Contemporary Issues in Halakha
Instructor: Rabbi Shlomo Zacharow
In this course, we will examine how halakha confronts modernity (and vice-versa) on a number of issues, some of which have riveted the Jewish world over the past year. Naturally, the particular subjects are of interest, but it will also be enlightening to see how the halakhic process plays out in relation to these topics.
To Fast or not to Fast? This is the question regarding Tisha b’Av and the three other minor fasts commemorating the destruction of Jerusalem. Does the return of the Jewish people to Israel and Jerusalem affect in any way how we observe these days? Is the mournful nature set in stone for eternity?
Pidyon Shevuyim The Redemption of Captives: While we know that it is highly worthy in Judaism to save lives and provide the dead with a proper burial, are there no limits? If paying too high a “price” for captives will only spur the captors to step up their activities in the future, what has been gained? To what extent does halakha take into consideration the needs of individuals as opposed to the needs of the community as a whole?
Giyyur Conversion: Once a Jew always a Jew? Is conversion final in Judaism or can a Bet Din a Jewish Court revoke the conversion at a later date? Must the convert accept the yoke of all of the mitzvot at the time of conversion? What happens if it is later discovered that the convert is not leading an observant lifestyle?
Kohen & a Giyyoret (convert) An Acceptable Union?
Traditionally, it has been forbidden for a Kohen to marry a convert to Judaism. What is the reason for this and is it still relevant today? Is our understanding of the respective nature of the kohen and convert the same as in antiquity?
Musical Instruments in the Synagogue: In the last couple decades we have seen significant growth in musical accompaniment to services on Shabbat and Holidays in a number of synagogues that consider themselves to be bound by halakha. Often there are a wide array of instruments and sometimes even “rock bands” performing. Can these developments be justified by Jewish law?
Learning the Texts
The study of the sources requires patient analysis. The Talmudic sources may be particularly challenging, as the Talmud often expresses itself elliptically, expecting the reader to fill in the gaps in the texts (Centuries later, Rashi stepped into the picture to fill this role).
For all sources, you will be given texts in the original Hebrew/Aramaic along with an English translation. My translations are often literal, and sometimes they are briefly fleshed out with brief comments, found in brackets, in order to make the text more comprehensible.
For those who are capable, you are strongly encouraged to attempt to study the original material and only afterwards peek at the translation. Translations can also be a work of art, so I am sure that through your comments, I will also be able to improve upon the initial translations.
Along with the sources, there will be Background points describing the author of the text or the body of work. Each new source sheet will only provide background on works or Rabbis which have not been explained in previous source sheets. I also provide Questions for thought and discussion. Of course, you will come up with your own questions as well.
Although written a century ago, the most useful dictionary for rabbinic studies remains Marcus Jastrow’s Dictionary of the Targumim, the Talmud Babli and Yerushalmi and the Midrashic Literature.
The traditional Jewish method of studying is in pairs. Talmud especially is a subject where one must continually test if one understands the material. The sages in all generations used this method to hone their ideas. It is a Jewish tradition that when two study together in this manner, God acts as a third partner guiding the students in their search for truth.
I would like to provide a general introduction to Halakha (Jewish Law) and the Halakhic process. Much of the following material that I will write can be found in numerous sources. I decided not to re-invent the wheel, and I have used the Wikipedia entry on “Halakha” as a base, editing generously.
Halakha is the collective body of Jewish religious law, including biblical law and later talmudic and rabbinic law, as well as customs and traditions. Halakha is often translated as “Jewish Law,” though a more literal translation might be “the path” or “the way of walking.” The word is derived from the Hebrew root that means to go or walk.
Historically, Halakha served many Jewish communities as an enforceable avenue of civil and religious law. In the modern era, Jewish citizens may be bound to Halakha only by their voluntary consent. Disagreements over Halakha, and over whether Jews should continue to follow Halakha, have played a pivotal role in the emergence of modern streams of Judaism.
The Halakha is often contrasted with the Aggadah, the diverse corpus of rabbinic exegetical, narrative, philosophical, mystical, and other “non-legal” literatures. At the same time, since writers of Halakha may draw upon the aggadic and even mystical literature, there is a dynamic interchange between the genres.
Halakha constitutes the practical application of the mitzvot (“commandments”), in the Torah, (the five books of Moses, the “Written Law”) as developed through discussion and debate in the classical rabbinic literature, especially the Mishnah and the Talmud (the “Oral law“), and as codified in later works such as the Mishneh Torah or Shulhan Arukh.
The Halakha is a comprehensive guide to all aspects of human life, both corporeal and spiritual. Its laws, guidelines, and opinions cover a vast range of situations and principles, in the attempt to realize what is implied by the central Biblical commandment to “be holy as I your God am holy”. They cover what are better ways for a Jew to live, when commandments conflict how one may choose correctly, what is implicit and understood but not stated explicitly in the Bible, and what has been deduced by implication though not visible on the surface.
Because Halakha is developed and applied by various halakhic authorities, rather than one sole “official voice”, different individuals and communities may well have different answers to halakhic questions. Controversies lend rabbinic literature much of its creative and intellectual appeal. With few exceptions, controversies are not settled through authoritative structures because during the age of exile Jews have lacked a single judicial hierarchy or appellate review process for Halakha. Instead, Jews interested in observing Halakha typically choose to follow specific rabbis or affiliate with a mor
e tightly-structured community.
Halakha has been developed and pored over throughout the generations since before 500 BCE, in a constantly expanding collection of religious literature consolidated in the Talmud. First and foremost it forms a body of intricate judicial opinions, legislation, customs, and recommendations, many of them passed down over the centuries, and an assortment of ingrained behaviors, relayed to successive generations from the moment a child begins to speak.
The sources and process of Halakha
The boundaries of Jewish law are determined through the halakhic process, a religious-ethical system of legal reasoning. Rabbis generally base their opinions on the primary sources of Halakha as well as on precedent set by previous rabbinic opinions. The major sources and genre of Halakha consulted include:
- The foundational Talmudic literature (especially the Mishna and the Babylonian Talmud) with commentaries;
- The post-Talmudic codificatory literature, such as Maimonides’ Mishneh Torah and the Shulhan Arukh with commentaries;
- Regulations and other “legislative” enactments promulgated by rabbis and communal bodies:
- Gezeirah: “preventative legislation” of the Rabbis, intended to prevent violations of the commandments
- Takkanah: “positive legislation”, practices instituted by the Rabbis not based (directly) on the commandments
- Minhag: Customs, community practices, and customary law, as well as the exemplary deeds of prominent (or local) rabbis;
- The she’eloth u-teshuvoth (responsa, literally “questions and answers”) literature.
According to tradition, in antiquity, the Sanhedrin functioned essentially as the Supreme Court and legislature for Judaism, and had the power to administer binding law, including both received law and its own Rabbinic decrees, on all Jews rulings of the Sanhedrin became Halakha. Today, the authoritative application of Jewish law is left to the local rabbi, and the local rabbinical courts, with only local applicability.
Generally, contemporary halakhic arguments are effectively, yet unofficially, peer-reviewed. When a rabbinic posek (“decisor”) proposes a new interpretation of a law, that interpretation may be considered binding for the posek’s questioner or immediate community. Depending on the stature of the posek and the quality of the decision, an interpretation may also be gradually accepted by rabbis and members of similar Jewish communities.
Under this system, there is a tension between the relevance of earlier and later authorities in constraining halakhic interpretation and innovation. On the one hand, there is a principle in Halakha not to overrule a specific law from an earlier era, unless based on an earlier authority. On the other hand, another principle recognizes the responsibility and authority of later authorities, and especially the posek handling a concurrent question. In addition, the Halakha embodies a wide range of principles that permit judicial discretion and deviation.
Notwithstanding the potential for innovation, rabbis and Jewish communities differ greatly on how they make changes in Halakha. Notably, poskim frequently extend the application of a law to new situations, but do not consider such applications as constituting a “change” in Halakha.
Eras of history important in Jewish law
- The Tannaim (literally the “repeaters”) are the sages of the Mishnah (70220)
- The Amoraim (literally the “sayers”) are the sages of the Gemara (220500)
- The Savoraim (literally the “reasoners“) are the classical Persian rabbis (500600)
- The Geonim (literally the “prides” or “geniuses”) are the rabbis of Sura and Pumbedita, in Babylonia (6501250)
- The Rishonim (literally the “firsts”) are the rabbis of the early medieval period (10501550) in Europe and N. Africa preceding the Shulhan Arukh
- The Aharonim (literally the “lasts”) are the rabbis of 1550 to the present.
Codes of Jewish law
The Torah and the Talmud are not formal codes of law: they are sources of law. There are many formal codes of Jewish law that have developed over the past two thousand years. These codes have influenced, and in turn, have been influenced by, the responsa literature.
The major codes are:
- The Mishnah, composed by Rabbi Judah the Prince in the beginning of the third century of the common era as a basic outline of the state of the Oral Law in his time. This was the framework upon which the Talmud was based; the Talmud’s dialectic analysis of the content of the Mishna (gemara; completed c. 500) became the basis for all later halakhic decisions and subsequent codes.
- Codifications by the Geonim of the halakhic material in the Talmud.
- The Hil’khot of the Rif, Rabbi Isaac Alfasi (10131103), summations of the legal material in the Talmud. Alfasi transcribed the Talmud’s halakhic conclusions verbatim, without the surrounding deliberation; he also excludes all Aggadic (non-legal, homiletic) matter. The Hilchot soon superseded the geonic codes, as it contained all the decisions and laws then relevant, and additionally, served as an accessible Talmudic commentary; it has been printed with almost every subsequent edition of the Talmud.
- The Mishneh Torah (also known as the Yad Ha-Hazzaqah for its 14 volumes; “yad” has a numeric value of 14), by Maimonides (Rambam; 11351204). This work encompasses the full range of Talmudic law; it is organized and reformulated in a logical system in 14 books, 83 sections and 1000 chapters with each Halakha stated clearly. The Mishneh Torah is very influential to this day, and several later works reproduce passages verbatim.
- The work of the Rosh, Rabbi Asher ben Yehiel (1250?/1259?1328), an abstract of the Talmud, concisely stating the final halakhic decision and quoting later authorities, notably Alfasi, Maimonides, and the Tosafists. This work has been printed with almost every subsequent edition of the Talmud.
- The Arba-ah Turim (The Tur, The Four Columns) by Rabbi Jacob ben Asher (12701343, Toledo, Spain), son of the Rosh. This work traces the Halakha from the Torah text and the Talmud through the Rishonim. Ben Asher followed Maimonides’s precedent in arranging his work in a topical order, however, the Tur covers only those areas of Jewish religious law that were in force in the author’s time. The code is divided into four main sections; almost all codes since this time have followed the Tur’s arrangement of material.
- The Beit Yosef and Shulhan Arukh of Rabbi Yosef Karo (14881575). The Beit Yosef is a huge commentary on the Tur in which Rabbi Karo traces the development of each law from the Talmud through later rabbinical literature. The Shulhan Arukh is, in turn, a condensation of the Beit Yosef stating each ruling simply (liter
ally translated, Shulhan Arukh means “set table”); this work follows the chapter divisions of the Tur. The Shulhan Arukh, together with its related commentaries, is considered by many to be the most authoritative compilation of halakha. In this work, Rabbi Karo based his rulings mostly on three authorities Maimonides (Rambam), Asher ben Yehiel (Rosh), and Isaac Alfasi (Rif).
- The works of Rabbi Moshe Isserles (“Rema”; Kraków, Poland, 1525 to 1572). Rema noted that the Shulkhan Arukh was based on the Sephardic tradition, and he created a series of glosses to be appended to the text for cases where Sephardi and Ashkenazi customs differed. The glosses are called Ha-mapah, the “Tablecloth” for the “Set Table”. His comments are now incorporated into the body of all printed editions of the Shulhan Arukh, typeset in a different script; today, “Shulhan Arukh” generally refers to the combined work of Karo and Isserles.
- Works structured directly on the Shulhan Arukh, providing analysis in light of Aharonic material and codes. The Mishnah Berurah of Rabbi Yisroel Meir ha-Kohen, (the “Chofetz Chaim”, Poland, 18381933) is a commentary on the “Orah Hayyim” section of the Shulhan Arukh, discussing the application of each Halakha in light of all subsequent Aharonic decisions. It has become the authoritative halakhic guide for much of Ashkenazic Jewry in the postwar period. Kaf Hahayim on Orah Chayim and parts of Yoreh De’ah, by the Sephardi sage Yaakov Chaim Sofer (Baghdad and Jerusalem, 18701939) is similar in scope, authority and approach to the Mishnah Berurah.
- “Layman oriented” digests of Halakha. The Kitzur Shulkhan Arukh of Rabbi Shlomo Ganzfried (Hungary 18041886), based on the very strict Hungarian customs of the 19th century, became immensely popular after its publication due to its simplicity. This work is not binding in the same way as the Mishneh Torah or the Shulhan Arukh. It is still popular in Orthodox Judaism as a framework for study, if not always for practice. Hayei Adam and Hokhmat Adam by Avraham Danzig (Poland, 17481820) are similar Ashkenazi works, but are regarded as a more appropriate basis for practice. The Ben Ish Hai by Yosef Hayim (Baghdad, 18321909) is a corresponding Sephardi work. The twentieth century “A Guide To Jewish Religious Practice” by Rabbi Isaac Klein is written from a Conservative Jewish point of view.
How Halakha is viewed today
Orthodox Judaism hold that halakha is the divine law of the Torah, rabbinical laws, rabbinical decrees and customs combined. Rabbis made many additions and interpretations of Jewish Law, they did so only in accordance with regulations they believe were given to them by Moses on Mount Sinai.
Conservative Judaism holds that halakha is normative and binding, and is developed as a partnership between people and God based on Sinaitic Torah. While there are a wide variety of Conservative views, a common belief is that halakha is, and has always been, an evolving process subject to interpretation by rabbis in every time period.
Reform Judaism and Reconstructionist Judaism both hold that modern views of how the Torah and rabbinic law developed imply that the body of rabbinic Jewish law is no longer seen as binding on Jews today. In Reform, Halakha represents a personal starting-point, holding that each Jew is obligated to interpret the Torah, Talmud and other Jewish works for themselves. In Reconstructionism, this interpretation is also done, but the emphasis is more on communal understanding.