A Defense of Reason Rooted in the Talmudic Conception of Law https://mosaicmagazine.com/picks/religion-holidays/2021/01/a-defense-of-reason-rooted-in-the-talmudic-conception-of-law/

January 25, 2021 | Haym Soloveitchik
About the author:

In legal philosophy and theory, a foundational debate exists between proponents of “legal formalism” and “legal realism.” Haym Soloveitchik, a leading historian of medieval halakhah, explains the positions thus:

The formalists contend that the judge only applies the rules of the system to a specific case, while the realists contend that, in the final analysis, the judge rules, be it only unconsciously, in accordance with his personal and ideological inclinations.

In other words, formalists believe judges first decide how they want to rule—often based on political goals—and then marshal the law to support their position. Which, then, best describes Jewish law? Soloveitchik first encountered the question as a student in the 1960s, when he first read, “with excitement,” the works of the realists:

I realized that, [if the realists were right], the mode of argument in [the talmudic tractates dealing with civil law], which are goal-oriented, would differ fundamentally from most arguments in the [tractates devoted to ritual law]. . . . I was unable to discover such a difference in my yeshivah days and have not succeeded in discovering it in all the intervening years, and not for lack of trying. Indeed, I would say that I have turned repeatedly to this problem over the course of my academic career.

This conclusion, in turn, leads Soloveitchik to a defense of reason itself: in the long run, it doesn’t matter what motivated Rabbi Moses Maimonides or Chief Justice John Marshall to rule a certain way, what allows their opinions to endure is that logical reasoning each used in support of his respective positions:

Many of Marshall’s greatest decisions had a clear political purpose, [which was] part and parcel of the agenda of the Federalist party to which he belonged. . . . Yet, because of their power and cogency, they carried the day. . . . Judges are deemed great and their decisions read and held binding because of the force of their arguments, arguments which have held, at times, for centuries.

Read more on Tablet: https://www.tabletmag.com/sections/history/articles/angle-of-deflection-soloveitchik

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