Can There Be Halakhah Which Does Not Come From Torah? Week Five Summary of SBM 2019

by Tiferet Adler and Tzipporah Machlah Klapper, SBM Fellows

Is halakhah derived entirely from the Torah, or does halakhah’s understanding of Torah presume and depend on the existence of halakhic obligations that preceded the Revelation at Sinai? Rav J. David Bleich takes the latter position when discussing whether Halakhah imposes limits on the development and use of biotechnologies such as CRISPR. Even more radically, Rav Bleich argues that Halakhah incorporates such “natural law” obligations even when they are not explicitly mandated by the Torah. Let us be clear that we are not discussing the Seven Noachide Commandments, each of which Chazal derive from the Torah, but rather a set of unwritten obligations which can help us derive meaning from Torah.

Rabbi Bleich’s core argument begins from Talmud Chagiga 12a:

ואמר רב יהודה אמר רב:

בשעה שברא הקדוש ברוך הוא את העולם, היה מרחיב והולך כשתי פקעיות של שתי, עד שגער בו הקדוש ברוך הוא והעמידו,

שנאמר עמודי שמים ירופפו ויתמהו מגערתו,

והיינו דאמר ריש לקיש:

מאי דכתיב אני א-ל ש-די?

אני הוא שאמרתי לעולם די.

Said Rav Yehudah said Rav:

At the time that the Holy Blessed One created the world, it was expanding like two spools of wool, until the Holy Blessed One expressed anger at it and halted it,

as Scripture says: “The pillars of Heaven will soften and be astounded because of His anger.”

Resh Lakish said:

What is the meaning of “I am the Almighty God (E-l Shad-dai)” (Bereishis 17:1)? It means: I am He Who said to the world “enough/dai.

The Beis Halevi (Bereishis 17:1) offers a creative reading of this gemara. He argues that G-d stopped the world from developing infinitely both quantitatively and qualitatively. Before G-d stopped it, the world would have continued toward infinite quantity and quality. By saying “stop,” G-d prevented the development of the world toward perfection. This enabled Him to ennoble man as His partner in creation, charged with completing His own deliberately “unfinished” k’b’yakhol creative activity. The world thus exists in a constant state of “arrested development,” waiting for us humans to perfect it by engaging in agriculture, breadmaking, and other creative endeavors. An example of this (and perhaps a symbol) is that rather than creating man circumcised, God willed man (starting from Avraham Avinu) to circumcise himself. In light of this, when God tells Adam in Bereishis 3:19: “by the sweat of your brow shall you eat bread,” He is providing Adam with a matir, a license to improve on Creation, rather than just cursing Him.

Now, perhaps the most frequently raised ethical challenge to the use of CRISPR technology is that it seems to violate a fundamental intuition about the difference between the human and the Divine: it seems to allow human to “play G-d.” But is that intuition correct? Does Judaism see “playing G-d” as fundamentally wrong? Rabbi Bleich uses the Beis Halevi to argue that man has a Divine mandate to “interfere” in the natural order of things and to partake in its completion. In other words, we are not only allowed but obligated to “play G-d,” But Rabbi Bleich then argues that there are nonetheless halakhic limits to the development of biotechnology. These limits emerge not from the Halakhah derived from Torah, but rather from the natural law obligations that the Torah assumes and that Chazal use when interpreting Torah.

Rav Bleich concedes that he knows of only one place where Halakhah explicitly incorporates such an obligation. On Sanhedrin 74a, Rabbi Yochanan says in the name of Rabbi Shim’on ben Yehotzedek that a rabbinic vote declared that one should violate all Torah prohibitions to save one’s life, except for three: avodah zarah (idolatry et al), gilui arayot (adultery et al), and shefikhut damim (bloodshedding). The gemara asks: How are each of these exceptions derived from the Torah? A verse is found for avodah zarah. Another verse is found that compares gilui arayot to shefikhut damim. But how is shefikhut damim itself derived? The gemara answers that we don’t need a verse for this; it is derived from a svara, a principle derived by reason alone: mai chazis de dama didach sumak tfei, = What makes you say that your blood is redder than his?

The point is not just that we derive the law regarding bloodshedding from svara. Rather, his point is that we interpret the verse which compares gilui arayot and shefikhit damim on the basis of that svara. This shows that we may be able to show the existence of natural law obligations not only through their direct incorporation into halakhah, but also through their indirect effects on our interpretations of Torah.

Rav Bleich contends that Chazal’s interpretation of verapo yerapei (Shemos 21:19) is an example of such an indirect effect. Bava Kama 25a tells us that this verse gives a doctor reshut = permission/authority to heal. Yet if the Beis Halevi is right, and man is a partner in creation, what is the hava amina here? Why do we need a Biblical verse to give doctors dispensation to heal?

Tosfos suggest that that healing the sick might be seen (nir’eh) as contradicting the gzeiras hamelekh, G-d’s decree of illness. Even if human are partners in the fulfillment of G-d’s plan, we are not authorized to contradict His will. Illness is not something left incomplete in creation, but rather a present action of G-d. Without the verse, we might have thought that healing those He made sick contradicted His will; now we know that healing actually fulfills His will.

The underlying principle here can be illustrated via one of the rationales offered by Rav Mosheh Feinstein to explain the consensus psak that when dehydration poses a threat to life on Yom Kippur, there is no obligation to use medical technology to hydrate rather than drinking. Why? Rav Mosheh suggests that using medical technology to avoid transgressing a prohibition does not constitute healing, and therefore is not permitted by rapo yerapei. But why should it be forbidden in the first place?

Rav Bleich suggests that Tosfos is fundamentally correct that the human license to engage in creation allows us only to further His will, not to oppose it. Verapo yerape permits healing even though we might have thought it a contradiction of His will. That we need a verse to permit healing demonstrated that we have a prior assumption that we are forbidden to oppose His will, even for what seem to us constructive purposes. That prohibition has no Biblical source; it is derived from svara.

Man, according to Rav Bleich, has license to bring to culmination the process of creation, to act in accordance with that Divine mandate, but he is halakhically forbidden to attempt improving upon the natural order except to heal. This is especially true of improving our species biologically rather than morally. CRISPR should therefore be permitted for the purpose of eliminating disease, but in all other cases, Rav Bleich sees it as a violation of the natural law principle incorporated by Halakhah that we must not thwart the Divine plan of creation.

Rabbi Bleich offers one model for dealing with moral questions that are apparently outside the purview of halakhah; incorporating a priori natural law principles into halakhah. But there are many other models for creating halakhah where none exists, or seems to exist. We can admit that halakhah does not cover all moral questions, and look for other meaningful modes of response. We can look for extrahalakhic authorities, such as the law of the human society we live in (dina demalchusa), or acknowledge natural law principles without claiming that they are part of halakhah. We can grant exclusive authority to the greatest Torah scholars of the day to create or discover halakhah without reference to ordinary legal procedures. We can grant democratic authority to the observant community, or give all halakhic decisors the right to derive halakhah from Torah sources normally considered apart from law.

In next week’s essay, we’ll show how halakhists over the past several centuries have developed and applied these models in spheres such as genetic engineering, the halachic treatment of transgender people with regard to gender, and political science.

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