Halacha

Sure, Mercy and Justice Are Popular, But Halacha Is Necessary

I have made a principle, for these posts, of defining a Jewish religiosity that is unequivocal, unarguable, inescapable. A possible problem with that is that what we have found, especially the parts about seeking to perform acts of justice, kindness, and mercy within a relationship with God, might seem too general, not Jewish enough. After all, all sorts of religious people, Jews of all kinds as well as God-focused Christians or Moslems, strive for those goals.

I do not want to gloss over the value I see in the fact that so many people strive to perform acts of justice, kindness, and mercy within a relationship with God. Although I believe Judaism, and particularly Orthodoxy, articulates a different perspective of these ideals than they do, that should not obscure the importance of others’ acknowledging God’s existence and accepting their obligation to shape their lives as God would want them to. Vast as the chasm that separates us on important and necessary doctrinal issues, and daunting as it may be to try to find further common ground to build a more God-centered world, it is significantly smaller than the one between us and those who do not even accept those ideas as the organizing center of a human life.

Defining What God Wants of Us: The Vital Role of Halachic Process

That said, my concern here is to push further in discovering the set of core practices and beliefs that constitute the goals of Jewry as Orthodoxy understands them. The next key component is perhaps the defining characteristic of Orthodoxy as opposed to other denominations, its halachic process. As we have seen several times, the belief in a Revelation at Sinai—along with the giving of a Torah, Written and Oral—is explicit in the text, one of the events a Jew needs to be extremely careful to be sure not to forget.

Part of properly remembering the event is the need to properly understand the Torah God there and its demands. When the Torah says that Jews should take a פרי עץ הדר, the fruit of a ‘beautiful’ tree, on Sukkot, it is tradition that defines it as an etrog. Choosing another fruit, no matter how beautiful we consider the tree that produced it, would not be keeping the Torah. The same is true of a host of definitions and interpretations, as has been noted throughout Jewish history in defenses of the necessity of an Oral Law.

A similar, perhaps even more important, necessity is knowing how to apply the laws of that Torah in new situations, how to understand where the rules do and do not apply. While many laws are defined fully in the existing literature, and must simply be followed to the extent of each individual’s capabilities, the proper observance of other laws .necessarily entails understanding how that law is best applied to changed circumstances

Change of Circumstance and Change of Halacha

Beginning in the eleventh century, for example, the Tosafists began to recognize that the laws of how to deal with idol-worshippers either could not, did not, or should not apply to the Christians they knew in the same way as they did for the time of the Talmud. Part of the challenge of halacha is distinguishing situations of continuity from ones of meaningful and relevant change.

In addition, completely new situations can arise, and halachists need to determine which laws are relevant and how they should be applied. To take an obvious example, deciding the status of electricity on Shabbat is not a question of what modern rabbis think about Shabbat, it is their using the accumulated Written and Oral Law to best understand the Torah’s perspective of whether and when this qualifies as a prohibited form of creative activity.

These two functions, evaluating new situations for the applicability of existing laws and for whether to promulgate new ordinances, are primary rabbinic ones, as Rambam lays out in the beginning of הלכות ממרים, which deals with the powers of the Sanhedrin and the punishment of those who disobey it. Defining the legitimate decision process is, in other words, related to defining the system of halacha itself.

Since we have noted several times that the broad goals of Judaism— acting justly, charitably, humbly, and so on—are always couched as being part of a relationship with God, the definition of any of those terms depends on knowing what God wants, which is what halacha expresses. In that sense, the halachic process reveals to us what God has told us we should be doing, and the observance of halacha to the best of our abilities is itself a mission-shaping component of religiosity.

The next step in defining a mission of Judaism therefore becomes figuring out what constitutes halachic process, what are the valid means to interpreting and applying the Oral and Written laws in new times, places, and situations. Implicit in this search, admittedly, is the assumption that there are right and wrong ways of “doing” halacha, that not all interpretations are equally valid, even as the Talmud clearly recognizes that on many issues—but not all—there may be multiple, although not infinite, valid views.

Multiple Valid Views Is Not the Same as Infinite Valid Views

To take some simple examples, the definition of creative labor, מלאכה, is central to observance of Shabbat, since one of its most prominent commands is to refrain from such labor. Base definitions of those categories appear in the Mishna and Gemara, but applying them in practice—can we brush our teeth on Shabbat? Turn on or off lights? Take an elevator? Yom Tov?—depend on where the halachic process leads.

On the other hand, certain questions have been answered so unequivocally that there is no need, or even possibility, of an halachic process, such as in the question of whether a Jewish court would remove the eye of an assailant who had blinded his victim. That the assailant will only be fined monetarily is a settled question, and any other suggestion is outside the halachic process.

The sum total of the halachic process will produce the Jewish law its adherents try to observe; as we have said before, Jews are obligated to attempt to observe all of halacha, even though we have been trying to define the core components of that observance. But since keeping halacha properly is part of the definition of love of God, adhering to a legitimate process of determining that halacha is mission-shaping even if each particular observance might not be.

Indeed, many of Jewish history’s most divisive schisms have come from disagreements over these kinds of issues: the Sadducees and Pharisees, Rabbanites and Karaites, Reform, Conservative, and Orthodox diverged on many topics, but a fundamental one was their sense of halachic process, of how to decide issues of Jewish law in a manner consistent with the system as a whole.

Ideally, what I would do here is define that process in the same minimalist and unequivocal way I have until now. Unfortunately, that strategy breaks down in this instance, since the halachic process has not been even close to unequivocally defined, even in a most basic way. To take a clear example, proper halachic thinking and writing involves reading prior sources in a plausible way, but the word plausible is undefinable (or, at least, not amenable to unequivocal definition).

Blending Innovation and Tradition: Three Giants of 20th Century Psak

Some of this dilemma is captured by the defenses three of the most important halachists of the 20th century gave in introducing their works of responsa. Strikingly, R. Moshe Feinstein and R. Eliezer Waldenburg, ob”m, and–להבדיל בין החיים לבין החיים, to separate those who still live in the sense that the righteous are alive even in death from those still living in a physical body– R. Ovadya Yosef, all introduce their compositions with a defense of חידוש, of novel ideas. In their experience of their endeavor, the books they were producing contained new and innovative ideas that were nonetheless fully traditional. As I review a few of their expressions of this idea, we will see where it leaves room for intractable debate as to what constitutes an acceptable halachic process.

R. Moshe Feinstein, zt”l, in his introduction to the first volume of his Iggerot Moshe, raises the question of how he could have the temerity to rule on practical matters when it was clear (to him) that he would not have been considered worthy of doing so in a previous generation. He writes that the verse לא בשמים היא, the Torah is not in Heaven, teaches that the Torah is open to the interpretation of the (in my imperfect translation) “Sage, after he has looked properly to clarify the halachah in the Talmud and halachic decisors, according to his abilities, with a proper attitude and awe of God, and it seems to him that this is the ruling that is the truth…”

As long as one has done this, R. Moshe says, even if the Divine truth is otherwise (here and elsewhere, R. Moshe assumes there is a Divine truth, the Talmudic phraseאלו ואלו דברי אלוקים חיים notwithstanding; he would apparently align with those many rishonim who thought the Talmud only meant that both views in a debate were worthy of respect, not that both were right), the decisor has done his job correctly and has the right to rule according to his understanding.

R. Waldenburg comes to a similar idea from a different angle and point of interest (pp. 9-10 of the introduction to vol. 1 of Tsits Eliezer). He is discussing the Jewish people’s special connection to the Torah. For that purpose, he says, God separated the Torah into two parts, a Written and an Oral. According to R. Waldenburg, the Oral Torah, given only to Jews, includes our obligation to guard it by making protective laws to insure the observance of its essential ones, and novel ideas and derivations by sages using the hermeneutical principles by which the Torah can be expounded. This aspect of Torah, R. Waldenburg writes, was entrusted to the giants of the generations, the veteran students, and serves as a never-exhausted fountain flowing with both old and new ideas.

R. Ovadya Yosef, in the preface to the first volume of Responsa Yabia Omer, insists that proper rulings must start by consulting the Talmud, rishonim (who lived prior to about 1550), and even the very latest of the acharonim (paragraph 10), be grounded in proper comparisons, clear logic on how to compare one matter to another, understand the ramifications of a matter from its start, and use the hermeneutical principles by which the Torah is expounded (par. 5). He closes, though, with an impassioned defense of the right to disagree with other acharonim and, indeed, R. Dr. Benny Lau has noted that one significant aspect of R. Ovadya’s halachic career has been the attempt to dislodge rulings of the Ben Ish Chai from their hegemonic place in the Sephardic world of halachah.

All three, in other words, agree that legitimate halachic process will produce new ideas, sometimes startling ones, but there are right and wrong ways to do so. R. Moshe speaks of a hacham, a Sage, which implies some level of qualification; reading the sources, meaning there are rules of reading; to find the answer that seems to him the truth, which assumes truth and falsehood. For R. Waldenburg, the Oral Law is discovered by the correct application of certain rules, and that only by Jews, and generally only by the sages of each generation or the most veteran of students. For R. Ovadya Yosef, as well, there are clear principles of logic, not all fully defined in the Talmud and later writers, that have to be applied to the relevant literature—another equivocal term, since each of these three consulted a different set of sources as their necessary relevant literature—with the recognition that disagreement with earlier writers can arise and be legitimate.

To me, the key and notable common denominator of all three is that there is such a thing as legitimate halachic process, even as they each approached halacha in notably different ways. The challenge lies in its leaving us without any unequivocal way of differentiating valid from invalid processes. Instead, in coming posts I will offer questions whose answers seem to me to capture that line. While those questions leave room for disagreements, even vigorous ones– this is, after all, a Jewish endeavor– it also shows that those differences are meant to be from within a common framework, and that the framework is broadly definable, even if not exactly so. Next time, we begin building that framework of halachah.