This week's parsha (Pinchas) contains one of the most fascinating legal stories in the Torah. This story sets up an evolving common law approach to halacha.
There are not very many legal stories in the Torah. There are stories and there are laws, but not many stories about laws. After the grand epics in Genesis and Exodus and the lofty and technical holiness rituals in Leviticus, we turn in Numbers to ordinary life problems. Or, as Arnold Eisen argued in Taking Hold of Torah, we have entered the world of politics: wars with hostile neighboring countries, civil insurrection, gossip, the succession of rulers, and the details of civil administration.
And the laws of land inheritance in Israel. By way of background, each of the 12 tribes would own a specific region of the land, and all of the families in that tribe would own some portion of the land. The land would remain in the tribe and family. In fact, if the land were sold, it would revert back to the family in the Jubilee year every fifty years. (Lev. 25:13, 23-24.) Since one's tribe is determined patrilineally, only males can inherit land. Thus, a father's land holdings would be passed down to his son or sons. A daughter would presumably marry and join the family of her husband, and their sons would inherent the land from their father. In short, the law set up a fairly conservative and static system that would preserve family land holdings through male inheritance.
This was the state of the law until the daughters of Zelophehad showed up. (Num. 27:1-11.) Zelophehad was a member of the tribe of Manasseh, and he died with five daughters but no sons. Under the rules then in place, his daughters would be left with no inheritance. The daughters argued to Moses and everyone else that they should be allowed to inherent his share. "Let not our father's name be lost to his clan just because he had no son! Give us a holding among our father's kinsmen." (Num 27:4.)
Moses checked with God, and God said that the daughters were right. "The plea of Zelophehad's daughter is just." (Num. 27:5.) From now on, the rule is that if a man dies without sons but with daughters, the property should be transferred to his daughters. (If he dies without any children, there is a more complex hierarchy of inheritance.)
Importantly, this was not merely an elaboration or clarification of the existing law but an entirely new rule. Before this "case" was brought, the daughters would have received nothing and Zelophehad's other relatives would have inherited land. Now the daughters inherent and the other relatives receive nothing. And the basis for this change in the law, according to God, is simply justice. "The plea of Zelophehad's Daughter's is just." (Num. 27:5.)
This story shows the evolution of the law. The children of Israel started with one set of legal rules, but they proved to be unjust in a particular situation. God then modified the rules to comport with justice, producing a second set of rules.
If this story does not show that halacha evolves, there's more. Eight chapters later, in the last chapter of Numbers, new people show up with a new problem with this law. And it changes again. (Num. 36:1-12.)
The family heads of Zelophehad's clan show up with a complaint. If the daughters of Zelophehad marry someone from another tribe, their sons will inherit not only their father's land holding (from the other tribe), but also the land holdings of Zelophehad (from Manasseh). So someone from another tribe will end up owning land smack dab in the middle of Manasseh. The total amount of land that the people of Manasseh own will be permanently reduced.
Moses agreed with this argument and "commanded the children of Israel according to the word of the Lord, saying 'The pleas of the the tribe of the sons of Joseph is just.'" Moses then set forth a new rule: daughters may inherit under the old rule only if they marry members of their own tribe. If they marry members of a different tribe, they may not inherit. (The end of the story is that the Daughters of Zelophehad ended up marrying their uncles or cousins, and everyone lived happily ever after.)
So by this time, the law has now gone through three stages of development: the original law (only sons inherit), the modified law (daughters can inherit if there are no sons), and the modified modified law (only if they marry someone from their tribe).
Several points are worth noting here.
First, the Torah could have given us just the final rule without showing any of its intermediate forms of development. The fact that we see the evolution of the law suggests that the evolution itself is important, not just the final law.
Second, Moses used the identical language (and the Hebrew is identical: keyn) to describe the plea of the Manasseh tribe here that God used to describe the plea of the daughters of Zelophehad. Their plea is "just". (Some translations use "right".)
Third, the text does not say that Moses checked with God before stating the new rule. Instead, Moses himself spoke to the Children of Israel "al pi Adonai": according to the work of God.
Fourth, Moses changed the very law that God himself had changed.
What do we make of this? It seems to me that God, responding to the daughters of Zelophehad, set forth a methodology for determining when laws should change: if a party successfully argues that a particular law is unjust or not right, the law should change on that ground and that ground alone. God himself changed the law when confronted with this problem. Once God established this methodology, Moses was free to employ it himself in response to the other members of the tribe of Manasseh, and in doing so he spoke "al pi Adonai." And there is no hierarchy of laws here: Moses changed the same law that God himself had changed.
This may seem like a radical notion of law. But in fact, it is exactly how Anglo-American common law works. Judges initially promulgate a set of rules, one case at a time. But over time, new situations arise that do not merely require the application of existing laws to new situations, but actually require the legal rules themselves to change in response to these new situations. But this is not a license for judges to change the law because of personal preferences or to ignore the law altogether. Under stare decisis, there is a strong presumption for leaving settled law alone. It takes a strong showing of injustice to change the common law. But when a party can make such a showing, the common law changes.
The story of the daughters of Zelophehad seems to set up a similar evolving common law system of halacha, not a static system.
Sunday, July 13, 2008
The Daugters of Zelophehad, Evolving Halacha, and the Common Law
Thursday, July 10, 2008
The TMH / DH Project - DH Sources
I'm gathering here a list of sources supporting the DH perspective, and well as some that I have considered but will not rely on much. Please mention additional sources in comments and I will update as appropriate.
The basic text I will use to identify the sources is
- Richard Elliot Friedman, "The Torah With Sources Revealed"
Other books on the DH include
- S.R. Driver, An Introduction to the Literature of the Old Testament (I have the hard copy, but Google Books version here.
- J.E. Carpenter, The Composition of the Hexateuch: An Introduction with Select Lists of Words (Google Books version here.
- Alexander Rofe, Introduction to Composition of the Pentateuch
- William Schneidewind, How the Bible Became a Book
Friedman's book Who Wrote the Bible is somewhat helpful here, but it largely assumes the DH to be true and then tries to determine what we can learn about the different authors or sources.
The TMH / DH Project - TMH Sources
I'm gathering here a list of sources supporting the TMH perspective, and well as some that I have considered but will not rely on much. Please mention additional sources in comments and I will update as appropriate.
The primary sources seem to me to be traditional Jewish commentaries on the Torah itself. In addition to the Talmud and midrash, the following commentaries may be helpful.
Rashi
Ibn Ezra
Ramban
Radak
BTW, does anyone know of a single book or set of books including all these and other major commentaries, in either book or electronic form? (Judaica Press's Mikraoth Gedoloth covers the entire Tanach except for Levitivus - Deuteronomy, or 60% of what I am looking for.)
Modern Works Specifically Addressing the DH or Independent Reasons to Believe TMH.
- R. David Weiss Halivni, Revelation Restored: Divine Writ And Critical Responses
- R. Yitzchak Etshalom, Between the Lines of the Bible
- R. Lawrence Kelleman, Permission to Receive
- R. Judah David Eisenstein, Commentary on the Torah: A Defense of the Traditional Jewish Viewpoint.
- David Sykes, Patterns in Genesis (Unpublished PhD Thesis) [Can someone get a copy of this?]
- R. Mordechai Breuer, Pirkei Bereishit [Can someone get a copy of this in English?]
- R. Mordechai Breuer, Pirkei Moadot [Can someone get a copy of this in English?]
Commentators have recommended some other books that only touched on the DH is some short way or are not available in English.
Please let me know if you know of any other appropriate sources.
Tuesday, July 8, 2008
The TMH / DH Project - Discourse on the Method
Here's the way I tentatively plan to proceed. Please comment if you have any suggestions or criticisms.
The first thing to do is to decide on the methodology. I think I covered the ground for that that in my Bayes' theorem posts on the basics, the implications, and three more implications. For any particular fact or issue or anomaly in the text, we do three things:
- (1) assume that TMH is true and see how well TMH explains the issue.
- (2) assume that DH is true and see how well DH explains the issue.
- (3) compare (1) and (2).
A good and helpful argument is one where (1) is greater than (2), or (2) is greater than (1). These are the arguments that move the ball forward.
Second, we need to identify the specific versions of both theories. That is, we need a working definition of both TMH and DH.
For TMH, my initial thought it to use the claim that the Torah was written by God, physically written by Moses (with the possible exception of the last few lines of Deuteronomy), is instructions for living, and contains important insights (some explicit, so esoteric and hidden) about all sorts of important things.
For DH, my initial thought is to use Richard Elliot Friedman's book "The Torah With Sources Revealed." This book is scholarly, is recent, is widely available, classifies each verse into one of the sources, and notes its reasons much of the time in footnotes. Of course, other scholars will disagree with Friedman about the particular classifications of particular verses, but I'm not sure that these differences matter for our purposes of comparing the DH with TMH. If the overall theory holds, the fact that some particular verse might actually be P and not J is irrelevant. And if the theory does not hold overall, these debates are beside the point.
Friedman ends his introduction with the following: "Here, rather, is the evidence, for anyone to see, evaluate, acknowledge, or refute." (P. 31.) The book was written with exactly this purpose in mind.
Third, I need to figure out what specifically to look at. The Torah is a big book, with odd features, TMH is a simple theory with complex and extensive commentary, and the DH is itself a complex theory. We can't just point at the text as a whole or a stray verse here or there.
For the DH, Friedman makes a 7 arguments in the introduction to The Torah With Sources Revealed. Each source is largely internally consistent and different from the other sources in the following areas: (1) linguistic patterns (from different historical periods of Hebrew), (2) terminology, (3) content, (4) continuity of the texts, (5) connection with other parts of the Bible, (6) relationships to each other and to history, (7) and convergence of all these. That is, if we look at any particular J story, it will have lots of characteristics of J. And if we look at any particular characteristic of J, we will find it a lot in the J stories but not very much if at all elsewhere.
For TMH, we will look at the various kiruv-type books and arguments out there. These would include Aish HaTorah's Discovery program (my first introduction to some of these issues), the Kuzari argument, etc. At the same time, we will examine any traditional alternatives to DH. I think Rabbi David Weiss Halivni and Rabbi Yitzchak Etshalom are the leading writers here. Any additional recommendation for books and sources would be welcome.
To examine all this critically, I think, takes three separate phases of examining the text.
In Phase 1, we will look at each particular story that DH claims comes from a separate source. If DH is correct, each will show lots of signs of that source, relatively few signs of other sources, and will be continuous with earlier and later parts of that source. If this is part of a joined story, we will see how well the unjoined part of the story stands. And at the same time, we will examine traditional TMH commentary on and explanations for anything anomalous. Little Foxling has started essentially this, although I think he is not going to continue with it. The purpose here is mainly to examine how well each story fits into a particular DH source.
In Phase 2, we will look at each particular characteristic of each source and see how it holds across the Torah as a whole. We will also see if the usage is related to content. And we will see what traditional TMH commentary has to say. (For example, Friedman argues that the phrase "gathered to his people" as a euphemism for death occurs 11 times and all 11 are in P. We will look at these 11 times as well as other words mentioning death and see what all this tells us.) The purpose here is mainly to see how well each characteristic of each source explains the sources as a whole.
In Phase 3, we will look at the TMH arguments. These obviously do not break along the DH lines. Instead, they will each cover a particular issue or fact, and each one needs to be critically examined.
These phases do not have to proceed in order but can be examined simultaneously.
That is my current thinking on the best way to proceed. Any comments, criticisms, or alternative or additional approaches would be appreciated.
The TMH / DH Project - Request for Comments
In this ongoing project, I would like to request that readers make comments. Obviously, my analysis might be wrong on a particular topic, and if so, let me know.
But there is another good reason for comments. Neither I nor anyone also has access to all of the information bearing on a particular topic. For any particular topic, some reader might have his or her own interpretation or understanding of the issue that sheds some light on the question. Or might know of some other ancient document that is similar or different. Or might know of a commentary by a more obscure traditional commentator or an article in some academic journal. One of the huge benefits of this sort of blog is that it is a device for aggregating widely dispersed information. And that only works if people comment. So comment away.
The TMH / DH Project - Bias
Before beginning this project, I thought I would add a quick note about my own personal bias and what I can do to try to minimize this problem.
We all have biases, and there is no way anyone can approach any significant question in a completely neutral way. (It is not even clear that there is such a neutral way.) The best we can to is acknowledge our biases, critically examine arguments without letting the bias get in the way, and subject our conclusions to the critical evaluation of others who disagree with us. So here goes.
My own belief is that the evidence for the DH is pretty strong. However, this is not a solid dogmatic belief. I base it on having read the Torah (obviously) and some more popular works about Bible Criticism. The arguments seem convincing. Also, the DH is accepted by pretty much all of academia (with huge debates about some details) some Orthodox Jews, and most Christian groups, including the Catholic Church and most Protestant denominations. In contrast, the only people who advocate TMH are mainly Orthodox Jews and fundamentalist Christians. Moreover, no one advocates even an early date for the Torah (say, before King Solomon) or a single author (even if not God). I have also found most of the kiruv type arguments to be less than convincing, although several have some persuasive force.
However, I have not thoroughly investigated all these claims. Advocates of the DH often make assertions that I have not checked. And of course there are oodles of traditional Jewish commentary offering explanations for anomalous verses or stories in the Torah, most of which I have not checked either. This subject is complicated and important, and I for one am not comfortable reaching any conclusion without having analyzed this material in much greater detail. (Hence, this project.) I recognize my bias, but I also recognize that my conclusions, although based on a fair amount of good evidence and argument, are still tentative, especially when I realize how much important evidence and argument is out there than I have not considered.
I routinely put my own biases aside in evaluating arguments. I am a practicing appellate lawyer. I spend a huge amount of time doing exhaustive legal research and making legal arguments in great detail. My briefs do not go to juries; they (usually) go to three-judge appellate panels. My audience is very smart, very sophisticated, and very thorough. As a result, I spend much of my time critically examining arguments that both support and oppose my position. And I frequently decide that arguments that would be helpful to my client are not likely to prevail. I have a great deal of experience in analyzing my arguments and other arguments from different perspectives, and I hope to employ those skills here.
Finally, I will subject my conclusions to the critical comments responses of others. (See next post for details.)
Introducing the TMH / DH Project
I am formally launching the Torah Min Hashamayim / Documentary Hypothesis Project. In a very long-term ongoing series of blog posts, I will comprehensively examine and analyze, in detail, the arguments for and against both Torah Min Hashamayim and the Documentary Hypothesis. I have been meaning to do this for myself for a long time, and this blog will provide a good opportunity to do so.
This issue is central for many people's religious beliefs and practices. If the evidence shows that TMH is much more likely than DH, one should be Orthodox or something very close. And if the evidence shows the opposite, one should probably not be Orthodox.
Of course, there are some people for whom this debate is not important at all. These people have such strong prior beliefs about either TMH or the non-divinity of the Torah, that they just do not see any reason to take part in such a silly debate. This project is not for them.
I will start with several introductory posts discussing what I am going to examine and how I am going to examine it. Stay tuned . . .
Thursday, July 3, 2008
Reimagining Taharat Hamishpachah
If you're wondering what Diane, as a postmodern, sex-positive, divorced Jewish feminist thinks about taharat hamishpachah, visit her posting at Jewish Mosaic, at www.jewishmosaic.org/resources/show_resource/218.
The Documentary Hypothesis, Torah Min Hashamayim, and Bayes' Theorem - Three More Implications
Following up on my earlier post, there are at least three more implications about the use of Bayes' Theorem, after the 5 listed there.
6. An additional comment about prior probabilities and "assuming away the problem." There is nothing wrong with prior probabilities; we use them all the time. Here's a simple example.
Suppose your good friend was supposed to meet you at 7:00 to see a movie that starts at 7:20. It's 7:15 and he has not shown up. You assume he is late, but then ha-Satan shows up and makes a series of clever argument (isn't that just like him): Your friend is not late, but he really hates you. He is ending your friendship and deliberately making you wait solely to inconvenience you.
This is certainly possible, but your prior probability estimate of that would be quite low. After all, he is your good friend. But now ha-Satan starts piling on the evidence. Your friend has a cellphone; he would certainly call if he were running late. Hmmm. Good point. Your friend has always been very reliable, and thus the statistical odds of him running 15 minutes late when you only have 20 minutes to spare are very small. Hmmm. Good point. Your friend really wanted to see the movie, and in fact you two spoke about it in the late afternoon and specifically discussed both the time and place. He is not likely to have forgotten or gone to another theater. Hmmm. Good point. And so it goes.
Each of these facts is easily explained by the friend-hates-you theory, but not so easily explained by the friend-is-just-late theory. Using Bayes' Theorem, these facts are shifting the probability towards the friend-hates-you theory. But if your estimated prior probability of this theory is microscopically small (say, 1 in a billion --- I'll plug in numbers here just to illustrate), then you might estimate the odds now at 1 in 1 million. You now conclude that it is 1000 times more likely that your friend really hates you, but you still place the odds at something so microscopically small that it is still essentially zero.
That's the way some TMH / DH debates go. (More often on the pro-DH side, but not always.) One person keeps making good points, and the other person keeps offering weak responses but is just not budging. The proponent gets agitated, the opponent seems unfazed, and each side thinks the other is crazy. I think what is happening in those debates is the opponent simply assigns such a high prior probability to his theory, that the net effect of the proponent's arguments is simply to move the probability of that theory from almost zero to a slightly larger almost zero.
7. There's another unresolved issue: what should the prior probability be? There's no good way to answer that question since it depends to one's subjective beliefs before any evidence. For whatever reason, some of us tend to think that the
idea that God wrote the Torah is obviously true and others of us tend to think that the idea that people wrote the Torah is obviously true.
I think each person must decide this issue for his or her self. It might be useful as a heuristic device simply to assume the prior probability is 50%. That is, assume that each theory is equally likely and then go look at the evidence. The advantage of this approach is that avoids biasing the outcome based on initial probabilities. The disadvantage is that no one really estimates this at 50%. All of our prior intuitions is that TMS is either likely or not likely, but not exactly equal to the not-TMH. But this might all be academic. Pick a probability for the sake of the discussion, and one can always revise it later.
8. The evidence can persuade even a harsh skeptic. Go back to the jar examples, and take two really ambiguous jars with the following percentage of yellow, green, blue, and red marbles:
Type 1: 40%, 25%, 20%, 15%
Type 2: 30%, 20%, 15%, 35%
If you draw (say) a yellow marble out, it is just not going to shift the odds that much, regardless of your prior probabilities. Type 1 jars have 40% yellow marbles and Type 2 jars have 30%. So a yellow marble just does not give you much information.
But suppose you randomly draw 1000 marbles (with replacement, for you math geeks out there). And you find that your random sample gives the following probabilities
Sample: 39%, 26%, 21%, 14%
The probability of drawing this from a Type 1 jar is quite high, and the probability of drawing this from a Type 2 jar is quite low. (Someone can crunch the numbers if they can find a standard normal chart with that many standard deviations.) So even if your prior odds were that there was only a 1 in a million chance that you had a Type 1 jar, the evidence here is so compelling that it would be a virtual certainty that you did in fact have a Type 1 jar.
The implication of this is that regardless of whether one initially thinks TMH is highly likely or the DH is highly likely, enough evidence consistent with the other theory and inconsistent with your should persuade you. And this is true even if the evidence is somewhat ambiguous, so long as it fits better with the other theory.
Wednesday, July 2, 2008
Atheist Questionnaire
Little Foxling tagged us with an atheist questionnaire. We're not atheists, so this questionnaire might not be wholly applicable to us. But because we have some unconventional views, it might be interesting nonetheless.
So here goes.
Q1. How would you define "atheism"?
Bruce: The belief that there is no God (however defined).
Steve: The affirmative belief that there is no God.
Diane: The view that the entirety of experience and the cosmos can be explained without resort to the supernatural; that is, materialism.
Q2. Was your upbringing religious? If so, what tradition?
Bruce: Yes, Reform.
Steve: Yes, Conservative.
Diane: No. Jewish -- but not religious.
Q3. How would you describe "Intelligent Design", using only one word?
Bruce: Pseudo-creationism.
Steve: Boring.
Diane: Cartesian.
Q4. What scientific endeavor really excites you?
Bruce: I'm amazed by astronomy.
Steve: Cheap, clean power. The study of the brain.
Diane: For something I know nothing about, astrophysics -- that there is that sort of stuff to be known, is amazing.
Q5. If you could change one thing about the "atheist community", what would it be and why?
Bruce: I think atheists should define themselves by what they believe, not what they do not believe. For that reason, I think "humanism" is a better label.
Steve: Anti-religionism. It is one thing to say that a belief in God is unfounded by empirical evidence, another to say that such a belief is silly, and still another to say that religion is a force for evil in the world. I find too many outspoken atheists who slide very easily from the first proposition to the third.
Diane: Is there an "atheist community"? Are all false beliefs pernicious? If so, there's no difference between Steve's 1st, 2nd, and 3rd propositions, I'm afraid. If not, apart from triviality, that's a deep problem, I think.
Q6. If your child came up to you and said "I'm joining the clergy", what would be your first response?
Bruce: It depends on what clergy. I would be happy if it were the Conservative or Reform rabbinate, less happy if it were the Orthodoxy rabbinate, and unhappy if it were a different religion.
Steve: Mazal tov!
Diane: Who's paying the seminary tuition? But seriously. It's a profession, and a calling, and I'm for it.
Q7. What's your favorite theistic argument, and how do you usually refute it?
Bruce: My favorite theistic argument is that God can be thought of (at a minimum) as the essence of goodness. I don't refute it; I agree with it. (I plan to blog about God in much greater detail in the future.)
Steve: I find these arguments boring because, in my opinion, they either (1) try to "prove" something that cannot be proved, or (2) define God in a way that makes God's existence mundane. Accordingly, I do not spend much time or thought trying to refute these arguments.
Diane: The existence of theistic "arguments" is an interesting moment in theology, one way of trying to harmonize the truth of religion with the operation of human rationality. I don't think theistic arguments can ever do what they set out to do (beyond apologism, which is not their purpose). But then, I don't think they NEED to.
Q8. What's your most "controversial" (as far as general attitudes amongst other atheists goes) viewpoint?
Bruce: I am a theist. That is pretty controversial in atheistic circles.
Steve: Ditto.
Diane: Ha, ha. Among postmodern materialists, the selection of a religious/spiritual hermeneutic for experience is hard to motivate.
Q9. Of the "Four Horsemen" (Dawkins, Dennett, Hitchens and Harris) who is your favorite, and why?
Bruce: I haven't read their books on atheism, but I like Christopher Hitchens a lot. I have read two of his other books.
Steve: Hitchens is my least favorite; I find his anti-religionism repugnant. (I have not read Harris, but my understanding is that he holds a similar hostility toward religion and religious people.) I am not all that interested in the evolution/creation "debate," so not Dawkins either. That leaves Dennett -- I have not read him, but I am very interested in the subject of "religion and the brain," and I see him cited now and again by other authors in connection with ideas that I find important.
Diane: No comment. Robust, doctrinaire atheism, and reductionism as applied to religion -- these are, again, to me, moments in intellectual history. Interesting, for adolescents. But not profound. Think: Ayn Rand.
Q10. If you could convince just one theistic person to abandon their beliefs, who would it be?
Bruce: Any radical Islamic terrorist about to murder people.
Steve: I am a "theistic" person. More importantly, I am (relatively) indifferent to people's beliefs; I find great wisdom in Judaism's pre-occupation with deeds.
Diane: How revealing, to suggest people "abandon" their beliefs because they are "convinced" of something. This is the rationalistic project ad absurdum. People "abandon" ( = change) beliefs when, at a moment of radical conflict between what beliefs tell them about the world, and some other experience of the world, they take a "leap of faith" in one direction. Saul on the road to Damascus also "abandoned" his former beliefs. But not because he was "convinced" of something.
Posts
