A Journey to Halacha or Within Halacha – On a Journey to Halacha
A journey 'towards Halacha', or: a journey 'within Halacha'.
(Review of the book 'Journey to Halacha: Interdisciplinary Studies in the World of Jewish Law', edited by Amichai Berholz, Yedioth Ahronoth and Beit Morasha, Tel Aviv 2003)
The book 'Journey to Halacha' is a collection of articles that address Jewish law from a variety of angles and perspectives. The book's goal, as the editor writes in its introduction, is to try to help interested parties with varying levels of familiarity with the world of halachic law to understand the nature of halachic law, learn how it relates to the world and itself, and how it deals with various challenges from within and without.
As a result of this trend, the book, as the title suggests, combines introductory articles with analytical articles. The book is 576 pages long (including notes at the end)[1] and is certainly not easy to navigate, even for someone familiar with the subject. However, as the editor writes in his introduction, each reader can choose the path of the 'journey' as they wish, and it is not necessary to go through all the articles, each of which stands on its own merits.
The book is divided into four main sections:[2] 1. Portrait of Halacha – which deals with the space in which Halacha operates and its conceptual infrastructure. 2. Beit Midrash and Life – which deals with the dialectical relationship between written Halacha and the world, or ‘life’. 3. Philosophy and Halacha Research – which deals with the theology of Halacha and meta-Halachic questions. 4. Challenges of Halacha – which deals with contemporary questions (conversion, state, attitude towards women).
I will preface my remarks with three apologies:
· First, proportion. In what follows, I will naturally elaborate more on the book's shortcomings, but this does not overshadow its importance and vitality, and the great positive aspects it contains. Overall, this is definitely a fascinating book, containing various and varied angles on the subject, and is highly recommended for anyone interested in the world of Halacha.
· When discussing topics that are missing from the book, one must take into account the limitation of the book's length, and the fact that it is not possible to cover all issues related to halakha in a single book. Nevertheless, to the best of my knowledge, the selection and relationship between the topics in the book do not always reflect their essential importance.[3]
· The large scope of the book does not allow for a detailed discussion of the content of the articles published in it, and therefore I will concentrate my remarks mainly on general points. Finally, I will try to address more concretely a small sample of a few specific, but typical, points from two articles that appear in the book.
As many have already noted, the response to the 'Jewish bookcase,' both in the context of various Jewish books being published and in the context of new study centers opening every day, is only partial. By that I mean that it is characterized mainly by an interest in the non-halakhic parts of Judaism.
There are several reasons for this: non-halakhic sources are generally more accessible to the contemporary reader, who is usually distrustful of the language, literature, method, and way of thinking of halakhic law. In addition, non-halakhic sources seem more relevant to a learner who is not obligated to observe halakhic law. They are more open to interpretation, and therefore allow more diverse learners to find an appropriate path for themselves in the Jewish world. Finally, halakhic law is the field most disconnected from the world of a secular person, as it presupposes an uncompromising commitment to it (despite Shai A. Wesner's article in the book, which ostensibly offers a slightly different approach to the issue of commitment to halakhic law. See below for more on this). Such a commitment, in addition to being unacceptable to non-observant interested parties, is often also incomprehensible to them.[4]
However, as the late Yeshayahu Leibowitz[5] used to point out, at least on an empirical level, it can be stated without a doubt that the most basic infrastructure of Judaism, and of the entire Torah, is Halacha and the commitment to it. The classification of various schools throughout history has been done almost exclusively in light of their relationship to Halacha. While in relation to philosophy and other areas of Judaism it can be stated that there is considerable openness to different approaches, this is not the case with regard to Halacha (at least with regard to the principled commitment. Of course, there are many disputes in the areas of Halacha as well). The additional layers (such as morality, the Bible and its interpretation, thought, and more), precisely because of their flexibility noted above, cannot create a framework that is tight enough to define and establish a Jewish (Orthodox) identity.
Therefore, there is a real void in the modern paths of return to Judaism, which usually find themselves cut off from that basic Jewish infrastructure. The return to the 'Jewish bookcase' cannot be a return to Judaism itself, unless it includes some reference to halakhah. Therefore, it must be said in advance that a book that aims to broaden the modern student's acquaintance with the halakhic world is certainly timely.
Precisely because of all of the above, one might have expected that greater emphasis would be placed on dealing with the halakha itself, and on its methods of conduct, for example by demonstrating how the halakha deals with various (not necessarily topical) issues. One good example of this is Rabbi Benny Lau's article, which describes the halakhic progression of a 'new' prohibition, while addressing topical problems that have arisen in this area.
Also, I lacked a reference to the relationship between halakhic formalism and the reasons for the mitzvot and the laws and their interpretation (there are comments on this in Rabbi Brandes' article, mainly at the end). An article on the tricks in halakhic law, for example, could present this area from an important halakhic angle. This issue is the one that underlies most of the dilemmas that halakhic law faces today (and has always faced). It is true that Menachem Friedman's (instructive!) article hides behind it (without addressing it directly) a certain aspect of this matter, in the context of halakhic lessons. However, the article does not deal with the question of formalism per se, and therefore it cannot constitute a significant window into familiarity with the (very important) meaning of halakhic formalism.
Friedman's article also presents a fascinating dilemma between considerations of tradition and calculation based on practical considerations, in which calculation has the upper hand. It presents an analysis that is primarily sociological (the 'new' public that emerged in the Land of Israel is cut off from the tradition of its ancestors, and therefore was willing to accept innovations that contradict tradition), and not necessarily halakhic, of the process by which the 'Chazon Ish lesson' triumphs over the lesson of Rabbi Chaim Na'eh. To the best of my knowledge, for every such sociological description, there is a parallel, essential level, and it is important to address it as well. This is a characteristic phenomenon of a research approach that focuses on the context, and not on the essence itself. We will see more of this later.
Beyond all this, the problem presented in the article is very acute, and certainly real. However, precisely because of the criticism, sometimes covert and sometimes overt, the reader who is trying to become acquainted with the field is sorely lacking a systematic presentation of the traditional position (which usually concentrates on substance rather than sociology). It is not reasonable to make an initial acquaintance with any field through criticism of it.
When editing a book of this type, the system faces several strategies. It is possible to map the subject in question a priori, and ask different authors for articles in the various fields according to the map that has been drawn. The price of such an approach is that the quality and nature of the articles that will be received is not under the control of the system. On the other hand, to solve this problem, it is possible to collect existing articles that have already been published on other platforms, and which can be selected according to their quality. Of course, this approach also has a price, and it is the limitation of the topics of discussion to fields in which relevant and high-quality articles exist. Some topics will not be discussed, due to the lack of relevant articles that deal with them.
The decision, which I think was wise, of the book's editor was to combine new articles with existing articles (such as those by Blidstein, Avi Sagi, and others), some of which are being processed for publication in the current collection (such as the articles by Shai Wesner, Rabbi Sherlow, and Menachem Friedman). However, precisely because of this blessed approach, the absence of several fundamental topics from the book is unjustified.
Furthermore, I do not know whether the topics of the new articles were invited, or whether only the authors were invited, and the topics were given to them to choose. It seems clear that the second option is the correct one, if only because of the absence of several fundamental topics, and the appearance of several more specific discussions. If this is indeed the case, then there is a terrible failure to utilize the potential inherent in the aforementioned editorial decision, since there are several very fundamental topics that are not covered in the book.
Beyond what has been said above, I have been missing an article that directly addresses the question of the relationship between Halacha and other legal systems. Many articles address this question from various angles, but very few of them deal with it directly. It is very important to explain why it is not always correct to compare ordinary legal references with Halachaic references. This point seems to be at the heart of many misunderstandings that may trouble a modern student in his initial encounters with Halacha.
The book also lacks references to other fundamental issues, such as halacha and morality, the significance of disputes in halacha, the significance of halacha rulings (topics that have recently received several extensive treatments), halacha customs, and more, and the relationship of these issues to various ideas of pluralism and openness, or to the flexibility of halacha ('if the rabbis organize something, they can do whatever they want anyway' - in this context, see Hagai Ben Artzi's article in the book) and the like.
Further to what was mentioned above, the book is sorely lacking in classical rabbinical references (both old and new) to the fields discussed in it. Even from the rabbinical wing of the writers (three out of nineteen!!!), no one represents the 'hard core' of rabbinical Orthodoxy (certainly not the Haredi, which is completely absent from it). Without any intention of belittling or offending any of them, familiarity with any field should begin with familiarity with the mainstream and traditional stream of those who deal with it. As stated above, it is clear that the editors invited the writers to contribute to the collection from their own pens, and precisely in light of this, there was certainly room for more variety in this respect.
To the best of my understanding, all the writers in the book (including the rabbinical section), despite certain differences between them, all belong to a relatively narrow segment of halakhic Judaism, and all are characterized by a modern approach, to one degree or another, to halakhic law. One would expect such a volume to have a more complete distribution of references to halakhic law. A very prominent derivative of this fact is, for example, the choice of the issues with which halakhic law deals, as reflected in the articles in the fourth section. As is known, modern Orthodoxy is mainly interested in the issues of modernity, the status of women, the state, etc., and these are indeed the issues that appear in the fourth section, while halakhic law itself faces many additional challenges. Rabbi Sharlo (himself one of the writers in the book) addressed this point in his article in issue 7 of Akademut.
Another general comment. The title of the book speaks of 'interdisciplinary' studies in halacha, but I think it would be more accurate to call them 'multidisciplinary' studies. Halacha is examined in the book from several angles, but I did not find any references in it that truly combine several fields in a significant way, or draw conclusions that combining the fields has real added value for them. Incidentally, even in completely different contexts, there has been a continuous process of belittling the concept of 'interdisciplinary' in recent years, and this is not the place for it.
As mentioned, the scope of the book and the topics discussed therein is very large, and therefore it is very difficult to address in this framework in more detail the content of the articles. However, since our sages have already said: 'It is impossible to be exempt from anything', we will conclude the review with a concise reference to a few specific points that arise in two articles. These points will reflect some of the general comments mentioned above. Furthermore, as I will note below, these points are typical in broader contexts (in the book, and outside of it).
1. Shai A. Wesner's article offers a new approach to situations in which there is a conflict between another normative system and the halakhah. He proposes a polynormative approach (which is committed to several normative systems simultaneously). His main argument is that the halakhah does not express the full range of considerations on various issues. According to his proposal, it is possible that the conclusion of the halakhic discussion will be one, but we choose to proceed differently, and this for extra-halakhic considerations.
Wesner offers his position in contrast to the traditional approaches that attempt to perceive all decisions as being made within the realm of halakhic law, and from halakhic considerations. This article is of great importance, as it reflects, in my opinion, very common positions in modern Orthodoxy, even though not all who hold them are aware of their full significance.
There is a certain ambiguity in Wesner's words, as it is not clear whether he means to say that the normative systems that correspond to halakha do not at all reflect the will of God, and yet every Jew (and person) must act in this way, or whether he means to say that the will of God is not fully expressed in halakha, and that there are additional types of norms that also express His will.
If his intention is interpreted in the first way, then this is a position that is completely unacceptable from any point of view. This is a certain type of dualistic view, which I believe would not be acceptable to any of the halakhic scholars, including all those he himself cites in the article. To suggest that every Jew become a dualist is, of course, a possible suggestion, and not even a new one, but this is not, in any sense, a presentation of a possible aspect of halakhic Judaism. Furthermore, if we return to the general thrust of the book, this is certainly not a position from which to begin an acquaintance with halakhic Judaism and its commitment to halakhic law.[6]
On the other hand, if his intention is to say that moral and other principles, which are external to halakha, can express the will of God in parallel with halakha, it seems that there is no innovation in this, and this time also within the system of halakha Judaism. While it is important to bring this to the attention of readers who want to become acquainted with halakha, there is no conceptual innovation here, as his words in the article imply.
The vision of the Ish, for example, which is one of the faithful representatives of the Haredi halakhah scholars of the previous generation, speaks of the 'fifth part' of the Shulchan Aruch. In the Talmud itself, and certainly in the poskim, there are references (Wozner himself mentions them in his article) that shape laws according to considerations such as: 'its ways [=of the Torah] are the ways of pleasantness,' meaning that some behavior is not upright and moral, and therefore cannot be accepted as the will of God, and the law must be taught in a different way. There are many more examples of such principles (as mentioned, some of them are cited in the article itself), and there is no room here to list them all.
It is debatable whether these statements, by the 'Chazon Yish' and/or the Talmudic sages, belong to the realm of halakhic law, that is, whether they recommend non-halakhic decision-making, or whether they simply expand the realms of halakhic law itself. However, this discussion is purely semantic, and has no substantive significance. In any case, it is clear that their intention is to say that these considerations also reflect the will of God.
I would also like to note that a systematic discussion of the relationship between morality and halacha, and a systematic discussion that would deal with the connection and differences between other legal systems and halacha, if they were presented in the book, could certainly clarify these ambiguous points, as well as the degree of innovation, legitimacy, and relevance, of Wosner's proposal, as well as in other contexts.
2. Avi Sagi is one of the most prominent scholars of halakhah today, and certainly one of the most prolific. He has impressive analytical ability, and therefore it is of particular interest to discuss his own article. Sagi's article, which appears in the collection before us, deals with the question of whether the halakhic process creates the halakhah or reveals them (and the one who created them is God Himself). There are several striking methodological features in his discussion, and they are typical of many analyses he conducts elsewhere as well.
The first of these is typical of his other essays, and of other scholars: from an a priori analysis (even if it is not always presented in the body of the article) the entire range of possibilities that can be raised in relation to the issue at hand is extracted. The essays themselves are mainly concerned with placing the various thinkers on the resulting tree of possibilities.
As a result of this trend, which is very typical of Jewish scholars and people of modern (and postmodern) Orthodoxy in general, the analysis is often biased and tendentious. It is important to understand that the trend is not necessarily towards a particular niche. This is a different kind of tendentiousness: anti-trendy tendentiousness. This is a trend to show that every square in the a priori graph is occupied by someone (and usually there is no reference to the halakhic-gothic status of the thinker in question). As a result, the conclusion that all options are acceptable in the world of Jewish law and thought is seemingly inevitable, and from this it is easy to conclude that there is no problem in adopting any of them we wish. This is pluralism at its best, and if it comes from the study of Judaism, then it certainly characterizes it, and is even required of those who follow its paths ('its paths are the paths of pleasure,' as we recall).
This is a common method of halakhic reformers. Instead of attacking traditional positions, one can show the opposite: these positions are indeed possible, but their opposite is also possible. This is a clear aspect of the existing connection between pluralism and postmodernism.
In contrast, in the classical approach, the one that is more prevalent in the yeshiva world (which, as mentioned, is almost completely absent from the book), there is a tendency to bring the different positions closer together. It should be noted that it is usually not that difficult to do this, and in my personal opinion it usually also yields a more reasonable result. In the language of halakhah, some call this: 'Those who do not make more disputes than necessary [= do not make more disputes than necessary]', and in philosophical language, one can rely here on a certain version of William of Occam's razor principle (that one does not make more assumptions than necessary).
If we return to Sagi's analysis, his claim (contrary to Shalom Rosenberg's approach) is that the Rambam does not support a model of exposure but rather of creation. However, as will become clear to anyone who examines the details of the matter, no evidence for this is presented in the Rambam's words. Sagi shows, at most, that the Rambam does not view halakha as a logical-deductive process (which is a trivial claim, of course).
It seems that at this point Sagi errs in a common mistake that identifies exposure with deduction (see, for example, the end of Section 3 of Chapter 1, and many others). In other words: his question of whether Halacha is a process of exposure or of discovery is not the same as the question of whether the Halacha procedure is deductive or not (analogical, or inductive).[7]
However, as can easily be seen, there can certainly be processes of analogy and induction that do not create the conclusion but rather reveal it. For example, in the process of scientific research we use induction to generalize particular phenomena that we observe, but it is certainly possible (and even correct) to refer to the general law discovered in such ways as a law that describes nature itself. For example, even if I have not seen all the frogs, my inductive conclusion that they are all green is a conclusion about the world. That is, this conclusion is in the nature of a revelation of an existing truth, and not the creation of a new truth.
In the same way, in the Bible and in the various sources of halakhic law, we can use analogical and inductive methods of interpretation, and yet treat our conclusions as an exposition of what is found in the text itself. It is possible that this point is at the heart of the well-known disagreement between Maimonides and the Ramban on the second root (mentioned in the article), and therefore it is possible that in Maimonides' own opinion these things can be said, but this is certainly not a necessary identity (the Ramban, for example, undoubtedly did not believe so).[8]
The second characteristic concerns another shortcoming of research analysis, which is certainly related to the previous one. Often, a more careful analysis reveals that the research questions at hand are fictitious, or almost fictitious. I believe this is true, for example, with regard to the dilemma of A'Thifron (which is also very dear to Sagi, and is discussed in several of his works), and this is not the place to discuss it. We saw another example of this above in the discussion of Wesner's article.
The dilemma presented here also seems largely imaginary. The sharp distinction between creation and revelation can become blurred if one distinguishes between the will of God, which was explicitly given to Moses our Master at Sinai, and the principled will of God. It is certainly possible that God did not actually give Moses all the laws at Sinai, but he certainly prepared for them, and perhaps Moses could even have understood this from the things that were given to him. Therefore, even in the model of revelation, we do not necessarily reveal what was given to us at Sinai, but our conclusions can certainly still be a revelation of God's will, and not necessarily a creation out of nothing. As we saw in the previous comment, methodology is a process of creation, but the conclusion that arises from it is revealed, and not necessarily created, in this process.
It seems to me that almost everyone who has written anything on this issue can be brought under the wing of such a view. I would also like to note that the fact that the questions are imaginary is merely another expression of the previous comment, that the disputes are not as polar as various scholars tend to present them. In many cases, it is certainly possible to present an almost uniform position among the various thinkers.
The third characteristic, and this is also a very typical point of a research approach, is the dichotomy of the question presented. It is not clear to me why some of the halakhic activity cannot be seen as revealing, and other parts of it as creative activity. The question discussed in Sagi's article is presented in a sweeping manner, and I see no justification for this. Even if there is one, it seems to me that it is not presented in the article.[9]
As mentioned, it would be possible to balance these forms of reference, which are so dominant in the book, a little more in one of two ways: 1. By diversifying the writers, and bringing traditional-classical halakhic positions alongside the research ones. 2. By a comparative discussion of these two methods themselves (see Aviad Stollman's article in the book, which deals with certain aspects of this comparative research, and the articles in Akademot 9).
Despite the points of criticism, it is important to return to proportion. The journey into Halacha undertaken in this book is a fascinating and varied one, and it touches on several central issues in Halacha thought. While it is not possible to include everything in one book, it is possible that if the book had incorporated several more journey routes 'within Halacha', in addition to the routes 'towards it', it could have been more complete. In any case, it is highly recommended that everyone join at least part of the journey.
[1] Printing the notes at the end, especially in a book that is a collection of separate articles, is an editorial decision that makes it very difficult for readers who are knowledgeable about Hebrew, who are as interested in the notes as they are in the articles themselves (and sometimes much more so).
[2] The division of the articles between the various sections was not always clear to me. For example, Rosenk's article, on Halacha and Agga, belongs mainly to the first section. Another example is Hellinger's article, on Modern Halacha and Democracy, which belongs more to the last section, and so on.
[3] It might have been better to present the interested reader with a book that focused on specific areas of halakha only, rather than the somewhat eclectic collection in the book. This would have allowed for a more systematic discussion and would have enabled the topics discussed to be covered in greater depth.
[4] On this matter, it is recommended to read the article by Yaakov Yehoshua Ross, 'Why is there an obligation to obey the commandments of God, the Blessed One', in the collection Between Religion and Morality, Daniel Statman and Avi Sagi (eds.), published by Bar-Ilan University. And for comparison, in the book by Chaim Ganz, Obedience and Refusal, Kibbutz Hameuchad.
[5] It should be noted that Yeshayahu Leibovitz, whom I am certainly one of his admirers, is discussed disproportionately in the book, in my opinion. See the articles by Hanna Kasher and Moshe Hellinger that deal directly with him, and several other articles that refer to him. This is a prominent characteristic of the reference group to which most of the writers in the book belong. See more on this below.
[6] The above article by Ross seems to me much more relevant, despite the criticism I also have of it.
[7] In contrast to the 'actualist' view, as Zeev Bahler calls it in his book Three Copernican Revolutions, in the philosophy of science, which errs in a similar error, and deconstruction in criticism and interpretation, which also errs in a different version of the same error.
This topic will be discussed in detail in the second part of my trilogy, Two Carts and a Hot Air Balloon, which is due to be published in Israel soon.
[8] Halbertal interpreted Maimonides' opinion in this way, from his well-known sentence in Shoresh 2, in which he describes the qualities that the Torah requires that derive laws from the Bible 'like branches emerging from the roots.' See my article on this in issue 15 of the Torah journal Tzohar. No such reasoning appears in Sagi's article.
[9] Although Sagi comments on this in his note 4, this point is also important throughout the discussion itself.