Common Sense Halakhah: Attempted Clarifications

To clarify: we will see that the leading rabbis discussed in this book felt no need to be loyal to the wording of their legal sources as much as loyal to the insights of the lawmakers who had certain situations in mind.? This has three implications:

a. First of all, they read laws contextually.? This means more than that they merely read law as did Classic Common Law judges? who would have understood, for example, that an unqualified law that says ?everyone must vote? need not include a legally incompetent person, a person who is physically incapabale of accessing? the solitary, or even the solitary caretaker of a bed-ridden person.? As a Midrash (Tanhuma, Bo #13) noted concerning the Biblical use of the word ?tomorrow?:? sometimes ?tomorrow? refers to the next day and sometimes to the long-term future.? Similarly, one of the earliest medieval halakhic responsa ? of R. Hai Gaon (Babylonia, 939-1038 CE) ? noted that ?each [Talmudic use of the term] ?immediately? must be defined by its context.?? In contrast to Classic Common law judges, they did not use context merely to reign in the semantic implications of a law.? Rather, they also used context to expand the implication of the law.? They would have understood that a a religious traffic law that directed drivers to stop in accordance with a traffic light and directed a specific right-of-way at traffic circles, implicitly requires drivers to drive safely at ambiguous intersections.? They understood their legal sources to be not semantically comprehensive but rather addressive of typical situations ? to be narrative typifications. b.????? Second: they? understood that inasmuch as lawmakers address people who are supposed to understand the shared situations, laws can and do omit critical but culturally obvious terms ? not merely terms that define the situations and objects to which the law refers but even terms that express what the lawmaker desires one to do.? Since laws are communications, words must inevitably be omitted ? all the more so when the lawmaker provides narrative typifications, in which case one intentionally speaks in ?restricted code?.? This means more than that leading rabbis merely understood that a law?s words must be read in context of all its other written details. For example: a law that directs drivers to ?stop at a red light? should be read as directing one to stop when the light of a tri-color traffic light has turned red and not every red decorative light strung accross a street.? That would be obvious since the law also permits one to travel when the light is green and these lights will never turn green.? Rather, it means that a law must be read in light of its unstated context even when such reading violates the semantic meaning of the law.? For example (based on American culture and language): a religious/moral authority points to a hatless cranky child on a hot beach and directs an adult with a cooler (an insulated picnic basket) to iimediately give the child chocolate milk to drink.? If the adult discovers that his/her chocolate milk is warm because it had fallen out of the cooler but there is ice-cold water in the cooler, s/he is meant to first offer the child the cold water.? This is the case in? spite of the fact that the drink?s characteristic of cold was never mentioned or even verbally indicated and that many well-hydrated children on breezy beaches may indeed prefer warm chocolate milk.? This is the case because the adult is supposed to understand that the law is based on a narrative typification, on the assumption of a shared understanding that the child must be both hydrated and cooled down and that familial coolers generally hold cold chocolate milk.

c. Third: when they felt a need to prove their interpretation to people who were supposed to share a common narrative understanding, they merely indicated the evidence for their interpretation.? Thus, in the chocolate-milk/cold-water example, they might merely prove that they should have given the hot child cold water becase the the directive was ?child?, ?drink?, and ?immediately? ? an urgent call to both hydrate and cool the child.

In addition to viewing their role to be that of wisely apply the insights of the lawmakers who had certain situations in mind, these leading rabbis ? as sages of a lived culture ? also spoke via the original terms of their internalized sources.? In order to understand what it means to discuss an issue in the original terms of an internalized source, imagine a conversation between chocolate-lovers discussing a newly discovered bean called xcellent that has all the taste and endorphin-triggering properties of chocolate but is pink and grows on sturdier trees.? When a person tastes the powder of the bean and excitedly says to another: ?This is chocolate!? she is not necessarily overlooking the fact that the bean looks different and is easier to grow.? Rather she is focusing on the taste and is using the designation that is relevant to the issue at hand, non-reflectively.

We will find that leading sages of Jewish Law spoke similarly but more responsibly than the speaker in the discussion of the xcellent bean.? They read their casuistic sources as decisions that balanced multiple and conflicting binding human concerns ? as responses to archetypical situations of varied human needs.? It was the range of those wide-ranging internalized laws-as-stories (which implicitly recognize multiple and conflicting human concerns) that the sages applied to their conditions in an attempt to balance a contemporaneous range of similar conflicting human needs.? These sages did not misread or distort precedent texts.? Rather, they applied the insights of legal texts to contemporary conditions and spoke those insights via the vocabulary of those texts.? To summarize: we will see that these sages? decisions were responses that arose from an evaluation of human needs that the sages found in the authoritative legal texts and not in spite of those authoritative texts.? We will see that they read authoritative sources as setting out particular judgments that must repeatedly be rebalanced appropriately under changed conditions.? They did not reject earlier laws that were not currently suitable as much as determine the contemporary suitable law in light of the internalized wisdom of earlier law.??? They addressed their contemporary situations both by thinking via earlier norms that they had already internalized and by addressing the contemporary situations via the earlier norms themselves; if they were to have discussed chocolate under the rubric of the religious laws of culinary pleasure they would have simply subsumed xcellent under chocolate when relevant, even as their discussions of the various related issues ? so firmly channeled into bites ? would reflect the complexity of both the fact situation and the ethical situation.? More importantly, they did not let the law?s semantic wording blind them to its implicit narrative and thus its full implication and application both for new situations that could not be subsumed and for situations which would seemingly fall under its semantic or logico-conceptual purview but which the lawmaker would not have meant address with such law.? In short and in legal-theory terms, one might say that these wise interpreters viewed themselves as interpretive-legislators.

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