Sunday, May 20, 2007

Halacha, Discretion, and Experiences

For years I was under the misimpression that law has clear cut answers. But thanks to reading a myriad Posner books, and learning about the New Formalists, I've come to realize that no mature theory of law can seriously contend that law is just the mechanical application of principles to the facts. The law is littered with judicial discretion and indeterminate lacunae. I don't think anyone can seriously argue today that judges do not have a lot of discretion.

I was having a debate about Halacha and authority earlier, and encountered an interesting argument. I've always heard that the most authoritative Poskim are those who are "Kulo Torah," meaning people who are immersed in Torah 24/7 and not tainted by other modes of thought. For a while that argument struck me as inconsistent. If Halacha is just the application of already existing and immutable principles, then why do we care about the thought-process of the legal decisor? Either the answer is right or it is wrong and the resolution can be determined by anyone familiar with the facts and principles. So what does "Kulo Torah" have to do with anything?

So the answer seems to be that Halacha is more than just syllogisms; it involves balancing, weighing, and discretion. A person who is involved in the Halachic system is better able to determine what weight to grant specific issues and how to balance them properly. So it's the recognition of judicial discretion that explains why the Gedolim are better able to decide Halachic cases than someone who is influenced by secular society.

While this argument seems sound, it ignores a crucial element. Discretion is based on not just what one learns and how one thinks, but also what one experiences. The proper way to weigh the factors is to ascertain the value the Torah places on each factor, and come to a conclusion. While that makes sense, it does not acknowledge that balancing cannot be done without understanding how to the factors are relevant to the facts.

Basically the argument assumes that when the Halachic question cannot be solved by simply applying the law to the facts, the decisor has discretion. Say we have factor A and B. The Posek, via his Halachic thinking that is generated by decades of studying only Torah, will look at the factors and weigh them. The proper weight to impute to each factor is based on the texts and the Halachic corpus as a whole. That's why only someone who is really immersed in Torah, and only Torah, can really decide difficult and indeterminate Halachic questions.

But that argument ignores how experience relates to the facts. Say we have a case of a raped girl who wants an abortion. The Posek might weigh the value of the fetal life and the prohibitions against injuring oneself and wasting seed against the psychological harm to the girl. But no Posek in history can ever truly understand that harm because no Posek is a woman. He cannot understand what it means to be raped and how that affects women.

This problem is why Posner argues that the courts should be diverse, in order to reflect the varying experiences of the judges. While an individual judge might not have had the same experience of the litigants in a specific case, across the legal system enough judges will have similar experiences, so everything will even out.

But Halacha prohibits woman Rabbis. It does allow female experiences to influence the discretionary decisions of the Rabbinic judges. So how are those experiences integrated into the system?

To summarize this already too long post, we have two conceptions of a legal system (I'm oversimplifying, but if my dilemma is a result of that simplification, please let me know). One presumes that legal questions can be answered by applying law to facts. Who the judge is and how he views law is immaterial; a machine can come to the same conclusion. Under this view of law women judges are unnecessary but experiences don't matter. Under this conception any random posek can answer the question and we don't need someone who is "Kulo Torah."

On the other side we have a notion that law involves discretion and balancing. Under that view, we can understand why the Posek must be immersed in only Torah, since otherwise his discretion will be tainted by outside forces. But then how can we not allow the totality of experiences to be integrated into the law? How can we ignore the experiences of half our population?

This problem seems to be pretty acute. Any solutions?

Wednesday, May 16, 2007

Formalism, Hart-Fuller, and the NBA

Check out Michael Dorf's excellent posts (here and here) on the legal analysis used to suspend two Suns players. Very interesting.

Thursday, May 10, 2007

Morality and Halacha

Ok, how is that for a unique and interesting title? Yeah, this issue has come up in a variety of debates and topics and no one has a clear answer (or do they? Let me know if they do).

Yesterday I spent a few hours arguing with "Ed" on R' Harry Maryles' blog. Basically the conversation revolved around a number of issues, namely whether degrading Blacks for pedagogical purposes is a positive activity. Ed argued that children learn better from real world examples and since Blacks have an extremely high rate of drug use and out-of-wedlock children, there is no reason to not use them as an example. Basically, he tells his children, "don't be like those Shvartzes" when he wants to teach them a lesson (no, I am not making this up).

His argument hinges on the Chofez Chaim's argument that its permitted to denigrate evil people in order that others will not learn from their deeds. Since Blacks do bad things, we should tell our children not to act like that. I responded that not all Blacks are bad, and we shouldn't lump them all together. Moreover, it is important not to degrade people when other means are available to accomplish one's purpose.

Basically our argument seems to hinge on a disagreement about a fundamental premise. I believe that degrading people is bad even if Halacha does not prohibit it. Ed seems to believe that such degradation is, at the very least, morally neutral. Since teaching children life lessons is a positive activity, there's no reason to not use Blacks as examples of bad behavior. I, on the other hand, believe that denigration is only acceptable when used for an important end and the other means of getting there are not as efficient. In this case we can just use positive examples as what to do rather than negative examples of what not to do.

Now that I got that out, here's my issue: Halacha does not prohibit Loshon Hara about non-Jews. It, as far as I know, does not promote it either as a general rule. So there's a lacunae in Halacha. How do we fill that gap? Ideally we should use Halachic principles to fill the hole, but I don't really know if that's possible (frankly I'm not even sure what that means). Anytime we get to murky moral and ethical questions, the question is usually underdeterminate, meaning there's more than one correct answer. We generally answer the question based on our moral intuitions, which come from our environment, studies, and other sources.

So when I disagree with Ed, it's basically my intuition filling that gap. When Ed claims that telling Lashon Hara about non-Jews is an acceptable activity, it's his moral views coming into play.

This post wasn't really that well thought out, but I'm trying to figure out if moral intuitions have a role to play in non-Halachic questions. Personally I can't see how they don't.

Wednesday, May 09, 2007


Bill Simmons is right on the money. I was watching the Nets-Cavs game on Sunday and the announcers kept talking about how Lebron is the only superstar left in the playoff. One remembered Nash, but considered Lebron the only real superstar left.

I'm sitting there thinking, "Hello, Tim Duncan plays for the Spurs, and I'm pretty sure they're still in the playoffs." It's amazing how people overlook the player who is probably the best PF in league history; the guy who has been the best player on the planet since Shaq declined (maybe since Jordan). Can anyone imagine Duncan's team getting knocked out by a team like Golden State?

If you were building a team for one season and could pick anyone, who wouldn't pick Duncan?