Tuesday, July 29, 2008

God, Objective vs. Subjective Ethics (and Meta-Ethics), and the Limits of Moral (and Legal) Authority

Many religious people, including many religious Jews, believe that without God, there can be no "objective" ethics and, the argument continues for some, therefore no legitimate basis on which to define ethical conduct or "impose" moral authority on others.

I do not subscribe to this view.

In my experience, there is some confusion over what people mean by "objective" ethics. So, let me begin by offering two very different definitions, one focused on first-order ethics -- that is, defining what is "right" and "wrong" -- and the other focused on meta-ethics -- that is, defining the nature and foundation of ethics:

First-order "objective ethics" refers to ethical precepts of a general nature that apply similarly in all relevantly similar situations and circumstances. (Conversely, "subjective ethics" in this sense means that each individual defines his or her own ethical precepts, which may be different from other people in relevantly similar circumstances, and perhaps even different for the same person in relevantly similar circumstances.)

Meta-ethical "objective ethics" refers to ethical precepts that are external to human beings, like the law of gravity. (Conversely, "subjective ethics" in this sense means that moral views are human opinions grounded in human realities such as biology, psychology, and social interaction.)

Based on these definitions, several observations can be made:

1. Whether one subscribes to the objective or subjective meta-ethical view, one can adopt the first-order objective view. That is, whether we believe ethics are an independent constant or a human construction, we can believe that first-order ethical precepts apply similarly in similar situations.

Now, this is not to say that the subjectivist believes that ethical precepts can be "true" or "false" -- that is, demonstrated as one would a mathematical proof or the law of gravity. But to say they cannot be proven is not to say they are not objective. It is one thing to claim that some action in some set of circumstances -- say, torturing your child for getting up from the dinner table, or ignoring the presence of a destitute beggar on the street -- is always "right" or "wrong." It is a very different thing to claim that this can be demonstrated to anyone using some set of logical principles (and that any lack of agreement could only be explained by some failure of apprehension).

(Incidentally, although there is a difference of opinion about whether first-order precepts can be "true" or "false," both meta-ethical objectivists and subjectivists agree that meta-ethical statements can be true or false.)

2. The meta-ethical subjective stance is not the same as moral relativism. One can take the view that moral principles are a human construct, but nonetheless do not necessarily vary in different contexts and cultures.

3. The meta-ethical subjective stance is not the same as moral nihilism. One can take the view that moral principles are a human construct, but nonetheless have substance and meaning.

4. Theists need not be meta-ethical objectivists, and atheists need not be meta-ethical subjectivists. Although atheists often adopt the subjectivist position, it is logically possible and not uncommon for atheists to advance the argument that ethics can be objectively derived from the nature of humans and reality. Similarly, although theists usually adopt the objectivist position, it is logically possible and not uncommon for theists to believe that God did not "create" moral law. (The Euthyphro dilemma speaks to this latter issue.)

I adopt the subjectivist meta-ethical view because I believe first-order ethical precepts are inextricably linked with "values" -- propositions about what is meaningful and worthwhile that are connected to, but not logically dictated by, "facts" about humans and the world.

If we believe there is no God, or that God did not "create" a moral reality, we are not launched into a moral abyss without any points of reference for humans to create ethical constructs. Virtually all humans share the same basic survival and growth needs, certain core emotional responses, and certain core social behaviors. We all share the same physical reality and rules of logic.

Thus, we can have meaningful conversations about values being more or less desirable notwithstanding the fact that we may not be able to "prove" anything in this regard. The reasons why most people agree about murder might be more like the reasons most people agree about sauerkraut ice cream than we think.

Western philosophy has offered a variety of systems for weighing values and making moral judgments, based on virtue, justice, natural rights, utilitarianism, and the common good, among other things. None of these is completely satisfactory to me, but they all offer signposts. They also present more than a little evidence for the proposition that meaningful conversations are possible in the absence of a provable solution.

But if murder really is a lot like sauerkraut ice cream, some have argued, we lose any basis on which to "impose" our moral judgment on others -- whether through mere moral persuasion or an attempt to actually control and/or punish certain behavior.

The former proposition is simpler to address. We can try to "convince" people that fine French food is "better" than sauerkraut ice cream (or McDonald's or fine Italian food) by appealing to their own internal sense perceptions and instincts, principles of cooking, facts about the nature of the human tongue and taste sensation, and on and on. And we can try to "convince" people that murder is "worse" than the alternative by appealing to their own internal perceptions and instincts, principles of human biology and psychology, social dynamics, the value systems listed above, and on and on.

But we cannot "prove" murder is wrong any more than we can "prove" sauerkraut ice cream is yucky. This is in my view a reality of the human condition.

And even if we could "prove" ethical rules, that would not result in everyone following them. This is in my view another reality of the human condition.

The good news from my point of view is that Judaism is a superb vehicle for tackling moral issues. This is not because God exists, or because the Torah was written by God, but because the Torah and other sources of Jewish wisdom do an excellent job of elucidating a set of values that are well-grounded in the realities of human nature and experience and exploring not only how they fit together, but also how they stand in tension. (After all, "ethical dilemmas" usually arise when important values stand in opposition, not when everything points in the same direction.) For someone preoccupied with ethical behavior -- "making better people and making people better," as I am fond of saying -- Judaism is first and foremost useful.

The latter proposition -- the use of individual force or communal police power -- is not so much a matter of ethics as political philosophy. Our right to stop (or punish) the murderer is not based on the fact that we can "prove" that murder is wrong; it is based on our individual desire to protect ourselves and others from being murdered and from our communal agreement to form societies and governments that will exercise this power on our behalf.

The reason that murder and sauerkraut ice cream are different is not that one is a matter of fact and the other is a matter of taste. The difference lies in the fact that murderers create consequences that sauerkraut ice cream eaters do not. The decision to stop or punish the murderer lies in a moral and political consensus about the desirability of doing so and not on pure logic.

In this realm, Jewish wisdom is somewhat less useful. The Torah and Oral Law more or less assume a world in which Jewish religious authority and government authority are one in the same. There are not simply moral maxims and lessons; there are consequences and penalties imposed not only by God but also by men. This is not to say that Jewish wisdom does not speak to issues of politics and government. But in our modern secular world, there is generally a disconnect between religious authority on the one hand and government authority and police power on the other. (Indeed, some religious conservatives have as a top priority either eliminating this disconnect or working around it through separation from secular society.) A moral consensus, based on religious principles or otherwise, may produce the political consensus necessary to exercise authority, but that does not mean that the moral and political consensus are one in the same.


Sunday, July 27, 2008

The Documentary Hypothesis In Detail - Genesis

I have compiled the following table showing all the verses in Genesis and which source they are from. I have used two separate classifications: Richard E. Friedman's from The Bible With Sources Revealed (2003) and Samuel Driver's from Introduction to the Literature of the Old Testament (9th ed 1913) (Google Books version of Driver here.) I have also marked the verses with an asterisk where they differ, and finally included some explanatory notes by Friedman and Driver. These two versions are remarkably similar, especially given that they are separated by a very busy century.

These two versions differ in at least two notable respects.

1. Driver explained that it was fairly easy to tell the difference between P on the one hand and J, E, and JE on the other. However, distinguishing between J and E is much harder in places. Many of the differences between Friedman and Driver involve J and E classifications.

2. Friedman assigns several transitional versed to R (the redactor), but Driver assigns them to P, who was in fact doing some redacting. I think this difference stems largely from the difference in the dating of P. Driver and most early bible scholars assigned P to after the Babylonian exile, while Friedman and many (but not all) contemporary bible scholars assign P to before the exile. Thus, Friedman believes there was a much greater separation between P and R, whereas Driver believes they might have been the same person or at least contemporaries.

At this point, I am not making any sort of argument. I am simply laying out the theory to be tested. My plan is to make a similar chart for Exodus through Deuteronomy. After that, I will compile a list of the characteristics that the DH advocates claim can be found in each of the sources. Once I have completed that, I will have identified the theory to be tested. And then I'll test it.

Here's information about the table.

F - Friedman
D - Driver
Diff - Different. * if Friedman and Driver are difference, nothing if they are the same.

J - J
E - E
RJE - Redactor of J and E
P - P
R - Redactor
O - Other

Here's the table.

1:1 - 2:3PP
2:4b - 2:25JJF: R inserted "Elohim" after YHWH
3:1 - 24JJF: R inserted "Elohim" after YHWH
4:1 - 24JJ
5:1 -28OP*F: Book of Records
5:30-32OP*F: Book of Records
7:17aJP*D: except for "40 days"
8:1-2aPPF: to "skies were shut"
9:28-29OP*F: Book of Records
11:10b-26OP* F: Book of Records
11:31aPPF: to "land of Canaan"
11:32aOP*F: Book of Records
12:4b-5PPF: "from Haran" added by R
15:1-12JE*F: "Ur of the Chaldees" in 7 added by R; D: parts from J
15:13-17aRE*F: to "and the sun was setting"
22:19EEF: "word of YHWH" in 16 added by RJE
31:18bPPD: from "and all"
32:14-21EEF: "And he spent the night there" in 14 added by RJE
33:18aRP*F & D: "which was in the land of Caanan, when he was coming from Paddan Aram"
34:25JPart J, part P*
35:9-13PPF; "again when he was coming from Paddan Aram" in 9 added by R
35:16-20EEF: And they travelled from Beth El" in 16 added by R
36:2-30PPF: Esau's geneology uncertain. D: 2-5, 9-28 probably from independent source
37:2bJE*F: "These are the records of Jabob" added by R
37:28aEEF & D: to "pit"
37:28bJJD: to "silver"
41:14aEJ*D: "and they brought him quickly from the dungeon"
45:4cJJD: "and they brought him quickly from the dungeon"
45:5JJD: "that ye sold me thither"
45:10JJD: "to Goshen"
46:1EJ*D: "Israel"
47:6bPJ*D: LXX has 6b (re making livestock officers) after 4.
47:13-26EJ*F: difficult to determine whether J or E
47:27aJJD: to "Goshen"
47:27b-28PPD: from "and they"
49:1b-27JJF: based on an older composition


Tuesday, July 22, 2008

Tradeoffs in Judaism Between Truth and Goodness. Or Not.

XGH has another interesting post called Massively Conflicted. His problem, simply put, is he thinks there is a lot of good in Orthodoxy but a lot of stupidity as well. And he keep cycling through different resolutions of this problem, with little success.

I think he is looking at the problem wrong. As XGH frames the issue, there are trade-offs between truth and goodness and XGH simply needs to optimize. But (as we argue in various ways in this blog), once Judaism is understood from a more moderate or liberal perspective, there might not really be any trade-offs and in fact the optimum is a more moderate form of Judaism. Let me analyze the problem first, and then try to argue for a solution.

The Orthodox world has a lot of goodness: solid communities, commitment to good things, meaningfulness, etc. It also has some badness (agunah problem, crazy obsession with trivial things, etc.). And it advocates things that many people like XGH believe are false, like the Mosaic / Divine authorship of the Torah. It tries to be a complete worldview (or a totalizing discourse, as the post-moderns call it).

As one shifts into more moderate or liberal forms of Judaism, the particularly Jewish aspects of goodness are fewer and less pronounced. There are fewer people committed to Jewish practices and community, and there is less learning and knowledge. Judaism is only somewhat important to moderate and liberal Jews, or as Arnold Eisen has argued, the commitment of more liberal Jews to Judaism partial. But with less emphasis on Judaism comes a greater emphasis on secularism, for all its good (science, good secular entertainment, pluralism, democracy) and bad (bad secular entertainment, nihilism). But it is easier to square moderate and liberal forms of Judaism with truth, at least from XGH's perspective: the idea that the Torah is literally from God and written by Moses is rare in moderate and liberal circles. It certainly will not get you kicked out.

As you shift to complete secularism, you find all of the good and bad of secularism and little or no of Judaism's good (real communities) and bad (agunah problems).

That's the problem. For some people, there is a corner solution, as economists put it. Traditional Orthodox Jews think that Orthodoxy is a lot better than other forms of Judaism and secularism and think that God really did give the Torah to Moses. Their choice is easy. Secular Jews think that traditional religious practices are outmoded and silly and God did not give the Torah to Moses. Their choice is easy as well. Moderate to liberal Jews (like me) think that a more moderate form of Judaism encompasses both the best of tradition and modernity, as well as being based on true premises. Our choice is easy too.

But what about someone like XGH, who thinks that traditional practices are mostly good with some bad mixed in, but that Orthodoxy believes false things?

Three options.

First, one can argue that truth always trumps goodness, and move away from Orthodoxy.

Second, one can argue that goodness always trumps truth, and move towards Orthodoxy.

Third, one can conclude that there is some tradeoff between the two and then optimize.

There's really no getting around this tradeoff if one values both truth and goodness. One should simply think about it, make a decision, recognize its imperfections, and live with it. That's life.

But let me go back a minute and argue for my position: this tradeoff might not be a real one.

As I have argued in The Theory of the Other Theory, a moderate or liberal Jew must ask what the biblical interpreters and Talmudic rabbis were actually doing, regardless of what they thought they were doing. I think they were wrestling with the great questions in life and came up with lots of really great ideas. They expressed these ideas through through particularly religious modes, but it is the ideas themselves that are great, not the religious expression. This provided the basis for a cohesive Jewish community that has lasted for 2,000 years. As the ideological heirs to this tradition, we can try to understand it in more current ways. And if one accepts the DH, for example, one can try to understand the divinity of the Torah in a different way than chazal literally did, but still understand it as divine in the broader or structural or functional way that chazal did.

This approach is pretty mainstream in Conservative and Reform Judaism, is the sine qua non of Reconstructionism, but is completely marginalized in Orthodoxy. (Think Louis Jacobs, if not the reaction to James Kugel.)

From an Orthodox perspective, this approach is some sort of half-way measure for people who are just not committed enough to practice "Torah true" Judaism. Although this belief is not universally held, it is frequently held in the Orthodox world, and I view this belief as one of the great failings of Orthodoxy. I see this viewpoint subconsciously expressed in several of the regular commentators here who grew up Orthodox, rejected Orthodoxy, but still equate Orthodoxy with "true" Judaism and thus reject all of Judaism. This belief has energized a huge percentage of Israeli Orthodox Jews, and it has caused most of Israeli Jews to reject most of Judaism completely. It is sad to me that a more moderate approach to Judaism is both ideologically sound and the answer to many problems.

One might object to this argument on the ground that more liberal Judaism does not have "real" communities like Orthodoxy does. That's mostly true. But Orthodox communities are based on a shared set of beliefs and practices, and those practices include things like TMH. Thus, one might be a member of an Orthodox community, but some percentage of that community might believe that dinosaurs did not exist, that evolution did not occur, that the flood is literally true, and that the universe is 6,000 years old. There are downsides to a community based on false or problematic beliefs. But it is certainly true that moderate and liberal Jewish comminities, with fewer common beliefs and practices, are less coherent.

There is no perfect solution. A
s I previously wrote, I agree with XGH's overall strategy for moving Judaism forward. And one thing that XGH (and me, and you) can do is to work to make these places better. The issue is whether one starts in a more moderate or liberal place and tries to make it more serious, scholarly, and communal, or whether one starts in a more Orthodox place and tries to make it more rational and reasonable. There is no easy answer to that question.


Friday, July 18, 2008

The Future of American Judaism?

There's an interesting post over at "Angstgnostik Reconstructodox Modern Orthoprax" (or XGH or whatever he is calling his blog today) called Our Strategy. XGH is an orthoprax Jew who likes Orthodox practices but accepts the DH and many other modern beliefs that, in one way or another, undermine traditional Orthodox beliefs. For the past few years, he has been taking widely disparate ideas and crashing them together in am intellectual Judaism-modernity supercollider, in the hopes of generating new super-particles ideas that might reconcile this conflict.

His most recent post sets out a broad program for what he is doing. In short, it is an attempt to bring in a more critical, open, and modern understanding of Judaism while at the same time keeping a more traditional orthoprax lifestyle. This is left-wing Modern Orthodoxy, with a bit of Reconstructionism thrown in.

I think he has identified the broad outlines of the future of American Judaism, and it is similar to the one that I (and Steve and Diane, I think) advocate, at least in very general terms. Here's why.

Some current RW Orthodox thinking requires shutting out some contemporary ideas, even if they are true or useful or powerful. Instead of dealing with these head-on, these thinkers and communities simply ignore them. This sort of head-in-the-sand approach might build communities, but the communities face the ever-present risk of being undermined as soon as people are exposed to contrary ideas. That works for a while, but it is no way to hold a community together in the long run.

At the other extreme, it is not clear to me that secular / cultural / non-halachic / non-traditional approaches to Judaism can survive as Judaism. These movements may end up doing much good, but by untethering themselves from the essential characteristics of Judaism, they risk drifting too far from anything that we might meaningfully think of as Judaism.

That leaves the broad middle. A type of Judaism dedicated that embraces the important and good aspects of modernity but remains "a people that dwells apart, not reckoned among the nations" as last week's parsha put it. Taking halacha and tradition seriously, but retaining the flexibility to chance halacha when there is a compelling need. In short, a dedication to both tradition and change. Sound familiar?

It should. This is the same approach as the one advocated by Conservative Judaism in the first half of the 20th Century. That movement worked well in many respects and did not work well in other respects. Part of the problem with Conservative Judaism today, as people have noted, is that many lay people have very little understanding of, and thus little interest and involvement in, the greatness of traditional Judiasm. Reversing this is one of the challenges facing Conservative synagogues.

There is an open question as to whether this approach to Judaism will emerge as a more modern shift in Orthodox thinking or as a more traditional shift in Conservative practice. It may even come from the Reform movement if it could re-embrace halacha and tradition, and subordinate its radical individualism, in a serious way. But whereever it comes from, I think it is the future of American Judaism.


Monday, July 14, 2008

Three Challenges to the TMH / DH Project

The TMH/DH Project proposes to weigh the evidence supporting two competing theories:

TMH: "[T]he 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[me] esoteric and hidden) about all sorts of important things."

DH: Bruce proposes "to use Richard Elliot Friedman's book 'The Torah With Sources Revealed'," but does not summarize the DH as presented in that book. I will go with the following: The five books of Moses are a series of different books, written by various human authors (well after the time of Moses), that were ultimately combined and redacted into one form by yet another human author(s).

Bruce goes on to observe that "[t]his issue is central for many people's religious beliefs and practices." He then makes the following claim: "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."

Without in any way discouraging my friend Bruce, or any of our readers or commentators, I want to present three challenges to what I see as underlying assumptions of the enterprise:

1. The TMH/DH Issue is Not Central for the Religious (or Non-Religious) Beliefs and Practices of Most Jews

I certainly agree with Bruce that this issue is central (or at least very important) for many Jews, but I do not think it is at the crux of the religious beliefs or practices (or the rejection of these) of most Jews. My view is that the fundamental beliefs and practices of Jews and their co-religionists have a great deal more to do with childhood upbringing, social milieu, psychology, faith, and other "non-rational" factors. (One could argue that some of these are "rational," but I'll leave that alone in the hopes that my meaning here is clear.)

The interaction of non-rationalism and rationalism on a personal level is far too complex for me to grasp, yet alone set out here, but I believe that predispositions, surroundings, non-verifiable beliefs, and emotions are the driver for most religious people, and positions on factual assertions (especially non-verifiable factual assertions, for those who don't believe that the very term is oxymoronic) come, if you'll forgive the pun, "after the fact."

These factual theories about the origin of the Torah (especially the non-verifiable ones!) are usually adopted as a result of the religious beliefs (or lack thereof), and not the other way around. Put in Bayes' Theorem terms, as Bruce has noted, the initial probability assigned to the competing theories is often the determinative factor. (Moreover, it is in my opinion usually the end of the analysis -- or, more accurately, there is no analysis, because most people who have ever considered the subject at all have an opinion (whether for TMH or DH) that was formed without any serious exploration of the "facts").

As the foregoing discussion highlights, there is a fundamental asymmetry between the two theories. TMH is in my view necessarily based in part on faith -- we cannot believe that God authored the Torah unless we believe in God. DH, on the other hand, is not necessarily based on any view about the existence of God or any other non-verifiable matter.

That being said, many people reject TMH because they are atheists, agnostics, etc. For them, DH is simply the "scientific" or "rational" alternative -- it may have flaws, fundamental or otherwise, but this will always reflect nothing more than flawed historical study which will presumably be corrected over time (unless some critical evidence is lost to history). But flaws in DH would not likely lead such a person in the direction of TMH.

Many other comments have made a similar point, arguing that most people are not likely to "change their mind" based on this project. Of course, the TMH/DH debate is central for some, and I trust they will find the endeavor interesting and meaningful.

2. For Religious Jews, the TMH and DH Theories Are in Important Respects Not "Competing"

The premise that the Torah is divine is neither necessary nor sufficient to establish that the Torah is "instructions for living" or "contains important insights . . . about all sorts of important things." Perhaps even more obviously, the premise that the Torah was written and compiled from a variety of human sources is not sufficient to establish that it is not "instructions for living" or does not "contain important insights."

Thus, I do not see these views in such stark opposition with respect to the "appropriate" level of Jewish practice or Jewish belief.

By presenting the TMH/HD debate as so dichotomous, the enterprise assumes or at the very least is concordant with the conventional Orthodox view that the Torah must be divine, absolute, and immutable in order to be binding on people or meaningful at all. I reject the logic of this position. It does not so simply follow that the Torah is "binding" because it is divine -- there are several unstated (and unprovable) assumptions required to complete this argument. Nor does it follow that the Torah is rendered meaningless if it is a living, evolving document. As Diane, Bruce and I have all argued elsewhere to varying extents, it is not so terribly important (or perhaps even possible) to "prove" that the ethical precepts of the Torah are correct or "true." From my point of view, the Orthodox position introduces a problem that does not need solving, and then proposes a solution that does not solve the problem in any event. (I have promised a future post taking up this line of thought in greater detail.)

3. Orthodoxy Posits the Divinity of Both Torah and Oral Law

One final, simple point. As presented, this TMH/DH Project ignores the broader (and, in my view, far more implausible) claim that the Oral Law is also divine and was also given to Moses at Sinai. This approach makes sense given the contours of the DH. But if Bruce is correct that the decision about whether to be Orthodox might well rest on this debate -- and I've already made clear that I don't believe that it does -- one would have to evaluate this broader view of TMH.


Sunday, July 13, 2008

The Daugters of Zelophehad, Evolving Halacha, and the Common Law

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.


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.

Ibn Ezra

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.