by Tiferet Adler and Tzipporah Machlah Klapper, SBM fellows
How should halakhah deal with categories or ways of being which have only recently come into existence? In such areas, we must decide how far afield to search for precedents, or how willing we should be to create halakhah without clear legal precedents. As we prepared for writing our teshuvot on germline editing, Rabbi Klapper laid out the following framework of approaches:
- Is this an area which should be governed by halakhah?
- if yes, what method or methods should we use to create or discover the relevant halakhah?
- if no, we have four options:
- We can accept that this is simply an area over which halakhah has no direct control, and grant authority instead to some other system or law or values. For example, we could invoke the principle of dina demalchusa dina. (=the law set by the governing authority is the law). Where this is invoked, halakhah lends its religious authority to the decisions and legislation of the governing authority.
- We can suggest that concrete legal rulemaking is the wrong religious modality here, and instead develop a religious approach through the lens of aggada or hashkafah,
- We can refer the issue to people that we and/or our community recognize as gedolim (great halachic decisors or Torah scholars), on the ground that
- The halakhah already exists, but gedolim are the only ones qualified to discover it, or
- The halakhah does not exist, and gedolim are the only ones qualified to create it.
- We can do our best to make up our own minds about the issue, by asking either
- What would the gedolim say if they were compelled to address this issue? or
- What is our best sense of what our tradition taken as a whole has to say about this issue? or
- What is the halakhic category most analogous to this issue, however far fetched the analogy?
SBM explored these options by studying a) past halakhic responses to genetic engineering; b) the state of the halakhic art with regard to transgender people; and c) past approaches to the general question of whether halakhah as we have it should be regarded a complete and comprehensive system for religiously regulating (at least Jewish) life, or rather must be supplemented by creating new halakhah or giving religious authority to other modes of regulation. These materials gave us the sense that there were precedents for all positions within the above framework. For example, in the realm of genetic engineering, Rav Yuval Cherlow’s articles about using PGD (preimplantation genetic diagnosis) to select the sex or other traits of the embryo to be implanted argued forcefully that there are areas properly outside the control of present religious authority, while Rav Aviner’s response to a hypothetical “religiousness gene” defined the area as primarily hashkafic and therefore subject to the exclusive authority of gedolim. Rav Cherlow by contrast argues that where ordinary halakhic methodologies cannot apply, we should often resort to the intuition of the community.
In 2004, Rav Idan Ben-Efrayim published Dor Tahapuchot, a comprehensive guide to an Orthodox approach to the halachic status of transgender people with regard to gender. Rav Ben-Efrayim states in a preface that he is writing the book as a placeholder until the gedolim speak, but as of this writing almost nothing has been published by poskim of greater stature, and most popular works simply cite Dor Tahapuchot. In practice, Rav Ben-Efrayim’s work has defined the Orthodox approach to this area for 15 years. Rabbi Klapper pointed this out as a way of showing us the dangers of assuming that someone else will supersede your work – what you write may have more influence than you expect or intend, and accordingly it’s important to always take responsibility for your Torah.
We also looked at the Chazon Ish’s critique of a comment by the Shakh (Choshen Mishpat 73:39). The Shakh argues that dina demalchusa dina grants halakhic authority only to laws which a) are made either for the legitimate benefit of the government or else for the benefit of the citizenry, and b) apply to issues regarding which there is no explicit halakhah. This seeming limitation on dina demalchusa is actually a radical statement about the nature of halakhah. According to the Shakh, halakhah can have gaps. There are places where halakhah has nothing to say, and to fill those gaps in, we coopt the dina demalchusa.
Note however that for Shakh these gaps may be temporary and accidental. If the Jews had full political autonomy, he might argue for filling these gaps by analogy or via the authority of gedolim. His distinction between “implicit (אינו מפורש)” and “explicit (מפורש)” halakhah might even be compatible with a claim that those gaps can be filled by discovering rather than creating halakhah.
The Chazon Ish (Likkutim Nezikin 16) seems to read Shakh as contending that only newly created halakhah could fill those gaps. He responds by vehemently denying that there are any gaps. The idea that Torah is somehow incomplete is anathema to him.
Everything can be found in Torah, so
ולשון הש”ך ז”ל קשה לכוין
שאין חילוק בין דין מפורש לאינו מפורש
ואין כלל דין שאינו מפורש
שהכל מפורש בתורה.
The language of the Shakh is difficult to find meaning in,
because there is no difference between a law which is explicit and one which is not explicit,
and there is no law at all which is not explicit
because everything is explicit in the Torah
Chazon Ish presumably believes that one looks for the halakhah most closely analogous to an apparently new question.
In a letter to Rav Tzvi Hirsch (Maharatz) Chajes reviewing his book Torat haNeviim, the Chasam Sofer (Teshuvot Chasam Sofer 1 OC 208) presents an approach that differs from both the Shakh and the Chazon Ish. While he, like the Shakh, acknowledges that there are gaps in halakhah, he does not see them as necessarily accidental. Chasam Sofer believes that halakhah does not seek to be a comprehensive code of civil law; rather, the Torah superimposes specific regulations on a general and comprehensive system of natural justice.
ומסתמא, גם אילו לא ניתנה תורה, וקודם מתן תורה,
היו דינין ונימוסים, וכל מלך במשפט יעמיד ארץ . . .
אבל מה שלא הזכירה תורה, כגון היזק שאינו ניכר –
לא הותר חלילה, דרכיה דרכי נועם,
אלא איננו בכלל משפטי תורה,
והמלך וסנהדרין יראו לפי המקום ולפי הזמן, ואין להתורה עסק בזה,
והוא הדין ומכ”ש להסיר המזיקים הרבים, הרוצחים בלא עדים, וכדומה –
דרכיה דרכי נועם וכל נתיבותיה שלום.
Presumably, even had the Torah not been given, and before the Giving of the Torah,
there were laws and enforceable norms, and every king with justice sustained the land . . .
but what the Torah doesn’t mention, such as nonvisible damage,
was not, Heaven forbid, permitted, her ways are ways of pleasantness,
rather it is not within the category of Torah regulations,
and the king and Sanhedrin evaluate in accordance with the place and time, but the Torah has no involvement in this,
and the same is true all the more so with regard to removal of public menaces, or those who murder without witnesses, et al,
her ways are ways of pleasantness and all her paths are peace.
Where halakhah does not provide specific regulations, the Torah authorizes kings and/or the Sanhedrin to make and implement the laws necessary to achieve justice. Damaging action which are not explicitly forbidden by the Torah (for instance, damage which is not visible) are not therefore permissible; rather, “it is not within the laws of the Torah, and the king and Sanhedrin should decide (lit. see) in accordance with the place and time, and the Torah has no involvement in this.”
By “Torah” and “laws of the Torah,” Chasam Sofer may mean something similar to the “explicit law” of the Shakh. The animating principle behind this is the verse he cites twice: Its ways are the ways of pleasantness. In other words, there are areas in which halakhah provides no direct guidance, and Torah values and social considerations, which are presumed to accord with natural justice, must guide the decisions of political authorities.
Is germline editing, via CRISPR or subsequent technologies, an area which halakhah should be stretched to cover? Is it best left to gedolim to decide in accordance with extrahalakhic norms, or to secular authorities or democratic processes? Please look forward to the SBM sh’eilah and teshuvot.