4/01/2005

Al Capone on Da'as Torah

I’ve asked the following question to many people, and all give the same, predictable, WRONG answer:

Q. Why was Al Capone put in prison?
A. Tax evasion

WRONG! WRONG! WRONG! WRONG! WRONG!

All Capone was put into prison because he was a vicious gangster.

The legal mechanism by which he was convicted was tax evasion.

This is an important point for understanding da’as Torah and my previous point about Yeridat Hadorot. With regard to the latter, it demonstrates how intuitive legislation can precede the legal theory, but that the legal theory is still valuable and necessary.

With regard to the former, it demonstrates that legal decisions are often motivated by factors other than straight legalistic thinking, but that it’s important to preserve thesystem by formulating those decisions in a legal parlance and with legal constructs. This would identify a midpoint between extreme ex cathedra formulations of an overreaching Da’as Torah, but at the same time eschew an approach which allows for any bozo who can work a Bar Ilan CD to pasken.

If you will, it’s a marriage between ‘masculine’ and ‘feminine’ attitudes toward law, with Da’as Torah being the feminine element. I’m still reading Dr. Tamar Ross’s book, but based on the earlier article, I believe that either she misses that point, or that in contemporary times the intuitive elements of Halakha are being neglected (or both).

It also means that, in essence, when Blu Greenberg says “where there’s a Rabbinic will there’s a Halakhic way”, she’s pretty close to the truth. I think that the problem is that she tends to confuse her own will with ‘Rabbinic Will’ = ‘Da’as Torah’.

Here’s a Hebrew translation of Blu’s maxim:

אם תרצו, אין זו הלכה

thanks to Phoebus for that one. Ve-hamayvin, yovin.
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