HALAKHAH


DEFINITION

The word "halakhah" (from the root halakh, "to go"), the legal side of Judaism (as distinct from aggadah, the name given to the nonlegal material, particularly of the rabbinic literature), embraces personal, social, national, and international relationships, and all the other practices and observances of Judaism. In the Bible the good life is frequently spoken of as a way in which men are "to go," e.g., "and shalt show them the way wherein they are to go and the work that they must do" (Ex. 18:20). Originally the term halakhah (pl. halakhot) had the meaning of the particular law or decision in a given instance, as in the frequent expression "this is a law given to Moses on Sinai" (*Halakhah le-Moshe mi-Sinai). This usage persisted, but side by side with it there developed the use of halakhah as a generic term for the whole legal system of Judaism, embracing all the detailed laws and observances. For instance, the Talmud (Shab. 138b) comments on "the word of the Lord" (Amos 8:12) that this means the halakhah.

The study of the halakhah in the rabbinic period and beyond it became the supreme religious duty. Because of its difficult subject matter and its importance for practical Judaism this study took precedence over that of any other aspect of Jewish teaching. Typical is the rabbinic saying that after the destruction of the Temple, God has nothing else in His world than the four cubits of the halakhah (Ber. 8a). The superiority of halakhic study over aggadic was expressed in the parable of the two merchants, one selling precious stones, the other small ware. Only the connoisseur comes to buy from the former (Sot. 40a).

The general assumption in the classical Jewish sources is that the halakhah in its entirety goes back to Moses, except for various later elaborations, extensions, applications, and innovations in accordance with new circumstances. Thus Maimonides (Yad, intro.) counts 40 generations backward from R. Ashi, the traditional editor of the Babylonian Talmud, to Moses and concludes: "In the two Talmuds and the Tosefta, the Sifra and the Sifrei, in all these are explained the permitted and the forbidden, the clean and the unclean, the liabilities and lack of liability, the unfit and the fit, as handed down from person to person from the mouth of Moses our teacher at Sinai." But the verdict of modern scholarship is that the halakhah has had a history and that it is possible to trace the stages in its development with a considerable degree of success (see below).

[Louis Jacobs]

DOGMATICS OF THE HALAKHAH

Sources of Authority

Like other legal systems, the halakhah is composed of different elements, not all of equal value, since some are regarded as of Sinaitic origin and others of rabbinical. Five sources can be differentiated:

THE WRITTEN LAW

According to the traditional concept of halakhic Judaism, the Written Law is not a collection of legal, religious, ethical statutes and the like deriving from separate sources, but a law uniform in nature and content and a revelation of the will of God – a revelation that was a single non-recurring historical event (at Sinai). This law is considered to be a book of commandments, positive and negative, numbering 613 (see *Commandments, the 613).

STATEMENTS HANDED DOWN BY TRADITION (KABBALAH)

On the verse "These are the commandments" (Lev. 27:34), the Sifra (Be-Ḥukkotai, 13:7) comments, "Henceforth no prophet may make innovations." Thus such commandments or injunctions the source of which is in the words of the prophets or the Hagiographa (referred to as Kabbalah) are generally regarded as of Sinaitic force, on the assumption that the prophets receivedthem as an interpretation or as a halakhah given to Moses at Sinai. Thus, e.g., it is inferred from Jeremiah 32:44; "and subscribe the deeds, and seal them, and call witnesses," that the signature by witnesses to a document is a Sinaitic law (Git. 36a). At times, however, the amoraim conclude that the verse is to be regarded as a mere support (*asmakhta), and the matter does not come within the definition of Torah law. An ambivalent attitude on their part toward traditional statements can be discerned; there is even in the Babylonian Talmud a rule: inferences concerning statements of the Torah may not be drawn from statements contained in Kabbalah (Ḥag. 10b; BK 2b; Nid. 23a).

From the dogmatic point of view, however, the statement of Naḥmanides (on principle 2 of Maimonides' Sefer ha-Mitzvot) and his differentiation seem correct; namely that wherever in the prophets and Hagiographa statements are made as commands and injunctions, they are merely an explanation of the Torah and have the same authority as the Oral Law, as tradition, while where statements are made by way of narrative, as "relating some event" (e.g., the case of sale in the Book of Jeremiah) they are of rabbinic status. The same applies to those laws designated in the Talmud as *takkanot ("regulations") of the prophets, even if attributed to Moses himself. For the concept de-rabbanan ("of rabbinical authority") is not chronological but qualitative, so that such statements can be de-orayta (of Sinaitic authority) even if first revealed in the words of a late prophet, and de-rabbanan even if attributed to Moses, if they were transmitted as a takkanah or the confirmation of an ancient custom (e.g., the seven days of bridal festivity, the seven days of mourning).

THE ORAL LAW

The *Oral Law includes: the interpretation of the Written Law transmitted, according to the sages, in its entirety with its details and minutiae at Sinai; halakhah, e.g., given to Moses at Sinai in the restricted sense; and logical deduction.

Interpretation of the Written Law

This interpretation consists of two elements: that regarded as certainly handed down at Sinai; that intrinsically inherent in the written word, but made manifest through the interpretation of Scripture by means of the accepted hermeneutical rules (see *hermeneutics). According to talmudic tradition anything transmitted directly by tradition counts as de-orayta and is in every way equivalent to the Written Law, while difference of opinion is found with regard to halakhah inferred only by means of interpretation since the Talmud itself has no systematic dogma on the subject.

Maimonides and Naḥmanides differ on this. According to the former (Sefer ha-Mitzvot, principle 2), anything inferred by interpretation is de-orayta only if supported by a tradition. If the Talmud does not clearly testify to its having been transmitted, then it is "the words of the soferim" or de-rabbanan.

On the other hand Naḥmanides holds (gloss, ad loc.) that anything derived by interpretation is also de-orayta whether or not supported by a talmudic tradition, unless the Talmud states explicitly that this is de-rabbanan (in the language of the Babylonian Talmud: "It is de-rabbanan, the verse being a mere support"). Both from the statements of Maimonides, as well as from those of Naḥmanides, it follows that halakhot inferred by interpretation of Scripture may be divided into three categories: halakhah received from Sinai where the purpose of the interpretation is to explain it and to connect it with the scriptural verse; in these cases there is no dispute as to the content of the halakhah since the interpretation at times merely serves a mnemotechnical purpose; halakhah not received from Sinai, but deduced by the sages from the scriptural verse, where the interpretation is in most cases to the point and included in the meaning of the verse; halakhah which all agree to be an innovation and de-rabbanan, the purpose of the interpretation being to find a support for it in Scripture (e.g., the rabbinic injunction against marrying relatives of the second degree, derived from Lev. 18:30: "Therefore shall ye keep My charge" (Yev. 21a)).

Halakhah Given to Moses at Sinai

This designation is given to ancient halakhot for which there is no scriptural support (or at the most very faint support). Examples are quantities (in connection with *issur ve-hetter and things ritually unclean and clean, such as an olive's bulk, a quarter of a log, etc., Er. 4a), or that *tefillin must be square (Meg. 24b) and written on parchment (Shab. 79b). It is difficult to decide whether in the early tannaitic period they actually regarded such halakhot as having been given at Sinai or whether the term "at Sinai" is employed merely to indicate their antiquity in order to increase their holiness and thus to immunize them against challenge (see the commentaries of Samson of Sens and Asher b. Jehiel to Yad. 4:3; Jair Ḥayyim Bacharach, in his Ḥavvot Ya'ir (no. 192) enumerates about 70 such halakhot). See also *Halakhah le-Moshe mi-Sinai.

Logical Deduction

Sometimes the authors of the Talmud say of a certain halakhah, "it is self-evident," and as such it does not require scriptural proof since it is regarded as axiomatic; such as "whoever wishes to claim anything in the possession of his fellow must bring proof." To this category belong, strictly speaking, also fundamental concepts such as *ḥazakah, the majority *rule, etc., since the scriptural verse adduced is only intended to provide a support for the halakhah. It is not the verse which is the source but logical reasoning and analogy.

SAYINGS OF THE SCRIBES (ELDERS)

In talmudic literature, the expression mi-divrei soferim (of scribal origin) has two meanings: a statement in principle from the Torah but whose explanation is of scribal origin (see above, and e.g., Sanh. 88b); a statement decreed or enacted originally by the soferim, like "the second degrees of forbidden marriages are of scribal origin" (Yev. 2:4). What follows applies to the second meaning. Everything whose source is in statements of the scholars throughout the generations, from Moses to the present time, is called de-rabbanan. These teachings include: positive enactments (takkanot) made to protect the principles of religion and Torah, and negative enactments (gezerot) decreed to prevent breaches. From the verse "According to the law which they shall teach thee… thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left" (Deut. 17:11) it was inferred that it is a positive precept to obey the great bet din not only in everything applying to the text of the Torah, but also in everything that they found necessary to enact, and a warning is issued to anyone disregarding it.

The Authority of the Sages

In the Talmud the authority of the sages was defined as follows:

The sages have the power to abolish a biblical injunction (Yev. 89b–90b) in certain circumstances, such as: in monetary matters, on the basis of the rule that "deprivation of ownership by the bet din is valid"; in cases of the passive act of "refraining from an action" (shev ve-al ta'aseh), in which they forbade the *lulav and *shofar to be handled and used on the Sabbath, lest they be carried in a public domain (thus the rabbinic prohibition is the cause of the biblical precept being ignored!).

The bet din has the power to temporarily disregard a biblical precept in order to reinforce observance. Similarly the court "may inflict flagellation and other punishment not in accordance with Torah law, in order to erect a protective fence round the Torah," but such acts may not be defined as halakhah – which would imply that the ruling is of a permanent character. So too, if it saw a temporary need to suspend a positive precept, or to transgress an injunction, in order to bring many back to religion, or to save the community from being ensnared in a transgression, all in accordance with the need of the time but not for future generations (Maim. Yad, Sanhedrin 24:4; Mamrim 2:4). The classical example is Elijah offering sacrifice on Mt. Carmel at the time when the Temple existed (and sacrifice outside it was prohibited, Zev. 4b).

No restriction may be imposed upon the congregation if the majority cannot abide by it (BB 60b). So too no restriction may be imposed that would cause substantial loss (see, e.g., MK 2a) or excessive trouble. "It is preferable for them to transgress inadvertently rather than deliberately" (Beẓah 30a).

No court can abolish the decision of another contemporary court unless it be greater in wisdom and in number. The possibility of abolishing a restriction thus depends upon an important limitation: "It must be greater in wisdom and number" (Eduy. 1:5; for the meaning of this rule, which apparently prevents all possiblity of abolishing a bet din ruling, see Weiss, Dor, pt. 2, sec. 7 and Albeck in the supplements to Mishnah Nezikin).

At times the sages gave their pronouncements the same, and at times even greater, validity than those of the Torah. For example: "These days, enumerated in Megillat Ta'anit, are forbidden [for fasting], along with both the preceding and the following day. As to Sabbaths and New Moons, fasting on them is forbidden, but it is permitted on the preceding and following days. What is the difference between them? The latter are of biblical origin and words of the Torah require no reinforcement, whereas the former are of scribal authority and the words of the scribes require reinforcement" (RH 19a). Thus they were more stringent about the fulfillment of their takkanot than about the enactment of the Torah itself, because for the latter no danger of negligence was anticipated, as it was with their regulations. Many of the edicts and takkanot are anonymous, just as the early halakhah in general is anonymous: according to dogmatic conception they were all enacted and accepted by a vote of the great bet din in which, too, all disputed matters were decided. The modern historical approach, too, is close to this view, even though the concept "the great bet din" was not identical in all periods (see Ḥ. Albeck, in: Zion, 8 (1942–43), 85–93, 165–78; L. Finkelstein, The Pharisees, 19623). Notwithstanding, many takkanot and edicts are mentioned that are connected with the names of definite persons or places, such as Joshua b. Gamla, Simeon b. Shetaḥ, Bet Shammai and Bet Hillel, Gamaliel the Elder, Johanan b. Zakkai, Gamaliel of Jabneh, the scholars of Usha, Judah ha-Nasi, etc. There are also many halakhot that are attributed to biblical personalities such as Moses, Joshua, Samuel, David, Solomon, Hezekiah, Daniel, the prophets (and the men of the *Great Synagogue). The individuals enumerated appear as heads of batei din.

The distinction between the concepts de-orayta and derabbanan in the whole field of halakhah actually derives from the amoraim, but it already existed in the time of the tannaim and is recognizable by the penalties fixed for transgressions of the different categories, and there is also found the explicit expression "statements of the scribes" in contrast to "statements of the Torah" (e.g., Yev. 2:4; Par. 11:5–6; Yad. 3:2; Zev. 99b). But the views of the tannaim and amoraim on this matter do not completely coincide, and at times a matter which according to tannaitic sources appears to be de-orayta becomes in the era of the amoraim de-rabbanan. The difference between the two concepts de-orayta and de-rabbanan not only expresses itself in penalties (thus, e.g., the sacrifices which one who transgresses the words of the Torah must bring as an atonement for his iniquity are not imposed as an obligation on one transgressing a prohibition of the sages, but on the other hand the sages have the right to flog one transgressing their words with "stripes of correction" in order to punish and reform him); there is also a difference in the halakhic consideration: "In the case of doubt with regard to a biblical injunction the stringent view is accepted, in the case of rabbinical, the lenient" (Beẓah 3b; TJ, Er. 3:4).

CUSTOM

The word custom (Heb. minhag) has various meanings in talmudic literature, and not all have the same force, even though all serve as sources of halakhah.

Religious custom which can be relied upon where the halakhah is unclear: "Every halakhah that is unclear in the bet din and you do not know its nature, go and see how the community conducts itself and conduct yourself accordingly" (TJ, Pe'ah 7:5). Here the concept of custom is close to the concept of "consensus" in Muslim law in its original stage: the people as a whole do not err, and therefore custom decides the matter; its nature is as the nature of the halakhah. In the Babylonian Talmud this idea is expressed in the words "Go and see how the public are accustomed to act" (Ber. 45a), and this too is certainly what Hillel meant when he said: "Leave it to Israel; if they are not prophets, they are the children of prophets" (Pes. 66a).

Religious custom that is not publicly proclaimed as the official halakhah (see Ta'an 26b): here too, as in the previous section, the reference is not to a new custom but to fixing the norm in a halakhah concerning which there is a dispute, in accordance with the existing custom.

A custom that is in contradiction to the theoretical halakhah but by virtue of being a public custom, and that of conscientious people, has the power to cancel the halakhah (TJ, Yev, 12:1; Sof. 14, ed. Higger, 270f.): in these cases, the custom replaces the halakhah.

A custom introduced by a definite group – such as the citizens of a town, a group of pious men, women, professional groups, etc. – in some area of religious, social, or legal life, additional to the existing halakhah: such a custom serves as a source of halakhah which may not be altered and has the same authority as the words of the sages (see, e.g., Pes. 4:1; BM 7:1; et al.).

[Benjamin De Vries]

See also *Minhag.

DEVELOPMENT OF HALAKHAH

The Early Period

Codes of law are found in the Pentateuch (Ex. 21–23:19; Lev. 19; Deut. 21–25) together with smaller collections and numerous individual laws. Biblical criticism explains the differences in style and the contradictions between one collection and another on the grounds that these groups of laws were produced in different circles at diverse times, e.g., in one collection the tithe is given to the levite (Num. 18:20–32) whereas in Deuteronomy it is retained by the farmer himself to be eaten in the place of the central sanctuary (Deut. 14:22–26). This kind of solution was not open to the Pharisaic teachers so that the early halakhah reconciles the two passages by postulating two tithes, the first (ma'aser rishon) to be given to the Levite and the second (ma'aser sheni) to be eaten in the place of the central sanctuary. Moreover, according to the traditional view, God conveyed to Moses together with the Written Law (torah she-bi-khetav) an Oral Law (torah she be-al peh). This latter embraced both the specific "laws given to Moses at Sinai" and the many interpretations of the written text now found in the rabbinic literature.

One of the main points at issue between the Sadducees and the Pharisees was the validity of this doctrine of the Oral Law, the Pharisees affirming and the Sadducees denying it. But this is to oversimplify the problem. It is obvious that some process of interpretation of the written texts must have begun at the earliest period since many of the texts are unintelligible as they stand (though this is very different from the affirmation that the interpretation was uniform and handed down unimpaired from generation to generation). Buying and selling, for example, are mentioned in the Pentateuch without any indication of how the transfer of property was to be effected. The law of divorce (Deut. 24:1–4) speaks of a "bill of divorcement," but gives no information on how this is to be written. Ezekiel 44:31 would seem to be an interpretation of the laws found in Exodus 22:30 and Deuteronomy 14:21 (Weiss, Dor, 1 (19044), 44–45). Jeremiah 17:21 is an interpretation of what is involved in Sabbath "work." It would appear certain that by about 400 B.C.E., after the return from Babylon and the establishment of the Second Temple, the Pentateuch had become the Torah (the Written Law) and there had begun to develop an oral interpretation of the Pentateuchal texts.

The identity of the men of the Great Synagogue, who are said to have flourished immediately after the return, is still a major problem, as is the relationship of this body to the "Scribes" (soferim; according to Frankel, Darkhei ha-Mishnah (1923), 3–7 et al.). The men of the Great Synagogue were the executive of a movement of Pentateuchal interpretation of which the "Scribes" formed the general body. However, more recent studies have demonstrated that the soferim were simply a class of biblical exegetes inferior in status to the "sages" so that it is illegitimate to speak of the period of the "Scribes" (Kaufmann, Y., Toledot, 4 (1960), 481–5; E. Urbach, in: Tarbiz, 27 (1957/58), 166–82). The Midrash process, in which the texts were carefully examined for their wider meaning and application, no doubt had its origin in this period. Another vexed question is whether the Midrash of a particular text is the real source of the law said to be derived from it or whether the law came first with the Midrash no more than a peg on which to hang it. The most convincing way of coping with the evidence on this matter is to suggest that the earliest Midrashim were in the nature of a real derivative process by means of which the deeper meaning and wider application of the texts were uncovered (although this must not be taken to exclude the existence of actual traditions for which texts were subsequently found). In the later Midrash the process is reversed.

The whole period down to the age of the Maccabees – on any showing the formative period in the history of the halakhah – is shrouded in obscurity. Y. Baer (in Zion, 17 (1951–52), 1–55) has argued that there was little pure academic legal activity at this period and that many of the laws originating at thistime were produced by a kind of rule of thumb in which pious farmers in a comparatively simple form of society worked out basic rules of neighborly conduct, much in the same way as this was done among the Greeks in the age of Solon. Some of these rules can possibly still be detected among the earliest strata of the Mishnah, e.g., in the first chapter of Bava Kamma, which includes a formulation of the law of torts worded in the first person.

There are references in the sources to five pairs of teachers – the zugot ("pairs," duumviri) – beginning with Yose b. Joezer and Yose b. Johanan in the time of the Maccabees and ending with Hillel and Shammai in the time of Herod. The ethical maxims of these teachers are recorded in the Mishnah (Avot 1:4–5) but little legal material has been transmitted in their name. At this time, it was said, there was no legal debate in Israel (Tosef., Ḥ¦v´ǒ 2:9), i.e., the law was known or where in doubt was decided by the "great court" in Jerusalem.

Historically considered there is no question, however, of a uniform halakhah, even at this early period, handed down from generation to generation in the form the halakhah assumes in the tannaitic period. Apart from the great debates on legal matters between the Sadducees and the Pharisees, the halakhah in the books of the Apocrypha (and the writings of the Qumran sect) is not infrequently at variance with the halakhah as recorded in the Mishnah and the other tannaitic sources (e.g., the law of false witnesses in Susannah conflicts with the Pharisaic law as recorded in the Mishnah, Mak. 1:4). Even in the Pharisaic party itself the schools of Hillel and Shammai at the beginning of the present era differed on hundreds of laws, so that it was said that there was a danger of the Torah becoming two torot (Sanh. 88b).

A major problem here is the motivation behind the approaches of the two rival schools. The theory associated with L. Ginzberg (On Jewish Law and Lore (1955), 102–18) and L. Finkelstein (op. cit.) finds the differences in the different social strata to which the schools belonged. The school of Shammai, it is argued, was legislating for the upper classes, the wealthy landowners and aristocrats, while the school of Hillel was legislating for the poorer urban workers and artisans. Thus according to the school of Hillel the legal definition of a "meal" is one dish, whereas according to the school of Shammai it is at least two dishes (Beẓah 2:1). In most societies the woman has a much more significant role among the upper classes than among the lower. Hence the school of Hillel rules that a valid marriage can be effected by the delivery to the woman of the smallest coin – a perutah – whereas the school of Shammai demands the much larger minimum amount of a dinar (Kid. 1:1). The school of Shammai only permits the divorce of a wife if she is unfaithful whereas the school of Hillel permits it on other grounds (Git. 9:10). While there is undoubtedly some truth in the theory of social motivation it is too sweeping to be entirely adequate. Other motives, such as different exegetical methods, were also at work (see Alon, Meḥkarim, 2 (1958), 181–222).

The Tannaitic Period (c. 1–220 C.E.)

The debates between the schools of Hillel and Shammai set in motion new debating processes among the rabbinic teachers of first- and second-century Palestine, the tannaim. Prominent in the second century were the rival schools of R. Akiva and R. Ishmael, who differed in their concept of the Torah revelation and, as a result, in their attitude toward the scope of the halakhah (see A.J. Heschel, Torah min ha-Shamayim (first 2 vols., 1962, 1965). According to R. Ishmael's school "the Torah speaks in the language of men" (Sif. Num. 15:31) and it is therefore not permissible to derive new laws from such linguistic usages as the infinitive absolute before the verb. According to the school of R. Akiva it is legitimate to do this and to derive laws from the use of the particles gam ("also") and et (the sign of the accusative), for example in Pesaḥim 22b, since in the view of this school no word or letter of the Torah can be considered superfluous or merely for the purpose of literary effect. A later teacher characterized the methods of the Akiva school by telling of Moses on high asking God why He had affixed the decorative "crowns" to some of the letters of the Torah. God replies that after many generations there will arise a man, Akiva b. Joseph by name, "who will expound upon each tittle heaps and heaps of laws." Moses then asks permission to see Akiva and is transported across time to enter Akiva's academy where he is unable to follow the arguments! Moses is distressed but is later comforted when Akiva replies to the question of his disciples: "Whence do you know this?" by stating: "It is a law given to Moses at Sinai" (Men. 29b).

At the end of the second century R. Judah ha-Nasi edited the Mishnah, in which were summarized all the legal debates and decisions of the tannaim. Judah ha-Nasi is better spoken of as the editor of the Mishnah, not its author, since it is clear that his compilation is based on earlier formulations, particularly those of R. Akiva and his disciple R. Meir. Indeed it is possible to detect various early strata embedded in the final form the Mishnah has assumed. For instance, the Mishnah (Pes. 1:1) records a rule that a wine cellar requires to be searched for leaven on the eve of Passover and then recordsa debate between the schools of Hillel and Shammai on how this rule is to be defined.

The Amoraic Period (c. 220–470 C.E.)

Once the Mishnah had been compiled it became a sacred text second only to the Bible. The word of the post-mishnaic teachers in both Palestine and Babylon (the amoraim) was confined chiefly to discussion and comment on the Mishnah and to the application of its laws (and those found in the other tannaitic sources). It became axiomatic that no amora had the right to disagree with a tanna in matters of law unless he was able to adduce tannaitic support for his view. It must not be thought, however, that the amoraim were only concerned with practical application of the halakhah. A good deal of their work was in the field of abstract legal theory in which purely academic questions were examined and debated (see M. Guttmann, in Devir, 1 (1923), 38–87; 2 (1923), 101–64).

The halakhah of the Palestinian amoraim was eventually collected in the Jerusalem Talmud, that of the Babylonian amoraim in the Babylonian Talmud. With the "closing" of the Talmud this work virtually became the infallible source of the halakhah. Occasionally in the Middle Ages, as Weiss (Dor, 3 (19044) 216–30) has demonstrated, authorities would disagree with talmudic rulings. Maimonides, for example, disregards in his code any laws based on a belief in the efficacy of magic even though the laws are found in the Talmud and are not disputed there. Some of the geonim tended to adopt a more lenient attitude toward the talmudic laws governing the relations between Jews and gentiles on the grounds that the gentiles in their milieu (the Muslims) were not idolaters. But such exceptions were few. The history of post-talmudic halakhah is founded on the appeal to the Talmud as the final and overriding authority. "To it [the Talmud] one must not add and from it one must not subtract" (Maim., Comm. to Mishnah, intro.). Of the two Talmuds the Babylonian became the more authoritative for a number of reasons. The halakhah of the Babylonian Talmud is more highly developed and more comprehensive; the Babylonian Talmud is later than the Jerusalem and hence able to override the decisions of the latter; the textual condition of the Babylonian Talmud is in a more satisfactory state; the Babylonian geonim at Sura and Pumbedita were in direct succession to the Babylonian amoraim (so that the Babylonian Talmud became "our Talmud") and the hegemony of the teachings of Babylonia was considerably strengthened as a result of political developments, including the emergence of Baghdad as the seat of the caliphate. Maimonides (Yad, intro.) states the accepted view: "All Israel is obliged to follow the matters stated in the Babylonian Talmud. Every city and every province are to be coerced to follow all the customs which the sages of the Talmud followed and to obey their decisions and follow their enactments since all the matters in the Talmud have been accepted by all Israel. And those sages who made the enactments or introduced the decrees or ordained the customs or decided the laws, teaching that the decision was so, were all the sages of Israel or the majority of them. And they heard by tradition the main principles of the whole Torah generation after generation reaching back to the generation of Moses our teacher on whom be peace."

Rules for determining the actual decision in law from the labyrinth of legal debate and discussion that is the Talmud are provided by the Talmud itself and by the savoraic additions to the Talmud, and other rules were widely accepted by the post-talmudic authorities. The following, in addition to those mentioned above, are some of the more important of these rules which enabled the Talmud to serve as the final authority in halakhah even though it is not itself a code of law.

Where there is a debate between an individual sage and his colleagues the view of the majority is adopted (Ber. 9a). The school of Hillel is always followed against the school of Shammai (Er. 6b). In the many matters debated by Rav and Samuel the view of Rav is followed in religious matters and that of Samuel in civil law (Bek. 49b). Except in three specified cases the opinion of R. Johanan is followed against that of R. Simeon b. Lakish (Yev. 36a). Similarly, except in three specified cases the opinion of Rabbah is followed against that of R. Joseph (BB 114b). The decision of Rava is followed against that of Abbaye except in six specified cases (Kid. 52a). Wherever a talmudic debate concludes with the statement "the law is…" (ve-hilkheta) this ruling is adopted. The lenient opinion is adopted when there is a debate regarding the laws of mourning for near relatives (MK 26b). The rulings of later authorities are generally preferred to those of earlier ones (from Rava onward) on the grounds that the later scholars, though aware of the opinions of the others, still saw fit to disagree with them (Sefer Keritut, 4:3, 6). It is generally accepted that where a ruling is conveyed in a talmudic passage anonymously (setama) this implies unanimity among the final editors and is to be followed even if elsewhere in the Talmud the matter is a subject of debate (see Tos. to Ber. 20b and Yev. 116a). Halakhic decisions are not generally to be derived from aggadic statements (based on TJ, Peʿah 2:4; see ET, 1 (19513), 62). This rule was not applied consistently and was occasionally departed from, particularly in the French and German schools in the Middle Ages for whom the entire talmudic material, including the aggadah, tended to be invested with infallible authority.

In spite of the "closing" of the Talmud (occasioned chiefly by the disturbed conditions at the end of the fifth century when the great Babylonian schools were closed for a fairly long period) and its acceptance as the final authority, new legislation could still be introduced under the heading of takkanah ("enactment"), of which there are many examples in the Talmud itself. By means of the takkanah it was possible to cope with new circumstances not covered by the talmudic law. From time to time the principle, found in the Talmud, was resorted to that "a court can inflict penalties even when these run counter to the Torah" if the times require it (Yev. 90b; see above). In Spain, for example, in the Middle Ages, the courts assumed the power to inflict capital and corporal punishment even though this right had long been taken from them according to the strict letter of the law (see Baron, Community, 1 (1942), 168–9 and notes).

Codification of the Halakhah

Teachers of the halakhah in the Middle Ages and afterward were of two main types. Firstly there were the legal theoreticians such as Rashi and the tosafists, whose main activity consisted of exposition of the classical legal texts of the Talmud and other early rabbinic works. These were known as the mefareshim ("commentators") and their writings were naturally utilized to determine the practical law even though this was not their own province. Secondly there were the posekim ("decision-makers") whose opinions in practical legal matters were accepted because of their acknowledged expertise in this field. The activity of the posekim was of two kinds: responsa and codification. Questions of law on which direct guidance from the Talmud was not forthcoming were addressed to the great legal luminaries and from time to time these responsa were collected, helping to form the basis for new codifications of the halakhah. Both the new and older laws were frequently classified and codified. The process of responsa and subsequent *codification has continued down to the present.

One of the earliest codes was the *Halakhot Gedolot of Simeon Kayyara (ninth century). Isaac *Alfasi compiled an abbreviated, and with regard to some texts an expanded, version of the Babylonian Talmud in which only the conclusions of the talmudic discussions were recorded so as to provide a digest of talmudic halakhah in its practical application. Where the Babylonian Talmud has no rulings Alfasi followed decisions found in the Jerusalem Talmud. *Maimonides compiled his gigantic code, the Mishneh Torah (called, after his death, the Yad ha-Ḥazakah), in which he presented the final decisions in all matters of halakhah, including those laws which no longer obtained in his day, such as the laws of the sacrificial cult. *Asher b. Jehiel, known as the Rosh (Rabbenu Asher), compiled a code in which due weight was given to the opinions of the French and German authorities which frequently differed from those of the Spanish authorities as recorded by Maimonides. Asher's son, *Jacob b. Asher, followed in his father's footsteps in his code known as the Tur ("row," pl. Turim, properly the "Four Rows," so called because the work is divided into four parts).

By the time of Joseph *Caro there was much confusion in the whole realm of practical halakhah. In addition to the many differences between the codes, Jewish communities tended to differ in their application of the laws so that, as Caro remarks (Beit Yosef, Intro.), the Torah had become not two torot but many torot. In his great commentary to the Tur, called Beit Yosef, Caro sought to remedy the situation by working out a practical guide for a uniform application of the halakhah. His method was to follow a majority opinion whenever the three earlier codes of Alfasi, Maimonides, and the Tur disagreed and to rely on other authorities whenever this method of deciding was not possible. Caro's *Shulḥan Arukh contains the gist of his decisions as worked out in the Beit Yosef. Unfortunately, however, Caro's method weighted the scales in favor of the Spanish schools, since these were generally in accord with the views of Alfasi and Maimonides, against the German views as represented by Asher b. Jehiel and the Tur. The Shulḥan Arukh was thus incapable of serving as a practical guide to the German Jews and their followers in Poland, which from the 16th century became a foremost center of Jewish life. The remedy was provided by Moses *Isserles of Cracow who added notes to the Shulḥan Arukh, known as the MAPPAH, in which the German-Polish practices were recorded where these differed from the opinions of the Shulḥan Arukh. The Shulḥan Arukh, together with the Mappah, became the most authoritative code in the history of the halakhah, partly, at least, because it was the first code to be compiled after the invention of printing and was therefore sure of the widest dissemination.

The Shulḥan Arukh marked a turning point in the history of the halakhah. Even when later authorities departed from its rulings they did so reluctantly. Adherence to the Shulḥan Arukh became the test of Jewish fidelity. The "Shulḥan Arukh Jew" became the supreme type of Jewish piety. Earlier rabbinical authorities were known as *rishonim while later ones were known as *aḥaronim. Rabbinic authority even in modern times is much more reluctant to disagree with the rishonim than the aḥaronim.

The Authority of the Halakhah

Halakhah is the distinctive feature of Judaism as a religion of obedience to the word of God. It united Jews of many different temperaments, origins, and theological opinions, though the view ("pan-halakhism" as A.J. Heschel called it) that submission to the halakhah is all that is demanded of the Jew is a travesty of traditional Judaism. The major practical differences between Orthodox and Reform Judaism depend on the different attitudes of these groups to the halakhah. Orthodoxy considers the halakhah, in its traditional form, to be absolutely binding, whereas Reform, while prepared to be guided by the legal decisions of the past in some areas, rejects the absolute binding force of the traditional halakhah. Conservative Judaism adopts a midway position, treating the traditional halakhah as binding but feeling freer to interpret it and attempting to preserve the dynamic principle of legal development which, it claims, is typical of the talmudic period. The Orthodox rabbi, when faced with new halakhic problems raised, for instance, by the invention of printing and the use of electricity, will try to arrive at a decision by applying directly the ancient halakhic principles in the new circumstances. The Reform rabbi will be more inclined to consider the religious demands of the new age and will tend to operate within nonhalakhic categories. The Conservative rabbi will try to utilize these latter in working out a fresh interpretation of the traditional halakhah.

[Louis Jacobs]

BIBLIOGRAPHY:

Weiss, Dor; Frankel, Mishnah; Halevy, Dorot; G.F. Moore, Judaism in the First Centuries of the Christian Era, 3 vols. (1927–30); J. Kaplan, The Redaction of the Talmud (1933); Ḥ. Tchernowitz, Toledot ha-Halakhah, 4 vols. (1934–50); idem, Toledot ha-Posekim, 3 vols. (1946–47); J.Z. Lauterbach, "Midrash and Mishnah," in his Rabbinic Essays (1951), 163–256; B. Cohen, Law and Ethics in the Light of Jewish Tradition (1957); idem, Law and Tradition in Judaism (1959); ET, 9 (1959), 241–339; M. Kadushin, The Rabbinic Mind (19652), includes bibliography; Z.H. Chajes, The Student's Guide Through the Talmud (19602); B. Herring, Jewish Ethics and Halakhah for Our Times: Sources and Commentary, 2 vols. (1984–1989). Conservative: On Zacharias Frankel, see M. Krakauer, Zacharias Frankel's prinzipieller Standpunkt in der Reformfrage des Judentums (1883); L. Ginzberg, Students, Scholars, Saints (1958), 195–216; M. Brann, Geschichte des juedisch-theologischen Seminars in Breslau (1904); I. Heinemann, in: G. Kisch (ed.), Das Breslauer Seminar (1963), 85–109. On changes in Judaism, see M. Waxman (ed.), Tradition and Change (1964), 43–50. On philosophy of Jewish law, see L. Ginzberg, "Tradition and Change," op. cit., 129–138; M. Arzt, in: ibid., 139–51; R. Gordis, in: ibid., 375–91; E. Dorf, in: CJ, 27, 3 (1973), 65–77; S. Siegel, in: CJ, 24, 3 (1971), 33–40; R. Gordis, in: ibid., 49–55; idem., in: CJ, 26, 3 (1972), 70–74; J. Agus, in: PRA, 31 (1967), 81–89; I. Klein, in: ibid., 22 (1958), 102–7; M. Higger, in: CJ, 5, 4 (1949), 20–22; S. Simon, in: Judaism, 3 (1954), 48–53; S. Greenberg, in: CJ, 24, 3 (1970), 75–141. On responsa and decisions of the Committee on Jewish Laws and Standards, see: B.Z. Kreitman, in: PRA, 22 (1958), 68–80; J. Segal, in: PRA, 31 (1967), 195–208; I. Klein, in: CJ, 24, 3 (1970), 26–33; I. Silverman, in: CJ, 18, 2 (1964), 1–5; I. Klein, in: CJ, 28, 2 (1974), 34–46. Reconstructionist: I. Eisenstein, Judaism under Freedom (1956), 180–88; idem, Traditionand Change, ed. M. Waxman (1958), 447–53; M.M. Kaplan, The Future of the American Jew (1967), 187–401; idem, Judaism as a Civilization (1957), 431–78; idem, The Meaning of God in Modern Jewish Religion (1937), 315–20; idem, A New Zionism (1959), idem, Questions Jews Ask (1959); E. Kohn, Religious Humanism (1953); J.J. Cohen and E. Kohn, "Jewish Law and Ritual" (undated pamphlet); H.M. Schulweiss, "Democracy and Jewish Religion" (undated pamphlet). ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri, 3 vols. (1973; Jewish Law, History, Sources, Principles, 4 vols., 1994); N. Hecht et al., An Introduction to the History and Sources of Jewish Law (1996); N. Rakover, A Bibliography of Jewish Law, 2 vols. (1975–90); B.S. Jackson et al., "Halacha and Law," in: M. Goodman (ed.), Oxford Handbook of Jewish Studies (2002), 643–79, incl. bibl. For periodical literature, see *Halakhic Periodicals.


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.