How Does Halakha Work? (R. J.D. Bleich)

Rabbi J. David Bleich is a Rosh Yeshiva at Yeshiva University, an expert in Jewish law and medical ethics, and the author or editor of some 15 books.

I thought I might write a little bit about the theories behind Halakha as a system according to Rabbi J. David Bleich, who is the author of the Contemporary Halakhic Problems series, a prominent Rosh Yeshiva at Yeshiva University, and the head of its advanced Kollel Le-Hora’ah. Less known are his short book on Ralbag’s theory of providence and his work on Jewish belief entitled With Perfect Faith, of which I have only read the first. At any rate, he’s a genius and expert in Judaism, so he’s a person in a good position to tell us not just how Halakha might be applied in specific situations (or general theoretical ones), but also what the theoretical underpinnings of Halakha are. The reason I mention his knowledge of Jewish philosophy is because this indicates we can rely on him to be expert in Jewish belief, which cannot be separated from Jewish Law.

Anyway, in his introduction to the fourth volume of Contemporary Halakhic Problems, Rabbi Bleich writes a little bit about the nature of Jewish Law, and I thought I might summarize a few of his points from there. If I recall correctly, this introduction describes Halakha in a way which is quite similar or the same as the introduction to the first volume of the series, and I think we can assume R. Bleich is consistent. However, I encourage you not to take my word for it, which is really something you can only do on a blog, since there’s basically no accountability. This, of course, is one of the reasons no one respects blogs.

On to some important points from Rabbi Bleich:

1:

 “Halakhah is an intellectual discipline, but its pursuit is accompanied by awesome moral and religious responsibility…halakhic error or laxity is as dangerous to the soul as other forms of error may be to the body.” (p.xi)

This demonstrates, as we noted, that Jewish Law and belief are tied to each other. Our values have to accompany our legal pronouncements. Additionally, Halakha is not just a cultural treasure or expression. Rather, the “mitzvot…are a matter of spiritual life…”

2:

“There is nothing in these volumes…that is innovative in the true sense of that terms, just as there is nothing innovative in a treatise on physics. Both disciplines have as their subject a closed, immutable system of law-physical in the case of the latter, regulative in the case of the former.” (p.xii)

Here Rabbi Bleich describes Halakha as a closed system, with internal and set rules which guide it as a process. New rules aren’t invented, and what looks like new is really something old being exposed in a new way. Like physics, the world hasn’t changed just because we now know that the world isn’t flat. Rather, our understanding of the old immutable laws has expanded. So too in Jewish law, old rules are understood in a new way, though they have never actually changed.

This being the case, we should now note Rabbi Bleich’s position that Halakha is a totally objective system “in its pristine form”. Thus, subjectivity may creep in, but this is not ideal. Rather, it should be treated as math is, with set rules to be followed.

So too, like science, the Halakhist acts “on the basis of the canons of his discipline as understood by his quite fallible intellect, not on the bassis of subjective predilections.” (p.xiii)

If we put this idea together with the notion that Jewish Law and belief should not be separated from one another, perhaps we might come to the conclusion that Jewish Belief is objective, at least in some ways, and within certain limits. For instance, we might say that it is an objective Jewish belief that the Torah is Divine, but that there is no objective position regarding rationalism or mysticism. This is just an example, but if Jewish law is to remain objective, and it cannot be separated from the fear of Heaven (p. xi), then the fear of Heaven must have an objective understanding in some way.

3:

“Leniencies and permissive rulings exist in abundance. The point is to seek neither the stringent nor the lenient, but the view that is most authoritative. Moreover, there usually is a view which has been accepted in practice by the majority of poskim as the accepted standard. Thereupon, such a ruling becomes normative and deviation cannot be considered other than by virtue of  compelling reasons.” (p.xiii)

R. Bleich tells us that his above point is obvious to anyone with a complete instruction in Jewish Law, but that some need to be reminded. These people try to reconcile Halakha with the outside world or outside norms, when, as R. Bleich has already told us, Halakha is a closed and independent system. Therefore nothing new can be brought into it, even though there lenient positions available to be relied upon if we do in fact allow ourselves to influenced by the outside world.

An example of this might be the question of women who wish to be called up to the Torah. This is permitted according to the strict law (in Rabbi Yehuda Henkin’s opinion1), and we might wish to call for equality and institute this practice. Should we do it? No Halakha will be broken. R. Bleich tells us that the answer to this sort of question should be sought by turning to the authoritative positions in Jewish law, and measured according to its own norms.

4: While Halakha is objective, there is disagreement, since no two minds are the same, and even the same formal rules can be interpreted differently or given different weights by competing authorities (p.xiv). These authorities must be more than computers who can spit back relevant sources, and their understanding of the “art” of Halakhic decision making entails the ability to identify relevant issues and questions, and apply the principles they’ve learned. Additionally, there are policy calls, even though policy cannot judge between competing theories or precedents (p.xv). I’m not exactly sure where the line is drawn in Rabbi Bleich’s opinion. He does tell us public guidance may need policy considerations, even though the law may be clear. For instance, if a rabbi is afraid that a group will misapply a permissive ruling, he may tell them it is not permitted.

However, Rabbi Bleich makes the following important point:

“Unfortunately or otherwise, it has become the practice in some highly erudite and respected rabbinic circles for halakhic authorities to issue pronouncements decrying certain practiced without indicating that those statements are prompted by policy concerns rather than by immutable halakhic standards. This has given rise, in the eyes of some, to the entirely erroneous perception that Halakhah itself is policy driven and hence, in the final analysis, subjective in nature.” (p.xvii)

Suffice it to say that this problem is widespread, and it creates a terrible ignorance of actual Halakhot, beyond convincing people that Halakha is whatever rabbis want it to be, according to their own policy considerations. If Rabbis can do whatever they want to push what they see as Jewish values, then there is no end to how they can change our religion, whether by adding to the law or getting rid of it entirely. Even more informal interpretations of Halakha therefore must admit the strong objective elements that are present in it which guide it.

5: Lastly, this may be clear already, but I’ll note it anyway. Halakha deals with new modern questions, in Rabbi Bleich’s opinion, but it has clearly formulated rules as to how to deal with these questions. It does not pay attention to modernity or modern philosophies on their own merit then, but merely examines the new situations which arise due to them, and then independently asserts what the rule is (p.xvii).

I think I summarized the gist of Rabbi Bleich’s approach as portrayed in his introduction to his fourth volume of Contemporary Halakhic Problems. I hope I haven’t misled you in regards to his opinions, but I recommend you check out the book and his essays in Tradition anyway, so you can make the call then. At any rate, Rabbi Bleich is a tremendous Talmid Chakham, but suffice it to say that his opinion is not the only one around. It is however,  fairly clear, though I’m still left with questions regarding policy and subjectivity in making judgement calls. If Halakha is supposed to be totally objective, what exactly is the missing piece which keeps Halakha from being like math? Why is the fear of Heaven required, so long as as the clear and formal guiding rules of Jewish law are followed? And if the fear of Heaven is required, what exactly does it mean to be a qualified ya’re shamayim?

R. Bleich answers the latter that “In its most fundamental sense yir’at shamayim, fear of Heaven, is the reflection of a conviction that halakhic error or laxity is as dangerous to the soul as other forms of error may be to the body” (p. xi), but I’d like to read more about this point. What are the non-fundamental elements to the fear of Heaven? And why does “fear of Heaven” seem to mean a fear for one’s soul when Rabbi Bleich knows that yir’at shamayim is best translated as “awe of Heaven”, which would most likely be more akin to recognizing God’s greatness and then desiring to serve him because He is God, not because our souls may be damaged if we do not? How important are the answers to these questions, and what if someone gives the “wrong” answer? Perhaps Rav Bleich addresses this elsewhere; I don’t know. If you do, please send me the reference or a link.

1Understanding Tzniut: Modern Controversies in the Jewish Community, page 101-105 (UrimPublications, 2008)

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12 Comments

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12 responses to “How Does Halakha Work? (R. J.D. Bleich)

  1. ruvie

    nice summary. why do you think jewish belief cannot be separated from jewish law (its questionable if its part of jewish law or assumed minimally see kellner). more importantly it would be nice to see what other theories or models of jewish law exists. the question is why does R’ Bleich choose this theory or philosophy of halakha as oppose to others at his disposal. What issue(s) does he sidesteps or can ignore (same for the Rav). Comparing halakha to either math or physics creates its own false analogy that does not stand up to real scrutiny. You are asking the right questions for the false notion of anything objective about it.

    • Yitzchak Sprung

      My personal inclination is that it’s both assumed and a part of halakha, but I’m not talking about heresy, or anything like that. I simply think that a) halakha assumes it is the service of God b)if you believe in morality (most of us do) then halakha assumes itself to be moral and to have the correct values.

      We could make other statements like this.

      Additionally, it’s a part of halakha when we’re trying to convey that something is our opinion, like the bracka before we read Torah or Shema.

      I’m planning on summarizing some other approaches to Halakha, so don’t worry about that. I started with Rabbi Bleich arbitrarily.

      Having said that, I don’t think I can speculate about why he chooses this theory over any other. I don’t know why (other than that he thinks it’s correct).

      • ruvie

        Actually, i think the only part that matters is heresy and how you define it. the misnah in sanderin 10:1 says haomer she ain torah min hashamayim – not one who thinks or believes but states publicly.

        On R’ Bleich – i think the reason is this false notion notion that halakha needs to be found or discovered not molded or made by poskim. Physics and math describe the reality of the universe. a formula works only if it can be tested in reality and proven with actual results. halakha if configured in this way needs to only be found by the posek as Hashem’s will. the problem is halakha is no such animal. its subjective in the way posek frames the question and which sources he chooses to focus on and weight he gives to each. it is molded by the posek and frame in the socio-economic times of that posek (for example the shabbos goy or today: why does r’ schechter come to different reasoning than RAL on women ordination – YYY vs not tradition- they should come to the same conclusion with similar reasoning).

        This gives R’ Bleich – as well as the Rav – the ability or theory to eliminate (or make impervious to) any socio-economic or outside influence into the decision making process (contra to the history of halacha – see katz, ta shma, et al). this is a type of formalism used in legal theory – only trying to divine what the text says from the author (like the constitution). the reality is of course different where the posek personal preferences and history will influence the outcome. in the end is it really objective and pure like math and physics? Physics tell us a theory via math of what the world actually is not what we want it to look like (see the faultiness of the analogy?). or is that a mantra that most folks do not understand what it means and its significance? looking forward to your other posts.

        • Yitzchak Sprung

          I have to disagree with your first point.

          It’s true that the Mishnah seems to limit heresy, and f I recall correctly, that rambam there says we generally don’t paskin on belief.

          However, I think it is a mistake to take belief out of Halacha. It is not that belief ha no role- rather it is that one who has a mystical approach to prayer, and one who has a rationalist approach are both tying acceptable beliefs to the law.The question of setting boundaries and deciding on these matters is a separate discussion. I think that within in the realm of non heretical ideas, our beliefs accompany Halacha in every way.

          In regards to your last point- obviously these are questions I’d like to be answered too. The question is really about ideals, and not the practice, since Rav bleich could answer that those influenced by economics are making a mistake, even if great rabbis did it. (With the assumed exception of “the economy forced me to look into a new question”, which is discussed in a different form in halakhic man)

          I’m not sure how one could conclusively prove halakha’s nature to be one way or the other, but maybe that’s just due to my own ignorance in this area. At any rate, I hope that by introducing and summarizing other positions that some of these points might become clear, or at least that the battleground will.

          Also, if you want to write about Katz, ta-shma, etc. on these areas I’d be happy to post it. You can contact me on Facebook or twitter. Same goes for anyone else reading.

          • ruvie

            On the first point – belief i think is embedded in halakha but hard to see how its part of (or has any influence in)the halakhic process or psak. what matters is what rabbis like R’ Bleich believe what halakha is – in its essence before analyzing what they think. Is halakha just there to be discovered by the posek or is it created via the personality and social-eco component of said posek?

            ” The question is really about ideals, and not the practice..” well both really. the practice tells or informs (as well as test the truth claims between the two) about one’s ideals. R’ Bleich can say what he wants – their is an actual factual history of halakha (and its development)that cannot be ignored. If its like math – where are the fixed formulas and rules (that don’t contradict each other- which they do at times)?

            Its not about proving “Halakha’s nature” – Rabbis have a stated or unstated opinion on this matter and at its core informs how they view halkha and its process – which EFFECTS how psak is determined. A more critical attitude is needed when analyzing these matters for we live in reality (as well as part of history) and not some utopian world of halakhic science that is fiction.

            Not qualified or knowledgeable to write on anything only to kvetch about everything

            • Yitzchak Sprung

              You might be right sometimes, and I’m definitely not claiming any certainty. Still, Isadore Twersky writes about how belief is incorporated into the MT, and I don’t think you can separate Rambam’s psak from his belief. MBS also has a great essay on it in his essyas on Maim. and his interpreters. It’s just a list of times Rambam edited halakhot with demons, etc. from what the gemara said because he was unable to accept it (he secretly does the same for Meiri in the footnotes, which was awesome.

              Additionally, just yesterday I saw a paper by Yitzchak Brand about how halakha relates to the idea of corporations, and he shows a couple of examples of how the Rogitchover imported the ideas of form and matter into his psak and commentaries, which was really cool. Anyway, if he’s wrong (and I’m not sure how seriously modern poskim take Aristotelian philosophy), then he can’t be relied on.

              I agree with you that the conception of Halakha forms everything that comes after, but I think Rav Bleich does too- that’s why he wants you to accept his perspective.

              Also, I can’t really answer the question of how to put proof together or how to view halakha, what the rules are, etc. I hope to post about some of Rambam’s psak methods soonish though, so there will be some rules there.

              Anyway, I can’t pass judgement in the end-not qualified either. Still, enjoying discussing this.

  2. Le Newyorkais

    You r right that halakha is a closed system. when u spend your whole life in any system, sometimes a breath of fresh air is needed.
    well, let me be that whiff of fresh air. Let’s think out of the box for a moment. To me, halakha makes sense only if u believe it makes sense. without that axiom, which is flawed, it is nearly nonsensical.
    First, let’s examine the notion that God is interested in the fine points of law. Does that assumption really make sense? The God who created innumerable universes, and innumerable universes within each atom, seriously cares about what 1 group of 1 species eats or does not? and even if he does, he cares about sets of dishes? and the method by which u use an elevator on the Sabbath? and that u praise and thank him 100 times a day? Come on, u can assert that God cares about every blade of grass, but that assertion is based only on wishful thinking. Is there any evidence that is so? and if it IS indeed so, WHY would that be? why WOULD he care about the petty comings and goings of man?
    Second, it is clear by now, that halakha does not ennoble the soul. if God gives laws for OUR benefit, why does it not work? If ritual is SO beneficial, how is it that a man who follows all the rituals and mikvas, and all that, how can this man’s soul be so flawed as to molest children, chas v’shalom? why hasn’t the halakha worked its magic on him?
    A friend was telling me about R. Bleich’s work in medical ethics. Well, I, for 1, did not find all of it so very ethical (or compassionate). Yes, he does address end-of-life issues for terminal patients, but he gives no stock in the ravages of the disease process, if, unfortunately for those people, their heart and lungs continue to work despite their excruciatingly painful terminal hopeless disease.
    Halakha makes sense only if u want it to. And, it conflicts with ethics VERY frequently. slavery, genocide, and many other ETHICAL evils exist within the halakhic framework.
    In general. I would posit, the halakhic system was developed BY rabbis FOR their own benefit. Look at the Talmud. in 1 midrash, the powers of the rabbis and their rules (in this case, that majority carries the vote) OVERWHELMS what God’s voice tells them. Then, God laughs, and is pleased that the rabbis have outsmarted him. Come on! if that is not the most self-serving nonsense, I do not know what it.

    • Yitzchak Sprung

      Le- it’s been too long.

      I’ll address your last point first (we’ve discussed this many times in the past)

      A) Halakha, like any strong legal system, relies on experts. This is essential to every legal system, since most people don’t have the time, wherewithal, or training to deal in law, theology, etc.

      This being the case, the experts in Jewish law are the ones to discuss it and make decrees.

      People do not like lawyers, but our society does not eliminate them because we need them. Germany (if I remember my history of law course correctly) once tried to eliminate the need for experts in law, which may seem like a nice idea. It quickly proved too difficult to implement.

      Additionally, there are many today who would like all Jews to be learned rabbis. We may debate whether or not this is the true intention of Judaism, especially in a non-utopian world, but this is hardly an attempt to centralize power in the hands of the few.

      Additionally, Chazal ceaselessly busy themselves with the welfare of the Jewish people, among whom they were very popular. They weren’t oppressors, but advocates of the people.

      2) Yes-the rabbis assume that God cares about the small things.

      If one accepts revelation, this is not hard to explain, not to mention that it isn’t too difficult to make a case logically. We won’t successfully prove this idea one way or another, so I won’t spend more time on it. I’ll only say that I strongly disagree with your comments and tone which imply that anyone who disagrees with you is not only wrong, but being foolish.

      3) In regards to Halakha, ethics, and the ennoblement of the soul, no one will disagree with you that we need to examine our Torah, our laws, and our lives. However, don’t forget the role of Judaism and Jewish law in creating ethics either. I’d recommend reading Neviim acharonim, The prophets by Heschel, E. Berkovitz and Chief Rabbi Sacks on these matters to get started.

      4) Lastly, I’ll note something someone mentioned to me recently.

      Rules can seem oppressive, but in certain ways they are actually quite liberating. For instance, if you follow the rules, you may play baseball, but if you change them, you are doing something else. Someone who understands how colors go together can be a great artist, and someone with a great understanding of the rules of physics can put us in an airplane. Rules and restrictions allow us to live together, hold each other responsible, and create a healthy society.

      Rules are restricting, without a doubt. But they are also necessary if you want to do just about anything.

      Halakha has its own goals, which I imagine you don’t accept. However, others do, and we appreciate the role those rules play in allowing us to reach them.

  3. Le Newyorkais

    I have no intention of b’mayzid offending anyone. If my words make anyone feel that, I submit that I am not as good a writer as I think I am. Now, in case u have not guessed, I am an atheist who used to be frum, but now I am OTD (off the derekh).
    Frum people love the idea that ba’alei tshuva USED TO BE secular (let’s say), but now they have found the light and became frum.
    Well, I USED to be frum, and with time and study have become an epikores. What makes MY journey less valid than THEIR journey?
    Both myself and the BT were wrong once, and right once. That fact alone tells u that each side has equal validity. I say to BT’s: u were right the FIRST time. And BT’s may well say the same to me.
    In short, what makes my journey to atheism less valid than their journey to frumkeit?

    • Yitzchak Sprung

      Hi Le,

      As opposed to focusing on what differences we have, I propose we focus on the things we have in common. You may be an atheist, but I imagine you are doing your best to live a moral life, treat people with respect, and be kind. Additionally, you seem to want to know the truth, and perhaps you even enjoy the study of Torah, even if you do not believe in it.

      This blog exists for the study and discussion of Torah, not to pass judgement on anyone, let alone you. I don’t know you or your story, and I won’t pretend to. I am certainly not out to question your journey, and I don’t think most Orthodox people are either. Having said that, of course we, as people who have particular views on what is important or unimportant, are happy when people join us in them. This is logical, in my opinion.

      Rather than us focusing on our disagreements (and the list must be long), I vote we simply discuss the ideas here in a respectful way. This blog disagrees with you, but I won’t take it upon myself to try and defend the axioms it relies on at every turn. You decide for yourself what axioms to accept and reject, and perhaps at some other time I might be able to deal properly with your very good questions. However, at this time, I’m unqualified, so I can only suggest that you take a look at what experts and qualified non-experts have to say.

      If you like, I can send you suggested reading if I know of any, (contact me on fb or twitter) for these sorts of general questions. Otherwise, I’d prefer to stick to whatever issue is at hand.

      Have a fantastic weekend, Le.

      Best,

      Yitzchak

  4. Le Newyorkais

    u r right. In your universe, u assume that Torah life is the true way. If I am unwilling to take that axiom, we will probably disagree on many topics. 1 of us is talking 3-D Eucliean geometry, while the other is talking 5-D non-Euclidean.
    As a result, it is no surprise our findings will differ.
    My comments should stick to the topic at hand, not to my general rantings against faith.
    I will contact u on fb for some additional reading.

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