demystify them are inherently speculative and attempts to improve them are dangerous.

Tukonoans who switched to sweet cassava might discover, for example, that the lack of cyanide actually makes sweet cassava more attractive to pests and to thieves and that the diminished need for processing cassava lowers the status of those women whose primary contribution to the society is doing just that. They might further discover that discarding one tradition leads to weakening respect for other traditions for which there are no efficient alternatives.

The point is not that it is always worth maintaining every tradition, but rather that abandoning traditions that have proven over time to be useful for reasons that we do not fully understand, is very likely to lead to consequences that we do not anticipate. Before we decide, for example, that the very idea of gender dichotomy ought to be abandoned, we’d be well advised to ask ourselves if we’re feeling lucky. I’m not.

(I emphasize again that I’m not making a claim here regarding which traditions are morally superior but rather which traditions are essential for a society’s viability. But let’s agree that if a society doesn’t survive, it’s probably also not doing much good.)

Of course, as circumstances change, taking traditions too seriously could itself be harmful. After all, the traditions we received have not been around forever but are rather the unanticipated result of subtle innovation that proved in retrospect to have staying power. Failing to adapt is exceedingly maladaptive.

In fact, perfect conservatism is poorly defined to the point of paradox. Suppose some new custom has spread in the past generation – say, standing up for a bride and groom. Would the perfect conservative reject the newfangled custom in favor of that old-time religion or adopt the tradition as he received it? How entrenched must a custom be before it becomes a member in good standing of that old-time religion? Curmudgeonliness alone can’t be the answer.

So, we need mechanisms for adaptation. As we have seen, halacha’s mechanisms for adaptation include some combination of intuitive popular practice with reasoned debate and formalization. In the next post, we’ll see how and why that combination works.

Leading from Behind

The analogy between language and halacha is obvious to Shimen. He experiences them in the same way: both were learned mainly mimetically, both are practiced intuitively and both are communal phenomena.

But for a typical contemporary American yeshiva bochur – let’s call him Yitzy – the analogy between language and halacha is perplexing. He learned halacha from books, he practices it by navigating an obstacle course of seemingly arbitrary rules and he is irritated by the propensity of his parents’ community to get everything wrong.

The difference between Shimen and Yitzy is that Shimen speaks halacha like a first language and Yitzy speaks it like a second language. A first language is spoken fluently and intuitively without much conscious knowledge of the rules. A second language is spoken haltingly and stiltedly, as part of the mind is occupied with retrieving the relevant learned rule.

There are many good sociological reasons for halacha having become a second language for the bulk of its practitioners and I’ll devote several posts to this phenomenon later in the series. At this stage, I want to make a single point that I’m afraid is completely lost on Yitzy: halacha is meant to be spoken as a first language. To celebrate the shift of halachic knowledge from people’s minds to their books is to make a virtue of necessity.

We’ll attack the issue from two sides. On the theoretical side, the main written sources of Jewish tradition themselves repeatedly make the point that halacha is ideally meant to be spoken fluently like a first language and not learned from written rules like a second language. On the practical side, many examples of halachic development demonstrate that laws in written halachic codes reflect common practice rather than practice reflecting the codes.

The Talmud itself (Gittin 60b) records the undisputed opinion of Rabbi Yohanan that no text other than the Bible should be written: “That which was transmitted orally you are not permitted to write.” The oral tradition was compiled in writing only when social turmoil threatened its very existence. Elaborating on this point, the midrash (Midrash Rabba Exodus 47:1) tells of Moses’ request of God at Sinai that the Oral Law being transmitted to him in conjunction with the Torah be written. God refuses, explaining that what is written can be copied and imitated, but the oral tradition will uniquely define the Jewish people; native speakers of the language are distinguishable from those who speak by the rules without nuance.

A number of stories related in the Talmud focus on the crisis-driven substitution of intuitive understanding of the Oral Law with formal rules. The Talmud (Temurah 16a) reports that after Moses died, taking with him his uniquely intuitive understanding of Torah, the Law had to be reconstructed by Otniel ben Knaz (the first leader of the Jews not present at Sinai) using formal methods. Such reconstructions are reported (Sukkah 20a) as having been undertaken by a number of transitional leaders, including Ezra the Scribe and Hillel the Elder, during periods of crisis. And it is Hillel the Elder who when faced with a halachic conundrum that the leading rabbis could not solve, is reported (Pesachim 66a) to have responded “Let the Jews decide, for if they aren’t prophets, they are the children of prophets.”

In a related story (Menachot 29b), Moses visits the school of Rabbi Akiva and finds the discussion bewilderingly unfamiliar, only to be informed that the laws under discussion originate with Moses himself. To an intuitive speaker of a language, the rules of grammar that are taught to those acquiring the language in a school are unfamiliar and bewildering, even though the students are in fact acquiring his own native language.

Each of these stories makes the same point. Intuitive knowledge of Torah (Torah as a first language) is replaced by a compiled set of rules (Torah as an acquired language) only when necessary.

Yitzy will be surprised to hear that each of the major codifications of Jewish law were resisted by leading contemporary scholars, who feared ossification of halacha. Thus, for example, the Maharal of Prague, opposed the publication of the Shulchan Aruch (lit. “the set table”), arguing that “we ought not rely on parchment… The Torah should be in our mouths not on the table.”

The Maharal’s fears might have been somewhat exaggerated. Codes like the Shulchan Aruch actually reflect popular practices more than they determine them and are incapable of preventing popular disinclination to abide by their rulings.  In a considerable number of cases, rulings cited in the codes lose general support and subsequent codes reflect the later practice.

Consider a number of examples of halachot that became counter-intuitive: Mourners stopped wearing hoods (“it makes us look ridiculous to the goyim”: Beit Yosef YD 386) and their visitors stopped sitting on the ground with them; people stopped submitting to lashes on the eve of Yom Kippur (though they commonly practice kaparot of which the Shulchan Aruch disapproves); single women stopped covering their hair. All contemporary codes reflect the later custom.

When new issues arise, popular consensus often precedes rabbinic consensus. For example, turkey was almost universally regarded as a kosher bird long before rabbis made any determination to that effect. Conversely, gelatin was almost universally regarded as non-kosher, despite significant rabbinic support for its permissibility.

It might be instructive to think of the power of poskim to establish halacha as something like the power of merchants to set prices. It looks to all the world as if merchants are free to set prices as they wish. In fact, supply and demand determine a very narrow range of supportable prices.

The use of technologies on Shabbat is an area rife with examples of poskim leading from behind. Electricity came into wide use in urban areas in the 1880s. The first to rule against the permissibility of the use of electric devices on Shabbat was the rabbi of Lemberg, R. Isaac Shmelkes, in 1895. He argued that creating a new electric current was akin to transferring fragrance, which the Talmud forbids on somewhat vague grounds. The prohibition was universally accepted, as evidenced by the fact that almost all subsequent scholars take the prohibition as a given, despite rejecting the reasoning behind it. Now, in case you’re thinking that it was R. Shmelkes’ authority that determined the popular practice, consider that the very same responsum that prohibited creating a new electric current used the identical reasoning to prohibit carbonating water, a prohibition honored by exactly nobody. Evidently, it was not the ruling that determined the practice, but rather the widespread sense that electricity was a bigger threat to Shabbat than seltzer.

Similarly, the almost-universally recognized leading posek in the United States from the 1950s through the 1970s, R. Moshe Feinstein, ruled that the use of liquid soap on Shabbat is prohibited, extending R. Shmelkes’ argument to the creation of bubbles. This one never caught on. On the other hand, Rabbi Feinstein broadly hints in several places that extinguishing gas burners on Festivals (and, reading between the lines, possibly on Shabbat) may not be prohibited at all, but he is plainly unwilling to state this publicly, presumably because he regarded this as a leniency the public could not bear. Contemporary codes, reflect the common practice, not the rulings of the leading posek of the past generation.

Finally, those of us who’ve been alive long enough have seen customs change before our very eyes. The recitation of hoshanos after mussaf on Sukkot, until a generation ago the standard practice of those who daven in nusach ashkenaz, is slowly disappearing, despite no rabbinic rulings on the matter. Similarly, the blowing of the shofar during the silent musaf on Rosh Hashanah, the standard practice of those who daven in nusach sefard, is losing popularity.

Another, somewhat esoteric, example is the current American yeshivish custom for those who are seated at a chupah to stand as the groom and then the bride pass by. Yitzy, who earnestly practices this sacred rite, will be shocked to learn that it was completely unheard of as recently as a single generation ago. Leading American poskim have already ruled on the matter, manufacturing several unconvincing grounds for the practice (presumably, not including seeing too many church weddings on TV).

In short, halacha is meant to be uncodified, like the rules of grammar, precisely so that its practice remain fluid much the way a native language is spoken. Codification is necessary to prevent too much drift during transitional periods, but it typically reflects the common practice during its time. In the next post, we’ll consider how this blend of bottom-up and top-down development is responsible for halacha’s adaptiveness.

Between Law and Language

I’ve suggested an analogy between halacha and language. But consideration of how halacha actually operates on the ground – as well as the idealized version of halacha found in the literature – suggests that it would be more precise to say that halacha lies on a continuum between language and law.

Let’s first consider how laws and the rules of language are enforced. Matters of law are typically adjudicated and enforced by the government that legislated the laws; violators can be fined or imprisoned by agencies of the state. Matters of language, on the other hand, are adjudicated and enforced by rather benign editors, if at all. Miscreants who brazenly dangle modifiers might suffer a loss of prestige if their infractions are interpreted as the result of ineptitude or poor socialization, but they can remain fairly confident that no posse will come after them. The desire to be understood is generally a sufficient incentive for writers and speakers to more or less follow the rules.

Halacha lies somewhere between these extremes. For the past two millennia, since the end of Jewish autonomy in Israel, matters of halacha are adjudicated by rabbis consulted on a voluntary basis and are enforced almost solely by social pressure. In some tight-knit communities with few exits, this can be rather unpleasant, but it’s not quite Sing Sing either.

But how do we decide “what the halacha is” in some instance? This is a more interesting dimension along which halacha can be found between the poles of law and language. If you want to know what the law is, you can look it up in the official statutes code that records acts of the legislature. These official codes don’t merely reflect the law; they are actually constitutive. On the other hand, language is not legislated. If you want to know how to speak a language properly, just speak the way everybody else does. You might find it convenient to check what the grammar textbooks (or websites) have to say, but those books aren’t constitutive; they are useful simply because they reflect common practice.

What about halacha? Can you look it up in some constitutive codes, as you might with legislation, or should you just do what people do, as you would with language? One answer, only slightly too clever, is that most codes will tell you to do what people do and most people will tell you to follow the codes. The implications of these two independent claims will be central to the rest of this series of posts, but for now it is sufficient to simply say that halacha develops along two tracks that can’t diverge by much because they need to intersect from time to time.

One of these tracks looks a bit like law. Faced with a matter that requires a halachic ruling, scholars argue the merits of each possibility, citing analogies with related cases, weighing conflicting principles, and pondering the likely consequences of a ruling on the affected parties and on the integrity of the system. These discussions are recorded, inter alia, in commentaries on earlier legal works and in responses to legal questions addressed to authorities. These discussions and rulings resemble case law (rulings by judges that rely heavily on precedent) rather than statutory law (legislation). Occasionally, the accretion of such rulings is distilled and summarized in a halachic code such as that of Maimonides (12th century) or the Shulchan Aruch (16th century).  Such codes resemble statutory law in the sense that they are expressed as general principles of law rather than as rulings regarding specific cases. But they differ from typical statutory law in two crucial ways: they are not produced by a legislature but rather by an individual without recognized institutional authority and, unlike a legislature, they can’t change established law. The main such codes are extremely influential, to the extent that some people think of them as constitutive.

The other track looks a bit like language. Faced with a subtle everyday situation for which there is no obvious established practice, those committed to and knowledgeable in tradition, tentatively act according to their intuitions while carefully watching what others do in similar situations. As in the case of language, this apparently circular process somehow manages to eventually converge to some consensus practice. The emergent consensus is regarded by many people as constitutive.

Separating out these two processes is convenient for expository purposes, but is somewhat misleading because the two tracks are strongly inter-dependent. Indeed, they necessarily coalesce periodically.

First of all, the “language” track draws on codification. When we speak of our halachic intuitions, we mean intuition rooted in knowledge of established halacha. Nobody is born with intuition regarding, for example, the laws of separating the bones from the carp at Shabbat dinner; rather, given knowledge of related laws, one might develop some sense of what is permissible in some situation. Such prior knowledge could in principle be drawn from observing common practice, but in fact is often drawn from studying the relevant literature. Similarly, when we emulate our neighbors, we give little weight to those who are ignorant of or uncommitted to established traditions and a lot of weight to those who are highly knowledgeable and committed. The codes are a convenient standard for measuring these qualities. Note, though, that both the need for prior knowledge and the need for identifying reliable practitioners hold for the case of language as well and languages manage without codes.

Conversely, the halachic literature can’t actually be constitutive independently of common practice. First of all, the codes literature draws strongly on actual practice. For example, the Shulchan Aruch frequently cites multiple possible rulings regarding a given situation and then resolves the matter by noting that the practice is in accord with a particular one. Note carefully the implication of such a statement: it means that a popular consensus formed in such matters prior to a rabbinic consensus. Even Maimonides, who records only a single ruling regarding any given situation, defers to common practice as decisive (Hil. Shmitta Veyovel 10:6). Moreover, since no code has institutional authority in the way that a legislature does, the authority of any given code is itself entirely dependent on its broad acceptance. In this sense, the final word remains with popular sentiment.

To summarize the process, then, some prior body of halachic knowledge, as summarized in the codes and other halachic literature, serves as a foundation for individual intuition that, in aggregate, converges to consensus on various issues not covered by the extant body of halachic knowledge. These consensus practices are then incorporated into rulings and codes that serve as the expanded body of halachic knowledge on the basis of which the process continues. The codes reflect practice and practice reflects the codes.

How important are expert rulings and codes relative to popular practice? How much differential weight do experts have in the formation of consensus? These are delicate issues that, with the help of some illuminating examples, I hope to take up in the next few posts.