The Chaos Theory of Halacha

Nathan Lopes Cardozo

vrijdag 5 augustus 2016

In memory of both my great friend Dr. Bloeme Evers Emden z”l, one of the greatest women and leaders of Dutch Jewry, and of Maurice Uriel Senior Coronel z”l, President of the Parnasim in the Portuguese Spanish Community of Amsterdam.
They both passed away July 18, 2016. May their ideas live on.

Chaos is God’s signature when He prefers to remain anonymous. The same can be said about Halacha. Halacha is the chaotic way through which God wants the Jew to live his life, according to strict rules that seem to be part of a well-worked-out system. Upon careful analysis, however, it becomes evident that Halacha consists of “arbitrary” laws, which on their own can make a lot of sense on a religious, ritual, or social level, but which are difficult to understand as an overall consistent weltanschauung with halachic methodology applied to them.

Many great thinkers have tried to impose logic or systematic structure on these laws, but they have been forced to admit that their overall systematic philosophy of Halacha doesn’t fit into the very structure of Halacha. This prompts them to put forth sometimes farfetched and unconvincing arguments that make sense only within an entirely different classification, or by means of arbitrary reasoning that they would normally reject out of hand.

Austrian British philosopher Karl Popper, when discussing the logic of science, said:

“Science is not a system of certain, or well-established, statements; nor is it a system which steadily advances towards a state of finality. Our science is not knowledge: it can never claim to have attained truth, or even a substitute for it … We do not know: we can only guess. And our guesses are guided by the unscientific, the metaphysical (though biologically explicable) faith in laws, in regularities which we can uncover – discover … The old scientific ideal of episteme - of absolutely certain, demonstrable knowledge - has proved to be an idol. The demand for scientific objectivity makes it inevitable that every scientific statement must remain tentative forever.” (The Logic of Scientific Discovery [London and New York: Routledge, 1992] pp. 278, 280).

In his preface to Realism and the Aim of Science, Poppers writes: “As a rule, I begin my lectures on Scientific Method by telling my students that scientific method does not exist.” (New York: Routledge, 2000, p. 5).

Almost paradoxically, he writes two pages later: “I dislike the attempt, made in fields outside the physical sciences, to ape the physical sciences by practicing their alleged ‘methods’ - measurement and ‘induction from observation.’ The doctrine that there is as much science in a subject as there is mathematics in it, or as much as there is measurement or ‘precision’ in it, rests upon a complete misunderstanding.” (Ibid. p. 7).

Anyone who reads halachic literature – particularly responsa – will quickly realize that while some basic principles of interpretation (mainly found in the Talmud) are at work, there is chaos regarding how to understand them in terms of ideology, weltanschauung, and even the practical application of Halacha.

Famous halachic expert Professor Aaron Kirschenbaum, in his essay, “Subjectivity in Rabbinic Decision Making,” refers his readers to a remarkable book written by British scholar Rabbi Dr. Louis Jacobs: A Tree of Life, Diversity, Flexibility and Creativity in Jewish Law, “in which he catalogues innumerable changes in the Halacha – drastic modifications as well as moderate adjustments. These changes are so varied – in subject matter, in geographic distribution, in historical period – that one is at loss to delineate the precise parameters of halachic development …” (Rabbinic Authority and Personal Autonomy, Ed. by Moshe Z. Sokol [Northvale, NJ: Jason Aronson, 1992] p.87).

One of the main reasons for this is that much depends on the personality, emotional makeup, and weltanschauung of the halachic arbiter. His personal circumstances, as well as where and in what era he lives, makes all the difference. No objectivity can ever be achieved, because humans - no matter how clever - cannot escape their own soul forces, the environmental influences that they subconsciously internalize. Moreover, the type of halachic training the arbiter has received, the religious values in which he has been steeped, and even his secular education all play a major role.

Many would argue that this is far from ideal. After all, how can a person gain an accurate understanding of the divine will when they are hampered by their subjective emotions, desires, philosophies and circumstances? But within the context of classical Judaism, all of this is considered a blessing. For people to be human and reach out to the Divine, they must maintain their humanness, and having emotions and desires is exactly what makes us human. Were we to relinquish those feelings (clearly an impossibility), we would cease to be human beings and the Halacha would no longer have any meaning for us since it was intended for humans, not for angels. This is what is meant by the Talmud in Bechorot 17b: “The Merciful One said: Do it [construct the Sanctuary] and in whatever manner you are able to do it, it will be satisfactory.” (See Ohr Yisrael: The Classic Writings of Rav Yisrael Salanter and His Disciple Rav Yitzchak Blazer, ch. 30).

Furthermore, if Halacha were to operate by clearly determined boundaries and criteria, it would not survive. Studies have shown that in ensuring the survival and productivity of an idea, movement, lifestyle or philosophy, biological and unconscious dynamics are much more successful than agenda-driven organizations and ideologies. Clearly stated platforms and goals cannot develop and expand in ways that are conducive to real life. They are too confining to solve the many problems that we humans are asked to deal with. Overall strategies often create stagnation. Free association produces progress.

Within religious thought and experience, there is the awareness that we must allow God to enter via what appears to be chaos and chance. Were everything to be worked out and predictable, we would close the door on God and therefore on real life. Chaos is the science of surprises of the nonlinear and unpredictable. It teaches us to expect the unexpected.

This does not mean that anything goes and we can dispense with rules. That would cause a breakdown of society. What it means is we must allow for openings in the prevailing system, enabling the unpredictable to enter. Anything that rejects our conviction that all is predictable and bound by absolute laws is the sine qua non for a vigorous life. Certain things must be left to chance, in order to solve problems that we are unable to predict or resolve in conventional ways. They cannot and should not be forced into a carefully worked out plan. We can’t always make accurate predictions, but we can suggest probabilities. This is true also because, as Kurt Gödel’s First Incompleteness Theorem has proven, any consistent formal axiomatic system that is “rich enough” (i.e. within which a certain amount of elementary arithmetic can be carried out) is always incomplete, meaning that there are statements within the system which can neither be proved nor disproved inside the system. Furthermore, Gödel’s Second Incompleteness Theorem, shows that consistency of the axioms of the system cannot be proven within the system. In essence, the formal system itself is “part of the problem”. While one cannot compare Gödel’s incompleteness theorem – which deals with mathematics – to the world of Halacha, we can surely use it to gain some insight into its nature. In Halacha, too, we find inconsistencies and a lack of completeness.

It is for this reason that Halacha has always developed on the basis of case law, and not because of overall well-worked-out ideologies. It is sui generis. Much depends on circumstances, the kind of person we are dealing with, local customs, human feelings, and sometimes trivialities. God, as Abraham Joshua Heschel explains, is concerned with everydayness. It is the common deed - with all of its often trivial and contradictory dimensions - that claims His attention. People do not come before God as actors in a play that has been planned down to the minutest detail. If they did, they would be robots and life would be a farce.

One of the most remarkable aspects of Orthodox Halacha is that it is almost an open market. Any person with halachic knowledge can write and state whatever they believe is true, knowing full well that others could refute their arguments. They must surely have all the relevant sources at their fingertips, but they are completely free to use the information in a creative way, so long as they adhere to the masoret, an unwritten and undefined tradition going back thousands of years. Some will view the masoret as a minimal and almost fundamentalist observance, and others will view it as a maximal and highly flexible tradition, which allows for much innovation.

Their common ground is their view of this tradition as a river that flows through an often rocky terrain, with many unexpected turns, but never dries up. These arbiters would never forsake the river. Some will subtly alter its course, pushing against the river’s shore in an attempt to widen it, while others would never dare. But not one of them would suggest creating an altogether new river. If that were to happen, all would be lost.

Most of these actions, or lack of them, are not deliberately planned but are largely unconscious reactions, which the halachic arbiter is not even aware of. There is a deep trust in this process while nobody really knows what the process involves. There’s no agenda, and that’s exactly why it remains alive and successful.

It is also why in Orthodox Judaism there are no “Halacha committees,” as we find in Conservative Judaism. While in the olden days there was a Sanhedrin - a supreme rabbinical court that was given full authority over the functioning of Jewish law in the Jewish state - it deliberately left many loopholes, and rulings had to then be made by local rabbinical courts or individual rabbis. Once the old Jewish state ceased to exist, the Sanhedrin was dissolved. This may quite well have been a blessing, since an overall legal body would have become an obstacle in a scattered Jewish world that could only survive if the theory of “halachic chaos” would take the upper hand.

In modern times, the great halachic authorities decide major cases independently. They are not voted in or appointed by a commission, but they spontaneously become accepted as the main arbiters, with no official declaration made. It is the circumstances, which appear in a chaotic way, that suddenly bring a halachic authority prominence. It may be that others are better qualified to take on the task, but they never make it because the community looks the other way for reasons it may never even know. It might be the arbiter’s personality, a specific trait, or just being in the right place at the right time that makes them stand out. It could be that one unusual and daring ruling does the trick, and it is probably true to say that the halachic arbiters themselves are taken by surprise to suddenly be at the center of the halachic community. It is no doubt absolutely essential that they have all Talmudic and halachic literature at their fingertips, but that is not what makes them prominent. They must develop a creative, versatile, and somewhat chaotic mind, able to make connections that no one has ever seen or thought about, and willing to come up with unprecedented ideas. Unconscious and turbulent forces must be at work. If arbiters have a wealth of encyclopedic knowledge but are unable to develop it, they cannot fill the role of posek (halachic authority). They must also be flexible enough to allow for the unpredictable to enter the halachic conversation.

Not only do we see a considerable amount of chaotic halachic literature, published by numerous authorities, which seems to lack consistency and order, but we may even find contradictions in the various writings of one halachist. This doesn’t mean that the writer lacks a particular line of thought and some basic principles; it just means that within these norms almost everything is an open market.

I believe this is the reason why the Conservative movement, with all its good intentions and great scholarship, was unable to grasp the imagination of many halachic authorities. It is not the lack of knowledge, but rather the over-systematization that is responsible for this. Once there is too much of a unified weltanschauung and agenda, Halacha loses its vitality. The multitude of attitudes, worldviews, chaotic thinking and sometime wild ideas, through which the greatest halachic authorities freely expressed their opinions, is what kept the Orthodox halachic world alive. In some sense, and even almost paradoxically, Orthodox Halacha is less fundamentalist than Halacha in other movements within Judaism.

None of this should surprise anyone. When looking into the Talmud, which is the very source of Halacha, we find a range of opinions so wide, and often radical, that it is almost impossible to find any sense of order. There’s a reason why the Talmud is compared to a sea in which storms create unpredictable waves and turbulence. The revealed beauty of this natural phenomenon is what attracts people to gaze at the sea for hours on end. It reflects their inner world, which thrives only in the presence of tension, paradox and chaos.

This may be related to another phenomenon in authentic Orthodox Judaism. Before Maimonides, Judaism did not really have a theology. There were no universal, accepted beliefs that were codified or dogmatized. While Judaism certainly has beliefs, they are flexible and open to interpretation. Belief in God and the divinity of the Torah, for example, are fundamental. But the myriad interpretations of these beliefs are so at variance with one another that we don’t see any real consistency. However, once Maimonides appeared on the scene, in the eleventh century, and categorized these beliefs into clear-cut statements through his Thirteen Principles of Faith, Judaism became systematized and dogmatized, losing one of its greatest assets: a religion without a fixed theology.

It is surprising that Maimonides, who was perhaps the greatest of all Jewish philosophers, was the very same man who codified and straight-jacketed Jewish law and beliefs in ways that are completely unprecedented in classical Judaism. It’s even more astonishing when we realize that this was done by an independent thinker who went his own way and seemed to have cared little about what his opponents thought of him or his ideas.

Maimonides also left us his magnum opus, The Guide for the Perplexed, which was his major and ongoing contribution, not only to Jewish philosophy but to general philosophy as well. It is surprising that this book, written by one of the greatest methodologists ever, is for the most part a disorganized work. It looks like a turbulent storm in which the reader must make order out of all the chaos. But to anyone who reads this work carefully, it’s as clear as day that this chaos is deliberate. It even seems that Maimonides, who worked five years on it, first drafted a completely orderly work and then deliberately disorganized it. By doing so, he challenges readers to use their own minds and, instead of passively reading the book, become active partners in its creation. Maimonides thus shows his genius as well as his brilliant teaching skills.

So there is a systematic theology behind all this, which the author wants readers to discover on their own and therefore hides it behind deliberate chaos.

We almost get the impression that Maimonides wanted to compensate for his unusual ideas, philosophy, and sometimes unprecedented halachic rulings by becoming a harsh codifier and dogmatist who did not allow for any deviation from “normative” Judaism, while at the same time sending the message that Judaism really can’t be systematized. In doing so, however, he caused a crisis in Judaism, which is still with us and which has created major obstacles for the future of a vigorous Judaism. While his Mishneh Torah is an ingenious example of rigorous codification written in a beautiful and almost poetic Hebrew, and while the same is true of his Thirteen Principles of Faith, which are uncompromising and highly dogmatic, one really wonders whether Maimonides himself believed in these principles and always followed his own rulings. It’s one of the great riddles in the history of Judaism.

Still, the Mishneh Torah and the Thirteen Principles of Faith have been accepted as accurate readings of what Judaism is all about. The Orthodox community has certainly embraced them as a sine qua non, not to be challenged (with minor exceptions as far as the Mishneh Torah is concerned) and considered the ultimate representation of Jewish law and belief. The reason this is not the case with the The Guide for the Perplexed is not because there is opposition to dogmatism in today’s Orthodox community. Rather, it is because of the Aristotelian-Greek flavor that is found throughout this work, which many feel compromises genuine Judaism. (This is besides the fact that most Orthodox readers are unfamiliar with philosophy and don’t know how to read The Guide).

The task of today’s halachists and philosophers is to reverse this phenomenon and allow Halacha to once again be what it has always been: an anarchic, colorful and unequaled musical symphony that requires room to breathe. Only a dynamic system of Halacha can guide the Jewish people and the State of Israel to a promising future. This is not just a matter of semantics. It is of crucial importance, because it will be impossible for the State of Israel to exist without being deeply influenced by Halacha. The great Jewish philosopher Saadia Gaon said, “Our nation is a people only by virtue of our Torah.” (1)

This is as true today as it was in the past. All attempts to define the Jewish people otherwise have utterly failed, no matter how many thinkers and sociologists have tried.

Nevertheless, a system of Halacha that cannot be true to itself, but is constantly plagued by dogmatism, stagnation and systematization, will cause not only its own downfall but also that of the Jewish people and the Jewish State.

In my opinion, Halacha is in need of more “chaos”. It must allow for many ways to live a halachic life unbound by too many restrictions of conformity and codification. It must make room for autonomy on the part of individuals, to choose their own way once they have undertaken to observe the foundations of Halacha. Acceptance of minority opinions will have to become a real option, and some rabbinical laws must be relaxed so that a more living Judaism will emerge. While some people need more structure than others, in this day and age we must create halachic options that the codes such as the Mishneh Torah of Maimonides and the Shulchan Aruch of Rabbi Yosef Karo do not provide.

Surely those who prefer to live by the strict rules of the codes should continue to do so. For some, these rules are actually a necessity – even a religious obligation – since this may be the only way they can experience God. But they should never become an obstacle to those who are unable to adhere to them. Labeling these new approaches “non-Orthodox,” or “heresy,” is entirely missing the point. I wish to be clear: I am not advocating Reform or Conservative Judaism which, as I stated earlier, have paradoxically become overly structured and agenda-driven. They lack sufficient “chaos” to make them vigorous.

While there is great beauty in attending synagogue three times a day to pray, we clearly see that much of it has become mechanic – going through the motions, but no religious experience. Yes, it’s better than not being involved in any prayer at all, but the price we pay is increasing by leaps and bounds. It is pushing many away. Codification is the best way to strangle Judaism. By now, Orthodox Judaism has been over-codified and is on its way to becoming more and more irrelevant.

This is made evident by the mere fact that in Israel more and more people are staying away from Orthodox Judaism while becoming increasingly involved in Jewish studies and ritual. What Judaism needs is depth, God-consciousness, and religious experience, which is not offered by the codes but is certainly provided by a living, vibrant practice of Halacha.

I believe that one of Halacha’s main functions is to protest against a world that is becoming ever more complacent, self-indulgent, insensitive, and egocentric. Many people are unhappy and apathetic. They no longer live a really inspiring life, even though they are surrounded by luxuries, which no one would have even dreamed of only one generation ago.

The purpose of Halacha is to disturb. To disturb a world that cannot wake up from its slumber because it thinks that it is right. The great tragedy is that the halachic community itself has been overcome by exactly those obstacles against which the Halacha has protested and for which it was created. Halachic living has become the victim of Halacha. The religious community has succumbed to the daily grind of halachic living while being disconnected from the spirit of Halacha, which often clashes with halachic conformity for the sake of conformity. Many religious people convince themselves that they are religious because they are “frum.” They are conformists, not because they are religious but because they are often self-pleasers, or are pleasing the communities in which they live.

Large numbers of religious Jews live in self-assurance and ease. The same is true of the secular community. Both live in contentment. But as Rabbi Dr. Louis Jacobs notes: “Who wants a life of contentment? Religion throughout the ages has been used to comfort the troubled. We should now use it to trouble the comfortable …" (2)

With thanks to my students Anne Gordon and Yael Shahar for their observations.

(1) Saadia Gaon, Sefer Emunot VeDe’ot, 3.
(2) Elliot Jager, “Power and Politics: Celebrating Skepticism,” The Jerusalem Post, Dec. 4, 2007.

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