Codifying Jewish Law is Not Authentic

Nathan Lopes Cardozo

vrijdag 8 december 2017

Excerpts from my book soon to be released: Jewish Law as Rebellion: A Plea for Religious Authenticity and Halachic Courage, Urim Publications, Jerusalem, New York, December 2017. Now available for pre-order on the Urim Website:

Over the last five hundred years, famous rabbinic leaders have called to limit the overwhelming authority of Rabbi Yosef Karo’s Shulchan Aruch and Rambam’s Mishne Torah. (1) They felt that these works do not reflect authentic Judaism and its halachic tradition. (2) The reason is obvious. These great codes of Jewish Law are very un-Jewish in spirit. They present Halacha in ways which oppose the heart and soul of the Talmud, and therefore of Judaism itself. They deprived Judaism of its multifaceted halachic tradition and its inherent music. It is not the works themselves which are the problem, but the ideology which they represent: The ethos of codifying and finalizing Jewish Law.

This problem has taken on formidable proportions in our day. There is more Jewish learning today than in the last two thousand years. More and more young people dedicate themselves to a life of shemirat ha-mitzvot (Torah observance). This should be cause for great optimism. What more could we want in an age of extreme secularism?

However, it is hard to deny that this commitment reveals a worrisome side-effect. It exposes elements of an artificial Judaism suspended in time, which has been rewritten in ways which detrimentally oppose its very living nature.

A careful read of modern Jewish Orthodox literature reveals that many authors misunderstand the nature of Jewish Law. Much of this literature is dedicated to extreme and obsessive codification, which goes hand in hand with a desire to “fix” Halacha once and for all. The laws of muktza (3), tevilat kelim (4), tzeniut (5), and many others are codified in much greater detail than ever before. These works have become the standard by which the young, growing, observant community lives its life. When studying them one wonders whether our forefathers were ever really observant, since such compendia were never available to them and they could never have known all the minutiae presented today to the observant Jew. Over the years we have embalmed Judaism while claiming it is alive because it continues to maintain its external shape.

The majority of halachic literature today is streamlined, allowing little room for halachic flexibility and for the spiritual need for novelty. For the most part, the reader is encouraged to follow the most stringent view without asking whether this will actually help her or him in their avodat ha-Boreh (service of the Almighty) according to her or his distinct personality. The song of the Halacha, its spirit, weltanschauung, and mission are entirely lost in this type of literature. When the student tries to look beyond these works (seeking spiritual music), he is often confronted with a dogmatic approach to Judaism which entirely misses the mark. We are plagued by over-codification and dogmatization.

The obsessive attempt to codify Jewish beliefs also contradicts the very nature of Judaism. Jewish beliefs are constantly being dogmatized and halachized by rabbinic authorities, and anyone who does not accept these rigid beliefs is no longer considered to be a real religious Jew. A spirit of finalization has taken over Judaism.

These and Those Are the Words of the Living God

One of the Talmud’s greatest contributions to Judaism is its indetermination, its frequent refusal to lay down the law (6). Talmudic discussions consist primarily of competing positions, often lacking a clear decision on which view is authoritative. The reason is obvious: There should not be one. The well-known Talmudic statement “Elu ve-elu divrei Elokim Chaim” (These and those are the words of the Living God) (7) supports this position. Halachic disagreement and radically opposing opinions are of the essence. There is a profound reason for this principle. The Torah, which is the word of God, can only be multifaceted. Like God Himself, it can never fit into a finalized system, for it is much too broad in scope. Every human being is different; the Torah must therefore be different to each one of them, showing nearly infinite dimensions and possibilities. This is one of the most fascinating aspects of Jewish Tradition, making it strikingly distinct from the religions of the world.

In an illuminating discourse, Rabbi Shlomo Luria, Maharshal (1510– 1574) states:
“One should never be astonished by the range of debate and argumentation in matters of Halacha … All these views are in the category of ‘these and those are the words of the Living God’ as if each one of them was directly received by Moshe at Sinai … The kabbalists explained that the basis for this is that each individual soul was present at Sinai and received the Torah by means of forty-nine tzinorot, spiritual channels. Each one perceived the Torah from his own perspective in accordance with his intellectual capacity as well as the nature and uniqueness of his particular soul. This accounts for the discrepancy in perception inasmuch as one concluded that an object was tamei (ritually impure) in the extreme, another perceived it be absolutely tahor (ritually pure), and yet a third individual argues the ambivalent status of the object in question. All these are true and authentic views. Thus the sages declared that in a debate among the scholars, all positions articulated are different forms of the same truth.” (8)

Maharshal’s observations go to the heart of Judaism. There is no such thing as a fixed Halacha which is identical for all. Surely there are objectives which need to be achieved: namely, the fulfilment of God’s commandments. But there are no passive recipients. Each person receives the Torah individually, according to his or her own personality and exceptional circumstances.

In fact, one could argue that ideally no written text should have been given at Sinai, since no two people are able to read the same text in an identical way. The meaning of the text is dependent to a large extent on the reader, and is therefore not a fixed reality. The fact that a text was even given at Sinai is in itself a compromise. Even if a text should have been given, a priori, it should have been in as many versions as there are Jews since Sinai. This did not happen; only one text was revealed. This was due to the fact that there was a need for unity and affiliation among Jews, sharing the experience of a divine text in a bond of togetherness, shaping a Chosen People that would carry the word of God to the world. There was a need for a grundnorm through which Jews would be able to discuss the word of God and share it wherever they go. Above all, a fixed text was necessary to facilitate discussion, not agreement. In this way it would stay alive, infinitely enhancing new possible interpretations and unique insights.

It could even be argued that not all Jews were in need of the same mitzvot (sing. mitzva – Torah commandment). It was only for the sake of comradeship and for the common destiny of the Jewish people and their mission to the world that they all had to commit themselves to all of the mitzvot. As Rabbi Mordechai Yosef Leiner of Izbica (1801–1854) states, although not every Jew is in need of every prohibition in the Torah, “he is still obligated to heed and suffer this prohibition for the sake of his fellow Jew.” (9)

The Nature of Halacha

Halacha is the practical upshot of unfinalized beliefs, a practical way of life while remaining in theological suspense. In matters of the spirit and the quest to find God, it is not possible to come to final conclusions. The quest for God must remain open-ended to enable the human spirit to find its way through trial and discovery. As such, Judaism has no catechism. It has an inherent aversion to dogma. Although it includes strong beliefs, they are not susceptible to formulation in any kind of authoritative system. It is up to the Talmudic scholar to choose between many opinions, for they are all authentic. They are part of God’s Torah, and even opposing opinions “are all from one Shepherd.” (10)

Halacha transforms the fluid liquid of Jewish beliefs into a solid substance. It chills the heated steel of exalted ideas and turns them into pragmatic actions. The unique balance between practical Halacha and unfinalized beliefs ensures that Judaism will not turn into a religion which is paralyzed in awe of a rigid tradition, or evaporate into a utopian reverie.

Still, it would be entirely wrong to believe that the need for practical application of Halacha has anything to do with absolute truth. Practical Halacha is in principle only one way to act. It carries authority only as far as the practical implementation of the Halacha is concerned. Even when practical Halacha must be decided upon, the heat of debate must stay alive. Jewish beliefs are like arrows that dart to and fro, wavering as though shot into the air from a slackened bowstring. Halacha must reflect this. While Halacha is more straight and unswerving, it must adhere to the unequivocal truth that even opposing halachic opinions are “all the words of the Living God,” and each of them carries the potential to become practical Halacha.

(1) For an excellent overview of the halachic codification literature, see Menachem Elon, Jewish Law: History, Sources, Principles, trans. Bernard Auerbach and Melvin J. Sykes (Philadelphia: Jewish Publication Society, 1994), 3:1149–1452. The following essays in his book are particularly relevant to our discussion: Regarding Rambam’s codification, see “Critical Reaction to Maimonides’ Codificatory Methodology,” 3:1215–1229. Regarding the codification of the Shulchan Aruch, see “The Codifactory Literature: Reactions to the Shulchan Aruch, and its Final Acceptance,” 3:1367–1422. See also Elon, “Codification of Law,” in Encyclopaedia Judaica, ed. Michael Berenbaum and Fred Skolnik, 2nd ed. (Detroit: Macmillan Reference USA, 2007), 4:765–781; Elon, “Meni’im ve-Ekronot be-Codifikatsia shel ha-Halacha,” in Hagut ve-Halacha: Sefer ha-Kinus ha-Shenati le-Machshevet ha-Yahadut, ed. Yitzchak Eisner (Jerusalem: Ministry of Education and Culture, 1968), 75–119.

(2) For a history of opposition to the Shulchan Aruch, see Chaim Tchernowitz (Rav Tzair), Toledot ha-Poskim (NY: The Jubilee Committee, 1947), 3:73–137. For a list of numerous sources on the authority of the Shulchan Aruch and its detractors, see Hanina Ben-Menahem, Neil S. Hecht, and Shai Wosner, ed., Controversy and Dialogue in Halakhic Sources (Jerusalem: The Institute of Jewish Law, Boston University and The Israel Diaspora Institute, Jerusalem, 2002), 1:513–559 [Hebrew]; Yoel Schwartz, Ha-Shulchan Aruch ve-Nosei Kelav (Jerusalem: Devar Yerushalayim, 1995). On the problem of deciding Halacha based on the summarized rulings contained in the Mishne Torah and Shulchan Aruch, see Meir Berkovits, “Pesika mi-Toch Sifrei Kitzurim: Iyun be-Darko shel ha-Rambam,” Shana be-Shana (1995): 390–420.

(3) Laws pertaining to the moving of objects on Shabbat.

(4) Laws pertaining to utensils that are used for food preparation or consumption, which need to be immersed in a mikva, a ritual bath.

(5) Laws pertaining to modesty.

(6) See also Leon Wiener Dow, “Opposition to the ‘Shulhan Aruch’: Articulating a Common Law Conception of Halakha”, Hebraic Political Studies 3, no. 4 (2008): 352–376.

(7) Eruvin 13b.

(8) Yam shel Shlomo, introduction to Bava Kamma.

(9) Mei ha-Shilo’ach 1:29 on Bereshit 22:12.

(10) Chagiga 3b.

8 + 1 = ?

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