Introduction, The Methodology of Halakhah מבוא: המתודולוגיה של ההלכה
1 א

Judaism is unique in its teaching that study is not merely a means but an end, and not merely an end among ends, but the highest and noblest of human aspirations. Study of Torah for its own sake is a sacramental act, the greatest of all mizvot. Throughout the generations Torah scholars were willing to live in poverty and deprivation in order to devote themselves to study. Every Jew, regardless of the degree of erudition he had attained, devoted a portion of his time to Torah learning. Those capable of doing so plumbed the depths of the Talmud. Others perused the Mishnah or studied the weekly Torah portion together with the commentary of Rashi. Even the unlettered recited psalms on a regular daily basis. To the Jew, Torah study has always been more than a ritual act; it has always been a religious experience.

2 ב

The Jew has always perceived God speaking to him through the leaves of the Gemara, from the paragraphs of the Shulḥan Arukh and the words of the verses of the Bible. The Sages long ago taught, "kudsha berikh hu ve-oraita ḥad," God and the Torah are one; the Torah is the manifestation of divine wisdom. God reveals Himself to anyone who immerses himself in the depths of Torah; the intensity of the revelation is directly proportionate to the depth of penetration and perceptive understanding. To the scholar, a novel, illuminating insight affords a more convincing demonstration of the Divine Presence than a multitude of philosophic arguments. It is a form of divine confrontation which must be experienced in order to be understood. Yet it is a relationship which every Jew may experience, at least be-ze'er anpin, in minuscule form, through Torah study.

3 ג

Judaism is fundamentally a religion of law, a law which governs every facet of the human condition. The Torah contains not merely a set of laws but also canons of interpretation as well as principles according to which possible internal conflicts may be resolved. Maimonides records the doctrine that the Torah will not be altered, either in its entirety or in part, as one of the Thirteen Principles of Faith. The divine nature of Torah renders it immutable and hence not subject to amendment or modification.

4 ד

Although the Torah itself is immutable, the Sages teach that the interpretation of its many laws and regulations is entirely within the province of human intellect. Torah is divine but "lo ba-shamayim hi—it is not in the heavens" (Deut. 30:12); it is to be interpreted and applied by man. A remarkable corollary to the principle of the immutability of the Torah is the principle that, following the revelation at Sinai, no further heavenly clarification of doubt or resolution of ambiguity is possible. Clarification and elucidation are themselves forms of change. Since there can be no new revelation, a prophet who claims the ability to resolve disputed legal points by virtue of his prophetic power stands convicted by his own mouth of being a false prophet.

5 ה

Once revealed, the Torah does not remain in the heavenly domain. Man is charged with interpretation of the text, resolution of doubts, and application of the provisions of its laws to novel situations. The Gemara, Baba Mezi'a 59b, presents a vivid illustration of the principle lo ba-shamayim hi in a narrative concerning a dispute between R. Eliezer and the Sages regarding a point of ritual law. R. Eliezer refused to be overridden by the view of the majority and went to great lengths in invoking heavenly signs in support of his own position. R. Eliezer had sufficient power to change the course of nature, to work miracles, and even to summon a heavenly voice in support of his position, but the Sages, quite correctly, failed to be impressed. Interpretation of Halakhah has been entrusted to the human intellect and, accordingly, human intellect must proceed in its own dispassionate way, uninfluenced and unprejudiced by supernatural phenomena. Even more dramatic is the narrative recorded in Baba Mezi'a 86a. Here we are told of a controversy between the Heavenly Academy and God Himself with regard to a case of possible ritual defilement. The Almighty is cited as ruling that there was no cause for ritual defilement, while the Heavenly Academy ruled that there was. The Gemara records that the matter was left for final adjudication by Rabba bar Nachmani, "who is singular [in his proficiency] in such matters." Certainly God did not need to be instructed in His Law by mortal man. The Gemara teaches that the Law was designed to be understood, interpreted and transmitted by man. Accordingly, man's understanding of Torah must prevail. Man's interpretation is not only inherent in the content of revelation but is the one which God Himself wills to prevail.

6 ו

Moreover, Jewish teaching recognizes that two conflicting conclusions may, at times, be derived from identical sources by different scholars. Which is correct? Both are correct! "These and those are the words of the living God," declare the Sages (Gittin 6b). If two conflicting conclusions may be derived from the same corpus of law, then both must be inherent therein. In the realm of theory both are correct, both are Torah. Of course, in matters of practice, in terms of psak halakhah, of definitive halakhic ruling, there must be a means of deciding between the conflicting views, else legal anarchy would result. To this end Halakhah, as a legal system, includes canons of psak, canons of judicial determination. While these may produce decisions which are of absolute binding authority, this does not imply that the view which is set aside is thereby rejected as a nullity. On the contrary, insofar as the study and pursuit of Torah is concerned, such a view is of undiminished importance. No one has ever suggested that it is not necessary to recite birkhat ha-Torah, the blessing pronounced prior to engaging in Torah study, before studying the words of Bet Shammai on the grounds that the normative decision is in accordance with Bet Hillel. In the eyes of God both are of equal validity. Definitive psak halakhah is a matter of practical necessity, but not a reflection upon transcendental validity.

7 ז

The foregoing should not in any sense generate the impression that subjective considerations or volitional inclinations may ever be allowed consciously to influence scholarly opinion. Torah study requires, first and foremost, intellectual honesty. Bet Hillel did not purposively adopt a policy of permissiveness and Bet Shammai a policy of stringency; Bet Hillel did not set out to be easygoing and Bet Shammai to be hard and unbudging. Each reported sincerely held convictions, conclusions reached in as detached and dispassionate a manner as is humanly possible. It is a travesty of the halakhic process to begin with a preconceived conclusion and then attempt to justify it by means of halakhic dialectic. Neither Hillel nor Shammai nor any of their spiritual heirs engaged in sophistry in order to justify previously held viewpoints. The dialectic of halakhic reasoning has always been conducted in the spirit of "yikov ha-din et ha-har—let the law bore through the mountain." The law must be determined on its own merit and let the chips fall where they may.

8 ח

"These and those are the words of the living God" is a dictum applicable only when fundamental prerequisites have been met. The corpus of Halakhah must be mastered in its entirety and accepted in its entirety as the content of divine revelation. Canons of interpretation, which are themselves an integral part of the Torah itself, must be applied in an objective manner. Then and only then are the resultant conclusions the "words of the living God." Then and only then may it be assumed that, from the time of the giving of the Torah, it was destined that these conclusions be reached. It is conceivable that two different individuals of equal Intelligence and erudition, both possessed of equal sincerity and objectivity, may reach antithetical conclusions. Since the Torah was given by God and disparate human intellects were created by God, the inference is virtually inescapable: it was part of the divine scheme that both conclusions be reached. Since both conclusions are derived from accepted premises and both are defended by cogent halakhic argumentation, it follows that both are legitimate expressions of Halakhah and hence both are of equal validity. Of insights attained in this manner the Sages taught, "Even that which a conscientious student will one day teach in the presence of his master was already told to Moses at Sinai" (Palestinian Talmud, Pe'ah 2:4).

9 ט

Of course the development of correctly formulated decisions governing matters of practice is of singular importance. The methodology by which some opinions are accepted and others excluded from application to practice constitutes a highly complex aspect of Halakhah. Halakhic decisions are not a matter of arbitrary choice. Decision-making is also bound by rules of procedure.

10 י

The verse "Judges and officers shall you make for yourself in all your gates" (Deut. 16:18) bestows autonomous authority upon the rabbinic judges in each locale. They are empowered to promulgate their views in the area subject to their jurisdiction. The local populace may, with complete confidence, accept the teaching of the local bet din. Thus, in the city in which R. Eliezer was the chief authority the populace chopped trees, built a fire, and boiled water on the Sabbath in preparation for a circumcision, while in a neighboring town such actions constituted a capital offense. R. Eliezer's opinion to the effect that Sabbath restrictions are suspended not only for circumcision itself but even for preparation of the necessary accouterments of this rite was authoritative in his jurisdiction. The contradictory opinion of his colleagues was binding in their jurisdictions. Only upon a decision of the supreme halakhic authority, the Bet Din ha-Gadol, sitting in Jerusalem, did a given view become binding upon all of Israel.1For a discussion of other equally binding decisions, see R. Elchanan Wasserman, Kuntres Divrei Soferim, no. 2, appended to Koveẓ Shi‘urim, II (Givatayim, 5720).

11 יא

A rabbinic authority may issue decisions in accordance with his own views when such views are not in conflict with a position already binding upon the community of Israel as a whole. He may rely upon his own opinion only if he has attained the requisite degree of Torah scholarship and erudition and if the conclusion is genuinely arrived at on the basis of his own study and analysis. It goes without saying that his decisions are authoritative only if his personal piety and religious probity are beyond question.

12 יב

Frequently, however, the rabbinic decisor is lacking in comprehensive scholarship or has not formulated a strongly held opinion of his own. In such cases, he must decide in accordance with one of a number of views expressed by his predecessors or colleagues. The ability to formulate definitive psak is the product of highly specialized skills. It is in choosing between conflicting precedents and opinions that the consummate expertise of the decisor becomes apparent. The decisor may not arbitrarily seize upon an individual opinion or a solitary source to the negation of the weight of halakhic precedent or consensus. He most certainly may not be swayed by the consideration that the resultant decision be popular or expedient or simply by the fact that it appeals to his own personal predilection. He must carefully weigh and balance opinions and decisions, assigning weight not merely on the basis of sheer number but also on the relative stature of the scholars whose opinions are under consideration, and must at the same time assess the complexities and relative importance of any number of component factors.

13 יג

In order to understand the manner in which halakhic rulings are formulated, it is necessary to focus attention upon the deductive process by means of which definitive rulings are derived from fundamental principles. If the resultant halakhic discussion is at times somewhat involved, it must be emphasized that only by means of the halakhic dialectic is it possible to appreciate the halakhic process as it is employed le-hasik shematteta aliba de-hilkhata, in reaching definitive conclusions on the basis of pertinent sources.

14 יד

The present work was not undertaken without feelings of trepidation. Is it possible to synopsize and compress complex discussions without sacrifice of accuracy? Is it possible to present the dialectic of Halakhah in a foreign idiom without distortion? However, with the proliferation of both popular and scholarly works in the vernacular dealing with matters of Jewish theology and practice, many of which, unfortunately, abound in misrepresentations and are distressingly inaccurate, it becomes imperative that attempts be made accurately to enunciate the views of normative Judaism.

15 טו

This work is not intended as an introductory volume to be perused by the totally uninitiated. The present volume is too complex and too detailed to fulfill that function. Neither is it intended to be encyclopedic in nature or even to be exhaustive in its treatment of any selected topic. Nor is it intended to serve as a practical halakhic guide, and, indeed, no attempt has been made to present definitive psak halakhah. This work is devoted to an analysis of Halakhah and halakhic reasoning rather than to the formulation of halakhic decision. As such, it is directed primarily to those who have at least some background in the study of rabbinic literature but lack the requisite skills or the leisure to assimilate and analyze the maze of responsa pertaining to the topics treated in this volume. It is intended as an invitation to the reader to join in the noblest of Jewish activities and the supremest of joys—the study of Torah.