Abstract
This chapter explores and contrasts the thought of Professor Robert Cover and Rabbi Sacks on finding joy within the law. When approached as an object of study, expression, and worldbuilding, Cover argued that legal discourse, whether of Torah or civil law “is initiatory, celebratory, expressive, and performative.” By contrast, when he focused on the coercive powers of the state’s legal enforcement mechanisms, he provocatively associated law with pain and even death. Like Cover, Rabbi Sacks saw the joy of Torah study as central to the Jewish worldview and religious experience. But Rabbi Sacks did not bifurcate study from practice. In contrast to Cover, he argued that the civil state’s ability to create social order through law is one of humanity’s greatest achievements which should be celebrated as a Divine gift.
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Notes
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The best example of this fault line is Leora Batnitzky’s seminal work, Leora Batnitzky, How Judaism Became a Religion: An Introduction to Modern Jewish Thought (Princeton: Princeton University Press, 2011).
- 4.
One of us has explored elsewhere the way in which these conceptual debates play out in U.S. courts. See Michael A. Helfand, What Is Jewish Law? A Conceptual View from U.S. Courts, Oxford Handbook on Jewish Law, eds. Zev Eleff, Roberta Kwall, and Chaim Saiman (forthcoming 2024).
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Indeed, it is precisely because Jewish law, as a term, can be deployed in these different ways that one of us has differentiated between the terms Torah, Halakhah, and Jewish Law in an effort to bring conceptual—as well as substantive—clarity to the field. See generally Chaim N. Saiman, Halakhah: The Rabbinic Idea of Law (2018).
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BT Kiddushin 40b.
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Ibid. “Is study greater or is action greater? Rabbi Tarfon answered and said: Action is greater. Rabbi Akiva answered and said: Study is greater. Everyone answered and said: Study is greater, but not as an independent value; rather, it is greater as study leads to action.”
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Ibid. “It is taught in a baraita that Rabbi Yosei says: Torah study is greater, as it preceded the mitzva of separating ḥalla by forty years.”
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Ibid. “Just as study takes precedence over mitzva performance, Divine judgment regarding Torah study takes precedence over judgment of mitzva performance.”
- 10.
BT Ta’anit 30a.
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Saiman, Halakhah at 65.
- 12.
Robert M. Cover, “The Supreme Court, 1982 Term-Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983): 7, 13.
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Robert M. Cover, “Violence and the Word,” Yale Law Journal 95 (1986): 1601.
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Id. at 1610. “I have written elsewhere that judges of the state are jurispathic—that they kill the diverse legal traditions that compete with the State. Here, however, I am not writing of the jurispathic quality of the office, but of its homicidal potential,” Robert M. Cover, “Nomos and Narrative,” Harvard Law Review 97 at 40–44.
- 15.
“Nomos and Narrative,” Harvard Law Review 97 at 13.
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E.g., Jonathan Sacks, Covenant and Conversation, Leviticus, 376 (Koren, 2015).
- 17.
Jonathan Sacks, “Shavuot/Pentecost Israel’s Wedding,” in Faith in the Future (1984), 145, 149.
- 18.
Jonathan Sacks, “The Children of Israel Dance for their Portable Homeland,” The Times, October 9, 2004, https://www.rabbisacks.org/archive/the-children-of-israel-dance-for-their-portable-homeland/.
- 19.
One of us has examined the unique practices of Simhat Torah from a different perspective. See Chaim Saiman, The Inverted Halakhah of Simhat Torah, https://thelehrhaus.com/holidays/the-inverted-halakhah-of-simhat-torah/.
- 20.
Ibid.
- 21.
“Nomos and Narrative,” Harvard Law Review 97 at 39.
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Helfand, M.A., Saiman, C. (2023). Law’s Joy: Celebrating the Study and Practice of Law. In: Brown, E., Weiss, S. (eds) An Ode to Joy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-28229-4_18
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