Law and Kindness — What is Radical Thought? (Published Response to Martin Kavka in Soundings)

Martin Kavka’s essay, “Can Jews be Radical Theologians” and responses to him by myself, Richard Rubenstein, and Marc Ellis just came out in Soundings (95:1, 2012)

With his usual acumen, Martin sought in this philosophical query a turn (via Levinas and Hegel) to a free form of law in order to ground a radical form of Jewish theology/thought. As the divine empties out into the material form of law, the distinction between heaven and earth is subverted.

For my part, I expressed critical reservations about radical thought and theology. Once upon a time, I may have been almost attracted to radical thought. But I never really had the stomach for it. Nor do most modern and contemporary Jewish thinkers. In my view of things, the commitments in Jewish thought and philosophy to ethnos, “law,” and ethos preclude radical thought.

My critical remarks to Martin’s excellent essay run like this:

I would see constitutive in all forms of radical thought, including radical theology, a twofold relation to conventional forms of thought and representation. The first moment of radical thought is an intentional and fundamental negation or uprooting of the order of things, especially systems of representation, which are seen, tout court, as binding and untrue. The second moment in radical thought, what makes radical thought genuinely radical, constitutes a foundational affirmation of the destructive force that propels the vision of a world without structure or distinction.

As I look at it, radical thought is “monstrous,” essentially “obscene,” “cruel,” and “violent.” I find there is something “inhuman” in radical thought, predisposed as it is to fundamental destruction and open to violence. This includes the radical theology of Altizer or the radical political theology of Taubes.  Maybe that’s one lesson of Nimrod and the Tower of Babel. The only way to obliterate the division between heaven and earth is through acts of violence that I don’t think Martin is willing to risk. I can’t believe that Martin really believes that “all human action  expresses divine power” (emphasis in the original). In his reply, the divine mercy drops out.

The reason I did not understand Martin’s turn to law as a foundation for radical theology looks something like this. If radical thought is a monster, it is because it eats its other, be it a subject or object. In contrast, law creates its object by inhibiting or accommodating a subject. That is why law can never be radical, no matter how free we might be able to determine it. At best law is pragmatic, even in Martin’s essay. But it can’t ever be “radical” since it is constituted out of the assertion of the very types of formal distinction that Martin wants to subvert. Unless he wants to turn divine law itself into a monster reflecting divine power.

I suppose I am hopeless. As an alternative to radical thought and its fascination with power, I’m more interested in kindness. This thought first came to me last summer while reading Vassily Grossman’s great novel Life and Fate, set primarily around Moscow and Stalingrad during World War II. In Life and Fate, small acts of kindness are counterpoised to the cruel grinding structures of totalitarian order, theoretical physics, genocide, and modern warfare.

About kindness, the rabbis in the Babylonian Talmud had this to say in tractate Sotah. One of the cruelest tractates of the rabbinic corpus of law, it deals with the rabbinic interpretation of the law that submit the suspected adulteress to a test of bitter waters. What interests me here about this text is the exposition by R. Simlai. “The Torah,” he claims, “its beginning is kindness [gemilut hasidim] and its end is kindness. Its beginning is the performance of kindness, as it is written, ‘And God made for Adam and his wife skin garments, and He clothed them.’ And its end is kindness, as it is written, ‘He buried [Moses] in the depression’” (14a).

I read in this passage the nub of the difference between Martin and me. In his reply, Martin insisted that “the ethos” which he takes to be “sine qua non of classical Jewish discourse about the nature of right authority is about something more than mere kindness” (emphasis added). Is it always necessary or even ever possible to “justify” everything to everybody? My respect for Martin is boundless, but this to me is a very depressing thought. Deep anxieties about “right authority” are what animate conservative religious thought, not radical religious thought, or “Judaism.” But let’s say that’s not true. Even still, I think gemilut hasidim (kindness) is a fundamental principle, not a “merely” decorative tschotske. I believe I get this from the rabbis.

It’s not that I think law is kind. My late father was a lawyer of a very grubby kind. To me, then, kindness only underscores the difference between “divine law” and “human law.” (Most egregious of all, is the human law which pretends to be divine law.) Not for the sake of obedience, divine law is a pattern of human action whose telos is the love of God. By “divine law,” of course, I mean something more akin to Spinoza and maybe Maimonides than to Strauss, with whose example I’d like to have almost nothing to do.

It’s not that I don’t understand Martin’s concern with right authority, or appreciate the enormous critical energies animated by that concern of his in his own philosophical explorations. This I’m sure is what might make Martin a better, more critical philosopher than I could ever be. In relation to Judaism, though, I just don’t share the concerns that animate him, philosophically. For me, the proof of Judaism, its rituals and texts, is always in the pudding. Martin makes fun of me all the time, and for good reason, most of the time. Martin believe in philosophy more than I do, whereas I’m more invested intellectually in the “sense” of these kinds of things rather than in their meanings. That means that my own thinking has always been more aesthetic than critical.

About zjb

Zachary Braiterman is Professor of Religion in the Department of Religion at Syracuse University. His specialization is modern Jewish thought and philosophical aesthetics.
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3 Responses to Law and Kindness — What is Radical Thought? (Published Response to Martin Kavka in Soundings)

  1. hayyim rothman says:

    I am only going to comment on the place of spinoza here simply because I am dealing with him right now and have him in mind. although you place him in the radical camp by virtue of the fact that substance “eats the other” (i.e. all of us), I am actually not convinced this is the case. I am currently writing a paper trying, in part, to show that the action of conatus is more far reaching than rationalists would like it to be. namely, that it determines and conditions not only good/bad, but also true/false. he says that the universals we reason with are born of the confusion produced by a multiplicity of actually unique but similar images. to understand is to act in accord with the conatus of the mind, therefore, where there is confusion there is a drive to render it understandable, which we do by reducing multiplicity to universalized terms (fictionally). He goes so far as to include words like “thing”, and I would suppose “substance”, “attribute”, “extension”, and “thought” would also fit the bill. if this is so, then his entire metaphysics is simply a product of the drive of conatus to understand and preserve itself thereby.

    so, actually, nobody is swallowed and the perfect separation not only of every human, but of every entity at actually undergirds the whole book

    then, when he talks about the way groups conduce to the advantage of their members, this would constitute the essence of his thought and would, by definition, entail mediation, the work of law and the formation of non-apocalyptic collectives

  2. hayyim rothman says:

    “[law] can’t ever be “radical” since it is constituted out of the assertion of the very types of formal distinction that Martin wants to subvert. Unless he wants to turn divine law itself into a monster reflecting divine power.”

    well, what if the law – or at least the practice of interpreting it – was non-normative? here i think about the idea of “eilu we-eilu divrei elokim hayyim”. while a pragmatic choice may be made, this is in itself not of the interpretive practice of the law. the interpretive practice of the law is purely relative insofar as god, as it were, authorizes all its interpretations and, so, authorizes nothing…. this being the fundamental principle of the law. distinctions are made in and by interpretation, but none can dominate.

    here, the other is not swallowed up into the law but, rather, the principle of the law is that the other, any other, interprets it according to his understanding and, for him, this will be the (meaning of) the law itself. yet, there is a radical deletion of distinctions with respect to any heirarchy of authority. in a sense, what i am getting at is that certain distinctions can be obliterated without entailing a “swallowing up” and it is precisely those ones, (i.e. distinctions of power and authority) which i think are the most important to flatten….. particularly in a period of time in jewish history when rabbinic authority has become such an immense social, religious, and political problem

  3. hayyim rothman says:

    as per your suggestion, i just read your piece in “jewish textual reasoning”. I still do not, see, however, that the non-normativity of the law is called into question. true, you distinguish between the sublime peak represented by the “elu we-elu” or by R. Meir’s aesthetic transcendence of good and evil in the ambiguous interpretation of the law and its banal decisions “but the halacha follows beit hillel”. but would not and could not deny that pragmatic decisions must always be made. that is, the bat kol must side with someone, R. Meir must ultimately trust his ability to write in permanent ink. but that is not really what i am driving at.

    what concerns me is the uprooting of the law from its absolute foundations. so long as i understand that any decision is ultimately pragmatic and provisional, that – presuming we are not speaking of deficient interpretations like (gemarra’s judgment, not mine) ravina’s – any number of other interpretations are equally valid theoretically, the fundamentalist position is undermined and the arena is opened for further interpretation and other decisions to come. even the radical is, at any given moment, normative. what makes it radical is, in my view, not that normativity is excluded but that norms are always understood in their suspension. I do not think that this view is excluded from the sugya at hand.

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