Mosaic Magazine published my response to, ironically, Prof. Joshua Berman’s article on Jewish law: link
The Art of Halakhah: Why Jewish law is more a set of guidelines than of rules
In his fascinating article on law in Judaism, Joshua Berman divides post-talmudic halakhic authorities into roughly two schools: those who follow a codified or statutory-law approach and those who adopt a common-law approach. As against this, I would contend that everyone—even the codifiers—approaches the task of halakhic decision-making through a unique mix of common and statutory law. If the results sometimes convey an impression of arbitrariness or inconsistency, the fault lies in a misunderstanding of the system by which those results have been reached.
On the issue of Berman’s two jurisprudential schools, let me begin by citing a work that he would presumably include solidly within the statutory-law camp: Rabbi Shlomo Ganzfried’s 1864 Kitzur Shulhan Arukh (“The Concise Shulkhan Arukh”). In this short but wildly influential book, an adaptation and abridgement of the great 16th-century code by Rabbi Joseph Karo, Ganzfried conclusively lays down the law on all common Jewish rituals.
But consider the sheer number of variations of this work that have since appeared in print. Not only are successive editions frequently accompanied by footnotes from dissenting authorities, but Ganzfried’s rulings themselves have often been revised, with the result that the burgeoning text itself includes disparate prescriptions. Among the leading participants in this ongoing enterprise have been at least two chief rabbis of Israel and other recognized luminaries of Jewish law.
All of these authors share the goal of codifying halakhah. But, you may well ask, doesn’t it violate the very nature of a statutory code to revise—or even contradict—its black-letter provisions with one’s own rulings? The answer is that these authorities, Ganzfried included, are actually practicing not statutory but common law. For them, the legal code is a form, not an essence, a vehicle of publication rather than a mode of thought. Ganzfried’s code was a masterpiece, but his halakhic decisions reflect his own rulings and the 19th-century Hungarian community in which they were formulated. Later authorities, recognizing the usefulness of such a digest, then harnessed his language and organizing plan to the needs of their own time and their own views on Jewish law….
Read the full article here: link.
