r/Judaism • u/Leading-Fail-7263 • 11h ago
How does Halacha work?
https://probablyasheigatz.substack.com/p/how-does-halacha-work?r=8tkp0z&utm_campaign=post-expanded-share&utm_medium=post%20viewerInterested to hear thoughts.
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u/TzarichIyun 9h ago edited 8h ago
Love the halacha post! A wonderful topic to discuss.
I would challenge the article’s idea of the “static halachist.” L’choira not a single posek represents such a position.
I don’t know of any Gaon, Rishon, or Acharon who argues that the Talmud sealed halacha in a binary way. This is why the codes of the Rif, the Tur and the Rambam were sources for the Mechaber, and it’s why the Rema wrote a commentary to the Shulchan Aruch, and the Mishnah Berurah and Yalkut Yosef clarify the Shulchan Aruch for today.
The fact that all of these represent the canon of normative halacha supports the argument that there has never been a “static halachist” among talmidei chachamim.
Correction Edit thanks to comment below
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u/gdhhorn Swimming in the Afro-Sephardic Atlantic 8h ago
The Rambam’s introduction to the Mishne Tora makes it pretty clear that he believes that the Halakha is fixed and that the Talmud (along with a handful of other works, none of which is the Tur) contains the final, universally binding rulings of Hazal (and also that the M"T presents in a customized manner the entirety of the Tora Shebe’al Pe as ruled upon those with the authority to do so).
In this way, the Halakha itself is static, even if the application to new scenarios is dynamic.
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u/TzarichIyun 8h ago
Thank you for the correction about the Tur—
I imagine you’re referring to this:
ודברים הללו בדינים וגזרות, ותקנות ומנהגות, שנתחדשו אחר חיבור התלמוד. אבל כל הדברים שבתלמוד הבבלי – חייבין כל ישראל ללכת בהם. וכופין כל עיר ועיר, וכל מדינה ומדינה, לנהוג בכל המנהגות שנהגו חכמים שבתלמוד, ולגזור גזרותם וללכת בתקנותם. הואיל וכל אותן הדברים שבתלמוד – הסכימו עליהם כל ישראל. ואותן החכמים שהתקינו, או שגזרו, או שהנהיגו, או שדנו דין, ולמדו שהמשפט כך הוא – הם כל חכמי ישראל או רובן, והם ששמעו הקבלה בעיקרי התורה כולה דור אחר דור עד משה רבנו עליו השלום
He is saying the Talmudic corpus is closed and universally binding, but he is not saying that halacha as such is frozen in a binary way. In Hilkhot Mamrim 2:1–2 he explicitly allows a later court greater in wisdom and number to overturn an earlier one, for example.
Maybe more applicably, the Yad HaChazakah is one of many codes, albeit a mainstream one, which is why the Shulchan Aruch and later codes are necessary.
But yes, you’re making a good point. A more precise formulation of my earlier point would be that the Rambam is the exceptional posek who grounds the rule. He was exceptional by every measure, and our reception of him is exceptional, and he was exceptionally confident that his psak was final and binding, and yet outside of the Temani community it is not.
More generally, I don’t accept the framing that there are those who believe halacha to be static, because such a position would not be tenable amidst changes in society.
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u/gdhhorn Swimming in the Afro-Sephardic Atlantic 7h ago
Rambam isn’t making a ruling, he’s restating the Oral Tora.
What we see in Hilkhot Mamerim in no way changes that Rambam considered the law to be static. This is because the Bet Din HaGadol and semikha ceased to exist. That’s what caused things to be fixed. What is recorded is recorded because that is the law, even if it cannot be applied. It’s no different than him recording the laws around qorbanot.
Regarding a changing society, what makes the notion of a fixed Halakha untenable? We have the halakhot, all we need to do is apply the existing laws to new situations as they arise.
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u/TzarichIyun 7h ago
Perek Kira for example: how do Chazal’s rulings apply today when we no longer use direct fires to heat our food?
Until recently we didn’t have the halachot for hot plates and ovens and electric stoves. We had to adapt the halacha to a changed society. This occurs across many sugyas.
But we may be saying the same thing. You seem to be saying it’s fixed, and that’s the best way. I’m saying what’s fixed is essentially the spirit of the law and the specific applications are ever-changing. In either case halacha is not entirely static, which is why poskim still pasken.
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u/gdhhorn Swimming in the Afro-Sephardic Atlantic 7h ago
I don’t see it as “adapting the Halakha,” I see it as “evaluate this new thing against existing Halakha.” Also, because we do not have semikha or a Bet Din HaGadol, we cannot create new gezerot or taqqanot as a matter of national law. I suppose it comes down to how we approach new things in general: do we assume it’s permitted until proven otherwise, or do we assume it’s prohibited until proven otherwise?
As far as “spirit of the law,” I don’t believe in that concept.
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u/TzarichIyun 7h ago edited 7h ago
Safek d’rabbanan l’hakel and other heuristics exist to answer your question.
You don’t believe in a distinction between the letter of the law and the spirit of the law? It’s a metaphor from secular law, but certainly we do things in the spirit of how we would imagine Chazal would pasken, like with hotplates, etc, even though we don’t have a psak from Chazal.
Edit: the closest analogue to this “static halacha” position might be the Karaim. they reject Chazal and developed their own oral tradition, and are very machmir in certain ways, i.e. a literalist reading of the Torah to not receive hanah at all from esh on Shabbat, etc
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u/Inside_agitator 10h ago
I'm mostly secular with no claim to be to be committed to Halacha.
Placing the caption "The solution to Ashekenazi neuroticism is Emunas Chachomim" underneath a portrait of R. Moshe Feinstein seems strange and perhaps unkind unless Feinstein wrote about neuroticism. Did Feinstein write about neuroticism? I don't know.
I do know that Rabbi Dr. Abraham J. Twerski wrote about neuroticism. So why not put Twerski there? I don't have his 1984 book, "Who Says You're Neurotic?" but you know who did? My ex-wife's mother did. Don't get me started.
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u/Leading-Fail-7263 10h ago
On the contrary, the clarity of his psika provides calm to the Jewish heart which if often otherwise stressed and neurotic about what to do.
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u/Inside_agitator 10h ago
All people have are words for communication. "Stressed and confused" seems better to connote matters of the heart and "stressed and neurotic" to connote matters of universal human psychology.
Sentences containing phrases like "solve the Jew’s neurotic confusion" and "resolve any confusion which the neurotic Jew faces" along with "solution to Ashekenazi neuroticism" appear to me as overt medicalizations. I know very little about why such words are used. Maybe the medicalization is used as a rhetorical tactic in a dispute of some kind. If there is a dispute, I don't know what it is.
I was a professional educational writer and editor for several years, so I find the choice of words and caption to be interesting from the editorial perspective of intended audience. I'm curious why such things are written in such an overtly medicalized way. Rabbi Dr Twerski might have an answer if he were still around. I would put faith in what he'd have to say about it.
Anyway, those are my thoughts.
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u/skeletorsrick 11h ago
“That which is hateful to you, do not do to another.”
(and say שמע twice a day.)
everything else is a guideline.
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u/offthegridyid Orthodox & trying to collect the sparks 9h ago
This is definitely food for thought. What the heck is a “mekorist” and do they have t-shirts?
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u/NetureiKarta Rabbi - Hasidic 11h ago
I don’t have what to say on the content - it’s interesting but a little academic for me, I’m looking for the “uvechein” - but the term you use in the name of your blog “probably a …” denigrates human beings by comparing them to vermin. I think regardless of one’s “grundnorm” we all agree that one should not denigrate a human being like this, whether one’s self or another…