Reprinted with permission from Louis Jacobs, The Jewish Religion: A Companion, published by Oxford University Press.
The main source of the halakhah [Jewish law] is, of course, the Pentateuch [the Torah], which contains three codes of law (Exodus 21-23, Leviticus 19, Deuteronomy 21-25), and particular laws in other parts of the work. The prophets also refer here and there to laws not found in the Pentateuch but, in the rabbinic scheme, no prophet was ever authorized to introduce new laws and, on this view, the prophets are simply recording the "law of Moses;" that is, although these laws are not actually found in the Pentateuch, they, too, were [considered] given, together with the laws found there, by God to Moses, either on Mount Sinai or subsequently during the 40-year journey through the wilderness.
Written and Oral Torahs, Biblical and Rabbinic Laws
This is the rabbinic doctrine of the two Torahs, the Written Torah of the Bible, supplemented and interpreted by the Oral Torah. The Oral Torah denotes both those interpretations of the Pentateuchal laws handed down by tradition from Moses and the exegesis [explication and interpretation] of the laws by the Jewish sages. In addition, the sages of Israel are seen as possessing the authority to introduce new legislation.
Laws which stem from the Written and Oral Torah are referred to as biblical laws [in Aramaic, mi-de’oraita]; laws introduced by the sages are termed rabbinic laws [in Aramaic, mi-derabbanan]. There are technical differences between the two types of law–for instance, cases of doubt with regard to biblical law are treated strictly, those with regard to rabbinic law, leniently.
The Talmudic Record and the Legal "Bottom Line"
All this material, the oral law and the rabbinic legislation, are found in the Talmuds, Babylonian [in Hebrew, Bavli] and Palestinian [called in Hebrew the "Jerusalem Talmud" or Yerushalmi], and in the other rabbinic sources known as the halakhic midrashim [interpretations]. Although, in the early period, the Sadducees [one of the sects of Second Temple Judaism] rejected the whole doctrine of the Oral Torah, and much later [in early medieval times], the Karaites rejected the Talmud, it is the [Babylonian] Talmud that became the ultimate source of the halakhah as traditionally conceived.
The problem is that in the Talmud and the rabbinic literature in general, there are numerous debates among the rabbis on the questions of interpretation so that, as the Talmud [itself] states, it is difficult to find a clear halakhah [in the sense of specific law] anywhere. The Talmud is not a code of law but a gigantic work containing all the debates and elaborations, largely in a purely academic form.
Yet, occasionally, the Talmud does give a final ruling, the halakhah in particular instances. For example, according to the talmudic accounts, the great debates of the House of Hillel and the House of Shammai are, with just a few exceptions, always to be decided in practice in favor of the House of Hillel.
The Development of Law Codes
Where such clear rulings are not given in the Talmud, attempts had to be made to discover the mind of the Talmud, so to speak, as this could be gauged from the talmudic academic dialectics. This exercise leaves room for considerable differences of opinion. On the academic level, it is possible to say that Rabbi A says this and Rabbi B says that and to discuss the reasons why, without any guidance being given as to which view is to be followed in practice. It became necessary for codes of law to be drawn up in which the practical laws would be stated with precision.
The three main codes, the Mishneh Torah ["Secondary Torah"] of Maimonides [a Spanish-born North African scholar and philosopher, 1135-1204], The [Arba`ah Turim ("Four Columns"), often abbreviated as the] Tur of Jacob ben Asher [of 13th-14th century Spain], and the Shulchan Arukh ["Set Table"] of Joseph Karo [a 15th-16th century Spanish-born talmudist and mystic who settled in the Galilee town of Safed], all had their antagonists who gave, in many instances, rulings different from theirs.
This is true even of the Shulchan Arukh, although this, as the most widely accepted of the three codes can be seen, in a loose sense, as the standard code of the halakhah. [The Shulchan Arukh is always published with the glosses of the Polish scholar Moshe Isserles, whose words—interwoven with Karo’s own statements—indicate where the law for Ashkenazi Jews differs from that for the Sephardic world, for which Karo served as the leading legal authority.]
Transmission and Development: The Traditional View
The above is, in broad outline, the traditional understanding of halakhic transmission–from God to Moses, through the prophets, through the "Men of the Great Synagogue," the talmudic rabbis and the talmudic literature, down to the codes. In addition to the codes, the various responsa collections [which record the written answers given by prominent rabbis throughout the ages to specific halakhic queries sent to them] enjoy authority as sources of the halakhah, as do the commentators to the Talmud and, to some extent, the customs of the Jewish people.
"Transmission" is the key word in the traditional scheme. From Moses onwards, through the whole chain of tradition, the halakhah is seen as the word of God handed down intact from generation to generation. The debates themselves were seen as part of this static process. Although, obviously, only one opinion could be decisive for practice, the whole system, debates and all, was seen in terms of static transmission.
A talmudic saying about the debates between the houses of Hillel and Shammai has often been quoted in this connection. This statement, attributed in the [Babylonian] Talmud (Eruvin 13b) to a heavenly voice, has it that "Both these and those are the words of the living God, but the halakhah [the ruling] follows the opinions of the House of Hillel." A number of distinguished talmudists in the Middle Ages and many in contemporary Orthodoxy have understood this in a literal fashion to mean that when God gave the Torah to Moses He gave both opinions, even though only one can be followed in practice.
Modern Scholarship and the Development of Halakhah
The static picture described above has been challenged by modern historical-critical scholarship. Scholarly research has succeeded in demonstrating that the halakhah, like other religious institutions, Jewish and non-Jewish, has had a history. Judaism, in different periods, has reacted to the conditions of the time, so as to produce the particular halakhah required by the time.
The three law codes in the Pentateuch are seen by the critics as stemming from three different periods, the laws of each being governed by conditions obtaining when the code was compiled. So, too, the halakhah itself and the doctrine of the Oral Law upon which it is based are now seen [by modern critical scholarship] not as dropping down from heaven ready-made, but as evolving as the result of a lengthy process.
And there is the problem of the manner in which the halakhah is derived from Scripture. There are numerous instances where the scriptural support given in the talmudic literature for a particular law is so weak that the law was obviously established on other grounds and then support for it was discovered in Scripture. This can only mean that the real basis for many of the laws is in the life of the people.
Throughout the history of the halakhah, scholarship has shown, the halakhists were not only concerned with discovering what the law is, but with what it must be if the other values of Judaism are to be realized. Research has now shown, too, that in extra-talmudic sources such as the Apocrypha, [the works of the first-century CE historian] Josephus [Flavius], the Dead Sea Scrolls, and [the works of the first-century CE Alexandrian Jewish philosopher] Philo, details of the early halakhah are different from talmudic halakhah. Moreover, the most formative era of the halakhah is from the return from Babylonian exile [in the late 6th century BCE] down to the age of the Maccabees [in the second century BCE], and this period is shrouded in obscurity.
For all the difficulties inherent in the attempt to discover how the Halakhah developed, and the difficulties are formidable, without any consensus having emerged among scholars, it has become fairly clear that there is a history of the halakhah and the static picture of tradition is not a true picture of the tradition itself. Yet, as in every legal system, the halakhah proceeds by its own principles in which the law is established by precedent and consensus.
The traditional halakhists cannot allow historical considerations to obtrude when rendering their halakhic discussions, the law having an internal life of its own. The problem of reconciling the static notion of the tradition with the dynamic notion revealed by modern scholarship has become particularly acute for contemporary Jews. This conflict is partly responsible for the differing attitudes to the halakhah among religious Jews, especially when there are increasing numbers of religious Jews who enjoy expertise in both the profundities of traditional Jewish learning and the subtleties of modern scholarship.
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