Sunday, January 14, 2007

The Tucker Teshuvah

or Theology and CJLS Politics


In my last post on the CJLS teshuvot on homosexuality, I tried to show that the Jewish legal tradition, rigidly conceived, does not reflect a hierarchy of sexual values with which many contemporary committed Jews can identify.

Fleurdelis28 had an excellent response, but Blogger was being a meanie that day, so she sent it to me by e-mail. Here's a snippet:
[A]ll those nice values we want to call Jewish may be much more evident in the narrative of the Bible than in its laws themselves. In spite of a radically different social context, there seem to be a lot of couples who do substantially love and respect each other, and when they aren't honest with each other, things don't go so well. . . .Avraham's and Yaakov's situations illustrate nicely why polygamy, though acceptable, is not such a great arrangement emotionally (even when it was your wife's idea in the first place). . . .Whatever you think is going on in the Song of Songs, it's clearly not about the relationship you'd expect from the worldview of the laws stated in the Torah. I don't have the time at the moment to go poring over the rest of the Tanach -- granted, a rather heterogenous narrative -- but I think by and large things go better for the sort of couples that do behave in accordance with those values you cite.
Yes, the Bible is quite heterogenous, but fleurdelis28 makes an important point: Biblical narratives often temper, or even undermine, the apparent thrust of biblical legislation. This is true of the rabbinic tradition as well, which consists not only of legal texts, but also of aggadah (narrative). And in fact, this very issue -- the often fraught relationship between Jewish law and Jewish narrative, including the narrative that modern Jews continue to live and create -- is one of the centerpieces of Gordon Tucker's argument for the normalization of Jewish gays and lesbians.

Fundamental to Tucker's teshuvah is the premise that the Torah is not the infallible word of God. He writes:
The deeper consequence of our theology, is that the Torah (and a foriori subsequent expressions of religious law) is not a record of commanding utterances from God, but rather a record of the religious quests of a people, and of their understanding of how God's will commands them. The long-standing -- and understandable -- tendency to divide up religious literature into halakhah (law) and aggadah (narrative) has thus always been a mistake. The law is given cogency and support by the ongoing story of the community that seeks to live by the law. . . . The ongoing, developing religious life of a community includes not only the work of its legalists, but also its experiences, its intuitions, and the ways in which stories move it. This ongoing religious life must therefore have a role in the development of its norms, else the legal obligations of the community will become dangerously detached from its theological commitments. (P. 19; emphasis in original)
My sentiments are with Rabbi Tucker, but I wonder whether the "enhanced" Halakhic* system that he advocates can practically be put into effect. Can we maintain a commitment to halakhic precedent on a daily basis while making exceptions when our consciences demand that we do so? Even if this is possible on an individual basis, is it really possible on a communal basis? And if so, what is to be the role of the CJLS in this process?

This brings me to an interesting point regarding CJLS politics. While Gordon Tucker is not the first to advocate this sort of reimagined halakhic system, he is, as far as I know, the first to do so in the context of the CJLS. Apparently uncertain what to do with his unconventional teshuvah, the members of the CJLS labeled it a takkanah (which I usually translate "rabbinic injunction," but perhaps "amendment" is more appropriate in this context). According to the CJLS's recently relaxed rules regarding takkanot, a majority of votes (13) is required in order for a takkanah to pass, as opposed to the six votes required for an ordinary teshuvah. (From what I've observed, there are normally a large number of abstentions.) The Tucker paper received seven votes in favor, which means that it failed to earn CJLS approval only because of its takkanah status. Unsurprisingly, Rabbi Tucker argued against the paper being considered a takkanah, maintaining that historically, the term was reserved for legal innovations that derived their authority from that of a particular Rabbi. This teshuvah, in contrast, "does not seek any extraordinary authority [nor does it] seek to create an unchallengeable innovation" (p. 3). Notwithstanding the semantic point, I think that the members of the CJLS were correct in recognizing that the teshuvah does demand something extraordinary, namely, to alter the parameters of halakhic discourse in such a way as to change the very role of the CJLS as a judicial body (even if it does operate in a merely advisory capacity). In effect, this paper is neither a traditional teshuvah nor a takkanah, but a recommendation for changing the entire system by which teshuvot are written. It hardly seems self-evident to me that such a document should require a mere six votes to pass.

That said, the approach to halakhah advocated in this essay is closer to my own ideas about Judaism than the more traditional approach of Joel Roth,** and I daresay that the same is true of a large proportion of Conservative rabbis, not to mention laypeople. Perhaps it should be given more of a voice in the CJLS.

* Tucker recommends using a capital "H" when referring to this more expansive type of Halakhah (p. 20). I am finding this a bit difficult to get used to, since a Reconstructionist rabbi I admire refers to a similar phenomenon as "halakhah with a small 'h'."

**See pp. 28-31 of the Roth Teshuvah for a critique of Tucker's approach.

12 comments:

Mar Gavriel said...

Here's my problem with this Tuckerian view of "enhanced Halakhah":

Texts such as Genesis, or the Canticle, or later literature associated with them, are definitely part of the Jewish symbol-system. They get incorporated into aggadto, into liturgical piyyut, into rabbinic sermonification. However, they are not coherent prescriptive guides to a Jewish lifestyle, or for that matter, coherent anything. We have a halakhic system in order to create a restraining structure to Judaism, which prevents it from going too far off course. (Off course from what, you might ask. Off course from, well, Judaism as it has existed for years.)

Extra-halakhic literature can certainly fill in the gaps: read piyyutim based on Genesis, inserted into a standard rabbinic-structured Tefillo; read the Canticle in the context of a relationship endorsed by halokho; read Gersonidean philosophy at your kosher Shabbos-table. But to allow these texts to be replacements for the structure, even for bits of the structure, can only lead to anarchy.

The halakhic system, as described in Rabbi Roth’s book The Halakhic System: A Systemic Analysis, is a coherent, relatively clear system of restraint. Once one accepts this restraint, it can actually free one up in one’s theological/symbological choices, because one knows that one’s choices will remain within Jewish parameters. In Tucker's system, if one should want to remain cognitively "Jewish", one would need to be very careful with each theological/symbological decision that one not be overstepping the bounds; I'm not sure this is even a possible task.

On the morning of Shabbath Hôl Hammô`êdh Sukkôth, or Shemini `Atzereth, I leyn the Meghillo of Qôheleth. This is a book that present an angle on life that is quite different from that of the Halakhic System. It certainly doesn’t seem to present a world in which God commands and we listen. (Yesyesyes, I know the thing about the vows. I’m a profession ba`al qeri’o, remember?) Nevertheless, before I leyn it, I recite the berokho that Halokho (see מסכת סופרים ch. 14; לבוש Orah Hayyim §190; באור הגר"א loc. cit., et al.) mandates in this situation: “…Who hast sanctified us with His commandments and commanded us concerning the leynen of the Megillo.” In this way, the Halokho preserves the integrity of its own system, while allowing (or, according to the Minhog, commanding) me to read this dangerous book.On the morning of Shabbath Hôl Hammô`êdh Sukkôth, or Shemini `Atzereth, I leyn the Meghillo of Qôheleth. This is a book that present an angle on life that is quite different from that of the Halakhic System. It certainly doesn’t seem to present a world in which God commands and we listen. (Yesyesyes, I know the thing about the vows. I’m a profession ba`al qeri’o, remember?) Nevertheless, before I leyn it, I recite the berokho that Halokho (see מסכת סופרים ch. 14; לבוש Orah Hayyim §190; באור הגר"א loc. cit., et al.) mandates in this situation: “…Who hast sanctified us with His commandments and commanded us concerning the leynen of the Megillo.” In this way, the Halokho preserves the integrity of its own system, while allowing (or, according to the Minhog, commanding) me to read this dangerous book.

debka_notion said...

MG- So you trivialize an idea by incorporating it and reading it in Biblical Hebrew rather than the vulgar? Shouldn't it work the other way- that which is clearly denoted as part of the system is More dangerous, not less? Or does it simply allow people to voice their concerns in a halakhically valid way, and therefore maintain some tension within the system? I've been reading a book that argues that passion (this in the context of love) is dependant on the existence of tension between the people involved. Perhaps we also need some of that sort of tension within the halakhic system in order to maintain passion for it? I would think that the issue here is a question of how we balance that tension, rather than whether or not it exists. No matter whether we like what Tucker writes or not, that tension between what has happened up until now in halakhic development and what we believe is right is going to exist. It's just a question of where we think the best middle point between those two extremes is.

Agnoxodox said...

Here's another point you might want to address.

The CJLS can overturn rabbinic law with a just 6 votes, but requires 20 votes to overturn any decision itself makes.

How does that fit in with the theology?

elf said...

Mar Gavriel said:
Extra-halakhic literature can certainly fill in the gaps....But to allow these texts to be replacements for the structure, even for bits of the structure, can only lead to anarchy.

Rabbi Tucker addresses this point extensively in his teshuvah. You probably won't be convinced that his system wouldn't lead to anarchy (I'm not sure that I am), but I think the paper is very much worth reading, if you haven't already.

The one point that I find truly persuasive is the argument of necessity: If you don't believe that halakhah is infallible, it is not morally justifiable to uphold the letter of the law in certain cases simply for tradition's sake or in order to maintain a stable, internally consistent system.

debka_notion said:
I've been reading a book that argues that passion (this in the context of love) is dependant on the existence of tension between the people involved.

Eh. I don't really buy it, for relationships or halakhah. But that's probably an idiosyncratic personality thing.

agnoxidox said:
The CJLS can overturn rabbinic law with a just 6 votes

Theoretically, they don't just overturn rabbinic law by fiat. There is supposed to be a reasoned halakhic argument as to why rabbinic law does not apply in a particular case. And approval of a teshuvah by the CJLS doesn't officially create or change the law; it simply declares that the position is valid in opinon of the committee.

Gabriel said...
This comment has been removed by the author.
Mar Gavriel said...

If you don't believe that halakhah is infallible, it is not morally justifiable to uphold the letter of the law in certain cases...

Infallibility is absolutely irrelevant to this case. If a system or person is infallible, then it "make[s] X claim about reality, and X necessarily [is] true" (to quote Steg).

Halokho does not make statements about reality; rather, it makes commandments and prohibitions. Therefore, it can't be either fallible or infallible.

Agnoxodox said...

you missed my point, it wasn't if there was a reason halachik argument or not. It was that the same rules don't apply for "saying rabbinic law doesn't apply anymore" and "our previous decisions" don't apply anymore (say driving on shabbos or even the most recent decision).

in other words, beyond placing themselves above tradition, they place themselves beyond it as well, as tradition can be easily reconsidered, their own decisions can not be.

Mar Gavriel said...

Agnoxodox,

By "rabbinic law", do you mean הלכות דרבנן, or "all laws that we learn from sha"s and pôseqim"?

Agnoxodox said...

MG: what would be the difference from a C point of view?

Jeffrey said...

The CLJS of course does not abolish traditional understanding, but adds another option. It does not, by its nature, declare the more traditional view is an invalid option.

What requires 20 votes is to declare that a position that it previously considered valid is no longer valid. This is a very different animal than adding an alternative understanding.

It only takes 6 votes to add an alternative position.

Mar Gavriel said...

Agnoxodox,

C pôseqim (at least the ones whose work I have read) maintain the traditional distinction between דאורייתא and דרבנן. This forms the basis of R. Dorff's allowance of homosexual oral sex, but prohibition of homosexual anal sex.

Will said...

My main criticism of R. Tucker's paper is that you can't separate halakha and aggada the way that R. Tucker tries to. Rather, every halakhic decision is a narrative choice, a way of balancing values and needs and unfolding the "story of life" that is halakha. What's different between halakha and aggada is the _language_, not the nature of it. It seems to me that R. Tucker, like the formalists, confuses the mesamein [the linguistic signs] for the mesuman [the underlying value balances being actualized].

I also find R. Tucker's approach too simplistic in that he fails to take into account the import of values like maintaining continuity with halakha (as one of my revered teachers describes it: "not disconnecting one's self from the sacred canopy of halakha"). I also think that R. Tucker's methodology isn't consistent, for two reasons: (1) How do I know when to apply aggadic methodology vs. positivist methodology? and (2) Where does my aggada come from, and, e.g., how do I make the hard choice between being cruel to two different groups of people?

I would go farther, and argue that halakha is _better_ than aggada, because halakha's pragmatic nature requires balancing real potential outcomes, whereas aggada can be unbalanced and (like bad fiction) stress one or two aspects of life over others which in reality would be strong countervailing forces. (I admit that it is important sometimes to stress such values in stories in order to make them heard, particularly if they have not been heard to that point -- but I think it's a huge mistake to then claim such an aggada as the sole basis of one's decisions, since you miss out on the all the competing values.)

My understanding of Mar Gavriel's critique is that he sees the entire purpose of halakha as about maintenance of continuity. I don't think that's a good description of halakha, because it too is one-sided and stresses only one value of many that factors into a living system of behavioral prescriptions.

I was asked in the other comment thread to specify what I mean when I talk about value-balances and the like. I have yet to come up with a good one-sentence example, so I'll use the well-worn shemittat kesafim one. Cancelling loans was about trying to keep poor farmers from becoming debt-slaves; in the changing economic conditions of Haza"l's world, cancelling loans no longer worked to ensure that. However, one of the inherited values was continuity with the inherited tradition of loan-cancellation, so a solution was devised that balanced the need to stop loan-cancellation with the need to preserve continuity, and prozbul was born. (I don't have a full grasp on the economics, but that seems to be a decent summary of how a value and a need were balanced in order to create the desired outcomes -- continuity with tradition and preserving economic well-being.) Contrast this to an aggadic approach that might have read the "spirit of the law" as demanding loan-cancellation (and therefore could not have devised a solution circumventing loan-cancellation for the greater economic good).