By David Ramírez
On an elegant but tearing rebuttal directed at Professor Suzanne Last Stone, rabbi José Faur sought to dispel all the misinterpretations the said professor had made on certain aspects of Faur’s work:
«There may be some excuses for being a careless reader, but none to impute careless ideas to a careful writer. Finally, there is something defensive in Professor Stone’s frequent stipulation of her sentences, and making them sufficiently vague, as if afraid of being caught making errors… This is more appropriate for a freshman student, taking precautions in case he or she would be challenged by an attentive teacher, than for a serious scholar. Are we having here an updated version of hasagot, more interested in disproving the other, than in probing into the subject?[i]»
Careless readers are not uncommon in the world; in fact, based on my empirical experience I would venture saying it is the norm. Reading Faur is no easy task, which adds more trouble to the matter when discussing him, so much so that if it allows a distinguished published law professor and lecturer to make a circus of Faur’s writings – what is to be expected of other lesser-educated careless beings? The issue is no so much about education, but whether one is paying close attention to what is being read. Just that simple!
I once experienced one such instance of careless readers, by a couple of young Faurian enthusiasts. The subject matter came about when I was quoting halakhót from the Mishnéh Toráh. Their main objection was that one cannot quote halakháh from a book based on something Faur wrote in his latest work Horizontal Society (HS). The textual portions in question found under the title “The Mishne Tora” (vol. 1, pp. 406-415) go as follows:
«The Mishne Tora is a follow up to the guidelines of classical Jewish education – something about which the anti-Maimonideans were clueless. The purpose was to produce a work reflecting a consensus understanding of the law, which could be used as a textbook for the second stage of education.
The style of the Mishne Tora is that of a scholarly recapitulation or “transcript” (Derekh Qesara, ‘Introduction,’ MT I. 158) of the law that could provide a pivotal point of argument, but is not, and never was intended to be, a code as in a Civil law system which the judiciary must follow.
Some objected to the Mishne Tora on the grounds that it might allow unqualified people to render legal decisions (Horaa). According to this line of reasoning we should prohibit medical and pharmacological treatises on the grounds that unqualified people may use them to practice the trade clandestinely, etc. The basis of this objection is an analphabetic notion of ‘knowledge.’ … Citations from halakhic authorities have standing only when transmitted by sages to bona fide disciples of sages, or if their citation has been submitted to, and subsequently approved by, judicial authorities… To assume that judicial authorities would accept a decision simply because it comes from the Mishne Tora, or any other source, without proper development and argumentation, is preposterous… Therefore it could not award the reader authority to render “a legal decision.”»
In summary, the issue lies with the “legal decisions” or in rabbinic terms “Halakháh leMa‘aséh.” Which begs the question: What does the specific term mean?
In the accompanying volume II of the same work, which works as an appendix or assisting glossary to volume I, Faur goes into further detail as to what “Halakháh leMa‘aséh” means. Let’s cite all pertaining passages:
«To gain a proper understanding of these terms [qabbala and halakha] it would be necessary to consider three principles connected to halakha. First, it depends on qabbala ‘authoritative transmission,’… qabbala of halakha involves ‘frontal reception’ from an authority, as Moses at Sinai (Abot 1:1).
[…] Therefore halakha stands for authentic tradition… indicating ‘an accepted norm.’… A legal position may be put forward as din – ‘a view arrived at through judicial analysis,’ or as halakha – ‘authoritative transmission.’ A duly acknowledge halakha must be accepted, whereas a din could be challenged… When the status of a legal view is challenged, the case may be submitted to a vote and the majority of opinion prevails… However, once the matter has been settled by the [Supreme] court and awarded the status of halakha, it cannot be challenged on the basis of din. […]
It is clear now why rejecting a halakha equals ‘heresy’ […]
To question the integrity of the transmission of a halakha is tantamount to rejecting the authority of the sage that transmitted it. When the rabbis decided to call for a special session to settle a matter which it had been previously transmitted by R. Eleazar as halakha le-Moshe mi-Sinai, it was with the intention to publicly repudiate his authority… On one occasion, after a legal dispute, one of the parties discovered that the view he was proposing was in fact a halakha, and therefore reported it as such… By contrast, a din could always be challenged and a dissenting opinion would be duly noted… Samuel maintained that the entire last Chapter of tractate Nidda was le-halakha but not for ma‘ase ‘to be implemented’; see Yerushalmi Berakhot II, 6, 5b. (Conversely, some rules were put into practice as halakha le-ma‘ase although not formally halakhot; see Ketubot 56a). This is why, the sages distinguished between halakha and halakha le-ma‘ase; see Baba Batra 130b; Yerushalmi Gittin V, 47a; cf. Horayot 2a.
For the purpose of the present discussion it is important to emphasize that the authenticity and dependability of qabbala, and its corollary, halakha is not a matter of ‘memory.’ […]
[…] What makes qabbala, and its consequent halakha, ‘infallible’ is that it was recognized as such by the judiciary. Occasionally, a testimony reporting a tradition would be accepted as authentic, in so far as it makes legal sense, but not as qabbala; as per Yebamot 67a […][ii]»
Furthermore, right next to this appendix Faur gives a follow up as to what the term “halakha le-Moshe mi-Sinai” means, which brings the term “Qabbala” into sharper perspective,
«[…] “A halakha of Moses from Sinai”… is a major rabbinic concept. In a sense, “the entire Tora,” including the oral traditions, is “halakha of Moses from Sinai”… Not all these halakhot were originally designated as such. An opinion could have been registered in the Mishna as a halakha without any qualifications (see Mishna Orla 3:9), and upon consideration the Talmudic authorities would classify it as “A halakha of Moses from Sinai”… Maimonides recorded a list of most of these cases that were classified as “A halakha of Moses from Sinai.” According to Maimonides, these halakhot have two characteristics. First, they have no legislative basis in the text of the Tora, i.e., they were neither ‘encoded’… in the text, nor they can be justified by judicial reasoning (din), or rabbinic exegesis. […]
The halakhot that were designated as ‘of Moses from Sinai’ are those that although (i) have no connection with the text of Scripture, and (ii) although their chain of tradition cannot be fully determined, were, nonetheless, confirmed by rabbinic authorities as authentic… Maimonides maintained that once a halakha has been classified as ‘of Moses from Sinai,’ the matter was settled and its status could not be contested… We should note that Maimonides distinguished between two classes of traditions attributed to Moses. One “about which there could not be any controversy at all”… or what amounts to the same: “about which there never was [registered] a controversy (MT Mamrim 1:3). Second, a halakha le-Moshe mi-Sinai “about which there is no controversy”… – in the present tense! […]
The status ‘of Moses from Sinai’ does not imply that the halakha in question had been pronounced by Moses, but, rather, that although the chain of transmission cannot be fully traced, it has been confirmed as authentic, as if it were a halakha given by Moses at Sinai… In fact, the expression halakha le-Moshe mi-Sinai is used in Geonic literature as synonymous to ‘authentic, reliable,’ and ‘lucid and unambiguous’; […]
In conclusion, for Maimonides, the Geonim, et al, Halakha le-Moshe mi-Sinai is a special type of tradition, which cannot be verified by standard procedure. Nonetheless, it has the status of settled law and it is legally binding. […][iii]»
From the above discussion, two main categories emanate by the all-catch-word halakháh. One, there is the halakháh as qabbaláh (authoritative transmission) and halakháh as din (decision arrived by the judiciary through rabbinic exegesis). The first one cannot be contested, the second one can. In contrast to Qabbaláh, halakháh ‘of Moses from Sinai’ has a special place in rabbinic jurisprudence, in that although Scriptural basis or rabbinic reasoning cannot corroborate these, this type of halakháh is nonetheless accepted as legally binding as if received by Moses himself, when confirmed by the judiciary as such. Once this happens, the halakhót under this category cannot be contested by a future court, which acquire a corollary status to Qabbaláh. Thus, halakháh leMoshé miSinai is found under the umbrella of mide‘Oraitá.
As for the halakháh as din, we must further note that the Rabbis differentiated between the laws promulgated by the Supreme Court (mideRabbanán) and those laws left undefined by mide’Oraitá and mideRabbanan, which are labeled Diním Mufla’ím.
«Dinim Mufla’im (Undefined Laws) are the elements of the covenantal laws not defined by oral tradition [i.e. mide’Oraitá] and definition of which is the exclusive right of the judiciary [i.e. mideRabbanán]… The arguments advanced by the jurists when debating their individual views [in regards to Dinim Mufla’im] are of a rhetorical character. The ultimate purpose of this type of discussion is to convince, rather than to demonstrate in a scientific, objective fashion. Views are accepted or rejected on the basis of majority vote rather than by some “criterion of true interpretation.” Once a definition is accepted, it becomes the legal interpretation of the law. […]
[…] [S]ince the Dinim Mufla’im define scriptural laws, they affect the laws De-‘Oraita and thus they acquire the status of the laws that they are defining.
[…] The purpose of Dinim Mufla’im… is to meet the political, economic and social conditions peculiar to each historical situation. Through the interpretation of the undefined elements of the Covenant, the laws of the Scriptures are adapted to new circumstances.[iv]»
To further understand the role Dinim Mufla’im played between the Talmudic and post-Talmudic courts, Faur also explained,
«The Rabbinic Court had the power to transmit the Oral Law (De-‘Oraita), to interpret and define the law (Dinim Mufla’im) and to promulgate new laws (De-Rabbanan)… Maimonides distinguished the public courts functioning in Talmudic times from the courts functioning in post-Talmudic times, which he designated as “private courts.” […]
[…] Maimonides argued, on the basis of demography alone, that a public court with jurisdiction over all Jews no longer could exist. The courts established by different communities were “private,” that is, they had jurisdiction only over the community which had appointed them. […]
[…] The post-Talmudic private courts had no authority either to transmit the oral tradition, or to interpret and define scriptural law. They could promulgate new laws for their communities provided that those laws did not contradict the Talmud and that they were accepted by the members of the communities… the rabbi only expounds and formulates the decisions and opinions of the public courts as recorded in the Talmud.[v]»
It is the last paragraph which gives meaning of the Sephardic term “declarar el Din” (to declare the Law) in relation to the function of the community rabbi as halakhic administrator (or put in religious terms “spiritual leader”), who should serve more like a law clerk knowing, administering, investigating, and writing case decisions based on all decisions already filed by the Supreme Court.
It is under the light of all the preceding where one can further understand that the term “halakháh” is multi-layered, and can fall under any of the categories above described – where neither mide‘Oraitá, mideRabbanán and the Dinim Mufla’im are within the scope of the post-Talmudic courts to change or determine. Save for few exceptions, there is no contest as to what is Biblical and what Rabbinical in origin. Considering these constrains, yet it begs the question: If these are the boundaries, what precisely determines the amount of leeway the post-Talmudic halakhic decisor has in regards to decision making according to the times and circumstances?
There is also huge difference between quoting a halakháh and rendering a decision. It takes a great amount of stupor not to realize that someone stating, ‘thou shall not to kill is a negative commandment’ is abysmally different from indicting a presumed murderer on that sole basis alone, without any court proceedings, obtainment of evidence and witnesses, cross examination, etc. On quoting and making decisions based on rabbinic works, Faur illuminates the issue further:
«No reliable halakhic expert… would deem a quotation from a ‘source’ – any source – to constitute in and of itself a legal decision… The trajectory from a source or sources to a legal decision is what Maimonides refers to as the “path of the law”… In this connection, it would be highly instructive to examine a few-key passages in a responsum, Teshubot R. Abraham b. ha-Rambam, #98, pp. 143-149. The case concerned a decision issued by a local judge. The issue was complex, and the case was submitted to Maimonides’ son for review. What makes this case particularly significant is the fact that the sitting judge rendered the verdict on the basis of the Mishne Tora. The first point of concern was that fluency in and familiarity with legal texts were not sufficient to render a judgment without a proper conceptualization and proficiency in “the path of the law.” […]
Turning to the quotation from the Mishne Tora (p. 147), R. Abraham Maimonides remarked: “The judge that based his view on the text of the work (Mishne Tora) has, doubtlessly read only the first half (of the paragraph)… and skipped the end.” In law, a quotation is meaningless unless is accompanied by a solid judicial analysis. To accomplish this, the judge had to show “the conceptual gist”… of the edict that had been argued… In the case brought before R. Abraham Maimonides, the sitting judge failed to show how it was applicable to the case at hand… Again, a quotation “from the work” (Mishne Tora) is no substitute for judicial analysis. […]
It follows that a case cannot be resolved on the basis of legal citations without taking into consideration the specific circumstances present in the case at hand… Concerning the latter, he offered the following outline:
“In general, let me say, that a judge that bases his decisions only on the literal reading of the text, is weak and pathetic. This attitude, in fact, runs contrary to (what the rabbis instructed): “A judge must follow what his eyes showed him!” (p. 147)”
In simple terms, this means that quoting the law will not suffice when rendering a legal decision! Rather, the text of the law should serve as the basis upon which a legal theory is constructed.[vi]»
Maimonides himself codified rules, showing it is even forbidden to render decisions based on analogous cases that had come before the judge, without considering the uniqueness of the new case at hand:
«“Any judge who, when a suit is brought before him, seeks to deduce the decision in the case from an analogous case concerning which the law is know to him, and though there is in the vicinity a greater scholar than he, refuses to go to consult him – such judge belongs to the category of the wicked who are arrogant in decision. Touching such a judge, the Rabbis said: Evil upon evil will come upon him (B. Yeb 109b). For this and like attitudes betoken haughtiness and will lead to perversion of judgment.”[vii]
“[…] Lest the judge say, “Why should I subject myself to this anxiety?” It is written, He is with you in giving judgment (II Chron. 19:6); the judge is to be guided only by what he sees with his eyes.”[viii]»
In light of what Faur, Abraham Maimonides, and Maimonides bring, quoting from rabbinic sources – whether Talmudic or post-Talmudic – is not so much the issue per se, but the inability of the decisor to map “the path of the law” according to the case at hand. Within the scope of all the aforementioned, Faur’s statement, “To assume that judicial authorities would accept a decision simply because it comes from the Mishne Tora, or any other source, without proper development and argumentation, is preposterous… Therefore it could not award the reader authority to render ‘a legal decision’” acquires a greater and sharper understanding. Reaffirming this concept, Faur continues,
«There is nothing wrong if someone that does not know a halakha would ‘rely’… on the opinion of an expert, just as we do when we file a Tax Return… Indeed, R. Joseph ibn Megas maintains that someone who is not a thoroughly competent Talmudist fully acquainted with the interpretation and ruling of the Geonim, and “relies on the Geonic responsa”… is preferable to someone “who thinks he knows the Talmud and relies on himself” She’elot wu-Tshubot #195, 29d; cf. Studies in the Mishne Tora, pp. 39-40. Some of the great legal minds of Israel – among them the celebrated Maran Joseph Caro and the Rama – would ‘rely’ on the ‘majority view’ or on the local authorities and traditions. However, they were, first and foremost, eminently legal scholars…, and they knew how to bring into play the whole gamut of sources, as well as legal precedent and legal theory, to bear upon their own analyses and conclusions. Hence, the incisive, highly informed insights characterizing their writings.[ix]»
Having the above in mind, the Mishnéh Toráh is not merely a text book serving only those illiterate in “Aramaic dialect of rabbinical discourse proper,” but also brings in fuller context when Faur says its “purpose was to produce a work reflecting a consensus understanding of the law, which could be used as a textbook for the second stage of education.”
In summary, quoting or citing from a halakhic code of law or responsa in casual conversation, showing whether an action is a transgression or performance of law mide’Oraitá or mideRabbanán does not constitute rendering a legal decision halakháh leMa‘asé.
If a native-English speaker can make careless mistakes on an English-text intended for English readers, what should we expect from one-such careless reader when dealing with a language long fallen from daily use, like Mishnaic Hebrew or pre-Islamic Babylonian Aramaic?
It goes without saying, “There may be some excuses for being a careless reader, but none to impute careless ideas to a careful writer,” whether the writer be Faur, Maimonides, the Sages, or even David Ramirez.
To close, in reference to rabbis who make decisions based not on halakháh, Faur gives us a chilling ending remark,
«That is why, like the classical anti-Maimodeans, these rabbis make sure that their audience is made up of halakhically illiterate or semi-illiterate… public, unable to realize that what they promote as a judicial ruling…, is nothing more than an advocacy position, motivated in some cases by ideology and politics, rather than halakha.
For some sobering remarks on those who are not proficient in all legal sources… issuing decisions on the basis of ideology, rather than halakha, see Birke Yosef, Hoshen Mishpat, XV, 3.[x]»
The latter statement must be viewed in light of Appendix 55[xi] of the same book. To see a set contrasting decisions, reflecting the above statement (ruling cases based on “ideology and politics, rather than halakha”) check Zvi Zohar’s translations of Rabbis Abraham haKohen Kook’s and BenZion Uziel’s responsa on women’s suffrage (The Edah Journal Volume 1:2).[xii]
[i] Faur, José; Monolingualism and Judaism, Cardozo Law Review vol. 14, p. 1741.
[ii] HS vol. II, Apendix. 32 “Qabbala and Halakha,” pp. 64-67.
[iii] HS vol. II, Apendix 33, “Halakha le-Moshe mi-Sinai” pp. 67-70.
[iv] Faur, José; The Fundamental Principles of Jewish Jurisprudence, NYU Journal of International Law and Politics vol. 12; pp. 230, 231
[v] Ibidem., pp. 232, 233
[vi] HS vol. II, HS vol. II, Appendix 69 “Relying on Legal Sources and Authorities,” pp. 163, 164.
[vii] M”T Hilekhót Sanhedrín 20:8; Yale Series.
[viii] Ibidem. 23:9
[ix] HS vol. II, Appendix 69 “Relying on Legal Sources and Authorities,” p. 167.
[xi] “What makes the minim particularly odious is their methodology of deception. They are perfidious; they use Scripture not to teach but to mislead the naïve. They beguile the gullible, exposing a single aspect of their doctrines in order to block their prey’s judgment, thus driving him/her to do things that he/she will lament for the rest of his/her life. Their manifest reliance on the Tora and their use of Jewish terms and sources are gimmicks intended to take the dull-witted. In spite of their pretentious religiosity, they are cynics who believe in no religion.” (HS, vol. II; pp. 119,120).