By Bradley Goldstein
Over the past few weeks, a topic of hot discussion in our shiurim (classes) and sichot (conversations) has been Halacha. What is its place? Can it change? If so, by what means does it change? Although I can not give a definitive answer to these questions, I hope to explain several perspectives on Halacha and show how these theories have been present at least since the time of the Gemara.
In Rav Yehuda Gilad's weekly class on modern, spicy issues in the Halachic world, we recently discussed feminism within the context of Judaism. In defining how Halacha changes over time, he presented us with his view of the structure of Halacha. On one hand, we have 'normative principles', which are timeless values. Whereas we change our lives to accommodate these principles, there is no room for altering them to fit to our liking. On the other hand, we have 'applicable principles' which guarantee the Torah's relevance in every generation by changing, based on the rules of Halacha, to fit the structure of society, the specific community and any other relevant detail. Each sugya (topic) must be studied to determine which of its principles are normative, and which are applicable.
According to Rav Gilad, this formulation of the structure of Halacha would be accepted by any Orthodox rabbi. Halacha must be relevant to be effective. For example, in Rambam's Halacha code, Mishnah Torah, he states, "and do not let [her] go out [of the house] except once or twice a month" (laws of women, chap. 13). Not even those who live in the heart of Meah Shearim abide by this Halacha. How can we disregard a rule given to us by Rambam, foremost post-Talmiduc Halachic master? Clearly, Rambam was living in an Islamic society in which it was unacceptable for women to be seen outside of the house. These days, when women are allowed to roam the streets, thank G-d, this Halacha does not fit. But just as in northern Africa, where Rambam was trying to maintain the normative principle of tzniut (modesty), we still have laws pertaining to modesty that make sense in the modern day and age. Based on the rules of Halacha, normative principles are maintained by evolving applicable principles which fit to every generation.
Now, if Rav Gilad explained the structure of Halacha, a recent chutznick (foreign student) conversation with Rav Bigman clarified the essence of what Halacha is. Unlike Rav Gilad's seemingly all-encompassing ideas, Rav Bigman presented three different takes on Halacha:
The first view, as supported by thinkers such as Yeshayahu Leibowitz and Rav J.B. Soloveitchik, claims that Halacha is totally metaphysical, and because G-d commanded us to do the mitzvot, we must "sacrifice ourselves on the altar of Halacha" to Him. The law is the law. Only after the law code is established is the question raised of how to accomdate human needs into the system. This idea became central after the Enlightenment, coming largely as a response to the Conservative movement, which modified offensive Halachot outside of the Halachic process. In Rav Elisha Ancselovits' Halacha class, we discussed several criticisms of this approach. Most obviously, the law is not occupied with accomodating human life. (Eg. "How do we know that one may not add to the Lulav or Tzitzit? For it says: 'Do not add to it'" (Sifrei Devarim, piska 82).) This view assumes that we do everything "because He said so," and for no other reason. There is no room for change to address human needs! This take on Halacha, therefore, does not fit within Rav Gilad's idea of applicable principles which allow for change. Because this idea of Halacha least resonates with me, I will focus mostly on the two other views presented to us by Rav Bigman.
The second view, which I have become very familiar with from Rav Elisha's class, is that Halacha totally reflects human needs. Halacha is a law code which takes into account the human psyche, trauma and every part of human nature. As Halachic writings clearly can not possibly address every situation that can arise in reality, Halacha presents us with archetypes reflecting human values. Halacha, with these values as its backbone, presents us with practical guidelines to live life. In this view, there is no tension between Halacha and reality; rather, the archetypes of Halachic theory are engineered to set up practical laws fitting the reality in each and every age and society. This idea fits perfectly with Rav Gilad's Halachic structure in which the applicable principles, if read as values, adapt with each new change in society to purvey the timeless normative principles (or values).
The final view we discussed, which Rav Bigman most identifies with, falls somewhere between the totally metaphysical Halacha and the totally man-centered Halacha. The service of G-d is deeply intertwined with the service of fellow man. The law is only meaningful because it is divinely given, but G-d also gave the rabbis the right to mold the law to fit human needs. On one hand, the right of the rabbis ensures that human values remain reflected through the laws, and that they don't become a 'Leibowitzian' divine code that we follow "because He said so". On the other hand, there is a need to keep traditional laws so that Halacha retains its authority and does not become open-ended and not divine. This tension between the ideal theory of Halacha and the modern world determines what becomes practical Halacha. Note that Rav Bigman advocates this view as a model of Halachic ruling, and while it may fit many cases, it is only a model and does not necessarily encompass every case. I think in Rav Gilad's language, the modern changing world, with its new norms and ethics, drives the applicable principles to change, whereas the traditional laws temper this unrestricted growth.
In my opinion, although Rav Elisha and Rav Bigman would agree with each other in their conceptions of Rav Gilad's normative principles, they essentially differ in how they think that the change in applicable principles comes about. Rav Elisha, who believes that Halachic theory is fit to be an archetype of all realities, would say that applicable principles are simply the application of the constant normative values to the specific situation. Alternatively, Rav Bigman would say that the tension between Halacha as theory and as reality determines what the applicable principles look like in practice.
I think that this argument is not just a contemporary discussion, but also one that has been around for over a thousand years, dating back to at least time of the Gemara. My beiyun (in-depth) Gemara class taught by Rav Meir Rubinstein on the tractate "Baba Metzia", has been focusing on 'hashavat aveida' (returning a lost object). There is a general rule that if someone loses an object in a very public area mainly inhabited by non-Jews, (who presumably don't know the laws of hashavat aveida and would not return a lost object), then he should give up any hope of finding the object. Losers weepers. The object is free to whomever finds it. The Gemara (page 24b) brings an interesting case in which Rav Yehuda finds a wallet in a public, Goyishe area and rightfully takes it. But not so fast! The Gemara continues the story and complicates the case when a Jew comes and claims that the wallet is his. Rav Yehuda is caught in a pickle. On one side, he should be Halachically allowed to keep the wallet. On the other side, a panicking Jew confronts him and pleads for it back. Does Rav Yehuda have an obligation to return the wallet? Halachically? Morally?
Before looking at the Gemara's response, let's think of how Rav Elisha and Rav Bigman might address this problem. According to Rav Elisha's view, Halacha is the application of general human values to practical situations. What human needs must be addressed in this specific case? There is: 1) the need of someone who lost an object to get it back, but there is also 2) the need of someone who found an object not to be completely burdened by going to the ends of the Earth to return it. In a case when someone finds a lost object in a public, gentile area, we say that it would be a huge burden on him to return it, and therefore don't force him to. However, in is specific case, where we have the 'loser' of the object confronting the finder, suddenly there's a much larger need for the 'loser' to get the object back, and now, the finder isn't even burdened by going out of his way to return the object. Of course he must return the object!
According to Rav Bigman's model, there is the tension between the Halacha -"keep the object"- and the real world, which begs for the finder to return the object. Morally, there seems to be a clear obligation to return the object. However, if we overturn this specific Halacha, Halacha as a whole loses its divine obligation because we can overturn it at will. Who knows what kind of slippery slope this may start? It is safer to keep the Halacha as is, and advise being a good, just person, and return the object anyways.
As we have just seen, both views lead to the same conclusion that the finder should return the wallet. The difference is in how they reached this conclusion, and whether or not the ruling is in tension with Halachic theory.
Finally, let's see how these theoretical responses compare with the Gemara's response. Further along in the story, Rav Yehuda learns that he is chayav (obligated) to return the object and go "beyond the letter of the law". Does this mean that Rav Elisha's view would be right because Rav Yehuda is obligated to return the object as part of the law? Or maybe Rav Bigman's view would be right and "going beyond the letter of the law" is just that: above the law itself? Various commentators ask the same question, and comment on the ambiguous phrase. Rambam seems to be in the same camp as Rav Bigman. "One who wants to go in the good and right path and go beyond the letter of the law should return the lost object" (Mishnah Torah, laws of stolen and lost objects, ch. 11, law 7). Like Rav Bigman might say, Rambam emphasizes that there is no obligation to return the object, rather only "one who wants to" can. Hagut Maimonit, Rav Meir bar Yekutiel HaCohen's commentary on the Rambam, takes Rav Elisha's side and writes, "We force him to practice beyond the letter of the law". By forcing Rav Yehuda to return the object, it necessarily means that returning the object has become part of the law.
This distinction, of whether to deal with Rav Gilad's applicable principles as legal principles or value principles, was present not only among thirteenth-century commentators, but also goes back even to the time of the Gemara itself. The most simple reading of the story of Rav Yehuda and the wallet implies that he is obligated to return the wallet and go beyond the letter of the law. However, in almost an identical case a few lines later in the Gemara, Rava finds a wallet, and is instructed that even if a Jew comes to claim it, he does not need to return it. Rava replies in shock, "and isn't he standing in panic!?". No, "It's just like he would be yelling as if his house collapsed or if his ship sunk," and there is nothing to do about it. Losers weepers. While the first case, after a simple reading, indicates that Rav Yehuda must return the wallet, here, in a very similar case, Rava has no Halachic obligation to return the wallet. In the first case, the Halacha conforms to this confrontation with reality in a Rav Elisha-style thinking. However the second case, in a more Rav Bigman-style, finds that maintaining the authority of the existing Halacha is more important than changing to include this specific case. While in both cases we would probably advise the finder to return the lost object, the way by which we approach the place of "change" in Halacha determines whether or not we include this law into the Halachic codes. Therefore, this machloket (argument) was present not only among the commentators of the Gemara, but even within the process of the Talmud itself.
In addition to learning about Halacha here at Maale Gilboa, I have enjoyed learning Gemara, Tanach and philosophy, and I hope to continue investing my year in a meaningful and productive way. The Ramim here are especially helpful in answering any questions or talking about anything that comes to mind, and I want to express my appreciation to them for all their time committed to teaching young Yehsiva students.
