by Rabbi Aryeh Klapper
Hello Rabbi Klapper,
I am currently learning with some beginners to Judaism and people interested in conversion, and I want to help them conceptualize the idea and process of traditional Halakha. I feel like very often ‘beginners’ classes tell people what certain halakhot are (i.e., we don’t do this on Shabbat) without giving them the tools, historical context and skills to be able to understand why something is part of halakha and how much legal weight it holds (from understanding biblical vs. rabbinic origins, to the evolution of the oral law, to understanding the ‘weight’ of post-talmudic halakhic writings, thinking about machloket in halakha, etc).
In other words – do you know of a good article or work that helps present a sophisticated overview of halakha that’s appropriate to help teach beginners? I’m especially looking for a traditional approach since my learners will be operating within Orthodox communities.
I have many times felt the lack of an adequate article for these purposes. Your letter inspired me to make the following attempt at filling that gap.
Halakhah is a spiritual language of the Jewish people. It is both a set of rules-for-action and a mode of thought. It tells Jews how to behave in situations that have already been thought through, and how to make decisions in new situations.
A. ABSTRACT CATEGORIES OF HALAKHAH
All of Halakhah is under the authority of the Torah. Within that basic framework, there are many different levels and sources. The two most important categories are deoraita and derabbanan. Other significant categories include halakhah l’Mosheh miSinai and minhag.
Deoraita (literally: “of the Torah”) laws are derived by Biblical interpretation. Some laws are explicit in the text, such as the prohibition against cursing the deaf. But even seemingly explicit statements become law only via the decisions of interpreters. For example, halakhah takes the Biblical prohibition “Do not place a stumbling block before the blind” metaphorically, as a prohibition against giving self-serving advice or enticing others into sin. (All authorities agree that it is forbidden to place a physical stumbling block in front of a person who can’t see. But there is a possibility that is it not forbidden by this particular verse!)
Derabbanan (literally: of the rabbis) laws are legislated by rabbis. It is important to recognize that the assignment of a law to one category or the other is itself a decision made by rabbis.
Derabbanan laws divide into the categories gezeirot and takkanot.
Gezeirot are laws that are framed as direct extensions of deoraita laws, either because the cases are similar or to avoid slippery slopes.
Takkanot are laws that inculcate Torah values in society but are not necessarily connected to any specific deoraita law. For example, the phrase “tikkun olam”, which you may have heard in its modern usage (making the world a better place), enters Halakhah as a justification for a set of takkanot intended to encourage community and protect wives from unscrupulous husbands.
When deoraita and derabbanan obligations conflict, one generally (but not always!) follows the deoraita. When one is in doubt about a deoraita obligation, one must act stringently; when in doubt about a derabbanan obligation, one may act leniently. “Doubt”, “stringent” and “lenient” are themselves halakhic terms of art.
Halakhah l’Mosheh miSinai (literally: law given to Moses at Sinai) is a term used either to describe laws that G-d told Moses about at Sinai but nonetheless – for reasons unknown to human beings – told him not to write in the Torah, or else laws that have been part of the halakhic corpus for all of Jewish memory but no one knows when and where they entered. An example of the first category is that tefillin must be black.
Maimonides uses the term kabbalah l’Mosheh miSinai to refer to laws derived by a Biblical interpretation that is and always has been universally accepted by Jews.
Minhag (literally: what is practiced) refers to local or family/ancestral custom. The weight given to such customs varies greatly in different times and places, and depends on many factors. The weight given to any particular custom depends on many factors, not least whether halakhic authorities see it as constructive.
In our day, localities rarely have defined customs, and people often come from a quite varied set of ancestors. This attenuation of shared experience is still being worked out in many areas of halakhah.
You may see people using siddurim with different texts in the same synagogue, and members of a single community may have different practices on basic issues such as how to check vegetables for bugs and how to prepare tea on Shabbat. It is important to clarify when an issue is purely one of custom, when different “customs” actually reflect different underlying legal positions, and when a “custom” may result from unjustified halakhic laxity.
Halakhah in all these areas generally functions on the assumption that precedent is binding. However, as circumstances change, there is always a valid question as to how precedents apply to new circumstances. For example, should the rules about kashering metals apply to modern alloys with unprecedented physical properties?
There is also important and valid conversation about how halakhah should respond to historical events or modern sensibilities. For example, should we change the liturgy for 9t Av in light of the establishment of Israel and the liberation of the Temple Mount?
B. SOURCES OF HALAKHAH
Deoraita law is derived by interpretation of the Pentateuch. Interpretation of the other books of Tanakh can yield only a special category of derabannan called divrei kabbalah (literally “words of tradition”; the term kabbalah here has no mystical subtext).
For almost all practical purposes, all halakhically relevant Biblical interpretation can be found in the Babylonian Talmud (henceforth Bavli). Post-Talmudic halakhists will rarely if ever derive law directly from the Biblical text, but rather will work with a Talmudic interpretation. Occasionally they will cite interpretations from other works that preceded the completed Babylonian Talmud (anywhere between 500 and 900 CE) such as the Jerusalem Talmud or the various compilations of Biblical legal interpretations knows as midrashei halakhah.
Similarly, almost all relevant legislation can be found in the Bavli. Post-Talmudic rabbis almost never seek to legislate beyond the confines of their own community. Some rabbis had expansive understandings of their own community, however. For example, Rabbeinu Gershom of Mainz banned polygamy, opening other people’s mail, and divorcing women against their will for all those who considered themselves Ashkenazim. The decree against polygamy was not universally accepted as binding by all Jews until the State of Israel enforced it on a forward-looking basis on the Yemenite Jewish community when they immigrated.
The key source of contemporary halakhah is therefore the Bavli.
The Bavli is organized around the Mishnah, a summary of the Oral Law composed by Rabbi Yehudah the Nasi around 220 CE. The Mishnah is somewhere between a code and a textbook, and contained just about all legal topics but not all legal texts. It rarely cites the Biblical source for even deoraita laws. It records many disagreements, including the names of the relevant rabbis, but also many anonymous positions that may or not reflect consensus or conclusion.
The Bavli cites sources for the Mishnah, undoes the Mishnah’s summary by citing parallel and conflicting texts and treating them as equally authoritative, and seeks to formulate the boundaries and reasoning of the positions in the Mishnah. The Bavli is in dialogic form, framed by an anonymous narrator (according to Maimonides and much of the subsequent tradition, the overall editors were the 5th century Rav Ashi and the 6th century Ravina), but cites the comments and positions of Babylonian and Palestinian Rabbis from the post-Mishnaic era through the fifth century. Only some of its discussions end in formal halakhic conclusions, and those conclusions often vary in manuscript, and therefore may reflect rather than generate practice. Nonetheless, a complex set of rules has evolved as to how to derive halakhah from the Bavli.
In the millennium-plus since the Bavli’s completion, halakhah has developed via three different types of literature.
The first is direct interpretation of the Talmud, in works often called peirushim (commentaries) or chiddushim (novellae). The most famous peirush is that of Rabbi Shlomo Yitzchaki, known as Rashi. Perhaps the best-known chiddushim are those of Nachmanides, Rabbi Mosheh ben Nachman. A famous contemporary peirush is that of Rabbi Adin Steinsaltz; famous contemporary chiddushim are those of Rabbi Yisroel Meir Karelitz, known as Chazon Ish. However, contemporary halakhic scholars rarely offer interpretations that cannot be found, at least implicitly, in medieval predecessors.
The second is through essays that address specific cases or topics. These are known as sh’eilot u’ teshuvot, or responsa. The most influential responsa produced in America thus far are those of Rabbi Moshe Feinstein, in volumes known as Igrot Mosheh.
The third is through codes that synthesize the practical outcomes of the commentaries, novellae, and responsa. The most comprehensive code remains Maimonides’ Mishneh Torah, which uniquely includes the laws that will be practiced only when the Temple is rebuilt, and laws that can be practiced only in Israel or with regard to Israeli produce. The most influential code, however, is the 16th century Shulchan Arukh, which in current usage refers to the original work of that title by Rabbi Yosef Caro together with the glosses added by Rabbi Moshe Isserles. That work contains only laws that can be practiced outside Israel.
One reason for the Shulchan Arukh’s enduring influence is that Rabbi Caro was a Sefardi, whereas Rabbi Isserles was Ashkenazi. The combined book therefore brought together the two mainstreams of halakhah and became a universal basis for conversation.
The Shulchan Arukh generated its own set of commentaries. The most influential in popular Ashkenazic practice today is the early 20th century Mishnah Berurah, edited by the saintly Rabbi Yisroel Meir Kagan of Radin, Poland. It deals only with ritual. The enormously influential 20th century Sefardic giant Rabbi Ovadiah Yosef treated Rabbi Caro’s rulings as completely authoritative. Summary presentations of his positions are still popular.
C. IS THERE ONE HALAKHAH, OR ARE THERE MANY HALAKHOT?
Several times we’ve already referred to differences in the halakhah followed by contemporary Sefardim and Ashkenazim. Those categories have a complex and illustrious history, and unpacking it will help us understand several broader issues about the nature and process of halakhah.
Sometime before the 10th century, Jews spread out across much or all of Europe. Whether because of different origins, or because of their new contexts, many communities developed distinct halakhic traditions. Each of these communities followed both the consensus and the idiosyncratic rulings of their past and present great halakhists.
The influence of particular traditions waxed and waned, in response to intellectual, economic, and political circumstances. By the time of the Spanish Expulsion in 1492, the two dominant European cultures were those of Spain and Portugal on the one hand, and of France and Germany on the other.
The Jews of Sefarad, unlike those of most previous European expulsions, did not assimilate into the halakhic cultures of their exile. They set up independent communities wherever they went, even where there was an established Ashkenazic culture. This seems like a violation of the deoraita prohibition “lo titgodedu”, which bans halakhic factionalism, but for various reasons, the Sefardim were convinced that it did not apply to their situation. Perhaps they thought of themselves as a dominant culture, and all others as outliers.
For perhaps the first time, there were now two different halakhic cultures in the same location. The emergence of the Shulkhan Arukh as a composite work embodied and legitimized that phenomenon. Over time, both Ashkenaz and Sefarad have repeatedly fractured and recombined, but until the emergence of the modern State of Israel, there was no sense that they should recombine with each other, and such efforts in the State have failed almost completely.
The modern era saw another new phenomenon – denominational splits, and then ideological splits within denominations. In North American Orthodoxy today, Modern Orthodox, Yeshivishe, and Chassidic groups each see themselves as somewhat self-sufficient halakhic cultures, although they join in rejecting Conservative Judaism’s version of halakhah. In Israel, Religious Zionists play somewhat the same role as Modern Orthodoxy in America, although the communities’ ideologies are not quite parallel.
Denominational/ideological splits differ from geographic splits in that they foster much greater personnal religious mobility. The ubiquity of multiple halakhic cultures today, coupled with the general modern tendency to value autonomy and individualism, raises the question of whether people should be bound to adopt a halakhic culture in its entirety, rather than treating themselves from a smorgasbord of legitimate religious options. This question is especially pertinent for converts and baalei teshuvah, who cannot be told to continue the traditions of their parents.
Another axis which at times seems to create multiple halakhot is the lekhatchilah/bediavad axis,
Lekahtchilah (literally “what one should do from the beginning”) is the pristine halakhah, the way one should behave in the absence of external pressures.
Bediavad (literally “once it has already been done; often pronounced “bedieved”) is the baseline halakhah, the minimum one has to do to avoid having to do it over, or to avoid negative consequences.
For example, one should lekhatchilah hear the Scroll of Esther on Purim in the presence of a minyan. However, one who heard it privately has fulfilled their obligation and need not hear it again, even if a minyan becomes available. Similarly, many laws of kashrut set up lekhatchilah standards for separating milk and meat whose violation does not render the food or the utensils nonkosher.
What makes this confusing is that
- External economic or moral pressures (called sh’at had’chak) can enable and even compel one to choose the bediavad option. For example, one should eat food that is kosher only to bediavad standards if the alternative is humiliating a well-intentioned host. Another example: In otherwise identical situations, a wealthy family may be told that they cannot eat the product of a “kashrut disaster” in their kitchen, whereas a poor family may be told to go ahead and eat it.
- Often the lekhatchilah and bediavad options track the sides of an underlying dispute, or reflect attempts to accommodate as many sides as possible of an underlying dispute
- Sometimes a bediavad choice is sufficient post facto only if one did not consider and reject the lekhatchilah option.
Halakhah actually has many other levels on this axis, such as mitzvah min hamuvchar (an elite fulfillment of a mitzvah), and sh’at had’chak gadol (great necessity).
D. HOW HALAKHIC DECISIONS ARE AND SHOULD BE MADE
Some of Halakhah is settled law in all traditions. Some of the rest is settled law within specific traditions. Answering questions about usual cases that are covered by settled law is simply a matter of finding a sufficiently knowledgeable person, or a clear enough book.
On many issues, however, one can find controversy among authorities across traditions and through the ages, including the present day. If a layperson knows this, how is he or she to make a decision? Which is the right question — what to do, or whom to ask?
Other issues are new or newish. On such issues, how should decisions be made, both by halakhists and by laypersons?
There are no easy answers. What is most important is to avoid both arrogance and excessive humility. Arrogance leads to making decisions one is unqualified to make, and to being afraid to ask questions lest they expose one’s failings of knowledge or judgment. Excessive humility leads to surrendering one’s moral judgment to others, or surrendering one’s practical judgment when no one else really knows the facts of the case.
Every Jew has the obligation to learn all the Torah they can, not least so they know when they don’t know enough, and need to ask. But whom to ask is a crucial decision.
One reason that the broad halakhic tradition has always preserved so many voices is to give halakhists the discretion to find the answers that work in specific circumstances, or that resonate with specific souls. Halakhah has a built-in set of objective factors that allow decisors to rule in accordance with usually non-normative positions in isolated cases, such as risk of great financial loss, or damage to human dignity. These rules apply differently in deoraita and derabbanan issues, etc.
Even more importantly, the Torah contains so many distinct mitzvot because each soul properly has its own hierarchy and balance of values. Every life lived with Torah integrity is a unique and valid interpretation of Torah. Some may prioritize study, others action; some may focus more on their relationship with G-d, others on their relationships with people. The job of a Jew is to live out his or her soul’s Torah to the fullest.
To that end, you should look to ask your questions to halakhists who genuinely understand you, and who have the depth and breadth of Torah and worldly knowledge to know as many of the relevant halakhic options as possible. This requires forming a genuine relationship with the halakhist, and naturally creates a bias toward asking most questions to the same person. But it is appropriate and reasonable to ask questions in specific areas to specialists, or to recognize that one resonates with the values of a halakhist in some areas but not in others.
It is also important to realize that one can ask questions to someone without being bound by their answer. So long as you are upfront about your intent, a halakhist will often be willing to talk through the options with you and give you the knowledge and parameters you need to make your own decision. Some great halakhists will do this in a way that helps you internalize their process and make you more autonomous in the future. Sometimes the halakhist will tell you frankly that you should not ask for a binding psak.
What is not okay is to ask multiple authorities until one gets the answer one wants, without caring whether it fits precedent or is intellectually or morally convincing. This is generally an abuse of the system and the people, and lacks all integrity. For this reason, competent halakhists will often refuse to tell you their opinion – especially if it differs from the conventional wisdom – unless and until you agree to be bound by their decision.
It is also important to understand that even great halakhists can make mistakes, especially about who you are and your specific circumstances, especially if your case is presented to them through a third party such as your synagogue rabbi. If you receive a psak that causes you or someone else significant emotional, economic, or spiritual hardship, please ask another halakhist for help after disclosing that you received the previous psak.
E. THE SCOPE OF HALAKHAH
Halakhah covers the entire range of embodied human experience. It has rules about sex and speech, business and bathrooms, ritual and recreation, and everything else you can imagine. There is, however, disagreement about whether it ever directly regulates emotions, or only actions that usually express emotions. Are Jews actually obligated to love their fellow as they love themselves, or only to act as if they do?
One reason for Halakhah’s comprehensiveness is that it enables every decision in life to be meaningful.
Moreover, every halakhic decision one makes for oneself, or receives from another, should be a moment of growth. Every decision should leave you better prepared to make future decisions, and under more pressure or when the stakes are greater.
But while halakhah applies to everything, halakhah should not be the entirety of one’s religious experience or study of Torah. It is important to learn Tanakh and commentaries, Jewish philosophy, Talmudic narratives, or other authentic Torah genres – each person focusing on what resonates with their individual soul – and the principles and values derived from them should complement your halakhic reasoning and challenge your halakhic assumptions.
There are also decisions – often the biggest decisions in life – that only you can make, and for which halakhah prepares you without telling you what to do. Halakhah does not tell you whom to marry, or when to become a conscientious objector in wartime, or which political party to support. Halakhah often provides only vague guidelines as to how to choose when obligations bein adam lachaveiro (interpersonal) conflict with obligations bein adam lamakom (between man and G-d). Making these decisions requires a broad Torah perspective.
This article has in a sense tried to teach you all about halakhah while you stand on one foot. All the rest is up to you – go learn!