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Legal Theology: The Turn to Conceptualism in Nineteenth-Century Jewish Law

Published online by Cambridge University Press:  24 April 2015

Chaim Saiman
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Extract

The nineteenth century was the age of legal science. Across the globe, numerous cultures began to think of their law in terms of an interlocking system of internally coherent rules. While the details differ, these movements shared the belief that numerous legal propositions were held together by a small number of core legal concepts, and that correct decisions could be determined via formal methods of legal deduction and analysis. This mode of legal thought gave increased importance to legal concepts and analytic categories. Duncan Kennedy has termed this mode of legal analysis Classical Legal Thought.

This restructuring of legal analysis brought about changes in the understanding of what the law is and how it should be studied. In its American variant, the ascendance of Classical Legal Thought is usually associated with Christopher C. Langdell's tenure as dean of Harvard's law school. Langdell created the modern law school by shifting legal training away from apprenticeship and moving it to a university setting where students were trained as legal scholars. Underlying the Langdellian moment is the assumption that law is comprised of analytic concepts which can be apolitically applied through a series of deductions made from the core legal principal.

Type
Articles
Information
Journal of Law and Religion , Volume 21 , Issue 1 , 2006 , pp. 39 - 100
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2005

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References

1. See Kennedy, Duncan, Two Globalizations of Law & Legal Thought: 1850-1968, 36 Suffolk U. L. Rev. 631, 637–651 (2003)Google Scholar.

2. Id.

3. Id.

4. Id.

5. See Whitman, James Q., The Legacy of Roman Law in the German Romantic Era 104–112 (Princeton U. Press 1990)Google Scholar.

6. See Reimann, Mathias, Nineteenth Century German Legal Science, 31 B.C. L. Rev. 837, 860–862 (1990)Google Scholar.

7. Id.

8. Id. at 863.

9. Terminology in this area is a bit tricky. “Analyst” and the “analytical school” are the terms used by Solomon, Norman, in The Analytic Movement: Hayyim Soloveitchik and his Circle (Scholars Press 1993)Google Scholar. These terms focus on the centrality of analysis to the school, and inasmuch as there is scholarly convention, it derives from Solomon. The problem with this terminology, is that it is exclusively an outsider's term. No analyst, past or present, refers to himself or his method as such. Rabbi Aharon Lichtenstein, a leading contemporary analyst, favors “the conceptual approach.” Lichtenstein, Aharon, The Conceptual Approach to Torah Learning: The Method and Its Prospects, in Leaves of Faith: The World of Jewish Learning 19 (Ktav Publg. H. 2003)Google Scholar. In Yeshiva nomenclature, the school is usually referred to as the Brisker derekh (literally the method of Brisk) or simply Brisk. Others may use the term lomdus—a Yiddishim of the Hebrew word to study, lmd. The school is sometimes referred to as the Lithuanian style or approach. Others still, in recognition of the school's widespread adoption throughout yeshiva circles, would term the movement the “Yeshivish approach.” I balance the clinical “analytical” and “analyst” with the more native Brisker and Brisk respectively.

10. See e.g. Kennedy, supra n. 1, at 637-648.

11. Haskala (literally enlightenment) was the 18th and 19th-century movement seeking to modernize and assimilate European Jews into broader society.

12. Volozhin, or Wolozyn in Polish, is a town in southern Molodechno Oblast, Belorussia.

13. Shacter, Jacob J., Haskalah, Secular Studies and the Close of the Yeshiva in Volozhin in 1892, 2 The Torah U Madda J. 76, 81 (1990)Google Scholar.

14. Id. See also Lamm, Norman, Torah Lishmah: Torah for Torah's Sake 26 (Ktav Publg. H. 1989)Google Scholar; Menes, Abraham, Patterns of Jewish Scholarship in Eastern Europe, in The Jews: Their History, Culture and Religion vol. 1, 403 (Finkelstein, Louis ed., 3d ed., Harper 1960)Google Scholar; Katz, Jacob, Jewish Civilization as Reflected In the Yeshivot—Jewish Centers of Higher Learning, 10 J. World History 674, 701 (1966)Google Scholar.

15. Lamm, supra n. 14, at 103, 230-244.

16. Like nearly all traditional scholars, the analysts did not see much difference between the Talmud and its canonical medieval commentators and interpreters. They were all part of the same seamless web of the Oral Law. Unless otherwise specified, the term Talmud is used broadly to include the body of mediaeval literature which the analysts considered part of the Talmudic canon.

17. Menes, supra n. 14, at 402.

18. Lamm, supra n. 14, at 158 (discussing the tension between study and prayer). Whereas hassidic sects were likely to view prayer as the fundamental religious act, Torah Lishma understood that study was the highest form of worship. In fact, Yeshiva students who spent too much time engaged in prayer were derided. See Stampfer, Shaul, Hayeshiva Halitait Behithavuta 98–99 (Zalman Shazar Inst. 1995) [hereinafter The Lithuanian Yeshiva]Google Scholar.

19. See Breuer, Mordechai, Ohalei Torah 137–143 (Zalman Shazar Inst. 2004)Google Scholar.

20. Id. at 142-143.

21. See Soloveitchik, Joseph B., Halakhic Man 24 (Kaplan, Lawrence trans., Jewish Publication Socy. 1983)Google Scholar. This work is discussed in greater depth in Part IV.

22. Lamm, supra n. 14, at 117.

23. Menes, supra n. 14, at 402. One important account details how the students studied in shifts as to insure that the Torah was being studied on a twenty-four hour basis. The Lithuanian Yeshiva, supra n. 18, at 92

24. The world of the Yeshiva student is also brilliantly captured in Chaim Grade's novel, Grade, Chaim, The Yeshiva (Leviant, C. trans., Bobbs-Merril 1976)Google Scholar.

25. Bialik's statements are cited in Lachover, F., Toldot HaSifruit Halvrit HaChadasha, vol. IV, 47Google Scholar. This translation is found in Menes, supra n. 14, at 385-386. On Bialik's experiences in the Yeshiva, see Balosher, A., Bialik beValozhin (4 Maoznayim 1934) (repr. in Yeshivot Lita: Pirkei Zohronot 164–182 (Etkes, & Tikochinski, eds., Zalman Shazar Inst. 2004)) [hereinafter Memoirs of the Lithuanian Yeshiva]Google Scholar.

26. The Lithuanian Yeshiva, supra n. 18, at 14; Katz, supra n. 14, at, 699.

27. The Lithuanian Yeshiva, supra n. 18, at 14.

28. The Lithuanian Yeshiva, id. at 114-121. See also Avital, Moshe, Ha'Yeshivah ve'ha'hinukh ha'mesorati ba'sifrut ha'Haskalah ha'Ivrit 91 (Reshafim 1996) [hereinafter The Yeshiva and Traditional Education in the Literature of the Hebrew Enlightenment Period]Google Scholar.

29. The Lithuanian Yeshiva, id. at 94. See also Breuer, Mordechai, On the Hungarian Yeshiva Movement, 11 Jewish Hist. 113, 116 (1997)Google Scholar (contrasting the institutional independence of Volozhin with the situation in contemporaneous Hungarian Yeshivot).

30. The Lithuanian Yeshiva, supra n. 18, at 99.

31. Menes, supra n. 14, at 402.

32. The Lithuanian Yeshiva, supra n. 18, at 100.

33. Lamm, supra n. 14, at 118.

34. Schacter, supra n. 13, at 82.

35. Solomon, supra n. 9, at 7.

36. Schacter, supra n. 13, at 84-90. A more general survey of the attitude of the maskilim to the traditionalist education generally and the yeshivot in particular can be found in The Yeshiva and Traditional Education in the Literature of the Hebrew Enlightenment Period, supra n. 28. More recently, Immanuel Etkes has provided an excellent overview of the place of the haskala in the yeshiva movement. See Memoirs of the Lithuanian Yeshiva, supra n. 25, at 31-44.

37. See The Yeshiva and Traditional Education in the Literature of the Hebrew Enlightenment Period, supra n. 28, at 159.

38. Schacter, supra n. 13, at 84-90.

39. These articles are collected and discussed in id. at 84-90.

40. See e.g. Zuckerman, A., Androlomusya, 7 ha-Shachar 289 (1876)Google Scholar; Zederbaum, A, Yeshivah shel Ma'alah, 16 HaMeliz 743 (1880)Google Scholar. Much to the dismay of the faculty, the journals in which these articles were published were read by Yeshiva students. See Schacter, supra n. 13, at 82; Kamenetsky, Nathan, The Making of a Godol, 885–895 (P.P. Publishers 2002)Google Scholar.

41. Although the deans of the Yeshiva vehemently opposed any changes to the Yeshiva's curriculum, their personal attitude towards extra-Talmudic scholarship was far less rigid. See Schacter, supra n. 13, at 97-105; Kamenetsky, supra n. 40, at 263-267.

42. Schacter, id. at 13, at 91; Kamenetsky, supra n. 40, at 885-895 (cataloguing reports of haskala activity in the Yeshiva); Memoirs of the Lithuanian Yeshiva, supra n. 25, at 31-44.

43. Schacter, id. at 13, at 91-92.

44. Id. at 94-96.

45. Id. at 92. In fact, the great Hebrew poet Hayyim Nachman Bialik was lured to Volozhin because he thought that he would be able to study both Talmudic and haskalic literature there. Bialik was ultimately disillusioned, finding nothing other than “Talmud, Talmud, and Talmud,” and he accused others of greatly overstating the presence of the haskala. See Bialik, Hayyim, Iggrot Rishonot mi-Volozhin, 2 Knesset (1937)Google Scholar; see also Abba Balosher, Bialik be-Volozhin, in Memoirs of the Lithuanian Yeshiva, supra n. 25, at 164.

46. See Schacter, supra n. 13, at 91-96; Memoirs of the Lithuanian Yeshiva, id. at 31-44. Berdyczewski, M.Y., Olam ha'Azilut (1888), in Memoirs of the Lithuanian Yeshiva at 132Google Scholar. Further sources dealing with the prevalence of the haskala among Volozhin's students are cited in Schacter, supra n. 13, at n. 57, and Memoirs of the Lithuanian Yeshiva at 31-44. The Yeshiva and Traditional Education in the Literature of the Hebrew Enlightenment Period, supra n. 28, at 159-176 describes the existential and spiritual conflicts facing the Yeshiva student who delved into the haskala.

47. Abba Balosher, Bialik be-Volozhin, in Memoirs of the Lithuanian Yeshiva, id. at 172. Of all the divergent accounts presented regarding the state of the haskala in Volozhin, Etkes finds Balosher's narration the most balanced and accurate. See Memoirs of the Lithuanian Yeshiva at 39-40.

48. Saadya b. Joseph Gaon (882-942). One of the greatest scholars and philosophers of post-Talmudic Babylonia. His writings straddled classic rabbinic Talmudism, which was studied in the yeshiva, with philosophy and grammar, which was not studied in the yeshiva.

49. Azaria b. Moses de Rossi, Italy (1511-78) was a somewhat controversial rabbinic maverick who authored the Meor Eynayim, a revolutionary rabbinic work that uses critical methods to chart the development of the Bible, of Jewish history, and culture. The work cites classical and medieval philosophers, historians, Church Fathers and medieval Christian writers— sources inconceivable to the classic rabbinic mind. Meor Eynayim shares more in common with haskala thinking than traditional rabbinic scholarship.

50. Nachman Krochmal (1785-1840) was one of the founders of the Wissenschaft des Judentems school, and one of the first to propose investigating Judaism through historical-critical methods. His most famous work is Moreh Nevukhei Ha 'Zman (Guide to the Perplexed of our Time).

51. Isaac Hirsch Weiss (1815-1905) was a haskala scholar of the Talmud and oral law. He wrote Dor Dor Ve 'Dorshav, one of the first critical histories of the development of halakha. In traditional circles, both his methods and conclusions were typically regarded as heresy.

52. Solomon Rubin (1823-1910) was a Galician haskalist, historian and philosopher who wrote on Spinoza, Maimonides, Jewish folklore, customs and superstitions.

53. Issac Baer Levinsohn (1778-1860) was a leader of the Russian haskala. His most influential work Teudah Be'Yisrael is a criticism of traditional Jewish culture, which includes critiques of the traditional mode of Talmud study and education.

54. Solomon Judah Leib Rapoport (1790-1867). A moderate maskil whose works were nonetheless opposed by the traditional establishment. Rapoport wrote some of the pioneering works in the history and historiography of rabbinic Judaism and halakhic development.

55. Samuel David Luzzatto (1800-65). A leading Biblical scholar in the haskala mode.

56. Joseph Solomon Delmedigo (1591-1655). A real Italian renaissance man who was learned in the rabbinic canon as well as in medicine, physics, astronomy and mathematics. He also had close ties with the Ka'arite community. Delmedigo was celebrated by Geiger as a proto-haskallic Jew.

57. Eliezer Zwiefel (1815-88) was a Maskilic rabbinic scholar and historian who took a more sympathetic view to tradition and especially hassidim than most maskilim. His most famous work is Shalom al Yisrael.

58. Kalman Schulman (1819-99), studied in Lithuanian yeshivot in his youth, but was attracted to the haskala. Schulman wrote history and literature and adapted several 19th-century works of world history into Hebrew.

59. A short biographical and intellectual portrait of Reb Hayyim can be found in Zevin, S.Y., Ishim Ve'Shitot 39–87 (Tzioni 1966) [hereinafter Men and Methods]Google Scholar.

60. Solomon, supra n. 9, at 47-48.

61. Id. at 48. Solomon reports that one of Reb Hayyim's leading students, RBB, bragged that he had never read a newspaper. Id. at 67. Other descriptions of Reb Hayyim's life and personality can be found in Kamenetsky, supra n. 40, at 880-920, 1198-1293, and are interspersed throughout Meier, Shimon Yosef, U'vdot ve'Hanhagot le'Veit Brisk (S. Meier 2000)Google Scholar. See e.g vol. 2, p. 201 (recording a letter drafted by Reb Hayyim lashing out against Zionism); Men and Methods, supra n. 59, at 67.

62. Translated as “Insights of Rabbi Hayyim the Levite on Maimonides” (Brisk 1936) [hereinafter “Reb Hayyim's Insights”]Google Scholar. While this book is the classic work of the Brisker school, it was not the first published work. Reb Hayyim's Insights was published in 1936, 18 years after Reb Hayyim's death. Solomon, supra n. 9, at 49. The publishers (Reb Hayyim's sons) attest to the painstaking efforts undertaken by their father to prepare the manuscript. See the introduction to Reb Hayyim's Insights.

63. See also Krumbein, Elyakim, Mi'Reb Hayyim MiBrisk VeHaGrid Soloveitchik Vead Shiurey HaRav Aharon Lichtensten; Al Gilgula Shel Masoret Limud, (From Reb Hayyim Brisk and Rabbi Joseph B. Soloveitchik to “The Discourses of Rabbi Aharon Lichtenstein”: The Evolution of a Learning Methodology), 9 Netuim 51, 64 (2002)Google Scholar (typifying Reb Hayyim's approach) [hereinafter The Evolution of a Learning Methodology]. As this article was going to press, the Orthodox Forum published the proceedings from its 1999 conference on the Brisker method. See The Conceptual Approach to Jewish Learning (Blau, Yosef ed., Ktav Publg. House 2006)Google Scholar. The book contains an abridged translation of Krumbein's article as well as a response by Avraham Walfish.

64. Solomon, supra n. 9, at 200.

65. Solomon argues that both “etymologically and historically” the more appropriate word would have been hilluk (root hlk), which means to divide or distinguish. Solomon speculates that the transition from hilluk to hakira is related to the tension between Brisk and the haskala, noting that the root hkr was the word that the maskilim used to describe their academic research. (Research is called mehkar and a researcher is called a hoker). Solomon adds:

The terms thus began to acquire an air of intellectualism and the Analysts, wishing to appear intellectual, adopted them, or at least words from the same root. It would be naive to suppose that this would imply the intentional borrowing of a term from the hated maskilim. It is merely that they [the Briskers] used, to describe their basic method, what was to them the most impressive sounding term without, perhaps, realizing just why it impressed them.

Id. at 119-120.

66. See e.g. the title page to Shkop's, R. ShimonSha'arei Yosher (New York 1959)Google Scholar which states that the book contains “hakire halakhot” (literally investigations or inquiries into the halakhd). The word also appears frequently in that work. See further the opening discourse in Sheurie Reb Hayyim MiTelz (yesh lahkor), and Sheurie HaRav Barukh Ber Liebovitz al Bava Kamma, Bava Metzia, Hulin at 113, 115, 116 (Y.B.Y.R. 1990) (using the yesh lahkor formulation in the name of Reb Hayyim); see also Leibowitz, Baruch B., Birkhat Shmuel, to Yevamot § 21 (A.Y. Freidman 1972)Google Scholar.

67. Shapiro, Marc B., Review Essay, The Brisker Method Revisited, 31 Tradition 78, 84 (1997)Google Scholar citing Kalir, R. Eleazar, Heker Ha 'Halakha (3d ed., Sofer, Makhon Hatam 1970)Google Scholar (originally published in Vienna 1838) as a pre-Brisker usage of this term.

68. While this style of analysis pervades Reb Hayyim's Insights, supra n. 62, the term hakira is apparently absent from Reb Hayyim's published works, where the hakira is more muted than in the works of Reb Hayyim's students or in first-hand accounts of his teaching style. I have combed through the first 20 sections of Reb Hayyim's work (reflecting 45 out of 313 pages) and have not found a single occasion where Reb Hayyim presents his basic distinction using any variation of the root hkr. Moreover, the hakira is rarely presented in its own paragraph, and is sometimes buried within the analysis.

The hakira however, takes on a far more prominent role in the firsthand memoir written by Yehuda Lieb don-Yihya, in Memoirs of the Lithuanian Yeshiva, supra n. 25, at 152-163.

Yihya's memoir records his attendance in Reb Hayyim's lectures in Volozhin, and states:

[Reb Hayyim] would approach every Talmudic theme as a surgeon. He would investigate the logical elements of every sugya [Talmudic topic], showing the strength of each side of the debate. Once the logical basis was clear to all listeners, he would then focus on a dispute in the Talmud or one between Maimonides and Raavad, and explain it in accordance with two [divergent] logical approaches.

Memoirs of the Lithuanian Yeshiva at 153.

Yihya further attests:

It is interesting to note the way he would test the students. He would propose a hakira or discussion and ask the students to support it with a Talmudic passage. When one of the students would show the strength of the approach from a logical perspective (kokho be'svara), Reb Hayyim would reply, “Know my friend, that I am pretty good at logic myself. Please bring me a proof from an explicit Talmudic passage.”

Id. at 155.

These passages highlight two important points. First the term hakira is directly attributed to Reb Hayyim. Second, at least in the oral presentation, the hakira was not buried within the analysis but was given major prominence in the lecture. In contrast to his written work, it appears that in the classroom Reb Hayyim would begin with the hakira and reach the various Talmudic sources via reference to the hakira.

Further, in their published writings, Reb Hayyim's students frequently attribute the term hkr to their master. For example, the Hiddushei haGrach ve'haGriz al haShas (Jerusalem 1965) at 8Google Scholar uses the “yesh lahkor” locution as attributed to Reb Hayyim. Similarly, published notes from RBB's lectures record RBB as saying that Reb Hayyim declared “yesh lahkor.” Solomon notes that while the use of the term hkr is more frequent in the later writers (Reb Hayyim's students), “it is by no means infrequent in the earliest.” Solomon, supra n. 9, at 120; see also Adler, Yitzchak, Iyun Be'lomdut xviii–xix (Sha'ar Press 1989)Google Scholar; Wachtfogel, Moshe, The Brisker Derech: A Practical Guide (Feldheim 1993)Google Scholar.

69. Several distortions/simplifications require special note. First, the issue raised in the previous footnote. Second, I have not tied the analysis back to the original problem found in Maimonides, and in other ways I have abstracted the hakira out of its native context. Not every case of Brisker analysis contains an explicit articulation of a hakira; in many cases a hakira-styled distinction is only implied within the analysis. See generally The Evolution of a Learning Methodology, supra n. 63 regarding the significance of these observations.

Finally, this article is an initial presentation of the Brisker school intended for an audience unfamiliar with rabbinic jurisprudence; tensions or competing ideas within the Brisker school are somewhat papered over. The presentation reflects something of an amalgamation of various forms of Briskerism. I try to note this with relevant footnotes, and hope that future work (mine and others) will bring these tensions to light.

70. See Exod 12:15.

71. This distinction bears some resemblance to Roman law's in rem/in personam distinction. Elementary forms of this distinction appear in the Talmud. However, the usage and ubiquity that one finds in Brisker writing is largely unprecedented. See Solomon, supra n. 9, at 123-124 for a more complete discussion of the evolution and usage of these terms.

72. Reb Hayyim's Insights, supra, n. 62 to Hametz u 'Matza 1:13.

73. Kamenetsky, supra n. 40, at 517-520. Solomon, supra n. 9, at 66-69. A short biographical and intellectual portrait of RBB, can be found in Men and Methods, supra n. 59, at 292-307.

74. The Talmud contrasts this view with aysho me 'shum memono—that the fire is considered property and liability stems from the general duty to ensure that one's property (prototypically an ox) does not cause damage. See B.Talmud, Bava Kamma, 22.

75. Birkhat Shemuel, Bava Kamma § 17, supra n. 66.

76. The question is not original to RBB. It is cited from the Nemukei Yosef, a medieval authority commenting to Shabbat 17b. RBB's use of the heftza/gavra terminology however is original.

77. See generally Mishna, Mikva'ot, ch. 1.

78. Id.

79. Reb Hayyim's Insights, supra n. 62, to Mikvaot 9:6.

80. In fact, Ran (14th C. Spain) takes this approach. See Ran to Nedarim 40.

81. It is possible that the feature tying of several disputes to one hakira is more prominent in works of the later Briskers. In Reb Hayyim's Insights, supra, n. 62, Reb Hayyim rarely strays far from the topic at hand. Nevertheless, he often adduces proof for his approach by surveying several related disputes or interpretive problems. This issue requires further investigation. Overall, however, the Briskers' recourse to distant Talmudic passages is never quite as fanciful as the “leshitato” exercises favored by the earlier pilpulists.

82. See Talmud, B., Bava Metzia 16baGoogle Scholar.

83. Id. at 35a.

84. This discussion is based on a lecture delivered by Taragin, Rabbi Moshe, Talmudic Methodology (1995) (available at www.vbm-torah.org/archive/ml-shuma.htm)Google Scholar.

85. See comments of Ran to Bava Metzia 16b.

86. Mishenh Torah, Malveh ve'Loveh 22:16Google Scholar.

87. Rosh, to Ketubot 10:3Google Scholar.

88. See Talmud, B., Kiddushin 42aGoogle Scholar. This discussion is also based on a lecture of Rabbi Moshe Taragin.

89. 2 Sha 'arei Yosher, supra n. 66, ch. 7, § 7.

90. Halitza is a ceremony described in Deuteronomy 25: 5–10Google Scholar. The Biblical text provides that when a married but childless man dies, the deceased's brother is encouraged to marry the widow and rebuild a family on behalf of his dead brother. However, if the surviving brother does not wish to marry his sister-in-law, he must go with her before the elders and perform the halitza ceremony which frees the parties of the presumptive bond existing between them.

91. Analytic terminology is made even more obtuse because many analysts found it theologically objectionable to use terms generated outside the traditional rabbinic canon, since the Briskers saw themselves as continuing rather than innovating Talmudic interpretation, and anything sounding too “external” would have been suspect. Many analysts redefined and re-conjugated existing terms to convey a new set of ideas.

Solomon devotes a chapter to analytic terminology, noting that the Briskers were not of one view regarding foreign terminology. He further demonstrates how some analysts struck a middle ground by using philosophical terms that entered the canon via the mediaeval Jewish philosophers. See Solomon, supra n. 9, at 181-182. (Of course this compromise is ironic since the mediaeval philosophers clearly borrowed these terms from non-Jewish mediaeval philosophers, but it is very possible that the Briskers were unaware of this fact.). See also Shapiro, supra n. 67, at 81 (noting that Reb Hayyim's sons viewed their father as “merely continuing the path of the rishonim [classical medieval commentators].”).

92. See criticisms cited infra, at n. 187.

93. See Yihya's Memoirs, supra n. 68.

94. Men and Methods, supra n. 59, at 47.

95. Kamenetsky, supra n. 40, at 910.

96. Id. at 906-920, recounting how Reb Hayyim's lectures became the most popular in the Yeshiva.

97. See infra nn. 158, 162-163 and accompanying text.

98. See Mishna, Mikvaot 1:7Google Scholar.

99. Id.

100. Birkhat Shmuel, supra, n. 66, to Yevamot § 21 (emphasis added).

101. Admittedly, this feature seems to be more acute in RBB's works than in Reb Hayyim or the other analysts. In varying degrees, however, examples of this mode of thought can be found throughout the Brisker corpus. Further work in this area will bring these distinctions to light.

102. Soloveitchik, supra n. 21, at 20. This work, along with and the personality and thought of Rabbi Joseph B. Soloveitchik are explored infra Part IV.

103. See Yitzchak Adler, Iyyun Belomdus: Lomdus a Substructural Analysis, supra n. 68, at 113-120. See also Lichtenstein, supra n. 9, at 30.

104. See infra Part IV.

105. See e.g. Kennedy, Duncan, The Rise and Fall of Classical Legal Thought unpublished ms. at 102–103 (1998) (available at www.duncankennedy.net)Google Scholar.

106. Rosh to Ketubot 10:3Google Scholar.

107. Lichtenstein, supra n. 9, at 29.

108. See B. Talmud, Bava Batra 5a-b. This example is presented and discussed in Lichtenstein, supra, n. 9, at 29.

109. Soloveitchik, Joseph B., Ma Dodekh MiDod, 28 (Ha'Doar 1963) [hereinafter MDD]Google Scholar. This translation is taken from Kaplan, Lawrence, Rabbi Joseph B. Soloveitchik's Philosophy of Halakha, 1 Jewish L. Annual 150 (1988)Google Scholar.

110. Id. at 24.

111. Lichtenstein, supra n. 9, at 32-33.

112. Id. at 25-26. See also Lichtenstein, Mosheh, “What” Hath Brisk Wrought: The Brisker Derekh Revisited, 9 The Torah u-Madda J. 1, 2 (2000)Google Scholar (discussing transition from give-and-take analysis to sugya based interpretations).

113. See generally Lichtenstein, supra n. 9, at 28; but see The Evolution of a Learning Methodology, supra n. 63, at 55-60 (noting that this view is not shared by all Briskers, and that many well-known Briskers will only propose new conceptual understandings if it resolves an existing textual difficulty).

114. Lichtenstein, supra n. 9, at 34-38. A compelling example of the difference between Brisk and other Talmudic schools is presented in The Evolution of a Learning Methodology, id. at 82 n. 64, where Krumbein compares the Brisker school to the work of another highly regarded 20th-century Talmudist, Rabbi Aharon Kotler. R. Kotler's work deals extensively with the various texts and documentary sources, and his intellectual energies are devoted to fashioning a coherent whole from the disparate parts. In R. Kotler's analysis, the legal concept takes a secondary role to the interpretation of the relevant passages; the concept is used to “answer” the problems created by the divergent texts. He does not deal with the concepts as much as with arranging the various literary sources to fit into a single manageable conception. When abstracted from the texts, R. Kotler's work provides few conceptual insights. The Brisker approach by contrast is far less dependent on the ins and outs of the Rabbinic texts so that the analysis of concepts stands on its own merit. While R. Kotler sustains his textual readings via reference to legal concepts, Brisk's conceptual structures are supported by canonical texts.

115. See Evolution of a Learning Methodology, id. at 63-84 for an extended discussion of the role of incidental questions in the Brisker enterprise.

116. The “Genius of Vilna;” Rabbi Elijah b. Solomon of Vilna (1720-97).

117. See Yitzchak Adler, Iyun Belomdus, supra n. 68, at 126-127.

118. Mishna Torah, Shabbat 5:1Google Scholar.

119. I have not been able to locate this passage from Gra based on Rabbi Adler's citation. Hagahot Maimoniyot does record an alternate tradition from the Jerusalem Talmud that reads le'hadlik ner li'khvod Shabbat, (“to alight a candle in honor of Shabbat,”) but this is different from the position attributed to Gra. Further see Arukh HaShulhan to Orakh Hayyim 363: 2Google Scholar who states that he was unable to locate the passage in the Jerusalem Talmud cited by the Hagahot Maimoniyot. In any event, I follow Rabbi Adler's analysis not so much for the accuracy of Gra's position as to demonstrate how an analyst views a dispute between two textual traditions.

120. This is similar to the common law understanding that cases are evidence of the law rather than the law itself. See Wambaugh, Eugene, The Study of Cases 18–24 (2d ed., Little, Brown & Co. 1894)Google Scholar.

121. See our discussion of Brisker empiricism infra Part IV.

122. Solomon, supra n. 9, at 91-92.

123. Reb Hayyim reportedly commented “[I]t is not for us to make hiddushim (innovations; novel interpretations); only the Rishonim were able to do this. All we have to do is understand what is written.” Quoted & translated in id. at 91.

124. This sentiment probably lies behind all the disclaimers of originality. See e.g. the introductions to Reb Hayyim's Insights, supra n. 62, and RBB's Birkhat Shmuel supra n. 66.

125. See infra nn. 170-172 & accompanying text.

126. See Men and Methods, supra n. 59, at 62-63.

127. As noted above, Reb Hayyim's principal work is styled as a commentary to Maimonides' Mishne Torah, which is a summary and restatement of the Talmud's halakhic corpus. Thus Marc Shapiro writes: “[Reb Hayyim] transformed the practical halakhic work par excellence— Maimonides' Mishne Torah—into both the central feature of his theoretical analysis as well as the most profound commentary on the Talmud.” Shapiro, supra n. 67, at 78. See also Lichtenstein, supra n. 112, at 2-3 for an interesting speculation as to why (somewhat counter-intuitively) the Briskers looked to the Mishne Torah as the fountainhead of their conceptual/theoretical analysis.

128. Solomon, supra n. 9, at 200.

129. Id. at 47-82 (surveying the work product of the various analysts). None of the major analytical works record answers to actual questions posed to the rabbi-judges.

130. Men and Methods, supra n. 59, at 63-64.

131. The comparison here is directed to the legal professoriate as it existed during the late 19th and early 20th centuries. For a discussion on the characteristics of the 19th-century German and American legal professoriate, see Reimann, Mathias, A Career in Itself: The German Professoriate as a Model for American Legal Academia, in The Reception of Continental Ideas in the Common Law World 1820-1920 (Reimann, ed., Duncker & Humblot 1993)CrossRefGoogle Scholar.

132. Thus the spring becomes a “law of the spring” (din ma 'ayan) the ox, a halakhic ox (din shor), and water, becomes “the status of water.”

133. Solomon collects several of the Briskers' attempts to describe their methods but concludes that they are by and large disappointing. Solomon, supra n. 9, at 91. The most accurate account of the relationship between the Brisker method and earlier rabbinic writers is found in Lichtenstein, supra n. 112, at 16, n. 9. An interesting first-hand description of Reb Hayyim's lectures is provided by Yihya, who writes: “The importance of his words was in his unique approach to the matter, in the astounding level of logical analysis, in the internal architecture of his words, and in his investigation of all the internal logical elements that comprise each and every sugya.” Memoirs of the Lithuanian Yeshiva, supra n. 25, at 155.

134. In addition to these two works, RJBS (Soloveitchik) authored The Halakhic Mind, which, though written in 1944, was not published until 1986 (Seth Press 1986)Google Scholar. See Kolbrener, William, Towards a Genuine Jewish Philosophy: Halakhic Mind's New Philosophy of Religion, in Exploring the Thought of Rabbi Joseph B. Soloveitchik 179 (Angel, Marc D. ed., Ktav Publg. H. 1997)Google Scholar. Halakhic Mind is a complex work. Even experts have termed it “difficult and arcane” (id.) and described it as a “highly technical and abstract philosophic monograph.” Kaplan, supra n. 109, at 143-144. Halakhic Mind argues that modern quantum physics, as opposed to Aristotelian and Newtonian physics, supplies the only legitimate analytic model for the study of religious philosophy. Philosophers should cease asking the sociological and anthropological “why question” (“why did God command to do X”), and focus, like the mid-century quantum physicist, on the “what” question (“what are the nature and properties of the divine command”).

My comments are taken primarily from Halakhic Man, supra n. 21, rather than Halakhic Mind, id. First, even specialists have encountered great difficulty digesting it, and I am in no position to do so. Second, while Halakhic Mind speaks of the philosophy of religion in general, it contains relatively little discussion specific to halakha, and makes no attempt to connect the general argument to the Brisker project.

135. Shihor, Rachel, On the Problem of Halakha's Status in Judaism, 31 Forum 146 (1978)Google Scholar.

136. As used here, “classic Brisk” refers to Solomon's grouping of the Brisker school. Solomon, supra n. 9, at ix. However, I would exclude M.M. Amiel from this grouping on account of his interest in and knowledge of secular disciplines.

137. Kaplan, supra n. 109, at 192.

138. Krumbein argues that RJBS's claim that Reb Hayyim transformed the technical details of the daily prayer service into ideal halakhic principles is more descriptive of RJBS's writing than of Reb Hayyim's. See Evolution of a Learning Methodology, supra n. 63, at 87.

139. Counter-factual histories are always difficult to write, but one cannot imagine RJBS making the same claims if his halakhic hero was one of the prominent 16th-century Talmudists e.g. Maharshal, (Rabbi Shlomo Luria, Lithuania 1510–1573)Google Scholar, Maharam, (Rabbi Meir Gedalia of Lublin, d. 1616)Google Scholar, or Maharsha (Rabbi Shmuel Edles, Poland 1555–1631)Google Scholar, whose dialectical style bears superficial resemblance to the Brisker school).

140. Soloveitchik, supra n. 109, at 19.

141. Id. at 20.

142. See Soloveitchik, supra n. 21, at 1-16. Perhaps the most succinct contrast between these two figures is captured in the following paragraph:

The duality in the attitudes of cognitive man and homo religiosus is rooted in existence itself. Cognitive Man concerns himself with simple and “candid” reality. He does not seek to closet himself with the hidden in existence but rather focuses his attention on its revealed aspect. This is not the case with homo religiosus. He clings to a reality which, as it were, has removed itself from the cognizing subject and has barred the intellect from all access to it. He is totally devoted and given over to a cosmos that is filled with divine secrets and eternal mysteries. The very nature of the law itself, the very phenomenon of cognition is an open book for cognitive man and a closed one for homo religiosus.

Id. at 9.

A more complete discussion of the theological (but not legal) implications of RJBS's halakhic philosophy is found in Kaplan, supra n. 109 and my analysis is based in part on Kaplan's reading. See also Gerald Blidstein, On the Halakhic Thought of Rabbi Joseph B. Soloveitchik in Soloveitchik, Rabbi Joseph B., Man of Halakha Man of Faith (Genack, Menachem, ed., Ktav Publg. H. 1998)Google Scholar; Kolbrener, supra n. 134; see also Sacks, Jonathan, Rabbi Joseph B. Soloveitchik's Early Epistemology, in Exploring the Thought of Rabbi Joseph B. Soloveitchik 209 (Angel, Marc D. ed., Ktav Publg. H. 1997)Google Scholar; Evolution of a Learning Methodology, supra n. 63.

143. RJBS was not the only rabbinic scholar to note the connection between the Brisker enterprise and scientific methods. Rabbi Y.Y. Weinberg, himself a rabbinic maverick familiar with both rabbinic and 19th-century non-rabbinic thought, wrote the following as a eulogy for his teacher, Rabbi M.M. Esptein, a more traditional Brisker:

When we shall be worthy of having a true Hebrew science, they (the Hebrew scientists) will recognize and understand the value of the great ideas spread throughout his books. The new Hebrew science, and in particular the field of Mishpat Ivri (Jewish or Hebrew law), can learn much Torah and wisdom from his magnificent works, if it knows how to retrieve the original ideas from the give and take of the Talmudic discussion which [R. Epstein] made the external/superficial framework for his hiddushim (insights). Here and there, brilliant ideas and new definitions of legal terms and concepts shine. Their scientific value is immeasurable.

See Weinberg, Y.Y., LeFrakim 269–270 (Kiryah Ne'emanah 1967)Google Scholar (this translation is based on Shapiro, supra n. 67, at 83).

This passage presents an interesting contrast to RJBS's reconstruction. Like RJBS, R. Weinberg understands that the Brisker program has implications for seeing halakha as a science. But while RJBS thought Reb Hayyim had already transformed halakha into a legal science, Weinberg finds that Epstein's work will be of great value to future halakhic scientists. His comments are directed to the community of self-conscious halakhic scientists (the Mishpat Ivrei community) who might otherwise disregard Epstein's work as being the product of tradition rather than science. Weinberg implores these scholars not to be deterred by the traditional garb of Epstein's works and to recognize his contributions to the emerging halakhic science.

144. Halakhic Man, supra n. 21 was first published in 1944 and undeniably reflects the dominant conception of science at the time. Commenting on Halakhic Mind, supra n. 134 (but the comments are equally applicable to Halakhic Man), one scholar noted that the work has a “dated feel about it” and wondered how RJBS would have expressed himself if he were aware of Kuhn's The Structure of Scientific Revolutions or Gadamer's Truth and Method. See Sacks, supra n. 142, at 218. My own presentation makes no attempt to square RJBS's views with more updated approaches towards the objectivity of the scientific method. In a similar fashion, Thomas Grey explains that Langdell's views regarding law and a science were premised on a late 19th-century lawyer's view of the philosophy of science. See Grey, Thomas C., Langdell's Orthodoxy, 45 U. Pitt. L. Rev. I, 16–20 (1983)Google Scholar.

145. Soloveitchik, supra n. 21, at 86.

146. Id. at 20.

147. Soloveitchik, supra n. 109 (translated by Spero, Shubert, Rabbi Joseph B. Soloveitchik and the Philosophy of Halakhah, in Exploring the Thought of Rabbi Joseph B. Soloveitchik 166 (Angel, Marc D. ed., Ktav Publg. H. 1997)Google Scholar.

148. Kaplan makes a valid point in noting that from halakhic man's perspective, studying Halakhic Man is a less worthy pursuit than studying a Talmudic passage. Kaplan, supra n. 109, at 187. Anyone who has spent time in a traditional Yeshiva can certainly confirm this impression.

149. While RJBS is unique amongst the Briskers in using philosophic and scientific terminology to discuss Reb Hayyim's method, even more traditional Briskers appreciated the conceptual ordering reflected in Reb Hayyim's method. RBB for example, stated that Reb Hayyim “arranged the Talmud for us,” which points to Reb Hayyim's ability to conceptually order the sprawling Talmudic material. See S.Y. Meier supra, n. 61, at vol. 2, 190.

150. Soloveitchik, supra n. 21, at 83.

151. See supra Parts III, B & C.

152. See Lichtenstein, supra n. 9, at 48.

153. Soloveitchik, supra n. 21, at 23-24.

154. Observers have noted RJBS's problematic use of the concept of a priori. See Rachel Shihor, supra n. 135, at 148-150; Kaplan, supra n. 109, at 154-157.

155. The depth of RJBS's commitment to the a priori conception of halakha was expressed in his view regarding the halakhic presumption that a woman would rather be married than single. RJBS's approach is cited and critiqued in Halperin-Kaddari, Ruth, Tan Lemeitav Tan Du Mi-Lemeitav Armalu: An Analysis of the Presumption, 4 Edah J. 1, n. 28 (2004)Google Scholar.

156. Soloveitchik, supra n. 21, at 19 & 23.

157. This passage is cited in the name of Reb Hayyim in the writings of his students, in Hagadah shel Pesah Mmi-beit Levi. 182-183 s.v. Shanu ochlim al shum mah (Gerlitz, M.M. ed., Oraysoh 1983)Google Scholar.

158. This idea was part of their inheritance of the Torah lishma theology. Lamm reports that for Torah lishma adherents, “[t]he Torah's préexistence is primarily an axiological-teleological concept.” Lamm, supra n. 14, at 105; 121, n. 14. The idea itself appears in several formulations. Bereishit Rabbah 1:1Google Scholar draws an analogy between a builder who builds on the basis of the architect's plans and God who “looked into the Torah and created the universe.” Similarly, Bereishit Rabbah 1:4Google Scholar, Talmud, B.Nedarim 39bGoogle Scholar and Pesahim 54a, speak of Torah as one of the things that was created before the world. In slight contrast, Shabbat 88b, Haggigah 13b-14a and Zevahim 116a, speak of the Torah as being created 974 generations before the creation, or 1000 generations before the revelation at Sinai. While previous thinkers probably interpreted the term Torah as a stand-in for the divine will generally, or perhaps even the divine will as expressed in the Bible, Reb Hayyim took this statement to mean that the specific and individual technicalities of Talmudic law predate creation. On the evolution of this concept in Jewish thought in general, see Lamm, supra n. 14, at 102-120.

159. Soloveitchik, supra n. 109, at 22.

160. Soloveitchik, supra n. 21, at 13.

161. Men and Methods, supra n. 59, at 47-48.

162. The categorization [of the Analytic school are] taken as self-explanatory, and the question of why there should be such a category is dismissed without further ado. The learning act [Talmud study] is thus limited to the act of classification and definition, consciously ruling out any attempt to fathom why the halakhah should be as it is. Lichtenstein, supra n. 112, at 4-5.

163. RJBS is recorded as having thought that “[t]he Halakhah is the objectification and crystallization of all true Jewish doctrine.” Fox, Marvin, The Unity and Structure of Rabbi Joseph B. Soloveitchik's Thought, in Exploring the Thought of Rabbi Joseph B. Soloveitchik 31 (Angel, Marc D. ed., Ktav Publg. H. 1997)Google Scholar. Similarly,

[r]eligious and philosophical accounts of Jewish spirituality are sound and meaningful in his view only to the extent that they derive from the Halakhah. The deepest religious emotion, the subtlest theological understanding, can only be Jewishly authentic to the extent that they arise from reflection on matters of Halakhah[.]

Id. at 31.

Or “[p]hilosophy is always to be derived from the [realm of the] Halakhah and not visa versa.” Ravitsky, Aviezer, Rabbi J.B. Soloveitchik on Human Knowledge, 6 Modern Judaism 157, 181 n. 12 (1986)Google Scholar. Finally, “Halakhah was the visible surface of a philosophy: the only philosophy that could legitimately claim to being Jewish.” Oral statement attributed to RJBS by Sacks, Jonathan, Halakhah as the Starting Point of Jewish Philosophy, 53 Jewish Action 30 (1993)Google Scholar. These sources are collected and critiqued in Spero, supra n. 147, at 149.

164. A more complete discussion regarding the theological limits of Brisker inquiry is found in Lichtenstein, supra n. 112.

165. See BT Sanhedrin 21a. See also Soloveitchik, supra n. 134, at 92-96.

166. The Talmud expresses this by using King Solomon as an example. Although Solomon was reputed to be the wisest of all men, the Talmud records that he sinned because he attempted to rationalize the reasons for the Torah's commandments. See Sanhedrin 21a.

167. While there is some dispute as to whether this statement applies to more contemporary Briskers, see The Evolution of a Learning Methodology, supra n. 63. All seem to agree that it is accurate with respect to the classical writers.

For example the introduction to Birkhat Shmuel, supra n. 66, states:

[RBB] would frequently say that Torah is not understood through human “logic” [“logic” transliterated in original], but based on the Torah's own rules and principles. Therefore one must conform his mind to the Torah's wisdom, and not conform the Torah to human understanding.

168. Lichtenstein, supra n. 112, at 3. The distinction between “what questions” and “why questions” is based on RJBS's discussion in Halakhic Mind, supra n. 34. But see Evolution of a Learning Methodology, supra n. 63, at nn. 11, 13, 26-27 where Krumbein disagrees, in part claiming that the “what/why” distinction breaks down in the writings of more contemporary Briskers.

169. Religious law is generally associated with natural law, and in general, natural lawyers are inclined to interpret law via recourse to ethical, moral and religious considerations. The Briskers were religious legal positivists and thus provide an interesting counter-model to the religion=natural law equation. In Brisk, law was limited to the revealed law of the Talmudic corpus, and legal/analytic arguments based on those sources. Briskers' commitment to the revealed law of the Talmud (more accurately, to the legal ideas embodied in that revealed law) made them hostile to arguments premised on Biblical interpretation or moral theology. The analysts understood that halakha was contained exclusively in the Torah and decidedly not in the hearts and minds of men. But see RJBS's understanding of halakhic creativity, spelled out in Soloveitchik, supra n. 21, at 99-137; see also Wurzberger, Walter, The Centrality of Creativity in the Thought of Rabbi Joseph B. Soloveitchik, in Exploring the Thought of Rabbi Joseph B. Soloveitchik 277 (Angel, Marc D. ed., Ktav Publg. H. 1997)Google Scholar.

170. Soloveitchik, supra n. 109, at 21.

171. See Schachter, Hershel, Nefesh Ha 'Rav 12 (Reishit Yerushalayim 1994)Google Scholar.

172. In the common law tradition, the figure most associated with the timelessness of the law is undoubtedly Sir Edward Coke. Indeed Pocock's description of Coke's methodological assumptions rings familiar to every student of halakha.

Innumerable decisions were … on record as declaring that everything which they contained, down to the most minute and complex technicality, had formed part of the custom of England from time out of mind; …. They took everything in the records of the common law to be immemorial[.]

Pocock, J.G.A., The Ancient Constitution and the Feudal Law 37 (W.W. Norton & Co. 1967)Google Scholar.

173. See Lichtenstein, supra n. 112, at 1; Shapiro, supra n. 67, at 78; Lichtenstein, supra n. 9, at 53-54.

174. See supra n. 25.

175. See e.g. Lamm, supra n. 14, at 230 (favoring the study of technically abstruse areas of halakhic doctrine over the admittedly more sublime poetry of the Psalms).

176. Id. at 138-141, 230-232.

177. Soloveitchik, supra n. 21, at 23-24; see also M. Breuer, supra n. 19, at 148-149.

178. Lamm, supra n. 14, at 192.

179. Langdell, C.C., Selection of Cases on the Law of Contracts viii (2d ed., Little. Brown & Co. 1879)Google Scholar.

180. In this way, Brisk stands in direct contrast with Savigny's school of historical jurisprudence. The German school took specific interest in the historical evolution of legal principles, as well as source and text criticism of the Roman materials. These differences take on an added dimension in light of (a) the similarity between Brisk and the German conceptual jurisprudence generally, and (b) the fact that both the text/source criticism and historical jurisprudence feature prominently in the works of the 19th-century German maskilim.

While it is unclear whether Reb Hayyim was aware of the haskalic German-Jewish scholarship, these works were undoubtedly read in the Yeshiva. The author of one of the leading traditionalist histories, Isaac Halevy-Rabinowitz, was active in the Yeshiva during Reb Hayyim's tenure. Rabinowitz's Dorot Ha-Rishonim was the leading traditionalist response to the writings of the historicists German-Jewish Wissenschaft des Judentems school, particularly Heinrich Graetz, Abraham Geiger and Isaac Hirsch Weiss. See Memoirs of the Lithuanian Yeshiva, supra n. 25, at 172.

181. This statement is attributed to RJBS, who said it in response to a student's inquiry regarding the source for a certain point developed during a Talmudic lecture. See Lichtenstein, supra n. 9, at 39.

182. Solomon finds that emancipation and secularization reduced the demand for rabbinic communal leadership and practical decisions and focused rabbinic attention towards academic consideration. Solomon, supra n. 9, at 115, 234. But this analysis does not cut to the heart of the matter, as there were many communities seeking rabbinic rulings and leadership during this time of crisis. For example, Hattam Sofer, whose style can be usefully contrasted with the Briskers, played an important role as an anti-haskalist rabbinic judge and decisor.

183. See Breuer, supra n. 29, at 113.

184. See Schacter, supra n. 13, at 84-85.

185. See Solomon, supra n. 9, at 6-8, 33-34. See also Shapiro, supra n. 67, at 84, noting that Brisk was “engaged in a struggle with non-traditional forces for the soul of Jewish youth.” Shapiro adds that RJBS himself argued that Reb Hayyim's approach “showed talented youth that Torah study was not any less intellectual or modern than the secular studies of his day.” Id. See also statements attributed to RJBS in Kaplan, Lawrence, The Hazon Ish: Haredi Critic of Traditional Orthodoxy, in The Uses of Tradition: Jewish Continuity in the Modern Era 152–153 (Wertheimer, Jack ed., Jewish Theological Seminary Am. Press 1992)Google Scholar. Shapiro also cites one of RJBS's students who, assessing RJBS's lectures, claimed that “[i]t would be most difficult to study Talmud with students who are trained in the sciences and mathematics, were it not for his [Reb Hayyim's] method, which is very modern and equals, if not surpasses, most contemporary forms of logic, metaphysics or philosophy.” Besdin, Abraham R., Man of Faith in the Modern World: Reflections of the Rav vol. 2, 22 (Ktav Publg. H. 1989)Google Scholar.

186. Rabbi A. Lichtenstein expressed this sentiment as follows:

Torah is perceived as grounded upon rational principles and marked by consistency and coherence, that is developed and perceived as an organic unity, is nobler than one that is a potpourri of practical directives. As Einstein rejected Heisenberg's indeterminacy because he could not imagine God playing dice with the universe, so, I believe, Reb Hayyim espoused conceptualism because he could not imagine [the words of God] as a pedestrian amalgam of incommensurate detail. There is a power, majesty, and grandeur in Torah, conceptually formulated, that a patchwork of minutiae, largely molded by ad hoc pragmatic considerations, simply cannot match

Lichtenstein, supra n. 9, at 52.

187. Because the analysts were firmly in the traditionalist camp, the revolutionary aspects of their work are often overlooked. The novelty “modernity” was noticed by traditionalists who repudiated the Brisker method. One of Reb Hayyim's contemporaries, R. Jacob D. Wilovsky (1845-1913) wrote in the introduction to his responso, Bet Ridbaz:

A certain Rabbi invented the “chemical” method of study. Those in the know now refer to it as “chemistry,” but may speak of it as “logic.” This proved to be of great harm to us, for it is a foreign spirit from without that they have brought into the Oral Torah. This is not the Torah delivered to us by Moses from the mouth of the Omnipresent.

Cited & translated in Shapiro, supra n. 67, at 79.

Yet another detractor claimed:

New times have come, numerous “methods” proliferate in the world of Torah students. The halakha does not, however, follow a “method.” They lay claim to being pioneers and revolutionaries, the creators of the world of logical method in the study of the Torah. One must strongly protest against this. These methods have altered the whole face of halakhic studies.

R. Aryeh Karlin (1874-1957) in the introduction to his Lev Arye (cited & translated in Shapiro, supra n. 67, at 80, 94 & nn. 2, 4) (Shaprio in turn bases his translation on Jacobs, L., A Tree of Life: Diversity, Flexibility, and Creativity in Jewish Law 59–60 (Oxford U. Press 1984))Google Scholar. See there for a discussion as to whether this statement was made in reference to the Brisker method.

R. Henoch Agus (b. 1863) takes a more moderated approach in the preface to his Marheshet, yet his skepticism of the new “method” is clearly discernable:

I have written this introduction in light of the well-known [development] that in our time the ways of study in the learning of our sacred Torah have changed considerably, and the style of their [the innovators'] thought and manner of their understanding have made a place [lit., “way”] for themselves in the batei midrash [study houses] of Torah and Talmud, and in particular, in the yeshivot of our generation …. I am naked of the robes of light and logic in the Talmud like these which are newly come from near, bringing with them the style of their learning …. [Rather I have written my commentary in] the well-maintained, well-trodden paths of our teachers, early and later, may their memory be blessed.

Cited & translated in Lichtenstein, supra n. 9, at 41-42.

Kaplan, Lawrence has written a fascinating article in which he paints the Hazon Ish (Karelitz, R. Yeshia, 1878–1953)Google Scholar, as a tacit but powerful critic of Reb Hayyim and his method. Hazon Ish authored a critique of Reb Hayyim's Insights. In classic rabbinic style, the critiques are substantive and localized rather than methodological or programmatic, but Kaplan argues that between the lines lies an oblique criticism of Reb Hayyim's underlying assumptions regarding the nature of halakhic reasoning. See Kaplan, supra n. 185, at 145-174. In Kaplan's view, Hazon Ish felt that the Brisker approach “concedes too much to the modern temper, to the modern emphasis on self and its intellectual autonomy.” While Reb Hayyim might have caught the interests of his students, he worked against the interests of tradition. The analytic approach “allows too much room for self-expression, for the play of the individual's own intellectual powers unconstrained by the discipline of the text.” Id.