Mosaic Magazine

Response to: "What Is This Thing Called Law?"December 2013

The Art of Halakhah

Why Jewish law is more a set of guidelines than of rules

The Art of <em>Halakhah</em>
  

In his fascinating article on law in Judaism, Joshua Berman divides post-talmudic halakhic authorities into roughly two schools: those who follow a codified or statutory-law approach and those who adopt a common-law approach. As against this, I would contend that everyone—even the codifiers—approaches the task of halakhic decision-making through a unique mix of common and statutory law. If the results sometimes convey an impression of arbitrariness or inconsistency, the fault lies in a misunderstanding of the system by which those results have been reached.

On the issue of Berman’s two jurisprudential schools, let me begin by citing a work that he would presumably include solidly within the statutory-law camp: Rabbi Shlomo Ganzfried’s 1864 Kitzur Shulhan Arukh (“The Concise Shulkhan Arukh”). In this short but wildly influential book, an adaptation and abridgement of the great 16th-century code by Rabbi Joseph Karo, Ganzfried conclusively lays down the law on all common Jewish rituals.

But consider the sheer number of variations of this work that have since appeared in print. Not only are successive editions frequently accompanied by footnotes from dissenting authorities, but Ganzfried’s rulings themselves have often been revised, with the result that the burgeoning text itself includes disparate prescriptions. Among the leading participants in this ongoing enterprise have been at least two chief rabbis of Israel and other recognized luminaries of Jewish law.

All of these authors share the goal of codifying halakhah. But, you may well ask, doesn’t it violate the very nature of a statutory code to revise—or even contradict—its black-letter provisions with one’s own rulings? The answer is that these authorities, Ganzfried included, are actually practicing not statutory but common law. For them, the legal code is a form, not an essence, a vehicle of publication rather than a mode of thought. Ganzfried’s code was a masterpiece, but his halakhic decisions reflect his own rulings and the 19th-century Hungarian community in which they were formulated. Later authorities, recognizing the usefulness of such a digest, then harnessed his language and organizing plan to the needs of their own time and their own views on Jewish law.

Another question: if so respected a work as Ganzfried’s code can be revised, on what grounds do Orthodox halakhic authorities treat the Shulhan Arukh, or for that matter the Talmud itself, as binding? In the case of the Talmud, its conclusions are religiously binding because they were irrevocably accepted by the Jewish people. The Talmud, then, serves as a source of statutory law. As for the Shulhan Arukh, it gained acceptance by representing the culmination of medieval Jewish common law: the summary of an era. But it also reflected Sephardi practice alone, and for just that reason was originally rejected by Ashkenazi Jews. Only when accompanied by Rabbi Moses Isserles’ glosses, adding Ashkenazi precedents and practices, did the Shulhan Arukh become influential for all. Which means that the resultant work is best understood not as a statutory code like the Talmud but as an extraordinarily influential compendium of common law.

 

A significant factor in the makeup of Jewish law as common law, though one insufficiently treated by Berman, is the method by which halakhic authorities reach their decisions. In The Making of a Halachic Decision, Rabbi Moshe Walter tackles this issue by tracing the way that leading scholars across the generations, working backward from the conclusions of great authorities, have attempted to construct a methodology of the halakhic process. Their arduous work displays staggering genius, complete mastery of published materials, and an ability to assemble scattered pieces of a vast puzzle into a coherent map of legal reasoning. Unfortunately, the results are for the most part unimpressive. Exceptions accumulate quickly, making the whole process seem subjective and arbitrary.

In his effort to make order of this mess, Walter sets up a typology similar to Berman’s. Some authorities—typified by Rabbi Elijah the Gaon of Vilna—decide cases on a putatively common-law basis, which is to say strictly according to the evidence at hand, subject only to the authority of the Talmud. Others, operating from a putatively statutory viewpoint, assert the sanctity of codes like, preeminently, Karo’s Shulhan Arukh, building brick by brick on its foundation. In the middle lie people like Rabbi Chaim Soloveitchik of Brisk (1853-1918), whom Walter quotes as advising to rule in accordance with the evidence at hand but always reach the Shulhan Arukh’s conclusion.

To Walter, and presumably to Berman, this division among the authorities demonstrates a fundamental difference in kind; I see it as a difference in degree.

In brief, the halakhic process is more a set of guidelines than of rules, and decision-making itself is a religious act—one that mobilizes all of a jurist’s God-given skills, talents, and personality. It is art, not arithmetic. A halakhic authority is afforded a good deal of leeway to follow the texts; his method is fluid, bounded by precedent but not enslaved to it, and mindful of the force of proof and counterproof. He decides not on the basis of whim but compelled by his deliberations, and he is as religiously bound by his conclusion as are his inquirers.

For these reasons, it is false to assert, as some have done, that “where there is a rabbinic will, there is a halakhic way.” Halakhic authorities do not choose their conclusions; they follow them.

Throughout the centuries since its initial publication in 1565, the Shulhan Arukh has served as the standard of discussion; because it is such an important precedent, jurists face a high burden of proof before disagreeing with it. But if it were a real statutory code, authorities would not be allowed to disagree with it at all; no Jewish work since the Babylonian Talmud has attained such a status.

 

We can see in contemporary developments precisely this mixed nature of Jewish jurisprudence at work. Berman discusses two contrasting examples of difficult issues facing jurists in Israel today. In the first case—whether to relax halakhic standards of conversion to Judaism for recent immigrants from the FSU—jurists advocating leniency have had some relative success. In the second—whether to allow the ordination of women as rabbis—the lenient side has gotten no traction. Berman explains the discrepancy by reference to the agendas being pursued in each case: a comfortably religious-Zionist agenda in the conversion case versus an uncomfortably feminist agenda in the case of ordaining women.

There is a simpler explanation. Statutory law is egalitarian in that it places greater emphasis on the argument than on the person advancing it. By contrast, common law requires a person—a judge or judges—with standing. The religious-Zionist rabbis who are behind the conversion leniencies have long careers as accomplished halakhic authorities. They have published responsa covering a broad cross-section of law and serve also as community leaders, accepted by their peers and the public. In addition, they have acquired international reputations, so that even those (like me) who may not support them on this particular issue respect their expertise. They are serious halakhists making bold, controversial, but legitimate decisions.

No equivalent figures are to be found among the feminists—or “neo-Conservatives” (large “C”), as they have been called. Their ranks include brilliant academics and educators, accomplished speakers and clergymen, but no established halakhic authorities. In a common-law system, the greatest responsibility lies with the judge. The neo-Conservatives have no judges and are therefore outsiders to the system. So far, for a variety of reasons, they have failed to convince any judge to embrace their cause. Lacking a qualified judge, they are powerless to enact real change.

The final paradox is this: by virtue of the fact that halakhah is a mixed system in which precedent plays such a strong role, conservatives (small “c”) will always have the stronger argument. Progress and innovation are important to the vitality of the halakhic community, but proposed changes have to be measured by expert jurists who command respect from their colleagues and the broader community. Deviation requires justification, and justification requires authoritative judges.

______________ 

Rabbi Gil Student is the publisher and editor-in-chief of TorahMusings.com

Comments

  • Nechama Hadari

    I believe there is a much simpler explanation for the difference: namely, that effecting the conversion of a (relatively) large number of immigrants serves as a public exercise and demonstration of (existing) rabbinic power structures whereas the ordination of female rabbis threatens to diversify those power structures.
    Also, surely it’s a little disingenuous to refer to the comparative “success” of the RZ drive for more lenient conversion standards without acknowledging the very real cost in human terms of conversions which stand under perpetual threat of annulment.

  • jgerard

    Does the oral law include aggadah or does it only apply to halakhah?

  • David Laloum

    There is an assumption in this response…

    “In the case of the Talmud, its conclusions are religiously binding because they were irrevocably accepted by the Jewish people.”

    Given that there are at least two prominent groups of Jews who are indeed accepted as Jews (by most Jewish authorities), yet do not accept the Talmud, one could argue that one fundamental foundation stone in this argument is flawed. I am of course speaking of the Karaites and the Samaritans.

    A discussion of Jewish law cannot be complete without incorporating this fundamental separation and the issues related to it….

    Although these groups are now marginalized – their antecedents at the start of the current era, during the writing of the Mishnah and Talmud, were prominent, and competing perspectives on Judaism – a case could even be made that it was Islam and living under the yoke of the Islamic empire that finally led to the dominance of Rabbinic Judaism… (a whole different topic).

    But I feel that there remains an “elephant in the room” which is the huge assumption of Rabbinic Judaism being the very definition of Judaism, and therefore along with it the replacement of Mosaic and earlier law(s) with Talmudic and then the Shulhan Arukh and derivations.

    The whole debate smacks to me of splitting hairs at the periphery when the fundamental foundation issue has clearly been ignored.

    The position of groups such as feminists, liberals even reconstructionists need to be viewed from a position that takes the Jewish spectrum as far wider than merely (!) Rabbinic interpretations, and looks at the roots of our tree and some of the other trunks that have developed from that root, yet still remained true to the Jewish tradition.

    Bye for now

    David

    • alexschindler

      The Samaritans are not Jews, do not claim to be Jews, and do not want you to claim them to be Jews. “Israelites,” sure, but definitionally not of Judah. Forget oral law, they do not accept books after the torah, nor, for that matter, our torah. Theirs is a different text, sometimes radically so.

    • Rebecca K.

      Mr. Schindler is correct. Moreover, the Karaites have been accepted as a group distinct from the rest of Jews for many centuries…we’re talking the Rambam had issues with them (regarding conversions and so on) when he was in Egypt and he died in 1204 CE. They vary from mainstream Jews in their practices in many ways.

      Even Reform and Conservative Jews rely on the Talmud for many elements of their practice: rabbinical holidays like Purim and Chanukah, details of calendar-keeping, and so on.

      I also have a problem with Mr. Laloum’s feeling that it’s the Orthodox who have parted ways with the rest of Jews…from our side of the fence, it feels like the other way around.

  • http://www.aishdas.org/asp R Micha Berger

    I think one of the more useful metaphors for halakhah was posed by Dr Moshe Koppel. Halakhah parallels the rules for language more than it does a contemporary legal system. This was originally a central theme in his book Meta-Halakhah, but was written up later as a topic in and of itself in Azure no. 46, Autumn 5772 / 2011. (I found a copy of the article here.)

    Languages evolve over time — try reading Canterbury Tales. And while the outsider to a language needs to study formal rules of grammar, a native speaker knows what “sounds right” in a way that can’t be readily described; in fact, the way we recognize “good English” may not be describable at all. And thus, as we lose our way from the original Sinaitic “native halakhah speakers”, we rely less and less on feel and increasingly on formal rules. (Reader’s of R/Dr Haym Soloveitchik’s “Rupture and Reconstruction” will hear echos of that thesis here, although in Meta-Halakhah Dr Moshe Koppel spends time on prior “ruptures”. When Moses died, thousands of laws were “lost, and then re-established”. The same idiom is found among laws passed — or in reality reconstructed from the past — under the Great Assembly when they were rebuilding the community in the early 2nd Temple Period. Etc…)

    A difference between a native speaker and someone who speaks English as a second language is that reliance on formal rules gives less lattitude. Until you get a feel for the language, there is no way to distinguish between what will end up incomprehensible, and what will be accepted under poetic license.

    One particularly relevant quote about evolution:

    … So there is an ongoing process that looks something like this:

    1. Each individual English speaker absorbs current English and instinctively
    pushes the envelope (call this “expansion”).
    2. When enough people push the envelope in the same direction, “current” English is redefined (call this “aggregation”).
    3. Back to 1.

    Of course, the steps don’t actually take place in neat, sequential order. Both
    expansion and aggregation are happening all the time.

    Now, with an eye toward our discussion of Judaism, let’s make a few observations about this process.

    First, changes in language are slow enough that, if you don’t take the long view, you can think of it as being static without the fallacy of that view confronting you too brutally. But, if Chaucer didn’t convince you, try reading Beowulf.

    Second, aggregation works in two ways: One way is for many people to push the linguistic envelope in the same way without this change ever being formally noted;
    it just happens. The other is for the change to be somehow made “official” by incorporation in some instrument of record. For example, twenty years ago I might have referred to memes only if I were talking to someone whom I had reason to believe hung out in the relevant neck of the woods. Now, anybody can look up its Wikipedia entry. To the extent that Wikipedia is an instrument of record, “meme” has graduated to the lexical big leagues.

    I think this notion, which is a synthesis (being both and yet neither) of law and art, has its beauty.

  • Avi Zuckerbrot

    R Micha Berger’s use of language to describe Halakha is a good metaphor, but I believe it complements the jurisprudence view rather than replaces it. You have the spectrum of thought, one extreme supporting continuous formulation of the Halakha, the other opposing any formulation. Dr. Moshe Koppel’s thesis, that Halakha can be viewed as an autonomous system, fits this bill perfectly. The argument concerns the balance between predictability and freedom.
    One aspect of the argument is the technical; should Halakha be modeled after statutory law or after common law. Where do we strike the balance, in order to preserve the rabbinical tradition on the one hand, yet permit flexibility and innovation on the other.
    The other aspect is the conceptual; do we view Halakha as a set of grammatical rules, under which rigidity propagates accuracy, or do we view Halakha as an a posteriori narration of the storyline that is human behavior.

    One is not born possessing an innate fluency in the language that is Halakha. It takes years of effort and study to reach such a state. When starting to speak Halakha one has no choice but to resort to the formulas.

    I believe this understanding can shed light on the expansion of the statutory school of thought that started with the culmination of the Talmud. Centuries past by, and fewer people reached the level of fluency permitting Halakhic innovation. The only recourse was the statutes, the precedents set by previous scholars.

    Halakha slowly became rigid, as the innovators dwindled.

    • http://www.aishdas.org/asp R Micha Berger

      Minor correction… I do not come up with the use of language as a metaphor for halakhah, Dr Koppel does. It’s to describe the kind of autonomous system he believes halakhah to be. My own position on the matter is pretty much my understanding of Dr Koppel’s, with no intentional innovation on my part. (I did point Dr Koppel to this discussion so that he can correct any flaws in my presentation of his ideas.)

      Precedent has been part of the halachic system since at least Misnah Edios ch. 1, par. 4-5, and that’s close to the earliest possible documentation. And millennia of precedent will produce a progressively more rigid halakhah.

      Halakhah as statutory law has to go back at least to the earliest names of the mishnah, not the *end* of the talmudic period. That’s what is documented, regardless of matters of religious belief and how the Great Assembly or even the Seventy Elders of the Exodus operated.

      But that whole thesis that statutory law didn’t exist yet has to ignore the grammar in the Code of Hammurabi, before it the Code of Ur-Nammu (wikipedia lists 32 of the laws still extant from Ur), the Hittite Code of the Nesilim and other ancient legal texts. I do not understand how lists of “if a person does X, do Y to him” can be taken to be record of past decisions rather than statutes.

      What I am arguing for here is a less algorithmic/rigid definition of “statute”, not that law wasn’t statutory at all.

  • alexschindler

    They do not think we are their correligionists, exactly, more like friendly relatives who kinda-sorta respect their Tora. Which is basically an accurate assessment of us, if you’ve ever seen a Samaritan version of the Tora.
    Because of the role of Yitzhak Ben-Zvi in ensuring their survival in the last century I gather there’s a bit more friendliness to us than there would otherwise have been. But they largely live in the West Bank (except the ones in Holon), on har Gerizim (they lived in Nablus til the Intifada when they feared being caught in the crossfire). Being Arabic speakers with ancient and continuous roots, they are as disconnected from the sweep of modern Jewish history and Zionism as they are from the sweep of ancient Jewish history since `Ezra. They call themselves bene yisra’el (or something close to it; their traditional pronunciation is *very* different from what you might expect, and doesn’t sound remotely Arabized in case that’s what you expect), but never yehudhim, and they think of Judaism as the religion made up in Babylon and forced upon the natives of Israel upon the return of the exiles.

  • alexschindler

    There are still a fair number of Karaites left, and ever since they started accepting converts during the second half of the last century, they have begun thriving in some areas.
    You can find a relatively large community of Egyptian Karaites in California (Egypt’s karaite community was quite large before Nasser expelled them with the rest of the Jews), and there are a couple parts of Israel where they are prevalent as well. I believe it cuased a recent stir when a leading singer on “Kokhav Nolad” (Israel’s ‘American idol’) was a Karaite and so his Shavu`oth holiday conflicted with the show, which had made plans only for Rabbinic Shavu`oth (usphartem lakhem, mimoHorath hash-shabbath… oops, that shabbath!)

Fiddler

Tevye Betrayed

What’s Wrong with Fiddler on the Roof
Fifty years on, no work by or about Jews has won American hearts so thoroughly. So what's my problem?
By Ruth R. Wisse

Posen

The Death of Jewish Culture

The Death of Jewish Culture Revisited
An exchange between the foremost philanthropic supporter of secular Jewish culture and the analyst of its decline.
By Felix Posen and James Loeffler

Horn Surnames

What's In A Name

Jewish Surnames [Supposedly] Explained
“Dara, you’ll love this!” Actually, I don’t.
by Dara Horn

Golinkin

Conservative and Orthodox

The Crisis in Jewish Law Today
Orthodox rabbis need to stop worrying about 200-year-old battles with “Reformers” and allow Jewish law to develop organically, as it did in the past.
By David Golinkin

Facebook Like Box

Halkin Book Ad

Gurfinkiel

The Situation in Europe

You Only Live Twice
Vibrant Jewish communities were reborn in Europe after the Holocaust. Is there a future for them in the 21st century?
by Michel Gurfinkiel

Degenerate Art

The Art World

Degenerate Art and the Jewish Grandmother
The story of the family behind the Nazi-era art trove.
By Walter Laqueur

Wertheimer

The September Essay

Intermarriage: Can Anything Be Done?
A half-century after the rate of intermarriage in the US began to skyrocket, the Jewish community appears to have resigned itself to the inevitable. But to declare defeat is preposterous.
by Jack Wertheimer

Aharon L

The Rabbinic World

Who Is Aharon Lichtenstein?
Introducing the extraordinary rabbi who next week will receive Israel’s highest honor.
By Elli Fischer

Rubinstein

Yom Hashoah

Making Amends
A mysterious request leads the Canadian-born son of a Holocaust survivor back to the old country.
by Robert Eli Rubinstein

Benjamin

The Intellectual Scene

The Walter Benjamin Brigade
How an original but maddeningly opaque German Jewish intellectual became a thriving academic industry.
by Walter Laqueur

Nicholson Essay

The October Essay

Evangelicals and Israel
What do evangelicals really think about the Jewish people, what are the roots of their Christian Zionism—and what is now driving a growing number away from wholehearted support of Israel.
by Robert W. Nicholson