Thursday, August 17th, 2017

Our Writers Respond: Chukim, Mishpatim, and Womanhood by Aryeh Klapper (Part 1)

Chukim and Mishpatim in Halakha and Hashkafa

             A core concept in popular Orthodox thought is the distinction between חוקים and משפטים as presented by Rashi.  In this view, mitzvot are classified by whether they do or do not have a humanly intelligible purpose.  This position is hashkafically alien to the Spanish philosophical tradition, and exegetically rejected by most traditional commentators, but it nonetheless is a powerful cultural influence with significant intuitive appeal.

            This apparently hashkafic position has roots and branches within Halakhah.  One branch is what the Bavli sometimes presents as a dispute between R.Yehudah and R. Shim’on as to whether דרשינן טעמא דקרא, whether one can use the rationales for mitzvoth as the basis for deciding halakhic issues within those mitzvoth – obviously doing so requires the claim that such rationales exist, and refusing to do so works better if one denies they exist.  One root is the tension between the בנין אב and the חידוש in Midrash Halakhah.  Some legal details can have their scope expanded, become paradigms – these are the ones that conform to our intuition; whereas others are חידושים or גזירות הכתוב, counterintuitive, and therefore אין לך בם אלא חידושם – they should be applied as narrowly as plausible, regarded as exceptions.

            On what basis do we choose to classify something as a חידוש?  Bava Metzia 11a seem to suggest that the rule אין שכחה בעיר is classified as a גזירת הכתוב if and only if an extra feature of the Biblical verse can be found to decree it; on Bekhorot 5b R. Eliezer declares that the limitation of פטר to donkeys is a גזירת הכתוב, but then goes on to offer a rationale as well; and on Sanhedrin 70a R. Shimon says that one should derive the law of the rebellious daughter by kal vachomer from that of the rebellious son, but that the Torah prevents this by saying “son”, an argument that could certainly be evaded if desired.  It seems that these are categories of degree rather than absolutes, and mutable rather than fixed. 

Can Halakhot Change Categories?

              The question then is whether halakhot can legitimately move from one category to another over time.  Thus laws regarding Canaanite slaves may once have seemed intuitive, but it is now popular to regard them as concessions to pre-Torah feudal morality.  This is a quasirationale, but a dangerous one – cannot all mitzvot be seen as concessions to past moral systems, if they seem out of place to contemporaries?   Nonetheless, I hope and pray that no one today would take the laws of Canaanite slavery as models for the treatment of minorities in Israel.  Practically, historicization has the same effect as declaring those laws to be chukim. 

            Another striking example is the mitzvah of erasing Amalek.  While the argument that anyone who allegorizes the mitzvah is expressing moral discomfort with it seems false to me – one allegorizes mitzvoth that one cannot fulfill, even if one wishes with all one’s heart to fulfill them – Rav Lichtenstein, and before him the Chofetz Chayyim, argue that mechiyyat Amalek is the quintessential chok, such that it may only be performed by someone who denies that it has a humanly discoverable purpose.  In this interpretation, Shaul loses the monarchy not for his failure to kill Agag, but rather because his failure to kill Agag revealed that he had interpreted Shmuel’s instructions in accordance with what he understood to be their purpose.  But to think that genocide has a humanly discoverable purpose is evil, madness, or both, and so Shaul lost his monarchy not for failure to kill, but rather for killing the rest of Amalek.  Yet none of the rishonim puts in a special requirement of kavvanah lishmoh with regard to Amalek.

            Categorizing a mitzvah-detail, mitzvah, or complex of mitzvoth as chok rather than mishpat has the effect of quarantining it from normal halakhic conversation, and indeed, it has the effect of stigmatizing anyone seeking to reintroduce it as lacking proper religious intuition.  Conversely, categorizing a halakhah as mishpat rather than chok effectively accuses those who quarantine it of closing themselves off to the full implications of G-d’s word. 

Framing the “Jewish Womanhood” and Rabbah Debate

             My contention is that the fraught but respectful dialogue between my friends Rabbis Helfgot and Rothstein (here and here) regarding the ordination of women is fundamentally about whether we view the set of halakhot differentiating men from women in terms of ritual obligation as chukim, or rather as mishpatim.  Rabbi Rothstein argues that they are mishpatim, and so the rationales that motivate them must be extended to cases they do not specifically cover.  My impression is that this is a religious tendency that also drives him to find rationales for Amalek, inter alia.  Whereas Rabbi Helfgot is comfortable viewing those laws as chukim, fully authoritative as Halakhah, but providing no guidance – perhaps quite the contrary – on matters they don’t directly cover.  I think much the same phenomenon can be found in many contemporary Orthodox discussions of homosexuality.

            In this frame, it is precisely issues that cannot be easily treated by formal halakhah that take center stage, because they expose the underlying presumptions best.

            It should also be clear that mishpat-advocates are right to be worried about slippery slopes, as each concession on their part makes the halakhah less reflective of their rationales and therefore more susceptible to “chokification”. 

            I have more to say on this subject, both about the specific question of women’s ordination and about the general question of how one decides which halakhic details are paradigms and which exceptions, and hope to write on those subjects soon.  But it seemed to me valuable to first create this fairly neutral frame. 

            I will say by way of self-disclosure that I do believe that the option of declaring something a chok is legitimate, and therefore disagree with Rabbi Rothstein to the extent that I think there is room for some non-conversation within the same halakhic community.  At the same time, I fully agree that this technique is highly susceptible to abuse through deception, including self-deception, and should be used only with great caution.  Finally, there may perhaps be some room for mishpat advocates to admit that we often shouldn’t have enough confidence in our rationales to impose their implications on others, and for chok advocates to admit that quarantining devar Hashem is a bold move that should be undertaken only as a last resort.        


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