Rabbi Joseph Soloveitchik, who lived in the 20th century, was a leader of modern orthodoxy, a Halachic (legal) scholar and a very profound thinker who pursued secular as well as traditional Jewish education. I want to discuss Rabbi Soloveitchik’s book Halakhic Man, which in my view presents an orthodox conception of the Halachic process in Judaism.
I want to begin with a side point concerning the term Halachic man – there is no prohibition in the Jewish law such that women cannot establish law, or render decisions of law, which is the function of a rabbinical authority. Deborah, in the Bible, was a judge – and, although in the plain meaning of Scripture this means that she was a judge in the sense of a political and military leader, nevertheless according to Jewish tradition Biblical judges, such as Deborah, are considered rabbinical authorities. Tosafot, medieval Talmudic commentators, argued that on the basis of the precedent of Deborah, if a community accepts a woman as a rabbinical authority, then she may establish law for that community. Women are excluded from many functions or practices within Judaism including that of functioning as a rabbinical authority (unjustly in my eyes) simply on the basis of custom when there is no law excluding them.
Regarding Halakhic Man, I want to begin by pointing out that even in the realm of Halacha (law), there can be in practice no such thing as a purely “Halachic man” in establishing law, as the establishing of law cannot truly be separated from Aggadah (moral, spiritual and philosophic teachings); and, Aggadah enters into the realm of Halacha because the establishing of law is a matter of subjective interpretation of sources. Although the interpretation of sources in establishing law is a rational process, it is one in which a Halachic man is necessarily interpreting sources on the basis of subjective, philosophic conceptions and subjective moral values that are a matter of Aggadah. Conversely, in the realm of Aggadah, there can be in practice such a thing as a person of Aggadah – as Aggadah (moral, spiritual and philosophic teachings) do not necessarily need to express themselves in the establishing or observance of law. Aggadah can exist independently of Halacha; Halacha cannot exist independently of Aggadah. That is, the realm of Halacha (law) is contained within the larger realm of Aggadah, and both these realms together constitute Torah (literally guidance or instruction). Halacha is an expression of the moral and spiritual values of Torah that are a part of the larger realm of Aggadah; and, the establishing of law is a process of subjective interpretation of sources based upon subjective philosophic conceptions and subjective moral and spiritual values that are a matter of Aggadah.
Yet, there is an even more important problem with the conception of Rabbi Soloveitchik regarding the Halachic process. In Halakhic Man, he conceives of the establishing of law as an entirely rational, cognitive process in which he uses the analogy of mathematical, natural sciences (P. 18) in arguing that the establishing of Halacha is concerned primarily with theoretical truth rather than the practical application of the law. However, this assumption of Rabbi Soloveitchik that the ultimate goal of Halacha is theoretical truth, and that the Halachic process is a rational, cognitive process much like mathematics and natural science is, in my view, a misconception especially in light of the midrash “not in heaven” (Baba Metzia 59a). The midrash “not in heaven” reflects an anti-theological and pragmatic conception of Jewish law in which the rabbis reject the very voice of God in establishing law – and, according to the midrash, even when everyone in the Beit Midrash (study hall) hears the voice of God that the Halacha is according to Rabbi Eliezer, the Halacha is determined by a democratic, rational process in which the majority of the rabbis (as authoritative interpreters of the Torah and as representatives of the Jewish people) decide the law according to their limited, subjective human understanding. The Halacha then, according to the midrash, is determined not by a prophetic revelation reflecting the will of God and absolute truth – rather, the law is determined by a democratic and subjective process reflecting the will of the majority of the rabbis (rather than the will of God).
What I want to emphasize here is that the orthoprax (correct deeds) conception of the Halachic process reflected in the midrash “not in heaven” is in clear contradistinction to the orthodox (correct belief) conception of Rabbi Soloveitchik. In Rabbi Soloveitchik’s orthodox conception, the Halacha is not only a rational process in that rabbis interpret Torah in establishing law but the very purpose and goal of the Halachic process is the establishing of truth – just as analogously the scientific process regarding mathematical natural sciences is a rational process not only in terms of interpretation of facts and data but in the sense that the very purpose and goal of science is the pursuit of truth. By contrast, the orthoprax conception of the midrash “not in heaven” is that although there is a rational aspect involved in the establishing law in that rabbis are interpreting Torah according to their own subjective understanding; the purpose and goal of the Halachic process is clearly not the establishing of truth – for, if this were the case, then the rabbis in the midrash would have listened to the voice of God reflecting absolute truth in establishing the law. Rather, according to the midrash “not in heaven”, although the Halachic process is in part a rational process, it is primarily a political and democratic process in which law reflects not truth but the subjective understanding of rabbis as authoritative representatives of the Jewish people – such a process preventing violence and fragmentation in resolving debates and disputes in a democratic way (and, thus implied in the source is that peace is more important than truth).
However, even if we accept the analogy of Rabbi Soloveitchik of mathematical, natural sciences in arguing that the purpose and goal of Halacha is the establishing of truth; nevertheless, his analogy is still very problematic. In the realm of philosophy of science, there are two basic philosophic positions regarding scientific methodology. One position is that the nature of scientific methodology is theoretical concerned with the pursuit of theoretical knowledge and truth as a goal in and of itself independent and apart from any practical, technological application of such knowledge (truth for the sake of truth) – and compatible with an orthodox conception of religion. Such a position is assumed by Rabbi Soloveitchik in using the analogy of mathematical, natural sciences. However, there is another position in which the nature of scientific methodology is pragmatic concerned not with the pursuit of theoretical knowledge for its own sake but for the sake of the ultimate and greater goal of its practical, technological application – and compatible with an orthoprax conception of religion. Therefore, even if we accept the analogy of Rabbi Soloveitchik of mathematical, natural sciences, nevertheless his conception in which theoretical knowledge is for its own sake is only one possible orthodox conception. There is also an equally plausible, orthoprax conception in which theoretical knowledge is only for the sake of the greater goal of its practical application – and, this conception is in the spirit of our Talmudic tradition regarding the nature of Halacha.
The question that arises regarding Rabbi Soloveitchik is why he should choose a model of scientific methodology that is foreign to the pragmatic spirit of our tradition rather than a pragmatic conception of scientific methodology in the spirit of our tradition. In my view, the reason is very clear – Rabbi Soloveitchik is, in my opinion, opposed to changes in the law. If the law is established according to a rational process in which the law reflects theoretical truth and knowledge as an ultimate goal independent of practical application, then there is obviously much less room for making changes in the law in response to practical issues; by contrast, if the establishing of law is conceived as a pragmatic process in which the ultimate goal is morality, then the law must be adapted in light of changing times and circumstances, and changing moral values, as well as in light of practical issues. Rabbi Soloveitchik adopts a model of Halacha as a rational process in which the ultimate goal is theoretical truth and knowledge because such a model is compatible with his orthodox ideology that the Torah is unchanging. Yet, such an ideology is foreign to the Talmudic tradition – and, not only has the Torah evolved and developed but the Talmudic rabbis made changes in the law.
Regarding the Talmudic tradition, Rabbi Soloveitchik cites several Talmudic sources that he understands (and, in my view, distorts) as support for his conception of Halacha as a rational process in which theoretical knowledge is a goal in and of itself regardless of practical application. One example (P. 23) is the case of a rebellious son – according to the Bible (Deuteronomy 21, 18-21), a rebellious son who does not obey his parents is to be put to death. The Talmudic rabbis uprooted the law on the basis of midrashic interpretation in which they interpreted the passage not according to its plain meaning making it impossible to apply the law in practice. The Talmud (Sanhedrin 71a) says that there never was and never will be such a case in practice of the rebellious son, and that the passage was written in the Bible only so that we may learn from it – which, Rabbi Soloveitchik understands (and distorts, in my view) as meaning that the theoretical study of the passage is more important than the practical application of the law (as the law is not applied in practice).
But, this, in my eyes, is a clear distortion of the Talmudic passage on the part of Rabbi Soloveitchik for the term used that we are only to learn from the Biblical law but not apply it in practice is the same root as the term midrash; and, in the Talmud (Pirkei Avot 1, 17) it is written “study (midrash) is not the main thing but practice”. The Talmudic rabbis uprooted the Biblical law of the rebellious son in practice because practice is the ultimate goal, and the law in this case offended their moral sensibilities. In uprooting the law by midrashically interpreting it not according to its plain meaning they were able to uproot the law in practice without changing Scripture as the Divinely revealed word of God – they then needed to rationalize why the passage is written in Scripture, and they rationalized that it is written only that we may learn from it.
Evidence, in my view, that the Talmudic rabbis were consciously uprooting the law of the rebellious son, and that the midrashic method of interpretation of the source not according to the plain meaning was a means in order to change the law in accordance with the moral values of the Talmudic rabbis, is that the interpretation of Rabbi Yehuda (Sanhedrin 71a) is simply absurd – in relation to the rebellious son not obeying the voice of his parents he interprets that because the word voice in the Biblical passage (Deuteronomy 21, 18-21) is singular (and it is not written voices), the voices of the parents must be identical in order to apply the law; and, not only must their voices be identical but the parents must be identical in terms of height and appearance as their voice symbolizes physical appearance in general. How can such an absurd interpretation be reconciled with Rabbi Soloveitchik’s conception of the establishing of law – that the Talmudic rabbis were pursuing theoretical knowledge and truth regardless of practical application? What reason then is there for such an absurd interpretation? In my mind, it is clear that the reason for such an absurd interpretation is for the sake of the larger goal of practical application – in this case, the uprooting in practice of a Biblical law that conflicted with the moral values of the Talmudic rabbis; and, the absurd interpretation allows the Talmudic rabbis to change the law without changing Scripture.
Rabbi Soloveitchik in effect covers up the many cases in which the Talmudic rabbis used midrashic interpretation in interpreting Biblical sources not according to their plain meaning in making changes in the law, or giving a basis to historical development within the tradition – by uprooting things that conflicted with their moral and spiritual sensitivities, such as the rebellious son; or, by transforming the nature of Judaism in giving a basis to things not found in the plain meaning of Scripture, such as the case of Rosh Hashanah in which the Talmudic rabbis transformed the day from one of blowing in the Bible (devoid of moral content and with no mention in the Bible of the day being the Day of Judgment, or even of the blowing being of a shofar) to the Day of Judgment according to tradition (one of awe, introspection and repentance). Rabbi Soloveitchik presents the establishing of law as a rational process in which theoretical knowledge is the ultimate goal for its own sake regardless of practical application – a conception that is compatible with his orthodox ideology that the Torah does not change, and thus distorts the Talmudic tradition. In the Talmudic tradition, faithful to the orthoprax nature of the Bible in which the essence of religion is morality (“and you shall do that which is right and good in the eyes of the Lord”), the establishing of law is a pragmatic process of adapting Biblical and rabbinic law to changing times and circumstances in accordance with moral and spiritual values.
Rabbi Soloveitchik in Halakhic Man presents an orthodox conception of Halacha, as if the law is static and unchanging. Such a conception is, in my view, a complete distortion of our Talmudic tradition, in which the law is established according to a pragmatic, orthoprax process in which study and interpretation of sources is in order to adapt the law in light of changing times and circumstances and in light of practical issues. The Talmudic rabbis attempted to achieve a balance between tradition and change; and, this balance is reflected in our traditional image of the Torah as a tree of life in which the tree has continuity in terms of its identity while at one and the same time developing and changing its identity.