I picked a fight about “Jewish law’ and “authority” with two colleagues on FB with a recent post about Ayelet Shaked and Jewish fascism. The upshot is whether or not so-called Jewish law operates as a system of binding constraints, and whether such a system of authoritative (i.e. justified) norms inhibits or creates the condition for freedom. I tend for the most part to shy away from what I believe is the authoritarianism that undergirds such claims for Jewish law. I tend to see norms not so much as a foundation upon which secure a system, as like an external source from outside the system; I tend rather to see them as a blurry horizon in which and under which the system operates.
What, for instance, would count as a reason that can “justify” or “authorize” that system of norms called “Judaism,” “Jewish law,” or “Jewish life”? One could follow Maimonides to understand the reasons for “observing the law” as a loose conglomeration of historical sociological, psychological, intellectual, and moral factors; to these could be added “aesthetic” factors as perhaps primary if by that term one includes beauty but means something more basic having to do with the organization of sensation and perception.
These only loose reasons can go only so far. At best and most, they turn out to be contingent, the force of which is rhetorical-performative. They can lend to a system of practice a semblance of “reasonableness.” But without a strictly and binding legal authority, such a system of loose normativity is unable to “justify” the particular practices that make up that larger system that one might call Jewish practice. Nor can reasons of this sort “authorize” so-called Jewish law as a system of “constraining” norms. Assuming that ideas and arguments will not do the trick, students of Jewish philosophy who seek that more robust form of “authority” for so-called Jewish law will have to look for some kind of constraining political power which might back up and enforce its regulations. Because without constraining political authorities there are no “constraints,” i.e. nothing to support a system built upon a notion and body of norms that one wants to uphold as “constraining” in the first place.
It is one thing to speak of “authority” in the abstract. But without actual warrants and constraints, as opposed to virtual ones, without the potentially punishing authority of the state or of God, as opposed to a picture-thought, what we’re looking at is something that Rosenzweig, writing against the modern orthodox thinker S.R. Hirsch, called “pseudo-juridical” and what we might also call “pseudo-political.” To try to have it otherwise is to burden what has historically been a more or less open, a more or less closed and contingent system of practice and norms with the heavy and crushing intellectual weight of a concept; a concept that turns out to be something more like a chimera. What’s left is the image of law. We can see this operating in contemporary Jewish thought and philosophy in its conservative turn. Without binding social practice backed up by authority, the idea of binding norms flits in and out of view like a shadow, which might be its sole grace or rhetorical appeal.