Abstract
In this article, I will argue against the Orthodox Jewish view that the Torah should be treated as an absolute authority. I begin with an explanation of what it means to treat something as an absolute authority. I then review examples of norms in the Torah that seem clearly immoral. Next, I explore reasons that people may have for accepting a person, text, or tradition as an absolute authority in general. I argue that none of these reasons can justify absolute authority if the authority prescribes norms that we strongly judge to be immoral. I then respond to three objections to my argument. I end with a note explaining why, contrary to a popular trend, the narrative of the binding of Isaac is not a good place to start this discussion.
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Notes
Similar arguments set up against a more Christian backdrop are presented by Bradley (1999), Edwin (2010), and Fales (2010) among others. While they tend to be more concerned with arguing against the divine authorship of (parts of) the bible, my argument is more broadly against the doctrine of absolute authority, whether or not it is based on belief in divine authorship. In addition, my concern is not only with the Bible but with the Talmud as well. More generally, this paper is set up against an Orthodox Jewish backdrop, meaning that I am drawing my references mostly from Jewish sources and responding to arguments and ways of thinking that are popular among the modern Orthodox Jewish community as I know it.
I do not propose this as a sufficient condition for authority generally speaking. Perhaps, the ordinary concept of authority includes some further elements. There is in fact a large literature on this topic. For instance, Joseph Raz (1988, Chapters 3–5) emphasizes that authority has a preemptive nature, i.e., that it is a reason to disregard other reasons. David Enoch (2014) emphasizes that when I’m commanded to do something by an authority, the authority creates a new reason for action that was not there before. Enoch calls this phenomenon ‘robust reason giving.’ These features of authority are unimportant in the context of the current paper. My target includes views that promote submission to the Torah even without the characteristics that Raz and Enoch specify, such as in the case of epistemic authority (see the ‘Potential Reasons for Accepting an Authority’ section). Despite the fact that my target may be broader than what the term authority suggests, it seems natural to me to call the doctrine as I do. If some readers prefer a different term, that shouldn’t affect the argument. (I thank David Enoch for urging me to clarify this point).
My characterization of the doctrine of absolute authority is close to what Ronit Irshai (2017, p. 220) calls the Akedah theology, which she characterizes as the view ‘that obedience to a Divine imperative embodied in Halakha is associated with the experience of binding up (Hebrew Akedah) all of our specifically human inclinations, desires, and needs, including our moral principles.’ Elsewhere, Irshai (2018b) argues that the Akedah theology dominates contemporary modern orthodoxy and that Soloveitchik and his students are among the protagonists of this theological view.
Quoted and translated in Weil (2011). The original context is a sermon in which Soloveitchik preaches that the Jewish laws of marriage and divorce should not be modified despite the heavy price that some women (i.e., agunot) pay in its current state.
Lichtenstein is not fully explicit on this, but I do believe that I am rightly attributing to him the view that the Torah has absolute authority. Lichtenstein’s article is mainly concerned with cases in which moral considerations are recognized within Halakha. I am unaware of any place where Lichtenstein explicitly discusses seemingly immoral Halakhic norms other than a brief mention that such issues concerned him when he was young (Lichtenstein 1992).
Several commentators have inferred from Lichtenstein’s article that he rejects divine command theories. See Harris (2003, pp. 42–44, 2006) and an online symposium organized by the Association for the Philosophy of Judaism: http://www.theapj.com/symposium-on-aharon-lichtensteins-paper-does-jewish-tradition-an-ethic-independent-of-halakha/. I do not think that the inference is justified. Lichtenstein does express the view that there can be a moral law that is independent of Halakha, but I do not see that he anywhere expresses a view regarding the source of that moral law. That is, I do not see that he claims anywhere that there are moral laws that are not only independent of halakha, but also independent of God’s will or command.
And, being consistent, he continues to “prove” this claim by citing the Torah: “Proof to this may be adduced from the story of the Akeida. The very same Avraham who expected that God conduct Himself in a moral manner was himself prepared to execute an absolutely immoral Divine command without any protest or hesitation” (ibid.). See my critique of the tendency to turn to the binding of Isaac narrative below in section ‘A Final Note: the Irrelevance of the Binding of Isaac’.
Compare: ‘The term Orthodoxy is actually a misnomer for a religious orientation which stresses not so much the profession of a strictly defined set of dogmas, as submission to the authority of halakhah’ (Katzburg et al. 2007). Note though that, strictly speaking, submission to authority need not imply absolute authority, as defined here.
See, for example, Amital (2005, pp. 30–32).
In my biblical examples, I will be giving the front stage to the simple or plain meaning of the verses. This has troubled some readers of this essay. Their worry is that it seems that Rabbinic (as opposed to Karaite) Orthodox Jews, who are the natural targets of this paper, don’t accept the simple meaning as authoritative, only the Talmudic interpretations. So, let me say another word about this. As is well known, almost anywhere you look in Jewish law, you find a gap between the simple meaning of the biblical verse (p’shat) and the Talmudic interpretation of those verses (d’rash). I take it to be a historical mystery how precisely this gap came into being and how it was perceived among those who brought it about. This is also an issue that has long perplexed Jewish thinkers and there are different schools of thought on this matter, with very long traditions. There is indeed a school of thought that completely rejects (what I call) the simple meaning as a fallacious interpretation of the Bible. However, there is another long tradition of scholars who accept the simple meaning as part of the Torah, as divine and as authoritative, at least nominally. (For references and theological arguments supporting this view from within the Orthodox tradition, see Kasher (1956), Henshke (1977), and Bazak (2013).) My own conviction is that the most common-sense view is that the simple meaning generally reflects the original intention of the verses and that therefore, if it implies immoral norms, that’s sufficient for the argument that follows. However, since, as I demonstrate, immoral norms are apparent in Talmudic interpretations as well, my argument need not assume any specific view on this issue.
In contrast to the simple interpretation, the Talmud has interpreted these verses as referring specifically to a woman who lost her virginity during the period of her betrothal. According to Halbertal (1997), careful reading of the Talmudic sources show how moral discomfort motivated the Talmudic scholars to offer an interpretation radically opposed to the simple reading of the biblical verses. Note that even if we accept the Talmudic interpretation, we remain with an unreasonable punishment, which is unfair in part because there is no parallel punishment for males.
An English translation of one of those speeches can be found online: http://www.eshelonline.org/rav-benny-laus-speech-given-at-shira-bankis-jerusalem-memorial/. I stress that my comments here are merely theoretical. On a personal level, I find Rabbi Lau’s gay-inclusive activity highly admirable.
For a discussion of modern Orthodox and Conservative views on homosexuality, with many helpful references, see (Irshai 2018a). As exemplified by Irshai’s references, there seems to be a tendency among rabbis to focus on the prohibition and refrain from mentioning the death penalty. I suspect they do so because, even among people with conservative leanings, the death penalty is difficult to defend. That is precisely why I focus on the death penalty, rather than just on the prohibition of homosexuality.
There is an interpretive tradition according to which the restriction does not refer to the call for peace but rather to what must be done if peace is declined (Nahmanides, Deuteronomy 20:10; Maimonides, Laws of Kings and Wars, 6:6-7). According to this interpretation, the distinction between Canaanite cities and non-Canaanite cities is that in the former, women and children must also be killed, whereas in the latter, only men should be killed. I do not think that it is plausible for this to be the original meaning of verses. According to the logic stated in these verses, the worry that the Israelites would be religiously influenced by the Canaanites justifies killing non-combatants. Why should this worry dissolve if they accept peace? In any event, even if the call for peace applies to Canaanites as well, that does little to improve the situation. The conditions for peace are not exactly fair: ‘If they accept and open their gates, all the people in it shall be subject to forced labor and shall work for you’ (Deuteronomy 20:11).
Regarding the development of this law in the Talmud, see fn. 14.
The term “Canaanite” in this context is used to refer to any non-Jew.
The most extreme examples are the laws regarding idol-worshiping towns (Deuteronomy 13) and rebellious children (Deuteronomy 21). In both cases, the Talmud adds so many restrictions to the biblical law that, according to one opinion in the Talmud, these laws were never meant to be implemented (Sanhedrin 71A). This very radical interpretational move comes very close to uprooting the biblical law. See Halbertal (1997, pp. 42–68; 122–44), for careful analysis. What should we conclude from such cases? It is difficult to know whether they sincerely thought that all they were doing was interpreting the Bible, or whether their claim that they are interpreting the Bible is mere excuse and that they actually did not treat the Bible as an absolute authority. Sometimes, they talk as if they believe that their authority outweighs that of the Torah. However, it is not clear how seriously they took this idea according to Hayes (2006).
For a survey with many references, see Ross (2004, pp. 14–22).
Mishna Horaiot 3: 7; Shulhan Aruch, Yoreh De’ah 252:8. A survey of the development of this law in post-Talmudic halakha can be found in Green (2015). Green ends up defending the view that this law should not be practiced today, but his full commitment to the authority of the Halakha is revealed by the fact that he does not dare to say that this Halakha is wrong and should not be accepted even without a Halakhic basis. He also repeatedly says that this Halakha is not applicable today, not that the Halakha is morally wrong and was morally wrong even when it was invented.
Maimonides also applies this to people who deny the authority of the oral law, i.e., the Talmud (Mamrim 3:1–2). His opinion is cited as authoritative in Shulchan Aruch, Yoreh De’ah 158:2. The source of this law is the Babylonian Talmud, Avoda Zara 26B.
Once secular Judaism became well established in the nineteenth and twentieth centuries, rabbis seem to feel uncomfortable with this law. In typical Talmudic fashion, it has since become standard among rabbinical authorities to reinterpret the law so narrowly, that it is practically never applicable. See Chazon Ish, Yoreh De’ah, Shechita, 2:16 (an English translation of the relevant passage, as part of another example of such an argument, is available here: https://www.etzion.org.il/en/torah-perspective-status-secular-jews-today-part-1-2).
For an example and survey of relevant sources, see Rabbi Ovadia Yosef’s discussion and ruling in Yabiah Omer, OH 8:38.
Some people think that it would be more appropriate to call such a person an expert and to reserve the term ‘authority’ for other sorts of cases. However, my use of the term is broader, as explained in the opening section, and I think that this usage is appropriate in this context. I am interested in the various ways in which one can take the fact that the Torah commands φ to be a conclusive reason to do φ.
My description of this type of justification of authority is inspired by Raz’s discussion of political authority (see above, note 2), though it is not meant to represent his particular views.
Jonathan Haidt (2012, Chapter 11) surveys empirical evidence regarding the benefits of religion and argues that it supports an evolutionary explanation of religion—in particular, that religions evolved to enhance cooperation.
Given my broad characterization of authority (see note 2), any case in which one has a reason to do an action φ whenever some subject S says to φ, counts as authority-like. For instance, if I love S and want to please S, and take this as a reason to do whatever S tells me to do, that counts as a kind of authority by this article’s lights, even if it sounds a bit unnatural to call it so. My argument in the next section applies to such cases as well. (I thank Yehuda Gellman for bringing this kind of example to my attention).
My translation. Aviner argues that only Jews, not Palestinians, have rights over the land of Israel, because so says the Torah, even if this claim is contrary to universally accepted conceptions of justice.
This objection, if sound, applies more generally to the view that God has unconstrained basic authority, whether or not it is based on DCT.
Harris (2003) argues that many of the early traditional Jewish texts do not clearly contradict some versions of DCT. Even if Harris is correct, it remains the case that the canonical sources prior to the twentieth century do not express any commitment to DCT. At the very least, this fact suggests that it would be wrong to consider DCT as the default or Orthodox view in Judaism.
I believe that this quote well exemplifies his general view. For some developed experience-based justifications for belief in God’s existence, see Alston (1991), Gellman (1997), Plantinga (2000), and Swinburne (2004). While these authors develop their justifications differently, my point about a parity of reasoning between religious and moral beliefs applies to all of them.
A nice formulation and elaboration of the general argument that I apply here appears in Egan and Elga (2005).
Again, a quote from Soloveitchik is instructive: ‘We should not judge or evaluate laws of the Torah according to the standards of a secular system…It is inappropriate to try to make an eternal Halakhic norm fit transient values of a neurotic society’ (Soloveitchik 2010, pp. 113–114) (my translation from the Hebrew). This line of thought is also central in Deutsch (2015).
This is what I believe, and I hope you do to. Note that I’m not making a claim here about what caused me to believe as I do. These, no doubt, include my genes, brain structure, and the cultural environment in which I grew up. Nor is the claim here about the truth-maker of my belief, that is, what it is that could make my moral belief true, whether it be Platonic mind-independent moral facts, or a particular relation to individual or communal desires or inclinations. Therefore, even relativists should endorse the claim in the text above; they would only add that this claim is true from my perspective, but it may not be true from a different perspective.
I stress that the question here is normative: what is it that justifies this belief? It is not a causal question about what actually causes my belief (see previous note).
See, for instance, Sacks (2015, p. 207).
See, for instance, Sacks (2015, p. 208). An influential source of inspiration for this approach is a passage in Maimonides’ Guide for the Perplexed (3:32), where he explains why the Torah commands animal sacrifice. According to Maimonides, the ancient Israelites were so used to the idea of animal sacrifice as a mode of worship for gods that it would have been difficult for God to command any other mode of worship. Rabbi A.Y. Kook adopted this model as an explanation for the laws of slavery (Iggerot Hareayah I, pp. 92–107). Both of these sources are often quoted by apologists.
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Acknowledgements
A Hebrew predecessor of this article was written during a fellowship at the Human Rights and Judaism program at the Israel Democracy Institute. I am grateful to Yitzhak Ben David, Zecharya Blau, Hanoch Dagan, David Enoch, Yehuda Gellman, Sibylle Lustenberger, Aaron Segal, Edna Shabtay, Daniel Statman, Asher Stern, Michoel Stern, and my colleagues at the Human Rights and Judaism fellowship for very helpful comments on previous drafts. I also thank Ephraim Herrera and Salomon Chekroun for a lengthy correspondence that helped me see places in the paper that needed clarifying. Obviously, the author alone is responsible for the views expressed here.
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Baras, D. A Moral Argument Against Absolute Authority of the Torah. SOPHIA 60, 307–329 (2021). https://doi.org/10.1007/s11841-019-00731-1
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DOI: https://doi.org/10.1007/s11841-019-00731-1