Is Halakhah a System of Laws, or More Like a Language? https://mosaicmagazine.com/picks/religion-holidays/2017/10/is-halakhah-a-system-of-laws-or-more-like-a-language/

October 24, 2017 | Moshe Koppel
About the author: Moshe Koppel is a member of the department of computer science at Bar-Ilan University and chairman of the Kohelet Policy Forum in Jerusalem. His book, Judaism Straight Up: Why Real Religion Endures, was published by Maggid Books.

In an investigation of how traditional Jewish law operates, Moshe Koppel compares it with two competing models: that of a legal system, where general rules, written by legislators, are applied to specific instances and then enforced by police and courts, and that of a language, where native speakers learn rules through imitation and can change organically without a formal amendment process. He argues it is meant to be more like that latter:

[T]he main written sources of Jewish tradition themselves repeatedly make the point that halakhah is ideally meant to be spoken fluently like a first language and not learned from written rules like a second language. . . . The Talmud itself records the undisputed opinion of Rabbi Yoḥanan that no text other than the Bible should be written. . . . The oral tradition [on which he Talmud is based] was compiled in writing only when social turmoil threatened its very existence. . . . Intuitive knowledge of Torah (Torah as a first language) is replaced by a compiled set of rules (Torah as an acquired language) only when necessary. . . .

[Furthermore, even] codes like the Shulḥan Arukh, [the most important post-talmudic digest of halakhah] actually reflect popular practices more than they determine them, and are incapable of preventing popular disinclination to abide by their rulings. In a considerable number of cases, rulings cited in the codes lose general support and subsequent codes reflect the later practice. . . .

When new issues arise, popular consensus often precedes rabbinic consensus. For example, turkey was almost universally regarded as a kosher bird long before rabbis made any determination to that effect. . . .

Electricity came into wide use in urban areas in the 1880s. The first to rule against the permissibility of the use of electric devices on Shabbat was the rabbi of Lemberg, Isaac Shmelkes, in 1895. He argued that creating a new electric current was akin to transferring fragrance, which the Talmud forbids on somewhat vague grounds. The prohibition was universally accepted, as evidenced by the fact that almost all subsequent scholars take the prohibition as a given, despite rejecting the reasoning behind it.

Read more on Judaism without Apologies: https://moshekoppel.wordpress.com/2017/10/17/leading-from-behind/