Religion - Halakha: Jewish Rabbinic Law

Halakha (הלכה or Halakhah, Halacha, Halachah) is the collective corpus of Jewish rabbinic law, custom and tradition. Like the religious laws in many other cultures, Judaism classically drew no distinction in its laws between religious and non-religious life. Hence, Halakha guides not only religious practices and beliefs, but numerous aspects of day-to-day life.

Historically, Halakha served many Jewish communities as an enforceable avenue of civil and religious law. In the modern era, Jewish citizens may be bound to Halakhah only by their voluntary consent. In Israel, though, certain areas of Israeli family and personal status law are governed by rabbinic interpretations of Halakha. Reflecting the diversity of Jewish communities, somewhat different approaches to Halakha are found among Ashkenazi, Mizrahi, and Sefardi Jews. Among Ashkenazi Jews, disagreements over Halakha have played a pivotal role in the emergence of Orthodox, Reform, Conservative and Reconstructionist Judaisms.

Terminology

The name Halakha derives from the Hebrew halach הלך meaning "going" or the "[correct] way"; thus a literal translation does not yield "law", rather "the way to go." The term Halakha may refer to a single rule, to the literary corpus of rabbinic legal texts, as well as to the overall system of religious law.

The Halakha is often contrasted with the Aggadah, the diverse corpus of rabbinic exegetical, narrative, philosophical and other "non-legal" literatures. At the same time, since writers of Halakha may draw upon the aggada literature, there is a dynamic interchange between the two genre.

Halakha constitutes the practical application of the hundreds of the mitzvot ("commandments") (singular: mitzvah) in the Torah, (the five books of Moses, the "Written Law") as developed through discussion and debate in the classical rabbinic literature, especially the Mishnah and the Talmud (the "Oral law") and codified in the Shulkhan Arukh (the Jewish "Code of Law".)


The scope of Halakha

The Halakha is a comprehensive guide to numerous aspects of human life, corporeal and spiritual. Its laws, guidelines, and opinions cover a vast range of situations and principles, in the attempt to comprehend what is implied by the repeated commandment to "be holy as I your God am holy" of the Torah. They cover what are better ways for a Jew to live, when commandments conflict how one may choose righteously, what is implicit and understood but not stated explicitly, and what has been deduced by implication though not visible on the surface.

Halakha is shaped and contested by a variety of rabbis (and other Jews), rather than one sole "official voice", so different individuals and communities may well have different answers to Halakhic questions. Controversies lend rabbinic literature much of its creative and intellectual appeal. With few exceptions, controversies are not settled through authoritative structures because Judaism lacks a single judicial hierarchy or appellate review process for Halakha. Instead, Jews interested in observing Halakha may choose to follow specific rabbis or affiliate with a more tightly-structured community.

Halakha has been developed and pored over throughout the generations since before 500 BCE, in a constantly expanding collection of religious literature consolidated in the Talmud. First and foremost it forms a body of intricate judicial opinions, legislation, customs, and recommendations, many of them passed down over the centuries, and an assortment of ingrained behaviors, relayed to successive generations from the moment a child begins to speak. It is also the subject of intense study in yeshivas; see Torah study.

As a practical matter, early modern rabbis interpreted Halakha so as to recognize the jurisdiction and enforceability of state law for Jewish citizens. As a result, Jews today need not feel restricted to traditional Halakha for much of their commercial, civil and (especially) criminal law.


The laws of the Torah

See also Oral law; Relationship between the Bible and the Mishnah and Talmud.

Broadly, the Halakha comprises the practical application of the commandments (each one known as a mitzvah) in the Torah, as developed in subsequent rabbinic literature; see The Mitzvot and Jewish Law. According to the Talmud (Tractate Makot), there are 613 mitzvot ("commandments") in the Torah; in Hebrew these are known as the Taryag mitzvot תרי"ג מצוות. There are 248 positive mitzvot and 365 negative mitzvot given in the Torah, supplemented by seven mitzvot legislated by the rabbis of antiquity; see Rabbinical commandments.


Categories of law

Judaism divides the laws into two basic categories:

* Laws in relation to God (bein adam le-Makom), and
* Laws about relations with other people (bein adam le-chavero).

Violations of the latter are considered to be more severe, as one must obtain forgiveness both from the offended person and from God.

Rabbinic authorities divide Halakha between laws that are interpreted as revealed (Biblical) commandments and those designated as rabbinic origin. This division between revealed and rabbinic commandments may influence the importance of a rule, its enforcement and the nature of its ongoing interpretation.

Commandments (mitzvot) are divided into positive and negative commands, which are treated differently in terms of Divine and human punishment. Positive commands bring one closer to God, while violations of negative ones create a distance. In striving to "be holy" as God is holy, one attempts so far as possible to live in accordance with Gods wishes for humanity, striving to more completely live with each of these with every moment of ones life.

A further division is made between chukim ("decrees") -- laws without obvious explanation, such as kashrut, the dietary laws), mishpatim ("judgments") -- laws with obvious social implications and eduyot -- "testimonies" or "commemorations", such as the Shabbat and holidays). Through the ages, various rabbinical athorities have classified the commandments in various other ways.


Sin: violation of Jewish law

Judaism regards the violation of the commandments, the mitzvot, to be a sin. The term "sin" is theologically loaded, as it means different things to Jews and Christians. In Christianity a "sin" is an offense against God, by which one is separated from God's love and grace, and for which one would suffer punishment, unless one repents (see Sin for a more complete comparision of sin from several viewpoints). Judaism has a wider definition of the term "sin", and also uses it to include violations of Jewish law that are not necessarily a lapse in morality. Further, Judaism holds it as given that all people sin at various points in their lives, and hold that God always tempers justice with mercy.

The generic Hebrew word for any kind of sin is aveira ("trangression"). Based on the Tanakh (Hebrew Bible) Judaism describes three levels of sin.

* Pesha -- an "intentional sin"; an action committed in deliberate defiance of God;
* Avon -- a "sin of lust or uncontrollable emotion". It is a sin done knowingly, but not done to defy God;
* Cheth -- an "unintentional sin".

Judaism holds that no human being is perfect, and all people have sinned many times. However a state of sin does not condemn a person to damnation; there is always a road of teshuva (repentance, literally: "return"). But, warn the Rabbis, there are some classes of person for whom this is exceedingly difficult, such as the one who slanders another.

In earlier days, when Jews had a functioning court system (the beth din and the Sanhedrin high court), courts were empowered to administer physical punishments for various violations, upon conviction by far stricter standards of evidence than are acceptable in American courts: corporal punishment, incarceration, excommunication. Since the fall of the Temple, executions have been forbidden. Since the fall of the autonomous Jewish communities of Europe, the other punishments have also fallen by the wayside. Today, then, one's accounts are reckoned solely by God.


Gentiles and Jewish law

All denominations of Jews hold that gentiles are not obligated to follow Halakha; only Jews are obligated do so. Judaism has always held that gentiles are obligated only to follow the seven Noahide Laws; these are laws that the oral law derives from the covenant God made with Noah after the flood, which apply to all descendants of Noah (all living people). The Noahide laws are derived in the Talmud (Tractate Sanhedrin 57a), and are listed here:

1. Murder is forbidden.
2. Theft is forbidden.
3. Sexual immorality is forbidden.
4. Eating flesh cut from a still-living animal is forbidden (a humanitarian law - many ancient tribes used to do this)
5. Belief in, and/or prayer to idols is forbidden.
6. Blaspheming against God is forbidden.
7. Society must establish a fair system of legal justice to administer these laws honestly.

Although not mentioning the Noahide Laws directly by name, the convention of Apostles and elders in Jerusalem mentioned in Acts 15 appears to validate the idea that all gentiles follow the constraints established by the covenant of Noah. This is what appears to be the case, as verse 15:20 lists a similar set of constraints to be applied to the gentiles that are converted to Christianity as what is contained in the Noahide laws.


The sources and process of Halakha

The major sources and genre of Halakha include:

* The foundational Talmudic literature (especially the Mishna and the Babylonian Talmud);
* The post-Talmudic codificatory literature, such as Maimonides' Mishneh Torah and the Shulkhan Arukh (see Codes, below);
* Commentaries on Talmudic and other rabbinic literature;
* Ordinances, regulations and other "legislative" enactments promulgated by rabbis and communal bodies;
* Customs, community practices, and customary law, as well as the exemplary deeds of prominent (or local) rabbis;
* The she'eloth u-teshuvoth (responsa, literally "questions and answers") literature.

In addition, a special principle of Halakha (dina d'malchuta dina) recognizes that non-Jewish laws and non-Jewish legal jurisdiction are binding on Jewish citizens, especially for many areas of commercial, civil and criminal law.

The boundaries of Jewish law are determined through the halakhic process, a religious-ethical system of legal reasoning. Rabbis generally base their opinions on the primary sources of Halakha as well as on precedent set by previous rabbinic opinions. Unlike Anglo-American common law, though, Halakhah does not rely on a strict theory of binding precedent nor provide for systematic review of precedents. Generally, Halakhic arguments are effectively, yet unofficially, peer-reviewed. When a rabbinic posek ("decisor") proposes a new interpretation of a law, that interpretation may be considered binding for the posek's questioner or immediate community. Depending on the stature of the posek and the quality of the decision, an interpretation may also be gradually accepted by rabbis and members of similar Jewish communities.

Under this system, there is a tension between the relevance of earlier and later authorities in constraining halakhic interpretation and innovation. On the one hand, there is a principle in Halakha to not overrule a specific law from an earlier era, unless based on an earlier authority. On the other hand, another principle recognizes the responsibility and authority of later authorities, and especially the posek handling a concurrent question. In addition, the Halakha embodies a wide range of principles that permit judicial discretion and deviation (Ben-Menahem).

Notwithstanding the potential for innovation, rabbis and Jewish communities differ greatly on how they make changes in Halakha. Notably, poskim frequently extend the application of a law to new situations, but do not consider such applications as constituting a "change" in Halakha. For example, many Orthodox rulings concerning electricity are derived from rulings concerning fire, due to its similarity with that other form of human-managed energy. Conservative Judaism and Reform Judaism tend to explicitly interpret Halakha to take into account sociological factors. For instance, the liberal Jewish movements extend the application of certain Jewish obligations and permissible activitites to women. See below: How Halakha is viewed today.

There is no formal peer-review process for the entire Jewish community in general, since the Jewish community has no one central body that speaks for all of Judaism. However, within certain Jewish communities formal organized bodies exist: Each division or dynasty of Orthodox Hasidic Judaism has their own rebbe, who is their ultimate decisor of Jewish law. 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.

In antiquity, the Sanhedrin functioned essentially as the Supreme Court and legislature for Judaism, and had the power to create and administer binding law on all Jews - rulings of the Sanhedrin became Halakha; see Oral law. That court ceased to function in its full mode in AD 40. Today, application of Jewish law is left to the local rabbi, and the local rabbinical courts, with only local applicability.


Eras of history important in Jewish law

See also Rabbinic literature.

* The Tannaim are the sages of the Mishna (70–200)
* The Amoraim are the sages of the Talmud (200–500)
* The Savoraim are the classical Persian rabbis (500–600)
* The Geonim are the rabbis of Sura and Pumbeditha, in Babylonia (650–1250)
* The Rishonim are the rabbis of the early medieval period (1250–1550) preceding the Shulkhan Arukh
* The Acharonim are the rabbis of 1550 to the present.

Generally speaking, a rabbi in any one period of time does not overrule specific laws from earlier eras of Jewish history, unless one can find another rabbi from that era whose ruling can be used to support his view. There are important exceptions to this principle in order to empower the posek (decisor) or beit din (court) responsible for a given opinion.


The thirteen rules by which Jewish law was derived

During the time of the Mishnah, the oral law was said to be derived from the written Torah by virtue of one or more of the following methods ("Introduction to Sifra" by Ishmael ben Elisha, c. 200 CE):

1. Kal va-Chomer (a fortiori): We find a similar law in a more lenient case; how more so should that law apply to our stricter case!
2. Gezera shava, similarity in phrase: We find a similar law in a verse containing a similar phrase to one in our verse. This method can only be used by oral tradition.
3. Binyan av, either by one or two Scriptures: We find a similar law in another case, why shouldn't we assume that the same law applies here? Now the argument may go against this inference, finding some law which applies to that case but not to ours. This type of refutation is valid only if the inference was from one Scripture, not if it was from two Scriptures.
4. Klal ufrat, a generality and a particularity: If we find a phrase signifying a particularity following that of a generality, the particularity particularises the generality and we only take that particular case into account.
5. Prat ukhlal, a particularity and a generality: If the order is first the particularity and then the generality, we add from the generality upon the particularity, even to a broad extent.
6. Klal ufrat ukhlal, a generality, a particularity and a generality: If there is a particularity inserted between two generalities, we only add cases similar to the particularity.
7. Klal shehu tzarich lifrat, a generality that requires a particularity, and a particularity that requires a generality:
8. Every thing that was within the general rule and was excluded from the rule to teach us a rule, we don't consider this rule as pertaining only to this excluded case, but to the entire general case.
9. Anything that was included in a general rule, and was excluded to be susceptible to one rule that is according to its subject, it is only excluded to be treated more leniently but not more strictly.
10. Anything that was included in a general rule and was excluded to be susceptible to one rule that is not according to its subject, it is excluded to be treated both more leniently and more strictly.
11. Anything that was included in a general rule and was excluded to be treated by a new rule, we cannot restore it to its general rule unless Scripture restores it explicitly.
12. A matter that is inferred from its context, and a matter that is inferred from its ending.
13. The resolution of two Scriptures that contradict each other [must wait] until a third Scripture arrives and resolves their apparent contradiction.

Scholars have noted the similarity between these rabbinic rules of interpretation and the hermeneutics of ancient Hellenistic culture.


How Halakha is viewed today

See also The Talmud in modern-day Judaism.

Orthodox Judaism holds that the words of the Torah (Pentateuch) were indeed dictated by God to Moses in almost precisely the way that they exist in the Torah today. The laws contained in the Written Torah were given along with detailed explanations as how to apply and interpret them, the Oral Law. The religious laws that Jews know today are thus directly derived from Sinai. As such, one must be extremely conservative changing or adapting Jewish law. Orthodox Judaism holds that, given Jewish law's Divine origin, no underlying principle may be compromised in accounting for changing political, social or economic conditions; in this sense, "creativity" and development in Jewish law is limited. See Orthodox beliefs about Jewish law and tradition.

To the Orthodox Jew, Halakha is a guide, God's Law, governing the structure of daily life from the moment he or she wakes up to the moment he goes to sleep. It includes codes of behavior applicable to a broad range of circumstances (and many hypothetical ones).

Conservative Judaism holds that the current text of the Torah is a composite that was redacted together from earlier sources. Conservative Jews hold that it is possible to believe that God is real and that prophets like Moses really were inspired by God. However, whatever records and traditions relating to such events were apparently transmitted in various forms for many centuries. This says nothing about whether the Torah is based on God or not, and so this idea not a theological threat. Therefore Conservative Judaism teaches that one should make use of literary and historical analysis to understand how these texts developed, and to help them understand how they may applied in our own day. Conservative Jews view the laws and customs from the various law codes as the basis for normative Jewish law. Solomon Schechter writes "however great the literary value of a code may be, it does not invest it with infallibility, nor does it exempt it from the student or the Rabbi who makes use of it from the duty of examining each paragraph on its own merits, and subjecting it to the same rules of interpretation that were always applied to Tradition". [Solomon Schechter].

Reform Judaism and Reconstructionist Judaism both hold that modern views of how the Torah and rabbinic law developed imply that the body of rabbinic Jewish law is no longer normative (seen as binding) on Jews today. Therefore Jews are not expected or taught to follow most of halakha. Those in the traditionalist wing of these movements hold that each Jew is obligated to interpret the Torah, Talmud and other Jewish works for themselves, and this interpretation will create separate commandments for each person. Those in the neo-traditional wing of Reform include Rabbis Eugene Borowitz and Gunther Plaut.

Those in the liberal and classical wings of Reform believe that in this day and era most Jewish religious rituals are no longer necessary, and many hold that following most Jewish laws is actually counter-productive. They propose that Judaism has entered a phase of ethical monotheism, and that the laws of Judaism are only remnants of an earlier stage of religious evolution, and need not be followed. This is considered wrong (and arguably heretical) not only by Orthodoxy, but by Conservative Judaism, and perhaps by some in the traditional wing of Reform.


Flexibility within the Halakha

Throughout history, halakha had been a remarkably flexible system, despite its internal rigidity, addressing issues on the basis of circumstance and precedent. For instance, rulings regarding modern technology have been incorporated into the ever-expanding halakhah. New rulings guide the observant about the proper use of electricity on the Sabbath and holidays within the parameters of halakhah. (Many scholarly tomes have been published and are constantly being reviewed ensuring the maximum coordination between electrical appliances and technology with the needs of the religiously observant Jew, with a great range of opinions.) Often, as to the applicability of the law in any given situation, the proviso is: "Consult your local Orthodox rabbi or posek."

Modern critics, however, charge that with the rise of movements that challenge the "Divine" authority of halachah, traditional Jews have greater reluctance to change, not only the laws themselves but also other customs and habits.

* As above, Orthodox Jews hold that, unlike secular precedent-based systems, halakha is a religious system, whose axiom is that Jewish law represents the will of God, either directly, or as close to directly as possible. If the laws in Jewish law codes are not the word of God per se, they are nonetheless derived from the literal word of God in the Torah, using a set of rules also revealed by God to Moses on Mount Sinai, and have been derived with the utmost accuracy and care. As such, one must be extremely conservative changing or adapting Jewish law. There have, nevertheless, been many changes including more formal education for women in the early twentieth century, and the application of halakha to modern technology.

* The view held by Conservative Judaism (and to some extent within the left wing of Orthodoxy) is that while God is real for theological reasons, the Torah is not the word of God in a literal sense. However, in this view the Torah is still held as mankind's record of its understanding of God's revelation, and thus still has divine authority. In this view, traditional Jewish law is still seen as binding. Jews who hold by this view generally try to use modern methods of historical study to learn how Jewish law has changed over time, and are more willing to change Jewish law in the present.

Codes of Jewish law

The Torah and the Talmud are not formal codes of law; they are sources of law. There are many formal codes of Jewish law that have developed over the past few thousand years. The major codes are:

* The Mishnah, composed by Rabbi Judah the Prince, in AD 200, as a basic outline of the state of the Oral Law in his time. This was the framework upon which the Talmud was based.

* The Hilchot of the Rif, Rabbi Isaac Alfasi (1013–1103), summations of the legal material in the Talmud.

* The Mishnah Torah (also known as the Yad Ha-Hazaqah), by Maimonides (Rabbi Moshe ben Maimon, the Rambam). The 14 volumes in this work encompass the full range of Jewish law, as formulated for all ages and places. It completely reorganizes and reformulates the laws in a logical system. It opens with a section on systematic philosophical theology, derived largely from Aristotelian science and metaphysics, which it regards as the most important component of Jewish law.

* The work of the Rosh, Rabbi Asher ben Jehiel (1250?/1259?-1328), an abstract of the Talmud, concisely stating the final Halakhic decision and quoting later authorities, notably Alfasi, Maimonides, and the Tosafists. This work superseded Rabbi Alfasi's and has been printed with almost every subsequent edition of the Talmud.
* The Sefer Mitzvot Gadol (The Semag) of Rabbi Moses ben Jacob of Coucy (13th century, Coucy, France.)

* The Arba'ah Turim (The Tur, The Four Columns) by Rabbi Jacob ben Asher. (1270 - 1343, Toledo, Spain.) The Tur followed Maimonides's precedent in arranging his work in a topical order. However, the Tur covers only those areas of Jewish religious law that were in force in the author's time. The code is divided into four main sections; almost all Jewish codes of law since this time have followed the Tur's arrangement of material.
o Orach Chayim - "The Way of Life" worship and ritual observance in the home and synagogue, through the course of the day, the weekly sabbath and the festival cycle.
o Yoreh De'ah - "Teach Knowledge" assorted ritual prohibitions, dietary laws and regulations concerning menstrual impurity.
o Even Ha-'Ezer - "The Rock of the Helpmate" marriage, divorce and other issues in family law.
o Hoshen Mishpat - "The Breastplate of Judgment" The administration and adjudication of civil law.

* The Beit Yosef, and the Shulkhan Arukh of Rabbi Yosef Karo (1488–1575). The Beit Yosef is a huge commentary on the Tur in which Rabbi Karo clarifies the opinions of rabbinic authorities who lived after the time of Rabbi Yaakov. The Shulkhan Arukh is a more concise collection of the Beit Yosef. (Literally translated, Shulkhan Arukh means "set table".) In writing the Shulkhan Arukh, Rabbi Yosef followed the chapter divisions of the Tur. Sephardic Jews use the Shulkhan Arukh as the basis for their daily practice.

* Rabbi Moshe Isserles (Cracow, Poland, 1525 to 1572) noted that the Shulkhan Arukh was based on the Sephardic tradition, and he created a series of glosses to be appended to the text of the Shulkhan Arukh for cases where Sephardi and Ashkenazi customs differed. The glosses are called Hamapah, the "Tablecloth" for the "Set Table". His comments are now incorporated into the body of all printed editions of the Shulkhan Arukh; typeset in a different script. Isserles' Darkhei Moshe is similairly a commentary on the Tur and the Beit Yosef.

* The Shulchan Aruch HaRav of Rabbi Shneiur Zalman of Liadi (c. 1800) was an attempt to recodify the law as it stood at that time; unfortunately, most of the work was lost in a fire prior to publication. It is held in esteem by some Hasidim, and is quoted as authoratitive by many subsequent works.

* "Layman oriented" digests of Halakha: The Kitzur Shulkhan Arukh of Rabbi Shlomo Ganzfried (Hungary 1804 -1886), based on the very strict Hungarian customs of the 19th century, became immensely popular after its publication due to its simplicity. This work is not binding in the same way as the Mishneh Torah or the Shulkhan Arukh. It is still popular in Orthodox Judaism as a framework for study, if not always for practice. Chayei Adam and Chochmat Adam by Avraham Danzig (Poland, 1748-1820) are similar Ashkenazi works. The Ben Ish Chai by Yosef Chaim (Baghdad, 1832 - 1909) and Kaf HaChaim by Yaakov Chaim Sofer (Baghdad and Jerusalem, 1870 - 1939) are corresponding Sephardi works.

* The Mishnah Berurah of Rabbi Yisroel Meir ha-Kohen, (the "Chofetz Chaim", Poland, 1838 - 1933) is a commentary on the "Orach Chayim" section of the Shulkhan Arukh, discussing the application of each Halakha in light of all subsequent Acharonic decisions. It has become the authoritative halakhic guide for much of Orthodox Ashkenazic Jewry in the postwar period, supplanting the more scholarly Aruch haShulchan of Rabbi Yechiel Michel Epstein.

* "A Guide To Jewish Religious Practice", by Rabbi Isaac Klein, with contributions from the Committee on Jewish Law and Standards of the Rabbinical Assembly. This work is based on the previous traditional law codes, but written from a Conservative Jewish point of view. It is not accepted among Orthodox Jews.

From: http://en.wikipedia.org/wiki/Halakha

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