Philosophy in Halakhah and Philosophy of Judaism: Introducing “Philosophy in Halakhah: The Case of Intentional Action”

The relationship between Judaism and philosophy has been the subject of discussion at least since Late Antiquity. Often, however, philosophy is reified as a distinct body of knowledge, the views of Epicurus and his followers, Aristotle’s corpus, or the very idea of the self-sufficiency of human reason, and viewed as either in conflict or agreement with an equally simplified notion of revelation, the word of God unambiguously revealed. In contrast, analytic philosophy allows us to see philosophical methods as regimented extensions of everyday argumentation, while a focus on halakhic texts reveals the role of human reason and debate in mediating the application of God’s will to the world. In this spirit, Jed Lewinsohn does a masterful job demonstrating the relevance of current philosophy for Talmudic learning in his article “Philosophy in Halakhah: The Case of Intentional Action.” His discussion is grounded in traditional lomdus, extended by knowledge of contemporary philosophy, and, most importantly for both traditional learning and contemporary philosophizing, guided by a keen intellect. His essential goal is simply to “[d]emonstrate different ways halakhic texts can be read philosophically” (98). Along the way though, he engages in detailed analyses of positions presented in the Talmud, by post-Talmudic commentators, as well as philosophers of action, discusses the epistemological and religious implications of finding philosophical positions embedded in halakhic views, and speculates on the theological consequences of what he takes to be the mainline halakhic view of action.

It is well beyond the scope of an introduction to discuss all of the issues raised in this article; moreover, certain areas are beyond my limited competence. Consequently, to start the symposium I will begin by drawing some connections between Lewinsohn’s project and that outlined by Rabbi Joseph Soloveitchik in the concluding pages of Halakhic Mind, then I will give a précis of the paper, raising questions along the way. Finally, I will close with some more general thoughts about the project that Lewinsohn so ably models, returning there to the connection with R. Soloveitchik. My comments and questions are not meant as conclusive criticisms of Lewinsohn’s work, they are not even my own fully considered positions, rather they are meant to initiate what promises to be a week of stimulating dialogue.
Lewinsohn notes the connection between his own project of reading halakhic texts (as opposed to those better classified as aggadah) philosophically and the thought of R. Soloveitchik in the first footnote to the article (128). However, there are further affinities between their views that are detectable throughout the article. For example, Lewinsohn’s speculation that halakhic rulings may provide “sturdier ground on which to fashion philosophical theories” than our possibly culturally or evolutionary determined intuitions echoes (though it is certainly not identical to) Soloveitchik’s claim that halakhah, as the objectification of (Jewish) religious consciousness, is preferable to subjective religiosity as a starting point for formulating a Jewish philosophy (88-91). Further, Lewinsohn’s concluding theological reflections evoke Soloveitchik both in the method by which they are reached and in their content. As Daniel Rynhold has noted in his recent study, “Two Models of Jewish Philosophy: Justifying One’s Practices,” the conceptual distinctions that Soloveitchik makes in order to explain particular halakhic norms often provide the foundations for understanding more general, and existential, aspects of the halakhic world view (61-70). So too Lewinsohn, though beginning with the explicit Rabbinic principle adam muad le-olam and the extreme minimizing view of action individuation (EMiV) that he attributes to mainline halakhah, concludes by meditating on human beings’ dual stature in the universe, oscillating between “effacement and aggrandizement” (121). More thematically, the existential tension between glorification and modesty is one that recurs frequently in Soloveitchik’s work, the most well known instances being in The Lonely Man of Faith and the essay “Majesty and Humility.” Thus, if as William Kolbrenner maintains Halakhic Mind can be read as Soloveitchik’s prolegomenon to any future Jewish Philosophy (“Towards a Genuine Jewish Philosophy”), then perhaps “Philosophy and Halakhah” can be read as a bridge that links that work to Soloveitchik’s more existentialist halakhic writings.
As I mentioned, Lewinsohn’s overarching goal is to “demonstrate different ways halakhic texts can be read philosophically.” He divides his article into four sections plus an introduction, conclusion, and appendix; three of the four central sections model ways of reading halakhic texts philosophically, while the remaining section contains methodological reflections. In the introduction, Lewinsohn outlines his project and sets it in the context of the scarcity of philosophical studies of halakhic texts. He also sets out some essential background to the concept of intentional action, both from a philosophical and halakhic perspective. From the philosophical perspective, he introduces the distinctions between intentional action, unintentional action, and mere behavioral happenings. From the halakhic perspective, he introduces the distinctions between transgressions be-mezid, be-shogeg, and mit’assek.
In expanding on the essential goal of the article Lewinsohn writes, “The basic idea is that when certain halakhot mention or implicate a philosophical concept, we should not be surprised to find the Rabbis struggling to pin down the concept or taking a stand (or several stands) on a controversial aspect.” He notes, however, that the Rabbis were not motivated by a “sense of wonder” like Plato and Aristotle, but “an attempt to rigorously explicate a particular law” (98). Lewinsohn quickly moves on to lay out the different ways halakhic texts can be read philosophically, but one might be left asking whether there might be differences between philosophical endeavors launched by wonder and those motived by the desire to explicate a law. Does the difference in motivation affect the way the project is conducted? It seems like it might as the motivations that initiate philosophical inquiry often indicate (which is not to say determine) how they are meant to conclude. Kant’s question ‘what ought I do?’ differs from the rabbinic question ‘what does this law mean?’ in that it does not begin with a predetermined norm. The former question’s openness allows it to have the potential to revise current practice. In contrast, Lewinsohn claims that by grounding halakhic-legal disputes in philosophical debates he “does not mean to imply that a posek’s ruling should be guided by his philosophical predilections” (120). And while Lewinsohn does show that different philosophical positions can give rise to different halakhic conclusions, these philosophical positions themselves arise from a consideration of the halakhic ‘data’ itself and so the potential for substantial revision of practice is slight.
Moreover, one might question whether wonder and explication exhaust the possible motivations for philosophical inquiry about norms and practices. A modern tradition beginning with C.S. Peirce has drawn attention to the pragmatic nature of philosophical inquiry. According to Peirce, “The irritation of doubt causes a struggle to sustain a state of belief. I shall call this struggle inquiry…. [T]he mere putting of a proposition into interrogative form does not stimulate the mind to any struggle after belief. There must be real and living doubt, and without this all discussion is idle” (The Essential Peirce, vol. 1, 114-115). Philosophical inquiry for Peirce begins when there are disruptions in practices that cause doubts to arise about the practices’ adequacy and the norms that underlie them. In light of criticisms of Brisk-style lomdus for its abstraction and divorce from practice, one might wonder whether adding further intellectual pyrotechnics will really enrich learning. Perhaps our learning stands to benefit more from a focus on determining practice in contested areas of halakhah, then by adding further abstraction to an already abstract discourse.
In the initial central section, Lewinsohn models the first way to read halakhic texts philosophically, that is, by showing how halakhah can serve as an impetus for philosophical thinking. In this case, he shows how the “need to explain the halakhah’s exemption for mit’assek transgressions and exception [from the exemption] in the case of pleasurable mit’assek behavior” (102) leads R. Ya’akov Kanievsky and R. Elhanan Wasserman to develop the rudiments of conflicting accounts of action and intention, which he compares to the fully developed account held by Anscombe and Davidson. Neither R. Wasserman’s view nor that of R. Kanievsky square with the Anscombe-Davidson account, or more importantly the intuitions that motivated it. R. Wasserman collapses unintentional action into mere behavioral happenings, while R. Kanievsky holds a non-cognitive conception of action. Consequently, at the close of the section, Lewinsohn poses what in my view is a crucial alternative: One can either view the halakhic data as constraining the reasoning of its rabbinic interpreters, resulting in creative but contrived positions with no general appeal, or one can “conceive of the halakhic data as serving as a basis for theorizing that is more reliable than mere intuitions” (105). Lewinsohn returns to this alternative at the close of the second section and so will I.
The next section models a second way of reading halakhic texts philosophically by showing how Talmudic pericopae commit themselves to particular philosophical positions. In this case, he explores a Talmudic discussion in Kereitot in light of philosophical debates involving the individuation of actions. Lewinsohn concludes that the best explanation for the position presented in the Talmud is that the stam holds the extreme minimizing view (EMiV) of action individuation, the idea that our most basic actions are ‘mere movements’ of our bodies. While this discussion is fascinating and I invite others to comment on it, in particular by raising possibilities for Talmudic counterexamples that I am not competent to marshal, I would like to turn to the end of the section were Lewinsohn discusses the possible epistemological and religious implications of this way of reading halakhic texts.
Lewinsohn asks us to consider the consequences of the discovery by an observant individual that a particular halakhah presupposes a philosophical position that she had previously rejected on independent philosophical grounds. This question is particularly significant for me as, lo aleichem, I find myself drawn to a more social and normative account of action individuation than EMiV, that of Robert Brandom, which while developing out of the Davidson’s view, differs from it in important respects (see Brandom’s Articulating Reasons, Ch. 2, or Making It Explicit, Ch. 4).In any event, Lewinsohn provides two possible consequences, neither of which seem particularly attractive to me.
The first alternative threatens to separate philosophical truth, or better truth simpliciter, from the halakhic process: “In general, although the tradition might provide rationalizations for various commandments, there is no reason to endorse the rationalizations for each and every instance. As long as one tells some story capable of generating commitment to the norm, there is no reason to go any further and revise one’s considered views” (109). But what if one is not able to tell an alternative story capable of generating commitment to the particular norm? What should one do then? Absent some theory grounding a commitment to the halakhic-legal system even (or especially) when one believes it is in error on a particular issue, the rationality of acting according to the norm begins to seem dubious. I think that it is here that we may be beginning to see the differences between a philosophical inquiry motivated by wonder and that impelled by the desire to explicate the law.
The second alternative moots the idea that the halakhic ‘data’ might be a firmer ground for the development of philosophical theories and concepts than our everyday intuitions. Lewinsohn rightly notes that “the sturdiness of a legal system does not guarantee that its philosophical underpinning are correct” (110), but he raises the divine nature of the halakhah as a possible alternative justification for seeing it as a reliable starting point for philosophical theorizing. However, this seems to require a radically maximalist conception of the divine nature of the halakhah. Recall that we are not talking about developing philosophical positions out of the peshat of the Torah itself, but rather a pericope in the Bavli.
I believe that Lewinsohn is correct to insist as he does in the third section, the interlude on methodology, that “the Rabbis are really making claims about [for example] action (the real thing)” (111) and not just action as understood by a specific legal framework, but I think that more needs to be said about the implications of a clash between one’s own philosophical positions and those found to be underlying halakhic views. In any event, the interlude also contains very useful discussions of two assumptions that Lewinsohn sees as underlying halakhic conceptual analysis: 1) the universalizing principle, which entails that “a concept invoked in multiple halakhic spheres will have the same standards of application throughout,” and the strong universalizing principle, which entails that “when the same word is used in different halakhic contexts it invokes the same concept unless there is independent reason to think otherwise” (112).
The next central section models a third way that halakhic texts can be read philosophically, that is, by using philosophical analysis to “enrich the world of Talmudic learning” (98). It can do this by providing additional higher order theories with which to ground halakhic debates. Lewinsohn demonstrates this by showing how a debate in the Talmud and among Rishonim concerning whether a particular case should be deemed an instance of mit’assek can be attributed to different accounts of intentional action. Stated facetiously, R. Nahman and the Ravad hold like Anscombe-Davidson that an action is intentional if and only if it is done for a reason, whereas Rava, Abbayei, and the Rambam hold like Michael Bratman that intentions are not reducible to reasons for action: we can have intentions even when we have no particular reason to favor one course of action over another. It is here that Lewinsohn disavows the practical ramifications of this sort of analysis. However, as I mentioned above, one might wonder about the swiftness of this denial. Why shouldn’t the plausibility of a philosophical view underlying a halakhic position be a factor in deciding whether to endorse that halakhic position? Lewinsohn suggests that ‘established systemic principles’ and ‘consequentialist considerations’ should be favored over such factors, but offers no reasons to support this claim. I am not denying that there might be such reasons, but a consideration of the relationship between philosophy and halakhah, or law more generally, requires some reflection on them.
Lewinsohn concludes with a section that engages in theological reflection that results from his rigorous analysis, which I have described above, and an appendix that discusses EMiV in the Nimmukei Yosef and the Riva as well as a non-standard account in Rashi.
I began this introduction by noting the affinities between Lewinsohn’s project and the thought of R. Soloveitchik in Halakhic Mind, and in concluding I would like to note two striking differences between their approaches. I do this not because I believe that agreement with R. Soloveitchik is a standard to which all contemporary Jewish philosophers must be held. Aderaba! It is because I believe that we must enter into a new, critical phase of our reception of Soloveitchik’s teaching. Further, I believe this comparison allows us to reflect on some of the wider issues involved in Lewinsohn’s project.
1) While R. Soloveitchik, at least in the concluding pages of Halakhic Mind, views the philosophical exploration of the halakhah as leading to the revelation of a “Jewish philosophical Weltanschauung” (101), Lewinsohn sees the philosophical reading of halakhic texts as aiding in the analysis of halakhic positions and disputes. Different views in the Talmud or among the commentators can be explained as the result of the parties holding different accounts of action or intention, for example. This is certainly not to say that R. Soloveitchik ignored the aspect of dispute in halakhah or that Lewinsohn is not interested in the big-picture, his tentative claim that mainline halakhah subscribes to EMiV and concluding theological reflections attest to such an interest, but it is a difference of focus, and one that indicates differing goals. R. Soloveitchik is interested in providing the methodological framework for a Jewish philosophy, while Lewinsohn seems more interested in philosophical methods as tools for learning.
2) In this connection, in Halakhic Mind R. Soloveitchik claims that the philosophical exploration of the halakhah will be a source of novel philosophical positions. He writes, “Problems of freedom, causality, God-man relationship, creation, and nihilty would be illuminated by halakhic principles” (101). Indeed, these positions would not merely be novel, according to R. Soloveitchik, they are likely to be incompatible with those arising from other disciplines: “Should this task be undertaken it would be discovered that many concepts employed by science and philosophy are incompatible with religious theoretical schemes“(47). Religion, according to R. Soloveitchik, is an autonomous cognitive domain, which is constituted by its own unique concepts of time, causality, selfhood, etc. In contrast, Lewinsohn, rightly, I think, claims that by virtue of the explanatory goal of halakhic discussion the concepts appealed to rationalize a particular halakhah must have extra-halakhic appeal (105, 111). However, at least in this article one often gets the feeling that the direction of influence is strictly unidirectional. General philosophical positions can illuminate halakhic views; but halakhic views do not offer novel philosophical positions that have wider appeal. This is most clearly evidenced in his discussions of R. Wasserman and R. Kanievsky. Lewinsohn does an outstanding job creating a dialogue between their dispute and the Anscombe-Davidson position. However, when the parallels break down, as in R. Wasserman’s collapse of action into intentional action, R. Kanievsky’s non-cognitive criterion of action, or the exception of liability in cases of mit’assek where there is phenomenal pleasure, Lewinsohn falls off the philosophical trail. But this is precisely the moment where halakhah might be able to make a unique contribution by providing a novel conception of action, for example, which may have wider applicability. Perhaps it is precisely then, when halakhah innovatively contributes to wider philosophical discussion, that a genuine Jewish philosophy is being articulated.
As I indicated at the outset, I do not intend my remarks as conclusive criticisms or even as arising from my own fully considered views. My goal, instead, has been to introduce Lewinsohn’s superb article and mark some issues for further discussion during the symposium. Lewinsohn discusses many topics, those involving halakhic and/or philosophical technicalities as well as those that rise to the level of high theological significance. I thank him, I think on behalf of all his readers, for doing so with intellectual depth and precision.
  1. Dr. Russell Jay Hendel

    I am unaware if this thread should be confined to the Lewinshon article AS IS and the consequent interaction between philosophy and halacha, or, whether this thread should FURTHER EXPLORE the examples in the article. I bring one modest example with the intention ( 🙂 ) of stimulating further exploration. I believe the example continues the general approach of the article but brings in new parameters.

    In a rather obscure law (Rambam, Nizkay Mamon 10:12), Jewish law deals with ANIMAL INTENT, relevant to the biblical passages – Ex 21:28-31, requiring legal execution of a animal that kills a human. Jewish law REQUIRES INTENT, that is intent of the animal to kill, as a prerequisite for the animal to receive the death penalty.

    What is fascinating, in terms of our discussion of the Lewinshon article, is the use of FUTURE events to retroactively classify INTENT. >>An animal scratching itself against a wall who kills a human is judged as not intending to kill the human if the animal continues to scratch after part of the wall collapsed and killed the human; contrastively, if the animal stopped when the human died, then the animal action would be classified as INTENTIONAL<< I believe this use of future action to retroactively classify intent, as well as the whole concept of "intention of an animal" requires expansion of the philosophical parameters of the Lewinsohn article to deal with intent. For this law suggests that you cannot simply observe CURRENT reality and ENUMERATE DESCRIPTIONS to determine intent; rather, classification may depend on future events as yet unobserved.

  2. Sam Lebens

    Just a few observations to begin with, because I still have to finish the actual paper, and only got a chance to glance at Yoni's wonderful introduction.

    Just one (long) question:

    Isn't there a big difference between R. Soloveitchik and Lewinsohn in that R. Soloveitchik seems to think that the halakhic process has very little to do with philosophical speculation; after all, we rule on legal issues via all sorts of formal principles (klalei psak) that determine which Rabbis we follow in any given instance.

    Philosophy doesn't inform halakhic discussion, as far as Rav Soloveitchik is concerned. Rather, after the fact, after the halakha has crystalised, it can function as a great foundation for a Jewish philosophy. What does Jewish law, once it's been sealed, have to say about personal identity, about ethical categories etc. etc.? These questions only arise once we have arrived at an agreed upon body of law.

    But, on Lewinsohn's analysis of Talmudic debates, the philosophy starts much earlier. The philosophy starts before halakhic conclusions have been reached. Indeed, philosophical speculation informs the various disputants at the earliest stages of the halakhic debate. Is this not a salient difference?

    As far as I can ascertain, reading substantive philosophical theses into the words of Talmudic Rabbis, in their halakhic disputes, is not something that R. Soloveitchik would encourage. We can use halakha as the foundation for a Jewish philosophy only once the halakha has been sealed; before then, we only need the conceptual apparatus of traditional lomdus.

    Lewinsohn makes the relationship between philosophy and Talmud study much more intimate.

    Even if the halakha isn't decided based upon who got the metaphysics right, even if we follow Hillel over Shammai without any reflection, it can still be the case that the disputants themselves were interested, all things being equal, in having their legal categories mirror, as closely as possible, pre-existing metaphysical categories.

    In fact, for Lewinsohn, we reach the opposite conclusion to R. Soloveitchik. Rav Soloveitchik thinks that philosophy can start only once the halakha has been sealed. On Lewinsohn's approach, the philosophy happens before the halakha has been sealed. When the halakha is sealed, it is often sealed for reasons that have nothing to do with the philosophical discussion at hand. The halakha isn't sealed because so-and-so was right about his philosophy of action, for example, it was sealed because we always follow so-and-so in this area of law. Halakha doesn't, therefore, contain a Jewish philosophy of action, for Lewinsohn, so much as the debates that foreshadowed the sealing of the halakha were informed by competing conceptions in the philosophy of action.

    Am I making sense, and doesn't this put Lewinsohn at odds with R. Soloveitchik?

  3. Sam Lebens

    I'd be very interested to know, from someone well versed in the Anscome-Davidson approach to intentional action, whether Dr. Russell Jay Hendel's facinating example of Animal intent to kill, and the methodology of retrospective clarification, can fit into the traditional Anscome-Davidson model.

    I don't think that that would be too much of a digression at all.

  4. Dani Rabinowitz

    Thank you Yonatan for your reflections on Lewinsohn's paper. I was fascinated by the meaty theological upshots of the paper that you highlight. I guess this is how I think of the relationship between the halakhic process and philosophy. When hazal are debating a point that seems to revolve around a point that would be the topic of discussion in a philosophy class, then I think it is fair to say that hazal are concerned about philosophy when deciding halakha. And like Lewinsohn, and contrary to Aaron Segal, I think the philosophical terms in the mouths of hazal have the same referents as they do in the mouths of philosophers (i.e. they cut nature at the same joints). This being the case, if we have independent philosophical reasons to undermine the philosophical theory that seems to underpin hazal’s position, then we have reason to doubt that they reached a philosophically defensible position even though that position would be halakhically binding given the nature of the halakhic system (i.e. majority opinion wins etc. To put it in Sam’s terms, philosophy precedes klalei pesak). I assume that it follows from this position, and I am admittedly somewhat alarmed at the entailment, that if philosophers produced sufficiently strong arguments against a halakhic position, then the sunhedrin would be forced to reconsider the law. For instance, to use a highly contrived example, suppose hazal debated the legal ruling in a specific case and it seemed to us that indeed they were arguing over the legal ramifications of the KK principle (that if one knows p then one knows that one knows p) even though they don’t frame the debate in those terms. Now suppose the majority of hazal endorsed the KK principle and on the basis of its intuitive appeal decided to rule x in case y. However, in the recent past epistemologists have provided convincing arguments for KK being false. If presented with these arguments I assume/imagine hazal would be forced to reconsider their ruling. In a somewhat ironic or comical depiction of this picture, I imagine philosophers, in legal cases that turn on philosophical points, would be called before the sunhedrin/battei din/battei midrash as expert witnesses in much the same way that poskim today consult medical experts before making rulings pertaining to medicine.

    On another point in the paper, suppose for the sake of argument that there are indeed reasons for the commandments enumerated in the Torah, that some of these commandments have a philosophical point as their reason, that the source of those commandments are God, and that of all the various positions that could be taken on those philosophical points God took the true one and not the most convenient or utilitarian or whatever. These are pretty standard or mainstream orthodox assumptions (apart from the last perhaps). It strikes me, then, that certain parts of the halakha could be consulted as a more reliable source of philosophical intuitions that our own given how unreliable we know our own can be. Halakha could then act as a source of philosophy, where, again, the terms cut the same joints.

    Jed, thanks for a fascinating paper.

  5. Sam Lebens


    Even though I agree with you, and disagree with Aaron, that, in general, when the Rabbis seems to be arguing about philosophical issues, they actually are arguing about the philosophical issues that they seem to be arguing about, I nevertheless don't argree with you that this means we would ever feel compelled to uproot past rulings based on new philosophical findings.

    Utliamtely the law is probably most interested, most of the time, in matters of public policy: what ruling would be most fair, consistent, peace-promoting, and the like. But, if a legal term, such as 'knowledge' has to be defined, the rabbis will fight for a definition that is closest to their philosophical intuitions, here in the realm of epistemology.

    Nevertheless, since the law isn't really about tracking truth, so much as promoting peace (I can evince a lot of Talmudic evidence for this thesis), once the law has been established, it really doesn't matter whether the accepted legal definition of 'knowledge' fits with our best epistemology, even if epistemological scruples motivated earlier legal debates.

    This leaves us with a position between yours and Aaron. Talmudic debates might be motivated by philosophical scruples, but once the halakha is sealed, it doesn't really matter whether the winning philosophy was right or wrong. I think this is Lewinsohn's opinion too, which allows him to oppose the view that “a posek’s ruling [as to what the practical halakha should be today] should be guided by his philosophical predilections”.

  6. Sam Lebens

    Having now properly read your intro now Yoni, I see you agree with me about the points of difference betwwen Lewinsohn and R. Soloveitchik. Do you agree with the way I put it? Or, more likely, did I miss something?

  7. Dr. Russell Jay Hendel

    I don't believe R.Solveitchick and Lewinsohn disagree. The word PHILOSOPHY in this thread is being used with two distinct meanings: 1) (classical) PHILOSOPHY in the sense of views on man, God, happiness, hereafter, and 2) (linguistic/psychological) PHILOSOPHY in the sense of definitions of such things as knowledge, intention etc. (Forgive my non-standard use of terms – if someone, seeing my examples could more precisely characterize these two types of philosophy I would appreciate it).

    I think BOTH Lewinsohn and R. Soloveitchick would agree that
    1) Linguistic/psychological philosophical methods are used TO ASCERTAIN the halachah but
    2) Philosophical views on man, God, hereafter, service of God and happiness can only be ascertained AFTER the final halachah is determined.

    Note also: The Rav (at least in Halachic Man and Halachic Mind) does not see halachah as being formed by what Sam calls " most fair, consistent, peace-promoting, and the like" The Rav makes it clear that the halachicist builds theoretical models based on pure logic and only afterwards thinks of the affect of his decisions on Jewish law.

    I once heard the following analogy from R. Soloveitchick (In a Saturday night lecture).>>Consider a scientist working on a cure for cancer. Would you say his conclusion – X cures cancer or X does not cure cancer – is based on public policy and sympathy for people's emotions? Certainly not! Rather, the scientist uses objective methods to ascertain if X cures cancer and publishes them. Only then does he study public policy and how people are affected. This does not mean that the scientist doesn't care about people – rather his care of people is dictated by a methodology which INITIALLY requires detachment from the very people he is trying to help.<< Russell

  8. Sam Lebens

    I agree that 'philosophy' is being used in at least two senses here. A major difference about the two types of 'philosophy' we're discussing seem to me to be the following.

    Lewinsohn encourages philosophical analysis of Talmudic debates on the assumption that the Rabbis are really interested in metaphysical and epistemological categories (it's far from clear to me that Rav Soloveitchik would have agreed that Talmudic debates are so regularly emeshed with these sorts of concerns).

    Rav Soloveitchik, in distinction to Lewinsohn, is interested in the religious world view that emerges when somebody lives a life that is coreographed around halakha. That is, primarily, religious phenomenology, or descriptive religious psychology: what is a person's experience of time once he lives within the regulations of halakha, what is a person's experience of mortality once he lives within the regulations of halakha… and so on and so forth.

    Looking at it like that, I can accept that there is not a big argument here (though there may be some small points of difference) so much as different interests.

    The psychological and emotional landscape carved out by living a halakhically observant life is surely a philosophically significant datum, when considering the nature, role, function and value of halakha. But, it is a very different field of study either to (a) the study of the metaphysical commitments of halakha (or the study of whether there are such commitments) or to (b) the study of the philosophical intuitions that must have underpinned various Talmudic debates.

  9. Yonatan Brafman

    Sorry to be late getting back into the conversation.

    While I do think that "philosophy" can be used in two different senses, I am not sure they can be as easily disentangled here as has been indicated. Soloveitchik seems to think that not only will his method of descriptive reconstruction yield a "Jewish Worldview" (classic philosophy), the latter is built out of particularly "Jewish" or "religious" concepts, such as the "self" or "temporality" (something more analogous to philosophical analysis, getting clear on basic concepts).

    Further, Soloveitchik's postulated Jewish worldview, which is more focused on the 'finished' halakha, is also related to his lomdus-type analysis. See Rynhold's examples of mourning and atonement in Two Models for a very good demonstration of this.

    Also, in terms of the question of the relationship between philosophy and psak, in keeping with my pragmatist leanings, I try to view these questions from the bottom up as opposed to from a 'system-perspective,' unless the 'system-perspective' can be pitched from the bottom-up. That is to say, laws in general provide reasons for action to their addressees. Now often, a law can be justified to its addressees based on substantive reasons that apply to this particular law, for example "don't kill.' Other times, however, a law cannot be justified strictly substantively, for example "drive on the right side of the street" (I recognize that this is a trans-Atlantic conversation, that's part of the fun). Here the law cannot be directly justified to its addressees, but must justified via all sorts of other premises about legal authority and the latter's own justification. So returning to the question of philosophy and psak, I certainly agree that there might be all sorts of reasons justification adherence to a halakha that is grounded in a position that one believes is mistaken. But,a justification for this needs to be given, one that is cast in terms of why it would be rational for an individual to abide by a norm that he thinks is based on mistaken premises, not just one that appeals to how the halakha as a system operates.

  10. Sam Lebens

    I accept that Rav Soloveitchik provides us with analyses of basic concepts such as 'self' and 'temporality'. But he really does this via something akin to phenomenology. He starts by asking how do the 'self' and 'time' appear to a person when he is situated within a life that is bounded by halakha. Because of his Neo-Kantian convictions, and his cognitive pluralism, he thinks that this question actually uncovers something about reality itself, but he is nonetheless starting from 'how things appear'. This is a very different sort of analysis from one that tries its harderst to detatch itself from the first-person perspective.

    I also never deny that his philosophy isn't related to his lomdus, but that his lomdus doesn't generally involve attributing metaphysical/epistemological/ontological theses to the protaganists of Talmudic debates.

    Finally, I agree that different sorts of law require very different sorts of justification. As I've argued with Aaron if the legal defintions around the end of life are metaphysically wrong, then we'd have very good grounds to be quite upset!! But, in other areas of law, even if the definitions were attempts at metaphysics, it isn't obviously the case that inaccuracies would udnermine our justification for abiding by the law.

    Let us imagine that a given area of law was really motivated by utilitarian or pragmatic concerns, but that in order to get the law going certain key concepts needed to be given legal definitions. We might very well try to have thsoe key concepts defined as closely to the relevant metaphysical and epistemological concepts that they seem to mirror. But, because the law's real motivation is pragmatic/utilitarian, and, if the erroneous defition doesn't interefer with the law's pragmatic virtues, then the error in philosophy won't undermine the law's authority.

    Thus, I don't think I've said anything above that conflicts with your last comment, Yoni, although I think you thought I did!

    American's drive on the right, do they?! Now I understand why I got in all that trouble last time I was there.

  11. Aaron Segal

    I want to second the thanks to Jed for his fascinating and rich paper and to Yonatan for his outstanding introduction.

    I couldn't agree more with Sam's description of the Rav's philosophy of halacha, and how, in general, the Rav conceived of the relationship between philosophy and halacha, with the exception of this line: "Because of his Neo-Kantian convictions, and his cognitive pluralism, he thinks that this question actually uncovers something about reality itself" – I would have said just the opposite. Those neo-Kantian convictions, cognitive and conceptual pluralism, etc. imply that one is NOT uncovering something about reality itself, or more precisely, the only think you are uncovering about reality *itself" is that it can be categorized in a certain way. And – if I may defend myself for a moment from my critics, or at least ally someone with me – his conceptual pluralism is exactly the sort of view that *deflates" substantive philosophical questions and debates. [He would deflate those questions in general, whereas I would do so only in the context of halachik discussions, but at least we converge when it comes to halacha.] And that is a major difference between Lewinsohn and Rav Soloveichik. Lewinsohn takes those debates seriously AS DEBATES: he thinks there's a correct and incorrect answer (where those are cashed out in terms of truth and falsehood, rather than some other correctness conditions), that Hazal might have gotten it wrong, etc.; whereas the Rav would, I think, say that to the extent that there is a "correct" approach, correctness has to be construed as distinct from truth.

    [And just as an aside – and this is an argument I have given before – I don't see how one can consistently maintain, as Sam seems to, that Hazal (in halachik contexts) were usually debating substantive and ordinary metaphysical and epistemological questions, and that halacha is decided based on purely formal considerations that may very well fail to track the truth, AND that Hazal themselves understood psak halacha that way (Sam doesn't take that final committment on board explicitly, but I would think he would want his claim about how psak works to be grounded in the Talmudic discussions of that). Wouldn't a debate between Abaye and Rava, which is constrained by a decision in accordance with Beit Hillel on some "metaphysical issue," have to have been seen by them as an exploration of the distinctively halahic notion at play?]

    Also, the issue, roughly, of what to do when halacha is based on a false premise, is surely of broader application – false premises can come from lots of places besides philosophy, including science, history, archaeology, etc. Is there any reason to think that we should approach the question differently when the (alleged) falsehood is philosophical (assuming, contrary to my own position, that philosophical arguments can often lead us to believe that a certain premise underlying a halachik position is false)? Are we perhaps on shakier epistemic grounds when it comes to philosophical claims? Or are the consequentialist/pragmatic considerations in favor of change/reconsideration greater in those other areas because lots of people know the claims of science and history, and very few people know, or care about, philosophical claims?

  12. Sam Lebens

    I love hearing the words 'I agree with Sam' when uttered by Aaron in particular. But, let me place a slightly larger wedge between the two of us, though I'm loathe to.

    A quote – one of many such quotes – from the Halakhic Mind, pg. 16, seems to indicate that objective reality itself stands up to be examined, so to speak, from the various different cognitive standpoints allowed for by the pluralist:

    "While pragmatism, in its essence, is positivistic and annuls the idea of the absolute, epistemological pluralism does not deny the absolute character of Being. On the contrary, it is ontologically conscious of, and reserves a central position in its perspective, for absolute reality. Pluralism asserts only that the object reveals itself in manifold ways to the subject, and that a certain telos corresponds to each of these ontical manifestations."

    In the portions of Halakhic Mind that deal with the various perspectives on time, the Rav goes out of his way to say that time itself reveals itself in different ways relative to the telos of the inquiry.

    I don't what Aaron will do with those quotes, but I'm interested to hear.

    Secondly, on the point about halakhic 'errors', I want to quote a little bit from the paper I gave at that Shalem conference last year. I was talking about a debate between Rava and Abayei about how to treat certain claims, in court, let's say, that invoke generality. I say that the debate hinges upon their different metaphysical conceptions of generality. Aaron would say that they were merely arguing about how the law should view such claims.

    "Firstly, even if you and I are not intending to argue about the fundamental nature of generality; even, if we’re only arguing about how we think the law should treat general claims; it is still likely that on many occasions, we’ll be influenced by our philosophical intuitions about generality itself. If you’re Russellian, you’re likely to tend towards a different ruling than the Wittgensteinian. I concede that both options might be totally acceptable as legal options, even though in the metaphysical dispute, there can only be one right answer. I also accept that, when we rule in accordance with Rava, we’re not ruling about the metaphysical reality, and therefore, we’re not ruling like Wittgenstein. I think this gets out of the hot water that Segal would pour on my reading. I’m still allowed to say, however, that Rava and Abayei’s positions were likely influenced by the way that they viewed the world beyond the law, even if they were only arguing about the law, and not the world."

    On this reading, it isn't weird that klalei psak aren't interested in who's philosophy was right. Nor, is it weird that we keep the law even if the philosophical intutions that inspired its formulation were wrong.

    As far as I can tell, there are two questions that have been raised in this discussion that really haven't been addressed.

    1. Aaron's question should halakha based on false philosophical presmises be treated any differently to halakha based upon false scientific or historical premises? Some concrete examples would be nice.
    2. Dr. Hendel's question about the halakhic discussion of animal intentions and their retrospective clarification – can that sugya fit into an Anscombe-Davidson model?

  13. Dani Rabinowitz

    Perhaps a third question in addition to Sam's two, if it doesn't take the discussion too far of course:

    3) What is the nature of the klalei pesak such that they can ignore philosophy, or in Aaron's term fail to "track truth"?

    Does it seem weird to anyone else that the dynamics of a legal system can favor philosophically weak positions over more robust ones? Where do these legal principles come from?

  14. Sam Lebens

    In response to question (3), I'd want to say something along the following lines:

    In areas where we do want halakha to 'track truth', such as, perhaps, in the end of life debate (although perhaps not, as perhaps there isn't a metaphysically best point at which to say a life has ended, but let's pretend for argument's sake that the end of life debate is one areas where we want halakha to track truth), we'd hope that the formal klalei psak have no authority, and we should make rulings based only on the facts as ascertained by our best philosophical account.

    But, in areas of law where the definitions and concepts really don't need to track truth in order for the law to be worthy, then the klalei psak could be totally arbitrary, or, at least, based on secondary concerns – such as the reasons given for our generally following beit Hillel over beit Shammai – not because they track truth but because of their humility, or because of their leniency, which constitutes some sort of secondary halakhic value that we want the laws to be as easy to live by as possible… and so on and so forth.

  15. Sam Lebens

    But, this doesn't mean that, all things being equal, the disputants themselves, i.e., Hillel and Shammai, weren't having debates that were informed by their philosophical intutions and theories, as I've tried to explain above.

  16. Dr. Russell Jay Hendel

    Sam agrees with me and correctly speaks about the post-pesak halachah as dealing with >philosophy – religious phenomenology, descriptive religious psychology – in the sense of a worldview of a life choreographed around halachah. What is the person's experience?< However several discussants raise the issue of whether pre-psak halachah is possibly based >on utilitarian or pragmatic concerns.< This might be true but I would like to argue that the Rav did not believe this. I would like to argue that the Rav believed that pre-psak halachah uses purely formal methods identical to those of modern epistemologists and metaphysicists.
    Let us look at the following examples which halachah studies:
    a) is a stolen object sufficiently CHANGED so that the thief acquires the physical object and must only return its monetary value; b) if a person unknowingly lost an unmarked object does his PRESUMED RELINQUISHMENT (Yayush) when he finds out retroactively apply to the moment of loss (Can a finder claim the object prior to relinquishment); c) is INTENT OF ACTION distinct from INTENT OF CONSEQUENCE (a topic related to our current discussion) – e.g. does a slave go free if his master intentionally removed an infected tooth – the master INTENDED the TOOTH REMOVAL albeit not as DAMAGE (This relates to Lewinsohn's account of simultaneous descriptions), d) another example of INTENT OF ACTION vs. INTENT OF CONSEQUENCE is the planting of a tree whose roots will eventually invade my neighbor's property (not however my intention); e) is intentional damage by fire MORE SIMILAR to damage by ARROWS or damage by PIT (this affect the number of damage categories the person must pay)

    I would strongly argue that the halachic debates on these 4 concepts – STATUS CHANGE, SIMILARLITY etc – have nothing whatsoever to do with "religious worldview" nor even with legal revelation (The debates are settled logically and by analogy not by citation of verses). In other words the Rabbis when discussing these examples did not differ at all from epistemologists and metaphysicists discussed these same concepts.

    Thus I reiterate my position that Lewinsohn and the Rav both hold epistemological /metaphysical methods are an integral part of pre-psak halachik discussion.

    Regarding my animal intent example: Sam has kindly mentioned the lack of response twice. Perhaps expanding the example will motivate discussion. While I thank Lewinsohn for INTRODUCING us to the epistemology-halachah duality, I don't feel he has gone far enough. There are many problems of INTENT not discussed in philosophy: a) animal intent and retrospective evaluation of intent, b) INTENT OF ACTION vs. INTENT OF CONSEQUENCE. C) I will close with one more example. Technically the category of mithaseyk is distinct from the category of shogayg. The mithaseyk may be described as someone doing an action with two descriptions but focused on only one of them-e.g. a person correcting a mezuah and reading the words as he corrects. Here the descriptions a) correcting faulty writings and b) reciting themezuzah contents, both apply. But he is mithaseyk – his focus is on correction and halachah raises the issue whether his intent of action can be transferred to the reading on which he is not focused. I was hoping that we could EXTEND Lewinsohn's initial analysis to other areas of intent. So I do look forward to further discussion.

    Regarding errors: I think we would all agree that law is biased towards lack of change since it thereby achieves stability. I am reminded of Broyde’s beautiful paper on using electricity on Sabbath. After presenting half a dozen possible reasons Broyde suggests that perhaps we have simply inherited a psak based on faulty knowledge of electricity, a psak which is now hard to change. I think we have the same situation here. However I believe that making explicit chazalian methods will provide fertile soil on which change can eventually take place.

    Russell -Please call me by my 1st name as is the group custom

  17. Aaron Segal

    Sam – I think we may have different contrasts in mind and so are talking past each other. Yes, I agree that the Rav was not a pragmatist or relativist about truth; and, moreover, he thinks the World really is presented or revealed to a subject. But, crucially, his conceptual pluralism rules out there being "veins" or "joints" in Reality which we try to uncover – all of THAT, according to the Rav, is *brought* to Reality by the subject. This is something any card-carrying Kantian has to accept, I think. But then it's hard to see how a philosopher or halachist can be accused of going wrong in ostensibly philosophical disputes about such issues as identity, action, time, etc., except in the sense of (1) manifesting linguistic INCOMPETENCE – he or she is using words to pick out some concept which those words do not in fact pick out (given the usage of the community, say, the concept they have in mind is not even a candidate meaning), OR (2) employing a conceptual scheme that is less-than-ideal from a pragmatic perspective. But I take it you wouldn't want to accuse a halachist – or anyone else for that matter – of linguistic incompetence unless you were pushed to do so; charity demands that of us. And you may be willing to say that halachists had different conceptual schemes, and some were pragmatically better than others, but that's a far cry from Lewinsohn's assumption that there'll be a *right* answer (i.e., true) in a Talmudic-halachic dispute which is ostensibly philosophical.

    Russell – I think Lewinsohn does take up some of the issues you raise(see his footnote 5, about different sorts of intention, and he also discusses the distinction between shogeg and mitasek at some length.)

    Dani – it's an advantage of my account (and, on my reading, the Rav's account) that it's very hard for a halachist to go *philosophically* wrong; but even on an opposing view – Lewinsohn's say – it seems to me that the general sorts of considerations marshalled by Sam and Russell are adequate to explain why Hazal would sometimes prefer klalei psak that don't necessarily track the truth. What do you think of them? But I do see Yonantan's point – if I've understood it correctly – that even if we've satisfactorily explained why Hazal employed such rules, there's no guarantee that we've yet given a REASON to act in accordance with halacha X for someone who believes the basis of halacha X is incorrect. But how about this sweeping reason: God endorses the halakhic process, even if certain decisions were made based on false beliefs (within certain limits, like those discussed in Horayot, etc.)

  18. Sam Lebens

    Russell, I don't know enough about the Rav's Talmudic lomdus. I was never fortunate enough to sit in his shiur, though I have learned with a number of his students.

    I am convinced that in the four examples you bring, the Talmud and the protagonists in its debates are concerned with bog-standard metaphysics and epistmology. Lewinsohn would clearly agree. Aaron, on the other hand, given a paper he presented to a conference last year, would seem to disagree. And, I'm not sure that the Rav ever explicitly took sides on the issue between you, me and Lewinsohn, on the one hand, and Aaron on the other hand.

    Certainly, my impression of traditional Brisker Lomdut is that they are concerned with formal legalistic distinctions (does the Biblical law in the vicinity of our discussion fall upon the individual or the community, is the law one that demands action from a person or demands that a certain objective is achieved, etc. etc.). I have never heard, in the name of the Rav, an analysis of a Talmudic debate that has one side taking a substantive position in metaphysics (outside of the metaphysics of law), and the other side taking a distinct position. This would be a sort of makhloket metziut (an argument about the law-external reality) which Brisker Talmudists don't generally allow for!

    In short, I agree with you that the Talmud is often interested in substantive metaphysical questions. I think your four examples are great cases in point. Aaron disagrees with you, and I have no reason to think that Rav Soloveitchik was on our side (unfortunately!).

  19. Sam Lebens

    Aaron, now I see that we were talking past each other (my fault, I think). And, yes, we agree broadly speaking, in our understanding of the Rav's Kantianism.

    I can't disagree with you when you say, '[H]is conceptual pluralism rules out there being "veins" or "joints" in Reality which we try to uncover – all of THAT, according to the Rav, is *brought* to Reality by the subject. This is something any card-carrying Kantian has to accept, I think.'

    AND YET, there is a point in the Rav's philosophy where one feels that there must be something aproximating the notion of 'joints' in his mind-external reality. Let me explain.

    The Rav has to explain how his cognitive pluralism doesn't collapse into a radical subject specific relativism, where anything goes. He wants to say that according to the telos of your inquiry, different conceptual schemas are appropriate at different times. But it isn't the case that every conceptual schema will finds its place in the sun. Some conceptual schema are not fit for any purpose whatsoever. Why? On the one hand, that might just be because of the relationship between that shcema and the various teleological aims that rational inquiry may take. Thus we learn very little about the mind-external world just because we know that some conceptual schema have no use whatsoever. That might just reveal something about the nature of rational inquiry and the rational subject. And yet, the Rav goes further and states that not every telos is of equal worth. He goes to great length to demonstrate that the religious perspective on reality is a valid perpsective. Why? Why not just say that the rational mind can pick any goal it likes for its inquiry and then pick a conceptual scheme that fits that goal? I think the Rav thought that reality itself, independent of any perspective, doesn't allow for such a relativism of ends. Reality does have some joints (lets call them thin joints), and that's what limits the acceptable ends of rational inquiry, which in turn imposes thick joints upon reality according to its own ends.

    The only problem with this understanding of the Rav is it commits him to saying the unsayable! As a Kantian, he thinks that the world can only be approached through the glasses of reason. As a cogntive pluralist, he thinks that there are a number of acceptable glasses that one could wear, but that you still can't say anything about reality unless your wearing a pair. And then, he wants to say something about reality such that it, itself, limits the number and variety of accetpable pairs of glasses. But how can he say this last statement, as it seems to demand a perspective with no glasses whatsoever.

    Am I making any sense? Gosh this is hard!

  20. Sam Lebens

    One more point, this time about Lewinsohn's paper (!), and about Russell's line of questions.

    Aaron, I accept that footnote five (and indeed the paper as a whole) addresses many of the issues that Russell raises, but once again, I want to focus on the notion of retrospective calrification of intentions, as demonstrated by the halakha about a murderous animal.

    I'm not sure how that method of intention clarification is supported by any of the philosophical models in Lewinsohn's paper. But I have still only had time to give it a most cursory of reads, so I may well have missed something.

  21. Dr. Russell Jay Hendel

    Thank you. I indeed did not read the footnotes the first time I read the article. FURTHER INTENTION coincides with INTENTION OF CONSEQUENCE.

    I am not sure I agree with Lewinsohn's characterization of mitaseyk vs shoggeg – I will have to think about it until I can put my finger on what is bothering me.

    RE: Kelalay pesak: I would argue that the halachic DEBATE employs epistemological/metaphysical methods; the kelalay pesak may be pragmatic (e.g. follow majority); but they are used for practical considerations on final pesak. The fact the kelalay pesak are pragmatic would not contradict that debate methods are more objective.

    Your examples of individual vs. community and action vs. objective are interesting in that they require what you call "metaphysics of law (a good name)" rather than metaphysics proper. If so there might be two types of Talmudic debates – those that overlap with the metaphycisists and those that are purely legal. I have to review some examples to see if I fully agree with this. This raises the possibility that the Lewinsohn paper is not applicable universally but only to certain segments of the Talmud. Interesting.


  22. Stefan Goltzberg

    I want to say that I really enjoyed reading the excellent paper of Lewinsohn.
    I’ll first say a word or two about it and then move to some of the comments written here.
    Lewinsohn, p.112, speaks about a universalizing principle (a concept invoked in multiple halakhic spheres will have the same standards of application throughout) and about a strong universalizing principle (a word used in different halakhik contexts invokes the same concept, unless there is independent reason to think otherwise). Two remarks: (1) I don’t know why only the strong principle is followed by the unless-clause. It looks to me that the first one is also a presumption that can be defeated. (2) I think both principles are universal themselves and not typical of Talmudic literature: it is a sound assumption that one and the same concept will not change its meaning depending on the context. The words are also generally presumed to keep their meaning. Both presumptions are to be taken into account UNLESS there is independent reason to think otherwise. In both comments I didn’t mean to disagree with Jed Lewinsohn but to make some remarks.
    About the comments:
    Sam, amongst others, regularly comes back to the question of whether the halakha correctly describes the world, or at least whether the halakha commits itself to a correct, true, description of the world. Sam said: “once the halakha is sealed, it doesn’t really matter whether the winning philosophy was right or wrong”. I would like to say that the purpose of the halakha in no way is to describe the world, but to make directive or declarative (not assertive) speech acts, as John Searle would put it. Why would the halakhik literature care about describing, unless this description helps make a rule possible? Now, when it comes to the issue of electricity (that Russell mentioned), it has been decided that it would be forbidden on Shabbat. It looks to me as if Sam said that the posekim could have been wrong. I do not mean to say that the posekim are infallible, even though some declarative speech acts cannot be disconfirmed: if you call you son Moshe, you may not be wrong if you realize later on that you would have preferred to give him another name.
    The judicial discourse aims not so much at describing the world as at deciding through which categories it should be viewed. Take the word “innocent”. It is ambiguous. It could mean: (1) not proven guilty or (2) really – in the extralegal sense – innocent. The purpose of judges in general is that both extensions overlap as much as possible: that innocent people be proven innocent. It would be misleading to wonder whether legal categories do indeed overlap with extralegal categories.

  23. Sam Lebens

    I think I've been misinterpreted Stefan. The following points should clarify matters.

    1) I accept that most legal defintions, in halakha, are stipulative. And am happy with your Searlean analysis.
    2) I think there may be some exceptions, where the definition we're looking for might not be merely stipulative but might have to an accurate description of the world – one example might be 'end of life' as a legal concept – we want it to match 'end of life' the non-legal concept. But, I accept that this class is an exceptional class and that the type of definitions I describe in point (1) are the norm.
    3) When arguing about what stipulative definition would be best for the purposes of law, I can think of a number of grounds for debate:
    a) which of the competing definitions will be easiest to explain to others.
    b) which of the competing definitions will make the law most lenient and easy to abide by.
    c) which of the competing definitions will be most practical for the authorities to measure and act in accordance with.
    d) BUT, when all things are equal, another reason for prefering one definition over another is that one of them mirrors, more precisely, the non-legal concept in the vicinity.
    4) So, let's say that we need to define what constitutes 'evidence' for the purposes of law. All of the competing definitions will be stipulative, but one of the many desiderata will be that the definition mirrors the epistemological notion of 'evidence'.
    5) There will therefore be some halakhic arguments in the Talmud that are solely motivated by metaphysics-proper. Even though we're only defining 'evidence' for the sake of law, if all other things are equal, we'll prefer the definition that's closest to our epistemological intutitions.
    6) But, if it turns out that the law is sealed based upon a flawed philosophy, there isn't necessarily any damage, because really, what we were defining was X-for-the-purpose-of-halakha, rather than X simplicter.

  24. Dr. Russell Jay Hendel

    I suggested in a previous posting that we distinguish between legal DEBATE and SEALED law. Legal DEBATE is a true search for the definition that is closest to our epistemological intuitions. However SEALED laws follows kelalay pesak (like majority) and need not have anything to do with "truth."

    RE Your example of EVIDENCE. Is this epistemology or inference (philosophy or mathematics!). For example, although the biblical requirement of two witnesses is apodictic, it seems reasonable that two witnesses is the smallest number of witnesses for which cross-examination can expose an inconsistency. In other words, the requirement of two witnesses creates an environment where we can meaningfully perform Bayesian analysis (inferring the past cause from present observed phenomena).

    In passing, that is exactly why I brought in the issue of animal intent (Which still has not been answered). The animal intent is established by a Bayesian inference on behavior of the animal after the murder; the Bayesian inference allows (if you like) numerical assessment of most likely prior intention.

    So I raise the issue of whether we are dealing in these particular cases with epistemology or inference.


  25. Sam Lebens

    To avoid confusion, and to get to bottom of what my response to Stefan was meant to be, ignore that I mentioned the word 'evidence'.

    Replace evidence with any word you like, even 'table'! If the law, for one reason or another, needs a working defintion of what a table is (like the European Union's need for a definition of 'chocolate' for regulatory purposes), that defintion will be stipulative.

    Competing definitions will compete as to which is most pramgatic, easy to teach, easy to measure, and so on and so forth. But one of the desiderata, all things being equal, is that the legal defintion of 'table' mirrors the best metaphysical account of what a table is (if indeed there is a Platonic table), or at least, that it mirrors the normal usage of the word 'table'.

    My point was that even if legal definitions are stipulative, arguments about which definition is best will often bring us into the realm of normal metaphysics or epistemology.

  26. Stefan Goltzberg

    The problem of ulterior action is indeed fascinating. I’m not sure you meant to say that this was typical of animals. If you did, then this is an objection. It looks to me that not only animals’ but also human beings’ actions may be described in the light of ulterior or subsequent actions (I don’t really like the word ‘future’ here because the action could have happened altogether in the past, including the ulterior actions). For example, I was enthusiastically playing the piano last week and in spite of my best efforts, a neighbour knocked on the floor, so I thought at least. I thus thought they wanted me to stop, which I did. But as they continued, I then understood they action was not knocking-to-tell-me-to-stop but obviously something else, like knocking a nail into the wall. Another distinct possibility: my neighbours indeed are animals…

  27. Stefan Goltzberg

    Well, I do agree that it is important for the lawyer to define what a table is for example if it is forbidden to put one’s feet on “tables” and you claim that this is a desk… But here, the word ‘table’ is not so much a legal term as a technical (not legal) term defined for the purposes of the law. Some words are in themselves legal (evidence, to kill, etc.) in the sense that a legal system would have coined it anyhow. Now think of the end of life (I mean: the expression!), scientists may give you several possible definitions: absence of breathing, cessation of heartbeat, brain death, and so on. The legislator, during the legal debate, picks which one defines death. It is a legal and ethical choice; the legislator doesn’t plan to describe the world. Of course, all things being equal, the legislator would be wise to choose the one that overlaps most with ordinary language. But in addition to the fact that all things aren’t and won’t be equal in the case of death (even less so in the case of chocolate, but I say this is only because I’m Belgian), the practical side of the choice of the legal vocabulary is different from mirroring a metaphysical notion. At most, you could say that legal (halakhic) vocabulary mirrors some metaphysical notions if the legislators shared the idea that all things being equal, one should choose, among the stipulative notions, the one that is closer to their metaphysics. To sum up, I would say that the legal vocabulary is the same as the non-legal vocabulary, unless there is a definition of it that makes it different. In this case, there is, it seems to me, a discrepancy between both. Here, metaphysics is divorced from law.

  28. Dr. Russell Jay Hendel

    Sam, Stefan

    I dealt with this very issue in a recent paper of mine. I used the example of "female adulthood." I distinguished between FUNCTION and FORM. The FUNCTIONAL definition of "female adulthood" is "capable of being pregnant." The FORM definition of female adulthood enumerates various pubic signs. Rambam says >>that a pregnant 12 year old is an adult even if she has no pubic signs<<. So... We have here
    – what Sam calls the "metaphysical definition" "closest definition" “essence” of adulthood, namely its functional form

    – what Sam calls the pragmatic definition – namely the pubic signs

    I think the Rambam gives a clear answer to Stefan – there IS a difference between the convenient pragmatic definition and the metaphysical definition.

    As an exercise we can apply the above to Table: The FUNCTIONAL definition of TABLE is any object on which things can be laid and conveniently lifted up and returned; the FORM definition of table is a "relatively hard object with supporting legs" Halachah may then get into the issue of whether e.g. a table that has lost one leg is still a table (argument over the pragmatic definition). However I dont believe halachah every avoids cognizance of the functional definition.


  29. Dani Rabinowitz


    Whilst I assume much hangs on the theological assumption that the klalei pesak are divinely sanctioned, and that such a position is foundational in Orthodoxy, might there be any sources where such sanction is discussed?

    The "oven of Aknai" would be a prime example worth discussing in the context of truth-tracking vis-a-vis klalei pesak and the divine sanction of such klalei pesak. But I imagine such a discussion would be too tangential for the symposium.


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