Rosh Hashanah Musings on Law and Justice

Posted by Jeff Lipshaw

Once again, I violate the tradition by celebrating the Jewish New Year not in a community (which when I was a member of a conservative congregation in Indianapolis never failed to cheese me off by talking full voice through the services, particularly in the back, something that the more Episcopalian sensibilities of the Reform temple seemed to eliminate) but in this solipsistic morning of musing.  I've pulled up to the front (just behind this one) a post written on Yom Kippur in 2006 (can it be three years?) just after we started this blog, when I was visiting at Tulane. 

The point of the previous post was what I find difficult about religious ritual, which is the reification of the sense of awe, wonder, and mystery of life, being, and consciousness into a set of rules.  (Hence, my appreciation instead for the music.)  That's the tension I described three years ago, between kevah - fixed prayer - and kavanah - inspiration. 

Not unrelated, I've come to think since then, is the relationship between law and justice, articulated (surprisingly as far as I'm concerned) by Derrida, a view I find grounded, sensible, and moderate (that's the surprise).  In a nutshell, law and philosophy are both about the arche, the structure, the polity, the rules, but justice is something else, an-arche, related to a singularity, unreachable, and subject to reification as soon as the sense of justice is embedded in a rule, because rules are not singular but universal.  We can't deal with complete anarchy - law is necessary, but equity (in Derrida's terms) deconstructs it.  I'm indebted here to the book I'm reading this morning - Demythologizing Heidegger - by John Caputo, formerly at Villanova and now at Syracuse.  What Caputo calls Derrida's "scandal" is that Derrida is not wholly without foundational anchor - there is something that is not capable of deconstruction, and that is justice.  Of course, if it can't be deconstructed, then is it an ageless and universal truth?  Well, no, and there's the paradox.  Law is a construct and we can deconstruct it.  But "deconstruction is possible insofar as justice is undeconstructible, for justice is what deconstruction aims at, what it is about, what it is." (Caputo, at 193.)

Not surprisingly, this returns me to the relationship between individual judgment and default to authority, something on which I posted mysteriously a week or so ago.  Let's go straight to the paradigmatic case of judgment and default to authority, the Akedah story, the binding of Isaac, which is the traditional Torah portion on Rosh Hashanah morning, and thus quite appropriate as the text for this morning's sermon.  This was the story that provoked Kierkegaard's Fear and Trembling, of the knife-edge of impossible judgments, caught between conformity to what purports to be authority and what Derrida (through Caputo) describes as "fresh judgment":

What is to be done cannot simply be calculated - it must be judged. Furthermore, a just decision, which is never a merely programmed, calculated application of a rule, is always made in the element of undecidability, must always pass "through the ordeal of the undecidable," in which our respect for the universal trembles before "the unique singularity of the unsubsumable example."

Caputo, at 196, quoting Derrida, "Force of Law: The 'Mystical Foundation of Authority'", 11 Cardozo L. Rev. 919, 961-67 (1990).  That's the leap of faith in judgment, that instant of decision that Kierkegaard calls a madness.  Or as I said in the abstract to the yet unpublished essay:  "Judgments are those things that occur in our minds, privileged to us, beyond authority, external truth-justifications, and power, whether or not we accede, in the solitude of our own minds, to authority, justifications, and power.  Lawyering, or advocacy, is an external appeal to authority. It seeks to use argument, largely of origin rather than validity, to vanquish an opponent. It is a social and inter-subjective exercise. When we make judgments, however, we are completely alone." That's particularly true if the God speaking to you is saying that what is just is to slay your child merely to show your obedience to God.

For more on practical judgment, and in particular, facing up to authority that dictates against one's own sense of justice, see Susan Neiman's account and interpretation of the counter-example of the Akedah story, Abraham's bargaining with God to save Sodom and Gomorrah, in her book Moral Clarity.