Halachah and Aggadah

Rabbi Gordon Tucker, HALAKHIC AND METAHALAKHIC ARGUMENTS CONCERNING JUDAISM AND HOMOSEXUALITY

https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/tucker_homosexuality.pdf

:שאלה Can homosexuality, both male and female, be reconciled with Judaism, conceived through a halakhic lens? Specifically, can Jews who are living sexual lives with partners of the same sex be considered to be subject to the same obligations and entitled to the same rights as those whose sexual lives are with members of the opposite sex?2 (In the sequel, the status that is described in this question will be called, for the sake of simplicity, the “normalization of Jewish gays and lesbians”, or, where the context is clear, just “normalization”)

:תשובה I. INTRODUCTION This paper argues for an answer to the question posed above, and in that sense it is a responsum. But it goes beyond the treatment of the question at hand. It is a more general essay on approaches to law, and in particular on the methods that have been used to analyze and develop halakhah. The paper argues that those methods that have been used in the Conservative Movement have been conceived in an overly narrow way, and that this constriction of method has put Conservative halakhic practice at odds with the historical consciousness that has been the root of the fabulously fruitful intellectual and theological achievements of Conservative Judaism and its scholars. Approaches to understanding the authority of religious law are no more determined in our sacred texts than are approaches to understanding the authority of the texts themselves.

...The long-standing – and understandable – tendency to divide up religious literature into halakhah (law) and aggadah (narrative) has thus always been a mistake. The law is given cogency and support by the ongoing story of the community that seeks to live by the law. This is true no less for religious than for secular communities, and it is precisely what Robert Cover had in mind when he wrote that “for every constitution there is an epic." The ongoing, developing religious life of a community includes not only the work of its legalists, but also its experiences, its intuitions, and the ways in which its stories move it. This ongoing religious life must therefore have a role in the development of its norms, else the legal obligations of the community will become dangerously detached from its theological commitments. And when that happens, halakhah becomes idiosyncratic, and less and less possible to defend even to ourselves.44 So we would do well to speak of Halakhah, written with a capital “H”, when we wish to denote not only collections of rules and precedents, but rather a more expansive repertoire of legally relevant materials, which include the accretions over time of theological and moral underpinnings of the community of faith. And a vision of a Halakhic methodology would then be one that would include the more conventional halakhic methods, but would also appeal to aggadic (narrative) texts that have withstood the tests of time to become normative Jewish theology and ethics. The kinds of formative aggadic texts which I claim must be given legal standing will be exemplified later in this section. How can commitment within a community itself generate legal meaning and make legal claims that command attention (even though those claims may not prevail in the end)?

Here is Robert Cover’s description of such a process: "Consider the case of the civil rights sit-in movement from 1961 until 1964. The movement’s community affirmed that the Constitution of the United Sates has a valid moral claim to obedience from the members of the community. Yet the community also affirmed an understanding that the Constitution’s guarantee of equal protection includes a right to be served in places of public accommodation without regard to race. In the face of official interpretations of the Constitution that permitted continued discriminatory practices in public accommodations, the movement had this choice: it could conform its public behavior to the official “law” while protesting that the law was “wrong”, or it could conform its public behavior to its own interpretation of the Constitution. There is both “disobedience” and “obedience” in either case. But only obedience to the movement’s own interpretation of the Constitution was fidelity to the understanding of law by which the movement’s members would live uncoerced. Thus, in acting out their own, “free” interpretation of the Constitution, protesters say, “We do mean this in the medium of blood” (or in the medium of time in jail); “our lives constitute the bridges between the reality of present official declarations of law and the vision of our law triumphant” (a vision that may, of course, never come to fruition). A community that acquiesces in the injustice of official law has created no law of its own. It is not sui juris…..The community that disobeys the criminal law upon the authority of its own constitutional interpretation, however, forces the judge to choose between affirming his interpretation of the official law through violence against the protesters and permitting the polynomia of legal meaning to extend to the domain of social practice and control. The judge’s commitment is tested as he is asked what he intends to be the meaning of his law and whether his hand will be part of the bridge that links the official vision of the Constitution with the reality of people in jail."

...Theirs [homosexuals] is not a story of how sinfulness is unavoidable and thus excusable, but rather a story of how there is more than one human sexuality, and that loving attachment to a partner of the same sex can, for those constituted this way, be as fulfilling and as redemptive to the human soul as heterosexual marriage can be. The problem is that there is simply no way to read this into the sources available to us on what we have called the derivational pathways stemming from the Torah and from the Sages. So the narrative, the aggadah, must be looked to carefully, and it must be connected to genuine Jewish narrative. I have detailed above the personal and compelling stories of Jewish gays and lesbians, and they are in and of themselves an “aggadic” source that can claim status within a Halakhic method. But there is still much value in being able to root those stories in the soil of classical aggadah. I therefore offer – as a traditional narrative that begs for standing alongside its halakhic cousins – a fuller variant of the Midrash from Sifre Numbers about the daughters of Zelophehad that was cited in Section VII.

Rabbi Abraham Joshua Heschel, Between God and Man

Halakhah represents the strength to shape one’s life according to a fixed pattern; it is a form-giving force. Aggadah is the expression of man’s ceaseless striving that often defies all limitations. Halakhah is the rationalization and schematization of living; it defines, specifies, sets measure and limit, placing life into an exact system.

Aggadah deals with man’s ineffable relations to God, to other men, and to the world. Halakhah deals with details, with each commandment separately; aggadah with the whole of life, with the totality of religious life. Halakhah deals with the law; aggadah with the meaning of the law. Halakhah deals with subjects that can be expressed literally; aggadah introduces us to a realm that lies beyond the range of expression. Halakhah teaches us how to perform common acts; aggadah tells us how to participate in the eternal drama. Halakhah gives us knowledge; aggadah gives us aspiration.

Halakhah gives us the norms for action; aggadah, the vision of the ends of living. Halakhah prescribes, aggadah suggests; halakhah decrees, aggadah inspires; halakhah is definite; aggadah is allusive.

When Isaac blessed Jacob he said: "God give thee the dew of heaven, the fat of the earth, and plenty of corn and wine" (Genesis 27:28). Remarked the Midrash (an early Rabbinic commentary on Scripture): "Dew of heaven is Scripture, the fat of the earth is mishnah (the first compendium of Jewish case law), corn is halakhah, wine is aggadah."

Halakhah, by necessity, treats with the laws in the abstract, regardless of the totality of the person. It is aggadah that keeps on reminding that the purpose of performance is to transform the performer, that the purpose of observance is to train us in achieving spiritual ends.…

To maintain that the essence of Judaism consists exclusively of halakhah is as erroneous as to maintain that the essence of Judaism consists exclusively of aggadah. The interrelationship of halakhah and aggadah is the very heart of Judaism. Halakhah without aggadah is dead, aggadah without halakhah is wild.

Halakhah thinks in the category of quantity; aggadah is the category of quality. Aggadah maintains that he who saves one human life is as if he had saved all mankind. In the eyes of him whose first category is the category of quantity, one man is less than two men, but in the eyes of God one life is worth as much as all of life. Halakhah speaks of the estimable and measurable dimensions of our deeds, informing us how much we must perform in order to fulfill our duty, about the size, capacity, or content of the doer and the deed. Aggadah deals with the immeasurable, inward aspect of living, telling us how we must think and feel; how rather than how much we must do to fulfill our duty; the manner, not only the content, is important.

To reduce Judaism to law, to halakhah, is to dim its light, to pervert its essence and to kill its spirit. We have a legacy of aggadah together with a system of halakhah, and although, because of a variety of reasons, that legacy was frequently overlooked and aggadah became subservient to halakhah, halakhah is ultimately dependent upon aggadah. Halakhah, the rationalization of living, is not only forced to employ elements that are themselves unreasoned, its ultimate authority depends upon aggadah. For what is the basis of halakhah? The event at Sinai, the mystery of revelation, belongs to the sphere of aggadah. Thus while the content of halakhah is subject to its own reasoning, its authority is derived from aggadah….

To reduce Judaism to inwardness, to aggadah, is to blot out its light, to dissolve its essence and to destroy its reality. Indeed, the surest way to forfeit aggadah is to abolish halakhah. They can only survive in symbiosis. Without halakhah, aggadah loses its substance, its character, its source of inspiration, its security against becoming secularized.

By inwardness alone we do not come close to God. The purest intentions, the finest sense of devotion, the noblest spiritual aspirations are fatuous when not realized in action. Spiritualism is a way for angels, not for man. There is only one function that can take place without the aid of external means: dreaming. When dreaming, man is almost detached from concrete reality. Yet spiritual life is not a dream and is in constant need of action. Action is the verification of the spirit. Does friendship consist of mere emotion? Of indulgence in feeling? Is it not always in need of tangible, material means of expression? The life of the spirit too needs concrete actions for its actualization. The body must not be left alone; the spirit must be fulfilled in the flesh. The spirit is decisive; but it is life, all of life, where the spirit is at stake. To consecrate our tongue and our hands we need extraordinary means of pedagogy.

It is impossible to decide whether in Judaism supremacy belongs to halakhah or to aggadah, to the lawgiver or to the Psalmist. The rabbis may have sensed the problem. "Rav said: The world was created for the sake of David, so that he might sing hymns and psalms to God. Samuel said: The world was created for the sake of Moses, so that he might receive the Torah" (Babylonian Talmud Sanhedrin 98b)….

There is no halakhah without aggadah, and no aggadah without halakhah. We must neither disparage the body nor sacrifice the spirit. The body is the discipline, the pattern, the law; the spirit is inner devotion, spontaneity, freedom. The body without the spirit is a corpse; the spirit without the body is a ghost. Thus a mitzvah is both a discipline and an inspiration, an act of obedience and an experience of joy, a yoke and a prerogative. Our task is to learn how to maintain a harmony between the demands of halakhah and the spirit of aggadah.