Halakha

Halakha (; , ; also transliterated as halacha, halakhah, halachah, or halocho; ) is the collective body of Jewish religious laws derived from the written and Oral Torah. Halakha is based on biblical commandments ("mitzvot"), subsequent Talmudic and rabbinic law, and the customs and traditions compiled in the many books such as the "Shulchan Aruch". "Halakha" is often translated as "Jewish law", although a more literal translation might be "the way to behave" or "the way of walking". The word derives from the root that means "to behave" (also "to go" or "to walk"). "Halakha" guides not only religious practices and beliefs, but also numerous aspects of day-to-day life.
Historically, in the Jewish diaspora, "halakha" served many Jewish communities as an enforceable avenue of law – both civil and religious, since no differentiation exists in classical Judaism. Since the Jewish Enlightenment ("Haskalah") and Jewish emancipation, some have come to view the "halakha" as less binding in day-to-day life, as it relies on rabbinic interpretation, as opposed to the authoritative, canonical text recorded in the Hebrew Bible. Under contemporary Israeli law, certain areas of Israeli family and personal status law are under the authority of the rabbinic courts, so are treated according to "halakha". Some differences in "halakha" are found among Ashkenazi Jews, Mizrahi Jews, Sephardi Jews, Yemenite, Ethiopian and other Jewish communities which historically lived in isolation.
Etymology and terminology.
The word "halakha" is derived from the Hebrew root "halakh" – "to walk" or "to go". Taken literally, therefore, "halakha" translates as "the way to walk", rather than "law". The word "halakha" refers to the corpus of rabbinic legal texts, or to the overall system of religious law. The term may also be related to Akkadian , a property tax, rendered in Aramaic as , designating one or several obligations. It may be descended from hypothetical reconstructed Proto-Semitic root "halak-" meaning "to go", which also has descendants in Akkadian, Arabic, Aramaic, and Ugaritic.
"Halakha" is often contrasted with "aggadah" ("the telling"), the diverse corpus of rabbinic exegetical, narrative, philosophical, mystical, and other "non-legal" texts. At the same time, since writers of "halakha" may draw upon the aggadic and even mystical literature, a dynamic interchange occurs between the genres. "Halakha" also does not include the parts of the Torah not related to commandments.
"Halakha" constitutes the practical application of the 613 "mitzvot" ("commandments") in the Torah, as developed through discussion and debate in the classical rabbinic literature, especially the Mishnah and the Talmud (the "Oral Torah"), and as codified in the "Mishneh Torah" and "Shulchan Aruch". Because "halakha" is developed and applied by various halakhic authorities rather than one sole "official voice", different individuals and communities may well have different answers to halakhic questions. With few exceptions, controversies are not settled through authoritative structures because during the Jewish diaspora, Jews lacked a single judicial hierarchy or appellate review process for "halakha".
Commandments (mitzvot).
According to the Talmud ("Tractate Makot"), 613 "mitzvot" are in the Torah, 248 positive ("thou shalt") "mitzvot" and 365 negative ("thou shalt not") "mitzvot", supplemented by seven "mitzvot" legislated by the rabbis of antiquity. Currently, many of the 613 commandments cannot be performed until the building of the Temple in Jerusalem and the universal resettlement of the Jewish people in the Land of Israel by the Messiah. According to one count, only 369 can be kept, meaning that 40% of mitzvot are not possible to perform.
Rabbinic Judaism divides laws into categories:
This division between revealed and rabbinic commandments may influence the importance of a rule, its enforcement and the nature of its ongoing interpretation. Halakhic authorities may disagree on which laws fall into which categories or the circumstances (if any) under which prior rabbinic rulings can be re-examined by contemporary rabbis, but all Halakhic Jews hold that both categories exist and that the first category is immutable, with exceptions only for life-saving and similar emergency circumstances.
A second classical distinction is between the Written Law, laws written in the Hebrew Bible, and the Oral Law, laws which are believed to have been transmitted orally prior to their later compilation in texts such as the Mishnah, Talmud, and rabbinic codes.
Commandments are divided into positive and negative commands, which are treated differently in terms of divine and human punishment. Positive commandments "require" an action to be performed and are considered to bring the performer closer to God. Negative commandments (traditionally 365 in number) "forbid" a specific action, and violations create a distance from God.
A further division is made between "chukim" ("decrees" – laws without obvious explanation, such as "shatnez", the law prohibiting wearing clothing made of mixtures of linen and wool), "mishpatim" ("judgements" – laws with obvious social implications) and "eduyot" ("testimonies" or "commemorations", such as the Shabbat and holidays). Through the ages, various rabbinical authorities have classified some of the 613 commandments in many ways.
A different approach divides the laws into a different set of categories:
Sources and process.
Eras of Jewish law
The development of "halakha" in the period before the Maccabees, which has been described as the formative period in the history of its development, is shrouded in obscurity. Historian Yitzhak Baer argued that there was little pure academic legal activity at this period and that many of the laws originating at this time were produced by a means of neighbourly good conduct rules in a similar way as carried out by Greeks in the age of Solon. For example, the first chapter of "Bava Kamma", contains a formulation of the law of torts worded in the first person.
The boundaries of Jewish law are determined through the Halakhic process, a religious-ethical system of legal reasoning. Rabbis generally base their opinions on the primary sources of "halakha" as well as on precedent set by previous rabbinic opinions. The major sources and genre of "halakha" consulted include:
In antiquity, the "Sanhedrin" functioned essentially as the Supreme Court and legislature (in the US judicial system) for Judaism, and had the power to administer binding law, including both received law and its own rabbinic decrees, on all Jews—rulings of the Sanhedrin became "halakha"; see Oral law. That court ceased to function in its full mode in 40 CE. Today, the authoritative application of Jewish law is left to the local rabbi, and the local rabbinical courts, with only local applicability. In branches of Judaism that follow "halakha", lay individuals make numerous ad-hoc decisions but are regarded as not having authority to decide certain issues definitively.
Since the days of the Sanhedrin, however, no body or authority has been generally regarded as having the authority to create universally recognized precedents. As a result, "halakha" has developed in a somewhat different fashion from Anglo-American legal systems with a Supreme Court able to provide universally accepted precedents. Generally, Halakhic arguments are effectively, yet unofficially, peer-reviewed. When a rabbinic "posek" ("he who makes a statement", "decisor") proposes an additional interpretation of a law, that interpretation may be considered binding for the posek's questioner or immediate community. Depending on the stature of the posek and the quality of the decision, an interpretation may also be gradually accepted by other rabbis and members of other Jewish communities.
Under this system there is a tension between the relevance of earlier and later authorities in constraining Halakhic interpretation and innovation. On the one hand, there is a principle in "halakha" not to overrule a specific law from an earlier era, after it is accepted by the community as a law or vow, unless supported by another, relevant earlier precedent; see list below. On the other hand, another principle recognizes the responsibility and authority of later authorities, and especially the "posek" handling a then-current question. In addition, the "halakha" embodies a wide range of principles that permit judicial discretion and deviation (Ben-Menahem).
Notwithstanding the potential for innovation, rabbis and Jewish communities differ greatly on how they make changes in "halakha". Notably, "poskim" frequently extend the application of a law to new situations, but do not consider such applications as constituting a "change" in "halakha". For example, many Orthodox rulings concerning electricity are derived from rulings concerning fire, as closing an electrical circuit may cause a spark. In contrast, Conservative "poskim" consider that switching on electrical equipment is physically and chemically more like turning on a water tap (which is permissible by "halakha") than lighting a fire (which is not permissible), and therefore permitted on Shabbat. The reformative Judaism in some cases explicitly interprets "halakha" to take into account its view of contemporary society. For instance, most Conservative rabbis extend the application of certain Jewish obligations and permissible activities to women (see below).
Within certain Jewish communities, formal organized bodies do exist. Within Modern Orthodox Judaism, there is no one committee or leader, but Modern US-based Orthodox rabbis generally agree with the views set by consensus by the leaders of the Rabbinical Council of America. Within Conservative Judaism, the Rabbinical Assembly has an official Committee on Jewish Law and Standards.
Note that "takkanot" (plural of "takkanah") in general do not affect or restrict observance of Torah "mitzvot". (Sometimes "takkanah" refers to either "gezeirot" or "takkanot".) However, the Talmud states that in exceptional cases, the Sages had the authority to "uproot matters from the Torah". In Talmudic and classical Halakhic literature, this authority refers to the authority to prohibit some things that would otherwise be Biblically sanctioned ("shev v'al ta'aseh", "thou shall stay seated and not do"). Rabbis may rule that a specific mitzvah from the Torah should not be performed, e. g., blowing the "shofar" on Shabbat, or taking the "lulav and etrog" on Shabbat. These examples of takkanot which may be executed out of caution lest some might otherwise carry the mentioned items between home and the synagogue, thus inadvertently violating a Sabbath "melakha". Another rare and limited form of takkanah involved overriding Torah prohibitions. In some cases, the Sages allowed the temporary violation of a prohibition in order to maintain the Jewish system as a whole. This was part of the basis for Esther's relationship with Ahasuerus (Xeres). For general usage of takkanaot in Jewish history see the article Takkanah. For examples of this being used in Conservative Judaism, see Conservative halakha.
Historical analysis.
The antiquity of the rules can be determined only by the dates of the authorities who quote them; in general, they cannot safely be declared older than the tanna ("repeater") to whom they are first ascribed. It is certain, however, that the seven middot ("measurements", and referring to [good] behavior) of Hillel and the thirteen of Ishmael are earlier than the time of Hillel himself, who was the first to transmit them.
The Talmud gives no information concerning the origin of the middot, although the Geonim ("Sages") regarded them as Sinaitic (Law given to Moses at Sinai). The Artscroll Series writes in its Overview to the book of Ezra:
"During the Mishnaitic and Talmudic periods, the Sages of Israel... took the eternal tools of exegesis and used them to reveal the secrets that had always been locked within the words of the Torah, secrets that Moses had taught Israel and that, in turn, had been transmitted orally for over a thousand years until the oral tradition began to crumble due to persecution and a lack of diligence. They did nothing new and certainly made no changes in the Torah; they merely made use of hermeneutic principles that had not been need while the tradition of study was still at its zenith." (pg. xii-xiii)
The middot seem to have been first laid down as abstract rules by the teachers of Hillel, though they were not immediately recognized by all as valid and binding. Different schools interpreted and modified them, restricted or expanded them, in various ways. Rabbi Akiva and rabbi Ishmael and their scholars especially contributed to the development or establishment of these rules. "It must be borne in mind, however, that neither Hillel, Ishmael, nor [a contemporary of theirs named] Eliezer ben Jose sought to give a complete enumeration of the rules of interpretation current in his day, but that they omitted from their collections many rules which were then followed."
Akiva devoted his attention particularly to the grammatical and exegetical rules, while Ishmael developed the logical. The rules laid down by one school were frequently rejected by another because the principles that guided them in their respective formulations were essentially different. According to Akiva, the divine language of the Torah is distinguished from the speech of men by the fact that in the former no word or sound is superfluous.
Some scholars have observed a similarity between these rabbinic rules of interpretation and the hermeneutics of ancient Hellenistic culture. For example, Saul Lieberman argues that the names of rabbi Ishmael's "middot" (e. g., "kal vahomer", a combination of the archaic form of the word for "straw" and the word for "clay" – "straw and clay", referring to the obvious [means of making a mud brick]) are Hebrew translations of Greek terms, although the methods of those "middot" are not Greek in origin.
Views today.
Orthodox Judaism holds that "halakha" is the divine law as laid out in the Torah (five books of Moses), rabbinical laws, rabbinical decrees, and customs combined. The rabbis, who made many additions and interpretations of Jewish Law, did so only in accordance with regulations they believe were given for this purpose to Moses on Mount Sinai, see . See Orthodox Judaism, Beliefs about Jewish law and tradition.
Conservative Judaism holds that "halakha" is normative and binding, and is developed as a partnership between people and God based on Sinaitic Torah. While there are a wide variety of Conservative views, a common belief is that "halakha" is, and has always been, an evolving process subject to interpretation by rabbis in every time period. See Conservative Judaism, Beliefs.
Reconstructionist Judaism holds that halakha is normative and binding, while also believing that it is an evolving concept and that the traditional halakhic system is incapable of producing a code of conduct that is meaningful for, and acceptable to, the vast majority of contemporary Jews. Reconstructionist founder Mordecai Kaplan believed that "Jewish life [is] meaningless without Jewish law.", and one of the planks of the Society for the Jewish Renascence, of which Kaplan was one of the founders, stated: "We accept the halakha, which is rooted in the Talmud, as the norm of Jewish life, availing ourselves, at the same time, of the method implicit therein to interpret and develop the body of Jewish Law in accordance with the actual conditions and spiritual needs of modern life."
Reform Judaism holds that modern views of how the Torah and rabbinic law developed imply that the body of rabbinic Jewish law is no longer normative (seen as binding) on Jews today. Those in the "traditionalist" wing believe that the "halakha" represents a personal starting-point, holding that each Jew is obligated to interpret the Torah, Talmud and other Jewish works for themselves, and this interpretation will create separate commandments for each person. Those in the liberal and classical wings of Reform believe that in this day and era, most Jewish religious rituals are no longer necessary, and many hold that following most Jewish laws is actually counter-productive. They propose that Judaism has entered a phase of ethical monotheism, and that the laws of Judaism are only remnants of an earlier stage of religious evolution, and need not be followed. This is considered wrong, and even heretical, by Orthodox and Conservative Judaism.
Humanistic Jews value the Torah as a historical, political, and sociological text written by their ancestors. They do not believe "that every word of the Torah is true, or even morally correct, just because the Torah is old". The Torah is both disagreed with and questioned. Humanistic Jews believe that the entire Jewish experience, and not only the Torah, should be studied as a source for Jewish behavior and ethical values.
Jews believe that gentiles are bound by a subset of "halakha" called the Seven Laws of Noah, also referred to as the Noahide Laws. They are a set of imperatives which, according to the Talmud, were given by God to the "children of Noah" – that is, all of humanity.
Flexibility.
Despite its internal rigidity, "halakha" has a degree of flexibility in finding solutions to modern problems that are not explicitly mentioned in the Torah. From the very beginnings of Rabbinic Judaism, halakhic inquiry allowed for a "sense of continuity between past and present, a self-evident trust that their pattern of life and belief now conformed to the sacred patterns and beliefs presented by scripture and tradition". According to an analysis by Jewish scholar Jeffrey Rubenstein of Michael Berger's book "Rabbinic Authority", the authority that rabbis hold "derives not from the institutional or personal authority of the sages but from a "communal" decision to recognize that authority, much as a community recognizes a certain judicial system to resolve its disputes and interpret its laws." Given this covenental relationship, rabbis are charged with connecting their contemporary community with the traditions and precedents of the past.
When presented with contemporary issues, rabbis go through a halakhic process to find an answer. The classical approach has permitted new rulings regarding modern technology. For example, some of these rulings guide Jewish observers about the proper use of electricity on the Sabbath and holidays. Often, as to the applicability of the law in any given situation, the proviso is to "consult your local rabbi or posek". This notion lends rabbis a certain degree of local authority; however, for more complex questions the issue is passed onto higher rabbis who will then issue a "teshuvot", which is a "responsa" that is binding. Indeed, rabbis will continuously issue different opinions and will constantly review each other's work so as to maintain the truest sense of "halakha". Overall, this process allows rabbis to maintain connection of traditional Jewish law to modern life. Of course, the degree of flexibility depends on the sect of Judaism, with Reform being the most flexible, Conservative somewhat in the middle, and Orthodox being much more stringent and rigid. Modern critics, however, have charged that with the rise of movements that challenge the "divine" authority of "halakha", traditional Jews have greater reluctance to change, not only the laws themselves but also other customs and habits, than traditional Rabbinical Judaism did prior to the advent of Reform in the 19th century.
Denominational approaches.
Orthodox Judaism.
Orthodox Jews believe that "halakha" is a religious system whose core represents the revealed will of God. Although Orthodox Judaism acknowledges that rabbis have made many decisions and decrees regarding Jewish Law where the written Torah itself is nonspecific, they did so only in accordance with regulations received by Moses on Mount Sinai (see ). These regulations were transmitted orally until shortly after the destruction of the Second Temple. They were then recorded in the Mishnah, and explained in the Talmud and commentaries throughout history up until the present day. Orthodox Judaism believes that subsequent interpretations have been derived with the utmost accuracy and care. The most widely accepted codes of Jewish law are known as Mishneh Torah and the "Shulchan Aruch".
Orthodox Judaism has a range of opinions on the circumstances and extent to which change is permissible. Haredi Jews generally hold that even "minhagim" (customs) must be retained, and existing precedents cannot be reconsidered. Modern Orthodox authorities are more inclined to permit limited changes in customs and some reconsideration of precedent.
Conservative Judaism.
The view held by Conservative Judaism is that the Torah is not the word of God in a literal sense. However, the Torah is still held as mankind's record of its understanding of God's revelation, and thus still has divine authority. Therefore, "halakha" is still seen as binding. Conservative Jews use modern methods of historical study to learn how Jewish law has changed over time, and are, in some cases, willing to change Jewish law in the present.
A key practical difference between Conservative and Orthodox approaches is that Conservative Judaism holds that its rabbinical body's powers are not limited to reconsidering later precedents based on earlier sources, but the Committee on Jewish Law and Standards (CJLS) is empowered to override Biblical and Taanitic prohibitions by "takkanah" (decree) when perceived to be inconsistent with modern requirements or views of ethics. The CJLS has used this power on a number of occasions, most famously in the "driving teshuva", which says that if someone is unable to walk to any synagogue on the Sabbath, and their commitment to observance is so loose that not attending synagogue may lead them to drop it altogether, their rabbi may give them a dispensation to drive there and back; and more recently in its decision prohibiting the taking of evidence on "mamzer" status on the grounds that implementing such a status is immoral. The CJLS has also held that the Talmudic concept of "Kavod HaBriyot" permits lifting rabbinic decrees (as distinct from carving narrow exceptions) on grounds of human dignity, and used this principle in a December 2006 opinion lifting all rabbinic prohibitions on homosexual conduct (the opinion held that only male-male anal sex was forbidden by the Bible and that this remained prohibited). Conservative Judaism also made a number of changes to the role of women in Judaism including counting women in a minyan, permitting women to chant from the Torah, and ordaining women as rabbis.
The Conservative approach to halachic interpretation can be seen in the CJLS's acceptance of Rabbi Elie Kaplan Spitz's responsum decreeing the biblical category of "mamzer" as "inoperative." The CJLS adopted the responsum's view that the "morality which we learn through the larger, unfolding narrative of our tradition" informs the application of Mosaic law. The responsum cited several examples of how the rabbinic sages declined to enforce punishments explicitly mandated by Torah law. The examples include the trial of the accused adulteress ("sotah"), the "law of breaking the neck of the heifer," and the application of the death penalty for the "rebellious child." Kaplan Spitz argues that the punishment of the "mamzer" has been effectively inoperative for nearly two thousand years due to deliberate rabbinic inaction. Further he suggested that the rabbis have long regarded the punishment declared by the Torah as immoral, and came to the conclusion that no court should agree to hear testimony on "mamzerut".
Codes of Jewish law.
The most important codifications of Jewish law include: