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SYSTEMATICITY AND NORMATIVE CLOSURE IN LITHUANIAN TALMUDISM

YONATAN Y. BRAFMAN

INTRODUCTION

The phrase halakhic system has become commonplace in communal and scholarly discourse about Jewish law. A Google Ngram search, for instance, reveals that usage of the term, at least in English, increased dramatically in the 1970s and 1980s.¹ This rise may be explained by the influence of Joseph Soloveitchik’s thought and writings, specifically Halakhic Man. The book’s protagonist, who is meant to represent the sensibility of the Talmud scholar, is compared to the modern mathematician and natural scientist, for whom “to know means to construct an ideal, lawful, unified system.”² There is thus a recent tendency to view Jewish law as constituting a “system” that seems to have its roots in the tradition of Lithuanian Talmudism of which Soloveitchik was the scion. Yet there has been no similar tendency in Jewish thought or law to investigate what it means for something to be a “system,” let alone a “halakhic system,” or what the consequences of conceiving halakhah as a system might be.

In this chapter, I begin this work through a process of conceptual analysis, historical genealogy, and textual study. I first reflect on the concept of a “system” and recent theoretical discussions of the concept of a “legal system.”³ This enables an understanding of both the virtues and vices of legal systematicity. Then I turn to a short genealogy of legal systematicity to locate its emergence in the thought of G. W. Leibniz and to track some of such systematicity’s troubling consequences in both secular and Jewish law. I next shift my attention to the focal point of this chapter: assessing the implications of “halakhic systematicity” through a comparative analysis of the patterns of justification in two classic texts by major figures in the tradition of Lithuanian Talmudism: Ḥayyim Soloveitchik—Joseph Soloveitchik’s grandfather—and Shimon Shkop. I suggest that although Soloveitchik’s thought may encourage fears that concern with legal systematicity leads to ignoring other considerations—arguments and claims—that are correspondingly construed as extralegal, Shkop’s thought provides evidence that such normative closure is not inevitable.

CONCEPTUAL ANALYSIS: SYSTEM AND CLOSURE

I provisionally define a system as a set of interrelated elements thought of as a unity. This definition expresses four aspects of what it is to be a system. First, a system must have parts; it cannot be an unarticulated whole. Second, these parts must be organized; they cannot be a jumble. Third, such organization is possible through the relations among the parts. And fourth, this entails that there must be a boundary or limit between the system and its environment. For a system to emerge, there must be certain relations that the parts share that they do not share with anything else.

This general definition of a system is informed by but not identical to recent work in systems theory. According to Niklas Luhmann, “Society is a functionally differentiated social system.”⁴ It consists of subsystems like the economy, state, and law, which are distinguished by their function. Such “functional subsystems,” he writes, “are always self-referential systems. . . . They constitute their components by the arrangement of their components and this ‘autopoietic’ closure is their unity.”⁵ While these subsystems interact with one another as part of a larger social system, they are also relatively closed to one another; that is, they each operate according to their own internal “logic” to fulfill their specific function. It is because of this internal logic that a subsystem is better able to fulfill its function. In the case of law, Luhmann claims that this is conflict resolution. For example, while economic acts like the exchange of goods have legal effects, they must first be recognized by law and translated into its language as “transference of property ownership” in order to resolve any disputes about them. Each system has its own environment, which it constitutes, and only interacts with those parts of its surroundings that it recognizes and then only on its own terms.⁶ Thus, even while law possesses what Luhmann calls cognitive openness, it is characterized by normative closure.

By normative closure, I mean the tendency of a system to disregard considerations—arguments and claims—that are not posed in its terms or that it does not consider relevant to its function. The normative closure of a legal system, then, would be the disregard of normative considerations that are not rendered in legal terms or not understood to be legally relevant. Normative closure is what accounts for the not-infrequent disconnection between what is legal and what is morally right or politically expedient.

The relation between legal systematicity and normative closure can be further examined in the thought of legal theorists, including proponents of both legal formalism and legal positivism. While positivism and formalism are often conflated, they are distinct. Stated heuristically, positivism is primarily concerned with the source of law, whereas formalism focuses on legal interpretation. The basic claim of positivism is that a norm is a law by virtue of having been validly enacted by the institutions and through the processes recognized in a society for establishing law. Formalism, by contrast, concerns the relations among laws and how laws are interpreted; it posits that there are rational connections among laws and that laws should be interpreted in view of their underlying rationality. Because positivism and formalism differ in their focuses, there can be a tension between them. For positivism, a norm is a law solely because it has been validly enacted, whereas for formalism, a norm might be a law because it is logically entailed by other laws, or it might not be a law because it logically conflicts with other laws. In other words, for positivism, a set of norms might be deeply incoherent but would still be part of the same legal system because they were all validly enacted by the same institutions and through the same processes. For formalism, however, norms must share much more to be part of the same legal system.

Systematicity has been uniquely valued by legal formalists. Ernest Weinrib claims that “law is intelligible as an internally coherent phenomenon,” which possesses an “immanent moral rationality.”⁷ The content of law is not reducible to political decisions; rather, it is self-generated as a result of the rational connections among laws. Specifically, Weinrib articulates a coherentist account of legal justification: each law or legal institution derives its justification from the system as a whole, while the system derives its justification from the relations among its parts. Legal systems must have rational coherence, and the justification of specific laws must make that coherence manifest. He writes, “Justification, therefore, cannot properly be truncated. It must be allowed to expand completely into the space it naturally fills.”⁸ This means that norms that are entailed by existing laws must also be recognized as law. It also means that existing laws and legal institutions must be revised to become more coherent. For example, Weinrib rejects economic approaches to tort liability, in which questions of negligence are dismissed in favor of efficient cost-sharing, because focusing solely on economic efficiency is incompatible with the underlying logic of civil law. The goal of this effort of entailment and revision is to make the law fully coherent. Such an ideal legal system would possess the virtue of integrity, which, Weinrib claims, grants it normative force. It is because a legal system coheres that it possesses normativity.

If the virtue of systematicity is made clear by formalists, its potential vice—normative closure—is revealed by positivists. Though positivism is concerned with all laws being traceable back to a source, it is less concerned than formalism with conceptual relations among the laws. As previously indicated, their only shared relation could, in theory, be their common origin. Still, the relation between systematicity and normative closure in positivism is made clear by a prominent supporter of positivism—Hans Kelsen. In his Introduction to the Problems of Legal Theory, he describes the positivist focus on the source of the law: “A plurality of norms form a unity, a system, an order, if the validity of the norms can be traced back to a single norm as the ultimate basis of validity.”⁹ And because law is a system, he claims, “all legal problems are confronted and can be solved as systematic problems.”¹⁰ Specifically, legal problems are not resolved by moral principles or political decisions but by laws.

The practical effects, both positive and negative, of normative closure are that the resources for a judge’s and other legal subjects’ decision-making are limited. Joseph Raz, a more recent positivist theorist, makes this clear in his Practical Reason and Norms: “Normative systems . . . include both norms guiding individuals and norms setting up institutions for solving disputes from the application of such norms. . . . [Such a system] is an exclusionary system. Its norms exclude the application of reasons, standards, and norms which do not belong to the system and are not recognized by it.”¹¹ Again, moral principles or political decisions, for example, so long as they have not been incorporated into the legal system in some way, must be excluded for there to be a system at all. This exclusion, however, is not simply due to a fixation on order or an aesthetic obsession with system. It is necessary so that a normative system like law can guide action. According to Raz, the purpose of norms is to offer protected reasons for action.¹² A protected reason for action combines both a reason to do the action and a reason not to act on reasons against doing the action. This is how norms differ from advice; it is how they command actions. However, this purpose is defeated if the individuals subject to the norm consistently reflect on what other reasons they might have either to do or not to do the action. Moreover, at a higher level, a normative system and its institutions become superfluous if any and all considerations are relevant for settling disputes about its norms. Practical-reason accounts of law like Raz’s fill in the details of Luhmann’s system theory of law. Law can resolve conflicts by offering norms and authorities to settle them, but they can only do that if they restrict the types of arguments and claims that can be offered. The price of the type of action guidance offered by law and of the conflict resolution provided by legal systems is thus normative closure—the restriction of considerations.

Legal systematicity thus has several virtues. From the perspective of systems theory, it constitutes a subsystem whose function is to resolve conflicts within society. Legal positivism explains how it performs this function by guiding action through norms and authorities. Legal formalism emphasizes how integrity and even normativity emerge through ever-expanding coherence. However, all of this is at the cost of normative closure—the separation of law from morality and politics.

HISTORICAL GENEALOGY: SECULAR AND JEWISH LAW

The two-faced character of legal systematicity is illustrated by its historical genealogy in secular law. In The Gift of Science: Leibniz and the Modern Legal Tradition, Roger Berkowitz argues that Leibniz enacted a revolution in legal theory by insisting that jurisprudence be a science.¹³ In his New Essays on Human Understanding, Leibniz wrote, “One of the chief ways of making jurisprudence more manageable, and of surveying its vast ocean, as though in a geographical chart, is by tracing a large number of particular decisions back to more general principles.”¹⁴ However, this project of scientific jurisprudence was motivated by more than pedagogical efficiency. It followed from Leibniz’s commitment to the principle of sufficient reason, which, in Yitzhak Melamed’s and Martin Lin’s terms, “stipulates that everything must have a reason, cause, or ground.”¹⁵ As Leibniz says, it is the principle “by virtue of which we consider that we can find no true or existent fact, no true assertion, without there being a sufficient reason why it is thus and not otherwise.”¹⁶ Applied to jurisprudence, each decision or law would find its reason in legal principles, which, in turn, would be unified in some higher order. Leibniz aimed to construct a Systema Iuris, which would be a science of law as system. With such a system in hand, Leibniz writes that “he who knows [the] universal concepts can divide into classes the abundance of innumerable [laws], so that nothing can escape him.”¹⁷

Leibniz maintained that the most universal concept of law was caritas sapientis (charity of the wise). This concept provided the higher-order unity for legal principles, and so law and justice were connected. However, his successors severed this connection. Berkowitz writes, “The result of Leibniz’s scientific understanding of law is that law is subordinated to its reasons and justification. . . . As law retreats behind reasons and grounds, it loses its natural connection to any ideas of truth and justice except those that are given as its justification.”¹⁸ Such jurisprudence leads to an exclusive focus on systematicity and thus closure to any claims or arguments construed as external. According to Berkowitz, it eventuated in the legal theory of Rudolf von Jhering, in which the pursuit of political ends in accordance with the form of legality substitutes for substantive justice. Jhering’s theory is concerned with legal systematicity; however, a legal system can serve whatever inputs it receives from duly elected political actors.¹⁹

The thesis that the development of the science of law as system results in a preoccupation with mere legality precisely because of its commitment to reason and justification seems counterintuitive. Yet it appears to correspond to developments in Jewish law. Rachel Adler, in Engendering Judaism, labels contemporary halakhic discourse as “methodaltrous” because its methods have become “a kind of false god.”²⁰ That is, “questions that do not conform to the system’s method and categories are simply reclassified as non-data and dumped out.”²¹ In her trailblazing article “Towards a Gender Critical Approach to the Philosophy of Jewish Law (Halakhah),” Ronit Irshai describes a tactic in contemporary halakhic discourse about gender that she terms “formalistic reductionism.” She writes, “Whenever one identifies an effort to uncover the morally problematic value system implicit in a halakhic ruling with respect to women, the conservative counterattack goes something like this, ‘You misunderstand entirely; it’s an entirely formalistic matter, and questions of values, if one is concerned about them, are situated totally elsewhere.’”²² For example, according to the Talmud (b. Megillah 23a), women may have been eligible to read from the Torah in the synagogue were it not for concerns about the honor of the congregation (kavod hatsibbur). It seems that calling a woman to read from the Torah might imply that none of the men were capable of doing so, which would dishonor the congregation. Jewish feminists have therefore criticized the Orthodox practice of excluding women from reading the Torah in the synagogue as based on misogynistic assumptions about how a woman’s ability would cast aspersions on men’s ability. Traditionalist commentators have argued in response that this is a misunderstanding of the Talmud. Kavod hatsibbur does not in any ordinary sense mean the honor of the congregation, and so women being excluded from reading the Torah in the synagogue would not dishonor the congregation—that would be to conflate halakhic with moral categories. Kavod hatsibbur is instead a technical term within the halakhic system that is defined only in terms of its circumstances and consequences of application within that system. No one should therefore take offense because of it.²³

Formalistic reductionism thus seems to rely on a conception of halakhah as system. The concern has become the internal relations among halakhic concepts and specifically the overall coherence of the halakhic system as opposed to correspondence to standards of truth or justice that are now construed as “external.” As its name suggests, formalistic reductionism tends to emerge within formalism, but it can also plague positivism. According to legal positivism, the action-guiding benefits of law rely on the exclusion of considerations that are rendered nonlegal. Questions about the truth of halakhic categories or justice of halakhic rulings are sidelined. Systematicity again results in normative closure. If this is so, it is important to establish whether this development was as inevitable as Berkowitz’s historical genealogy or contemporary halakhic discourse concerning gender suggests. Perhaps there are ways to maintain the virtues of legal systematicity without the vice of normative closure.

TEXTUAL STUDY: SYSTEMATICITY IN LITHUANIAN TALMUDISM

To explore this possibility, it is useful to return to early expressions of the drive for halakhic systematicity in Lithuanian Talmudism. Lithuanian Talmudism is a genus of Jewish learning that is popularly known by its most distinguished species—the Brisker Derekh, often described as the “analytical movement” or “conceptual approach” to Talmud study.²⁴ Founded by Ḥayyim Soloveitchik (1853–1918) and named for the town of Brest, Belarus, in which he was the rabbi, this approach focuses on the development of abstract categories in order to justify halakhic rulings and understand disputes among halakhic authorities. It therefore does not explain such features in view of textual disagreements or social and political context.

The Brisker Derekh has deep roots in the thought of Eliyahu of Vilna (1720–97) and his student Ḥayyim of Volozhin (1749–1821). Eliyahu of Vilna’s notes on the Shulhan Arukh draw the reader’s attention away from the settled ruling and back to the source texts of rabbinic literature.²⁵ Ḥayyim of Volozhin’s masterwork Nefesh haḥayyim leverages Kabbalistic discussions of creation and revelation in order to motivate concentrated study of the Talmud.²⁶ This vision took on an institutional form in the seminary he established, the Etz Ḥayyim Yeshiva in Volozhin, which emphasized learning for its own sake as distinct from any concern with practical application. This was matched by the educational framework, which removed students from sustained interaction with ordinary Jewish life.²⁷ Following in the footsteps of his father, Yosef Dov Soloveitchik (1820–92), Ḥayyim Soloveitchik studied and taught at the Etz Ḥayyim Yeshiva before becoming the rabbi of Brest. Shimon Shkop (1860–1939) studied with Soloveitchik while he taught in Volozhin. Shkop went on to lead seminaries in Telsiai and Grodno. He, too, founded an approach to Talmud study, which is identified with this first seminary as the Telz Derekh, or “approach.” The influence of Soloveitchik’s thought is evident in Shkop’s method; however, as I show, there are crucial differences regarding the connection between legal systematicity and normative closure. To illustrate this, I compare representative texts by Soloveitchik and Shkop. But first, a caveat: My aim is not to present comprehensive accounts of their thought or methods of halakhic analysis. I rather take these classic texts simply as two examples to test the notion that systematicity leads to closure.

ḤAYYIM SOLOVEITCHIK: CATEGORIZATION AND CLOSURE

The first text is Soloveitchik’s famous analysis of Moses Maimonides’s Mishneh Torah, “Laws of Leavened and Unleavened Bread” 1:3, in which Maimonides (1135–1204) discusses the circumstances under which one is lashed for possessing leavened bread (hamets) on Passover.²⁸ Some background: In Exodus chapters 12–13, three references are made to not possessing leavened bread on Passover. Exodus 12:15 states, “Seven days you shall eat unleavened bread; on the very first day you shall remove (tashbitu) leaven from your house.” Exodus 12:19 states, “No leaven shall be found (lo yimmatse) in your house for seven days.” Exodus 13:7 states, “No leavened bread shall be found (lo yera’eh) with you.” While the last two verses are understood to be one prohibition against owning leavened bread (bal yera’eh u-val yimmatse), Soloveitchik’s investigation concerns that prohibition’s relation to the prescription to remove the leavened bread (tashbitu) and, by extension, the nature of that commandment.

Soloveitchik’s investigation proceeds in four steps. First, he notes a contradiction between the Mishneh Torah and the Talmud regarding the punishment for owning leavened bread on Passover. He then takes a seeming detour from this subject to adjudicate a debate between Jacob ben Asher (1270–c. 1340), author of the Arba‘ah Turim, and Akiva Eiger (1761–1837) concerning the status of any remainder from the disposal of the hamets. Yet this detour enables him to create categories that will be useful for resolving the contradiction. Third, he develops these categories further before, fourth, applying them to resolve the contradiction.

1. The Contradiction. Maimonides states that one is lashed for violating the prohibition of owning leavened bread on Passover if one actively purchases it on the festival day. Soloveitchik notes, however, that this conflicts with a statement in the Talmud (b. Pesaḥim 95a), which asserts that the prohibition of owning leaved bread on Passover is a prohibition that is transformed into the prescription (lav hanitak la‘aseh) of the removal of the leavened bread. That is, if one violates the prohibition of owning leavened bread, one is then commanded to remove it. There should thus be no lashing for violating the prohibition because, in general, one is not punished for violating such prohibitions (see b. Makkot 15a). How can Maimonides seemingly agree with the Talmud about the nature of the prohibition of owning leavened bread yet simultaneously rule that one is lashed for violating it?

2. The Detour. Having revealed this contradiction, Soloveitchik turns to a related but seemingly distinct matter: the proper method of fulfilling the prescription to dispose of the leavened bread. This topic is debated in the Mishnah with Rabbi Judah holding that it must be disposed of by being burned and the Rabbis maintaining that it may be disposed of in any manner, such as burial (m. Pesaḥim 2:1). Joseph ben Asher interprets this debate as concerning how to categorize leavened bread on Passover. He then draws different conclusions from the various categorizations, namely, whether whatever remains from the method of disposal is permitted or prohibited for use (Arba‘ah Turim, Oraḥ Ḥayyim, §445). The two general categories are prohibited objects that must be burned, and prohibited objects that may be buried. Rabbi Judah places leavened bread in the category of objects that must be burned, while the Rabbis place leavened bread in the category of objects that may be buried. Correspondingly, leavened bread inherits the consequences of these categories. Since the remains of objects that must be burned—that is, their ashes—are permitted for use, Rabbi Judah contends that the ashes of burned leavened bread are similarly permitted for use. In contrast, since the remains of objects that may be buried are forbidden for use, the Rabbis hold that the remains of leavened bread are likewise forbidden for use.

Eiger, however, prevents Jacob ben Asher’s application of these general categories to the debate between Rabbi Judah and the Rabbis and thus blocks the drawing of differential consequences.²⁹ To do this, he cites Tosafot’s commentary on the Talmud, which suggests that, in general, the remains of objects that must be burned are permitted for use because there is a commandment to burn the object and, once that commandment is fulfilled, the object is permitted. In contrast, the remains of objects that may be buried are forbidden because there is no commandment to bury them; they are only buried to prevent accidental use of the object.³⁰ However, Eiger argues, Rabbi Judah and the Rabbis both agree that there is a prescription to dispose of the leavened bread—that is not in dispute. They only disagree on the means of disposal. Therefore, they should agree that any remains from the leavened bread are permitted once the commandment of disposing of it is fulfilled.

3. The Construction. Here Soloveitchik intervenes in the debate between Jacob ben Asher and Eiger. He puts the different consequences drawn by Jacob ben Asher for each position on firmer ground by developing alternative categories. Taking into account Eiger’s point that both Rabbi Judah and the Rabbis recognize that there is a commandment to remove the leavened bread, there is a distinction between their views on the nature of this commandment that leads to their different positions on the means to dispose of the leavened bread and the status of any remains from it. The alternative categories are the opposition of thing (heftza) and person (gavra), which can also be described as the difference between an obligation in rem and an obligation in personam. On the in rem view, the object x must have some action a done to it by some person. On the in personam view, person p must perform action a on some object. Soloveitchik further argues that these categories have implications for the status of the object after the obligation has been fulfilled. Whereas an object that has had its obligation in rem performed is thereafter permitted for use, an object that has had an obligation in personam performed on or through it is not then permitted. These alternative categories and their consequences are then applied to the debate between Rabbi Judah and the Rabbis. Because Rabbi Judah holds that the leavened bread must be burned, he clearly believes that the commandment is an obligation in rem. This leavened bread must be burned by some person. Consequently, once it is burned, Rabbi Judah must hold that its remains are permitted. In contrast, because the Rabbis hold that the leavened bread may be disposed of in any manner, they clearly maintain that the commandment is an obligation in personam. This person must dispose of leavened bread. Consequently, even after the leavened bread is disposed of, its remains are still forbidden.

4. The Resolution. Having resolved the debate between Jacob ben Asher and Eiger, Soloveitchik uses the alternative categories he has constructed (the commandment as an obligation in rem or as an obligation in personam) to further categorize the prescription to dispose of the leavened bread. He moves from that distinction, which concerns the locus of the commandment (in the object versus in the person), to the type of commandment and its relation to the prohibition of owning leavened bread on Passover. In Rabbi Judah’s view, again, the disposal of leavened bread is an obligation in rem, and the leavened bread must be disposed of by burning, and its remains are permitted. But, Soloveitchik argues, this means that he must also hold that the commandment to dispose of the leavened bread is a prohibition transformed into a prescription (lav hanitak la‘aseh). If the prohibition of owning leavened bread is violated, then this prescription of disposal is incurred. Consequently, according to this position, there are no lashes for violating the prohibition. In contrast, according to the Rabbis, the disposal of the leavened bread is an obligation in personam, and the leavened bread may be removed by any means, and its remains are forbidden. But, Soloveitchik argues, this means that they must hold that the disposal of the leavened bread is a prescription to refrain (issur aseh) from an action, namely, the action of owning leavened bread. Active violation of the prescription by purchasing leavened bread thus does incur lashing.

Soloveitchik has thus provided two competing categorizations of the prescription to dispose of the leavened bread. These categorizations focus on the type of commandment it is and its relation to the prohibition of owning leavened bread on Passover. It is either a prohibition transformed into a prescription or a prescription to refrain. Soloveitchik also shows how these different categorizations result in other categorizations, such as between an obligation in rem or an obligation in personam, explains known differential consequences, like whether the leavened bread must be burned or whether it may be disposed of by any means, and entails others, such as whether the remains are permitted or forbidden and whether one is lashed for owning leavened bread on Passover.

This analysis also resolves the contradiction between Maimonides and the Talmud, for Soloveitchik assigns to them different categorizations. The Talmud follows Rabbi Judah, who holds that the commandment to remove leavened bread is a prohibition transformed into a prescription, and so there are no lashings for owning leavened bread on Passover. Maimonides, however, follows the Rabbis, who hold that the prescription to remove leaved bread is a prescription to refrain, and so there are lashings for owning it when the prescription is actively violated by buying such bread on Passover. This is supported by his ruling, like the Rabbis, that the leavened bread can be disposed of in any manner (“Laws of Leavened and Unleavened Bread,” 3:11).

Soloveitchik’s argument can be outlined as follows: A textual difficulty, the contradiction between Maimonides and the Talmud, initiates Soloveitchik’s investigation, and its resolution marks its conclusion. In light of this resolution, he adopts existing categorizations, develops them, and creates new ones. He sets up relations between these categorizations, accounts for known differences through them, and draws consequences from them. When he is finished, there are higher-order categorizations that result in further categorizations and conclusions. Moreover, these categorizations are used to resolve the initial difficulty.

There are three important points to consider. First, such categorization represents a high degree of systematization. Instead of a confusion of norms and their details, there is integrity. However, the systematization is somewhat truncated. Instead of merely a contradiction between Maimonides and the Talmud or two different rulings, there are two entirely different ways of categorizing, understanding, and applying a single commandment. Moreover, no reason is given for the different categorizations of Rabbi Judah and the Rabbis/Maimonides. Of course, this means that these categorizations cannot be evaluated, and a theoretical and practical decision cannot be made between them. There simply remains two different ways of categorizing the commandment. There is thus a certain unrationalized givenness retained by the categorizations. This givenness is also apparent in the connection of the categorizations to their consequences. It is not apparent why it is specifically prohibitions transformed into prescriptions that preclude lashings or why only the fulfillment of an obligation in rem results in the permissibility of the object.

One could certainly offer reasons for these categorizations and consequences, but Soloveitchik does not do so. It is possible that if one asked such questions—for example, why the prescription to dispose of leavened bread is either a prohibition transformed into a prescription or, alternatively, a prescription to refrain, or why only the former precludes lashings, or why only the fulfillment of an obligation in rem results in the permissibility of the object—one would have transgressed the boundaries of the halakhic system. There may be debate about the basic categories of the system or how they connect to practical rulings; however, the categories themselves are simply given. When they have been made manifest, one could say, quoting Ludwig Wittgenstein, “I have reached bedrock and my spade is turned.”³¹ Systematization has reached its limit.

SHIMON SHKOP: FROM JEWISH LAW TO LAW AS SUCH

The second text is from Shkop’s Ḥiddushim on Bava Qamma #1.³² Shkop’s thought has been analyzed by Avi Sagi and, more recently and extensively, by Shai Wozner. Sagi and Wozner have debated the relation between halakhah and natural law in Shkop’s thought: whether, in addition to revealed divine law, Shkop recognizes reason as an independent source of normativity. I do not directly intervene in this debate, but, by focusing on systematicity, I hope to bypass it initially but ultimately shed new light on it.

Shkop makes systematization the primary goal of his analysis of the Talmud. He begins with a rabbinic statement that manifests a drive to systematicity. The Mishnah in Bava Qamma 1:1 states: “There are four primary categories of damages: the goring ox, the pit, the mav‘eh,” which is either a grazing ox or a person, “and fire.” It even provides a more abstract conceptualization of these categories by describing their shared features: “They each damage, and one is obligated to supervise them.” Seeming to take his cue from the Mishnah, Shkop develops an overarching account of the reason for liability (sibah hamiḥaiyevet) for torts that applies to all of these categories. In the first step of his five-step investigation, he offers an preliminary analysis of the Mishnah and uses cases from elsewhere to problematize it. Second, he offers an initial proposal for the reason for liability and rejects it. Third, he offers an alternative proposal. After supporting it, he, fourth, further refines it. Fifth, he provides a summary statement of his account.

1. Analysis and Problematization. As indicated, the Mishnah provides four categories of damages (goring ox, pit, mav‘eh, and fire) and their common denominators (they each cause damage, and one is obligated to supervise them). Added to these categories is damage directly done by one’s body, for example, when someone throws a vase to the ground and shatters it. Shkop complicates matters by showing how this first common denominator is not all that common. In each case, the damage is caused in different ways. Sometimes, the damage is done by one’s body, other times by one’s property, and still other damage results indirectly from one’s actions. Yet each type of damage shares the fact that one is obligated to supervise them. Shkop thus raises the implicit question: Since in each category the damage is caused in different ways, what unites them? Further, setting aside the category of damage done by one’s body, there seem to be cases in which one is liable for damage yet the object that caused the damage is not one’s property, nor did one’s actions indirectly cause the damage. For example, a trustee is liable for damage caused by an object in his care, and a thief is liable for damage caused by an object he stole, even when the damage does not seem to result from their actions.

2. Initial Proposal. An indication for a proposal is provided by Tosafot (see b. Bava Qamma 56a s.v. peshita), which seems to suggest that the duty of supervision precedes and entails some form of ownership in the context of damages. Instead of focusing on the first common denominator mentioned by the Mishnah (that they each cause damage), one should thus focus on the second (the obligation of supervision). Shkop’s initial proposal is correspondingly that negligent supervision—the breach of this obligation—is the reason for liability. The obligation of supervision, in turn, can be established through diverse relations with the object. The object could be one’s property, or it could be established in other ways, such as in the case of the pit. Digging a new pit or opening an existing one directly establishes the duty to supervise. What is key, though, is that the reason for liability is negligent supervision. The underlying rationale for this proposal seems to be to assimilate all the categories of damages to those caused indirectly by one’s actions. One did not supervise the object and thus indirectly caused the damage that it directly caused.

But Shkop offers a counterexample to reject this proposal. He argues that, according to it, one would be forever liable for the damage caused by a runaway ox. For once one was negligent in its supervision—for instance, by leaving the barn door open—one would always be liable for its actions, even if one was no longer its owner by the time it caused the damage. It is established in the Talmud, however, that this is not the case. Once one is no longer considered the owner of the ox, one is no longer liable for its damages (b. Bava Qamma 13b).

3. Alternative Proposal. Shkop then offers an alternative proposal: ownership, of some form, is the reason for liability, and negligent supervision only serves as an enabling condition for this reason. The underlying rationale for this proposal seems to be that a parallel is thereby established between damages caused by one’s body and by one’s property. Returning to the original three categories of damages (caused by one’s body, by one’s property, and indirectly by one’s actions), the latter category (represented by the pit and fire) now seems like an outlier. Such damage is not caused by one’s body, nor does it seem to be caused by one’s property because there is no obvious sense in which one owns fire or a pit dug in the public domain. Yet Shkop argues that one does indeed have a form of ownership over the fire and the pit. In support of this claim, he writes, “He prepared the damager and thereby is considered its owner. [For] just as . . . the laws of the Torah and the laws of the nations agree (muskam al pi dine hatorah vedine ha‘amim) that anyone who creates something new is the owner of it for any benefit, so too the Torah considers anyone who prepares an impediment its owner—the owner of the pit or the fire—and [the Torah] made the owner . . . liable for damages.”³³ Shkop develops a parallel between the type of ownership one has over something beneficial one invents and over something harmful that one produces. In the process, he emphasizes the similarity between Jewish and non-Jewish law on this point. Both assign ownership of an object to individuals based on their having created it. While Shkop does not ground his argument on this similarity, it is remarkable that he thinks that this commonality between Jewish and non-Jewish law concerning ownership speaks in favor of it.

4. Refinement. Shkop then offers some further arguments, which I will not elaborate. In short, he argues for ownership and against negligent supervision as the reason for liability. Still, Shkop refines his proposal by incorporating negligent supervision into it as, what Jonathan Dancy has called, an enabling condition.³⁴ An enabling condition itself does not serve as a reason, but it allows something else to serve as a reason. Without the enabling condition, the reason could not be the type of reason it is. In this case, negligent supervision is not the reason for liability, but it allows ownership to serve as that reason. Further stressing the parallelism between damages caused by one’s property and by one’s body, Shkop shows how this understanding of negligent supervision makes sense of seemingly problematic cases of the latter as well.

Shkop also refines his proposal by describing the types of ownership that can serve as the reason for liability. De jure ownership is not necessary. De facto control of the object is sufficient, so long as it endures until the time of the damage. One can thus also be liable for the damage caused by an object one has been entrusted to supervise or that one has stolen, even when the damage does not indirectly result from one’s actions, because one has de facto control of the object. Of course, these were the initially problematic cases, but now they have been reconciled into a general account of tort liability

5. Summary Statement. Shkop concludes with a statement of this general account: the Torah’s reason for making one liable for damage is that the damage was caused by either one’s property or one’s body. Negligence serves as an enabling condition for the application of this reason: one’s prior intentions and will must result in the actions of one’s body or property.

Shkop’s argument can be outlined as follows: His aim from the beginning to the end of his analysis is to provide a general account of tort liability. His initial question is based on the Mishnah’s incipient categorization and common denominator, which he tests through problematic cases. And he explicitly offers a more comprehensive categorization. He examines his initial proposal using established laws. Then he provides an alternative proposal, supports it, and refines it. This refinement incorporates the earlier proposal as well as cases that it seemed to handle more effectively. The result is a general account of an area of law that brings unity to it. Moreover, when Shkop reaches this level of systematization of Jewish law, analogies between it and non-Jewish law begin to emerge. The reason that is manifest is that of law as such.

JEWISH LEGAL CATEGORIES AND PHILOSOPHY

When Soloveitchik and Shkop analyses are compared, there is an increased concern with systematization as well as resultant systematization in Shkop’s thought. While categorization emerges from Soloveitchik’s attempt to reconcile Maimonides with the Talmud, Shkop’s main goal is to provide a comprehensive explanation of tort liability in Jewish law. He is concerned not simply with the category of such liability but also with the reason for it. Additionally, Soloveitchik reconciles Maimonides with the Talmud by showing how each has conflicting categorizations, while Shkop shows the single, proper way of comprehending liability. If an authority—Tosafot, in this case—does not agree with this understanding, so much the worse for the authority. Further, whereas Soloveitchik leaves certain connections and consequences among his categories unrationalized, Shkop tries to reveal the rationality common to law—both Jewish and non-Jewish—as such. Shkop sees it as evidence supporting his general account of tort liability that this account creates a similarity between Jewish and non-Jewish conceptions of ownership. It is difficult to imagine Soloveitchik making a similar comment, even in passing.

This point is crucial to answering the question about systematization and closure. There is increased systematization from Soloveitchik to Shkop: less is left unrationalized, and a more general account of Jewish law is pursued and provided. Yet it is Shkop who is interested in the similarities between Jewish norms and other norms. The reason that is revealed, again, is not just that of Jewish law but of law as such. This interest is expressed, however, not by directly considering the claim of non-Jewish or purportedly universal norms on Jewish law; this would disrupt the systematization of Jewish law. It is rather expressed by considering the deep points of intersection of Jewish law and non-Jewish law that emerge as a halakhic system is elaborated. Law as such is constructed by reflecting on a particular law—halakhah.

This perspective offers a different view of the debate between Sagi and Wozner about how to categorize Shkop’s thought. Sagi claims that Shkop is the rare explicit proponent of natural law in the Jewish tradition.³⁵ Wozner challenges this claim by showing that Shkop’s way of thinking has positivistic features.³⁶ Specifically, Wozner rightly contends that Shkop does not claim that all halakhic laws derive their normativity from reason or have universal application. Indeed, Wozner shows the importance of the distinction between ḥiyyuvei mammon, which define legal statuses, and ḥovot hitnahegut, which prescribe actions. While independent reason might define legal statuses—for example, whether some individual or another owns an object—only revealed law prescribes action; in this case, an individual must transfer possession of the object to another. This is a crucial distinction. However, Shkop’s interest in the systematization of Jewish law and its deep points of intersection with non-Jewish law may provide a better position from which to assess his connection to natural law thinking than the theoretical issues of law’s normativity and universality. For the view that natural law consists of abstract and tradition-independent reason and prescribes universally applicable norms is not the only available position, nor is it the most plausible one.

Adopting the perspective of systematicity and closure reveals affinities between Shkop’s thought and David Novak’s conception of natural law out of the source of the Jewish tradition. Novak describes the Noahide laws as “an attempt to constitute a universal sphere on one’s own cultural horizon without attempting the impossible task of constituting a universal whole to totally contain one’s own cultural matrix and all others as well. . . . The sphere of the universal is constituted as a consequence of the constitution of a comparative dimension.”³⁷ Similarly, Shkop may deny that reason is the source of normativity for all Jewish laws or that Jewish law is universal in application. The sources of normativity of Jewish law may be diverse, with a corresponding diversity of application. Some norms may stem from a particular relationship with the divine and so would only apply to Jews. Other norms may circumscribe necessary conditions of human life and so would apply more universally. Importantly, though, these classes of norms are not differentiated a priori but rather are constructed a posteriori. Only by reflecting on halakhic norms and attempting to render them consistent and coherent can one determine what is particularly Jewish and what is universally human. In addition to the Noahide laws, Novak explains how such “universalization from within” occurs in the imposition of rabbinic enactments (taqqanot) and decrees (gezeirot) as well as the philosophical project of attributing reasons to the commandments (ta‘amei hamitzvot).³⁸ Shkop would add that providing reasons (sibbot) is also necessary for halakhic analysis, and so, here too the underlying rationality evident in law as such is revealed.

Shkop’s approach could serve as a model for the pursuit of systematicity without normative closure. System theorists and positivists are correct that for law to effectively achieve its function and guide action, it must limit the considerations that are relevant for judges and other legal subjects. Otherwise, every argument or claim may be offered, and legal norms would make no practical difference in the deliberations of those subject to them.³⁹ But this, as Raz notes, requires law to be an exclusionary system. Formalists are also right that a particular virtue—integrity—can only arise through explicating the internal connections among legal norms and categories while revising them when necessary to increase coherence. Attempting to incorporate every moral claim or political preference, directly and separately, would result in an incoherent confusion of norms. Fortunately, there is another way to avoid normative closure—through further systematization. While the systematization of law may result in normative closure in the short term and perhaps even in the midterm, this occurs only when it is not yet systematic enough. By ascending from particular norms to legal categories and onward to the structure of law as such, the initial closure that emerges from systematization ultimately allows for normative openness.

This will not solve all legal problems, nor will it ensure specific moral or political outcomes. For example, in the context of American law, the prohibition of abortion can be defended by an appeal to natural law just as it can be justified according to an originalist interpretation of the Constitution. More to the point, in the context of halakhah, opposition to women’s participation in Jewish ritual life can be expressed on textual grounds or for theological reasons. What this approach does prevent is what Irshai has called formalistic reductionism and what I—observing how it emerges in part from necessary features of law—have called normative closure. Both formalistic reductionism and normative closure can be used to cut off debate and rule certain objections out of bounds—what Charles Sanders Peirce calls “blocking the path of inquiry.”⁴⁰ This approach suggests that engagement with halakhic texts and concepts can lead to considering the types of universal questions—like the categories of law as such—that are thought to be the domain of open-ended inquiry, what we might rightly describe as philosophy. When studied in this way, Talmud becomes philosophical.

A comparison of Shkop’s approach to methods in contemporary Anglo-American philosophy—in philosophy of law and beyond—also suggests that Philosophy becomes talmudic. Instead of abstract reflection on the nature of human agency, responsibility, or ownership, one begins with the practices of a community and prevalent ways of describing them and then tries to rationally reconstruct them. While this process begins within a particular community—whether the ordinary language of twentieth-century Britons or the interpretations of classical and medieval rabbinic texts—the goal is to reveal concepts and norms that transcend them. When closure is avoided, there is little difference between the conceptual analysis that takes place in the philosophy seminar and the dialectics of the talmudic shiur.

YONATAN Y. BRAFMAN is Assistant Professor of Modern Judaism in the Religion Department and Program in Judaic Studies at Tufts University. He is the editor, with Leora Batnitzky, of Jewish Legal Theories: Writings on State, Religion, and Morality and author of Critique of Halakhic Reason: Divine Commandments and Social Normativity.

NOTES

1. Google Ngram search “halakhic system” and “halachic system.” Thanks to the members of the Princeton Seminar in Jewish Thought, the Jewish Studies Virtual Workshop, and the Herbert D. Katz Center for Advanced Judaic Studies Fellows’ Seminar for insightful feedback and comments on earlier drafts of this chapter.

2. Soloveitchik, Halakhic Man, 18–19.

3. Two notable exceptions include Moses, System and Revelation; and Pollack, Franz Rosenzweig. However, they do not discuss law in general or halakhah in particular.

4. Luhmann, “The Self-Reproduction of Law,” 112.

5. Ibid.

6. Thanks to Alexander Weisberg for convincing me to clarify this point.

7. Weinrib, “Legal Formalism.”

8. Ibid., 972.

9. Kelsen, Introduction to the Problems, 56.

10. Ibid., 53.

11. Raz, Practical Reason and Norms, 145.

12. Raz, The Authority of Law, 18.

13. Berkowitz, The Gift of Science.

14. Leibniz, New Essays on Human Understanding, 371.

15. Melamed and Lin, “Principle of Sufficient Reason.”

16. Ariew and Watkins, Readings in Modern Philosophy, 288; cited in Melamed and Lin, “Principle of Sufficient Reason” from the original source.

17. Leibniz, Philosophische Schriften, 6:2791; cited in Berkowitz, The Gift of Science, 55.

18. Berkowitz, The Gift of Science, 51–52.

19. Systematicity from Leibniz onward has also been expertly discussed in Franks, All or Nothing. However, Franks’s concern is specifically with its role in resolving questions about skepticism in German Idealism.

20. Adler, Engendering Judaism, 28.

21. Ibid.

22. Irshai, “Toward a Gender Critical Approach,” 70–71.

23. Ibid., 73–75.

24. See Solomon, The Analytic Movement; Blau, Lomdus; Saiman, “Legal Theology”; and Halakhah, 195–212.

25. Stern, The Genius, 115–42.

26. Ḥayyim of Volozhin, Nefesh Haḥayyim.

27. On the Etz Ḥayyim Yeshiva, see Stampfer, Lithuanian Yeshivas, 15–251.

28. Soloveitchik, Ḥiddushei Rebbenu Ḥayyim Ha-Levi, 42–43; See Batnitzky and Brafman, Jewish Legal Theories, 69–73 for translation and further discussion of this text.

29. Soloveitchik states Eiger’s view and argument without offering a citation.

30. It seems that Eiger’s sources are b. Pesaḥim 21b s.v. bahade deqa saref leh lithani minneh and b. Temurah 33b s.v. hanisrafin afran muttar.

31. Wittgenstein, Philosophical Investigations, para. 217.

32. Shkop, Ḥiddushei Rebbe Shimon Yehudah Ha-Kohen, III:5–7; see Batnitzky and Brafman, Jewish Legal Theories, 74–76 for translation and further discussion of this text.

33. Shkop, Ḥiddushei Rebbe Shimon Yehudah Ha-Kohen, 5.

34. Dancy, Ethics without Principles, 38–52.

35. Sagi, “Ha-Mitzvah Ha-Datit.”

36. Wozner, Ḥashiva Mishpatit Be-Yeshivot Lita, 220–84.

37. Novak, Natural Law in Judaism, 141.

38. See Novak, “Natural Law and Judaism.”

39. See Himma, “Inclusive Legal Positivism,” for a discussion of the practical difference objection to non-positivist legal theories.

40. Peirce, Collected Papers, I:135.