Halacha: Divine or human?
Is halacha, Jewish law, Divine or human? Or is it an amalgam of both elements? This is a fundamental question for understanding Judaism, which is, after all, a religion of law, not merely of theology, of action, not just of faith. Law plays a crucially important role in Judaism that cannot be ignored without distorting the Jewish faith. To ignore halacha is to misconstrue Judaism.But what is the nature of halacha? Interestingly, the sages seemed to believe that halacha is a process, an unfolding of laws. Moreover, there is a parallel process of expounding the law that proceeds in heaven and on earth. God and His celestial Beit Din study, debate, interpret and vote on legal rulings simultaneously with the terrestrial courts and academies. An unusual midrash in the name of Rabbi Yehudah states that "not a single day goes by in which the Holy One, blessed be He, does not pass new halacha in the celestial Beit Din, for it says in Job 37:2, `Hearken well to His thundering voice, to the rumbling that comes from His mouth.'" (Genesis Rabbah 49:2) Doubtless, this is the inspiration for the statement of the eminent Kabbalist, Rabbi Isaiah Horowitz (Shelah, died 1630) that "the Holy One, blessed be He, gave the Torah and gives it at every moment; the flowing fountain never ceases."
So we know that the sages viewed Torah as an evolving process with God Himself actively involved in its renewal. What place in the process do we humans occupy?
One school of thought, championed by Rabbi Akiva, insisted that all is in heaven; that everything was given at Sinai. Some partisans of this approach insist, in what Abraham Joshua Heschel dubbed "a theological exaggeration," that the entire corpus of the oral law, including every future decision of the sages, was revealed to Moses. (Berachot 5a and parallels) Furthermore, Mar Samuel asserted, that 3,000 halachot given at Sinai were forgotten during the mourning for Moses, and it is our task to try to discover those lost laws. (Temurah 16a) Rabbi Eliezer ben Hyrcanus was the great exponent of this position. His legal rulings were either based on traditions from ancestors and previous scholars or else were conveyed to him from heaven via supernatural channels. The famous debate over the purity of a certain type of stove highlights the difference between Rabbi Eliezer and his colleagues. He ruled that an Achnai stove is ritually pure while his colleagues demurred and declared it impure. (Bava Metzia 59b):
"If the halacha is according to my view, let the carob tree prove it." And the carob tree was uprooted and moved 400 cubits. Said the sages, "We don't bring proof from a carob tree." If the halacha is according to my view, let this stream of water flow backwards." And the stream flowed backwards. Said the sages, "We don't bring proof from a stream of water." "If the halacha is according to my view, let the walls of the academy prove it." And the walls of the academy inclined as if to fall. He persisted and said, "If the law is according to my view, let Heaven prove it." Whereupon a Bat Kol (echo of a Divine voice) issued from heaven proclaiming, "Why do you challenge Rabbi Eliezer? The law always follows his views." Said Rabbi Joshua ben Hananiah, "It is not in heaven." (Deut. 30:12) Said Rabbi Jeremiah, "The Torah has already been given at Sinai; hence, we pay no attention to a Bat Kol, for You have written in Your Torah at Sinai, `Follow the majority.'" (Exodus 23:2)
Clearly, Rabbi Eliezer was relying on his learning and prestige plus a few miracles and Divine intervention against the majority of the sages. But as the great Polish commentator Rabbi Samuel Edels (Maharsha, died 1631) notes: "This shows that the power of the majority supersedes a Bat Kol because the Torah was not given to angels in heaven."
Another well-known tale on the issue of human versus Divine prerogatives in halacha is found in the Talmud Eruvin 13b, again in the name of Mar Samuel:
For three years Beit Shammai and Beit Hillel debated. Beit Shammai said, "The halacha is according to us." Beit Hillel said, "The halacha is according to us." A Bat Kol came forth from heaven and proclaimed, "Both these and those are the words of the living God, but the halacha is according to Beit Hillel."
This famous tale, which, as Professor Avi Sagi notes, conceals more than it reveals, seems to reinforce the notion that, whereas humans may debate halachic rulings, the final arbiter is God in heaven. This approach denigrates the role of human beings: humans may neither create, nor change, nor reinterpret the law. At best, they may only discover or recover the original, concealed halachot via pilpul (debates, dialectic), and offer chiddushim, novel interpretations and insights.
The second school of thought, championed by Rabbi Yishmael, denied that all was given at Sinai. Indeed, only general principles were revealed to Moses; the rest was filled in by succeeding generations of scholars. (Chagigah 6a and parallels) Consequently, the role of humans in the halachic process is affirmed and strengthened. After all, even in the Talmudic controversy about the stove, cited above, we are informed that "the law is not in heaven" any longer, or, as Professor Menachem Fisch puts it," [I]t is beyond the reach of heaven." Several aggadic texts, some of which display legendary or mythic qualifies, buttress this view.
Said Rabbi Yanai: "Were the Torah given cut-and dried, it would not have a leg to stand on." Said Moses: "Master of the universe, teach me the halacha." God said to him, "Follow the majority. If the majority rules `innocent,' he is innocent. If the majority rules `guilty,' he is guilty. In this way, the Torah may be interpreted 49 ways to rule impure and 49 ways to rule pure."(Yer. Sanhedrin IV, 2, 22a)
Clearly God expects humans to debate all sides of issues in arriving at a conclusion by majority vote. Not only that, but we are told that God affirms and confirms decisions arrived at by human courts and ratifies them on high. So we read in the Talmud (Makkot 23b and Megillah 7a) on the verse in Esther 9:27: "[T]he Jews undertook and irrevocably obligated themselves" to observe Purim and that "three laws passed by Israel were confirmed in the heavenly Beit Din." The three laws are the reading of the Megillah of Esther, greeting persons using God's name or a divine epithet such as "shalom," and imposing tithes on the Levites to be given to the priests. In short, "they confirmed on high what was accepted below."
The same principle applies in setting the calendar: Heaven approves of human decisions on halachic matters. The sages insisted that the Torah conferred on them the authority to proclaim which day is prohibited and which day is permitted, which labor is prohibited and which labor is permitted. (Chagigah 18a) And they went even further in strengthening rabbinic prerogatives:
If the Beit Din ruled to move Rosh Hashanah to the next day, at once the Holy One, blessed be He, says to the angels, "Remove the bimah ... because My children have ruled to move Rosh Hashanah to the next day, as it says, `For it is a law for Israel, a ruling of the God of Jacob.' If it is not a law for Israel, so to speak, it is not a ruling for the God of Jacob.... " (Yer. Rosh Hashanah I, 3, 57b)
In other words, God originated the core of the law but now it is up to us humans to continue the process of explication and interpretation. God merely confirms or assents to human actions.
This view of human involvement in the legal process is found in a quaint aggadah in Gittin 6b:
The sages disagreed in the interpretation of the verse in Judges 19:2, "Once his concubine played the harlot." Rabbi Aviatar said that the husband found a fly in his food. Rabbi Jonathan said he found a pubic hair in his food. Rabbi Aviatar came across Elijah and asked him, "What is the Holy One, blessed be He, doing?" He replied, "He is discussing the question of the concubine in Gibea." "And what does He say?" Elijah responded, "My son Aviatar says such-and such and my son Jonathan says such-and-such." Said Aviatar, "Can there possibly be uncertainty in the mind of the Holy One?" Elijah replied, "Both answers are the words of the living God."
In an even bolder legend, God and His Beit Din are depicted as turning to humans for help in deciding the law. This is the tale found in Bava Metzia 86a:
They were debating in the heavenly academy the rule of a skin lesion. If the scab precedes the white hair, it is unclean; if the white hair precedes the lesion, it is clean. (Leviticus 13:1-3) But what if we are unsure which came first? The Holy One, blessed be He, ruled "pure," but the members of the heavenly academy ruled "impure." They wondered, "Who will decide the issue? Only Rabbah bar Nachman who is a great expert in skin lesions and the laws of impurities." They sent the angel of death to summon him, but as Rabbah was engrossed in Torah study, he could not kill him. The angel then caused a wind to blow so that the leaves rustled mightily. Rabbah thought that a cavalry troop was approaching. He stopped studying and exclaimed, "Better that I should die than fall into the hands of the government." And he died proclaiming, "Pure, pure" [thereby upholding God's opinion].
This aggadah is clear evidence that at least some sages believed that God Himself as well as His celestial academy turn to human beings for halachic rulings, and the authority of the sages supersedes even God's.
That halacha is not stagnant or frozen, and that we humans have a role to play in its growth and development is clearly the point of one famous text that comes down firmly on the side of human creativity in the halachic process. I refer to the legend in Menachot 29b, a tale that reveals more than it conceals. Its purpose was clearly to indicate the methodology of Rabbi Akiva in expounding the written Torah by which each jot and tittle on the letters is built into great structures. Instead, we learn much about how we humans create and expand God's Torah. Rabbi Yehudah quotes the tale in the name of Rav:
When Moses went on high, he found the Holy One, blessed be He, sitting and tying crowns on the letters of the Torah. He asked God, "Who prevented You from writing whatever You wanted [Rashi: that You have to add additional crowns]? He replied to Moses: "There is a certain man named Akiva ben Joseph who, after many generations in the future, will interpret every single jot and tittle of the letters and build mounds of halachot." Moses replied: "Master of the universe, show him to me." He said, "Turn back to the future." Upon doing so, Moses found himself in the academy of Rabbi Akiva, so he sat at the end of the eighth row. He did not understand a single word of the discussion, and he felt faint. They reached a certain matter in the discussion, and one of the pupils challenged Rabbi Akiva, "Rabbi, how do you know this is the law?" Rabbi Akiva responded, "It is a halacha given to Moses at Mount Sinai." And Moses' strength returned to him [Rashi: since Rabbi Akiva quoted him by name even though he had not yet received this legal ruling of Torah].
This unusual legend teaches some very profoundly crucial lessons. First, as Rashi observed, we see from the text that contrary to Rabbi Akiva's viewpoint, Moses had not received all of the Torah at Sinai. Second, we learn that the law develops and grows; it is not static or frozen. Third, each human being is free to explore and expand the Torah. Fourth, the Torah is clearly broader than the written text; its boundaries are set by human inquiry. Finally, human beings are God's partners in fashioning halacha.
It is apparent from these sources I've marshaled that the majority of the sages seem to have endorsed Rabbi Yishmael's understanding of the halacha, by which humans are invested with the authority to flesh out the basic Sinaitic principles. Indeed, it seems to be God's will -- or challenge to us -- that we humans continue the task He inaugurated. Let us remember the tale of the Achnai stove, which I cited earlier and which ends with God laughingly proclaiming, "My children have defeated Met" God wanted us to uncover and reveal, explain and elucidate, interpret and reinterpret, expand and amplify, improve and renew His essential Torah. An early medieval midrash (Seder Eliyahu Rabbah II, p. 172) offers an analogy of Torah and raw materials. It states that when God gave us the Torah it was like wheat and flax. Just as it is up to us humans to convert them into bread and cloth, so must we refine and enhance the basic teachings of Torah.
Am I reading too much into these texts? Have I distorted their true meaning? I think not, and I have assembled some later commentaries to prove the point.
Rabbi Yom Tov ben Abraham Isbili (Ritva, Spain, 13th14thcenturies) replied to a query about rabbinic authority from French rabbis by indicating that God had shown Moses 49 different possibilities to permit or prohibit a matter but He indicated that "the prerogative will be handed over to the sages of Israel in every generation to rule according to their discretion." His younger colleague, Rabbi Nissim Gerondi (Ran, Spain, 14th century), considered it God's will that the wise men, not the prophets of each generation reveal the halacha. In one of his sermons, he notes that the Talmud had indicated that after the destruction of the Temple, prophecy was taken from the prophets and given to the sages. (Bava Batra 12b) Consequently, "the power of deciding such matters has been transmitted to the scholars of the generations, and their consensus is what God has commanded." Rabbi Joseph Albo (Spain, 15th century), the last of the great Spanish theologians, subscribed to the position of Rabbi Yishmael and argued that only "general principles were given orally to Moses at Sinai, briefly alluded to in the Torah, by means of which the wise men of every generation may work out the details as new issues develop."
Shifting to Poland, I cite the great legalist, Rabbi Solomon Luria (16th century), who interpreted the phrase, "both these and those are the words of the living God," as follows:
It is as if each sage received his ruling from God or from Moses even though no such thing was ever uttered by Moses .... Therefore, the Torah transmitted the authority to the sages of each generation, each according to his intellect, to enhance and add to the teachings with the approbation of Heaven.
Rabbi Samuel Edels adopted a bolder view of the human role in shaping halacha. He interpreted the verse from Isaiah 42:21, "that he may magnify and glorify [His] Torah," in a strikingly original way:
You must not consider it wicked in God's sight for humans to add from their own intellect laws and prohibitions to those written in the Torah given by God .... The Holy One, Blessed be He, wants us to glorify and strengthen that which we increase so that it might be even more glorious and strong than the body of the Torah of the Holy One .... And lest you argue, "Who appointed puny humans to make themselves partners of God who gave us the Torah and mitzvot by adding a new Torah and mitzvot?" To this God responds by citing the verse, as if to say, `Just the opposite! The Holy One wants this to happen .... "
I turn to a modern giant of Jewish learning, Rabbi Baruch Epstein (Russia, died 1942), who discusses this matter in several places in his renowned commentary on the Pentateuch, Torah Temimah. He notes the view of Rabbi Yehoshua ben Levi in the Talmud, who agrees with Rabbi Yishmael that "every future teaching of great scholars has already been given to Moses at Sinai," but he interprets it in quite a different way. He suggests that only the principles (ikkarim) of the laws were given; the ultimate decisions will be arrived at by students through their analytical powers and ability to fashion rules based on those principles. But his statement is not to suggest that the actual pilpulim were conveyed to Moses, "as the narrow-minded have endeavored to prove in their interpretations of the Talmud, thereby undermining the effects of human striving and struggles in the Talmudic debates." Elsewhere, he proposes that the text, "by the hand of Moses" (Numbers 4:37) should be linked to the verse, "it is not in heaven" (Deuteronomy 31:2), indicating that "it is in human hands to resolve all doubts that accompany specific laws."
In short, it is the will of God that we humans abet the unfolding process of interpreting and elucidating the Torah begun at Sinai, for the Torah must be interpreted and reinterpreted in every generation, in every land, in the light of new and changing circumstances. Just as we are God's partners in completing the creation of the world (Shabbat 119b), so are we His partners in continuing the evolving understanding of Torah and halacha, of teaching and law. As Rabbi Joseph B. Soloveitchik put it, we humans are God's partners and a reflection of God the Creator as we seek novel interpretations of the law, for the "goal of the halacha is uniting the creative force in man with the Creative Force of the universe." Professor David Weiss Halivni describes our role as "active partners in the creative process."
This understanding of halacha as an ongoing process bestows on us both an honor and a challenge. It certainly is an honor to be viewed as a partner of the Divinity in shaping halacha. But it is also a challenge to remain faithful to God's mandate to cultivate, invigorate, and reinterpret the halacha.
Judaism without halacha is no longer Judaism; it is an anarchical system of several loosely held beliefs. How can there be a Jewish religion if individual autonomy is the rule so that chaos reigns? As the eminent Reform rabbi and scholar, W. Gunther Plaut, complained, "...our people lack a Jewish lifestyle .... To defend the emptiness of their lives they shout, `Freedom!' but they mean hejkerut, license to carry on with as little as possible, or at best, with what is convenient." Yet another renowned Reform leader and thinker, Rabbi Arnold J. Wolf, formulated the problem differently when he wrote, "Accordingly, the Reform movement will suggest or even instruct its adherents what political measures to support, while hardly requiring any ritual obedience, except for converts .... But there is no coherent standard for changing Jewish law except the spirit of the times, an epoch that is hardly worthy of emulation."
Conversely, Judaism with a frozen halacha is an anachronism and irrelevant-- a betrayal of the dynamism that has always shaped it, as the sources I have selected clearly indicate. Let us recall that the word "halacha" means going, walking; it implies movement, process, activity --not stasis. Additionally, the noun is feminine (even as the word Torah is feminine), implying fecundity and growth. The very nature of halacha is to grow and reproduce and multiply. "The law must be stable but it cannot stand still," wrote Justice Benjamin Cardozo. And Professor Louis Ginzberg urged that "immutability must not be confounded with immobility." It is intolerable that the plight of the agunah, the woman unable to receive a get (Jewish divorce) because the husband is either missing or recalcitrant, has not been properly addressed or resolved in the Orthodox community. It is even more galling, knowing that the remedies exist within the parameters of halacha. For example, there are five cases in the Babylonian Talmud of annulment of marriages w a procedure invoked on any number of occasions by the great adjudicator of the last century, Rabbi Moshe Feinstein. Yet, when Rabbi Emanuel Rackman and a handful of courageous colleagues invoke these remedies, they are pilloried and shunned for their heroic efforts.
Our faith is a tree of life; it has flourished and foliated in the past because we were bold and audacious in accepting the Divine mandate to serve as God's partners in creating new insights into Torah. When Jews were slaughtered by Greeks because they would not take up arms on the Sabbath, the sages reinterpreted the halacha and conceived of the category of pikuach nefesh -- saving a human life supersedes all the mitzvot including Shabbat. When the Torah's prohibition against any person "arising from his place" grew so onerous and strangling as to destroy the pleasure of Shabbat, they eased the halacha to allow movement as far as 2000 cubits. When economic pressures and the refusal to grant loans to the needy became unbearable, the sages circumvented the Biblical prohibition against usury and conceived of a variety of legal loan instruments. That is how they kept halacha alive; that is how they preserved Judaism as a living entity.
So the question with which I began this essay can now be answered: "Halacha: Divine or Human?" The answer is: both. God, the source of Torah and halacha, entrusted to us mortals the sacred task of partnering with Him in exalting and glorifying Torah and mitzvot, in bringing all beneath the wings of the Shechinah, the Divine Presence. Whether or not we are up to the challenge may well determine the future of Judaism.
GILBERT S. ROSENTHAL, a rabbi, is executive director of the National Council of Synagogues. His latest book is Contemporary Judaism (Human Sciences Press).
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| Title Annotation: | interpretation and Judaic law |
|---|---|
| Author: | Rosenthal, Gilbert S. |
| Publication: | Midstream |
| Date: | Feb 1, 2002 |
| Words: | 3675 |
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