Inglis on Method and Metaphysics in Maimonides’ Guide for the Perplexe
February 28th, 2012
John Inglis recently reviewed the new book 'Method and Metaphysics in Maimonides' Guide for the Perplexed' by Daniel Davies. From the review:
- Leo Strauss has shaped philosophical discussions of Maimonides's Guide for the Perplexed with the view that Maimonides contradicts himself in order to prevent the uneducated from threatening the author for unorthodox positions. Maimonides serves as the first case study in Persecution and the Art of Writing (1952), Strauss's presentation of the history of significant esoteric texts that only the philosophical elite can understand (Strauss 1988, ch. 3). Philosophers and historians who work on Maimonides frequently take a stand in relation to Strauss's interpretation. We often work on single issues in order to claim that Maimonides does or does not contradict himself. The type of contradiction that gets the most attention is Maimonides's seventh sense, which, as he notes, he uses in order to protect the uneducated. For example, Maimonides states that: "The vulgar must however not be allowed under any circumstances to become aware of the contradiction of these premises, and the author will therefore at times adopt every possible means to camouflage it" (Maimonides 1995, p. 48). Much contemporary scholarship aims at identifying or deflating one or two examples of this sort of contradiction in the Guide. In his carefully argued book, Daniel Davies builds on recent scholarship to offer a more contextual perspective on the methodology of the work as a whole and a valuable nuanced interpretation of the seventh contradiction.
Scordato on Tamanaha on the Formalist-Realist Divide
February 28th, 2012
Marin Roger Scordato (Catholic University of America (CUA) - Columbus School of Law) has posted Book Review of Brian Tamanaha's Beyond the Formalist-Realist Divide: The Role of Politics in Judging (University of Richmond Law Review, Vol. 46, p. 659, 2012) on SSRN. Here is the abstract:
- Prof. Tamanaha seeks to show that many judges of the formalist era did not publicly espouse the kind of rigid, doctrinaire formalism that is so often ascribed to them. Instead, he suggests, many jurists thought to be formalists held a far more nuanced view of common law jurisprudence that was far closer to the traditional realist account than is generally supposed. Similarly, Prof. Tamanaha seeks to demonstrate that many classic legal realists, including Jerome Frank, Roscoe Pound and Karl Llewellyn, acknowledged the “rule bound” nature of actual adjudication much more than the conventional account suggests. His ambition in the book is nothing less than to thoroughly debunk and disprove the conventional account of the development of common law jurisprudence in the first half of the twentieth century.
CFP: Circulating Jews: Mobility, Cultural Transmission, and Representation in Judaic Studies
February 28th, 2012
Call for Papers The Judaic Studies Graduate Program of Yale University is now accepting paper proposals for an Interdisciplinary Graduate Student Conference: Circulating Jews: Mobility, Cultural Transmission, and Representation in Judaic Studies Sunday, Nov 4, 2012 Yale University, New Haven, CT Since biblical times, Judaism has been enacted and created across geographical and conceptual space. Modern scholarship has begun to understand Jewishness, Judaism and Jews as dynamic entities, moving away from settled notions of stability, insularity and “influence”. Throughout all periods of Jewish history, the experience of cultural and physical movement has defined what Jews have thought about themselves, their traditions, and the worlds in which they were located. Motion, movement and the transmission of ideas, people and images have been central to Jewish life and cultural production. This conference, therefore, engages the movement of Jewish peoples and ideas, both Jewish ideas and ideas about Jews. We invite papers from graduate students that explore aspects of mobility in the biblical, ancient, medieval and modern periods. The keynote speaker for the conference is Marina Rustow, Charlotte Bloomberg Associate Professor in the Humanities at Johns Hopkins University. Suggested topics include:
- In what ways has Jewish mobility been circumscribed? In what ways has it been fostered? By whom?
- How has awareness of geographic difference and mobility affected the development of Jewish law?
- How do language and translation function in and as mobility across cultural boundaries and transitions?
- How have ideas about Jews and Judaism been disseminated in majority cultures? How have Jews responded to these conceptualizations?
- How have Jewish and non-Jewish ideas been communicated across cultural boundaries?
- How has Jewishness been shaped by diaspora? How has the diaspora constructed and been constructed by Jewish movement?
- How should we understand the role of messengers and travel within the Jewish world?
- How has pilgrimage been instantiated, controlled and subverted?
- How should we understand the motion of ideas between Jewish rabbis and thinkers within different parts of the Diaspora, and between the Diaspora and the Land of Israel, and in modern times, the State of Israel?
Please submit paper titles and abstracts (750 words or less) to circulatingjews@gmail.com Please include name, institutional and departmental affiliation, as well as a contact email address. SUBMISSION DEADLINE: April 15, 2012 All proposals will receive a response by mid-May, 2012 The three most exceptional abstracts will be awarded a $150 travel stipend to facilitate attendance. Avenues for publication are being explored.
- How has Jewish mobility itself been constructed in modern thought, culture and scholarship?
Feldman on Fallibilism & Legal Pragmatism
February 22nd, 2012
Heidi Li Feldman (Georgetown University Law Center) has posted Cardozo Not Holmes, Fallibilism Not Skepticism, Pragmatism Not Legal Realism on SSRN. Here is the abstract:
- Philosophical pragmatism, like American Legal Realism, has various strains but the most characteristic ones are motivated by philosophical concerns different from the intellectual concerns that motivated Legal Realism. Legal Realism reacted to classical legal thought, pragmatism reacted to Cartesianism. While there may be some parallels between classical legal thought and Cartesianism – and hence possibly some between schools of thought reacting to each – classical legal thought and Cartesianism occupy two different planes. The battle between classical legal thought and American Legal Realism is internecine. Philosophical pragmatism bears on that fight more globally. If pragmatist philosophical methods and tenets bear on law, legal theory, and legal practice, it will bear on both classical legal thought and American Legal Realism, the objects of both those schools of thought. Philosophical pragmatism draws our attention to the significance of social practices of all kinds. It does not advocate any one way of construing a social practice; indeed, that sort of methodological unitarianism would be inconsistent with the pragmatist approach to understanding. What pragmatism teaches those interested in law and legal practice is that legal theory is not prior to legal practice; and that legal practices themselves should be the point of departure for giving any more generalized account of how the practice works. Most previous legal scholarship on law and pragmatism misses the point about philosophical pragmatism's commitment to fallibilism rather than skepticism, and therefore fails to consider the significance of this shift for using pragmatism to understand legal practices, especially adjudication. This is highly evident in the conventional treatment of Oliver Wendell Holmes Jr and Benjamin Cardozo as both pragmatists. Using a representative decision of each, I argue that Holmes is more a radical skeptic than a pragmatist, while Cardozo works in true pragmatist
February 22nd, 2012
February 12th, 2012
February 12th, 2012
Postema on the History of Analytic Jurisprudence
February 12th, 2012
Gerald J. Postema (University of North Carolina - Philosophy and Law) has posted Analytic Jurisprudence Established, a chapter in LEGAL PHILOSOPHY IN THE TWENTIETH CENTURY: THE COMMON LAW WORLD, G. J. Postema & Enrico Pattaro, eds., Springer, 2011. Here's the abstract:
- “Analytic Jurisprudence Established” is Chapter 1 of Legal Philosophy in the Twentieth Century: The Common Law World (Springer, 2011). The book tells a critical history of Anglophone general jurisprudence and legal philosophy in the twentieth century as a tale of two Boston lectures, separated by sixty years, and their respective legacies: Holmes’s “Path of Law” (1897) and Hart’s Holmes Lecture “Positivism and the Separation of Law and Morals” (1958). This opening chapter sketches the developments of British jurisprudence from Austinians in the late nineteenth century through Salmond to Glanville Williams in the mid-twentieth century. In this remarkable story, most of the familiar doctrines elegantly articulated and defended in Hart’s Concept of Law are anticipated, including his pivotal doctrine of the rule of recognition. Also in this period we find roots of the distinctive methodological commitments of analytic jurisprudence evident throughout the twentieth century and into the twenty-first, along with searching critiques of them. It is a story of surprisingly rich ideas in embryo that matured only with debates over Hart’s seminal work in the last third of the century. Bibliographical references are available upon request of the author.
The Things Revealed are Ours and Our Childrens’ Forever
February 5th, 2012
Review of Aharon Shemesh and Cana Werman, Revealing the Hidden: Halakhah and Exegesis at Qumran (Jerusalem: Mossad Bialik, 2011)
By Amit Gvaryahu
The discovery of the Dead Sea Scrolls is arguably the greatest archaeological discovery of the 20th century. It is scarcely worth repeating the story of how the scrolls were found, and only slightly more worth repeating how they were held by a small team of Christian scholars for many years until a combination of rogue scholars, a split in the team itself, and the Israeli civil administration of the West Bank and Gaza finally paved the way for the (relatively) speedy publication of the entire corpus of finds in 2002 (with the exception of vol. XXXII, and a second edition of 1QHodayota published in 2008)
The publication of the texts, however, is merely a starting point. Books like Revealing the Hidden, a systematic study of the Halakhah of Qumran, are the next stage in which students of the corpus attempt to discern a systematic rendering of their topic, in our case the fine points and wider attitude towards the Halakhah at Qumran. These books and articles are interpretive studies that assume a more or less established text of the scrolls (authors do however take more liberties with the text than usual; the fragmentary nature of the texts leaves much to imagination). They attempt to paint a more complete picture of their subject.
The first study of Halakha in Qumranic texts was Halakhah at Qumran published by Lawrence Schiffman in 1975. That work focused mainly on the Sabbath laws. Schiffman’s book was grounded in the then known material, mostly the Damascus Document, two copies of which were preserved in the Cairo Geniza, and published by Solomon Schechter over a century before the discovery of the scrolls. It was an important study, but the lack of material made wide-ranging conclusions tenuous. New Halakhic material was discovered and published over the course of the 1990s, including an almost-complete document known as 4QHalakhic Letter (מקצת מעשה התורה) that listed various points of contention between "us" (the sect) and "you" (probably the Pharisees). This was the turning point in the study of Qumranic Halakha, since it allowed for a balanced and grounded comparison between the sect and its perceived others. Yaakov Zussman (1990) called for a return to the history of Halakha after the discovery of that document, and the subsequent years have seen many projects dedicated to this area. The book under review here is one product of this return.
In a rare collaborative 15-year effort, Aharon Shemesh and Cana Werman set out to present a systemic restatement of Qumranic Law, and to explicate its underlying assumptions. This book is both a culmination and a synthesis of their long work and multiple publications on Halakha at Qumran since the mid 1990s. The eight chapters are divided into two parts: the first is dedicated to the "Sources and Principles" of the Halakhah at Qumran; the second is called "The Mishnah of Qumran" and is dedicated to the gritty details of various areas of Halakhah: Family Life (cap. 5), Tithes (cap. 6), and Community Life (cap. 7), all by Shemesh. Holidays are discussed in chapter 8, a massive 125 pages by Werman.
The synthesis in chapters 1-4 is learned and erudite. The authors attempt to describe a "Priestly Law" that is different from "Pharisaic" or "folk" law. They follow Josephus (and the conventional paradigm) in positing that the Pharisees are closer to the "common folk," whereas the Saducees are more elitist and "priestly." Qumranic Halakha – a "priestly halakha," according to Werman – is thus typified as focused on scripture and less flexible towards the demands of "folk tradition". Ironically, this focus, Werman contends, led to a reading that insisted on coherence, and thus created innovations in Halakhic practice that depart sharply from the Text. I would have liked Werman and Shemesh to discuss this point at more length. If the community is focused on interpreting scripture, would it not be wary of innovation? And if innovation that stems from scripture is acceptable in this community, what about innovation that is quite divorced from scripture, such as the Wood Sacrifice or the Holiday of First Wine?
It seems that the creation of a new community with a high level of ritual tension is an innovation of itself, which required a massive interpretive and creative effort that cannot be explained by attributing everything to the "Priestly" ethos of the community. The Qumranic community is a revivalist movement of born-again religious practitioners who think that everything that happened until their time is wrong, and so they need a new system of ritual and law. Indeed, Werman herself finds a new system in the rewritten Torah of the Temple Scroll as well as the dual Torah of the book of Jubilees. This phenomenon becomes most apparent in her cogent discussion of various means of formulating the law- and particularly in chapter four- where she discusses the progression from rewritten Torah to Law encased in a new narrative framework. A broader discussion of this move, and more than a mere mention of Robert Cover in this context, would have contributed to the synthesis.
Aharon Shemesh's contributions to the general survey are chapter 1, which describes the genres and contents of halakhic writings at Qumran, and chapter 2, which explicates the relationships between these writings and scripture. The genre of "crypto-midrash" (my term) is introduced in the latter chapter: often, rabbinic – and, Shemesh shows, Qumranic – works are arranged according to a specific biblical passage with which it should be read in tandem. The biblical passage should thus serve as an interpretive lens through which one should read the later (rabbinic, Qumranic) passage. There are, for example chapters of Mishnah that are arraged according to verses (e.g. Av. Zar. 2) as well as whole tractates, such as Arakhin (see Balberg, forthcoming). Shemesh shows that Jubilees, not just "canonic" scripture, served as a substratum for a Qumranic list of halakhot (4Q265).
For students of the law, especially Common Law, the idea of creating a coherent whole out of disparate legal sources and decisions is of course not new. Jurists, seemingly do it every day. However, the opportunity to observe the active course of this system in an ancient legal tradition that is not constantly re-creating itself is quite rare. At Qumran we see Jews mining scripture in search of law using complex and sometimes non self-evident techniques that we are usually wont to attribute to the rabbis. Laws were derived and abstracted from both legal and narrative sections of holy writings, and written pithily and succinctly to be learned and obeyed. This discovery in itself is an important one: the rabbis did not invent the genres of Midrash or Mishnah. In fact they were living in an exciting and engaged world that we are now able to glimpse into.
The book is far-reaching and virtually comprehensive. This alone is laudable and makes the book of great value. A few desiderata, however, follow, more as suggestions for future works than critiques of the volume under review.
Vast swaths of Qumran Halakhah are not covered by the second half of the book. The Sabbath laws are glaringly missing from chapter 8 (see most recently Noam 2009, Fonrobert 2004, and Werman 2000; Werman herself is working on a translation of Jubilees and perhaps intends of expounding on the Sabbath laws there). Purity laws do not receive their own chapter; Werman does however devote a section of chapter 4 to a purity-related example, and attempts to explain the concepts of Holiness and Puirty in the sect, on pp. 112-126. (Perhaps the authors felt the task was completed by Noam 2010, and I tend to agree). The laws of the temple or sacrifices are not discussed either. The Laws of the King in the Temple scroll is also not discussed- an instance of midrashic creativity and political aspirations that would have merited inclusion in the first, synthetic part of the book as well as a comparison with rabbinic literature in the second (see e.g. Fraade 2003). This example is but one omission of several broad legal areas; we do not know, however, how many such areas exist as the authors forego any attempts to sort through the material and create an inventory of Halakhic areas discussed at Qumran. They explain this by appealing to the fragmentary nature of the corpus. Yet, I believe that an inventory coupled with this disclaimer could not hurt, and possibly be illuminating, even in a limited way. How much of the corpus discusses purity, or Sabbath laws, or the lifestyle and regulations of the sect? What areas of rabbinic Halakha are not represented? Are there laws that we know the Qumranites kept, e.g. Tefillin, that have no record in the scrolls? This data, even with the knowledge that it could be supplemented any day by new exciting discoveries, is useful.
A discussion of the term "Halakhah" would have been useful as well. What is it in Jewish ritual observance that merits a term? Why could another word not suffice? "Philosophy of Halakha" is a hackneyed catchphrase that has been in currency by scholars of later periods, but could the comparison afforded by Qumranic Law not allow for a more interesting definition of the term and its semantic field?
Revealing the Hidden is a wonderful survey of the genres of Halakhah at Qumran; a set of wider opinions worth considering on the place of the "Priestly Halakha" in the hodgepodge of ideologies current at pre-70 Jerusalem, and a series of monographs on specific areas of ritual and community, including a landmark book-length study of the holidays. The areas it has left fallow are for others to till, but it will serve as a perfect starting point for the study of Halakha as a phenomenon, of the creation of laws from scripture, and of the interplay between community and observance.
References
Doering, Lutz. 1997. "The Concept of the Sabbath in the book of Jubilees." Studies in the Book of Jubilees, ed. Albani, Matthias, Jörg Frey, and Armin Lange, 179-206. Tübingen: Mohr Siebeck.
Fonrobert, Charlotte Elisheva. 2004. “From Separatism to Urbanism: The Dead Sea Scrolls and the Origins of the Rabbinic ’Eruv.” Dead Sea Discoveries 11 (1) (January 1): 43-71.
Fraade, S.D. 2003. “‘The Torah of the King’(Deut. 17: 14-20) in the Temple Scroll and Early Rabbinic Law.” In The Dead Sea Scrolls as Background to Postbiblical Judaism and Early Christianity, ed. James R. Davila, 31–39. Leiden: Brill.
Noam, Vered, and Elisha Qimron. 2009. “A Qumran Composition of Sabbath Laws and Its Contribution to the Study of Early Halakah.” Dead Sea Discoveries 16 (1): 55-96.
Schiffman, Lawrence H. 1975. The Halakhah at Qumran. Leiden: Brill.
Werman, Cana. 2000. “CD XI:17: Apart from Your Sabbaths.” In The Damascus Document; a Centennial of Discovery; Proceedings of the Third International Symposium of the Orion Center..., 1998, ed. Joseph M. Baumgarten, Esther G. Hazon, and Avital Pinnick, 201-212. Leiden: Brill.
זוסמן, יעקב. 1989. "חקר תולדות ההלכה ומגילות מדבר־יהודה —הרהורים תלמודיים ראשונים לאור מגילת 'מקצת מעשי התורה'", תרביץ נט: 11-76.
נעם, ורד. 2010. מקומראן למהפכה התנאית: היבטים בתפיסת הטומאה. ירושלים: יד יצחק בן-צבי.
