Harry Maryles at Emes ve-Emunah recently published "Why Orthodox Jews Tend to be Politically Conservative".
Rabbi Maryles wrote: Conservatives are strict constructionists or ‘Originalists’ (as Scalia called them). They see the constitution to be followed as the framers originally intended. ... It is this mindset that Orthodox Jews see when they evaluate who they support for the three branches of government.
I agree that Orthodox Jews tend to like Justice Scalia's conclusions (see this statement by the OU and RCA), but I would distinguish between his philosophy and its results. Its results appeal to a conservative who feels at home with the values of the late 18th century, but I believe that Justice Scalia's Originalist method is not at home in traditional Jewish jurisprudence.
As summed up in the National Post, this species of Originalism promotes "the notion that the U.S. Constitution should be interpreted by the original meaning of the words set down by George Washington, Thomas Jefferson, James Madison and the other founding fathers. He believed the framers’ intentions on social-legal issues two centuries into the future are unknowable and immaterial." Since we can't know their intent, we must simply be true to their words.
There is a word for Justice Scalia's approach, within Jewish thought; it's called Karaism - a doctrine of fealty to text above all - a movement branded as heresy more than a millennium ago.
Mainstream Jewish tradition certainly is Originalist, in that we seek to satisfy that which we believe G-d had in mind in creating the Torah. However, we believe that the Divine intent is knowable and material. We cannot read G-d's mind, but G-d did convey a "spirit of the law" to go along with its mechanics.
So it is that we are given such open-ended jurisprudential imperatives as lifnim mishurat hadin [an obligation to transcend the letter of the law], kedoshim tihyu [an obligation to pursue sacred conduct], Shabbaton [an obligation to create a "Shabbat atmosphere" on Shabbat], and v'shamru et mishmarti [an obligation to establish prohibitions to prevent accidental violation of biblical law]. We are taught to live up to the Divine expectation that we will properly derive and apply these values from the Torah's own text, understand their relevance today, and translate them into law.
To my mind, it is an acceptably small oversimplification to say that the Jewish legal tradition is Creatively Originalist. [An example of an area requiring more careful explanation: the limitations of דרשינן טעמא דקרא.] We are loyal to the message of G-d, and some of our greatest intellects harness their formidable talents to interpret its eternal message and apply it to changing circumstances.
May we ever retain a Scalia-like reverence for the original text, but may we honour that text by applying it anew each day.
Showing posts with label Halachah: Jurisprudence. Show all posts
Showing posts with label Halachah: Jurisprudence. Show all posts
Thursday, February 18, 2016
Monday, September 1, 2008
Gittin 37-40 - Prozbul, Aliyah laRegel, Jurisprudence, and davening with a minyan
I am way behind on publishing these notes; sorry to take so long. If they are of interest to anyone, great. If they bore you to tears, go read my Elul Panic Attack below.
Gittin 37a
The gemara talks about possible origins for the word Prozbul, and offers some interesting reads. It seems clear that this of non-Semitic origin, though, like Sanhedrin and Parhedrin.
We say here that the borrower must have some minimal amount of land in order for Prozbul to work, and the gemara talks about the lender licensing land to the borrower if the borrower does not own land.
This would seem to pose a problem for the Torah Temimah’s explanation for a nuance of the mitzvah of aliyah laregel. The gemara (Pesachim 8b) says that one is obligated in that mitzvah only if he owns land - but the Rambam omits that point. The Torah Temimah suggests that the Rambam omits it because he believes that all Jews automatically have a right to four amot in Israel - but then there should be no need for this law of Prozbul requiring land ownership! (Unless it needs to be more concrete for the sake of a lien?)
Gittin 37b
The gemara here allows a judge to help a litigant make his claim, arguing that this is “opening one’s mouth on behalf of the mute פתח פיך לאלם.” We find a similar view expressed by Rav Huna in Yerushalmi Sanhedrin 3:8.
There is much we could say regarding this, but for now we’ll just note that this is justified in two ways: (1) Hashavat Aveidah in restoring the (potential) loss of the litigant, or (2) Part of the judges’ requirement of achieving truth (Rashba in Shut Rashba 2:404).
The problem, of course, is that this might contradict the judge’s need to maintain neutrality and not appear to aid any one side! For more on this point see Mishneh Torah, Hilchot Sanhedrin 21:8-11, Tashbetz to Pirkei Avot 1:8, Rashbash 288, Tur Choshen Mishpat 17, Shulchan Aruch Choshen Mishpat 17:9, Shut Chaim b’Yad 45, Shut Yachel Yisrael 102.
Gittin 38a
See Tosafot אבל on how one ‘acquires’ right to an עבד.
The term אמה as used here for a non-Jewish עבד seems odd; I was under the impression that we usually used אמה for a Jew and שפחה for a non-Jew.
Gittin 38b
The gemara here justifies overriding a biblical prohibition for the sake of davening with a minyan, saying, “a mitzvah is different מצוה שאני.” This is odd - although Rav Moshe Feinstein does (in a teshuvah) seem to say one cannot fulfill the core mitzvah of davening if he davens alone, that is a landmark statement!
It appears that one reason we specify one should eat his larger Shabbos meal as the second meal is because in their day one’s major meal was the midday meal, as it is continues in Europe today?
Gittin 39b
Rashi feels the need to translate בית תפילה, informing us this is a בית כנסת, probably because the gemara’s usual term for synagogue is בית כנסת (Hebrew) or בי כנישתא (Aramaic).
Gittin 40a
Tosafot כשרבו here stands by his view, more famously expressed at the end of Rosh haShanah, that one may perform a mitzvah from which he is exempt, and recite the berachah upon it - even if that mitzvah is tefillin.
Gittin 40b
See Tosafot וכתב as far as who freed the עבד here.
See Rashi’s two views on וכולן בשטר.
If one party acknowledges having given his property to another, and that other denies it, why don’t we say that whoever takes it first, gets it - it should be Hefker (ownerless)?
Perhaps this is because Hefker applies where one has no right to it. Here, one has a right and is simply unaware of it.
Gittin 37a
The gemara talks about possible origins for the word Prozbul, and offers some interesting reads. It seems clear that this of non-Semitic origin, though, like Sanhedrin and Parhedrin.
We say here that the borrower must have some minimal amount of land in order for Prozbul to work, and the gemara talks about the lender licensing land to the borrower if the borrower does not own land.
This would seem to pose a problem for the Torah Temimah’s explanation for a nuance of the mitzvah of aliyah laregel. The gemara (Pesachim 8b) says that one is obligated in that mitzvah only if he owns land - but the Rambam omits that point. The Torah Temimah suggests that the Rambam omits it because he believes that all Jews automatically have a right to four amot in Israel - but then there should be no need for this law of Prozbul requiring land ownership! (Unless it needs to be more concrete for the sake of a lien?)
Gittin 37b
The gemara here allows a judge to help a litigant make his claim, arguing that this is “opening one’s mouth on behalf of the mute פתח פיך לאלם.” We find a similar view expressed by Rav Huna in Yerushalmi Sanhedrin 3:8.
There is much we could say regarding this, but for now we’ll just note that this is justified in two ways: (1) Hashavat Aveidah in restoring the (potential) loss of the litigant, or (2) Part of the judges’ requirement of achieving truth (Rashba in Shut Rashba 2:404).
The problem, of course, is that this might contradict the judge’s need to maintain neutrality and not appear to aid any one side! For more on this point see Mishneh Torah, Hilchot Sanhedrin 21:8-11, Tashbetz to Pirkei Avot 1:8, Rashbash 288, Tur Choshen Mishpat 17, Shulchan Aruch Choshen Mishpat 17:9, Shut Chaim b’Yad 45, Shut Yachel Yisrael 102.
Gittin 38a
See Tosafot אבל on how one ‘acquires’ right to an עבד.
The term אמה as used here for a non-Jewish עבד seems odd; I was under the impression that we usually used אמה for a Jew and שפחה for a non-Jew.
Gittin 38b
The gemara here justifies overriding a biblical prohibition for the sake of davening with a minyan, saying, “a mitzvah is different מצוה שאני.” This is odd - although Rav Moshe Feinstein does (in a teshuvah) seem to say one cannot fulfill the core mitzvah of davening if he davens alone, that is a landmark statement!
It appears that one reason we specify one should eat his larger Shabbos meal as the second meal is because in their day one’s major meal was the midday meal, as it is continues in Europe today?
Gittin 39b
Rashi feels the need to translate בית תפילה, informing us this is a בית כנסת, probably because the gemara’s usual term for synagogue is בית כנסת (Hebrew) or בי כנישתא (Aramaic).
Gittin 40a
Tosafot כשרבו here stands by his view, more famously expressed at the end of Rosh haShanah, that one may perform a mitzvah from which he is exempt, and recite the berachah upon it - even if that mitzvah is tefillin.
Gittin 40b
See Tosafot וכתב as far as who freed the עבד here.
See Rashi’s two views on וכולן בשטר.
If one party acknowledges having given his property to another, and that other denies it, why don’t we say that whoever takes it first, gets it - it should be Hefker (ownerless)?
Perhaps this is because Hefker applies where one has no right to it. Here, one has a right and is simply unaware of it.
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