Not in Heaven

I just finished reading a fascinating book by Rabbi Eliezer Berkovits, entitled Not in Heaven. As one might presume, the title takes its name from the verse in Deuteronomy in which Moses explains that " It is not in heaven, that thou shouldest say: 'Who shall go up for us to heaven, and bring it unto us, and make us to hear it, that we may do it?" (Deut 30: 12) The phrase is later echoed in the classic debate in Bava Metziah 59b over the oven of Aknai.

The claim that I found most interesting within the book (and as it is divided up into several sections, there are many interesting claims) was his statement that, "All the above rulings are somehow based on textual interpretation. But quite clearly, it is the halakhic conscience that creates the interpretation" (Berkovits 22). This idea is quite novel to me, as it seems very different from the one espoused by Rabbi Joseph B. Soloveitchik, for instance. The way in which Rabbi Soloveitchik treats and respects halakha is with the understanding that it is something firm rather than fluid; once it was sealed and codified it remains that way. His Halakhic Man uses halakha as a reference, but does not create it. He states:

When halakhic man approaches reality, he comes with his Torah, given to him from Sinai, in hand. He orients himself to the world by means of fixed statues and firm principles. An entire corpus of precepts and laws guides him along the path leading to existence. Halakhic man, well furnished with rules, judgments, and fundamental principles, draws near the world with an a priori relation. His approach begins with an ideal creation and concludes with a real one. To whom may he be compared? To a mathematician who fashions an ideal world and then uses it for the purpose of establishing a relationship between it and the real world, as was explained above. The essence of the Halakhah, which was received from God, consists in creating an ideal world and cognizing the relationship between the ideal world and our concrete environment in all its visible manifestations and underlying structures. There is no phenomenon, entity or object in this concrete world which the a priori Halahah does not approach with its ideal standard. When halakhic man comes across a spring bubbling quietly, he already possesses a fixed, a priori relationship with this real phenomenon: the complex of laws regarding the halakhic construct of a spring (Halakhic Man 19-20).

Note the words and qualifiers used in this one passage. Halakhic man comes with his Torah, "given to him from Sinai," he lives in a world of "fixed" statutes and "firm" principles. Whenever he sees something or comes upon an object or idea, he refers back to Halakha which is fixed, firm and understood. Fluidity is not necessary, nor is curiosity encouraged. Halakha seems to be a corpus in and of itself, understood and set down, and now something to which one refers back to. The intimation is such that the touch of humanity in the law is not something to be stressed or encouraged. A statement such as the following, which Rabbi Berkovits makes, would probably disconcert the Rav:

It is doubtful whether the halakhic conscience is anywhere more strongly in evidence than in the area of the marriage and divorce laws. There is full understanding of the legal weakness of the status of the woman in all these matters. As is the way of the Halakha, great efforts are made to retain the meaning of the legal principle and yet to find solutions to the daily problems arising from the confrontation between the written word and the ethical needs of the concrete situation (Berkovits 32).

Berkovits grants supremacy, or at least priority, to the ethical needs of a given person during a particular place or time. He suggests that when the Rabbis interpreted the law, they did so while considering the manner in which it would affect its constituents. Although they were bound by certain hermeneutical considerations, they would apply these methods of interpretation in order to come to a conclusion that would be the most ethically appropriate. In other words, the Rabbis had ulterior motives- or their motive was not one of objective truth, not one of attempting to interpret the words in terms of attempting to determine authorial intent, what God truly desired. It was instead interpreted with the people in mind; the point of the law was to serve the people, and to do so in the most ethical fashion possible.

I would suggest that the Rav would greatly dislike such an approach. Such is hinted at by his understanding of the way in which we accept the law, that is, one in which laws are divinely given and that is why we are subject to them.

Why the Divine Imperative for Mishpatim? We have spoken heretofore primarily of the hok, the inexplicable precept. In fact, we perform all mishpatim (mostly social laws) in the same manner as the hukkim [emph mine.] The Torah does not assign separate sections to the hukkim and mishpatim respectively; they are interspersed throughout Scripture. We make no distinctions between the two as regards the quality and totality of our commitment. Why, we may ask, is it not enough for the mishpatim to be intellectually motivated? Why the need to add a hok, a non- logos dimension, to social laws which conscience itself dictates?

Apparently, reason is not a reliable guide even with respect to mishpatim. There are borderline situations which confuse the mind, and consequently it finds itself helpless in applying its moral norms. Since our intellect must weigh pros and cons and is slow and deliberate in deciding, society starts to nibble away at the edges of marginal, borderline problems. Life must be lived; before our logic can formulate an opinion, society will already have weakened all restraints. Permissiveness will have replaced orderliness and the amoral in man will have emerged triumphant.

For example, the mind certainly condemns murder. This is particularly true of the killing of a young working mother who leaves behind orphaned children. But does this abhorrence of murder also apply when the victim is an old, cruel, miserly woman who in the eyes of society was a parasitic wretch, as in Dostoyevsky's Crime and Punishment? May we murder her in order to save a young girl from the clutches of degradation? May euthanasia be practiced to relieve the elderly or terminally ill of further suffering? Here the logos hesitates, is uncertain, and imparts no decisive guidance. We can easily rationalize in either direction and no external norm is compelling. As a mishpat, a social norm, murder may at times be tolerated; as a hok, the prohibition against murder is clear and absolute.....

We have assumed that mishpatim are prompted by reason. Yet, in our modern world, there is hardly a mishpat which has not been repudiated. Stealing and corruption are the accepted norms in many spheres of life; adultery and general promiscuity find support in respectable circles; and even murder, medical and germ experiments have been conducted with governmental complicity. The logos has shown itself in our time to be incapable of supporting the most basic of moral inhibitions.

The Torah, therefore, insists that a mishpat be accepted as a hok; our commitment must be unshakable, universally applicable, and upheld even when our logos is confused. Without hok, every social and moral law can be rationalized away, leaving the world a sophisticated jungle of instincts and impulses...."

~Reflections of the Rav, 103-105

The Rav does not trust logic alone, and he certainly does not trust it enough to allow for reason as the sole arbiter of our mishpatim; instead they must be divinely given, that is, the Torah is indeed from heaven. While it is clear that he respected Talmudic thought and analysis, it also seems clear that after the law was laid down and codified, he would not be pleased with the suggestion that it was an attempt to advance ethically that motivated the Rabbis to pasken as they did (even if their logic was legitimate!) Such human, emotional considerations would be considered problematic.

Berkovits, however, proves his point with great aplomb. He distinguishes between pragmatic and objective reality, stating that:

the affairs of men cannot be guided by absolute objectivity, but only by human objectivity. What God desires of the Jewish people is that it live by His Word in accordance with its own understanding. In theoretical discussions man strives to delve into the ultimate depth of the truth; but when he decides that he has reached it, it is still only his own human insight that affirms that he has found it. When it is necessary to make decisions for human conduct and behavior, one can do so only on the basis of pragmatic principles; for example, "follow the view of the majority." The result is ont objective truth but pragmatic validity. For this reason, the majority of the rabbis were right and the great Rabbi Eliezer, supported by a heavenly voice of absolute truth, was wrong (Berkovits 48).

Berkovits provides all sorts of examples of places where the legal principle behind halakha was acknowledged, but the way in which it was interpreted or actually carried out differed. One of his examples occurs by the Mamzer. When it comes to the mamzer:

This is one of those situations in which the Halakha is called in to function. There is a law whose purpose is a positive one; i.e., to protect the moral health of the family. But there is also a biblical view about the seriousness of the injustice done to innocent human beings in general. And in this specific case innocent people suffer because of the valid concern and care for the ethical foundations of the community. It is as if the happiness of the Mamzer (bastard) were sacrificed to a greater good. It was unquestionably an injustice done to an innocent human being.

The halakhic way out of the dilemma was a very circumspect application of the law about the Mamzer. First, there is the ruling of Rabbi Yizhak that in the case of a family in which a Mamzer has submerged, we let him be submerged (one does not make investigations to discover who is the bastard and who is not; as Rashi mentions, in any case in the end all families will be declared pure). On the basis of this ruling Rabbi Yohanan, one of the leading teachersin the Jerusalemite Talmud (often quoted also in the Babylonian one), took an oath that he could easily prove the presence of bastards in some families in the land of Israel. "But," said he, "what can I do! Some of the great of this generation are intermixed in them." Again the same situation: the application of the law about Mamzerim (bastards) could not be the only consideration. The law was not applied because of weightier considerations. Finally, while the law giving expression to an idea that was in itself meaningful was acknowledged, it was also decided that it was forbidden for anyone to reveal that someone is a Mamzer. [emph mine] (Berkovits 29-30)

Isn't that amazing?!

He proves it time and time again, although I note that he uses very specific examples/ applications and does not really bring up ideas that would disprove his theory (and I am sure there must be some.) I would be curious to know how he would deal with places where the Rabbis seem to be specifically stringent even though ethically speaking, innocents or others are hurt.

One last statement of the same point, where he demonstrates the way in which the Rabbis apply the hermeneutical tools at their disposal differently for the sake of this ethical ideal:

In one example, utter disregard of the plain meaning of the text; in the other; adherence to the literal wording ad absurdum. There is not always logical consistency in the use that is made of S'bara. The S'bara is not theoretical reasoning. It is human intellect functioning within the embracing socio-ethical context of the Halakha. It is practical reason in the sense that is requires consistency in the halakhic endeavor to realize Halakha's two guiding ideals, as presented to it by the Torah: "Thou shalt live by them [by God's commandments] and not die by them," and "All its ways are ways of pleasantness, and all its paths, paths of peace" (Berkovits 81).

I find this idea to be beautiful. I am also slightly skeptical, because it seems too good to be true. Can one really argue that the Rabbis were so sensitive and so compassionate, that their goal and aim was to interpret halakha in the way that would make it kindest toward the people and most humane? What of their relationship to the Divine- why would they not have had to interpret the laws in a manner that was an attempt to comprehend what God had actually intended? It is very bold to say that the Rabbis interpreted the law for the sake of the people, and not for the sake of God. It is beautiful, but very bold.

There is more to the book, especially a compelling section in which Berkovits argues that Halakha was codified and frozen due to Galut, but now that we have returned to Israel, he pleads for a sense of fluid understanding and argumentation once again, where people do not rely upon the authority of texts but upon that of the dayan. As he poignantly ends the work:

Not only does the method of authority not work, it actually defeats the eternal validity of the Torah. The Torah is eternal because it has a Word for each generation. Every day the Torah should seem as new to you as if it had been given on that day, says the Midrash. One can find the Word that has been waiting for this hour to be revealed only if one faces the challenge of each new situation in the history of the generations of Israel and attempts to deal with it in intellectual and ethical honesty. Alas, those who have the authority to impose laws of the Torah do not care to understand the nature of the confrontation with the Zeitgest. They take the easy way out. They do not search for th eword that was intended for this hour, for this generation. If they have the authority, they impose the Word meant for yesterday and thus miss hearing the Word that the eternal validity of hte Torah was planning for today, for this generation, for this new hour in the history of the Jewish people (Berkovits 118).

Wow!

Definitely check this book out; it illuminates the issue and defines halakha in an extremely novel, interesting and compelling way.