Papers by Daniel Reifman
Law as Religion, Religion as Law
Mandel Center for Studies in Jewish Education at Brandeis University, Apr 1, 2010
One of the greatest challenges for students of Talmud or Halakhah is acclimating to a system of l... more One of the greatest challenges for students of Talmud or Halakhah is acclimating to a system of logic that seems utterly foreign to their own. This paper proposes that teachers can help students overcome this difficulty by approaching Talmud through the lens of legal theory. The paper outlines a novel model of legal theory, analyzing the way legal texts generate meaning by comparing law to other sign systems, such as language. By drawing on the central tenet of semiotics – that the relationship between text and meaning is necessarily contextual, we can better help students understand the nature of Talmudic hermeneutics and the halakhic process as a whole. A later version of this paper was published in _Turn it and Turn it Again: Studies in the Teaching and Learning of Classical Jewish Texts_ (Academic Studies Press, 2014).
Jewish Quarterly Review, 2020
Modern Judaism, 2017
Within the past two years, the Jewish world has mourned the passing of two of the most influentia... more Within the past two years, the Jewish world has mourned the passing of two of the most influential Jewish theologians of our generation: Rabbi Aharon Lichtenstein, the Rosh Yeshiva of Yeshivat Har Etzion and a leading student and son-in-law of R. Joseph B. Soloveitchik, and Rabbi Eugene Borowitz, a longtime faculty member at the Hebrew Union College and one of the most influential scholars in the American Reform Movement. Then as now, there were few contexts in which a Reform and an Orthodox theologian would have engaged in substantive religious dialogue. Yet Borowitz and Lichtenstein’s work intersected in one of the most prominent issues in modern Jewish thought: what is the role of ethics within halachic discourse? Lichtenstein addressed this topic in his 1975 essay, ‘‘Does Jewish Law Recognize an Ethic Independent of Halachah?’’ Borowitz subsequently critiqued Lichtenstein’s position in his essay, ‘‘The Authority of the Ethical Impulse in ‘Halacha’,’’ and offered his own view of the role of ethics within halacha and contemporary Jewish life. The relationship between Jewish ethics and Jewish law has been the subject of much analysis within the field of philosophy of halacha, and Lichtenstein and Borowitz’s essays are neither the most analytically rigorous nor the most incisive studies on this topic. Moreover, they consider only in passing the relevant scholarship in both general moral philosophy and general legal theory. Their essays are noteworthy first and foremost because they represent the dominant modern Orthodox and Reform positions on this issue. In this article we will also argue that, for all the shortcomings in their analysis, Lichtenstein and Borowitz each offer critical insights that are absent in other writings on this topic. Taken together, these insights point the way toward a more coherent account of the function that ethics serves within halachic discourse.
Turn It and Turn It Again
In June 2010, the Halakha Committee (Va’ad Halacha) of the Rabbinical Council of America released... more In June 2010, the Halakha Committee (Va’ad Halacha) of the Rabbinical Council of America released an educational paper regarding the halakhic recognition of brainstem death, bringing the long-simmering debate over this issue to a boil once again. The paper is most directly a belated response to the RCA’s acceptance in 1991 of the Health Care Proxy authored by R. Moshe Dovid Tendler, a move that was opposed by a majority of its Va’ad Halacha at the time. But the debate over the halakhic status of brainstem death stretches back more than two decades earlier, when the fi rst successful human heart transplant in Cape Town, South Africa brought the question of how to defi ne death to international attention. The issue, then, has been the subject of halakhic dispute for over forty years, yet it continues to occupy a central place in the public consciousness, as the Va’ad Halacha’s paper—weighing in at over a hundred pages of dense analysis—amply demonstrates. To the layperson, it may seem...
Turn it and Turn it Again, Dec 31, 2019
Jewish Quarterly Review, 2020
Semiotic theory provides a powerful set of tools for analyzing rabbinic legal reasoning. Followin... more Semiotic theory provides a powerful set of tools for analyzing rabbinic legal reasoning. Following Saussure's distinction between the two axes of a sign's meaning, value and signification, I posit that any casuistic law acquires meaning from two distinct elements of legal discourse. The first element is analogical reasoning, that is, the comparison between casuistic laws, which is the type of sense construction implicitly reflected in the organization of the tannaitic law codes. Semiotics establishes that legal analogy is not merely a tool for adjudication but rather the essential means of constituting a cohesive discourse out of distinct legal formulations.
The second element is rationalization. Scholars have traditionally conceived of legal rationales as logical antecedents or historical motivations for laws; I demonstrate that these do not reflect the way rationales are invoked within rabbinic law. Rather, based on Peirce's conception of meaning as "the translation of a sign into another system of signs," rationalization is best conceived of as the association of a law with a statement from outside the network of casuistic laws. What confers legitimacy on a given rationale is its position within a conventionally accepted mode of halakhic argumentation.
I use this model to account for the fact that legal rationales tend to play a relatively peripheral role in the construction of rabbinic legal discourse. Semiotics establishes that a broader legal discourse, wherein casuistic laws are explained through various types of rationales, is possible only because the network of casuistic laws constitutes a self-sufficient cultural construct.
Jewish Law Association Studies, 2017
Over thirty years after its publication, Robert Cover's landmark essay "Nomos and Narrative" 1 re... more Over thirty years after its publication, Robert Cover's landmark essay "Nomos and Narrative" 1 remains one of the most influential legal theory articles of our generation. Cover's essay has been celebrated for expanding our conception of "law" beyond the purview of the courts to include the many variant interpretations offered different communities within society, each with its own nomos.
Halakhic Realities: Collected Essays on Brain Death, 2015
If there is one issue that unites virtually all sides in the fractious halakhic debate over brain... more If there is one issue that unites virtually all sides in the fractious halakhic debate over brainstem death, it is the critical significance of the position of R. Moshe Feinstein. R. Feinstein was one of the earliest posqim to weigh in on this issue, and one of a very few with sufficient stature to potentially resolve the debate. That his position has become the subject of intense dispute is thus particularly unfortunate. Since his death in 1986, a remarkable amount of energy has been exerted by proponents in both camps toward posthumously ‘recruiting’ R. Feinstein to their side of the issue.
Despite the fact that R. Feinstein’s responsa have been picked over endlessly in the course of the debate, there remain not only a number of persistent misconceptions about his position, but also several passages that scholars on both sides have virtually ignored. In this article, I argue that R. Feinstein’s position is fully consistent with the standard of brainstem death currently accepted by the medical community, and that the passages which scholars have overlooked provide important conceptual grounding for that position. I further propose that the outsized attention accorded to Rabbi Feinstein’s position is justified not only by his inestimable status as a poseq, but also by his extremely incisive analysis of this issue. Both in his conceptual analysis and in his use of sources, R. Feinstein challenges the deeply ingrained views that have that come to dominate the debate over brainstem death and medical halakha in general.
One of the greatest challenges for students of Talmud or Halakhah is acclimating to a system of l... more One of the greatest challenges for students of Talmud or Halakhah is acclimating to a system of logic that seems utterly foreign to their own. This paper proposes that teachers can help students overcome this difficulty by approaching Talmud through the lens of legal theory. The paper outlines a novel model of legal theory, analyzing the way legal texts generate meaning by comparing law to other sign systems, such as language. By drawing on the central tenet of semiotics – that the relationship between text and meaning is necessarily contextual, we can better help students understand the nature of Talmudic hermeneutics and the halakhic process as a whole.
A later version of this paper was published in _Turn it and Turn it Again: Studies in the Teaching and Learning of Classical Jewish Texts_ (Academic Studies Press, 2014).
Dissertation by Daniel Reifman
As I near the end of what has often felt like a long, lonely journey, it is humbling to realize h... more As I near the end of what has often felt like a long, lonely journey, it is humbling to realize how many hands have in fact been supporting me along the way.
Review Essays by Daniel Reifman
Modern Judaism, Feb 2006
Expanding the Palace of Torah: Orthodoxy and Feminism (Lebanon, NH: University Press of New Engla... more Expanding the Palace of Torah: Orthodoxy and Feminism (Lebanon, NH: University Press of New England, 2004). xxii + 324 pp.
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Papers by Daniel Reifman
The second element is rationalization. Scholars have traditionally conceived of legal rationales as logical antecedents or historical motivations for laws; I demonstrate that these do not reflect the way rationales are invoked within rabbinic law. Rather, based on Peirce's conception of meaning as "the translation of a sign into another system of signs," rationalization is best conceived of as the association of a law with a statement from outside the network of casuistic laws. What confers legitimacy on a given rationale is its position within a conventionally accepted mode of halakhic argumentation.
I use this model to account for the fact that legal rationales tend to play a relatively peripheral role in the construction of rabbinic legal discourse. Semiotics establishes that a broader legal discourse, wherein casuistic laws are explained through various types of rationales, is possible only because the network of casuistic laws constitutes a self-sufficient cultural construct.
Despite the fact that R. Feinstein’s responsa have been picked over endlessly in the course of the debate, there remain not only a number of persistent misconceptions about his position, but also several passages that scholars on both sides have virtually ignored. In this article, I argue that R. Feinstein’s position is fully consistent with the standard of brainstem death currently accepted by the medical community, and that the passages which scholars have overlooked provide important conceptual grounding for that position. I further propose that the outsized attention accorded to Rabbi Feinstein’s position is justified not only by his inestimable status as a poseq, but also by his extremely incisive analysis of this issue. Both in his conceptual analysis and in his use of sources, R. Feinstein challenges the deeply ingrained views that have that come to dominate the debate over brainstem death and medical halakha in general.
A later version of this paper was published in _Turn it and Turn it Again: Studies in the Teaching and Learning of Classical Jewish Texts_ (Academic Studies Press, 2014).
Dissertation by Daniel Reifman
Review Essays by Daniel Reifman
The second element is rationalization. Scholars have traditionally conceived of legal rationales as logical antecedents or historical motivations for laws; I demonstrate that these do not reflect the way rationales are invoked within rabbinic law. Rather, based on Peirce's conception of meaning as "the translation of a sign into another system of signs," rationalization is best conceived of as the association of a law with a statement from outside the network of casuistic laws. What confers legitimacy on a given rationale is its position within a conventionally accepted mode of halakhic argumentation.
I use this model to account for the fact that legal rationales tend to play a relatively peripheral role in the construction of rabbinic legal discourse. Semiotics establishes that a broader legal discourse, wherein casuistic laws are explained through various types of rationales, is possible only because the network of casuistic laws constitutes a self-sufficient cultural construct.
Despite the fact that R. Feinstein’s responsa have been picked over endlessly in the course of the debate, there remain not only a number of persistent misconceptions about his position, but also several passages that scholars on both sides have virtually ignored. In this article, I argue that R. Feinstein’s position is fully consistent with the standard of brainstem death currently accepted by the medical community, and that the passages which scholars have overlooked provide important conceptual grounding for that position. I further propose that the outsized attention accorded to Rabbi Feinstein’s position is justified not only by his inestimable status as a poseq, but also by his extremely incisive analysis of this issue. Both in his conceptual analysis and in his use of sources, R. Feinstein challenges the deeply ingrained views that have that come to dominate the debate over brainstem death and medical halakha in general.
A later version of this paper was published in _Turn it and Turn it Again: Studies in the Teaching and Learning of Classical Jewish Texts_ (Academic Studies Press, 2014).