Tag Archives: Halakhah

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When Observant People Perceive Themselves as Not Observing Something…

I’m always intrigued when individuals or groups of people who are meticulously observant of some law system – particularly Halakhah – perceive themselves as not observing something even though they understand it to be the law. They are quite observant in general and they acknowledge that the particular practice is the law, but they just but just don’t do that practice. Often, I find that if these people are really listened to and empowered with legal language, they turn out to possess some insight into that law. It’s not that they randomly disregard it; it’s that they intuit that the law is being misinterpreted or misapplied, that it shouldn’t actually be understood as the law, and that if the halls of interpretational power had better-constructed avenues of access, such that more diverse vantage points and experiences were represented, communal perception of Halakhah would be much different.

Aryeh Bernstein, “Seclusion, Intimacy, and Power: Taking the Laws of Yichud Seriously”, Jewschool (18 August 2013) {http://jewschool.com/2013/08/18/30760/seclusion-intimacy-and-power-taking-the-laws-of-yichud-seriously/}

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Jewish law is justificatory, often revealing its own raison d’être

Jewish law is justificatory, often revealing its own raison d’être, Apodictic Mishnah, on the other hand, constitutes a deviation from this overall trend of vindicatory law. It runs counter to Jewish apperception, which favors laws that justify themselves, either logically or scripturally. No wonder Mishnaic form was relatively short-lived, lasting only about 130 years. Mishnaic form initially emerged as a response to the particular political and religious conditions that prevailed in Palestine during the period following the destruction of the Temple. During the second century, it was supported and upheld by the Patriarchate, particularly by R. Judah Hanassi. After his death (ca. 220-221), Mishnaic form was gradually abandoned, and the Jewish apperception for justificatory law prevailed.

David Weiss Halivni, Midrash, Mishnah, and Gemara: The Jewish Predilection for Justified Law (Cambridge, MA & London, UK: Harvard University Press, 1986), 4.

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The differences between takkanot and gezerot

The institutional nature of the Halakhah found its expression int he terms which are used to refer to it in the earliest sources at our disposal. The halakhot from the period of the Pairs (Zugot) and the early tanna’im are referred to as gezerot and takkanot. The only difference between them is that the latter were regulations intended to correct a situation in a positive manner whereas the gezerah is prohibitive and restrictive. The gezerah is identical to the seyag (fence) in the aphorism attributed to the Men of the Great Assembly, “Make a seyag around the Torah.” There is nothing new in a gezerah, it just places a protective fence, so to speak, around a Torah commandment in order to “keep people from transgressing it” (Berakhot 1:1).
The takkanah, on the other hand, initiates something new and thus it corrects an aberration which has developed.

Ephraim E. Urbach, The Halakhah: Its Sources and Development, trans. Raphael Posner (Ramat Gan: Massada; Jerusalem: Yad la-Talmud, 1986), 7.

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The term Halakhah

The term Halakhah does not occur in the Bible; it is found only in tannaitic and amoraic literature and not even in other literary sources of the Second Temple period. In its form, Halakhah is an Aramaic noun and the verb (halak = “to walk” or “to go”) from which it is derived, serves in its various forms, to denote a person who observes the Lord’s Torah and fulfils its commandments. Thus, one “walks” not only in “the ways of the Lord” (Exodus 18:20), but also “in His statutes” (Leviticus 26:3), “in His judgments” (Ezekiel 37:24) and “in His Torah” (Exodus 16:4). Walking is parallel to observing. Just as one walks along known roads but the act of walking also lays new paths, so too, although one observes the commandments in established ways, the act of observance itself creates new forms.
The definition given by Nathan b. Jehiel of Rome, the 11th century author of the Talmudic dictionary, Arukh, which describes Halakhah as “something which came from ancient days and [will last] to the end [of time], or [alternatively] something according to which Israel goes,” accurately reflects the double meaning of the term: 1. A tradition followed throughout generations, and 2. A way accepted by the people as a whole. This definition also implies that the Halakhah is not explicit in the Bible and that, unlike the Biblical commandments, its source is not in direct revelation. The term, nevertheless, does carry the connotation of authority which is in no way inferior to that of the commandments of the Torah itself. Indeed, the parameters of the Biblical commandments – such as the place and time of their observance and who is obliged to perform them – are fixed by the Halakhah.

Ephraim E. Urbach, The Halakhah: Its Sources and Development, trans. Raphael Posner (Ramat Gan: Massada; Jerusalem: Yad la-Talmud, 1986), 2-3.