Halakhah from the EJ

From the Encyclopedia Judaica

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]

Sources of Authority

Like other legal systems, the halakhah is composed of different elements, not all of equal value, since some are regarded 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 nonrecurring historical event (at Sinai). This law is considered to be a book of commandments, positive and negative, numbering 613 (see *Commandments, the 613).


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 received them 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.

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]

Shulchan Aruch Choshen Mishpat
Publisher: Morasha LeHanchil