Halakhic Virtue Jurisprudence: Thinking with and against Joseph Soloveitchik’s view of Da‘as Torah

• In Event: Virtues and Dispositions of Rabbinic Judges: A View from Talmudic Texts and their Reception in the Medieval and Modern Periods

Abstract

A central feature of Modern Orthodoxy is arguably the distinction between halakhah, on the one hand, and ethics and politics, on the other. Halakhic norms, on this view, should be determinable independent of controversial ethical and political judgements. It was thus surprising when Lawrence Kaplan demonstrated that the central figure associated with Modern Orthodoxy–Joseph Soloveitchik–occasionally endorsed “Da‘as Torah,” the notion that a great rabbinic decisor may authoritatively opine about ethical and political issues without appealing to precedent. By drawing on contemporary legal theory concerning virtue jurisprudence, this paper has three goals: First, it explains Soloveitchik’s appeal to values and emotions in decision-making in the context of his halakhic and philosophical writings and intellectual influences. His endorsement of ‘Da’as Torah’ is not anomalous, but follows from his core commitments about values, emotions, and norms. Second, it normatively assesses this view of halakhic authority on the relationship between the decisor and those who are subject to his decisions. This may be called “halakhic domination,” since the decisor holds authority over such subjects but cannot be held accountable by them for rightfully exercising it. Third, recognizing the insight that judicial virtues matter for halakhic jurisprudence, it articulates the conditions necessary for relationships of accountability between halakhic decisors and subjects: They must have shared ethical and political values. And, even if these values operate perceptually and habitually in jurisprudence (that is, as virtues), decisors must still be willing to explicate and justify them to subjects.

Author

• Yonatan Brafman, Tufts University