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David, “The Notion of Tolerable Error from the Mishnah to Maimonides”

May 29th, 2013

Joseph E. David (University of Oxford - Faculty of Oriental Studies) has posted The Notion of Tolerable Error from the Mishnah to Maimonides (Toleration within Judaism [The Littman Library of Jewish Civilization, 2013]) on SSRN. Here is the abstract:
Since the concept of error belongs to the field of epistemology whereas tolerance belongs to the field of political philosophy, the notion of tolerable error in a jurisprudential context inhabits a territory in which two disciplines intersect. It is necessary to clarify under what circumstances judicial errors may be tolerated and on what grounds the toleration of certain errors may be justifiable.

Schraub, “Our Divine Constitution”

May 24th, 2013

David H. Schraub has posted Our Divine Constitution (44 Loyola University Chicago Law Journal 1201 [2013]) on SSRN. Here is the abstract:
The presumption that God is omnibenevolent — inherently just, wise, kind, and merciful — is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoken of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself. In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we think it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.

David, “Dwelling Within the Law: Nahmanides’ Legal Theology”

May 23rd, 2013

Joseph E. David (University of Oxford - Faculty of Oriental Studies) has posted Dwelling within the Law: Nahmanides’ Legal Theology (Oxford Journal of Law and Religion [2013]: 1–21) on SSRN. Here is the abstract:
The great medieval Jewish jurist and thinker R. Moses b. Nahman (1194-1270) developed an exceptional legal-theology unprecedented in traditional rabbinic thought. In jurisprudential terms, he reduces the Jewish traditional perception of the Halakhah (i.e. the Talmudic law) and introduces the view of the divine law as a territorial law. My article suggests reading anew his sayings about the God-law-land matrix against the background of his contemporary European Christendom. Our analysis raises new perspectives on his attentiveness to the conceptual vocabulary of the Crusades’ propaganda and the European legal reality.

An Old Science: A Review of Stroumsa, A New Science: The Discovery of Religion in the Age of Reason

May 22nd, 2013

An Old Science

Guy G. Stroumsa, A New Science: The Discovery of Religion in the Age of Reason. Cambridge, MA: Harvard University Press, 2011. 240 pp. $36.50. By Mordechai Levy-Eichel   It is good to ask large questions. To take a stab at answering them, scholars often have to take into account not only the topics they already have a position on, but also a host of other related points which they may have previously avoided (sometimes for good reasons, and sometimes not for such good reasons).  To his credit, in his recent publication, the scholar of ancient religion Guy Stroumsa (professor emeritus of comparative religion, Hebrew University, and Professor of the study of the Abrahamic religions, Oxford University) asks a very large and provocative question, indeed: When and why was the modern discipline of religious studies, or in Stroumsa’s words, “the modern science of religion,” born? The term science is not meant to echo the mathematical and empirical work of the contemporaneous scientific revolution of early modern Europe, but also to highlight the connection with attempts like Giambattista Vico’s La Scienza Nuova [The New Science] to comparatively study society and religion. Ambitiously, Stroumsa’s book is an “epistemological reflection on the very roots of the modern study of religion” written through a historical lens. The problem with asking large questions, however, is that it too often allows one to describe forces and movements from such a high vantage point that one can easily miss the elements that make any particular landscape unique. Although Stoumsa’s book is full of detailed studies and the examination of individual works, the very breadth of his coverage, and the swiftness with which he jumps from idea to idea and across centuries leave one skeptical of whether his sources quite so easily and clearly lend themselves to the conclusions he seems to have arrived at nearly effortlessly. Stroumsa’s book is the work of a lumper, not a splitter, to employ the terms popularized the historian J.H. Hexter. Whereas splitters focus on quirks and exceptions, lumpers note connections, similarities, and parallels perhaps a little more frequently than may be warranted. Despite his attempt to substantiate his argument through several individual case studies, the relative neglect of the biographical and intimate in these chapters themselves lead to Stroumsa diminishing the power of his own argument. While religion can and should be analyzed socially, and prosopographically, and exegetically, experiences of it are so idiosyncratic that such approaches by themselves are hardly sufficient. *A New Science is composed of six chapters, plus an introduction and an epilogue.  As the author notes at the end, while most of the chapters are based on previously published articles, they have been “significantly revised and expanded” for publication here. And while the epilogue ends on a whimper as the investigations of Stroumsa’s early moderns are discounted by their 19th century successors, his introduction begins with a bang. Stroumsa spiritedly contends that there were three particular changes in early modern Europe whose “joint effects” permitted “the formation of a new kind of intellectual curiositas and the birth of comparative religion.” First, there was the impact of the “Great Discoveries…of the Americas and then South and East Asia”; second, a “ new interest in antiquity and the growth of modern philology”; third, the end of the Wars of Religion, whose violence and divisions “had cast doubt on the validity of Christianity itself.” These three changes together, in Stroumsa’s schema, provided the “impetus for the new science.” Above all Stroumsa seeks to challenge two mainstream assumptions. The first assumption is that the modern discipline of religious studies was the product of the 19th century:
Comparative religion is too often perceived as having been born, like other comparative sciences, in the second half of the 19th century, under the influence of biology…[s]uch a perception must be strongly qualified. The real breakthrough in comparing cultures and religions and the most significant passage from the medieval worldview…to modern approaches, stems from the seventeenth-century transformation of discourse on religion.
The second assumption Stroumsa takes issue with is a bit more subtle, but perhaps is an even more important note to hit these days given the influence of Edward Said’s Orientalism. Said’s work, fairly or not, has been taken by many to reveal the fundamentally imperialistic nature of much inquiry into and representation of the “Orient.” Stroumsa does not seek to dismiss Said’s arguments, but rather to add a neglected element to our portrait of our intellectual forebears. “What Said did not see, and what too many forget or fail to remark, is that for scholars to invest so much energy throughout their lives in the study of difficult languages, abstruse mythologies, and odd literatures, they must be inspired by intense intellectual curiosity. Such intellectual curiosity goes a long way toward transforming traditional patterns of thought.” Given certain recent historical trends, most especially the emphasis on material history, and on networks and connections among past actors and thinkers (both usually salutary and revealing developments, I hasten to add), this highlighting of individual curiositas stands out. Curiosity, passion, anger, and love are also historical factors, even if they are more often invoked by poets than by historians. As Anthony Grafton, a historian of early modern Europe sagely, severely, and playfully put it:
Becoming a humanist, let us remember, is not just signing up for a job. It certainly does not open the way to power or wealth: scholar has never rhymed with dollar. To become a trained humanist, rather, is to join a tradition, which has usually been embattled, while parents scream "No, for God's sake go to law school!" (That is what Petrarch's father said to him, thereby inaugurating a great tradition.) In the old days, a professor did not receive a job offer, but a "call"--as ministers and rabbis did. To enter this tradition, you have always needed intellectual ability and technical skills, but even more you need conviction and passion and determination.
Lest we moderns too quickly think of curiosity as a nearly unalloyed good, the impulse has not always been seen in a favorable light. It was widely considered “a form of aimless erudition” in the middle ages (according to the historian Edward Peters) and was a sin (that he himself was eminently guilty of) according to St. Augustine in his Confessions. In short, Stroumsa is drawing attention not only to the historically underappreciated quality of inquisitiveness, of the primal sense of questioning that motivated much of the writings Stroumsa examines, but also to the amalgam of motives that go into the composition of anybody’s curiositas. The subsequent chapters, marked by the Stroumsa’s verve and erudition—the sheer range and span of primary and secondary works cited is one of the chief attractions of this volume—make for much slower going, however. Full of darting insights and novel connections, the reader of the volume can easily get lost in the details of each of the studies. The book is therefore best not read from cover to cover, but rather as a resource to dip into for those curious about anything from the early modern transformation of the traditional category of idolatry (chapter 4) to the development of civil religion (chapter 7). Otherwise, even the reader familiar with the period will likely get dizzy joining Stroumsa as he zips along the early modern intellectual autobahn. The underlying theme Stroumsa bring up again and again are the fresh comparisons early modern (mostly Christian) scholars found themselves both driven and forced to make: between themselves and Jews, and Muslims, and Buddhists, and Zoroastrians, and early Christians; between themselves and Indians, and Chinese, and early Romans; and perhaps most explosively, between each other as Europe divided itself between Catholic and Protestant sects who criticized, condemned, and occasionally collaborated with each other. Whether travelling by sea, or wallowing in ancient texts with fresh scholarly techniques, historical and cross-cultural comparison was the animating feature of the development of the new discipline of religious studies.


Perhaps the most interesting and stark omission in Stroumsa’s volume is much about the actual new science of this period, or as we usually call it these days, the scientific revolution. More often than we might like to admit most of us usually think in terms of a short and powerful story about the creation of the modern world. Whereas during the medieval period the world was pious, uncritical, and ignorant, today the (western) world is irreligious, critical, and always producing more knowledge. The largest impetus for this change was the advent of modern science, and one of the most radical consequences of it has been the decline of religion and the rise of secularism. The frankly Christian historian Sir Herbert Butterfield, who himself was largely responsible for the dissemination of the term “the scientific revolution” in his The Origins of Modern Science 1300-1800, declared that this change
overturned the authority in science not only of the middle ages but of the ancient world—since it ended not only in the eclipse of scholastic philosophy but in the destruction of Aristotelian physics—it outshines everything since the rise of Christianity and reduces the Renaissance and Reformation to the rank of mere episodes, mere internal displacements within the system of medieval Christendom. Since it changed the character of men’s habitual mental operations even in the conduct of the non-material sciences, while transforming the whole diagram of the physical universe and the very texture of human life itself, it looms so large as the real origin of the modern world and of the modern mentality that our customary periodisation of European history has become an anachronism and an encumbrance.
Fundamentally, Stroumsa is trying to provide part of an alternative narrative to this widespread notion that natural science has been an acid slowly corroding religious habits and institutions since the end of the middle ages, as if the only choice is to be modern and materialistic, or medieval and religious. Modernity sometimes seems to be characterized by nothing so much as people declaring how alienated they are from their roots, religious or otherwise.  What is interesting therefore is how little of a sense of internal personal angst comes out in of the personal sketches of the polymaths who populate the volume, how little the supposed absence of god marks them. Now this may simply be a consequence on the fact that biographical details are primarily used as garnish in his volume, not as the objects themselves of consideration. We know from the non-scholarly polemics, including letters, memoirs, and autobiographies, there was no shortage of self-reflection, Leon Modena’s own autobiography Chaye Yehuda [Life of Judah], being one of most accessible of the genre today, complete with multiple introductions in a modern—and translated—edition. While it is the force of comparison, historical and cross-cultural, which Stroumsa is so intent on pushing as the decisive element of the modern study of religion, it is especially interesting how the Sturm und Drang of much modern religious writing is absent from Stroumsa’s narrative. What does this imply? One is tempted to answer, a little too quickly, that Stroumsa’s subjects were still living in a religious world, and that’s that…yet that really just begs the question. Stroumsa is implicitly arguing that the science of religion, the comparative and critical discipline of religious studies, did not lead to the diminishment of devotion and reverence for their own traditions among the practitioners of this new science, despite the iconoclastic sheen to the modern academic study of religion. Rather such research, inquiry, and comparison was itself a novel way engaging both with their own customs and rituals and those of others for many of these early modern intellectuals. The modern turn to the comparative study of religion may be new, but it is hardly necessarily in conflict with older habits. One could say, that despite the prescribed liturgy, there are many ways to pray.      

Review of Gottlieb, Faith and Freedom: Moses Mendelssohn’s Theologico-Political Thought

May 13th, 2013

Michah Gottlieb, Faith and Freedom: Moses Mendelssohn’s Theologico-Political Thought. Oxford: Oxford University Press, 2011. 224pp. $55.00 By Paul E. Nahme In the past decade, Moses Mendelssohn’s work has been the subject of renewed study and interpretation with growing interest in his philosophical writings, biblical commentary and translation work, as well as his general historical significance for modern Judaism. While many recognize Mendelssohn’s importance, there is however no single systematic and authoritative explanation of his work. Alexander Altmann’s magisterial 1973 biography of Mendelssohn is perhaps the closest to an exception of this characterization, but it nevertheless distills Mendelssohn’s life through the lens of a biographical rather than a systematic narrative. Instead, many contemporary explanations for Mendelssohn’s continued relevance range from focus upon his political writings and his attempt to reconcile liberalism and Jewish tradition, to his epistemological and theological sincerity, his significance as an interlocutor of the philosophies of Leibniz and Kant, to historical studies of his involvement in polemics with Johann Kasper Lavater and Johann David Michaelis, and perhaps most importantly for the history of nineteenth-century German philosophy, his debate with Friedrich Heinrich Jacobi concerning the role of Spinozism and Pantheism in the thought of their mutual friend Gotthold Ephraim Lessing. Each of these approaches reveals something deeper at work in Mendelssohn’s general philosophical motivations, a motivation perhaps impossible to fully reveal. The work under review, Michah Gottlieb’s Faith and Freedom: Moses Mendelssohn’s Theologico-Political Thought, stands out as an attempt at both representing Mendelssohn’s thought in systematic terms and at reconciling these competing spheres of politics and metaphysics. Indeed, Gottlieb combines stellar intellectual history and precise philosophical exegesis to probe one possible motivation tying together Mendelssohn’s many voices. Gottlieb focuses upon what I believe to be one of the most relevant consequences of Mendelssohn’s thought for modern Judaism: the theologico-political predicament. While the term evokes images of Weimar-era debate, the theologico-political predicament, as Gottlieb rightly treats of it, comprises the epistemological and metaphysical debates surrounding rationality, freedom, human action, and the orientation of human knowledge. Gottlieb situates these philosophical arguments within the context of a political philosophy of Enlightenment rationalism, and uses this larger concern with the theologico-political in order to stake out a position between two dominant interpretations of Mendelssohn. On the one hand, Allan Arkush has argued that many of Mendelssohn’s arguments attempting to present an epistemological and metaphysical defense of traditionalist Jewish theology are either problematic or fail outright and that a more accurate understanding of Mendelssohn may be found in interpreting him as a covert deist who believes Judaism is a the more compelling framework for this deeper argument. On the other hand, David Sorkin has argued that Mendelssohn synthesizes Enlightenment rationalism and Jewish traditionalism on the model of “Andalusian rationalism” and that complete harmony between rationalism and Jewish traditionalism is indeed his goal. According to Gottlieb, a more accurate interpretation is that Mendelssohn should be read as a theologian and that he “does what all theologians do; namely, he adopts a selective attitude toward the Jewish tradition, drawing on sources that reflect his deep-seated commitments and ignoring or marginalizing contrary perspective” (9). Considering the sources of influence for Mendelssohn that Gottlieb addresses most explicitly, namely, Maimonides and Spinoza, it is a compelling argument. And all this is in addition to the book’s greatest contribution: a focus upon the Pantheism controversy between Friedrich Heinrich Jacobi and Mendelssohn as the fundamental site of the latter’s theologico-political arguments, where Gottlieb stakes out a new direction for the study of Mendelssohn. Gottlieb begins by placing Mendelssohn in direct confrontation with Spinoza and Maimonides (chapter 1 and 2), his two greatest Jewish philosophical influences. Through a careful interpretation of how Maimonides’ rationalization of God’s negative attributes drove a wedge between divine providence and natural necessity, which was exploited by Spinoza, Gottlieb shows how one of Mendelssohn’s fundamental claims is that the Bible has a basic insight into the idea of God’s goodness and that Mendelssohn’s attempt is to philosophically justify such a view (10, 20), not only as a theological or metaphysical concept but also as a political one. Through Gottlieb’s discussion of the debates of early modern philosophy, from the occasionalism of Malebranche to the doctrine of pre-established harmony of Leibniz, two theories relating mind and body or nature and reason, he conveys this historical context back to Mendelssohn’s original attempts in his Philosophical Dialogues at understanding the meaning of “God’s goodness” in terms of “happiness,” since “an omnipotent, all-good God seeks our happiness and the development of our faculties” (21). The very idea of Providence, therefore, has a practical importance. But just what significance the idea of God has for politics remains to be explored within the context of law. And since Maimonides and Spinoza fundamentally differ upon just this point of contact between metaphysics and politics in the law, Gottlieb’s second chapter furthers this line of reasoning. In chapter 2, Gottlieb examines both Spinoza and Maimonides’ attempts to relate knowledge and practice within the sphere of law. Gottlieb provides a thorough treatment of Spinoza and Maimonides not only in the manner that Mendelssohn interpreted them, but also through carefully reconstructing these thinkers in their own philosophical terms and contexts. Here Gottlieb’s responsible work as an intellectual historian is tightly woven into his skilled exegesis. But after such a review of Spinoza and Maimonides, Gottlieb’s achievement also lies in showing how Mendelssohn’s adaptation of these various influences conditions his position in the Pantheism controversy and his stance on Enlightened Absolutist politics. For example, whereas Maimonides clearly believed that the law was a vehicle for perfection of the intellect, Spinoza famously derided the law as just the hindrance to perfect human imagination and intellect. For Gottlieb, one of Mendelssohn’s major concerns in interpreting these thinkers lies not in refuting either precursor, but in synthesizing their philosophical positions according to the demands of his own political context. Hence, Gottlieb maneuvers from philosophical precision to unpacking the historical context of Frederick the Great’s Enlightened Absolutism to shore up one particularly important theme in Mendelssohn’s work; namely, that an aesthetic dimension of perfection relegates the hierarchical ordering of either Maimonidean or Spinozan theories of human perfection, and focuses more squarely on a “humanistic” element (44). Indeed, Mendelssohn’s doctrine of common sense is interpreted by Gottlieb as another attempt at reconciling Biblical insight into the Good with rational perfection, whereby even the indistinct, intuitive common judgments which all people make of aesthetic and even religious beliefs can nevertheless enable the non-philosopher to grasp both ethical and metaphysical truths. Common sense becomes “a way of perfecting one’s intellect that is available to all” (45). But this expanded meaning of rationalism also enables Gottlieb to view common sense as the vehicle for his unique argument concerning Mendelssohn’s theologico-political contribution, and by framing the argument in theses terms, he can advance a middle position between the interpretations Arkush and Sorkin. Since the laws derived from the Bible indicate that goodness and human flourishing are the proper goals of duty, and common sense can judge happiness and flourishing as a goal, practice rather than dogma can constitute the basis of perfection. Only after having proper actions can one attain proper metaphysical beliefs, hence, the enduring significance of the halakha (54). While this seems a compelling interpretation of Mendelssohn, one remaining point of clarity could be made concerning whether this was not equally the view of Maimonides as well, although Gottlieb certainly accounts for the scholarship informing his preferred presentation of Maimonides as an Aristotelian. Nevertheless, with a view toward the practical consequences of metaphysical and epistemological arguments and beliefs, Gottlieb is able to introduce the pre-modern Jewish philosophical dimension of Mendelssohn’s thought into his discussion of the Pantheism controversy, a unique scholarly contribution in its own right. In 1785 Mendelssohn was embroiled in a public debate concerning Spinoza’s philosophy with the pietist Christian philosopher, Friedrich Heinrich Jacobi. Known as the Pantheismusstreit, this debate centered on whether their mutual friend, the famous German playwright G.E. Lessing, had professed a secret commitment to “Spinozism.” Briefly put, in the seventeenth and eighteenth centuries the problem of determinism in relation to human freedom in Spinoza’s thought had been designated as antithetical to Theism, and of course to Orthodox Christian theology. Thus, the claim of “Spinozism” was often taken as libelous. Yet the debate between Jacobi and Mendelsson had a lasting influence on the following century, becoming a question of how to ground all human knowledge in a first coherent and immanent principle while securing human autonomous reason. Hence, the unique blend of medieval and early modern thought, which many scholars have noted in Spinoza’s philosophy, as well as the symbolic representative of a Sephardic or Spanish Philosophical tradition, was insinuated into eighteenth- and nineteenth-century German Philosophy, and in this respect, Gottlieb has precisely characterized a hidden dimension of Jewish thought within modern German Philosophy. Chapters 3 and 4 therefore translate the arguments concerning Mendelssohn’s intellectual formation into a deeper understanding of the Pantheismusstreit, understood as a leading example of how these metaphysical and epistemological arguments bear upon the political sphere. Indeed, it is through the careful navigation of seemingly unrelated problems in the previous two chapters that Gottlieb now ties together what I believe is a unique argument concerning the political stakes of this controversy. After surveying the historical dimensions of both Mendelssohn’s and Jacobi’s relationships with Lessing and their various conversations, Gottlieb presents Mendelssohn’s proposal that Lessing held a “modified Spinozism” as an argument attempting to reconcile political rationalism and freedom with enlightened religious conviction. By breaking down Mendelssohn’s arguments against Spinoza more systematically, Gottlieb is able to better represent what he sees as Mendelssohn’s political attack on Jacobi. The major thrust of this argument against Jacobi hinges upon Mendelssohn’s identification of a difference between two types of truth, infinite and finite. While infinite truth is the agreement between all particulars or things as they actually exist, and the mind, finite truth is a consensus reached between finite subjects concerning “certain” and “probable” truths, which is to say, between sense impressions or aesthetic judgments, which are probably true, and mathematical axioms which might be certain but are not “actually” found in existence. In either instance, however, finite truth must be ratified as shared or common representations, which other human beings also hold. As part of his attack on Jacobi, Mendelssohn’s distinction between these kinds of truth enables him to defend the principle of sufficient reason against Jacobi’s charge of determinism and rather enables him to explain how uncertain knowledge need not be reduced to the principle of sufficient reason, since according to Mendelssohn the latter is deducible from the principle of non-contradiction. Hence, the principle of non-contradiction becomes the keystone of reason, and even socially held, finite truths can be oriented better on the basis of this principle. But even further, Mendelssohn’s attack on Jacobi also involves reinterpreting Spinoza, and this is part of Gottlieb’s nuanced contribution to study of the Pantheism controversy. For example, in addition to his rendering of finite and infinite truths as a means to defending the principle of sufficient reason against Jacobi’s reductive interpretation, Mendelssohn also sees the distinction between intensive and extensive magnitudes as a means of rescuing arguments on behalf of providential theism. While the distinction between magnitudes enables Mendelssohn to rescue Lessing’s affirmation of the cosmos comprising an infinite number of causes, this infinite causal series is not the same as the intensive, infinite force of a magnitude that could be identified with God, the creator. Rather, the intensive infinite and the extensive infinite must be distinguished, according to Mendelssohn, in order to retain the freedom, particularity, and individuality of each human being, which we intuit through our faculty of common sense (97ff). While this example is just one of a set of four arguments that Gottlieb outlines in his characterization of Mendelssohn’s position, I believe it is an acute demonstration of the richness of his study of Spinoza’s impact on Mendelssohn. By contrast to Mendelssohn’s attempt to critically renegotiate with Spinoza’s philosophy, Jacobi argued that Spinozism sees the primary distinction of thought and extension as an attempt at construing the infinite both analytically and synthetically. Hence, God is both intensive and extensive, natura naturans and natura naturrata. But while Gottlieb weaves these considerations into a larger argument, I believe he builds a case wherein this distinction between intensive and extensive becomes part and parcel of Mendelssohn’s later discussions of infinite and finite truth. This argument concerning two types of truth follows the assumption that infinite truth could only remain the property of God, while finite truth, divided into certainty and probability, relates to shared representations of the world around which human beings, qua finite agents, orient themselves (91). In my view, this distinction is one of Gottlieb’s most compelling reconstructions of Mendelssohn’s thought for future study, and is sustained through Mendelssohn’s defense of Lessing, primarily his Natan der Wise. The distinction between infinite and finite truth also leads to what is yet another example of Gottlieb’s reading of Mendelssohn as having contemporary significance, namely, that we should understand Mendelssohn as a “religious pragmatic idealist” (ibid.; 116), a position that endorses a metaphysical claim based upon the degree to which such a claim can advance our goal of happiness, the good, and general human flourishing, rather than its ontological and metaphysical certainty. Indeed, the defense of uncertain beliefs, including common sense, helps articulate this “pragmatic” appellation of Gottlieb’s Mendelssohn.  And while I believe Gottlieb has presented us with sufficient material to corroborate such a claim and reconstruction of Mendelssohn’s thought, I want to conclude with a brief consideration as to why I think this latter claim falls short of its full potential. Short of a brief consideration of this dual-layered theory of truth, Gottlieb does not present a full account of what could have been his most acute argument on behalf of this “pragmatic religious idealism.” If Gottlieb’s argument is correct, then Mendelssohn becomes a prime example of where Jewish thought can be mined in its normative dimensions. For example, since finite truth requires a social agreement concerning meanings, symbols, and truths, this “sociality of reason” enables human beings to interpret their world in communicative agreement, without imposing mutually exclusive religious dogmas upon each other. Without requiring commitment to wholly unknowable truth, as Jacobi’s mysticism would have it, and likewise without submitting to the kind of despotic political organization that Jacobi defended, Mendelssohn’s theory of rational religion (Verunftreligion) could be recovered as a kind of social semiotics or a theory of representation that helps explain the religious pluralism of the post-secular world, while seeking a normative basis for politics beyond parochial commitments. Indeed, Gottlieb makes gestures at what this might look like in his conclusion, but only in terms of a promissory note. I believe that the epistemological and metaphysical arguments presented in Faith and Freedom lay the foundation and beckon further study of what this pragmatic religious idealism might look like in just as rigorous of a philosophical presentation as Gottlieb achieves in his exposition of Mendelssohn. For example, would Mendelssohn’s argument concerning infinite and finite truth bear criticism from the realm of normative interpretations of Hegel, such as those of Terry Pinkard, Robert Pippin, and Robert Brandom? Would the dialectical self-reflection on our social institutions of knowledge find room in Mendelssohn’s account? Similarly, we could approach this question from a perspective that has come to the fore in recent scholarship in Jewish thought, namely, the role of Protestantism in the development of an actual category of “religion” within the eighteenth and nineteenth centuries. Indeed, this added insight might shed light on how Mendelssohn might have had an additional concern with reinterpreting Maimonides and Spinoza through the lens of a “religious pragmatic idealism”, since this interpretation would allay any potential reductions of Judaism to Spinozism. That the latter may be a concern is suggested by Mendelssohn’s weariness of misconstrued presentations of Spinoza, to which he gestures in naming Lavater and Jacobi in a “common plot” against him (76); namely, a philosophical campaign of anti-Judaism. An additional chapter exploring these ramifications of Gottlieb’s erudite interpretation of Mendelssohn would be a welcomed addition, and regardless, should become an avenue of further research based upon Gottlieb’s groundwork. While it remains to be seen how the full extent of Mendelssohn’s thought can be recovered in a larger philosophical and even political context, the significance of the contribution in Faith and Freedom is that a clear path for such work can now be historically contextualized and charted. We find in it a welcome and, I believe, accurate assessment of what has been a forgotten dimension of the Pantheism controversy. While Gottlieb acknowledges the Weimar-era fascination with the controversy in service of larger socio-political arguments, wherein Leo Strauss counts as quite prominent, the emphasis of Faith and Freedom upon careful intellectual history, philosophical exegesis, and balanced assessments of medieval and early modern philosophical contexts makes Gottlieb’s work a new milestone in Mendelssohn scholarship and should become required reading for all students of Modern German-Jewish thought.

Review of Dolgopolski, The Open Past: Subjectivity and Remembering in the Talmud

May 9th, 2013

Review of Sergey Dolgopolski, The Open Past: Subjectivity and Remembering in the Talmud. New York: Fordham University Press, 2013. 392 pages. $65.00 By Lynn Kaye Assistant Professor of Rabbinics Hebrew Union College-Jewish Institute of Religion   Sergey Dolgopolski’s The Open Past: Subjectivity and Remembering in the Talmud offers a sustained philosophical description and critique of modern critical Talmud scholarship. It is an ambitious and challenging piece of work. Because he presents a description of the methods of modern critical Talmud scholarship (especially as they address the Talmud’s redaction) in light of theoretical models as disparate as Greek philosophy , Heidegger and modern filmmaking, there is a lot happening in the book. Dolgopolski offers the language, themes and texts of contemporary critical theory as portals through which to grasp the distinctiveness of Talmudic thinking and presentation of material. This approach is refreshing, but might also be challenging for readers who have less philosophical background. The book is especially intriguing to me since Dolgopolski’s discussion of memory involves an approach to Talmudic temporality, the subject of my doctoral dissertation. According to Dolgopolski, memory is the primary conduit for thinking in the Talmud. Its associative connections evoke film montage, a metaphor he uses to describe the temporality of Talmudic redaction. “The time line of the Talmudic montage is in no way a time of linear progression from one point of presence to the next, not even in the sense of going from a present in the past to what ‘now’ stands for as the present in the present…Hiddush or invention, the intellectual event of the Talmud is the discovery of something that has always been there, but that does not belong to any present whatsoever” (244). Memory’s rupture of conventional temporal structures mirrors Dolgopolski’s methodology in the book. Talmudic practice is compared with classical and contemporary philosophical understandings of memory, thinking and who thinks, as a corrective to the prevailing historical Talmudic scholarship. Critical Talmudic scholarship has centered on the way the Talmud came to be. When were traditions gathered, and by whom? Was this done gradually, with a center of preserved material growing layer by layer, or did formal compilation occur mostly later? What is the source of the anonymous debates and discussions that weave together sayings attributed to Amoraim in Palestine and Babylon? Why are they anonymous while the originators of other material are cited by name? Dolgopolski examines the philosophical assumptions underlying theories about the identity and functions of Talmudic editors, focusing primarily on the work of David Weiss Halivni and Shamma Friedman. These scholars have observed textual phenomena and sought to project a history of how these phenomena came to be, while Dolgopolski seeks to reframe the project. “The question … should be asked differently, in terms of what Talmud those functions produce, not only and not primarily in terms of the historical chronology in which this production took place” (246). His book explores notions of authorship in the Talmud and the mode of being or existence suggested by the role of remembering. Dolgopolski seeks to untangle assumptions about the personhood of the thinker and its relation to thought and memory. He highlights “the inapplicability of the modern concept of ‘thinking subject’ to the period of late antiquity”(3). In his view, intellectual practices in the Talmud do not logically presume an empirical author or thinker either standing outside the production, or even within it. “Understanding memory in the Talmud involves the question of personal being as such, or a performed existence…the remembering being who is performed in the Talmud” (40). What makes the Talmud’s understanding of memory, thought and subjectivity distinct from other classical and modern traditions is that, “in the Talmud, an individual…exists first of all as one who remembers the traditions…of the past…His or her remembering may include and in many cases requires the critical analysis of the data of memory but thinking remains an added feature, and remembering stands at the core of what it takes to exist as a talmid hakham” (42). In other words, remembering is the primary mode of intellectual engagement, critical analysis is a secondary tool, and these processes constitute the existence of the individual. Dolgopolski frequently includes references to modern literature to illustrate his points, such as the figures of Mark Twain and Samuel Clemens in his discussion of authorship. In the course of the book he retraces the classic critical Talmudic questions, formulating them in fresh terms, couched within ideas from both the analytic and the phenomenological philosophical traditions. In this way, the book makes the intellectual categories and processes of Talmud accessible to scholars of the humanities, especially of literature and critical theory. For Talmudists, the book is an unusual critical companion to the discipline, not only to the Talmud. In a way, this book is like certain works of Jewish historiography such as Y.H. Yerushalmi’s Zakhor, which simultaneously describe, contribute to and question the assumptions and practices of a discipline. In this book, Talmud scholars have something like literary criticism of their own discipline, as well as a new way to look at the Talmud itself.

Tamanaha, “The Third Pillar of Jurisprudence: Social Legal Theory

May 9th, 2013

Brian Z. Tamanaha (Washington University in St. Louis School of Law) has just posted "The Third Pillar of Jurisprudence: Social Legal Theory" on SSRN. Here's the abstract:
Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.  

Lytton, _Kosher: Private Regulation in the Age of Industrial Food_

May 7th, 2013

Timothy D. Lytton has just published Kosher: Private Regulation in the Age of Industrial Food with Harvard University Press. From the publisher's blurb:
Generating over $12 billion in annual sales, kosher food is big business. It is also an unheralded story of successful private-sector regulation in an era of growing public concern over the government’s ability to ensure food safety. Kosher uncovers how independent certification agencies rescued American kosher supervision from fraud and corruption and turned it into a model of nongovernmental administration. Currently, a network of over three hundred private certifiers ensures the kosher status of food for over twelve million Americans, of whom only eight percent are religious Jews. But the system was not always so reliable. At the turn of the twentieth century, kosher meat production in the United States was notorious for scandals involving price-fixing, racketeering, and even murder. Reform finally came with the rise of independent kosher certification agencies which established uniform industry standards, rigorous professional training, and institutional checks and balances to prevent mistakes and misconduct. In overcoming many of the problems of insufficient resources and weak enforcement that hamper the government, private kosher certification holds important lessons for improving food regulation, Timothy Lytton argues. He views the popularity of kosher food as a response to a more general cultural anxiety about industrialization of the food supply. Like organic and locavore enthusiasts, a growing number of consumers see in rabbinic supervision a way to personalize today’s vastly complex, globalized system of food production.
(HT: Legal History Blog)

Yosef Salmon, “Christians and Christianity in Halachic Literature from the End of the Eighteenth Century to the Middle of the Nineteenth Century”

May 6th, 2013

Among other articles, the most recent issue of Modern Judaism includes Yosef Salmon, "Christians and Christianity in Halachic Literature from the End of the Eighteenth Century to the Middle of the Nineteenth Century." The article is only available to subscribers, but here's the free extract:

In his book Exclusiveness and Tolerance: Studies in Jewish-Gentile Relations in Medieval and Modern Times, Jacob Katz outlined Ashkenazi rabbinic attitudes and conduct toward Christians from the time of Rabbeinu Gershom Me’or Ha-Golah until and including Moses Mendelssohn.1 In this article, we will try to fill in the gaps that we believe exist in Katz’s treatment of the subject.

As a rule, the Jews in the Middle Ages related to the Christians on the theoretical level as idolaters, while they were forced on the practical level to adopt a more moderate attitude toward the Christians for economic reasons.2 The generalization of viewing Christianity as an idolatrous religion went through a process of qualification within the context of the practical needs of the Jewish community during the Middle Ages, such as the permissibility of transacting business with Christians on their holy days. These qualifications were based on the position of Rav Yochanan that “Gentiles in the Diaspora are not actually idolaters, but merely maintain the practices of their ancestors”, or as alternatively formulated by Rashi and other halachic authorities in the Middle Ages: “Gentiles in our times are not well versed in the nature of idolatry.”3 Another qualification voiced by the Tosafists, and reiterated in the 17th and 18th centuries, indicated that “The sons of Noah are not prohibited regarding ‘shittuf’ (i.e., belief in the Trinity).” In other words, only the Jews are required to believe in absolute monotheism, in contrast to others, such as the Christians, whose belief in the Trinity does not constitute a violation of the prohibition of idolatry.4 These qualifications, which already appeared in rabbinic literature in the Middle Ages, did not flow from a principled approach but were designed to create leniencies in matters of business relationships with idolaters that were forbidden to Jews by Talmudic law, and that were untenable for the conditions within which the Jews lived in the Middle Ages as a minority group within a Christian majority.