Masorah: A Philosophical User’s Guide

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by Alex S. Ozar

Masorah: A Philosophical User’s Guide

The charge presented to me for this symposium was to discuss the concept of Masorah “from the perspective of philosophy.” At first I was skeptical: Is not the concept an inherently halakhic, historical, and theological one, such that would be more fruitfully engaged through a specifically halakhic, historical, or theological lens? But the problem, I came to think, was an opportunity in disguise – less an impediment than a challenge to be fruitfully met. Philosophy may well be at its best, not when proving eternal truths from universal premises, but in allowing those truths an individual or community holds dearest the critical reflection and refinement that those truths, as dearly held, justly demand. And when the meaning and import of those truths grow contested, when their mention begins to impede rather than nourish conversation, the virtues of cool, abstract, temporarily at-a-distance analysis become all the more vital. This essay, then, aims to take a step back and, leveraging the insights of modern academic philosophy, to think through what Masorah might mean, and what roles it might play, within our community’s unique form of life. The first (and most abstract) section wrestles with the problem of induction, the second with issues in interpretation, the third (and most direct) with communal and historical responsibility. Conclusions and contemporary applications are left to the reader, as is the judgment as to whether this essay meets the very standards it seeks to set out.

From Past to Future: Hume’s Problem

Suppose that from time immemorial philosophers have faithfully and with nary an exception composed their articles in Verdana font. The injunction is not, so far as today’s philosophers know, in itself the direct, positive legislation of any recognized sovereign; if they maintain allegiance to it, it is not because an authoritative someone said so. Nor is there, so far as we can see, any available rationale whereby the injunction’s continued normativity is entailed. (That is not to say that the Verdana practice enjoys no rational support, but only that any such rational support falls below the regnant threshold for the full-fledged justification of genre-specific font norms.) Can there nonetheless be some ground for resolving that I ought, at least presumptively, to uphold the typographical rites of my philosophical forbears? In what way(s) might these rites secure a normative grip on my agency, such that I ought to project past facts toward determinations of future practice?

Oliver Wendell Holmes put the case for the prosecution nicely: “It is revolting,” he writes, “to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” [1]Justice Oliver Wendell Holmes, “The Path of the Law” in Harvard Law Review 10:8 (1987), 469. But we needn’t embrace Holmes’ sardonic sentiments in order to engage the philosophical challenge his thesis transmits. For it points to a problem far more basic than the juridical force of antiquarian precedent: How is it that we infer, not only continued normative force, but anything prospective at all from facts about the past? This is the famous old riddle of induction, humanity’s awareness of which it owes first to David Hume. Bread, it will be agreed, has until now proven nourishing to the healthy human body, certainly more nourishing than asphalt. Say I am presented for lunch with a choice of bread or asphalt. By what lights can I (as I surely will) choose the bread as the better option? Bread has always proved nutritious, we might proffer. But this argument is analytically inadequate, Hume argues, in that the conclusion is not simply contained in the meaning of the premise: The appealed-to experience concerns “those precise objects only, and that precise period of time, which fell under its cognizance.” [2]David Hume, Enquiries Concerning Human Understanding and Concerning the Principles of Morals, eds. L.A. Selby-Bigge and P.H. Nidditch (Oxford: Oxford University Press, 1982), 33. And it is logically inadequate, he continues, in that there is no necessary connection between this fact and the desired conclusion: “It implies no contradiction that the course of nature may change, and that an object, seemingly like those which we have experienced, may be attended with different or contrary effects.” [3]Ibid, 35. In the technical sense, logical demonstrations are only considered valid when, if you assume the premises, the conclusion must follow, i.e. the conclusion’s not obtaining would involve a contradiction. (Strictly defined, a contradiction is constituted by the conjunction of a proposition with its negation. To say something of the form – the sky is blue and the sky is not blue – generally, that for some proposition P, P and not P – is, and is the only way, to utter a logical contradiction. But the propositions ‘bread has always proved nutritious’ and ‘bread will not in the future prove nutritious’ do not seem to be of this form – they do not bear the ‘p and not-p’ relation to each other.) Logically speaking, then, the fact that something has always been the case does not prove anything about the future.

Of course it is possible that one or both of the propositions as we’ve rendered them is simply disguised; perhaps, with suitable effort, some further propositions might be derived from them that afford the contradiction an appearance in the verbal register. To head off the search for such derivations at the pass, Hume recommends the following streamlined criterion for verifying non-contradiction: “Whatever is intelligible, and can be distinctly conceived, implies no contradiction.” [4]Ibid. Whatever is contradictory – a four-sided triangle, for instance – I, and arguably even God, cannot fully grasp, picture, imagine with any clarity, cannot hold all its specifications in mind at once. It follows that if I can clearly and distinctly perceive something, that thing is not contradictory. And indeed, Hume observes, “May I not clearly and distinctly conceive a body, falling from the clouds, and which, in all other respects, resembles snow, has yet the taste of salt or feeling of fire? Is there any more intelligible proposition than to affirm, that all the trees will flourish in December and January, and decay in May and June?” [5]Ibid.

He may, and there is not. Discontinuity of past and future is perfectly imaginable and hence perfectly coherent. And since all logical proof is taken as requiring appeal to the contradictory status of the would-be conclusion’s negation, Hume concludes that we are not led to expect the future’s conformity with the past “by any process of argument or ratiocination.” [6]Ibid, 39. Intriguingly it is not only the intellectually adept, but also the newborn child and feral squirrel, who succeed at translating prior experience into prospective forecast. How to explain that? Not, apparently, by straight appeal to contradiction, and surely, for the squirrel, not by way of arguments yet more abstruse. You must, therefore, “confess that it is not reasoning which engages us to suppose the past resembling future.” [7]Ibid.

(It is tempting to say that the reason I can trust that past regularities will hold going forward is that it has always worked that way. This kind of prediction has a first-rate track record: Every time I’ve inferred that the next slice of bread too will prove nutritious, that the sun will still tomorrow rise in the East, that the next time I leap I will again fall back to the earth, my prognostication has been spot on. Is that not good reason to think that I’m really rather good at past-regularities-based foresight, that my predictive capacities, having been put on extensive empirical trial, have emerged as duly certified? The problem is that this begs the question: To infer from experience-based predictions’ having been effective that experience-based predictions will be effective going forward is itself an experience-based prediction that is justified if and only if that which it predicts is true. Arguments from experience work if you assume that what has happened in the past will happen in the future, but that is precisely what we are questioning: “It is impossible, therefore, that any arguments from experience can prove this resemblance of the past to the future; since all these arguments are founded on the supposition of that resemblance.” [8]Ibid, 38. Experience, experimental evidence, the most rigorous scientific observation – the validity of all those is precisely what is at stake.)

Ought we, then, to reject experience as a guide to the future? Should we, rationally speaking, refrain from assuming that like sensible properties will be attended by like powers, that bread will nourish and fire will burn? Not, Hume says, if we are sane: “None but a fool or madman will ever pretend to dispute the authority of experience, or to reject that great guide of human life.” [9]Ibid, 36. The translation of prior experience into life-ordering predictions is decidedly non-optional for the sound of mind. As for the two supposedly unlinked propositions? “I shall allow,” Hume concedes, “that the one proposition may justly be inferred from the other.” That is, if bread has proved nourishing in the past, we may justly infer that it will prove nourishing in the future. But what is it for an inference pattern to be justly executed and yet without rational justification, for the deliverances of experience to be groundless and yet such that none but a fool or madman would dispute their authority?

Here some attention to jargon is necessary. In contemporary usage, ‘logic’ generally refers to any canon of rules governing the passage from a set of given premises to a set of possible conclusions. Deductive logic denotes the canon of rules for inferring, on pain of contradiction, when a conclusion does or does not necessarily follow from a set of premises – when it is and is not such that if the premises are true, the conclusion must be true. The simplest system requires only one inference-rule, called modus ponens: If P is true, and if it is true that if P then Q, then Q is true. Or,

   (1) P

   (2) If P then Q

Therefore,

   (3) Q

Note that it makes no difference whatsoever what P and Q are; whether they concern aardvarks or unicorns or landmines, all that matters is the relevant relations between them. Deductive logic concerns form, not matter. For illustration, consider the following conversation: You ask me, will you dance the good dance? Rather than answer directly, I reply that if it rains, then I will dance the good dance. Here P = ‘it rains’ and Q = ‘I will dance the good dance.’ Suppose then, it rains. Without any further information from me, and without understanding the first thing about rain or about dancing the good dance, if what I have said thus far is true, then by the rules of deductive logic you may validly conclude that I will indeed dance the good dance. This deduction is wholly invulnerable to critique: If I do not dance the good dance, it will always be the first premise, never the inference, that is falsified thereby. Mathematics, which proceeds from given axioms to show the ever-more remote conclusions that follow necessarily therefrom, is of course our chief exemplar of this mode of reasoning.

When Hume says that the inference from past to future cannot be grounded by “argument or ratiocination,” he means to say that the inference is not deductively valid – the conclusion that future bread will nourish, for instance, may conceivably be false, though the premise, that all hitherto observed bread has nourished, is unimpeachably true. Even if the conclusion turns out true, and future bread does nourish, it remains that it was not strictly necessitated by the truth of the premise, and so the inference was not justified by the canon of rules for deductive logic. Inductive generalization, the move from observing that hitherto observed X’s have had feature Q to concluding that all X’s have feature Q, is a far cry from the soothing sureties of mathematical method. But what of it? Must all reasoning be deductive reasoning? Readers of Hume often take him to have argued for the skeptical conclusion that induction is unjustifiable and hence irrational. More precise, however, is to say that he demonstrated that induction is not deductively justifiable. Or more plainly, that induction is not a species of deduction.

Why, for Hume, do we project the regularities of the past onto our expected future? If not deductive logic, what principle is it that determines us to form this conclusion? “The principle,” Hume explains, “is Custom.” [10]Ibid, 43. Expecting the future’s resemblance to the past is, from the moment we take our first breath, continually ingrained and retrenched in the very fabric of our minds. The more times we experience bread as nourishing, the more fully we are conditioned to believe that all bread, even bread yet to be conceived, is nourishing. This manner of learning is both sufficient and categorically necessary:

Custom, then, is the great guide of human life. It is that principle alone which renders our experience useful to us, and makes us expect, for the future, a similar train of events with those which have appeared in the past. Without the influence of custom, we should be entirely ignorant of every matter of fact beyond what is immediately present…We should never know how to adjust means to ends, or to employ our natural powers in the production of any effect. There would be an end at once of all action, as well as the chief part of speculation. [11]Ibid, 44-45.

The reason why we justly infer from past to future, why only a madman or fool would refuse the guidance of custom, is that it is through and only through such reasoning that we can make any sense of, and meaningfully act in, the world at all. But is this reliance justified? Well, to take Nelson Goodman’s response, “How do we justify a deduction?” [12]Nelson Goodman, Fact, Fiction, and Forecast (Cambridge: Harvard University Press, 1983), 63. Surely not by some standard more fundamental than deductive validity itself. For there is no such standard: If you reject deductive logic, you will simply find yourself in a world in which either nothing can be inferred from anything, or everything can be inferred from anything. It will be a world with four-sided triangles, where Socrates is an immortal man, where having eaten a doughnut may or may not imply that you ate a doughnut. Confronted with a full-fledged deductive-reasoning denier, then, we would have no argumentative basis on which to convert her back to normalcy, no manner of proof, other than simply to put on display the absurdity and patent unlivability of the alternative. Deductive logic is justified because it makes our world work – makes our world one in which we can meaningfully live and act. Or: It makes our world.

How, then, do we justify, not deductive reasoning in general but a given deduction? “Plainly, by showing that it conforms to the general rules of deductive inference.” [13]Ibid. The standards by which given deductions are measured are, and are necessarily, internal to deductive practice itself. Much the same way, it is simply a confusion a red herring, to demand that inductive logic present some received certification of rational license before it is allowed to pass through the checkpoint. The question, rather, is whether a proposed inference does or does not conform to the canons of inductive reasoning – whether induction lives up to its own standards. It is a matter of clarifying the ways in which induction can be executed rightly or wrongly: “We ask not how predictions come to be made, but how – granting they are made – they come to be sorted out as valid and invalid.” [14]Ibid, 87. Inductive practice is one of the vital, non-negotiable ways in which we meaningfully make our world. How well or poorly we go about that practice is what determines how well or poorly that world will turn out.

To return to our opening hypothetical: How might the fact that philosophers have, in the past, always written their articles in Verdana font bear on my prospective typographical decisions? What authority can custom hold over my agential future? The answer, we now see, will not arrive via deductive inference. No argument of the form

   (1) X has always been done in the past,

Therefore,

   (2) X will be done in the future

will ever be deductively valid. All the more so, arguments of the form

   (1) X has always been done in the past,

Therefore,

   (2) X should be done in the future

Will, by nature, never amount to what Hume calls a ‘demonstrative argument.’ [15]See Hume, 35. The prospective prescription simply does not, as a matter of mathematical logic, follow from the recorded facts of past comportment. But that, we have seen, is no decisive ground for rejecting the inference. Turning to the past for direction going forward is not, cannot be, a proof. But it can be, and often is, a vital way of making our world make sense, of rendering meaningful our lives, decisions, and destinies in that world. It is through, and only through, embracing the guiding contours of custom that our world, and our lives therein, take shape. “As an agent,” Hume says, “I am quite satisfied in the point.” [16]Ibid, 38.

Purpose, Community, and How Precedent Guides

Accepting that the appeal to custom needs no license external to its critical world-making function, we have not so much as begun to investigate what might make such appeals better or worse – what distinguishes those forms of normative induction which make our world well. Examples of obviously poor inductive practice are a dime a dozen. Say, for instance, I observe that for thousands of years prior, the most exemplary members of my community did not brush their teeth. Should I abstain as well? Or say I delight in a sumptuous tangerine on Wednesday. May I justly infer that all child’s-fist-sized orange globes are likewise delightful, or that all food is sumptuous if consumed on a Wednesday? These conclusions are obviously absurd. Less obvious, however, is why.

The question is a ubiquitous one in legal theory, for, in Edward Levi’s classic formulation, “The basic pattern of legal reasoning is reasoning by example.” [17]Edward H. Levi, An Introduction to Legal Reasoning, (Chicago: University of Chicago Press, 1949), 1. Or, in the Talmud’s classic formulation, “The entire Torah is to be analogized from.” [18]Bava Batra, 130b. That legal reasoning characteristically proceeds by way of comparison to exemplars is clearest in the practice of case law, where a court’s having ruled that such and such be done in one case is sufficient ground for concluding that such and such ought likewise to be done in a further but similar case. But since no two cases can be exactly alike, how does a court ascertain whether the conditions of the present case adequately approximate the original? Legal theorists have been drawn in answering this question to the invention of distinct, hitherto unrecognized forms of logic purportedly unique to legal practice. Analogical reasoning, for instance, is said to constitute, in the context of adjudication, a sui generis, legitimate-unto-itself form of rationality fundamentally irreducible to any one or combination of other inference-structures. [19]See Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument, (New York: Cambridge University Press, 2005). Others point to ‘abductive’ reasoning – the method, prevalent in science, as well as various everyday contexts, of inference to the best explanation – as the true ground of reasoning from case to case. I am inclined to describe the process of analogy as consisting of, in words legal philosopher Lloyd Weinreb intends as caricature, “A deductive inference, preceded, perhaps, by an inductive step to frame the general rule on which the inference depends.” [20]Ibid, 108. When a judge considers a prior decision, she infers, inductively, that in cases of like form to the original, the ruling is too to be that of the original – since the ruling in this case X was Y, rulings in all cases of X ought to be Y. The application of the ruling to the present case then follows deductively by way of a syllogism: (1) The ruling in all cases of X ought to be Y; (2) this is a case of X; therefore, (3) the ruling in this case ought to be Y.

It is not only case law, but as Hart argued, statutory interpretation as well, that rests on inductive reasoning. Even the most assiduously detailed, precisely articulated statute will leave some fuzziness, what Hart calls ‘open texture,’ around the edges. The problems arise when we come to apply the statute, a formulated general rule, to specific cases: “Particular fact-situations do not await us already marked off from each other, and labeled as instances of the general rule, the application of which is in question; nor can the rule itself step forward to claim its own instances…there is a limit, inherent in the nature of language, to the guidance which general language can provide.” [21]H.L.A. Hart, The Concept of Law, (New York: Oxford University Press, 1997), 126. Suppose a rule states, quite plainly, that no vehicles are to be allowed in the park. Certainly this will include eighteen-wheeler trucks and military-grade SUV’s, but what about skateboards, bicycles, and scooters? What about a wheelchair? What about a war memorial featuring a retired tank? These questions cannot be settled deductively without further premises. To secure those premises, and thus to resolve the indeterminacy, we draw from the given statutory data an inductive inference to the effect that the stated rule applies to all cases of X type, for instance, cases of motorized vehicles, or motorized vehicles with over 100 horsepower. From there, again, the deduction to the specific case goes smoothly.

But just how is it that we conclude that the precedent case was, or the statute refers to, specifically a case of X? After all, any actual case involves an infinity of details to potentially latch on to, and any statutory formulation is in principle widely indeterminate between a host of possible interpretations. So, if the precedent case involved a tangerine, how do we come to know that the ruling is not to apply to all child’s-fist-sized orange globes? Both specifications represent similarities, but only one, we reason, is a salient one. In Talmudic idiom, the question is how to tell when case-law specifications are to be deemed essential and when we instead say simply that “the rabbis spoke as regards the present” (dibru hakhamim be-hoveh) – that is, the specification concerned an incidental fact of the case, not one to be projected in the inductive generalization. [22]See for example Shabbat 66b, Eruvin 16b, Yevamot 116b. In Anglo-American law the distinction is between the essential ‘ratio descendi’ and the incidental ‘obiter dicta’ of a court decision. How do we go about distinguishing what is essential, what determines relevant similarity, from what is not?

The answer, according to Hart, is that for a legal rule “the criteria of relevance and closeness of resemblance depend on many complex factors running through the legal system and on the aims or purpose which may be attributed to the rule.” [23]Hart, The Concept of Law, 127. The reason we might conclude that case-law rulings involving tangerines should apply to say, citrus fruits, and not to orange globes, or fruit, more broadly, is that the legal system to which this case law belongs has a propensity for citrus-fruit regulation, and because the explicit or implied aim and purpose of the ruling make sense with regard to citrus fruits but not orange globes. Which similarities are and are not justly salient is determined not by demonstrative proof but by reference to the ends the thus-determined rule is meant to serve – the purposes the rule expressively embodies. It is again a question of what our project is, of what kind of world we are trying to make. What guidance precedent offers us comes by way of its speaking to aims that remain, or can become, our own.

Of course the very notion of following a rule at all, however purposive, is not without philosophical complexity. In a skeptical maneuver reminiscent of Hume’s, Wittgenstein argues that no rule, not even so simple and certain a principle as everyday addition, can ever in and of itself provide prospective guidance. [24]See, for instance, Ludwig Wittgenstein, Philosophical Investigations, transl. G.E.M. Anscombe (Englewood Cliffs: Prentice Hall, 1958), 82. Wittgenstein is here as always notoriously difficult to … Continue reading This is a bizarre and profoundly counter-intuitive thesis, but bear with the argument for a moment. Suppose that I have in the past performed the addition function – I’ve added 3 and 5 and got 8, 24 and 68 and gotten 92, and so on. Suppose I come now to some new numerical pair, let’s say 68 and 57, for which I have never explicitly computed the addition function. Surely I will say that 68 + 57 = 125? Not necessarily, says Wittgenstein. Now it is not arithmetic itself which is in question – arithmetic is certain if anything is – nor in the first place is the question about what I mean by ‘addition’ presently. What is questioned is what meaning I have in fact, in the past, attached to the terms ‘addition,’ ‘plus,’ and the sign ‘+.’ Who is to say that by ‘plus’ I have not always meant ‘quus,’ where quus refers to the function matching all my previous computations and specifying that 68 + 57 = 5? This interpretation is, by hypothesis, consistent with my past practice – recall that I have never computed 68 + 57 otherwise. And it turns out that it is remarkably difficult – Wittgenstein would say impossible – to identify any mark in my past usage that rules this, or any other bizarre interpretation of the addition rule, out. Finally, it emerges that there simply is no way for me, other than simply listing the “right” answers to the infinity of possible addition computations, to set out an infallible rule for what I mean by addition.

What follows is that “If one person is considered in isolation, the notion of a rule as guiding the person who adopts it can have no substantive content.” [25]Kripke, 89. This is because the individual, presented with a new case, has no way of distinguishing between what is really “right” and what she merely, presently thinks she ought to do. To get beyond subjective whim, Wittgenstein argues, requires accountability to a community. It is because and insofar as others in my community – say, the local grocery checkout attendants – insist on regarding any mention of 68 + 57 = 5 as deviant, and because and insofar as I heed their insistence, that rule-governed addition is possible. “What has to be accepted, the given” are not rules and principles, but rather, “so one could say, forms of life.[26]Ludwig Wittgenstein, Philosophical Investigations, transl. G.E.M. Anscombe (Englewood Cliffs: Prentice Hall, 1958), 226. It is through and only through our embeddedness within a community, and that community’s continuing fidelity to a specific form of life, that the facts of past precedent – rules, customs, examples – can provide real guidance.

An intriguing consequence of all this, it is worth noting, is that mere third-personal acquaintance with the rules is not enough for faithful interpretation: it will of necessity be only those who truly and deeply feel the pulse of the community’s form of life, who achieve a view not only of the individual norms but the whole in which those norms are integrally embedded, who will adequately project traditional practice into the future. “It is the possession and transmission of this kind of ability,” Alasdaire MacIntyre says, “to recognize in the past what is and what is not a guide to the future which is at the core of any adequately embodied tradition.” [27]Alasdaire MacIntyre, Three Rival Versions of Moral Enquiry: Encyclopaedia, Genealogy, and Tradition (Notre Dame: University of Notre Dame Press, 1990),  128. To acquire this ability is to learn not only information but a craft, and to be “initiated into a craft is to be adequately initiated into a tradition.” [28]See ibid. But of course, just who those initiates are, just what qualities it takes to qualify an authoritative interpreter of communal tradition, will of necessity be itself determined by nothing other than the concerned community and the world it makes. Why, according to the Rambam, are the rabbis of the Talmud Bavli authoritative? Because the people made a world that made them so. [29]See Rambam, introduction to Mishneh Torah. For helpful discussion, see Michael S. Berger, Rabbinic Authority (New York: Oxford University Press, 1998), 101-113.

The meaningfulness of the guidance of precedent, then, requires that the ends and purposes of the statute, custom, or exemplar are the same, or continuous with, the ends and purposes of the community’s interpretive practice as embedded in its present form of life. But what guarantees that continuity? What recommends it? Who is to say that our ends are not, or perhaps should not be, their ends? Such shifts in purpose can come about through no fault of the precedent’s. As revolting as it is to “have no better reason for a rule of law than that so it was laid down by Henry IV,” Justice Holmes adds, “It is still more revolting if the grounds upon which it was laid down have vanished long since.” [30]Holmes, “Path of the Law,” 469. But then that is a special, or extreme, case. For even where the original grounds have not gone from the earth, the question persists: What claim can intentions long gone assert in shaping our projects, in making our world?

Community, Narrative, Responsibility

We have no choice but to engage the past, Hume shows, if we hope to make any sense at all of our living toward the future. We have to write ourselves into a story, and that story cannot be just now starting. To engage what came before well – to engage it meaningfully – we have no choice but to adopt some set of ends and intentions as are own. It is our choice, however, which ends those are to be. How we choose will depend on what story we want to tell, what kind of world we hope to make.

The most basic philosophical enigma of legal practice in America regards its relation to its most prominent and preeminent feature: the Constitution. From whence can such a document derive its continuing authority? From the will of the people, you will say. But consider the following scenario: The Constitution requires for its own amendment a 2/3 majority of the people’s representatives in each house of congress, or else majority vote of the state-level legislatures or conventions in 3/4 of the then-existing states. Now suppose a simple majority of the American populace determines to void or supersede one of the Constitutions provisions. Would not the will of the people, then, be that the provision be struck down? And yet the Constitution, and the elect few who interpret, apply, and enforce it, will say no. It is not only amendments: While this was a non-inevitable development, since Marbury v Madison the Supreme Court has claimed the authority to void democratically enacted legislation on constitutional grounds. Again, it is the will of the people against the constitution. On what grounds could the Constitution justly prevail? If you say it is because the people consented to the constitution, it is not obvious why the people should not maintain the right to withdraw their consent. Still more basically, the actual persons who ratified the constitution are now long gone, and as Abravanel says of the legal relation between God and Israel, “Were this covenant like one made between two friends…this great insoluble problem would obtain – namely, how can sons not yet existing be obligated by it?” [31]Abravanel to Devarim 29. Translation is taken from The Jewish Political Tradition, eds. Michael Walzer, Menachem Lorberbaum, Noam J. Zohar, Yair Lorberbaum (New Haven: Yale University Press, 2000), … Continue reading What, then, can lend something like the Constitution its continually inviolable, counter-majoritarian authority?

It is important that the problem does not dissipate even where Constitutional supremacy is taken for granted. This is because how we interpret the Constitution – and we must always interpret – will depend in large part on how we conceive its authority. Insofar as consent is the privileged ground of that authority, it will follow that, of the Constitution’s possible meanings, it is that one meaning which actually won consent, and therefore the original intent, that carries the day. [32]See Robert Post, “Theories of Constitutional Interpretation” in Representations 30 (1990), 21-23. But where the original intent is seen as having too-pointedly lost its relevancy, continued commitment to the Constitution may more openly take the form of a response to aims and purposes, to ethos. Here the argument dovetails with a reply to the counter-majoritarian difficulty: What the Constitution means, insofar as it is binding for us in the present, is on this view determined not only by the ink-on-parchment but also by what the Constitution is trying to do, what values and visions it aims to realize. It is because we engage the founding text on the level of purpose, ethos, and destiny that we can, in principle, meaningfully sustain our pledge of fidelity to it. The historical facts of the framer’s intent can secure a normative grip on us because we can see the framer’s ends as our own, because we are, fundamentally, telling the same story, making the same world.

But of course sometimes we may not be, or may not wish to be, telling the same story as our forebears. Robert Cover, in his influential Nomos and Narrative, points to the competing schools of abolitionist thought in early 1800’s America. On the one hand there were the radical Garrisonian abolitionists, who took the view that slavery was native, and essential, to the United States Constitution itself. The only way to redress the evil, in that case, was to tear the whole thing down and start over: “The fault,” Wendell Phillips said, “is in allowing such a Constitution to live an hour.” [33]Wendell Phillips, “Speech at Faneuil Hall, Boston (Oct 30, 1842). Quoted in Cover, Nomos and Narrative, 35. According to Frederick Douglas, this was a view he initially came quite naturally to share. Over time, however, he evolved toward a far more “connected” [34]See Michael Walzer, The Company of Critics, (New York: Basic Books, 1988). form of criticism, one that aimed to redeem rather than replace the status quo. He was, through careful and extensive study, conducted to the conclusion that the Constitution of the United States – inaugurated to ‘form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty’ – could not well have been designed at the same time to maintain a system of rapine and murder like slavery.

Douglass succeeded in persuading (the Garrisonian’s would say deluding) himself that the story of the Constitution, tragic plot twists notwithstanding, most truly is one of justice and liberty for all. Douglass, therefore, could read and relate to the Constitution as someone who shared its fundamental aims, who sought in common purpose to make the same world.

Of particular interest is the explanation Douglass gives as to how he got turned onto this path of study in the first place: “But for the responsibility of conducting a public journal…and the necessity imposed upon me of meeting opposite views from abolitionists outside of New England, I should in all probability have remained firm in my disunion views. My new circumstances compelled me to rethink the whole subject.” [35]Frederick Douglass, Life and Times of Frederick Douglass, ed. R. Logan (New York: Collier Books, 1967), 261-62. While the tear-it-all-down approach suited his private life amongst the likeminded just fine, taking on the charge and responsibility of public discourse, where contrasting views command a hearing and engaged response, pushed Douglass toward the redemptive understanding. Grounding his dissent in a robust commitment to and love for the Constitution – an embrace of the de facto national narrative – afforded Douglass an avenue for constructive communication across sides, for participation in, rather than rejection of, the civic community he hoped to transform for the better. In light of this responsibility, the Garrisonian, perfectionist view “seemed, to the constitutionalists, an abdication.” [36]Cover, 38. Douglass and his allies were no conservatives, and they certainly had no interest in maintaining the status quo. But precisely on account of their continued devotion to the shared national narrative, their critique of the nation’s failures in living up to its own ideals was all the more radical, meaningful, and in the end, impactful. “To share in the rationality of a craft requires sharing in the contingencies of its history, understanding its story as one’s own, and finding a place for oneself as a character in the enacted dramatic narrative which is that story so far.” [37]MacIntyre, Three Rival Versions of Moral Enquiry, 65. Douglass found a place for himself as a character in America’s dramatic narrative, and it was thereby that he won a voice in the craft of furthering that story.

That is not to settle, of course, whether the Garrisonians or the constitutionalists were ultimately right. Some traditions reach a point of rot beyond rescue or repair; some are rotten to the core. And sometimes, as with a totaled car, you may simply be better off springing for a new ride. The revolution-rather-than-repair, anti-traditionalist, tear-it-all-down-to-start-anew ethic is in fact a founding and essential engine of the Jewish tradition. For when it came time for Avraham to forge a covenantal life with the one true God, he did not, so far as we know, conduct a public journal engaging the opposition, and he did not seek a way of responsibly articulating his critique of Mesopotamian religious culture on the ground of shared heritage and purpose. [38]Or perhaps he did, saw the futility of that route, and elected the more radical course history remembers him for.  The Jews, judging by their founding acts, are the people of smashing one’s father’s gods, of defying the local government, of spurning one’s community, and of moving as far as possible from one’s roots. They are a nation of radical revolution, rebuffing their history and purging all ties to their heritage in pursuit of a privileged vision only they, and not their predecessors, can see. Tradition, for the Jew, is no warrant for a rotten cause. That, at least, is the Jewish tradition.

The point, then, is not that siding with the common narrative is always right, but rather that breaking with such stories has characteristic costs and consequences that must be weighed against the hoped-for benefits. Leaving all you’ve ever known in setting a solitary course into the wilderness with no destination is no walk in the park: A new path, new community, new culture and customs, new language, new tradition, a new life, and when conflicts and crises inevitably arise, new ways of negotiation, compromise, and at times, exclusion – all these must be fashioned from the ground up with no manual, blueprint, or guiding light. History proves that revolutions can succeed, but that quite often they do not, and that is no accident. Making new worlds out of nothing is the province of God –. For the finite, as we have seen, faithfulness to communal forms of life sustained in time is always already to some degree presupposed by any forward-looking rationality. Humility before the authority of the given – ‘piety’ in Jeffery Stout’s sense of a “just or appropriate response to the sources of one’s existence and progress through life” [39]Jeffrey Stout, Democracy and Tradition, (Princeton: Princeton University Press, 2004), 20.  – subtends all efforts at spontaneous creative autonomy. That is not to say that there can be no revolutions, but that revolutions are necessarily partial, and necessarily, colossally hard. A healthy share of traditional fidelity, even for those seeking change, remains therefore a desideratum, and its embrace a cardinal virtue.

Beyond the question of the revolutionary faction’s success or failure is that of those the revolution necessarily leaves behind. When the choice is made to cut ties with the established tradition, to begin anew rather than renew the old, the denizens of the previous regime must either convert or else submit to a fate of exclusionary separation. If the future is all and only the new way, it is naturally the new way or the highway. Responsibility to the community as a whole, on the other hand, dictates conscientious engagement with the realities of traditional commitments and concerned recognition of those as yet unpersuaded by the new. Like Moshe refusing God’s offer to supersede the people of Israel on account of its sins, the redemptive rather than revolutionary reformer prefers the muddled whole of the community-that-is over the glittering but ultimately hollow prospect of a solitary perfection to-be. Douglass, forced by circumstance to give the opposition a fair hearing, chose the path of inclusion in seeking not the replacement, but the radical restoration of his nation’s founding values, values to which all could pledge allegiance even as they so bitterly disputed their true import. And in the end, though both sought the very same end, it was not the anti-Constitutionalists, but those who spoke and fought in the language of tradition who succeeded in effectively transforming the nation.   That is hardly a necessary or universal outcome, but it well-illustrates the value to be gained through sustaining, and the cost to be paid for relinquishing, active fidelity to a community’s traditions and shared narratives.

Equal and opposite to the responsibility of the vanguard is that of the broader society in meeting the charge for reform. Just as those seeking change, insofar as they want to transform this tradition, must speak to the tradition’s foundational values, the opposition must, insofar as it wants to preserve this tradition, actively reinforce the ground of heritage uniting them all. They can read the new as absolutely antithetical to, rather than redemptive of, the old, but that is to foreclose reciprocal communication, comprehension, and commonality moving forward. Sometimes categorical rejection is the safest, most economical route; sometimes, when the stakes are high and the resources thin, it is the only viable choice if the tradition is to survive at all. But there is a cost, a price to be paid for winning stability through exclusion. In a sense the highest price, short of its whole self, for it is the continued identity of the tradition as traditionally constituted that is at stake.

In 1983, the US Supreme Court upheld as constitutional the determination of the IRS denying tax-exempt status to Bob Jones University on account of the latter’s admissions policies discriminating against those who engaged in or advocated in favor of interracial marriage. In Cover’s retelling, while the decision served its immediate function, it fell far short of what it could have achieved. In what had the potential to be a defining redemptive moment, an opportunity to advance and solicit commitment to a renewed vision of communal meaning, the Court effectively hid behind the narrowly procedural question regarding the constitutionality of a specific IRS policy. It openly ducked addressing whether tax-exempt status for a racially discriminatory school could be constitutional if, say, granted by Congress. [40]Bob Jones Univ., 103 S. Ct. at 2035. See Cover, 66. Most basically, the Court failed to articulate to the affected communities what was really at stake, to responsibly engage them with respect not just to procedure but to principle. [41]“It is a case in which authority is vindicated without the expression of judicial commitment to the principle that is embodied in constitutional decision” (ibid).        The decision was “weak,” in that “The Court assumes a position that places nothing at risk and from which the Court makes no interpretive gesture at all, save the quintessential gesture to the jurisdictional canons.” [42]Cover, “Nomos and Narrative,” 66 The justices were “unwilling to venture commitment of themselves, to make a firm promise and to project their understanding of the law onto the future.” [43]Ibid, 67. This is, fundamentally, a failure of responsibility.

But for Cover, it is important that the Court’s failure was mirrored by a reciprocal abdication on the other side. Responding to governmental pressure, Bob Jones University hardly stood up for what it believed. Passing up the unique opportunity to articulate its racist vision to the nation, to advance and solicit commitment for its understanding of the right constitutional order, it too hid behind the narrow question of procedure. “It may be that the whole show in Bob Jones University was built on shoddy commitments, fake interpretations. Bob Jones University seemed uncommitted and lackadaisical in its racist interpretation – unwilling to put much on the line.” [44]Ibid. Responsibility to the world of normative meaning, and to those vested in disagreement about that world, demands that advocacy engage forthrightly with what is really at stake: the meanings, aims, and narratives with which we hope to make our world together. The benefits of clarity for effective discourse are obvious, but that is not all. To be open and upfront about one’s defining commitments in face of challenge and conflict is to put oneself on the line, and it is only with people willing to put themselves on the line that we can have a real, lasting, and potent community of meaning at all.

Conclusion

Have we resolved once and for all the questions as to the prospective normative force of past precedent? Have we justified its basis, detailed its function, or identified the necessary and sufficient conditions under which it obtains? Clearly not. But it has been precisely the aim of this essay to show that it is in the very nature of the phenomenon to elude the solid sureties of mathematical deduction and demonstration. Masorah is not a scientific concept, but an ethical one – it concerns not only facts but also values, not only reason but also will. It concerns the meanings, narratives, and purposes that have and continue to shape our community’s form of life. It concerns the hopes and dreams that animate our commitment to making and remaking our world. And it is that commitment which commands and rightly guides our continuing fidelity to masorah.

Max Scheler claimed that over and beyond the scientific conception of time as a continuous, unidirectional flux – an understanding of time well-suited for inanimate nature – there is another more dynamic, personal, fuller sense of time, a time that is irreducibly ours:  “There are present to us in the experience of every one of our indivisible, temporal moments of life the structure and idea of the entirety of our life and personal Selfhood.” Each one of those moments contains within itself the whole past, present, and future of our lives. “It is by virtue of this wonderful fact,” Scheler says, that “the sense and worth of the whole of our life still come, at every moment of our life, within the scope of our freedom and action.” The past remains, so long as we breathe, an open book. This is indeed a wonderful, freeing opportunity, but it is also a responsibility: “The whole of the past, at least with respect to its significance, never ceases to present us with the problem of what we are going to make of it.” [45]Max Scheler, On the Eternal in Man, transl. Bernard Noble (Hamden: Harper and Row, 1972), 40. [Italics in original.] For our community’s classic application of these ideas, see Rabbi Joseph B. … Continue reading And so in conclusion, with respect to our masorah, I ask: What are we going to make of it?

 

Alex S. Ozar is a PhD student in philosophy of religion at Yale University and serves on the faculty of Bi-Cultural Day School in Stamford, CT. He was ordained at Yeshiva University and his writing has appeared in Tradition, Torah U-Madda Journal (forthcoming), Harvard Theological Review, Journal of Religious Ethics, and First Things magazine.

 
The next installment in this symposium will appear Tuesday night, May 24. See previous installments here: link

 

Endnotes

1Justice Oliver Wendell Holmes, “The Path of the Law” in Harvard Law Review 10:8 (1987), 469.
2David Hume, Enquiries Concerning Human Understanding and Concerning the Principles of Morals, eds. L.A. Selby-Bigge and P.H. Nidditch (Oxford: Oxford University Press, 1982), 33.
3Ibid, 35.
4, 5, 7, 13, 44Ibid.
6Ibid, 39.
8, 16Ibid, 38.
9Ibid, 36.
10Ibid, 43.
11Ibid, 44-45.
12Nelson Goodman, Fact, Fiction, and Forecast (Cambridge: Harvard University Press, 1983), 63.
14Ibid, 87.
15See Hume, 35.
17Edward H. Levi, An Introduction to Legal Reasoning, (Chicago: University of Chicago Press, 1949), 1.
18Bava Batra, 130b.
19See Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument, (New York: Cambridge University Press, 2005).
20Ibid, 108.
21H.L.A. Hart, The Concept of Law, (New York: Oxford University Press, 1997), 126.
22See for example Shabbat 66b, Eruvin 16b, Yevamot 116b.
23Hart, The Concept of Law, 127.
24See, for instance, Ludwig Wittgenstein, Philosophical Investigations, transl. G.E.M. Anscombe (Englewood Cliffs: Prentice Hall, 1958), 82. Wittgenstein is here as always notoriously difficult to interpret unequivocally; I simply follow the noted reconstruction provided by Saul Kripke. See Saul A. Kripke, Wittgenstein On Rules and Private Language: An Elementary Exposition, (Cambridge: Harvard University Press, 1982). 
25Kripke, 89.
26Ludwig Wittgenstein, Philosophical Investigations, transl. G.E.M. Anscombe (Englewood Cliffs: Prentice Hall, 1958), 226.
27Alasdaire MacIntyre, Three Rival Versions of Moral Enquiry: Encyclopaedia, Genealogy, and Tradition (Notre Dame: University of Notre Dame Press, 1990),  128.
28See ibid.
29See Rambam, introduction to Mishneh Torah. For helpful discussion, see Michael S. Berger, Rabbinic Authority (New York: Oxford University Press, 1998), 101-113.
30Holmes, “Path of the Law,” 469.
31Abravanel to Devarim 29. Translation is taken from The Jewish Political Tradition, eds. Michael Walzer, Menachem Lorberbaum, Noam J. Zohar, Yair Lorberbaum (New Haven: Yale University Press, 2000), 40.
32See Robert Post, “Theories of Constitutional Interpretation” in Representations 30 (1990), 21-23.
33Wendell Phillips, “Speech at Faneuil Hall, Boston (Oct 30, 1842). Quoted in Cover, Nomos and Narrative, 35.
34See Michael Walzer, The Company of Critics, (New York: Basic Books, 1988).
35Frederick Douglass, Life and Times of Frederick Douglass, ed. R. Logan (New York: Collier Books, 1967), 261-62.
36Cover, 38.
37MacIntyre, Three Rival Versions of Moral Enquiry, 65.
38Or perhaps he did, saw the futility of that route, and elected the more radical course history remembers him for. 
39Jeffrey Stout, Democracy and Tradition, (Princeton: Princeton University Press, 2004), 20. 
40Bob Jones Univ., 103 S. Ct. at 2035. See Cover, 66.
41“It is a case in which authority is vindicated without the expression of judicial commitment to the principle that is embodied in constitutional decision” (ibid).       
42Cover, “Nomos and Narrative,” 66
43Ibid, 67.
45Max Scheler, On the Eternal in Man, transl. Bernard Noble (Hamden: Harper and Row, 1972), 40. [Italics in original.] For our community’s classic application of these ideas, see Rabbi Joseph B. Soloveitchik, Halakhic Man, transl. Lawrence Kaplan (Philadelphia: Jewish Publication Society, 1983), 110-117.

About Alex Ozar

Rabbi Alex Ozar is a PhD student in philosophy of religion at Yale University. His writing has appeared, or will be appearing, in Tradition, Torah U-Madda Journal, Harvard Theological Review, Journal of Religious Ethics, and First Things magazine.

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