Chapter Six: Normative Duality and Values

Court rulings, and particularly Supreme Court rulings, have undergone significant change over the last decades. Until the 1980s, the legal narrative was distinctly formalistic: the legal realm was perceived as an autonomous professional system with a domain and a language of its own. The aim of judicial procedure is to impose on any given conflict the normative answer available in the law, and in a sense, it is a clarification of a technical nature. The judge is a professional, a state employee, whose role is to find the specific norm relevant to the conflict, reveal it, and proclaim it.

Menachem Mautner outlined the change that the Israeli court underwent during the 1980s, shifting the emphasis from formalism to the value dimension.[67] Court rulings externalized the fact that every judicial ruling, even those considered technical, involves a value choice. Rather than being impersonal, the normative answer depends on the value preferences of the judge, who is the final arbiter. Indeed, a word frequently found in Supreme Court rulings of the last twenty years is “balance.”[68] The court decides after weighing several values—one against the other—that sometimes lead to contradictory outcomes. The very recourse to the term “balance” indicates that the façade of one mandatory answer to every given question has been abandoned. In the process of objective balance, judges obviously rule according to their best understanding, in line with the relative weight they feel should be assigned to conflicting values and interests at a given time and place.[69] In a process resembling legislation, they thereby carve out the legal result from within themselves, by exercising judicial discretion.[70]

A contrary process takes place in halakhic law. Avi Sagi has exposed the centrality of the pluralistic approach within Halakhah.[71] Whereas a monistic halakhic approach holds that every dilemma has only one halakhic solution, a pluralistic view holds that the response may be found among a range of options, all legitimate. From the spectrum of legitimate responses that fill halakhic discourse, all equally close to the truth, the halakhist must choose the one he considers most plausible. According to the pluralistic perception, which has been widely accepted throughout the history of Halakhah, the halakhist is not only a legal expert who knows how to disclose the “truth” latent in the halakhic code. Rather, the halakhist creates a Halakhah imbued with personal characteristics,[72] expressing the values and social considerations to be taken into account.[73] After the halakhist rules out those options beyond the realm of halakhic legitimacy, he must ask himself what would be a worthy ruling in the specific case.[74] According to this approach, halakhic activity—as opposed, for instance, to scientific activity—is not meant to describe or discover reality, its structure or its characteristics, but to determine it. Halakhah is a product of human activity, and therefore reflects human consciousness in its multifaceted and changing dimensions.[75]

At present, however, the monistic perception of Halakhah[76] has clearly gained ground, and halakhic pluralism has become increasingly restricted. Halakhic rulings are now envisaged as coming into being without human intervention. The consumers of Halakhah expect the halakhist to proclaim the legal result they deem necessary as the only possible one, handed down to Moses on Mt. Sinai.[77] The common assumption is that halakhic rulings, rather than creating the response and thus being constitutive, only discover it and proclaim it, thus being merely declarative. According to this view, Halakhah is not affected by extra-halakhic factors either, be they the halakhist’s personality[78] or his ethical philosophy.[79] The values of the halakhist and his personal preferences are irrelevant to his legal conclusion.

In sum, the two legal systems relate to values in opposite ways: state law now chooses to externalize the realm of values underlying the law, while contemporary Halakhah emphasizes the formal-technical-logical aspect of judicial rulings, as if they were devoid of value choices and personal discretion.

67. Menachem Mautner, The Decline of Formalism and the Rise of Values in Israeli Law [Hebrew] (Tel Aviv: Ma’agalei Da’at, 1993). Ruth Gavison offers another description of the changes affecting the Court. In her view, this is a change in the perception of its judicial role. The older, more restrictive approach, which had viewed the judge as responsible for fair adjudication between parties, was replaced by a broader approach, which views the judge as responsible for leading the entire society in the right moral direction. See Ruth Gavison, Mordechai Kremnitzer and Yoav Dotan, Judicial Activism - For and Against: The Role of the High Court of Justice in Israeli Society [Hebrew] (Jerusalem: Magnes Press, 2000), 74-91.
 
68. On Justice Barak’s perception of balance, see Barak, Constitutional Interpretation, 215-227.
 
69. For instance: the Court is requested to rule on whether a bereaved family has a right to depart from the uniform engravings on military tombstones. The judges do not assume that an answer is necessarily available in extant law, and bring into the discussion the clashing values (uniform inscriptions as opposed to the principle of human dignity manifest in the wish of the bereaved family), weigh one against the other, and decide. See HCJ 5688/92, Weckselbaum v. Minister of Defense, PD 47(2) 812. Throughout all stages of the judicial procedure—defining the question, configurating it in value categories, encoding these categories in legal codes, assigning weight to each value, and deciding on the balance between clashing values—the judges sitting in the case implement judicial discretion.
 
70. Although judges exercise personal discretion when ruling, they cannot decide arbitrarily. According to Barak’s theory of judicial interpretation, the balancing task must fit criteria of reasonableness. Reasonableness refers to the appropriate weight to be assigned to clashing interests and values. The criterion for determining the relative importance of a value or an interest depends, inter alia, on the views endorsed by the enlightened public. The social importance that the enlightened public ascribes to these values, rather than the judge’s private opinions, determines their weight when searching for a balance. Thus, the judge’s personal interpretive task acquires its objective dimension. See Barak, Constitutional Interpretation, 227-241. Justice Elon holds that “the concept of an ‘enlightened’ public or individual is indeterminate and altogether lacking in any content.” See CA 506/88 Shefer v. The Government of Israel, PD 48(1) 87. Elon argues that the test Barak proposes is inappropriate, since it is thoroughly vague. Barak rejects this critique, although he himself admits that the potential guidelines that can be drawn from the worldview of the Israeli enlightened public are vague. Yet, although “it does not provide the judge with a road map … it does provide a compass concerning the correct direction of the judicial ruling.” Barak, Constitutional Interpretation, 240. It appears that the gap between the general guideline providing direction and the precise navigation of the judicial decision toward a safe haven in every specific case must be bridged by the judges through their personal interpretation of actual reality. Judges must function within consensual value settings, but beyond this general directive, they cannot apply any objective truth and must resort to their personal scale of values.
 
71. Avi Sagi, Elu va-Elu: A Study on the Meaning of Halakhic Discourse [Hebrew] (Tel Aviv: Hakibbutz Hameuhad, 1996), Part 2.
 
72. Thus, for instance, many scholars have tried to disclose the theoretical foundation underlying many famous disputes between the House of Shammai and the House of Hillel. For an extensive review of the pertinent literature, see Haim Shapira and Menachem Fisch, “The Debates between the Houses of Shammai and Hillel: The Meta-Halakhic Issue” [Hebrew], Tel Aviv University Law Review 22 (1999): 461, 463-468. All these research endeavors share an attempt to explain the archetypal controversy between the two houses, extending over more than three hundred issues, by tracing characteristics specific to each of them on a variety of issues: ethics, politics, social stratification, conservatism as opposed to openness to change, different evaluations of the importance of the physical as opposed to the spiritual element, and so forth.
 
73. These two views on the character of Halakhah are illustrated in the controversy between Haim Soloveitchik and David Hartman on the appropriate classification of Maimonides’ Epistle on Martyrdom. In this epistle, Maimonides rules contrary to the formal halakhic principles regulating the event discussed in it. Soloveitchik, therefore, who adheres to a formalistic view of Halakhah, holds that the Epistle on Martyrdom is not a halakhic document but a propaganda piece. See Haim Soloveitchik, “Maimonides’ Iggeret Ha-Shemad: Law and Rhetoric,” in Rabbi Joseph H. Lookstein Volume, ed. Leo Landman (New York: Ktav, 1980), 281-318. David Hartman, however, holds that the deviation from the rules does not invalidate the legal-halakhic character of the Epistle on Martyrdom. In his view, Halakhah is not a closed system of rules; it also exercises human discretion, taking into account not only the content of halakhic rules but also their purpose. See David Hartman, “Maimonides’ Epistle on Martyrdom” [Hebrew], Jerusalem Studies in Jewish Thought 2 (1982-1983): 362. For the description of the dispute and its characterization in this light see Yair Lorberbaum and Haim Shapira, “Maimonides’ Epistle on Martyrdom: The Hartman-Soloveitchik Controversy in Light of the Philosophy of Law” [Hebrew], in Renewing Jewish Commitment: The Work and Thought of David Hartman, eds. Avi Sagi and Zvi Zohar (Jerusalem and Tel Aviv: Shalom Hartman Institute and Hakibbutz Hameuhad, 2001), 1: 345-373.
 
74. The process whereby halakhists exercise discretion is complex. They must ask, inter alia, what is the general norm relevant to the case in point? What is the preferable interpretive choice when applying the norm? What weight should be ascribed to extra-halakhic values (such as moral considerations)? For a discussion of these issues see Avi Sagi, “Halakhah, Discretion, Responsibility, and Religious-Zionism” [Hebrew], in Between Authority and Autonomy in Jewish Tradition, ed. Avi Sagi and Zeev Safrai (Tel Aviv: Hakibbutz Hameuhad, 1997), 195.
 
75. Sagi, Elu va-Elu, 107-117.

76. See, for instance, Pinhas Shiffman’s formulation: “We see recourse to a defense mechanism that denies the freedom of halakhic man. Often, we see the halakhist deluding himself into believing that he is ‘compelled by the word of God’: the text forces itself upon him, and he is not allowed to change it. No one can object, then, since he was urged to reach a conclusion directly compelled by a binding text. He thereby feels he is exempt from any responsibility for the gravity of consequences forced by Halakhah. The judge, as it were, can only go by what he sees in the language of the text, this is the text’s decree, and justice must be done.” Pinhas Shiffman, “Halakhic Man is Sentenced to Freedom” [Hebrew], in Between Authority and Autonomy, 244.
 
77. The problem is that the methodology of the halakhic ruling - which includes an analysis of the facts, the postulation of several hypotheses, reliance on precedent and references, and the formulation of a rationale - may expose it to substantive rebuttals. Discussion and controversy encourage halakhic pluralism. Some hold that this is the background of the increasingly widespread use of the da’at Torah notion in recent times. By diverting the decision from the “halakhic ruling” context to the da’at Torah context, the halakhist can express his view as an authentic Torah outlook that does not require discussion, analysis, and clarification, and does not require the exposure immanent in the methodology of halakhic rulings. See Lawrence Kaplan, “Daas Torah: A Modern Conception of Rabbinic Authority,” in Rabbinic Authority and Personal Autonomy, ed. Moshe Sokol (Northvale, N.J.: Jason Aronson, 1992), 1. The notion of da’at Torah, then, does not draw its power and legitimacy from the quality of the argument, but from an a priori decision to accept the contender’s argument as the one and only truth, the view of the Torah itself.
 
78. Soloveitchik describes the way endorsed by his grandfather, R. Haim from Brisk, concerning halakhic debate: “He first cleansed Halakhah of all outside influences. In his view, all attempts at psychologizing and historicizing must be firmly rejected…. Halakhic thinking flows along a unique course of its own. Its laws and principles are not factual-psychological, but ideal-normative, as in logical-mathematical thought. The truth or efficiency of halakhic judgments is determined by the ideal norm to which the halakhic judgment and its truth cling, rather than by any retrospective factual causality. The accuracy of logical-mathematical thinking is not measured by psychological factors. Halakhah need not reflect the character of the halakhist, nor do changes of circumstances or historical situations leave their mark upon it. Hence, according to this method, Halakhah cannot express thinking patterns borrowed from other realms. It has its own rhythm, which cannot be changed. It is pure thought, distilled from spiritual sources. It is not dependent on external stimuli and on the human reactions to them.” Joseph Dov Soloveitchik, Divrei Hagut ve-Ha’arakha [Hebrew] (Jerusalem, WZO, 1981), 76-77.
 
79. Thus, for instance, Abraham Yeshayahu Karelitz (known as Hazon Ish) claims that morality is not personal but derives from Halakhah: “Moral duties are sometimes one with halakhic rulings, and Halakhah tells us what is allowed and what is forbidden concerning ethics.” See Sefer Hazon Ish: Emunah u-Bitahon (Tel Aviv: Sifryiati, 1984), 21. When individuals face a moral decision, their only criterion for choice is the halakhic ruling rather than their personal moral stance: “It is a moral obligation for a person to try and implant in his heart the following crucial principle: when encountering someone, he should measure with the spirit level of Halakhah who is the pursuer and who the pursued, because the study of ethics imparts love and compassion for the pursued, and bitter anger against the pursuer. How great is the hindrance when we mistake the pursuer for the pursued and the pursued for the pursuer, and the truth will only be found in the books of halakhists that our sages, may their memory be blessed, delivered to us from the heights of their wisdom” (22). Further on, he states: “The definitions of robbery and plundering are not determined by human beliefs but only by the laws of the Torah, and whatever is against the Torah is robbery even if people feel it is not so, and whatever abides by the Torah is lawful, even if it contradicts human beliefs” (27). For a systematic analysis of whether Jewish tradition acknowledges the existence of a morality independent of God’s command, see Avi Sagi, Judaism: Between Religion and Morality [Hebrew] (Tel Aviv: Hakibbutz Hameuhad, 1998).