On this page, we present essays profound or timely culled from the CLAL literary archive. Most of the articles that appear here appeared originally in the pages of Sh'ma A Journal of Jewish Responsibility, which was founded by Eugene Borowitz in 1970 and published by CLAL from 1994-1998.
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Shma 13/258, September 30, 1983 )
Halachah and History: Separate Realms
By Louis Jacobs
the traditional halachah has been a dynamic and
developing or static and unchanging system is not a halachic
but a historical question, to be investigated by the standard employed in scholarly
research. These methods, originating in the
19th century, were not available to the great halachists
of the pre-modern era. The result has been
(it is to this, I take it, which Singer wishes to draw our attention) that the halachists proceed as if the halachah were an exact science, its practitioners
untainted by any subjective or external considerations.
While recognizing this, the historian is also fully aware that, whatever the halachists say about their work, they are not disembodied spirits operating with bloodless abstractions, but are influenced, consciously or unconsciously, by life's realities in the concrete situations in which they find themselves. To give one example among many, ostensibly the halachic debate over the means of circumventing the prohibition of agricultural labor during the sabbatical year in Eretz Yisrael (the Land of Israel) is of exactly the same order, say, as a question about whether a chicken with a particular defect is kosher. Yet it is obvious that the real motivation on both sides was theological. Rav Kook, who advanced halachic reasons for permitting the sale of the land to a non-Jew for the purpose, [felt] the need to come up with a conclusion that would not frustrate his Zionist aspirations; his opponents [arrived] at their conclusion because they were convinced it was more important to have the most cogent demonstration of Jewish faith and trust in God than to encourage the struggling settlers.
Kook knew that only the permissive ruling was acceptable if his vision was to be realized. His opponents had a very different vision, one
that demanded a strict ruling. To be sure,
each side presented sound halachic arguments,
but it was not the arguments which led to the conclusions; it was the conclusion which led
to the arguments.
Value Judgments And Halachah
For historically minded, observant Jews, faithful to the halachah as the most distinctive feature of Judaism, the implications are shattering. If the halachists of the past were not only concerned with what the law is but with what it should be, if they were not only academic lawyers but also practical legislators, why should the process be called to a halt because present day halachists are hostile to historical investigation? If the halachists did base their rulings on what the law should be, on values other than that of pure legal theory, why must contemporary halachists be inhibited from reinterpreting the law when it no longer serves those values or where values have changed? It will not do to reply that value judgments must never be introduced into the halachic process. For one thing, such a statement is itself a value judgment and, for another, history has shown that pan-Halachism, as Heschel felicitously dubbed this attitude, was not adopted by the halachists themselves.
As long as fundamentalism reigns, as it does, at least on the surface, in halachically committed circles, there is no hope of a solution. Modern critical investigation is not in itself incompatible with devotion to the halachah. On the contrary, once the dynamism of the traditional halachah is uncovered, it becomes a powerful tool for the preservation of the halachah, exhibiting as it does the flexibility and capacity for adaptation without which the halachah would have become fossilized. The possibility and desirability of change, where change is needed, is then not seen as a sop to modernity, but as an integral part of the halachic tradition. The issue is a theological one. It amounts to whether or not the human role in revelation is acknowledged. When the advocates of change and the upholders of the dogma of changelessness argue for their respective viewpoints, it is this that ultimately they are arguing about.
Separate Domains For Rabbis And Scholars
Rabbi Meir Berlin tells, in his autobiography, of a young would-be rabbi who asked Reb Chayim Brisker to what a rabbi should direct his efforts. "Let him busy himself in communal activities," replied Reb Chayim. "As for paskenen shaales (rendering decisions in Jewish law), he should leave that to the Rabbonim!" Many of the yarmulka-wearing scholars, to whom Singer refers, evidently hold that scholarship is for the academics alone and of no relevance to halachic decision-making. That must be left to the rabbis. The rabbis, in turn, leave scholarship to the academics, whose work can be tolerated provided it does not dare to encroach on their domain. There is little evidence of any forthcoming rapprochement. Until there is, it is somewhat futile to speak of changes in the halachah. Singer rightly hints at the need for Jews who observe the halachah, but cannot accept the fundamentalistic premises on which it is now based, to declare openly where they stand. If they do, they may discover to their surprise that their fears that it will lead to halachic anarchy are unfounded and, who knows, it may even happen that the halachists will be moved to admit: "This is what we believed all along!"
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