For the fall 2020 semester, Rabbi Itamar Rosensweig is teaching Philosophy of Law, which explores the nature, purpose, and merits of law as a concept.
YU News sat down with Rabbi Rosensweig to discuss the course, which is being offered at Yeshiva College in collaboration with the Zahava and Moshael Straus Center for Torah and Western Thought.
The course is called Philosophy of Law. What do you mean by that? What is the philosophy of law?
Philosophy of law is an inquiry into the nature of law and its purpose. One area of legal philosophy, general jurisprudence, seeks to discover the general features of law. These philosophers want to know what makes something law. For example, “positivists” believe that law is determined entirely by social facts (e.g., “whatever the Queen enacts in Parliament”). Within this view, there’s widespread disagreement about which social facts count and for how much. (Is the law determined by what judges think? Or by the intent of the legislators? Or by what the public thinks? Or some combination of these?) Other legal philosophers think that the law is determined by moral (not social) facts. They hold that for law to be valid, it must cohere with moral principles. In their view, the law is populated with moral content.
The other major area of study is normative legal philosophy. Here, philosophers are interested in the purpose of law and its justification. What justifies the use of political power? When is political authority legitimate? Why should we obey the law? Normative legal philosophers are also interested in the purpose of certain sets of law. How ought we punish wrongdoers? Should the law seek to maximize economic efficiency? What is the fair distribution of resources and goods in society? How should property rights be specified?
The main focus of the course is property law. Why did you choose that area of law to be the gateway into the philosophy of the law?
Property theory is a great point of entry into philosophy of law. Philosophy in general, like mathematics, can be quite abstract, so it’s helpful for undergraduates not yet trained in philosophy to start with a topic that’s concrete and familiar. Asking “what is law?” is way more abstract and difficult to grasp than asking “what justifies your having a right to your home and why should you have the right to exclude me from it?”
Second, property theory is a hot topic these days. It’s front and center in contemporary politics. Just look at the recent platforms of Sen. Bernie Sanders and Sen. Elizabeth Warren, who effectively wanted to impose limits on how much property individuals can accumulate. Tax policy, social security, income inequality, how should society support the poor, the looting of property in political protests, limits on wealth accumulation, restrictions on bequests—many of these contemporary questions turn on the underlying justification and nature of property rights. The course offers students an opportunity to understand and to think clearly and critically about what’s going on today in our society.
What are the students gaining from the course?
The first thing students gain is the ability to critically reflect on a legal institution that is all around them and very much a part of their lives. We own homes, cars, stocks, companies, cell phones and baseball mitts; we buy food and clothes; we sell goods and services to others; and so on. We take these property rights for granted. Rarely do we stop to ask why our system of property looks the way it does. Is it morally justified? What purpose does property serve? Why are we paying taxes? Are there other ways to design a system of property rights? This course offers students the tools to reflect critically on the nature of property rights; property’s moral justification; what duties we have to other members of society, particularly the least advantaged; the nature of free markets; and distributive (or economic) justice.
The second thing students gain is a sophisticated and nuanced framework of ideas to think about the concept of rights and different kinds of rights (e.g., natural vs. conventional, liberty rights vs. claim rights), the nature of personhood, moral justification, rights vs. duties, society as a system of social cooperation and the role of the state. Our conception of these concepts and their significance tends to be foggy until we sit down to think about them clearly. Philosophers have done excellent work clarifying these ideas and explaining their significance.
How does the class exemplify the creed of Torah Umadda?
I think the class exemplifies the best of what distinguishes Yeshiva University from other institutions of higher learning (Jewish or secular). Throughout the course, we analyze the halacha’s [Jewish legal] position on the philosophical topics we study. For example, after reading John Locke’s argument for natural property rights based on labor-mixing, we look at cases where the Talmud recognizes labor-mixing as the basis of a property right [Uman koneh be-shevach keli; yored letokh sadeh chavero u-mashbicho; zore’a sadeh shel hefker]. After reading philosophical arguments for the state’s right to redistribute property, we look at the Talmud’s exposition of hefkerbeit din hefker and Bava Batra 8b (rasha’in benei ha’ir le-hasi’a al kitzatan), which discuss a community’s right to impose taxes and (re)define property rights within its jurisdiction. After reading Rawls’s argument for bettering the position of the least advantaged as a matter of justice, we analyze the halacha’s conception of tzedakah [charity] to see whether it shares this idea of charity as a duty of justice.
I find the interaction between the Torah and philosophy in the course to be doubly enriching. An analytic philosophy course generally consists of analyzing philosophers’ arguments and assessing them based on their logical validity and soundness. At YU, we’re able to add a further dimension to our inquiry: the Jewish legal and philosophical tradition. We’re not evaluating arguments and theories solely based on moral intuitions and logic. We’re also interested in evaluating theories based on how they cohere with our tradition of Jewish learning. We ask, How does this theory cohere with Jewish law? Does this idea resonate within our tradition? Our pursuit of philosophical knowledge draws from the reservoir of our Jewish learning.
In the other direction, there are many conceptual principles and distinctions that you would likely gloss over or just miss in the Talmud and in the Jewish legal tradition if you weren’t sensitive to the distinctions and ideas that are being discussed and clarified in contemporary analytic philosophy. A mind not trained to think of charity in terms of rights and duties; of property rights as a bundle of rights or as despotic dominion or as a right to exclude; of property rights as social conventions to be regulated by society or as natural rights; of the distinction between liberty-rights, claim-rights, powers and immunities; of risk-imposition as a wrongful tort, and so on and so forth will likely gloss over important formulations and debates within the Talmudic and halachic legal tradition. In my other capacity at YU—teaching a shiur at RIETS—I find these distinctions and concepts to be very fruitful in my analysis of a sugya [passage in Gemara].
John Locke, one of the philosophers covered in the courseWhat texts are the students reading and discussing?
We’re reading some classical texts of modern philosophy—Two Treatises of Government, in which Locke defends presocial natural property rights; Leviathan, in which Thomas Hobbes argues that the sovereign has absolute discretion to distribute property in the manner he sees fit; Metaphysics of Morals, in which Immanuel Kant argues for a duty to enter civil society in order to determine the scope of rightful property claims; and Theory of Justice, in which John Rawls outlines his conception of justice as fairness based on the principles people would agree to behind a veil of ignorance if they didn’t know where they would end up in society.
We’re also reading several works of contemporary analytic philosophy of law and jurisprudence, like Tony Honore’s “Ownership,” Ronald Dworkin’s “Is Wealth a Value,” Jeremy Waldron’s The Right to Private Property, Jason Brennan’s Why Not Capitalism?, John Tomasi’s Free Market Fairness, and Liam Murphy and Thomas Nagel’s The Myth of Ownership: Taxes and Justice.
Why did you decide to teach this course? Why is it interesting and meaningful to you?
The reasons I outlined above for what makes the course interesting and meaningful also explain why it is interesting and meaningful to me. But I would add that it’s especially interesting and meaningful to teach this course at Yeshiva University. If I were teaching this course at Columbia or New York University, we wouldn’t be reading or evaluating the philosophical arguments through the lens of our tradition of Jewish learning. Here at YU, we have a class full of highly educated yeshiva students who are motivated to understand how the philosophical discourse coheres with the Talmudic and halachic tradition. These students bring a lot to the table in insight, analysis, critical argument and Jewish learning. I’d be surprised if there’s any other institution out there where this kind of high-level combination of analytic philosophy and rigorous Jewish learning can take place in a classroom. That’s very special.
John Locke, one of the philosophers covered in the course
