Korahite Judicial Philosophy

BY JACOB SHAYEFAR

Korah makes an interesting point. As the Midrash relates, Korah began his assault on the authority of Moses with a halakhic argument. He asserts that in any system made by God, surely a garment dyed entirely of tekhelet would not require tzitzit. After all, if the purpose of tzitzit is merely tekhelet, then what would a string of blue add to the garment? If the reason for the blue was to be a sign of majesty, why does it need to be in the tzitzit? Why can’t it be in the garment itself? In other words, Korah uses the purpose of a law to justify overruling the law itself (Midrash Tanchuma, Korah 2).

American jurisprudence generally recognizes several interpretative tools. While there’s always disagreement, everyone generally starts with the text and is willing to use history, tradition, and precedent to varying extents. Much dispute, however, exists over whether or not the purpose of a law ought to have relevance.

Though we are meant to read Korah’s intentions cynically, the argument itself seems to have some merit. After all, if a ritual is purposeless, it seems to bring into question whether one should be legally obliged to follow it.

Critics of this so-called “purposivism” in American jurisprudence also make compelling points. They note that once you accept the use of purpose, there’s no inherent limiting factor on its generality. For example, if the purpose of every law, in general, is to do good and limit evil, a judge who accepts the use of this broad purpose would be compelled by his judicial philosophy to legislate from the bench, thereby overextending judicial power. A system that utilizes separation of powers would have to reject such a philosophy. Purposivism would hence subvert the democratic process in favor of rule by nine “wise” kings. To put it another way, purposivism fails theoretically.

Moreover, critics allege that finding a single, unified purpose is impossible. Among 100 senators and 435 representatives, one cannot know what every individual legislator is thinking. (Though there are helpful tools like bill drafts and committee reports, this legislative history does not necessarily represent the intent of the legislators at large.) And, even if one could read minds, the legislators aren’t voting on what another person is thinking; they’re voting on the text of the bill. That is to say, purposivism fails practically.

Interestingly, the use of purpose is not altogether condemned by halakha. In fact, at least Rabbi Shimon bar Yochai was willing to use purpose in his halakhic methodology, as was Rabbi Yehuda when he was cited by the Torah itself (Bava Metzia 115a).

And this makes sense. In Biblical Israel, the lack of democracy is a feature, not a bug. The political system is meant to be ruled by a wise king, 71 judges, and a high priest. Thus, using purpose in halakha is exempt from the first issue as cited by critics of its use in secular law, which explains it would always be theoretically valid. A judge of halakha would have the right to set the purpose at any level of abstraction, as there is no issue of separation of powers. Korah’s initial criticism thus passes the theoretical test.

The practical issue—that of the inherent unknowability of purpose—is more pertinent; it’s what I believe is the basis of the disagreement between Rabbi Yehuda on one end and Korah on the other. Rabbi Yehuda seems to reason that if there is an unbridgeable gap between human beings and God, human beings necessarily can’t figure out the true reasons even for rational laws. Korah, however, holds exactly the opposite. He thinks that he can figure out the reason even for suprarational laws (like tzitzit) and that there is, consequently, no issue in the use of purpose.

It’s not exactly clear where Rabbi Shimon bar Yochai stands, but it’s relevant to note that the examples of him using purpose are all in relation to rational laws, which may imply that he distinguished between laws for which one could derive at least a ballpark understanding of the purpose (like, say, monetary laws) and laws for which one could not (i.e., tzitzit). Thus, he likely thought that with the combination of intellect and divine clarity, one could understand some laws, but not others.

Given the presumption that the Sages are chosen by the hand of God and guided by Him, Rabbi Shimon’s use of purpose seems justified. That said, the halakha in this case follows Rabbi Yehuda; purpose was not meant to be used (Sefer HaChinukh 591). But, since it’s been established that purpose is a legitimate interpretative tool when the purpose is certain, Rabbi Shimon was wrong only in application.

At least theoretically, purpose is surely a legitimate tool in the interpretation of divine law. But interpretive tools need to be geared toward the institution to which they are applied. God’s law and Madison’s law are not the same. While looking through the halakha can always provide insight, one cannot expect that the tools used in one will necessarily apply to the other.

In other words, for purpose to be a valid tool in any legal system, it requires that the system be built in such a way that the use of purpose does not contradict the system. Assuming that deducing purpose is even possible, using it will not be universally appropriate.