Out of Bounds: Part 1--halakhic inception
By: Jonathan Seidel
This essay adequately demonstrate the external influence on the halakha. This is not a negative but an inevitable consequence of legality and societal interaction. The essay broken up into multiple posts examines the external effect on halakha through the years from its inception to the modern day. This intro explains the procedure of the essay and the transmission change from Moses to the rabbis.
Intro: Recent Qualms
R' Zechariah Frankel in the past century summed up a thesis of the positive-historical school1. He believed historical data was imperative to understanding the genuine development of halakha2. He asserted that these methods must be used for accurate measures. R’ Sampson Rafael Hirsch attacked him for implying God did not give the oral law to Moses3. It is clear though that in other papers he acknowledges the social impact of halakha4. The legal system is not ahistorical, but for the believer relying heavily on external phenomena to prove a dogma is problematic in its essence. I understand the critique but am sceptical if it is truly warranted. It does not seem R’ Frankel intended to downplay halakha he was a realist and recognised the history of halakha5. I have not read his theory so I lack the knowledge of his intent, but I think there is where to use historical evidence to bolster Jewish tradition; to present an alternative vision (Leviticus Rabbah 22:8)6. This essay will disclose potential truths that legitimately argue for a redirection of thought. I am writing this firstly to inspire solutions to certain present issues conflicting with modern social norms and secondly to promote an alternative outlook to relate to the modern age. Socio-historical factors are present throughout the generations as a critical aspect to halakhic philosophy7.
I acknowledge my first points will be greatly debated, even possibly rejected and deemed blasphemous, but using historical data proves this theory has much evidence. It must be pointed out that society does not force Judaism to conform to its standards but instead influences. The social effect of society impacts the direction the law develops. The law is not stagnate, it is dynamic. Although, I reckon the Sinaitic law given to Moses was formalistic8 transmitted by the courts (T. Sanhedrin 7:1, T. Chagigah 2:9). Moses at three different occasions asks God for guidance of the law (impure people/pesach sheni Numbers 9:6-7; 9:9-13, wood gatherer Numbers 15: 32-36, daughters of Zelophehad Numbers 27:2-6). The Sages write that no prophet can legislate a law (Shabbat 104a). Even David (Samuel II 14:15-17) and Solomon (Kings I 3:17-21, 28) only rule according to divine inspiration/wisdom, not their own logic. Proverbs mimics this point that monarchical decisions were divine wisdom, escaping sin (Proverbs 16:10). Divine judgement did not promote novel opinions but instead retained the existing. All innovations by prophets were transmitted to Moses at Sinai (J. Megillah 27a). They preserved the law and the tradition. They were messengers enforcing law and morality. Their institutions were renewed laws. Moses received the tradition and passed it down formally to the Men of the Great Assembly (Avot 1:1)9.
The exegesis that God placed a mountain over us demanding we accept or die can demonstrate this. We were coerced to accept His will. Only after we survived the near annihilation at the hands of Haman did we autonomously internalise the law for ourselves, carving a dynamic path of human intervention and growth (Shabbat 88b)10. Moses asked God for His opinion but in the snake oven case, the heavenly voice is rejected by the sages because [the Torah] is not in heaven. God responds that He has been defeated (Bava Metzia 59b). The Sages have the authority to decide the law and build it. Develop it and guard it11. R’ Feinstein remarked in his introduction that we must argue and dissent12. No one has absolute authority13. A judge has only what he sees (Bava Batra 130b)14. The truth is to be ascertained by the living reality. Our sages rely on their rational analysis cultivating legal deductions with reality.15
Endnotes
1. Elliot N. Dorff, Conservative Judaism: Our Ancestors to Our Descendants (New York: United Synagogue of Conservative Judaism, second, revised edition, 1996), pp. 17f.↩
2. The "positive-historical" approach to Judaism.↩
3. Samuel Rafael Hirsch, Jeschurun 7 (1861). See E. Klugman, “Rabbi Samson Raphael Hirsch: Architect of Torah Judaism” (Brooklyn, 1996).↩
4. History in of itself has been subjected to criticism by R’ Chaim Ozer but defended by R’ Yechiel Weinberg See: Isaiah Gafni, “Concepts of Periodization and Causality in Talmudic Literature." Jewish History 10 (1) pp. 21, notes 1-2. Prof. Gafni concludes the Sages mentioned history as it factored into their rabbinic enterprise than for simple knowledge. They utilised history and social reality in developing their halakhic process. It was not their intention to teach history as Herr notes but that does mean that we should not nor that they did not at all (pg. 34). See: M.D. Herr, "The Conception of History among the Sages," Proceedings of the Sixth World Congress of Jewish Studies, Vol. 3 (Jerusalem, 1977), pg. 142.↩
6. Moses Maimonides, The Guide of the Perplexed 3:32, 3:46. Nahum Rabinovitch, (Darkhah Shel Torah, Me’aliyot: Jerusalem, 1999). For an abridged english version see: “The Way of Torah” Edah 3:1 pp. 6-13. He affirms a developmental theory of halakha and Maimonides. Also read Shimon Gershon Rosenberg’s Halichot Olam: Halakha and History 2016 pp. 212-242.↩
7. See: Gerald Blidstein, “Where do We stand in the study of Maimonidean Halakhah?,” Studies in Maimonides, ed. Isadore Twersky (Cambridge, Ma: Harvard University Press, 1990), pg. 27. Prof. Blidstein notes that law is infamously conservative but does react to social and economic changes. He questions if Maimonides’ code follows this theory but fails to answer it. See further: Cohen infra note. 79 indeed accepts this and so does Tosafot infra note 69. Prof. Watson’s acknowledgement of legal rigidity following Roman and English law reflects Maimonidean codification and canon law but not necessarily the fluidity of ancient even Talmudic common law. See: Alan Watson, Society and Legal Change (Edinburgh: Scottish Academic Press, 1977), pg. xviii. See my: A)Typical Tools for some analysis of common law’s transition to statutory law in late antiquity by the Greeks and its influence in rabbinic literature.
8. Avraham Walfish, “How to Deal with Halakhic Uncertainty”, Halakhic Realities: Collected Essays on Brain Death (ed. Zev Farber), 2017 pp. 159-162.↩
9. Prof. Jackson presents a monistic (divine justice-intervention) and dualistic model (human justice-interpretation) of divine justice. Divine oracles and intervention yield a formalistic standard setting that was eclipsed by the rabbinic age. See: Infra note 31. The BIble revolutionised authority by painting God as the supreme authority instead of the classical regal model. Bernard M. Levenson, "You Must Not Add Anything to What I Command You: Paradoxes of Canon and Authorship in Ancient Israel," Numen 50 pp. 14-15.↩
10. R’ Zadok HaKohen posits a similar approach. See: Yaakov Elman, “R. Zadok HaKohen on the History of Halakha,” Tradition 21:4 (Fall 1985), pp. 1–26. See: Haim Shapira, “For the Judgement is God’s: Human Judgement and Divine Justice in the Hebrew Bible and Jewish Tradition” Journal of Law and Religion Vol. XXVII pp. 284-290. Prof. Shapira ascribes human judgement to the Sinaitic tradition. Jethro advised Moses to construct a court system to judge the people to alleviate the toll (Exodus 18:13-27). They teach what is known, petitioning Moses in mysterious cases. Prof. Shapira writes the new legal system is autonomous in Deuteronomy. This theory bodes well with the cases presented above are all in Numbers. Jethro and Dueteronomy (16:18, 17:8-13, 19:15-21) do innovate the legal system but remain formalistic in character.↩
11. Moshe Halbertal, People of the Book: Cannon, Meaning, and Authority. Harvard University Press, 1997 pp. 52-62. Nahmanides’s constitutive view sheds light on the sages’ autonomy in legislating law. 12. Argumentation is a key element in halakhic discourse. See: Benard S. Jackson “Some Preliminary Observations on Truth and Argumentation In the Jewish Legal Tradition” Festschrift — BSJ, 2012. For an analysis of halakhic pluralism see: Avi Sagi, “‘Both are the Words of the Living God’: A Typological Analysis of Halakhic Pluralism” Hebrew Union College Annual Vol. 65 pp. 105-136 and Christine Hayes, “Legal Truth, Right Answers, and Best Answers: Dworkin and the Rabbis” Dine Israel 25 pp. 73-121. See Prof. Hidary’s response in “Right Answers Revisited: Monism and Pluralism in the Talmud” Dine Israel 26 pp. 229-255 and Prof. Hayes’ reaction in the same volume: “Theoretical Pluralism in the Talmud” Dine Israel 26 pp. 257-307. Additionally, Richard Hidary, Dispute for the Sake of Heaven: Legal Pluralism in the Talmud, Providence, 2010. A modern application is R’ Riskin’s formulation. Utilising this Talmudic dictum to provide modern creativity and innovation. Shlomo Riskin, “Dissent in Jewish Tradition: The Glory of Halakhic Pluralism” The Living Tree, Ohr Torah Stone, 2014, pp. 9-30.↩
13. Moshe Feinstein, Igrot Moshe, Orach Chaim 1:109.↩
114. See: Zerah Warhaftig, “Precedent in Jewish Law” Authority, Process and Method: Studies in Jewish Law ed. Hanina Ben-Menahem and Neil S. Hecht. (Amsterdam: Harwood Academic Publishers, 1998) pp. 23-27. Dr. Warhaftig analyses a multitude of traditional sources regarding judicial independence concluding binding precedent is absent from Jewish law. See also: Jeffrey R. Woolf, “The Parameters of Precedent in Pesak Halakha” Tradition 27:4 pp. 41-48.↩
15. Avraham Karelitz, Chazon Ish Laws of Forbidden Combinations 1:1.↩<5 span="">
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