Novelty in Halachah

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by R. Gidon Rothstein

11 Sivan: R. Hayyim David Halevy on Novelty in Halachah

[Click here for the audio version.]

During the week before I came to summarize Shu”t Aseh Lecha Rav 6;54 in writing, a rabbi contacted me about an article I wrote years ago, which he had only just come across. We exchanged ideas about some details of the topic, cordially, and left it. Our responsum records a similar interaction of R. Hayyim David Halevy’s.

This rabbi had written him on 7 Kislev 5746, expressing his surprise at positions R. Halevy had taken in HaTzofeh on 11 Sivan 5745 (the date under which we will learn the responsum together).  Almost six months after R. Halevy published the article, this rabbi across it and reacted. Because if it’s the first time you’re reading it, it’s new to you.

The Adaptability of Halachah

Rabbi Halevy had spoken of the need and necessity for halachah to meet the new challenges each era presents, with phrases such as: “hard problems are being created in our times, to which there is no clear, definite solution in halachah;” or his view the rabbinic leaders of each generation “were not satisfied with the halachot transmitted by tradition and always sought new halachot;” and “even the greatest of the acharonim offered novel halachic insights.”

Nor were these random phrases. They built to his conclusion, “there is a clear need to find solutions [to the new problems] following the spirit of the sources and with total fidelity to them, and to innovate halachically.”

This other rabbi objected to Rabbi Halevy’s audacity. In his view, we may not stray from established law. Any supposed innovation either accorded with Shulchan Aruch, which would mean it was not innovative, or diverged from Shulchan Aruch, in which case it was not allowed.

Innovation Which Is Not a Departure—Whom We Redeem

R. Halevy disputes the premise. More, he chides his correspondent for ignoring the examples in the article, where great Torah scholars established new ideas which became accepted as halachah. One was the story in Gittin 58, where R. Yehoshu’a b. Chananyah (a tanna) redeemed a young boy from captivity for more than the usual asking price.

Tosafot to 45a wondered at how he could act in that way when an unargued Mishnah prohibits overpaying for captives lest that teach kidnapers they can extract exorbitant ransoms—redeeming one captive will endanger many other Jews. Tosafot offers two answers, in either of which R. Yehoshu’a was establishing a new rule.

Tosafot first suggests R. Yehoshu’a saw something extraordinary in the boy.

[The Gemara tells us R. Yehoshu’a heard about this boy’s physical beauty, stood outside where the boy was being held and recited the beginning of Yeshayahu 42;24; the boy replied with the rest of the verse. To discuss why the boy’s knowledge of a verse convinced R. Yehoshu’a he would grow up to teach Torah would take us farther afield than I’ve already allowed myself.]

For our purposes, Tosafot take R. Yehoshu’a’s to be aware he was introducing a hitherto unknown halachic exception for Torah scholars, for whom we may in fact pay more than market rates to free a hostage. Tosafot’s second possibility understood the Mishnah’s limits on ransom to apply only when the Temple stood.  Either way—and I do not pretend we’ve fully covered the topic—Tosafot reads R. Yehoshu’a to have told us a rule the Mishnah did not mention, which was then accepted as valid halachah.

He had also pointed to a responsum of Radvaz, who thought R. Yehoshu’a’s idea became the basis for yet more novel ideas, not a static rule.

A More Careful Definition of Halachah

R. Halevy suggests some of his correspondent’s confusion stems from loose uses of the word halachah. The word fundamentally means the set of laws accepted among the Jewish people from Sinai, based on Shemot 18;20, where Yitro speaks of Moshe informing the Jewish people “haderech asher yelchu bah, the way on which they shall go.”

Over time, people used the same word in other ways, blurring its meaning. The original definition assumes later innovations will occur, since no law, however comprehensive, can address all the issues that will arise over the course of time. When R. Halevy says we add to, adapt, or innovate within halachah, he only means we see how best to enact timeless laws in specific conditions.

Torah scholars of each generation were entrusted with the right and responsibility to tell us what is an accurate and appropriate translation of what was given at Sinai to what is happening in various times and places.

Aharon Reasons His Way to Leave a Sacrifice Uneaten

Human input into how to adjust our obedience seemingly categorical divine commands goes back to Aharon, who refrained from eating certain sacrifices after his sons were killed during the dedication ceremonies of the Mishkan. Moshe Rabbenu reacted angrily (Vayikra 10;18), but Aharon was unfazed. He had obeyed Moshe’s order to eat the one-time sacrifices of the festivities—since they were exceptional in their entirety, Moshe’s command told him his and his sons’ status asonenim, people who that day experienced the loss of a close relative, did not matter.

But, as Zevachim 101b understands Aharon to have replied, Hashem’s command only addressed kodshei sha’ah, the one-time sacrifices. Did Hashem also intend them to ignore the usual prohibition for an onen to partake of sacrifices regarding sacrifices to be offered daily throughout history?  

Moshe Rabbenu accepts his distinction, concedes Aharon was right, but Aharon had acted on his own idea before he received his brother’s agreement. Or HaChayyim, a well-accepted Torah commentary, grapples with how Aharon could have ruled on a matter of halachah in the presence of his teacher.

He decides Aharon’s insight did not count as a new halachic ruling, based on Rashi to Yoma 5b, who  says Aharon reasoned by way of a kal vachomer, a logical extrapolation from existing law.

Extrapolations do not count as new legislation or rulings, Or HaChayyim says. [There’s more to be said, since even the seemingly purely logical kal va-chomer has rules about how to extrapolate. R. Halevy only needed Or HaChayyim for his point about what counts as new.]

Some sources say Aharon’s words reminded Moshe Hashem had in fact commanded him to transmit the distinction among the sacrifices to Aharon. Even so, R. Halevy’s point is still safe, because Aharon did not know that, and yet felt comfortable acting on a conclusion he had drawn on his own.

Change Calls for Change

To R. Halevy, Aharon shows us how changes of conditions obligate Torah scholars to reconsider how Jewish religious practice should look, to articulate new versions of those practices where appropriate.

Sotah 16 gives us another instance of the idea, where R. Yishma’el gives three examples of where tradition overrides the simplest sense of the Torah. The Torah calls for a sefer keritut, a “book” of divorce, yet tradition allows for anything unattached; calls for covering with ‘afar, earth, the blood of non-domesticated animals and of birds, but tradition allows anything which can support plant life; and calls for the owner of a Hebrew servant who has chosen to extend his servitude to pierce his ear with an awl, but tradition allows any piercing material, such as thorns or glass.

We would understand halachah filling in blank spaces in the Torah text (such as how to make tefillin, for R. Halevy’s example), since no law will cover all bases. But R. Yishma’el’s examples are where the Torah was apparently exact, yet Chazal saw room to re-read. (R. Halevy muddies the waters somewhat by saying the Torah did this on purpose here, to teach a lesson to Torah scholars of all generations. He seems to mean there was a tradition to read the words differently than the simplest way, to teach Torah scholars they could do so even without direct guidance from tradition).

Moshe Saw the Process of Innovation

Megillah 19b has a famous story about the end of Moshe’s life, where Hashem shows him all the future ideas later students will offer regarding Torah. Tosafot Yom Tov (in the introduction to his Mishnah commentary) warned against reading the story to mean Moshe told any of those ideas to the people, since there would then be nothing left for later scholars to do. In fact, the tradition says Hashem showed Moshe these new ideas, not taught them to him.

Meaning Moshe might not have fully known the ideas himself. He was shown them, says R. Halevy, so he could share with the people the dynamic nature of Torah, the long future of Torah scholars enriching and expanding the library of ideas we derive from Torah.

Halachah’s flexibility, its ability and readiness to absorb new ways to apply timeless principles to situations, is a strength and a survival tool, has allowed deciders of Jewish law to answer very similar questions differently to account for the life situations of the questioners. An endeavor with its own rules, premised on this one, that seemingly settled halachah also leaves room for variability. 

Of course, all these innovations and applications must fit the spirit of halachah, must strive for and achieve true insights into what the Torah wanted, fully faithful to the unalterable elements of the system (as he had said in the original article). Only by doing so can halachah continue to guide the Jewish people through the coming generations, as it has through the past ones.

This whole letter reminds me of the middle road so hard to hew. R. Halevy’s critic allowed himself to come to think of halachah as all settled, with no change, making talk of innovation sound like discarding the past. R. Halevy had to walk him through the fact that halachah has always been about taking what’s set, fixed, and unchanging, and then seeing where that leaves room for alternate ways of applying that set, fixed, and unchanging material to new and different situations.

As our Torah scholars continue to strive to do, to help us all live as Hashem wants of us.

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