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Monday, May 25, 2020
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The most frustrating conversations are with those with whom we have deep fundamental disagreements. If conducted in the right spirit, without personal animus and with sincere dedication to the pursuit of truth, they can be very rewarding. When we surround ourselves only with those who see things exactly as we do, we limit our growth. When we surround ourselves only with those with whom we have fundamental disagreements, we never get past the same discussions. We need a balance between the two.

I have such a dear friend, a moral philosopher who is a Torah observant Jew. Our fundamental disagreement, one which we can never get past, concerns the relationship between God’s Law and God’s morality. Because the answers to such momentous questions lie at the heart of one’s hashkafa, we need to explore them periodically, testing the current state of our thinking for validity and coherence. Parshat Shoftim gives us such an opportunity.

After stipulating that the Kohanim receive Divine gifts in place of a tribal portion of the land, the Torah enumerates the Matnot Kehuna. When the meat is slaughtered for consumption, they receive the right shoulder, the two bones of the lower cheek, and the stomach or gullet. The Ramban contrasts the midrashic reading on the significance of these body parts to that of the Rambam in the Moreh Nevuchim. The former identifies each of the body parts with a feature of the zealous act of Pinchas. The right shoulder representing the shoulder with which Pinchas took the spear in his hand, the cheek bones representing the prayers he verbalized, and the stomach representing the organs of his victims, penetrated by his spear. In other words, the Matnot Kehuna are not a sinecure for the Kohanim but a reward for the acts of their ancestor. In the Moreh Nevuchim, however, the Rambam offers a more direct explanation: each of these organs is the most select of the animal’s body parts, the shoulder being the most select of the extremities, the stomach of its innards, etc. The Matnot Kehuna represent then the recognition that the best goes to God, in this case through the Kohanim who have been designated to serve Him.

This is not the only such explanation that the Rambam proposes. In chelek gimmel of the Moreh Nevuchim, we find a broad selection of other mitzvot for which he offers rational bases. There is no question that the Rambam maintained that the mitzvot each convey a benefit upon Am Yisrael. At the same time, Jewish law retains its positivist basis for observance since these benefits are not the rationale for observance. The Rambam makes an important move that allows him to accommodate within his approach both the inherent rationality of the Law with its positivist basis for observance: the general outline of a particular precept is rational while its details need not be. In Chapter 26 (Pines translation):

“The generalities of the commandments necessarily have a cause and have been given because of a certain utility; their details are that in regard to which it was said of the commandments that they were given merely for the sake of commanding something.”

The Rambam cites shechitah (slaughter) as his prime example. As he elaborates in Chapter 48, the general mitzvah of shechita is intended to allow the people to have the good food they require while protecting the animals they slaughter from a painful death. The general mitzvah, then, exhibits a rational purpose intended to benefit the people. The details, however, e.g., the particularly simanim which must be cut, are “imposed with a view to purifying the people.” The Rambam is referring to a passage in Bereishit Rabbah cited earlier that asks what difference should it make to God if animals are slaughtered by cutting their neck in front or in back? The midrash answers: Say therefore that the commandments were only given in order to purify the people.”

The diyuk in the midrash is clear: What difference do the details make to God? Say therefore that the [details of the] commandments were only given in order to purify the people.” The Rambam can therefore conceive of a functionalist law with a positivist rationale for observance. The generalities of the Law are rational; the details of the Law are positivist in nature. The fact that the Torah exhibits an interior rationality does not preclude an absolute mandate for observance. By asserting that the details serve the purpose of requiring commitment to law independent of rational understanding, the Rambam puts the halachic system firmly on a positivist footing.

When Rambam declares the Torah a reflection of the rational Mind of God, he does not mean to assert that it has lost its essential character as commandment. Those who interpret Jewish law as a set of social policy prescriptions miss the distinction between rationality and rationale. This confusion plagued the Wissenschaft des Judentums movement, leading those who saw Jewish legal sources as rational responses within a historical context to deny their binding nature. Similarly, those who cast Torah entirely as positivist decree may be victims of the same delusion, denying rationality in order to preserve rationale.

Rabbi Ozer Glickman received rabbinical ordination from Yeshiva University’s affiliated Rabbi Isaac Elchanan Theological Seminary (RIETS). He has been teaching Talmud and Halachah to semichah students since 2000. He has also taught Halachah and American Legal Theory in the University’s Benjamin N. Cardozo School of Law and is affiliated with its Program in Jewish Law & Interdisciplinary Studies. Rabbi Glickman received his BA in Philosophy from Columbia University and has pursued graduate studies in Philosophy and Religion at the University of Toronto. He also holds an MBA in Finance from the Stern School of Business at New York University where he was a University Fellow. Rabbi Glickman studied at Yeshivat Merkaz ha-Rav and has received rabbinic ordination from leading rabbinic figures in Israel and the Diaspora. A resident of Teaneck, New Jersey, he and his wife Ilana are the parents of six children and the grandparents of three.

By Rabbi Ozer Glickman

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