Author: moshekoppel

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.

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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.

The Wooden, Blue, Big Box

Let’s separate Heidi’s critique of the way halacha works into factual and evaluative claims. The factual claims regard differences between halacha and modern legal systems. Unlike legal systems, halacha is deeply rooted in entrenched traditions and lacks a mechanism for legislating changes, it relies on the intuitions of ordinary practitioners of halacha and it lacks systematic means of enforcement. As a first approximation, Heidi’s factual claims about halacha are indisputable.

Now Heidi’s evaluative claims. Since halacha fails to overcome old traditions, it becomes stale and outdated. This problem is exacerbated by the lack of a mechanism for legislation, which prevents responsiveness even to acute need for reform. Furthermore, in the absence of legislation, halacha remains poorly defined, lacking both precision and consensus. Since it relies on, often flawed, intuitions, it is vulnerable to systemic bias. In fact, since Shimen’s intuition is rooted in what his neighbors do and theirs is rooted in what he does, the outcome is bound to be unstable and variable from place to place. Finally, since halacha is unenforced, it is bound to fray at the margins and to fail to achieve even its own goals.

Interestingly, even knowing nothing about halacha’s successes and failures, we can prove that Heidi’s evaluative claims do not follow analytically from the factual claims. That’s because there is a phenomenon unrelated to halacha that satisfies every one of Heidi’s factual claims about halacha and yet clearly does not suffer from any of the failures predicted by the evaluative claims. I’m talking about language.

Like halacha, any given language is deeply rooted in entrenched practices and lacks a mechanism for legislation. (Yes, some especially enthusiastic countries have National Academies for regulating the local tongue; they’re about as effective as cat-herders.) Like halacha, every language relies on the linguistic intuitions of the masses of speakers of the language and lacks a systematic means of enforcement.

And yet, languages work just fine. They don’t become stale or outdated. Even without the oversight of august academies, they adapt perfectly well to the needs of speakers and writers. Nameless new phenomena magically get names, like googling or crowdsourcing, both of which you can use to generate a list of many more neologisms. The meanings of many words gradually change over time. Some viewers of TV reruns are startled by the stone-age Flintstones having a gay old time, which just proves they’re not woke. In fact, old words, like well and so, are re-purposed to serve pragmatic roles rather than semantic ones. (Well, maybe that point is a bit arcane, so… let’s move on.) Anyway, if you believe that language is static, try your hand at the Canterbury Tales, allegedly written in English.

All those changes are brought about without any visible hand guiding the development of language. We might say that the development of language is the result of human action, but not of human design. Moreover, the humans doing these actions are just regular people speaking and writing intuitively, not fancy experts who’ve researched the rules.

What is remarkable is how competent we are at using our native languages; we know intuitively much more than we realize we know. To appreciate this point, please look right over there at that wooden, blue, big box. Whoa, that sounded weird. You know why? Because everybody knows that it should be “big, blue, wooden box”. The order has to be size, color, material. The beautiful thing about that is that everybody knows it but almost nobody knows that they know it. Intuition works.

Finally, the rules of language aren’t enforced by the state or by any other duly constituted body that can fine or imprison us for breaking the rules. Such enforcement would be something up with which neither you nor me would put. Nevertheless, most people choose to follow the rules well enough to make themselves understood.

In short, language suffers from all of the “flaws” Heidi attributes to halacha – a certain stodginess, vulnerability to the whims of the great unwashed, and the lack of a parliament and a police force – but it still works fine. Note carefully, though, that this just means that these flaws don’t guarantee failure, as Heidi seems to think. It doesn’t mean that they guarantee success.

In fact, as we’ll see in the next post, halacha is different than language in a number of important respects. First of all, what it means for language to work is different than what it means for halacha to work. Furthermore, halacha is codified, studied, adjudicated and socially enforced, all with considerably greater frequency than is the case with language. We’ll see that these differences, as well as the parallels between halacha and language considered above, contribute to halacha’s viability.

Heidi Respects Experts

Since Heidi disagrees with Shimen regarding the substance of morality, it is no surprise that she also disagrees with him about the basis on which ethical and public policy questions should be decided, who should be making such decisions, and how they should be enforced.

First of all, Heidi rejects Shimen’s obedience to tradition when modernity presents better solutions to problems solved sub-optimally by tradition. Policy is best left to experts who master the latest research on the matters at hand. If we wish to avoid harmful foods, the modern study of nutrition offers much more efficient ways of doing so than the rules given in an ancient Torah. If we wish to regulate family life (and it isn’t clear to Heidi that we should), psychologists and sex therapists can tell us how to best realize the human capacity for love and sexual fulfillment. If we wish to protect workers’ rights, arcane Sabbath laws can’t hold a candle to the knowledge amassed by labor lawyers, social workers and economists about the most efficient means to prevent human exploitation. One can multiply such examples by the number of laws in the Shulchan Aruch. The principle is the same each time: reason, not tradition, is the key to a flourishing society.

To be sure, Shimen does leave a role for experts – specifically, rabbis – in resolving certain personal and social dilemmas according to the letter and spirit of halacha. This is small solace to Heidi: these rabbis may know halacha, but what do they know about modern science, about history, about psychology and sociology? What tools do they have at their disposal that might help them respond sensibly and sensitively to those with serious personal problems and what relevant knowledge do they have that would permit them to shape public policy in any reasonably effective way? As far as Heidi can tell, the vast majority of rabbis are both deficient in the relevant bodies of knowledge and so socially inexperienced and naïve that they can be easily manipulated by hangers-on and sycophants with agendas that are transparent to everyone but the rabbis themselves.

Reasoning by experts is, as Heidi sees it, to be preferred not only to tradition but to the half-baked intuitions of non-experts. Shimen, on the other hand, readily agrees that his determination of what is right is shaped by the moral intuitions of those committed to Jewish tradition. But for Heidi, if there’s any worse guide to the healthy functioning of society than tradition, it surely must be intuition. As the psychologist Daniel Kahaneman and Amos Tversky demonstrated in a long series of experiments, intuition is hopelessly sub-optimal for making decisions about anything, let alone moral questions. For example, our intuitive preferences between competing lotteries don’t maximize expected winnings and actually depend, quite absurdly, on how the choices are framed and other irrelevancies. In fact, our errors are systematic – we find patterns in randomness, we give more weight to the most salient evidence than to the most relevant evidence, we cling to our prior beliefs even in the face of strong contrary evidence and so on. Such biases were presumably useful in the early days of human development, when snap decisions, even if only crude ones, were better than nothing. But, Heidi argues, many of the problems we face in modern societies can be better solved using the tools of logic and probability than relying on crude intuitions.

In fact, many of our cognitive biases bear directly on moral decisions: we make snap judgments about people based on largely irrelevant physical characteristics, we ascribe negative personality traits to people who don’t share our opinions (even when we know that they were assigned that opinion as part of a debating exercise), we ascribe our own successes to skill and our failures to luck, we judge out-group members harshly even when the definition of our group is random, such as fans of some sports teams or members of a summer camp color-war team. (In some cases, this is justified: Yankee fans are genuinely insufferable.) Heidi is convinced that if, instead of following their misleading intuitions about such matters, Shimen and Jews like him would take a deep breath and reason about their loyalties, they would surely treat outsiders more fairly.

Heidi’s preference is for the decisions that drive public policy to be made by the best and the brightest rather than by tradition and intuition. But she differs from Shimen on an even more fundamental point. Who shall be responsible for implementing the policies determined by experts to be best? It looks to Heidi as if in Shimen’s world there is no institution at all that assumes this responsibility. No central body legislates, resolves disagreements regarding proper practice or enforces the law.

In the very first recorded halachic dispute 2100 years ago, five consecutive generations of rabbis failed to agree on the procedure for bringing certain sacrifices on festivals.  From that point on, the entire corpus of halachic literature is, as every novice student of halacha knows, an unending series of disputes. What is the proper blessing before eating chocolate? What time should one light Chanukah candles? Should synagogue dues be determined by family size or income? Can cooked food be put on a hot plate on Shabbat? What is the minimum age for a rabbinic judge? Is a brain-dead person with a beating heart considered dead? Does halacha recognize intellectual property rights? Ask a rabbi any of these questions and thousands more like them and the inevitable answer will be “it’s a machlokes”, that is, a matter of rabbinic dispute. This is not (only) because rabbis are particularly argumentative, but rather because halacha lacks a mechanism for resolving disputes, at least for the past 2000 or so years. There is no central body for legislating halacha or for enforcing it.

To Heidi, all this is a sign of a lack of seriousness. Heidi prefers to divide social norms into two types: those that are legislated and enforced and those that are simply not obligatory. But, it seems to her, all social norms in Shimen’s world fail to fit into either category. They are all neither legislated nor enforced and yet somehow regarded as obligatory.

Heidi regards this as a double failure. First, as we saw in previous posts, halacha regards as obligatory constraints and duties in areas that should, in Heidi’s view, be left to personal discretion. Second, and more significantly, halacha fails to adequately address issues that are, for Heidi, essential to the functioning of society.

Let’s stipulate that there are many issues, like criminal law, that Shimen concedes are beyond the capacity of current halacha to deal with. In this regard, halacha is self-evidently not self-contained and takes for granted the presence of an exogenous power that deals with matters beyond its scope. This isn’t what bothers Heidi. Rather, what bothers her is the attitude of Shimen and friends who wish to handle at the communal level certain issues that Heidi believes must be addressed by the state.

Compare, for example, how the problem of poverty is addressed by individual and community charity, on the one hand, and the state welfare system, on the other hand. Halacha requires individuals to set aside 10% of their income for charity but doesn’t specify to whom it should be given. What guarantee is there that all poor people will receive sufficient charity? What grounds are there for supposing that everyone will meet their obligations in the absence of any sanctions? Who will take care of those who belong to poor communities or to no community at all? For Heidi, these are serious defects that can be remedied by having the state redistribute wealth by collecting taxes at the threat of imprisonment and doling out entitlements such as welfare, free health care and unemployment benefits. The state can further advance the cause of social justice through regulation, including rent control, anti-discrimination laws and labor laws, all favored by Heidi as means through which the powerful and wealthy are prevented from exploiting the weak and poor.

Heidi is convinced that it is an ethical failing of Shimen and his friends that their moral world ends at the boundaries of their narrow community. It is a mystery to her that after all the suffering they have seen, they remain almost entirely indifferent to the astonishing ability of the welfare state, guided by the best and brightest experts in the social sciences, to engineer a more perfect society.

In the following posts, we’ll consider whether Heidi’s claims about how Shimen’s community operates are factually correct (spoiler: mostly yes) and whether her optimistic view of the ability of experts and bureaucrats to engineer a more perfect society holds water (take a guess).

Tradition, Tradition

In the first part of this series, we considered how Shimen lives his life – what he considers right and wrong, obligatory and prohibited – and how Heidi’s understanding of right and wrong differs from that of Shimen. In this part of the series, we’ll consider the procedures through which Shimen determines what is right and wrong.

What does Shimen learn from books and what does he learn from actual practice? When does he decide on his own what needs to be done and when does he consult authorities? When does he follow his instincts and when does he use reason? How does he reconcile his religious commitments and his political commitments? In this post, I’ll address these issues as they appear to Shimen, without yet trying to philosophize much about what is really going on under the surface.

Shimen is committed to the traditions of his family and community. If he ever checks the written codes of Jewish law or consults with rabbinic authorities regarding some course of action, he does so only to ascertain the tradition as it is practiced, not to amend it or bypass it. For Shimen, the “community” is a set of concentric circles beginning with his (dead) family, extending to (possibly semi-lapsed) Gerrer chassidim, extending further to others committed to the Jewish way of life; the farther out the circle, the less weight it gets in Shimen’s calculus.

Since every actual set of circumstances is unique, it is often hard to pinpoint a well-defined course of action prescribed by tradition. Each delicate social situation, each complicated financial transaction, each inadvertent mixture of permitted and forbidden foods, each ad hoc action on Shabbat, requires a judgment, often in the spur of the moment. In situations that call mainly for common sense and decency, Shimen’s first instinct is to conjure what his bubbe (grandma) would do. In situations that call for more technical knowledge of halacha, he’d reason through the alternative arguments and then conjure his zeyde (grandpa).

Sometimes matters require consultation. Shimen knows where to look in the books. For most matters, he’d consult the most widely accepted recent codes, the Aruch Hashulchan and the Mishnah Berurah. (Despite his suspicion of Litvish intellectual types, he prefers the Aruch Hashulchan’s dry and detached style of ruling to the Mishnah Berurah’s cautious piety.) But what Shimen finds in the books is secondary to what he finds when he looks to his left and to his right in the shtiebel. When the Mishnah Berurah writes, as he often does, that “the common practice is so-and-so but this is wrong”, Shimen reads that as “do so-and-so”.

Sometimes Shimen will seek expert guidance. If he needs to make a particularly important personal decision or needs to resolve a dispute with someone else, he’ll consult someone he trusts, usually a wise rabbi. But the truth is that in such cases, he’s not so much looking for a halachic decision as for good advice, a fair compromise or a bit of reassurance. He will also be interested in what the rabbis he respects have to say on matters of communal policy.

The problem is that the rabbis he respects were almost all murdered. There are but a few rabbis among the survivors whom Shimen regards as worthy of being consulted. He considers most American rabbis worse than useless. Their knowledge is from books, not from a living tradition; they are naïve about the world and more immersed in shallow American culture than they realize; their opinions are either too lenient because they are acculturated or too stringent because they are insecure. In short, they are representative of American Judaism, which for Shimen is nothing but a vulgar and superficial shadow of the authentic Yiddishkeit that he recalls with so much love and so much pain.

The truth is that Shimen’s definition of tradition is not strictly bound by what the books say or what the rabbis say or even what his friends do, but rather by what he regards as the common sense of people deeply immersed in the traditional way of life. Shimen often mentions his friends in the Lodz ghetto who died of starvation because they would not eat non-kosher food and there is no doubt that he too would not eat non-kosher food even if his life depended on it. At the same time, Shimen would eat in the homes of those less observant than he is and drink wine poured for him by Jews who are not identifiably observant, in both cases without contemplating asking embarrassing questions. Shimen doesn’t wear the chassidic clothing he wore before the War; under the circumstances, it would simply feel inauthentic, as if he were pretending that the world of Polish chassidus had not been utterly destroyed. Shimen is more comfortable in the company of men and most of the public events he attends are gender-segregated; yet he finds the stringent customs regarding separation of the sexes that have taken hold among Gerrer chassidim as fair game for mockery. More generally, Shimen, like all his friends in the shtiebel, doesn’t have a need to signal his loyalty to the Jews through extravagant piety; he paid his dues up front. If I might indulge in some trifles, Shimen has no patience for baalei kriah for whom the Torah reading is a tedious exercise in hyper-enunciation. If Shimen only had grandchildren, he’d undoubtedly kiss them in shul and God have mercy on the American Litvak who’d point out to him that the Shulchan Aruch forbids this.

Shimen has no interest in justifying his stringencies or his leniencies or in convincing others to accept them. He’s completely comfortable in his own skin. He has no interest in reforming Judaism. In fact, since for him Judaism is defined by tradition, the very idea of “fixing” it is inherently incoherent to him.

In the coming chapters, we’ll consider how halacha plays out in a world of Shimens. How does the definition of tradition converge in a Keynesian beauty contest in which each person looks to the others to determine what the tradition is? If each person uses their common sense to chip at the margins the way Shimen does, will halacha remain stable? How much power do rabbis really have in Shimen’s world? How does halacha survive in the absence of legislation and enforcement?

Before we dive into these questions, we’ll consider an alternative model for determining right and wrong that, unlike halacha, does depend on legislation and enforcement – Heidi’s world.

Judeophobia

Heidi values fairness above all else, in particular above group loyalty. Since she was raised as a Jew, the Jews are the group to which she must not be loyal.

Heidi’s inability to be indifferent about the Jews undermines the fairness to which she aspires. If Heidi were to chance upon the Republic of Freedonia, a democratic country in a bad neighborhood that had policies identical to those of Israel, she’d have nothing but admiration for the citizens of that plucky little country; she wouldn’t be writing letters to the Times denouncing them. If some New Jersey township were hunting for ways to keep pointy-eared American Vulcans with quaint traditions from flooding into their neighborhood and acting like Vulcans, Heidi would be leading demonstrations against the racists. Pointy earlocks, not so much.

More generally, Heidi’s over-enthusiastic pursuit of equality is bound to result in greater inequality. Enthusiasts are drawn to simple solutions and the simplest method for quickly diminishing inequality is to punish winners and reward losers. But, Heidi’s protestations notwithstanding, not every group that fails is virtuous and not every group that succeeds is exploitative. Love for the underdog is, more often than not, love for the least cooperative and most aggressive and dysfunctional cultures.

Apart from undermining the very fairness Heidi wishes to advance, associating failure with virtue and rewarding it is a sure recipe for encouraging it. Rewarding failure drives a race to the bottom in which all sorts of groups prefer to parade real or imagined victimhood than to actually succeed.

But all this is rather benign stuff compared to Amber’s world. If Heidi is self-conscious about her Judaism and tries a bit too hard to demonstrate her neutrality, Amber is – sorry but there’s no more elegant way to say this – a flaming Judeophobe. Amber lives in a Manichean political universe in which individuals are irrevocably assigned either to the Sons of Light or to the Sons of Darkness according to gender, sexual orientation, race, religion, nationality and so on. There are, of course, disagreements about the pecking order regarding individuals belonging to a favored sexual identity but disfavored nationality, or vice-versa. But whatever the fine details of your preferred victimhood hierarchy, one thing must remain sacred if you wish to remain a member in good standing in Amber’s world: by the miracle of some nebulous doctrine called “intersectionality”, you must hate Israel too.

If we hadn’t grown accustomed by now to this bizarre state of affairs, it would strike us as deeply mysterious. Why does Amber, a champion of aggressive sexual ambiguity in all its permutations, identify with gay-lynching Muslims while accusing gay-friendly Israel of pink-washing? Why does Amber, a champion of the weak and downtrodden, identify with a league of large Islamic nation-states that wish to destroy one small Jewish nation-state?

(If you’re thinking that the answer is that Israel is somehow uniquely evil by the usual standards by which countries are judged, please go away and don’t come back. You’re not a serious person and I won’t argue with you.)

We can only begin to entertain the mystery of Amber’s Jew phobia in the context of a broader question. Why have so many different people despised the Jews for so long? As Paul Berman notes, in the Middle Ages, religious Christians hated Jews for rejecting Christianity and in the 19th century secularized Christians hated Jews for engendering Christianity. When racism was acceptable, the Jews were despised as an inferior race and when racism became disreputable, the Jews were despised for being racist. During the heyday of nation-states, the Jews were hated for persisting as minorities in other nations’ states and in the incipient post-nation-state era, Jews are hated for having their own nation-state.

It might be that the Jews are despicable for all these different reasons, but I think there’s a more parsimonious explanation. In a word, the Jews are Messiah-killers. But not that Messiah.

Think about the vibe the world gets from Shimen – and from Israel. It goes something like this: We Jews have our ways. We eat differently, dress differently, pray differently. We’re a tribe with our own hierarchies and we look out for each other. In short, we have our own moral system, including restraints and loyalties. We hold you in contempt for murdering us or, in the best case, remaining indifferent to our murder, but we’re prepared to live and let live. We won’t treat you like family, but we’ll be fair if you’ll be fair. And we’ll live this way for a good long time until Mashiach comes.

Shimen is making a claim: we can live according to our own distinct moral rules and nevertheless be fair with you.

Almost nobody wants to hear that claim. Not those Christians who wish to bring salvation now through universal acceptance of Christ. Not Muslims who wish to bring salvation now through the restoration of the Caliphate. Not racists who wish to bring salvation now by eliminating inferior races. Not enlightened philosophers who wish to bring salvation now through the triumph of reason over religion. Not post-nationalists who wish to bring salvation now through world government. Not Heidis who wish to bring salvation now through freedom from the persistent demands of their former communities. Not Ambers who wish to bring salvation now through liberation from the responsibility of growing up and maintaining civilization.

They all despise Shimen for stubbornly standing in the way of salvation. They all share an interest in denying the very possibility of reconciling particularist traditions and loyalties with fairness to others. The religious and racial supremacists hate Shimen for clinging to his own traditions and loyalties – and for demonstrating that it is possible to do so while being a tolerant human being. For the enlightened ones, the Heidis and the Ambers, who insist that fairness can only be achieved by abandoning particularist commitments, the opposite holds: they can abide, or at least patronize, Muslim supremacists precisely because they don’t presume to be fair; Muslims are playing to win and they say so. But Shimen – and Israel – reject the very foundation of the enlightened worldview: they arrogantly presume to be fair while simultaneously maintaining their own traditions and loyalties. To the enlightened ones, this is an unforgivable heresy.

The impatient can’t maintain their footing for long on the narrow path that runs between the abyss of fire-breathing particularism and the abyss of starry-eyed universalism. And when they slip off, as they must, they can’t resist pulling at the coattails of the Shimens who stick stubbornly to the path – the path that turns and winds and slowly ascends.

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This is the final post in Part 1 of four projected parts. The next part will shift from the substantive differences between Shimen and Heidi’s moral systems to the methodological differences. We’ll consider the procedures they each use to determine what is right and what is wrong and the platforms they each use to undertake collective action. In short, how does halacha work and what is Heidi’s alternative.

Saint Amber

Heidi’s world lacks tight-knit communities that generate social capital, a commitment to having children and a willingness to make sacrifices to defend against threats to its security. One might imagine, therefore, that the main threat to Heidi’s world is that it would slowly peter out. But it might not actually play out that way.

Meet Heidi’s daughter, Amber. Amber is a student at Oberlin, majoring in colonial and environmental studies. Her father is not Jewish and she has no substantive connection to Judaism, other than an inherited right to begin remarks hostile to Judaism with the words “As a Jew…”. As a woman, especially one who has chosen an amorphous sexual identity, she regards herself as persecuted by cis-gendered white men.

Amber doesn’t share with Heidi the memory of a real community, of a large and committed family, and of grandparents who can speak of genuine persecution. Heidi’s residual connection with a family and a community is sufficient for her. But Amber needs some other mission to give her life purpose. Amber is a social justice warrior.

Amber doesn’t share Heidi’s rather benign notions of fairness. Heidi believes, inter alia, that harmless activities that people do in the privacy of their own homes are nobody’s business. For Amber, this is entirely inadequate. Amber believes, for example, that everyone has a positive moral obligation to affirm the virtue of sexual activity that Heidi once regarded as taboo and that a failure to do so under certain circumstances should be prosecutable. Amber also believes that euthanasia and abortion should not only be legal but that they are good and that doctors should be obligated to perform them.

It turns out that once Heidi’s “live and let live” principle is deemed passé by the likes of Amber, the door is open to a broad regime of morally-charged dos and don’ts. Heidi’s rather vague aspiration to fashion a new moral world out what she imagines to be rational considerations sometimes leads to Amber’s moral world – a faux religion that makes traditional religion seem benign by comparison.

Let’s consider some of the Commandments in Amber’s religion.

First, whatever sexual taboos Amber has overcome have been sublimated into a bewildering array of food taboos. Amber won’t eat produce unless it’s organic, locally-grown, not genetically modified, and processed by union labor. She’s vegan and avoids trans-fats, nightshades and any dish that suggests cultural appropriation.

Following Heidi, Amber’s concern for the long-term future is focused not on the advancement or preservation of civilization but rather on the preservation of the natural environment. Her concern for the environment, which she regards as threatened by the encroachment of civilization, is fraught with religious symbolism. For Amber, recycling is a system of rituals and shrines (many of which are actually net negatives for the environment) and she regards those who question orthodox views on global warming as deniers or heretics, better condemned and avoided than reasoned with about the evidence. She dismisses out of hand potential solutions to global warming (such as nuclear power or sulfur dioxide pumping) that do not serve the higher purpose of curtailing the spiritual contamination of the world by technological advance.

If this sounds to you like mere crowing about Amber’s hypocrisy or lack of self-awareness, that is not my point. This is the point: developed religions like Judaism serve to subdue the instinct for idolatry and primitive religion, the kind that encourages superstition, self-debasement, seclusion of untouchables and human sacrifice. The process that we are witnessing as we move from Heidi to Amber is primitive religion reasserting itself in the absence of developed religion.

Specifically, Judaism facilitates expiation of sin through relatively harmless means – initially through animal sacrifices (admittedly, not harmless to the animals) and subsequently through private repentance (Hoshea 14:3). Christianity has its own methods, as do other religions, some more harmless than others.

When the communists suppressed developed religion, they reinvented aspects of primitive religion, including ritualized public confession of sins and self-flagellation, re-education in proper doctrine and, for those who failed the final exam, human sacrifice. Amber isn’t there yet, but the same untamed religious instincts appear to be at work. For Amber, the sin of contaminating Mother Earth with her carbon footprint can be easily expiated with symbolic offsets, but the sin of white privilege requires grueling public confessions. Holdouts can be publicly shamed and shunned and sent for diversity and sensitivity training. Amber regards even some consensual sex between white men and women as a form of rape countenanced by the patriarchy, but chooses to overlook the actual rape of European women by Middle Eastern men as the inevitable price of white guilt. Can human sacrifice be far behind?

In short, Heidi’s soft cosmopolitanism might not slowly peter out but rather be replaced by a radicalized version of itself that undercuts the very freedom that is meant to be at its core. Like some overly-enthusiastic baalei teshuva, Amber’s unacknowledged religious tendencies lack the nuance of more experienced and worldly-wise religiously-committed people like Shimen.

In fact, Shimen and the rest of the ex-Gerrer survivors have quite well-developed senses of irony, especially about religion. They aren’t nearly as earnest as the oppressed Amber of Oberlin. But I suppose they can afford it. After all, as Amber will eagerly tell you, they’ve lived the privileged lives of cis-gendered white men.

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In this post, we considered how too much freedom can lead to a revolt against freedom. In the next post, we’ll see how too much equality can lead to a revolt against equality.