Tuesday, October 19, 2004

Halacha, Minhag, and change

Baynonim posted last week about minhag and Simchat Torah. Shira Salamone(On the Fringe) has been posting about why women cant have aliyot, and today, I found R. Simcha's comment section on Hirhurim overflowing with debate on the minhag/Halacha of wearing hats(the lack of derech eretz is unbelievable). Of course, I need to put my 2 agorot in(not sure it is shave pruta, you get to decide.) The following is borrowed, but reflects my approach. With many apologies to the author for the paraphrasing.

Halacha is fully authoritative for Jews, and is subject to change. One can easily show that the phenomenon of Halacha has not been the same in every age, so one cannot deny change by any reference to experience. The question is, not whether Halacha changes, but what that change is judged to be.

Fundamentalists assert that change is secondary in a deductive sense, namely that the general priciples of Halacha remain constant, and the particular applications change in the course of ruling for a new situation arising in history. Thus, all change qua subsequent application is potentially within the system already. Is this judgement of the deductive character of all halachic change correct?

In looking at how the laws relating to women being exempt from time bound mitzvot(shofar in particular) It appears that in most cases of halachic reasoning, a process of selective prioritization(of principles) precedes the actual deduction of a particular ruling and is presupposed by it. This process of selective prioritization applies any time a difficult new cases calls for the emplyment of more than one principle.

Furthermore, even after the completion of the Talmud, when Halachic principles were supposed to have been premanently set, new factors were introduced into Halacha, which changed the meaning of these principles, for example, Rashi and Rabbenu Tam allowing women to make a bracha on mitvot sh'hazman grama. Also, the rules set down in the Talmud and in the post Talmudic sources are selective, for example, it was admitted that Shammai and R. Meir had more logically compelling arguements on the whole, but we pasken by Hillel and R. Yehudah.

The denial of any change other than deductive application is assumed to be dogma, based on the Rambam. He states "all the commandments were given to Moshe at Sinai along with their interpretations., quoting Shemot "And I will give to you tablets of stone, and the Torah and the commandments. Torah means the written Torah, haMitzvah means the Oral Torah..even though the Oral Torah was not written down. Moshe...taught all of it in his court to the elders."

This quote from Rambam paraphrases the gemara in Brachot "R. Levi bar Hama... said Torah means Scripture, haMitzvah means Mishnah, le-horatam means gemara."

Rambam left out gemara. In another part of of Mishnei Torah, he defines gemara as "understanding and discerning the end of a matter from its beginning, and deriving one thing from another, and comparing one thing and another... and how one lears the forbidden and the permitted and similar things from revealed tradition. "

A clear distinction between the actual data of revelation and the various methods for understanding it and practically applying it. Elsewhere, Rambam criticizes the bracha ha-melamed Torah l'amo yisrael" because, "God does not teach it to us, but commanded us to study it and teach it. "

Thus, for Rambam, revelation includes Written Torah, and those prescriptions of the Oral TOrah refered back to Moshe because no other historical source can be found for them. The whole process of interpretation, including judgement and generalizations, is not revealed, but the ongoing work of reasoned human input. Therefore, it is the fundamental data, and not the general principles of Jewish law which must be taken to be unchanging and unchangeable.

However, the authority of Halacha cannot be maintained if the principle of change is elevated from descriptive to prescriptive, as some liberals would like to do. Although one cannot deny the factual observation of halachic change, one can ceertainly dispute the assertion that change is a halachic value. Because Halacha has changed does not mandate any further changes, unless there is an explicit intersystemic reason for such change. One can not cite any halachic source where cahnge is mandated or defended. However, there are many examples where the rabbis regarded change as a necessary, lamentable evil, rather than an exemplary good.

The burden of proof is on those who advocate change. It is they who have to show convincingly that the changes advocated are required, lest more radical changes come about willy-nilly, for example Hillel and the prosbul.

Change as itself normative is objectionable philisophically as well. To affirm a changeable source of authority is to affirm the ontological absurdity of an infinite regress. Even change requires at least one unchanging point of reference. Worse, to affirm a changeable source of authority is to commit the moral outrage of making those who change the law the final authorities. To do this is to affirm the principle of tyranny, namely, the most powerful will now make the law based on their own interersts and opinions.. Thus, if Halacha is to remain law, the unchanging element must be primary, and the changing element must be secondary. If not, then either there will be no objective source of authority in Jewish religious life, or the authority of Halacha will be preempted by something else. That something else is usually presented as "ethics."

If ethics is to be prior to Halacha, but one cant find a source for it in classic Jewish sources, then such ethics must come from outside Judaism itself. Then Judaism becomes epiphenomenal, reducible to something external. Judaism is elitist, particularistic, and heternomous, and cannot be justified on ethical grounds.

How about ethics from Aggadah? The Aggadists themselves affirmed the normative priority of Halacha.

All too often, what is meant by "ethics" is nothing more than the currently popular opinions held in the community, at which point ethics becomes sociology.


One point shared by the fundamentalist and liberal community is confusion of the unchangeable core of Halacha with the most immediately manifest behavior of the community in customary usage(minhag). They differ in that the liberals look for standards more lenient than classical Halacha, and the fundamentalist seem to look for standards stricter than classical Halacha. In both communities, sociological ideology seems all too often to be the norm. If the law is always according to the latest authorities(halacha k'batra'i) then halacha is always what is manifest here and now. This principle(by no means the view of all halachists) explains the power of gedolim. They reflect and enforce the current state of opinion in the community.

A more historically oriented approach to Halacha sees minhag as part of a changing and changeable process of understand and particular application of the primary prescriptions of the Written and Oral Torahs as commandments. For this reason, the very commitment of the authority of the Halacha should stimulate us in our enterprises of textual and historical criticism, to see beneath thecustomary usage, and discover its historical contingency. This is especially important today when customary usage can be seen at times as impeding the operation and intent of the primary prescriptiosn of the Orah and Written Torahs.

The halachic process stands between the revelation of Sinai and the full redemption in the days of the Mashiach. Affirmation of revelation means that the Halacha is in substance the commandments of God as men and women attempt to fulfill them. Change then, is called for when the status quo prevents us from doing a mitzvah as fully and devotedly as we might. This often calls not only for new practical appications, but for new theories as well. The substance is everlasting, the form changes. TO EQUATE THE STATUS QUO, WHICH IS CUSTOMARY USAGE, WITH THE COMMANDMENTS THEMSELVES IS TO DEIFY MINHAG. This is Theologically unjustifiable.

Our incomplete doing of the commandments of God is not only because we are lazy or obstinate. It is also because the world in which we live is not the kingdom of God, and social survival often requires compromises which are necessary, but not desired. Our recognition of this is not a cause for triumphalist rejoicing, but a sober recognition of the as yet unredeemed character of this world. Halacha is a self contained system, but is not self-sufficient existentially. Without the affirmation of mediated revelation, we reduce Halacha to minhag, and ill prepare our people for their confrontation with western culture. Faith must be more than antiquarianism. Revelation presents a source of authirity which transcends the minhag of any generation. However, without the affirmation of messianic redemtion, we become utopians, convinced that with our halachic ingenuity, we can solve our human problems with human solutions.

I deliberately did not give the author, as I did not want the message to be influenced by the perceptions of the writer. I am sure some of you know, and I would not be surprised if it shows up in the comments section. However, if it doesnt, and you want the source, please email me: dilmadilbert@yahoo.com

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