How Jewish Law [Actually] Works

I want to talk about values. Particularly, values that inform the Jewish art of constructing, adjudicating, interpreting, and administering, law; otherwise known as halakhah.  The reason I want to focus upon values, rather than mitzvot themselves, is because it is in this area that extreme subjectively abounds. More importantly, values that influence decision making and practice  are too often misunderstood from a “halakhic process” perspective.

Some of the most challenging conversations between arbiters and practitioners of Jewish Law are a product of either misunderstandings, or the inability and/or unwillingness to transparently define the contours of the system with which we all attempt to inhabit.  The consequences of such unconscious and conscious blindness often produce knee-jerk attacks on “authenticity” amidst denominations, or even challenges to others’ fidelity to Judaism itself.

It really doesn’t have to be this way. Perhaps if we could agree on some basic definitions and systemic features, each of us could more fully inhabit the overall sanctity halakhah promotes, its inherent dynamism, and, ideally, offer more respect for each other’s decisions and choices.

This, then, is my (brief) attempt to help guide that conversation, when and if it occurs.  Nothing here is new, per se, and it’s certainly not is this exhaustive. Not every nuance is recognized, as that would be impossible in an overprice piece. But the way in which I organize my understanding of the system might feel different to learners, practitioners, and arbiters of Jewish Law. It is also important to point out that this article will be most beneficial to those already somewhat familiar with the inner-workings of Jewish Law, though I hope within it everyone can find something useful.

Definitions:

Jewish Law is primarily constructed around, a) obligations, b) prohibitions, c) customs, d) legal principles, and e) values, consequences and reality.  Each is thickly textured, complicated, sometimes objective, and almost always subjective. They can be studied and understood independently of one another, but, more importantly, to function in a living legal system, they are absolutely interdependent and cannot exist in isolation. None of them is “extra” to the system, rather, each is essential.

Obligations — The  You Shalls (Circumcision, dwell in sukkot, etc..)

Prohibitions — The You Shall Nots (No pork, no “work” on Shabbat, etc..)

Custom — the practices that organically or intentionally become established in communities over periods of time. Established practice has legal weight within the system, depending on how broadly it is practiced, and perhaps how long it has been established as a societal norm.

Obligations and prohibitions are the backbone of the system, built upon the 613 or so commandments found in the Torah.  Almost all religious practice in some way interacts with these primary paradigms of praxis. In order to understand obligations and prohibitions from within the system, it is important to understand that while they make up the backbone from which the halakhic-process framework emerges, they are also different in kind, subjective in multiple ways, and themselves subject to debate.  They can be explicitly from the Torah, deduced interpretively from the Torah, connected loosely to the Torah, and/or established by the prophets,  scribes, and later rabbis.  These rabbinic enactments can be either protective (g’zeira) or proactive (takkanah). They can also emerge based on local, or long-standing custom, such that even though the practice may not be textually connected, it is an obligation or prohibition nonetheless. Further complicating their application, obligations, prohibitions, and customs can also, in certain circumstances, serve as values and/or principles, reflecting back on other primary primary obligations and prohibitions.

And, as you can imagine, there are plenty of disagreements within our textual tradition as to the primary nature of each obligation or prohibition–Torah or rabbinic, de-oraita or de-rabbanan, fence to protect the Torah (g’zeira), or custom. But within a legal framework, each obligation and/or prohibition’s genesis, and therefore, its authority, must be expertly explored in order to properly rule about its current application.

The next four entries are all under the definition of what I call: halakhic indicators, and where I’ll devote most my energy in this article. First you’ll see short definitions, followed by special attention to values and consequences. 

Legal Principles — within talmudic/halakhic debate, principles are utilized to determine the contours and scope of the conversation, the authority of past decisions, and, more generally, to create cornerstone ideas by which complex and conflicting situations are to be judged. They can influence halakhic decision making in any generation, since they can be divorced from the time and place in which they emerged.  (Nullifications, indirect vs. direct action, majority rules, etc.)

Values — the wide range of ethically-based factors that often determine, or indicate, if and how the obligations, prohibitions, and customs are to be executed.

Consequences — an essential subset of values, worthy of distinct attention. Consequences are the potential outcomes to each legal decision, both to the reality of the situation, and the system itself.

Reality — The sciences and more. Sociology, anthropology, intuition, etc.  The reality of any given moment, and the methods we use to understand it,  can influence and indicate how the law is interpreted and administered. Popular phrases like “pok hazei–go out and see what the people do” and “ein le’dayan–a judge has only what she can see in front of her” are classic examples of this phenomenon.

Values: Values within the halakhic system, the main focus of this article, are where some of the unnecessary confusion erupts.  We live in a world in which ethical norms and values are staggeringly diverse and hotly contested among individuals, communities, denominations, and movements. Understanding how they function within the system is crucial.

Values within the halakhic system function as “indicators”. In other words, when two laws are in conflict, or one isn’t sure how to perform a particular obligation or custom, or when a prohibition might be dangerous, values indicate what some potential choices may be.

Here’s a classic example, from the Babylonian Talmud:

Rava taught: It is simple to me. If one [can only afford] either a Shabbat candle or a hannukah candle, the Shabbat candle is preferable because of Shalom Bayit. A Shabbat candle or wine for kiddush? The Shabbat candle is preferable because of Shalom Bayit. (Babylonian Talmud, Tractate Shabbat, 23b) 

Here we see two rabbinic obligations in conflict with one another. An either/or scenario imagined by the Sage, Rava, offered in order to teach a lesson about the prioritization of two conflicting rituals.

Shalom Bayit, peace in the home, is not an obligation in-and-of itself. It kicks in only in the context of another obligation (a key feature of values), candle lighting, which itself is simply the means by which we actualize the primary obligation, joy on Shabbat (oneg).

For Hannukah, a similar structure exists. Lighting the candles is the primary Hannukah obligation. Pirsumei Nissa, making public the miracle, is not an independent obligation, rather, a value informing much of the hannukiah lighting ritual.

In the text above, there’s only enough money for one candle, to be used for one of the two rabbinic obligations. But which deserves it? It depends on what the values are, and how, then,  they indicate the preferable choice. For Rava, the capacity for people to see one another at the Sabbath meal is prioritized over the value of publicizing the miracle of Hannukah. In other words, his sense of values indicated the correct halakhic decision, for him.

What is essential to recognize is that values in the system, indicators, are part-and-parcel of the system, not outliers. Though they are attached to particular actions, they hold significant legal weight, as they often determine whether or not, or how, the obligation or prohibition ought be completed.  They are just as much part of the system as the mitzvot, not “extra-halakhic” in any way.

Kavanah also functions as a value, with consequential importance. Defintionally, it is intention during prayer, or purposeful attention while fulfilling other ritual mitzvot, like hearing the shofar. There is no distinct, independent, obligation to do “kavanah”. Rather, in the context of questions about prayer, kavanah can determine whether to not the obligation has been fulfilled, whether one ought to even attempt the primary obligation, or in what manner it should be performed.

K’vod Habriyot, human dignity, is another such example in our classical texts. There is no distinct obligation for human dignity. Rather, k’vod ha-briyot is a value, an indicator, as to whether certain prohibitions ought to be followed, how they might be followed, or for whom they may apply.  (See b. Berakhot 19b)

Tikkun Olam also functions as a value within the system, and is very much halakhic.  In the context of financial and marriage law it indicates, in certain circumstances, whether or not a certain practice ought to be performed or even changed–in particular when one who has less can be easily taken advantage of.  There is no obligation, per se, to do tikkun olam, because it functions as a value, an indicator. But for those working in the world trying to assert Jewish values on the systems that provide and protect people, it is a core piece of the discussion, and very much a necessary and legal concept. In other words, while it isn’t a distinct obligation, many communities may feel rightly obligated judge its practices through its lens.

Mishaneh HaBriyot, human diversity, is another example often classified under the rubric of “inclusion”.  There is no distinct halakhic obligation to be inclusive. It has to be attached to a particular obligation or prohibition. Though, once attached, it may become, for certain communities, obligatory to function through the prism of inclusion (or a similar value) in all of its activities, thus creating a quasi-category in-and-of-itself.

And the list goes on: hefsed merubbah (financial loss), darkhei shalom (the sake of peace), marit ayin (what others see and assume), k’vod ha-met (dignity for the deceased’s body), sha’at ha-dakhak (an urgent situation) and many more.

The challenge, I think, for our conversations, is that we often miscategorize elements of the system. Partly because we haven’t been precise enough in our language, partly because values themselves are not static, nor agreed upon, and partly because many values dually function as values and consequences (see below). Plus, as old values fade away or into disuse, new ones emerge. That is precisely how it has always been, and likely always will be. And, even when we do share values, we often disagree as to how we prioritize them when they conflict with other shared systemic values.

Furthermore, the fact that a particular value cannot be found explicitly in the Talmud need not prevent a community from utilizing it as an essential and/or obligatory indicator as to what communal practice and decision making ought to be. Just because a particular value wasn’t employed to a certain prohibition 1,500 years ago, shouldn’t mean it can’t be applied today.

Let’s explore a contemporary example. Consider many progressive communities and egalitarianism. There is no mitzvah, no distinct obligation within the system, for egalitarianism. However, for many communities, using the value of egalitarianism to indicate what prayer and professional spaces must look like, is now obligatory. That choice is not an aberration to the system, rather, a legitimate and authentic decision-making tool from within the system. Even when we disagree on how much to prioritize egalitarianism, we should agree that it is not inauthentic to use it expansively.

Consequences as Halakhic Indicators:

The halakhic system is generally consequential. Which is to say, we value the potential consequences of our decisions. They impact the very real lives of very real people.  And, they interact symbiotically with one another. Here are a few examples:

1. The Terumat Ha-Deshen (Rabbi Israel Issrelein, 1390 – 1460, Vienna) was asked if certain kinds of political conversation should be prohibited on Shabbat. He needed to decide whether or not they would prevent one from experiencing the joy on Shabbat, a distant obligation. His answer was essentially subjective, and based on consequences. If the conversations bring you joy, then yes. If not, then no.  In this case, the value-based consequence indicated what the answer ought to be. (Terumat Ha-Deshen, #61)

2. Rabbi David Tzvi Hoffman (1843 – 1921) was asked about conversion  for marriage, specifically for a man.  He ruled differently than the Shulhan Arukh–more permissively–using both ma’asim (stories) from the Talmud, and a value-based consequentialist approach. He assumed that the religion of the child follows the practice of the father, and, absent the conversion, the child would be lost to Judaism.  Therefore, he rules, convert the potential husband, even if his stated goal is that the conversion is for marriage. (Melamed Le-Ho’il, II, Yoreh De’ah, 83)

A contentious, yet illuminating contemporary example is the Conservative Movements’ paper that permitted, in certain circumstances, driving on Shabbat. The question asked: Is it permitted to drive to synagogue on Shabbat?

In 1950 Rabbis Morris Adler, Jacob Agus, and Theodore Friedman set out to answer this question in the context of something much broader, a comprehensive plan to increase Shabbat observance.  Responding to key characteristics of mid-20th century America, the authors wrote a comprehensive manifesto on what it would take to recenter Shabbat as the essential and redemptive practice of modern Judaism.  Though the paper is is subsequently remembered because they permitted turning on and driving a car on Shabbat, if only to synagogue; what they proposed, and wanted, was for a series of rulings that would adapt and update the parameters of Shabbat law to the needs of the their moment.

What has been lost in all of the arguments over this paper, though, is that the methodology they employed regarding the automobile was well within normative halakhic process: 

1. The authors set out to understand the primary prohibition with which they were dealing–the ignition of fire.
2. The authors concluded, based on a minority position of the Tosofot, that it was indeed a rabbinic, not biblical prohibition. To get there, they relied on legal principles, like melakhah sh’eina tzrikha le-gufa (work not for its own sake) to guide the debate.
3. They then weighed that rabbinic prohibition against the consequences of upholding the prohibition. in the end, one almost always has to prioritize one thing over another.

In other words, had the authors determined that the “ignition” was a biblical infraction, they may not have ruled so permissively. Since they considered rabbinic, though, this allowed for leniency under certain circumstances. Then, the authors included an assessment of their social reality, and the dire consequences they imagined for overall Shabbat observance if the prohibition remained. This concern was serious enough for them that they lifted what they considered to be a rabbinic ban.

Now, reasonable scholars can disagree over their designation of “ignition”  as rabbinic, de-rabbanan. And, reasonable scholars can disagree as to whether or not their assessment of the situation was accurate. And, reasonable scholars can disagree as to whether or not the potential consequences should have been prioritized over the generally agreed upon interpretation and application of this long-standing prohibition.

However, the methodology they employed is not halakhically inauthentic. It’s well within the overall parameters that halakhic Judaism has been using for some time.

My Methodology: 

So how does the system work when all the parts need to be considered together? My approach is based on my reading of primary sources, as I’ve briefly demonstrated, but also on a theory of ethical-decision making developed and articulated by Prof. Vincent Ryan Ruggiero of State University of New York (Thinking Critically About Ethical Issues, McGraw Hill, 2005). Ruggiero attempts to navigate the gap between consequentialism (utilitarianism) and non-consequentialism (Kantianism) as independent determining factors. Which is to say, he claims, neither approach can fully support a dynamic system of decision making. His theory throws, so to speak, a) obligations, b) moral ideals, and c) consequences into the same pot. The decision maker is responsible for understanding the contours of each ingredient, and then determining, based on inquiry and debate, the best possible answer for a specific situation.

I do something similar in determining halakhic practice.  I categorize the question into a) obligations/prohibitions, b) values and principles; and then, c) consequences–with an understanding that sometimes certain elements of the puzzle intersect over multiple categories. Values often focus on consequences, and consequences can define values.

Once categorized, I try to understand the nature and/or authority of the obligation/prohibition, its precedent (or not), the principles that inform its contours, and its history of practice. I do the same with the potential values that could be applied to the question at hand. And, then, I try to anticipate a broad range of consequences (including consequences to the system itself), based on facts, scientific studies, sociology, anthropology and more. Most importantly, the person/s and/or community asking the question is taken into consideration, very particularly.

Ideally, the answer emerges from that inquiry and conversation.  Or, I am lured through intuition and information, as to the decision that makes the most sense.

And, it is very likely that another halakhic decisor could come to a totally different conclusion.  Why? They may favor a different understanding of the obligation’s genesis and/or authority.  Or they may prioritize different values than I do. Or, they may worry differently, or anticipate differently, the potential consequences.

Also, at each point of inquiry during the process, differences of categorization and definition appear. Sometimes obligations and prohibitions are functioning as indicators, values intersect with consequences, and consequences function like values. This is where halakhic intuition is necessary. It’s not guesswork. The more a decision maker is immersed in text–talmud, codes, and response–the more grounded her intuition for which direction to turn.

But as long as we are utilizing the same systemic framework, with integrity and thoughtfulness, and a love for the system itself–we both live within the same halakhah, even when they appear significantly different.

And that means we can both treat each other with dignity when talking about our disagreements. We need to. Now, more than ever.