Halakhah: Structure of Halakhah
HALAKHAH: STRUCTURE OF HALAKHAH
Halakhah, in the general sense of the word, is the entire body of Jewish law, from scripture to the latest rabbinical rulings. It is a complete system of law governing every aspect of human life. It has been traditionally viewed as wholly rooted in God's revealed will (B. T., Ḥag. 3b) but subject to the ongoing interpretation of the Jewish jurists (B. T., B. M. 59b).
In its more specific sense halakhah (pl., halakhot ) refers to those laws that were traditionally observed by the Jewish people as if they were scriptural commandments (mitsvot ) even though they were nowhere explicitly found in scripture. The term itself, according to Saul Lieberman in Hellenism in Jewish Palestine (New York, 1962), seems to refer to the statement of a juristic norm as opposed to actual case law. The task of much rabbinic exegesis, especially during the tannaitic period (c. 70–200 ce), was to show that through the use of proper hermeneutics the halakhot could be derived from the text of scripture, especially the Pentateuch. When this could not be done, the specific halakhah was termed "a law of Moses from Sinai."
Concerning the origins of halakhah there are three main theories.
The first, the traditional, rabbinic approach, is founded on the literal meaning of "a law of Moses from Sinai," namely, that Moses received two sets of teachings at Mount Sinai, one written (the Pentateuch) and the other oral (torah she-beʿal peh ), and that the oral Torah is the authoritative explanation of the written Torah (B. T., Ber. 5a). Thus all subsequent interpretation is in effect recollection of what had already been revealed at Sinai (J. T., Meg. 4.1,74d). This theory explains that the constant rabbinical disputes over virtually every point of halakhah aredue not to any inherent ambiguity in the tradition itself but, rather, to insufficient mastery of the tradition by the rabbis (Tosefta, Soṭ. 14.10).
The second theory is that of Moses Maimonides (Mosheh ben Maimon, 1135/8–1204). Although he too reiterated the literal meaning of the totally Mosaic origin of halakhah, in his specific treatment of the constitution of halakhic authority he states that halakhah is based on scripture and, equally, on the rulings of the Great Court in Jerusalem (Mishneh Torah, Rebels 1.1ff.). This is Mosaic law in that the members of the Great Court are Moses' authoritative successors. Maimonides explains the fact of constant rabbinical disputes in halakhah as due to the loss of political sovereignty, which led to the demise of the Great Court's jurisdiction. By this theory Maimonides places both rabbinical legislation and traditional halakhah on the same level.
The third theory is that of Zacharias Frankel (1801–1875). Expanding certain medieval comments into a more general theory, Frankel, in Darkhei ha-Mishnah (Leipzig, 1859), saw the term "a law of Moses from Sinai" as primarily referring to ancient laws that had become widespread in Jewish practice and whose origins were obscure. They were regarded as if they had come from the actual time of Moses. Frankel's theory, which received severe criticism from more orthodox scholars, reflected the growing historical consciousness of nineteenth-century Jewish scholarship and, also, stimulated research into the different historical origins of various halakhot. Frankel, then, along with other scholars of his time, laid the foundation for the historical understanding of halakhah as a developmental phenomenon.
Because of the Pharisaic and rabbinic emphasis on the essential unity of the written Torah and the halakhah, in contradistinction to the Sadducean, which accepted only the former as authoritative (B. T., Hor. 4a), an elaborate hermeneutical system was worked out to derive as many of the halakhot as possible from the words of scripture, which was considered normatively unintelligible without the process of specifically relating it to the halakhah (B. T., Shab. 31a). This entire process was called midrash, literally meaning "inquiry" into scripture. The most important statement of this rabbinic hermeneutic is the "Thirteen Methods of Rabbi Yishmaʿeʾl" (Sifraʾ, intro.). The most widely used of these methods and the most typical was the gezerah shavah; namely, the process by which a word in one scriptural context was interpreted according to its meaning in another context. Since this type of interpretation was only for buttressing already normative halakhot, what it accomplished was a much wider latitude for tradition to determine the meaning of scripture (J. T., Pes. 6.1, 33a). However, not only did such hermeneutical methods support already normative halakhot, but they also led to the formulation of new norms. The most prominent proponent of this constructive exegesis was the second-century sage ʿAqivaʾ ben Yosef, although his oftentimes daring interpretations elicited the criticism of his more conservative teachers and colleagues (B. T., Men. 89a).
In tannaitic texts a distinction is made between direct scriptural exegesis (derashah ) and indirect exegesis. In a purely normative sense, however, it is difficult to see any authoritative difference between laws buttressed by the latter as opposed to the former. Both sets of laws were regarded as traditional halakhot ; the only difference is that the former were more satisfactorily based on scripture.
In the amoraic period (c. 220–c. 500) there emerged a more clear-cut distinction between laws considered scriptural (de-oraitaʾ ) and laws considered rabbinic (de-rabbanan ). The difference between scriptural law and rabbinic law by this time was that the latter was considered to be evidently rational. As for scriptural law, despite attempts to discover "reasons for the commandments" (ṭaʿamei ha-mitsvot ), God's will was considered sufficient reason for it. "I have made a statute; I have decreed a decree; you are not permitted to violate my decrees" (Nm. Rab. 19.1). This phrase was used to refute any suggestion that only those laws whose reasons were evident were authoritative. In fact, certain scriptural laws were admitted to be rationally incomprehensible, but their authority was nevertheless emphasized as being because "my father in heaven has decreed such for me" (Sifraʾ, Shemini, ed. Weiss, 93b).
Rabbinic law, although occasionally justified by indirect scriptural exegesis (asmakhtaʾ ), was then usually justified as being for the fulfillment of some religious or social need (B. T., Ber. 23b). This developed to such an extent that it was claimed that there were only three rabbinic laws for which no reason could be immediately discerned (B. T., Giṭ. 14a). Furthermore, the lines between direct and indirect exegesis were considerably blurred (B. T., Pes. 39b). Finally, Ravaʾ, a fourth-century Babylonian sage who became the most prominent advocate of rational jurisprudence, indicated that the rabbis actually had more legislative power than even scripture (B. T., Mak. 22b). Nevertheless, although in theory the punishment for the violation of rabbinic law could be even more severe than that for the violation of scriptural law (San. 11.3), in reality it was almost always more lenient (Naz. 4.3). In case of doubt, in matters concerning scriptural law the benefit of the doubt favored the law, but in rabbinic law it favored the accused (B. T., Beits. 3b).
The question of the extent of scriptural law versus rabbinic law was deeply debated among the medieval Jewish jurists. Maimonides, following the Talmudic opinion that scriptural law is limited to 613 Pentateuchal commandments (B. T., Mak. 23b), considered any other laws, whether traditional or formulated through exegesis or rabbinical legislation, as having the status of rabbinic laws (Sefer ha-mitsvot, intro., sec. 2). Moses Nahmanides (Mosheh ben Naḥman, c. 1194–1270), on the other hand, was of the opinion that anything designated by the rabbis as scriptural law, especially those laws derived hermeneutically in rabbinic literature, has the status of scriptural law. Only those laws specifically designated by the rabbis as rabbinic are to be considered as such. This difference of opinion concerning the very character of halakhah is philosophical. Maimonides' prime concernseems to have been with the process of legislation, that is, with the ability of the duly constituted authorities to make new laws and repeal old ones. Nahmanides' prime concern seems to have been with a revival of the whole process of rabbinical exegesis. This distinction can be seen in the fact that Maimonides' chief halakhic contribution was that of a highly innovative codifier, whereas Nahmanides' was that of an exegete. This difference of approach can be seen in the Talmud and throughout the history of the halakhah, namely, the apodictic approach (B. T., Nid. 73a) as contrasted with the expository approach (B. T., B. M. 33a).
Rabbinical legislation was considered the original prerogative of the Great Court in Jerusalem (Sifrei, Shofṭim, ed. Finkelstein, no. 144). With the diminution of its powers even before the destruction of the Second Temple in 70 ce and its full demise at that time, how much of its power could be transferred to subsequent courts became the subject of considerable discussion.
Sometimes Jewish juridical power was limited because of the lack of political sovereignty; however, internal Jewish political considerations played an even more important role in determining the extent of juridical authority in certain times and places. Despite the destruction of the Second Temple and the demise of the Great Court, there was a strong attempt to retain prime rabbinical authority in the Land of Israel. Thus unqualified rabbinical ordination (semikhah ), which was seen as an institution originating with Moses himself, was limited to those rabbis who functioned in the Land of Israel. When in the third century Rav (Abbaʾ bar Ayyvu) left Israel for Babylonia, where he led the revival of the Jewish community, he was granted a qualified ordination, with authorization to adjudicate only in certain questions of law (B. T., San. 5a). Nevertheless, with the exception of adjudicating in the area of scripturally fixed fines (qenasot, B. T., B. Q. 84b), as the Babylonian community grew and developed its own institutions, its rabbis began to claim virtually all of the halakhic prerogatives of the rabbinate of the Land of Israel (B. T., Giṭ. 88b). Generally, this set the pattern for subsequent rabbinical authority, namely, that the rabbis in every time and place exercised as much halakhic authority as political and religious conditions both allowed and required (Tosefta, R. ha-Sh. 1.18). Moreover, it was recognized that in emergency situations the rabbis had the right to override existing laws temporarily (horaʾat shaʿah ), even scriptural ones (B. T., Yev. 90b). Finally, it was recognized that the rabbis even had the power to abrogate certain aspects of scriptural laws, although this power was considerably qualified (ibid., 89b).
Types of rabbinical legislation
Rabbinical legislation can generally be divided into two classes: decrees (gezerot ) and enactments (taqqanot ).
Decrees were justified by the principle traced back to the period of Ezra (sixth century bce) that "a fence is to be made around the Torah" (Avot 1.1). This "fence" consists of prohibitions designed to protect scriptural law from probable transgression. Thus, for example, numerous additional restrictions (shevut ) were enacted to protect the thirty-nine scriptural prohibitions of Sabbath labor from being carelessly violated, to enhance the overall sanctity of the day, and to guard against behavior that the rabbis saw as inconsistent with the spirit of the law (Beits. 5.2). However, to distinguish rabbinical legislation from scriptural law and to prevent an infinite multiplication of strictures, the rabbis emphasized that laws were not to be enacted to protect their laws (B. T., Beits. 3a).
Rabbinical enactments were justified by the scriptural prescription that "you not deviate from what the judges will tell you" (Dt. 17:11). Although this probably refers to the simple necessity of applying scriptural law, the rabbis saw it as mandating their power to add to it if circumstances warranted doing so. These enactments were of three kinds.
- Enactments were made to commemorate postbiblical Jewish events. Thus, for example, the recitation of the liturgical formula "Blessed are you, Lord … who has commanded us" was justified for the ritual of kindling Ḥanukkah lights on the grounds that the rabbinical legislation that mandated it is itself prescribed by scripture (B. T., Shab. 23a). As the rabbis often put it, "It is a commandment to listen to the words of the sages" (B. T., Yev. 20a).
- Enactments were made to alleviate hardships arising from the widening gap between scriptural law and social and economic realities. Thus, for example, the scriptural law prescribing the cancellation of debts every seventh year (Dt. 15:1ff.) proved to be a deterrent to lending money to those who needed it most in a commercial economy, where longterm loans were becoming more and more common. To alleviate this situation, in accordance with the overall purpose of the Torah, that is, to promote social justice and well-being, Hillel the Elder (first century ce) enacted the institution of prozbul, whereby a creditor handed over his note to a court. Since the court collected the debt, the lender avoided the prohibition of personally collecting the debt after the Sabbatical year (Giṭ. 4.3).
- Enactments were made to curtail individual rights, the exercise of which was seen as contrary to the common good. Thus, for example, the third-century Babylonian sage ʿUlaʾ ruled that although scripture permitted repayment of a debt with merchandise of any quality (Dt. 24:11), the debtor must repay a debt with at least medium-grade merchandise so as not to discourage lending (B. T., Giṭ. 50a). This same type of curb on what was perceived to be the antisocial exercise of individual privileges was the basis of the numerous laws enacted in medieval communities (taqqanot ha-qehillot ). The most famous of these was the ban on polygyny issued for Ashkenazic (northern European) Jewry by Gershom ben Yehudah of Mainz (c. 965–1028) even though both the Bible and the Talmud permit the practice.
Rabbinic legal procedures
Rabbinical legislation was conducted according to a number of procedural rules. Although the reason for a specific rabbinical enactment did not have to be immediately publicized (B. T., ʿA. Z. 35a), there certainly had to be a clear and compelling religious or social need for it to be enacted. Rabbinical legislation was considered general in scope and was not to be formulated as case law (B. T., ʿEruv. 63b).
The question of how long a rabbinical enactment was considered binding and what power of repeal subsequent rabbis have is a complicated one and is debated by scholars. Thus an important passage in the Mishnah states that "one court may not repeal [mevaṭel ] the decrees of a fellow court unless it is greater than it in wisdom and in numbers" (ʿEduy. 1.5). Some scholars have interpreted this as applying to a contemporary court only. Others have interpreted it as applying to a subsequent court. "Greater in numbers" has been interpreted to mean a greater number of disciples. However, it was highly unusual for a subsequent court to regard itself as wiser than an earlier one. The rabbis generally were too reverent of tradition to attempt to repeal it overtly. The Talmudic statement "If earlier generations were angels, we are but men" (B. T., Shab. 112b) reflects this typical attitude. Therefore, repeal usually took the form of more subtle reinterpretation of earlier enactments. However, even when the reason for an enactment was no longer extant, it was still considered binding unless there was a strong reason for reinterpretation.
The question of rejection of a rabbinical enactment by the people was debated in the Middle Ages. The Talmud states that "a decree is not to be made unless the majority of the community are able to abide by it" (B. T., ʿA. Z. 36a), and this was interpreted to mean that it had to have been accepted as normative by the majority of the community. (There does not seem to have been, however, any procedure for an actual plebiscite.) Rashi (Rabbi Shelomoh ben Yitsḥaq, 1040–1105) restricts this right to the generation of the enactment itself; that is, if they accept it the enactment is binding irrespective of the possible rejection by subsequent generations. Maimonides, on the other hand, extends the right of rejection even to subsequent generations; that is, if an earlier rabbinical enactment had fallen into disuse, then a subsequent court may regard it as no longer binding (Mishneh Torah, Rebels 2.7). Following the same logic, in another ruling Maimonides opts for the ancient Babylonian practice of publicly reading the Torah in the synagogue in an annual cycle over the ancient Palestinian practice of reading it in a triennial cycle, simply because the former practice had acquired universal Jewish acceptance.
Minhag ("custom") is the third constituent element in halakhah, after scriptual exegesis and rabbinic law. It basically has three functions.
- Custom is invoked when the law itself is ambiguous. If there are two reputable opinions as to what a law is, then there are two ways of deciding what is to be done. Either the majority view of the sages is followed (B. T., Ḥul. 11a), or the popular practice of the people is consulted and followed (J. T., Peʾah 8.2, 20c). In the latter situation custom does not establish law but distinguishes between which law is considered normative (halakhah le-maʿaseh ) and which law is considered only theoretical (ein morin ken, J. T., Yev. 12.1, 12c). Popular acceptance of one practice over another is considered a valid criterion of juridical choice because "if the people of Israel are not prophets, they are the children of prophets" (J. T., Pes. 6.1, 33a). In other words, popular practice is indicative of an unbroken chain of tradition.
- Custom is considered a valid form of law, supplementing scriptural commandments and formal rabbinical legislation. Certain customs are considered universally Jewish. For example, the Orthodox objection to the modern practice of men and women sitting together in non-Orthodox synagogues, although some have attempted to find formal halakhic objections to it, is actually based on the fact that theretofore separation of the sexes in the synagogue was undoubtedly universal Jewish custom. Earlier in the nineteenth century the same invocation of the authority of custom was used to object to the introduction of the organ into synagogues in western Europe, with the additional point that such a practice constituted "walking in the ways of the Gentiles."
- Other customs are considered local and binding only on members of a particular locality. Generally, the rule is that if one is in a different locality from one's own, one should do nothing there to cause any scandal or controversy (Pes. 4.1). The force of the authority of local custom can be seen, especially, in the diversity of liturgical rites among Jews even to this day. These differences of custom to a large extent reflect differences of local environment and the social, political, and economic conditions within the respective Jewish communities. In new localities, where there are Jews from varying backgrounds, the general approach is to attempt to devise a unified rite so that there not be numerous groups (B. T., Yev. 13b). More frequently than not the rites of the more dominant group in the new locality prevail over everyone.
- Custom sometimes takes precedence over established Jewish practice even when it has no foundation in halakhah. Usually this power of custom was used to rescind privileges the halakhah had earlier granted (Elon, 1978, pp. 732ff.). However, sometimes custom even had the power to abrogate, de facto, scriptural law. For example, the law that certain portions of slaughtered animals be given to descendants of Aaronic priests irrespective of time and place was not considered binding because of customary neglect.
The role extrahalakhic factors have played in the development of the halakhah is one of considerable debate among scholars. Aside from the question of the influence of history and general philosophy, which could be seen as extraneous modes of thought, there is the question of the influence of the nonlegal body of rabbinic thought, largely theological, known as aggadah. Generally it was held that one could not decide the law based on aggadah alone. Nevertheless, it can be shown that aggadic factors were influential in formulating halakhic opinions. This becomes evident when the views of the various rabbis, who were both halakhists and aggadists, are examined.
Thus, for example, ʿAqivaʾ, in a discussion of capital punishment, states that had he been a member of the Sanhedrin when capital punishment was practiced, no one would have ever been executed (Mak. 1.10). The Talmud attempts to find a legal basis for this opinion inasmuch as capital punishment is prescribed by scripture for a number of crimes. The halakhic conclusion (written long after the time of ʿAqivaʾ) is that he would have interpreted the laws of evidence so strictly as to make conviction for a crime punishable by death a practical impossibility (B. T., Mak. 7a). However, one can find an aggadic statement, recorded in the name of ʿAqivaʾ himself, that "whoever sheds human blood diminishes the divine image" (Tosefta, Yev. 8.7). Since even a convicted criminal has not forfeited that divine image (Tosefta, San. 9.7), one can see that ʿAqivaʾ had theological objections against any sort of bloodshed. It would seem that his theology was the authentic influence on his halakhic opinion, although subsequent legalists had to find a halakhic reason for it lest the authority of the law be reduced to theological opinion, something that was generally avoided (J. T., Hor. 3.9, 48c).
One can see further evidence of this in the relation between halakhah and Qabbalah (Jewish mystical literature), especially if Qabbalah is taken to be a subsequent development of aggadah. On the one hand, despite the growing popularity in the Middle Ages of the Zohar (the most important qabbalistic text), there were halakhists who regarded it as nonauthoritative, whether or not they approved of its theology. On the other hand, there were legalists who regarded it as divine revelation and ipso facto authoritative. A compromise was reached between these two opinions by David ibn Avi Zimraʾ (1479–1573), who ruled that when the Talmud was inconclusively divided on a certain law, the Zohar could be invoked to decide in favor of one of the Talmudic opinions. However, the Zohar could not be so invoked when the Talmud was conclusive.
Subdivisions of Halakhah
For descriptive purposes it is helpful to see halakhah as divided into the following areas: (1) ritual law, (2) law of familial and personal status, (3) civil law, (4) criminal law, and (5) law pertaining to non-Jews.
Although including inoperative laws pertaining to the Temple cult and most matters of ritual purity, ritual law can be seen today as confined to matters of worship, the Sabbath and festivals, diet, clothing, and sex. In the four-part Shulḥan ʿarukh of Yosef Karo (1488–1575), which has become the most authoritative halakhic code, ritual law is the subject of all of the first part, Oraḥ ḥayyim, and most of the second part, Yoreh deʿah.
One of the most important principles to emerge in the development of ritual halakhah is that in cases where the observance of the law poses a distinct danger to human life, the law is not to be observed. The origins of this seminal principle can be seen as early as the Maccabean revolt against the Seleucid rulers of the Land of Israel (166–164 bce). In that revolt the pietists refused to fight on the Sabbath. This led to their being frequently massacred on the Sabbath by their enemies, who quickly became aware of this restriction. It was argued (1 Mc. 2.39–42) that this insistence on unqualified Sabbath observance would lead to the total extermination of the Jewish people. In the early second century, under similarly oppressive circumstances, the rabbis meeting secretly at Lod ruled that one was to transgress the law rather than die a martyr's death. The only exceptions were if one were ordered on pain of death to practice idolatry overtly, commit murder, or initiate an act of adultery, homosexuality, or bestiality (B. T., San. 74a). All of this was based on the scriptural command "You shall live through them" (Lv. 18:5), which was interpreted to mean "You shall live through them but not die because of them" (Sifraʾ, Aḥarei-mot, 86b). This principle, in one form or another, was invoked on numerous occasions and led to such corollaries as "Danger to life takes precedence over a ritual infraction" (B. T., Ḥul. 10a).
Law of familial and personal status
The law of familial and personal status is the subject of Even haʿezer, the third part of the Shulḥan ʿarukh, and of some sections of Yoreh deʿah, the second part. In this area of halakhah the question that has become the subject of widest discussion and deepest controversy since 1948 is that of who is a Jew.
According to scriptural law it would seem that Jewish identity is patrilineal, as suggested by such statements as "The whole community were registered by the clans of their ancestral houses [le-veit avotam ; lit., 'the houses of their fathers']" (Nm. 1:18; J. T., Qid. 64d). Furthermore, when Ruth the Moabite married the Israelite leader Boaz, without specific mention of any formal conversion, her descendants were automatically considered as following her husband's patrimony (Ru. 4:21–22). Nevertheless, according to the Talmud Jewish identity is considered matrilineal (B. T., Qid. 68b). The origins of this approach can perhaps be seen in the beginnings of the postexilic period (c. 516 bce), when at the urging of Ezra the people banished not only their non-Jewish wives but also "those born of them" (Ezr. 10:3).
Once one is born of a Jewish mother, or he or she has properly converted to Judaism, that status is considered irrevocable (B. T., San. 44a, Yev. 47b). However, the community can revoke various privileges of Jewish status from apostates and other persons as well who have removed themselves from basic Jewish identification and observance.
Marriage and divorce
The subject of the most extensive halakhic structure is marriage and divorce. Marriage originally consisted of two parts. The first part, erusin ("betrothal"), was initiated when the man, with the consent of the woman, designated her as his wife before at least two bona fide witnesses, usually by giving her an article of stipulated value (Qid. 1.1). The woman, however, continued to live with her parents; her father now had joint responsibility for her, along with her husband. After a period of time, usually one year, the bride left her parental home and went to live with the groom (nissuʾin ), and the couple consummated the marriage. The status of the woman was greatly enhanced by the marriage contract (ketubbah ), which provided a considerable payment in the event of her being divorced or widowed (Epstein, 1927).
Divorce required that the husband present his wife with a formal bill of divorce (geṭ ), drawn up at his instigation by a rabbinical court. Although the school of Shammai made adultery the only grounds for divorce, the halakhah followed the more lenient view of the school of Hillel, which made virtually any incompatibility sufficient for divorce to be effected (Giṭ. 9.10). Although the woman herself could not instigate divorce proceedings, she could, nevertheless, when there was clearly sufficient incompatibility, request that a rabbinical court force her husband to grant her a divorce (Ket. 7.10). Indeed, nonfulfillment of the basic husbandly duties of support and regular sexual intercourse obligated a man to do so (Ket. 5.6).
Jewish civil law regulates all areas of life involving property. It is the subject of the greatest discussion in Ḥoshen mishpaṭ, the fourth part of the Shulḥan ʿarukh.
Of all the areas of halakhah, civil law has been the most flexible. The underlying basis of this flexibility is perhaps best expressed in the rabbinic dictum "The Torah cares about property of Israel" (Neg. 12.5). In other words, although there was a consistent commitment to general principles of justice, it was understood that the law, especially in the unstable and diversified area of economics, must be responsive to the needs of the times. This characteristic, it might be added, was limited to the area of civil law, and for this reason one could not apply most of the principles developed there to the more conservative area of ritual law (B. T., Ber. 19b).
Although the halakhah developed its own standards for various commercial activities, the operative principle is "Everything is according to the practice [minhag ] of the locality" (B. M. 7.1). Thus, even conditions contrary to the law of the Torah, which under all other circumstances are null and void, in monetary matters are considered valid if freely agreed upon by both parties to a contract (B. T., Qid. 19b), except where the prohibition of one Jew taking interest from another Jew is involved. However, even here the halakhah eventually evolved a procedure (hetter ʿisqaʾ ) whereby interest could be charged for commercial loans using the legal fiction of designating the creditor as a partner of the debtor in a joint venture (Elon, 1975, pp. 504–505). Furthermore, flexibility in this area of halakhah is evidenced by the fact that in monetary disputes informal arbitration was encouraged in lieu of formal adjudication.
Private property was not considered an absolute right by the halakhah. Although there is an elaborate system of adjudicating claims and counterclaims between private parties in such areas as torts and contracts, the court had the power to declare private property ownerless (hefqer ) if this was in the interest of the common good (B. T., Yev. 89b). It must be added, however, that this principle was used sparingly, and it seems as though for the halakhah a limited free-enterprise system is considered both the norm and the desideratum.
Jewish criminal law, also dealt with in Ḥoshen mishpaṭ, is concerned with capital and corporal punishment. Capital punishment is mandated for such interpersonal acts as murder and adultery as well as for such ritual acts as public violation of the Sabbath. Corporal punishment (lashing) is mandated for various ritual infractions (Mak. 3.1ff.). Most personal injury, however, was treated as a civil tort rather than as a criminal act per se. Thus the scriptural lex talionis ("an eye for an eye," Ex. 21:24) was interpreted by the rabbis as prescribing monetary compensation for the victim rather than the actual mutilation of the perpetrator.
Even after the Roman rulers of the Land of Israel had removed the power of the Jewish courts to administer capital punishment, sometime before 70 ce, the rabbis were sharply divided about its desirability. Although the institution itself, because it was scripturally prescribed, could not be explicitly abrogated, a number of rabbis were obviously opposed to it in practice if not in principle (B. T., San. 71a). This tendency to oppose capital punishment is also seen in the rabbinic institution of hatraʾah, according to which one could not be convicted of a capital crime unless he or she had been explicitly forewarned by the same two witnesses who actually saw the crime and the criminal had explicitly indicated that he or she was aware of both the criminal status of the act to be done and the exact type of capital punishment it entailed (B. T., San. 40b–41a). Such an institution would seem to limit sharply the number of legal executions. Whether hatra'ah was actually practiced when the Jewish courts had the power of capital punishment is questioned by some modern scholars. Nevertheless, it does reflect a definite tendency in rabbinic theory if not in actual practice.
On the other hand, a number of prominent and influential halakhists expressed the view of the second-century sage Shimʿon ben Gamliʾel II that capital punishment is necessary to maintain social order (Mak. 1.10). Indeed, the Talmud is followed by many subsequent authorities in advocating capital punishment even for crimes not specified as capital crimes in the legal sources if the court believed that "the hour required such" in cases of gross public provocation. In the thirteenth century the important halakhist Shelomoh ben Avraham Adret stated that were all the traditional qualifications of capital punishment in the halakhah to be followed, "society would be destroyed." His statement, furthermore, was probably not just theoretical in that it is known that Spanish Jewish communities at that time did have the power to execute criminals (Elon, 1978, p. 9).
The actual practice of Jewish criminal law, and to a large extent Jewish civil law as well, has frequently required the type of political sovereignty that Jews did not have. Thus in the third century the Babylonian authority Shemuʾel of Nehardea formulated the seminal juridical principle that "the law of the kingdom is the law" (B. T., B. B. 54b). This principle was justified in several ways; the most cogent is that the Jewish court has the power to transfer its authority in civil and criminal matters. Historically this relegated all Jewish criminal law and much Jewish civil law to the realm of the theoretical. Thus some medieval authorities seem to have thought that this principle was too radical in that it gave away too much Jewish legal sovereignty. It is still too early for the most part to see if and how Jewish criminal and civil law can be revived in the state of Israel, which, at the present time at least, is constituted as a secular state not subject to the authority of the halakhah except in limited areas (see below).
Law regarding non-Jews
The area of Jewish law pertaining to non-Jews has been called "the seven commandments of the sons of Noah" (Tosefta, ʿA. Z. 8.4). These commandments are (1) the obligation to adjudicate cases according to defined statutes and the prohibitions of (2) blasphemy, (3) idolatry, (4) homicide, (5) adultery, homosexuality, and bestiality, (6) robbery, and (7) eating a limb torn from a living animal. A number of commentators saw these seven commandments as seven general legal categories rather than seven specific norms.
One of the most important historical questions about this area of halakhah is whether or not it was actually enforced among non-Jews. Some scholars consider this highly unlikely inasmuch as no actual case is reported in the rabbinic sources, where these laws were the basis of adjudication, and there do not seem to have been free Gentiles living under Jewish legal jurisdiction in the rabbinic period. Indeed, only in Maimonides' Mishneh Torah (Code of Law), which deals with every area of halakhah, even those no longer (if ever) operative, are the Noahic laws systematically presented and discussed (Kings and Wars 8.10ff.). It is, moreover, important to note that non-Jewish slaves, who were certainly owned by Jews at that time, were subject to a body of law containing many more distinctly Jewish practices and prohibitions than the Noahic laws (B. T., Ḥag. 4a).
Nevertheless, the concept of a law governing non-Jews, which was considered to have been normative for Jews as well before the Sinaitic revelation of the 613 commandments of the Mosaic Torah, had a profound effect on the development of Judaism. In terms of halakhah the Noahic laws were considered to be the minimal normative standards upon which the Mosaic Torah was based. Thus the Talmud in more than one place states that "there is nothing prohibited to non-Jews that is permitted to Jews" (B. T., San. 59a). In another place it states that Jewish law must be stricter lest it appear as "a lower form of sanctity" (B. T., Yev. 22a).
In terms of Jewish-Gentile relations the Noahic prohibition of idolatry became the basis of determining which non-Jewish societies were actually idolatrous and which were merely following "ancestral custom" (B. T., Ḥul. 13b). This distinction had great practical importance in that Jewish dealings with confirmed Gentile idolators were proscribed in many areas, including in various business transactions (ʿA. Z. 1.1). In the Middle Ages the Noahic prohibition of idolatry became the standard for determining the Jewish view, both theoretical and practical, of Christianity and Islam. Islamic monotheism was, of course, much easier to justify on Jewish grounds than were Christian incarnationism and trinitarianism. Indeed, a number of medieval halakhists, usually themselves living under Muslim regimes, considered Christianity a form of idolatry entailing all the Talmudic proscriptions pertaining to idolatry and idolators. However, other legalists, usually living under Christian regimes, drew upon earlier Talmudic distinctions between stricter criteria for Jews than for Gentiles, especially in areas of religious conviction, and so considered Christianity a mediated mono-theism.
In those democratic countries where Jews are full participants, there has been renewed interest in this area of halakhah as a source for determining "the Jewish point of view" on various issues of public concern as widely divergent as abortion, capital punishment, and prayer in American public schools. How pertinent, however, many of these sources are to the areas of public concern to which they have been related, without thorough critical historical and philosophical examination and reinterpretation, is itself a source of great difference of opinion among contemporary Jewish thinkers.
Current Role of Halakhah
Although halakhah is a system of law governing every aspect of personal and communal life, there is no Jewish community in the world today where halakhah is the sole basis of governance. This inherent paradox—namely, a total system of law forced by historical reality to share legal authority with another system of law, if not to be actually subordinate to it—has led to a number of tensions both in the state of Israel and in the Diaspora.
Halakhah in the state of Israel
In the state of Israel, halakhah, as adjudicated by the rabbinical courts, is recognized as the law governing all aspects of public Jewish religious ritual and all areas of marriage and divorce. (The same privilege is extended to the respective systems of law of the various non-Jewish religious communities there.) This political arrangement has led to a number of areas of tension. Thus many secularist Israeli Jews object to having to submit in questions of personal and familial status to the authority of religious courts, whose very religious justification they do not accept. This conflict has manifested itself in the demand by many secularist Israelis for civil marriage and divorce in the state of Israel, something that halakhah rejects as unacceptable for Jews. Even more profound is the fact that there is a conflict between halakhah and Israeli law on the most basic question of Jewish identity, that is, who is a Jew. According to halakhah, anyone born of a Jewish mother or himself or herself converted to Judaism is considered a Jew. According to the Israeli Law of Return (Ḥoq ha-Shevut), any Jew (with the exception of one convicted of a crime in another country) has the right of Israeli domicile and Israeli citizenship. However, in 1962 in a famous decision the Israeli Supreme Court ruled that Oswald Rufeisen, a Jewish convert to Christianity and a Roman Catholic monk, was not entitled to Israeli citizenship as a Jew because in the popular sense of the term he was not a Jew even though he was one in the technical, halakhic sense. On the other hand, in 1968, in another famous decision, the Israeli Supreme Court ruled that the wife and children of an Israeli Jew, Binyamin Shalit, were not to be considered Jews for purposes of Israeli citizenship because they had not been converted to Judaism, even though they identified themselves as Israeli Jews in the secular sense of the term. In this case, unlike the earlier one, the court accepted a halakhic definition of who is a Jew.
At the present time, furthermore, there is considerable debate in the state of Israel and the Diaspora about what actually constitutes valid conversion to Judaism. All Orthodox and most Conservative halakhists have rejected the conversions performed under Reform auspices because in the great majority of such cases the objective halakhic criteria of conversion—circumcision for males and immersion in a ritual bath (miqveh ) for both males and females (B. T., Yev. 47b)—have not been fulfilled. Even the conversions performed under Conservative auspices, although fulfilling these objective criteria, are also rejected by many Orthodox legalists, who claim that Conservative rabbis lack the requisite commitment to halakhah to function as acceptable rabbinical judges. All of this is evidence of the widening division among the branches of contemporary Judaism.
Halakhah in the Diaspora
In the Diaspora, where adherence to halakhah is a matter of individual choice in practically every country that Judaism may be freely practiced, there is little ability to enforce the communal authority inherent in the halakhic system itself. This has led to a number of vexing problems. For example, the Talmud empowers a rabbinical court to force a man to divorce his wife for a variety of objective reasons that make normal married life impossible. When Jewish communities enjoyed relative internal autonomy, such enforcement could be carried out regularly. However, today, because of the loss of such communal autonomy, such enforcement is impossible, and many Jewish women, although already civilly divorced and no longer living with their former husbands, are still considered married according to halakhah and are unable to remarry because of the refusal of their former husbands to comply with the order of a rabbinical court.
This growing problem in societies where mobility and anonymity are facts of life has led to basically three different approaches. Many in the Orthodox community have attempted to resort to legal measures in the civil courts to force compliance with halakhah. In addition to a lack of success heretofore, this has raised, especially in the United States, the constitutional issue of governmental interference in private religious matters. On the other hand, the Conservative movement since 1968 has revived the ancient rabbinical privilege of retroactive annulment (B. T., Giṭ. 33a) in cases where it is impossible to obtain a Jewish divorce from the husband. The Reform movement, not being bound by the authority of halakhah, accepts a civil divorce as sufficient termination of a Jewish marriage. These three widely divergent approaches to a major halakhic problem are further evidence of the growing divisiveness in the Jewish religious community in both the state of Israel and the Diaspora.
Reconstitution of the Sanhedrin
The only chance for effecting any halakhic unanimity among the Jewish people would be the reconstitution of the Sanhedrin in Jerusalem as the universal Jewish legislature and supreme court. This proposal was actually made by the first minister of religious affairs in the state of Israel, Judah Leib Maimon (1875–1962). However, considering the fact that this reconstitution itself presupposes much of the very unanimity it is to effect, it would seem that it is rather utopian, something the Talmud euphemistically called "messianic halakhah " (B. T., Zev. 45a).
Considering the enormous quantity of halakhic literature, it is most unlikely that even a considerable portion of it will ever be translated into English or any other non-Hebrew language. However, some of the classic sources and some excellent secondary sources are available in English translation.
The Mishnah translation most widely used and accepted is that of Herbert Danby (Oxford, 1933). The Babylonian Talmud has been completely translated in the usually adequate Soncino edition (London, 1935–1948). The Palestinian Talmud is now being translated by Jacob Neusner under the title The Talmud of the Land of Israel (Chicago, 1982–); several volumes have already appeared. The Tosefta is also being translated by Neusner (New York, 1977–), and a number of volumes have appeared so far. Most of Maimonides' Mishneh Torah has been published as The Code of Maimonides, 13 vols. (New Haven, Conn., 1949–), in a uniformly excellent translation.
The most comprehensive treatment of halakhic institutions in English is The Principles of Jewish Law, edited by Menachem Elon (Jerusalem, 1975), although more detailed questions are dealt with in Elon's Hebrew work, Ha-mishpaṭ ha-ʿivri, 2d ed. (Jerusalem, 1978). Another helpful work, especially regarding Jewish civil law, is Isaac H. Herzog's The Main Institutions of Jewish Law, 2 vols., 2d ed. (New York, 1965). Still the best treatment of the history of halakhah is Louis Ginzberg's "Law, Codification of" in the Jewish Encyclopedia (New York, 1905). Ginzberg's "The Significance of the Halachah for Jewish History," translated by Arthur Hertzberg in On Jewish Law and Lore (Philadelphia, 1955), is a fascinating but controversial treatment of early halakhah from a socioeconomic point of view. Another important general treatment is the article "Halakhah" by Louis Jacobs and Bert De Vries in Encyclopaedia Judaica (Jerusalem, 1971).
The number of good monographs on halakhic topics in English is steadily growing. One can read and consult with profit the following finely researched and written works: Boaz Cohen's Jewish and Roman Law: A Comparative Study, 2 vols. (New York, 1966); Louis M. Epstein's The Jewish Marriage Contract (1927; reprint, New York, 1973); David M. Feldman's Birth Control in Jewish Law (New York, 1968); Solomon B. Freehof's The Responsa Literature (Philadelphia, 1955); Aaron Kirschenbaum's Self-Incrimination in Jewish Law (New York, 1970); Isaac Klein's A Guide to Jewish Religious Practice (New York, 1979); Leo Landman's Jewish Law in the Diaspora (Philadelphia, 1968); Samuel Mendelsohn's The Criminal Jurisprudence of the Ancient Hebrews (Baltimore, Md., 1891); and my own The Image of the Non-Jew in Judaism (New York, 1983).
The articles in The Jewish Law Annual, vols. 1–4, edited by Bernard S. Jackson (Leiden, 1978–1981), generally represent some of the best critical scholarship on halakhic topics in English today. A good sampling of the current theological debate over the authority and scope of halakhah can be found in a symposium in Judaism 29 (Winter 1980).
David Novak (1987)
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