9/09/2008

“The World is Filled with Law”

I’m not the first to notice a trend toward total pervasiveness of life by halakha. In addition to hyper-definition of pre-existing categories, there has been a more recent trend toward creating new halakhic categories out of whole cloth, and then applying the same type of hair-splitting definitions to them as well. The recent rulings on types of permitted music are a good example, but certainly not the only one.
I was reminded of this phenomenon this past Shabbat, when the chardal Rav of my mostly-American shul spoke about the justicability of “hashkafah”, and whether a Sanhedrin would theoretically have the right to legislate what is permissible to think, and what not. His conclusion was that it indeed would. Granted, it may limit itself to approving a range of beliefs on a particular issue and not a single dogma, but the issue of belief and philosophy is, in his opinion, justicable by the Sanhedrin.
His thesis, as well as this general trend I described, finds articulate expression in the following quote (which I modified slightly):
In my eyes, the world is filled with halakha. Every human behavior is subject to a halakhic norm. Even when a certain type of activity-such as friendship or subjective thoughts-is ruled by the autonomy of the individual will, this autonomy exists because it is recognized by the halakha.... Wherever there are living human beings, halakha is there. There are no areas in life which are outside of halakha.
As Ben Chorin and a few others may have noticed, this quote is from former Chief Justice of the Israeli Supreme Court, Aharon Barak (the only change I made is substituting ‘halakha’ for ‘law’. The irony here is that a large part, if not the majority, of the observant Jewish world – which harbors not a bit of animosity toward the noted jurist – agrees with Barak fundamentally about the role of the judge. Their disagreement is about who is authorized to make the jusdgements. Both conceptions of the law rely heavily on the legal intuition of the jurist” one calls it “wide-ranging judicial review”, the other calls it “daas Torah”. Both are constructed out of a phenomenal hubris that identifies one’s own opinion with absolute rectitude (according to most Rishonim, and more humble jurists, a judge’s rectitude derives from his authority, and not vice versa). Until this Shabbat, I never associated the two phenomena; now that I have, it seems obvious.

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