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:
“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…”
“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.
“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)