Halakhah

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Topics

What makes Judaism “Jewish?” The oral law , What is the oral law?

How to argue Jewishly

Levels of Jewish law

Rabbinic legislation: takkanot and gezeirot

Sephardic and Mizrachi views of Halakhah

Should we follow the Shulkhan Arukh as authoritative?

Recreational sports and exercise on Shabbat

Jewish view of gambling

Agunot and annulment in halakhah

Solutions to the mamzer (illegitimate child) issue

The Punishment of Amalek in Jewish Tradition: Coping with the Moral Problem

How We Decide Jewish Law: Committee on Jewish Law and Standards

 

What is halakhah

Halakhah (Hebrew: הלכה ) is the collective corpus of Jewish law, custom and tradition.

The word derives from the Hebrew halach הלך meaning “going” or “the path.”

The term Halakha may refer to a single rule, or to the literary corpus of rabbinic legal texts, or to the overall system of religious law.

Halakha is often contrasted with Aggadah, the diverse corpus of rabbinic exegetical, narrative, philosophical and other “non-legal” literature. However there is a dynamic interchange between the two genres.

Halakhah draws no distinction between religious and non-religious life. Hence, it guides numerous aspects of day-to-day life.

Historically, Halakha became enforceable as Judaism’s indigenous civil and religious law. In the modern era, since the Enlightenment, Jews are bound to Halakhah only by voluntary consent. In the State of Israel, though, certain areas of family and personal status law are governed by halakha.

Different approaches to Halakha are found among Ashkenazi, Mizrahi, and Sephardi Jews.

Since the Enlightenment, significant disagreements over Halakha have played a pivotal role in the emergence of Orthodox, Conservative, Reform and Reconstructionist streams of Judaism.

Sometimes people say that halakhah is mandatory, or enforced, but this terminology is incorrect. Rather: Modern Orthodoxy and Conservative/Masorti Judaism hold that halakha is normative : what one ought to do. Members of these groups accept Enlightenment values and philosophy. Since no one enforces halakhah, Jews accept halakhah as normative.

Classical German Reform Judaism (historically, the main form of Reform Judaism) held that most of halakhah is primitive, and only useful for a previous era in history. As such, Reform leaders actively discouraged their congregants from learning about or following halakhah. Astonishingly, halakhah was defacto forbidden in many classical Reform congregations.

Modern day Reform Judaism has somewhat broken from classical German Reform, and is now more friendly to halakhah.  Reform still teaches that halakhah is no longer normative, but it does teach about it, and encourages members to use informed personal autonomy to decide how to incorporate halakhah into their lives. This approach is also true for Reconstructionist Judaism.

Halakhah in Haredi (ultra-Orthodox) Jewish communities. Many Haredi groups live in towns socially closed off from the outside world. They have communal mechanisms designed to effectively enforce halakhah not only as normative, but as authoritative in almost enforceable ways.

Halakha constitutes the practical application of the mitzvot (“commandments”) in the Torah, as developed in the classical rabbinic literature, especially the Mishnah and the Talmud, and codified in later codes of law, such as the Mishneh Torah, Shulkhan Arukh, or Klein’s A Guide to Jewish Religious Practice

Major sources of Halakha include:

• the Mishna and the Babylonian Talmud along with with commentaries;
• Codes of Jewish law, such as Maimonides’ Mishneh Torah and the Shulchan Aruch , with commentaries;
• Legislative enactments by rabbis and communal bodies:
  • Gezeirah: “preventative legislation” of the Rabbis, intended to prevent violations of the commandments
  • Takkanah: “positive legislation”, practices instituted by the Rabbis not based (directly) on the commandments
• Minhag: Customs, community practices.
• The she’eloth u-teshuvoth (Responsa, literally “questions and answers”) literature.
• Dina d’malchuta dina (“the law of the land is law”): Jews follow civil laws of the nations in which they live, as a part of Jewish law itself. As such, American Jews follow American laws, French Jews follow French laws, etc. as binding. Dina d’malchuta dina  applies especially in areas of commercial, civil and criminal law.

In antiquity, the Sanhedrin functioned essentially as the Supreme Court and legislature for Judaism, and had the power to administer binding law. That court ceased to function around 40 CE.

Today, the interpretation of Jewish law is left to the local rabbi, and the local rabbinical courts, with only local applicability.

Since the days of the Sanhedrin, no body has been regarded as having the authority to create universally recognized law. As a result, Halakha has nothing equivalent to a Supreme Court. Today halakhic arguments are effectively peer-reviewed. When a rabbinic posek (“decisor”) proposes a new interpretation of a law, that may be considered binding for the person asking the question, or perhaps that rabbi’s entire community. Sometimes the interpretation may be gradually accepted by other parts of the Jewish communities.

Jewish communities differ greatly on how they make changes in Halakha. Orthodox poskim frequently extend the application of a law to new situations, but do not consider this as constituting a “change” in Halakha. For example,  Orthodox rulings concerning electricity are derived from rulings concerning fire, due to its physical similarity with that other form of human-managed energy. In contrast, Conservative Poskim emphasize that electricity is physically more analogous to turning on a water tap (which is permissible) than lighting a fire, or completing the building of a circuit (which is not permissible) and therefore permitted its use on Shabbat.

Within certain Jewish communities, formal halakhic bodies do exist. Within Modern Orthodox Judaism, there is no one committee or leader, but Modern 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.

Levels of law

From the Torah, to the Talmud, to later codes of law, Jewish law is often organized by level.

The 613 Mitzvot (commandments) in the Torah, and the laws given to Moses at Sinai, Halakhah le-Moshe mi-Sinai, הלכה למשה מסיני. (Not listed in the Torah, but discussed in the Mishnah as being equally ancient and authoritative.)

The seven rabbinic mitzvot – שבע מצוות דרבנן, Mitzvot d’rabanan.

Gezeira d’rabanan. A rabbinic fence law, and takkanot (legislative acts)

See our article on Levels of Jewish law for details.

Some halakhic principles (preliminary)

The principle of הזמנים נשתנו (nishtanu ha-zemanim) or העתים שינוי (shinnui ha-ittim),
“times have changed”

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