Precedents all the way down: halakha as a common law system (part 4½)

Bonus material: a note on positivism and some further reading/listening

Although I was hoping to release part 5 by now, I am afraid it is not quite finished yet. However, I always intended to develop this series later beyond the original essay with posts further illustrating my points, suggesting further readings and other resources, so I thought why not start that now? If you were eagerly awaiting the next part in my series, I hope this post will make up for the longer wait.

This post is made up of two parts: the first part is a note clarifying some terminology in response to some of the comments I have received so far, while the second is a list of a few recommended readings and podcasts relevant to the essay.

Wishing all our readers a shana tova, a safe and peaceful 5785.

‘Positivism’—as opposed to what?

In Yerushalmi Berakhot 2:1, we learn:

רִבִּי חוּנָה רִבִּי אוּרִי רַב יוֹסֵף רַב יְהוּדָה בְשֵׁם שְׁמוּאֵל צָרִיךְ לְקַבֵּל עָלָיו מַלְכוּת שָׁמַיִם מְעוּמָּד. מַה אִם הָיָה יוֹשֵׁב עוֹמֵד? לֹא, אִם הָיָה מְהַלֵּךְ עוֹמֵד.

Rebbi Ḥunah, Rebbi Uri, Rav Joseph, Rav Yehudah in the name of Samuel: One has to accept the Kingdom of Heaven standing. Does this mean that one has to get up when one is sitting? No, it means that if one is walking he has to stand still.

This is a great example of how a word’s intent in a given context is sometimes best explained not by defining it, but in contradistinction to some other idea.

Similarly, in my essay so far, I’ve used the terms ‘positivism’ and ‘positive law’ in a way which seemed to some readers as unusual, though they had no problem with the definition as such. Both of these terms are most often defined in contradistinction to something else.  The question here, really, is: positive law, as opposed to what? Positivism, as opposed to what?

Really, the definition of positive law matters for our discussion because of its relationship to legal positivism, which for now I’ll define as the legal philosophy which sees positive law as the only legitimate form of law, to the exclusion of all other factors or sources ever described as law. In part 3, I defined positive law to mean law created through the means of formal authority, as opposed to any form of informal authority. As I implied there, what I was referring to is legislation: statutes, decrees, etc., laws conceived in the abstract, without reference to any specific case. However, this is just one connotation of the term. In civil law systems where precedents hold no authority, this connotation is complete and exhaustive, but under common law, there is another type of law which potentially falls under it: binding precedents.

Technically, this is strictly true: precedents are law, and they are the creation of the formal authority of a court, binding lower courts but also (as a distinct aspect of common law) also later rulings of the same courts. Practically speaking, I think this characterisation is somewhat misleading and obscures important differences between legislation and how common law is developed by judges. Firstly, precedents are more flexible than statutes, especially in very mature areas of law with many relevant precedents. Ultimately, judges sometimes find a past case to have been ‘wrongly decided’. 

But this is a bit of a tangent—I don’t argue that halakha requires courts to uphold their own precedents.¹ Rather, my comparison, partly about how rulings take into consideration precedents from higher courts (which indeed are binding precedents and therefore ‘positive law’), is mostly about precedents from other courts of formally equal rank, and how these influence the rulings of other courts. The roots of the importance of such precedents in halakha are something I will discuss in my next post. At any rate, they are clearly important in common law as well, and influence decisions in a way that has little parallel in most civil law systems.

Secondly, and more importantly, common law simply gives judges more discretion to develop law than under civil law. This is mostly observable today in the manner in which common law judges rule inductively from precedents (rather than deductively from statutes), but in the not-so-distant past, they would also recognise new crimes in the absence of statute, something anathema to positivism.

This characteristic is what I see as the foil positivism in systems of judge-made law like common law and halakha. By presenting the system of halakha as contradistinction to positivism, I mean that halakha is does not strictly adhere the principle of legality. In this analysis, positive law is the ‘lege’ in nulla poena sine lege—‘no punishment without [already existing] law’. My argument is a response to the question ’which parts of halakha are binding on me and which are not binding?’ The answer is that it’s not really a valid question, partly because it’s making an assumption about legal obligations the Torah does not make (remember the snake? When did Hashem promulgate the law that he wasn’t allowed to tempt Adam and Eve with the fruit?).

I should also be very clear, I definitely don’t mean divine revelation. The basis for rabbinic authority clearly cannot be divine revelation (on that I still strongly agree with Hakham Faur—the Torah is clear that even the Sanhedrin can make mistakes). But divine revelation is also a positivist answer! Assuming we had a clear answer as to who received the genuine article (presumably not Rabbi Yohanan), we could sort out exactly what is binding and what isn’t.

Ultimately my answer is precedent, precedent in a broad sense, including many precedents which are of a local nature. To some extent what I mean by that is custom and customary law, but that just doesn’t cover enough ground. For example, which species make up the five grains is a question of law in a way that the word minhag just doesn’t cover, and as far as I know nobody claims minhag as their basis for that, they mostly cite a Rishon. And I wouldn’t claim minhag can legitimise everything. That would be devolving into the kind of cultural theory I rejected in part 1, which is to say a theory which suggests that any custom which is longstanding or widespread and accepted in some Jewish community is legitimate. As I heard pointed out by R. Josh Yuter shlit”a in one of his shiurim, in a case of an ir nidahat, we don’t go and check and let them off the hook if their avoda zara was just a minhag avot all along. Some aspects of halakha have to be objective, and if the Sanhedrin can make a mistake, Am Yisrael can certainly make a mistake. Nonetheless, the broad concept of custom is an important aspect of the mesorah, and to some small extent remains that way despite its textualisation (more on this next time). And as we saw with Blackstone, custom is an important part of common law as well.

One might quibble that this is only a procedural answer to the question about positivism, not a substantive one. If Hazal, as well as other rabbis, don’t strictly have to adhere to positive law, what other ideas and principles do they draw on (within or without the local precedents they rely on)? Well, to be fair, my chief interest and concern in all this was essentially procedural all along. Nonetheless, the type of normative philosophy motivating halakhic reasoning is not unimportant, so here are some brief thoughts about the substantive question.

What about morality or natural law? If I’m saying halakha is not positivistic, am I saying halakha is a brand of Natural law? Not really, at least not systematically. I do think there are some principles (maxims? Doctrines? If you know the correct word to use here, please let me know) in halakha which seem to reflect meta-halakhic thinking about justice or ‘the good’ and through which Hazal and poskim sometimes interpret halakha, including Torah law (dina demalkhuta dina may be the best example). However, I really think these are somewhat unusual and certainly far too fragmentary to constitute a real ‘system’ of natural law. Hazal simply do not articulate a theory of such abstract concepts, with the possible exception of the principle that you should really do Hashem’s commandments (but you can’t say that’s natural law because then the question is: how should I follow God’s law? And the answer is simply ‘listen to the rabbis!’ which is usually too circular to serve as a guide for jurisprudence).

So, you might conclude, I must be some kind of legal realist—‘the law is whatever the judges say it is’. On the one hand, it is true that I argue that batei din and poskim have a fair amount of discretion. But on the other hand, I would not say judges cannot be wrong (again, even the Sanhedrin can be mistaken) or that the reasoning involved in a pesak din carries no real weight. Though there is subjectivity and greyness involved in the meaning of precedents, or in which precedents should be taken into account (just as in common law), there is such as a thing as pesak which fails to adhere or show due regard to precedents, for example by cherry picking sources (or, indeed, by not citing sources at all). This kind of malpractice is more likely when poskim are in fact legal realists and allow their halakhic judgement to be dominated by external ideological commitments, be they left-leaning or right-leaning. Personally, then, I would argue that modesty, deference, and moderation represent important virtues in pesak halakha.

Resources for further reading/listening

1. Leonard Levy 2010 - The Decisive Shift

   In this article, R. Levy shlit”a effectively traces the origins of the positivist stream in halakha to the early middle ages, when the Talmud Bavli was first treated as a book rather than a set of oral traditions. He shows how R. Yitshak Alfasi was at a centre of a shift away from the precedent-centred Geonic approach to ruling in cases of Talmudic dispute, innovating a methodology that saw the structure of the Talmudic discussion as more central to deciding such disputes (I will touch on these issues my next post).

2. Jeff Fox - Gemara as law: the genre error that drives Halakha to this day (recording)

   This lecture presents an important perspective on the role of texts in halakha, with a great illustration of the case-centred focus of halakhic reasoning.

3. Ze’ev Safrai 2022 - Mishnat Eretz Yisrael: Preface (in Hebrew)

   Mishnat Eretz Yisrael is a contemporary commentary on the Mishna combining traditional and academic approaches. This Preface volume explores the historical context of the Tanna’im while setting out the methodological approach taken by the authors in the commentary. I found it to be an incredibly useful source for its historical background; it is refreshingly detached of historical dogma and highly realistic about what we actually know about the period.

4. Eliezer Berkowitz 1981 - Jewish Law: Its Authority and Function (in Hebrew - ההלכה, כוחה ותפקידה), specifically chapters 1 and 8

   In this important halakhic-theoretic work, Rabbi Dr. Eliezer Berkovits z”l explores a number of difficult questions on halakhic authority and meta-halakha. I found most useful his discussion of exceptions to the rule of pesak that the halakha follows the side of a dispute supported by more sages (יחיד ורבים - הלכה כרבים) in chapter 1 and his discussion of the mutability of rabbinic decrees in chapter 8. Both discussions pose difficult challenges to positivist accounts of halakha.

1. Although Eduyot 1:5 could certainly be read that way! However, most rishonim conclude from the examples in Gemara that it only really applies to decrees)