Halakha

Etymology and terminology

The word halakha is derived from the Hebrew root halakh – "to walk" or "to go". Taken literally, therefore, "halakha" translates as "the way to walk" rather than "law". The words halakha refers to the corpus of rabbinic legal texts, or to the overall system of religious law.

The term may also be related to Akkadian ilku, a property tax, rendered in Aramaic as halakh, designating one or several obligations.

Halakha is often contrasted with aggadah ("the telling"), the diverse corpus of rabbinic exegetical, narrative, philosophical, mystical and other "non-legal" texts. At the same time, since writers of halakha may draw upon the aggadic and even mystical literature, there is a dynamic interchange between the genres. Halakha also does not include the parts of the Torah not related to commandments.

Halakha constitutes the practical application of the 613 mitzvot ("commandments") in the Torah, as developed through discussion and debate in the classical rabbinic literature, especially the Mishnah and the Talmud (the "Oral Torah") and as codified in the Mishneh Torah ("Repetition of the Torah") or Shulchan Aruch ("Code of Law").

Because halakha is developed and applied by various halakhic authorities rather than one sole "official voice", different individuals and communities may well have different answers to halakhic questions. With few exceptions, controversies are not settled through authoritative structures because during the Jewish diaspora Jews lacked a single judicial hierarchy or appellate review process for halakha.

Halakha has been developed throughout the generations since before 500 BCE, in a constantly expanding collection of rabbinic literature initially consolidated in the Talmud. First and foremost, it forms a body of intricate judicial (rabbinical) opinions, legislation, customs, and recommendations, many of them passed down over the centuries, and an assortment of ingrained behaviors, relayed to successive generations from the moment a child begins to speak. It is also the subject of intense study in yeshivas.

The 613 mitzvot

Broadly, the halakha comprises the practical application of the 613 mitzvot in the Torah, as developed in subsequent rabbinic literature. According to the Talmud (Tractate Makot), there are 613 mitzvot in the Torah, 248 positive ("thou shall") mitzvot and 365 negative ("thou shall not") mitzvot, supplemented by seven mitzvot legislated by the rabbis of antiquity.

Categories

Classical Rabbinic Judaism has two basic categories of laws:

This division between revealed and rabbinic commandments may influence the importance of a rule, its enforcement and the nature of its ongoing interpretation. Halakhic authorities may disagree on which laws fall into which categories or the circumstances (if any) under which prior rabbinic rulings can be re-examined by contemporary rabbis, but all Halakhic Jews hold that both categories exist and that the first category is immutable, with exceptions only for life-saving and similar emergency circumstances.

A second classical distinction is between the Written Law, laws written in the Hebrew Bible, and the Oral Law, laws which are believed to have been transmitted orally prior to their later compilation in texts such as the Mishnah, Talmud, and rabbinic codes.

Commandments are divided into positive and negative commands, which are treated differently in terms of divine and human punishment. Positive commandments require an action to be performed and are considered to bring the performer closer to God. Negative commandments (traditionally 365 in number) forbid a specific action, and violations create a distance from God.

A further division is made between chukim ("decrees" – laws without obvious explanation, such as shatnez, the law prohibiting wearing clothing made of mixtures of linen and wool), mishpatim ("judgments" – laws with obvious social implications) and eduyot ("testimonies" or "commemorations", such as the Shabbat and holidays). Through the ages, various rabbinical authorities have classified some of the 613 commandments in various other ways.

A different approach divides the laws into a different set of categories:

Within Talmudic literature, Jewish law is divided into the six orders of the Mishnah, which are categories by proximate subject matter: Zeraim ("Seeds") for agricultural laws and prayer, Moed ("Festival"), for the Sabbath and the Festivals, Nashim ("Women"), dealing primarily with marriage and divorce, Nezikin ("Damages"), for civil and criminal law, Kodashim ("Holy things"), for sacrifices and the dietary laws, and Tohorot ("Purities") for ritual purity. However, Talmudic texts often deal with laws outside these apparent subject categories. As a result, Jewish law came to be categorized in other ways in the post-Talmudic period.

In the major codes of Jewish law, two other main categorization schemes are found. Maimonides' Mishneh Torah divides the laws into fourteen sections. The codification efforts that culminated in the Shulchan Aruch divide the law into four sections, including only laws that do not depend on being physically present in the Land of Israel.

Sin

Judaism regards the violation of the commandments, the mitzvot, to be a sin. The generic Hebrew word for any kind of sin is aveira ("transgression"). Based on the Tanakh (Hebrew Bible) Judaism describes three levels of sin:

Relatedly, the three terms – Chayyav, Patur, Mutar – in the Gemara (literally: "the finished [word]") and Halakhic codes classify the permissibility of an action or the severity of its prohibition and punishment.

Judaism understands that the vast majority of people, aside from those who are termed Tzadikim and those termed Tzadikim gemurim (Hebrew: צדיק, "the righteous" and "the completely righteous"), will succumb to sin in their lives. A sin or a state of sin does not condemn a person to damnation; there is always a road of teshuva (Hebrew: תשובה; repentance, literally: "return"). There are some classes of people for whom this is exceedingly difficult, such as those who commit adultery, as well as those who slander others.

In earlier days, when ancient Jews had a functioning court system (the beth din and the Sanhedrin high court), courts were empowered to administer physical punishments for various violations, upon conviction by extremely high standards of evidence, far stricter than those required in western courts today. These punishments included execution, corporal punishment, incarceration, and excommunication. However, since the fall of the Second Temple, executions have been forbidden. Since the fall of the autonomous Jewish communities of Europe, most other punishments also have been discontinued.

Today, then, one's accounts are reckoned solely by God. The Talmud says that although courts capable of executing sinners no longer exist, the prescribed penalties continue to be applied by Providence. For instance, someone who has committed a sin punishable by stoning might fall off a roof, or someone who ought to be executed by strangulation might drown.

Gentiles and Jewish law

The Seven Laws of Noah, also referred to as the Noahide Laws or the Noachide Laws, are a set of imperatives which, according to the Talmud, were given by God as a binding set of laws for the "children of Noah" – that is, all of humanity.

Views today

Orthodox Judaism holds that halakha is the divine law as laid out in the Torah (five books of Moses), rabbinical laws, rabbinical decrees and customs combined. The rabbis, who made many additions and interpretations of Jewish Law, did so only in accordance with regulations they believe were given for this purpose to Moses on Mount Sinai, see Deuteronomy 17:11. See Orthodox Judaism, Beliefs about Jewish law and tradition.

Conservative Judaism holds that halakha is normative and binding, and is developed as a partnership between people and God based on Sinaitic Torah. While there are a wide variety of Conservative views, a common belief is that halakha is, and has always been, an evolving process subject to interpretation by rabbis in every time period. See Conservative Judaism, Beliefs.

Reform Judaism and Reconstructionist Judaism both hold that modern views of how the Torah and rabbinic law developed imply that the body of rabbinic Jewish law is no longer normative (seen as binding) on Jews today. Those in the traditionalist wing of these movements believe that the halakha represents a personal starting-point, holding that each Jew is obligated to interpret the Torah, Talmud and other Jewish works for themselves, and this interpretation will create separate commandments for each person.

Those in the liberal and classical wings of Reform believe that in this day and era most Jewish religious rituals are no longer necessary, and many hold that following most Jewish laws is actually counterproductive. They propose that Judaism has entered a phase of ethical monotheism, and that the laws of Judaism are only remnants of an earlier stage of religious evolution, and need not be followed. This is considered wrong, and even heretical, by Orthodox and Conservative Judaism.

Humanistic Jews value the Torah as a historical, political, and sociological text written by their ancestors. They do not believe "that every word of the Torah is true, or even morally correct, just because the Torah is old". The Torah is both disagreed with and questioned. Humanistic Jews believe that the entire Jewish experience, and not only the Torah, should be studied as a source for Jewish behavior and ethical values.

Flexibility

Despite its internal rigidity, halakha has generally been a flexible system, addressing issues on the basis of circumstance and precedent. The classical approach has permitted new rulings regarding modern technology. These rulings guide the observant about the proper use of electricity on the Sabbath and holidays within the parameters of halakha. Indeed, many scholarly tomes have been published and are constantly being reviewed ensuring the maximum coordination between electrical appliances and technology with the needs of the religiously observant Jew, with a great range of opinions. Often, as to the applicability of the law in any given situation, the proviso is to "consult your local rabbi or posek". Modern critics, however, have charged that with the rise of movements that challenge the "divine" authority of halakha, traditional Jews have greater reluctance to change, not only the laws themselves but also other customs and habits, than traditional Rabbinical Judaism did prior to the advent of Reform in the 19th century.

Differences between Orthodox and Conservative Judaism

Orthodox Jews maintain halakha is derived from the divine law of the Torah (Bible), rabbinical laws, rabbinical decrees and customs combined. As such it should be adhered to as an unalterable authority. They also believe there are traditional formulas that date back to Moses on how the divine law may be interpreted – see above, "Rules by which early Jewish law was derived". Conservative Jews have varied views regarding the origin of the Torah and its authority today, and believe it can be continuously reinterpreted. Their view of halakha has given rise to substantial differences in approach as well as result.

Orthodox Judaism

Orthodox Jews believe that halakha is a religious system, whose core represents the revealed will of God. Although Orthodox Judaism acknowledges that rabbis made many decisions and decrees regarding Jewish Law where the written Torah itself is non-specific, they did so only in accordance with regulations given to them by Moses on Mount Sinai (see Deuteronomy 5:8–13). These regulations were transmitted orally until shortly after the destruction of the Second Temple. They were then recorded in the Mishnah, and explained in the Talmud and commentaries throughout history, including today. Orthodox Judaism believes that subsequent interpretations have been derived with the utmost accuracy and care. The most widely accepted codes of Jewish law are known as Mishneh Torah and the Shulchan Aruch. No rabbi has the right to change Jewish law unless he clearly understands how it coincides with the precepts of the Talmud and later codes of Jewish law. Later commentaries were accepted by many rabbis as final; however, other rabbis may disagree.

Orthodox Judaism has a range of opinions on the circumstances and extent to which change is permissible. Haredi Jews generally hold that even minhagim (customs) must be retained and existing precedents cannot be reconsidered. Modern Orthodox authorities are generally more inclined to permit limited changes in customs, and some reconsideration of precedent. All Orthodox authorities, however, agree that only later rabbinical interpretations are subject to reconsideration, and hold that core sources of Divine written and oral law, such as the Torah the Mishnah and the Talmud, cannot be overridden.

Conservative Judaism

One view held by Conservative Judaism is that while God is real, the Torah is not the word of God in a literal sense. However, in this view the Torah is still held as mankind's record of its understanding of God's revelation, and thus still has divine authority. In this view, traditional Jewish law is still seen as binding. Jews who hold to this view generally try to use modern methods of historical study to learn how Jewish law has changed over time, and are in some cases more willing to change Jewish law in the present.

A key practical difference between Conservative and Orthodox approaches is that Conservative Judaism holds that its rabbinical body's powers are not limited to reconsidering later precedents based on earlier sources, but the Committee on Jewish Law and Standards (CJLS) is empowered to override Biblical and Taanitic prohibitions by takkanah (decree) when perceived to be inconsistent with modern requirements or views of ethics. The CJLS has used this power on a number of occasions, most famously in the "driving teshuva", which says that if someone is unable to walk to any synagogue on the Sabbath, and their commitment to observance is so loose that not attending synagogue may lead them to drop it altogether, their rabbi may give them a dispensation to drive there and back; and more recently in its decision prohibiting the taking of evidence on Mamzer status on the grounds that implementing such a status is immoral. The CJLS has also held that the Talmudic concept of Kavod HaBriyot permits lifting rabbinic decrees (as distinct from carving narrow exceptions) on grounds of human dignity, and used this principle in a December 2006 opinion lifting all rabbinic prohibitions on homosexual conduct (the opinion held that only male-male anal sex was forbidden by the Bible and that this remained prohibited). Conservative Judaism also made a number of changes to the role of women in Judaism, including counting women in the minyan and ordaining women as rabbis. The latter was accomplished by simple vote on the faculty of the JTS. Orthodox Judaism holds that takkanot (rabbinical decrees) can only supplement and can never nullify Biblical law, and significant decisions must be accompanied by scholarly responsa citing sources and halakhic precedent.

An example of how different views of the origin of Jewish law inform Conservative approaches to interpreting that law involves the CJLS's acceptance of rabbi Elie Kaplan Spitz's responsum decreeing the Biblical category of mamzer as "inoperative", in which The CJLS adopted the Responsum's view that of how, in the Conservative view of halakha, the "morality which we learn through the unfolding narrative of our tradition" informs the application of Mosaic law:

We cannot conceive of God sanctioning undeserved suffering ... When a law of Torah conflicts with morality, when the law is 'unpleasant,' we are committed to find a way to address the problem… We are willing to do explicitly what was largely implicit in the past, namely, to make changes when needed on moral grounds. It is our desire to strengthen Torah that forces us to recognize, explicitly the overriding importance of morality, a morality which we learn from the larger, unfolding narrative of our tradition

The responsum cited several examples of how, in Spitz's view, the rabbinic sages declined to enforce punishments explicitly mandated by Torah law. The examples include the "trial of the accused adulteress (Sotah)", the "Law of the Breaking of the Neck of the Heifer" and the application of the death penalty for the "rebellious child". Spitz argues that the punishment of the Mamzer has been effectively inoperative for nearly two thousand years due to deliberate rabbinic inaction (with a few rule-proving counterexamples, including the 18th century Orthodox rabbi Ismael ha-Kohen of Modena, who decreed that a child should have the word "mamzer" tattooed to his forehead). Further he suggested that the rabbis have long regarded the punishment declared by the Torah as immoral, and came to the conclusion that no court should agree to hear testimony on "mamzerut". His motion was passed by the CJLS.

The decision represented a watershed for Conservative Judaism because it represented an explicit abrogation of a Biblical injunction on the grounds of contemporary morality, as distinct from exigency. The dissenters, who included rabbi Joel Roth as well as a partial concurrence by rabbi Daniel Nevins, argued for reaffirming the classical halakhic framework in which human decrees inform and often limit but never wholly abrogate law believed to be of Divine origin, stating that "we should acknowledge that God's law is beyond our authority to eliminate", but should continue the traditional approach of applying strict evidentiary rules and presumptions that tend to render enforcement unlikely. He also argued that the current framework is moral, both because proving mamzer status sufficiently beyond all doubt is already so difficult that it is rare, and because the mere existence and possibility of mamzerut status, even if rarely enforced, creates an important incentive for divorcing parties to obtain a get (Jewish religious divorce) to avoid the sin of adultery. He cited a responsum by prominent Haredi Orthodox rabbi Ovadiah Yosef as an example of how the traditional approach works. Rabbi Yosef was faced with the child of a woman who had left a religious marriage without religious divorce and had a child in the second marriage, seemingly an open-and-shut case of Mamzer status. Rabbi Yosef proceeded to systematically discredit the evidence that the former marriage had ever taken place. The Ketubah was mysteriously not found and hence disqualified, and the officiating rabbi's testimony was never sufficiently corroborated and hence not credible. Rabbi Yosef then found reason to doubt that the new husband was ever the father, finding that because the ex-husband occasionally delivered alimony personally, an ancient presumption (one of many) that any time a husband and wife are alone together the law presumes intercourse has taken place governed the case. He held that Jewish law could not disprove, and hence had to conclude, that the original husband really was the child's father and there was no case of Mamzer status.

Codes of Jewish law

The Torah and the Talmud are not formal codes of law: they are sources of law. There are many formal codes of Jewish law that have developed over the past two thousand years. These codes have influenced, and in turn, have been influenced by, the responsa; History of Responsa thus provides an informative complement to the survey below.

Some major codes of Jewish law include: