Originally published in the Encyclopedia Judaica, vol. 7 (1972), pp. 1156-7; 1161-6.
The word “halakhah” (from the root halakh, “to go”), the legal side of Judaism (as distinct from aggadah, the name given to the non-legal material, particularly of the rabbinic literature) embraces personal, social, national, and international relationships, and all the other practices and observances of Judaism. In the Bible the good life is frequently spoken of as a way in which men are “to go,” e.g., “and shall show them the way wherein they are to go and the work that they must do” (Ex. 18: 20). Originally the term halakhah (pl. halakhot) had the meaning of the frequent expression “this is a law given to Moses on Sinai” (Halakhah le-Moshe mi-Sinai). This usage persisted, but side by side with it there developed the use of halakhah as a generic term for the whole legal system of Judaism, embracing all the detailed laws and observances. For instance, the Talmud (Shab. 138b) comments on “the word of the Lord” (Amos 8: 12) that this means the halakhah.
The study of the halakhah in the rabbinic period and beyond it became the supreme religious duty. Because of its difficult subject matter and its importance for practical Judaism this study took precedence over that of any other aspect of Jewish teaching. Typical is the rabbinic saying that after the destruction of the Temple, God has nothing else in His world than the four cubits of the halakhah (Ber. 8a). The superiority of halakhic study over aggadic was expressed in the parable of the two merchants, one selling precious stones, the other small ware. Only the connoisseur comes to buy from the former (Sot. 40a).
The general assumption in the classical Jewish sources is that the halakhah in its entirely goes back to Moses, except for various later elaborations, extensions, applications, and innovations in accordance with new circumstances. Thus Maimonides (Yad, intro.) counts 40 generations backward from R. Ashi, the traditional editor of the Babylonian Talmud, to Moses and he concludes: “In the two Talmuds and the Tosefta, the Sifra and the Sifrei, in all these are explained the permitted and the forbidden, the clean and the unclean, the liabilities and the lack of liability, the unfit and the fit, as handed down from person to person from the mouth of Moses our teacher at Sinai.” But the verdict of modern scholarship is that the halakhah has had a history and that it is possible to trace the stages in its development with a considerable degree of success (see below). [L.J.]
DEVELOPMENT OF HALAKHAH
The Early Period. Codes of law are found in the Pentateuch (Ex. 21-23:Lev 19; Deut. 21-25) together with smaller collections and numerous individual laws. Biblical criticism explains the differences in style and the contradictions between one collection and another on the grounds that these groups of laws were produced in different circles at diverse times, e.g., in one collection the tithe is given to the levite (Num. 18: 20-32) whereas in Deuteronomy it is retained by he farmer himself to be eaten in the place of the central sanctuary (Deut. 14: 22-26). This kind of solution was not open to the Pharisaic teachers so that the early halakhah reconciles the two passages by postulating two tithes, the first (ma’aser rishon) to be given t the Levite and the second (ma’aser sheni) to be eaten in the place of the central sanctuary. Moreover, according to the traditional view, God conveyed to Moses together with the Written Law (torah she-bi-khetav) an Oral Law (torah she be-al peh). This latter embraced both the specific “laws given to Moses at Sinai” and the many interpretations of the written text now found in the rabbinic literature.
One of the main points at issue between the Sadducees and the Pharisees was the validity of this doctrine of the Oral Law, the Pharisees affirming and the Sadducees denying it. But this is to oversimplify the problem. It is obvious that some process of interpretation of the written texts must have begun at the earliest period since many of the texts are unintelligible as they stand (though this is very different from the affirmation that the interpretation was uniform and handed down unimpaired from generation to generation). Buying and selling, for example, are mentioned in the Pentateuch without any indication of how the transfer of property was to be effected. The law of divorce (Deut. 24: 1-4) speaks of a “bill of divorcement,” but gives no information on how this is to be written. Ezekiel 44: 31 would seem to be an interpretation of the laws found in Exodus 22: 30 and Deuteronomy 14: 21 (Weiss, Dor. I (1904). 44-45). Jeremiah 17: 21 is an interpretation of what is involved in Sabbath “work.” It would appear certain that by about 400 B.C.E., after the return from Babylon and the establishment of the Second Temple, the Pentateuch had become the Torah (the Written Law) and there had begun to develop an oral interpretation of the Pentateuchal texts.
The identity of the men of the Great Synagogue, who are said to have flourished immediately after the return, is still a major problem, as is the relationship of this body “Scribes” (soferim; according to Frankel, Darkhei ha-Mishnah (1923), 3-7 et al.), the men of the Great Synagogue were the executive of a movement of Pentateuchal interpretation of which the “Scribes” formed the general body. However, more recent studies have demonstrated that the soferim were simply a class of biblical exegetes inferior in status to the “sages” so that it is illegitimate to speak of the period of the “Scribes” (Kaufmann, Y., Toledot, 4 (1960), 481-5; E. Urbach, in: Tarbiz, 27 (1957/58), 166-82). The Midrash process, in which the texts were carefully examined for their wider meaning and application, no doubt had its origin in this period. Another vexed question is whether the Midrash of a particular text is the real source of the law said to be derived from it or whether the law came first with the Midrash no more than a peg on which to hang it. The most convincing way of coping with the evidence n this matter is to suggest that the earliest Midrashim were in the nature of a real derivative process by means of which the deeper meaning and wider application of the texts were uncovered (although this must not be taken to exclude the existence of actual traditions for which texts were subsequently fund). In the later Midrash the process is reversed.
The whole period down to the age of the Maccabees—on any showing the formative period in the history of the halakhah—is shrouded in obscurity. Y. Baer (in Zion, 17 (1951/52), 1-55) has argued that there was little pure academic legal actuvuty at this period and that many of the law originating at this time were produced by a kind of rule of thumb in which pious farmers in a comparatively simple form of society worked out basic rules of neighborly conduct, much in the same way as this was done among the Greeks in the age of Solon. Some of these rules can possibly still be detected among the earliest strata of the Mishnah, e.g., in the first chapter of Bava Kamma, which includes a formulation of the law of torts worded in the first person.
There are references in the sources to five pairs of teachers—the zugot (“pairs,” duumviri)—beginning with Yose b. Joezer and Yose b. Johanan in the time of the Maccabees and ending with Hillel and Shammai in the time of Herod. The ethical maxims of these teachers are recorded in the Mishnah (Avot 1: 4-5) but little legal material has been transmitted in their name. At this time, it was said, there was no legal debate in Israel (Tosef., Hag. 2: 9), i.e., the law was known or where in doubt was decided by the “great court” in Jerusalem.
Historically considered there is no question, however, of a uniform halakhah, even at this early period, handed down from generation to generation in the form the halakhah assumes in the tannaitic period. Apart from the great debates on legal matters between the Sadducees and the Pharisees, the halakhah in the books of the Apocrypha (and the writings of the Qumran sect) is not infrequently at variance with the halakhah as recorded in the Mishnah and the other tannaitic sources (e.g., the law of false witnesses in Susannah conflicts with the Pharisaic law as recorded in the Mishnah, Mak. 1: 4). Even in the Pharisaic party itself the schools of Hillel and Shammai at the beginning of the present era differed on hundreds of laws, so that it was said that there was a danger of the Torah becoming two torot (Sanh. 88b).
A major problem here is the motivation behind the approaches of the two rival schools. The theory associated with L. Ginzberg (On Jewish Law and Lore (1955), 102-18) and L. Finkelstein (op.cit.) finds the differences in the different social strata to which the schools belonged. The school of Shammai, it is argued, was legislating for the upper classes, the wealthy landowners and aristocrats, while the school of Hillel was legislating for the poorer urban workers and artisans. Thus according to the school of Hillel the legal definition of a “meal” is one dish, whereas according to the school of Shammai it is at least two dishes (Bezah 2: 1). In most societies the woman has a much more significant role among the upper classes than among the lower. Hence the school of Hillel rules that a valid marriage can be effected by the delivery to the woman of the smallest coin—a perutah—whereas the school of Shammai demands the much large minimum amount of a dinar (Kid. 1: 1).The school of Shammai only permits the divorce of a wife if she is unfaithful whereas the school of Hillel permits it on other grounds (Git. 9: 10). While there is undoubtedly some truth in the theory of social motivation it is too sweeping to be entirely adequate. Other motives, such as different exegetical methods were also at work (see Alon, Mehkarim, 2 (1958), 181-222).
The Tannaitic Period (c. 1-220 C.E.). The debates between the schools of Hillel and Shammai set in motion new debating processes among the rabbinic teachers of first- and second-century Palestine, the tannaim. Prominent in the second century were the rival schools of R. Akiva and R. Ishmael, who differed in their concept of the Torah revelation and, as a result, in their attitude toward the scope of the halakhah (see A. J, Heschel, Torah min ha-Shamayim (first 2 vols., 1962, 1965). According to R. Ishmael’s school “the Torah speaks in the language of men” (Sif. Num. 15: 31) and it is therefore not permissible to derive new laws from such linguistic usages as the infinitive absolute before the verb. According to the school of R. Akiva it is legitimate to do this and to derive laws from the use of the particles gam (“also”) and et (the sign of the accusative), for example in Pesahim 22b, since in the view of this school no word or letter of the Torah can be considered superfluous or merely for the purpose of literary effect. A later teacher characterized the methods of the Akiva school by telling of Moses on high asking God why He had affixed the decorative “crowns” to some of the letters of the Torah. God replies that after many generations there will arise a man, Akiva b. Joseph by name, “who will expound upon each little heaps and heaps of laws.” Moses then asks permission to see Akiva and is transported across time to enter Akiva’s academy where he is unable to follow the arguments! Moses is distressed but is later comforted when Akiva replies to the question of his disciples: “Whence do you know this?” by stating: “It is a law given to Moses at Sinai” (Men. 29b).
At the end of the second century R. Judah ha-Nasi edited the Mishnah, in which were summarized all the legal debates and decisions of the tannaim. Judah ha-Nasi is better spoken of as the editor of the Mishnah, not its author, since it is clear that his compilation is based on earlier formulations, particularly those of R. Akiva and his disciple R. Meir. Indeed it is possible to detect various early strata embedded in the final form the Mishnah has assumed. For instance, the Mishnah (Pes. 1: 1) records a rule that a wine cellar requires to be searched for leaven on the eve of Passover and then records a debate between the schools of Hillel and Shammai on how this rule is to be defined.
The Amoraic Period (c. 220-470 C.E.). Once the Mishnah had been compiled it became a sacred text second only to the Bible. The word of the post-mishnaic teachers in both Palestine and Babylon (the amoraim) was confined chiefly to discussion and comment on the Mishnah and to the application of its laws (and those found in the other tannaitic sources). It became axiomatic that no amora had the right to disagree with a tanna in matters of law unless he was able to adduce tannaitic support for his view. It must not be thought, however, that the amoraim were only concerned with practical application of the halakhah. A good deal of their work was in the field of abstract legal theory in which purely academic questions were examined and debated (see MGuttmann, in Devir, 1 (1923), 38-87; 2 (1923), 101-64).
The halakhah of the Palestinian amoraim was eventually collected in the Jerusalem Talmud, that of the Babylonian amoraim in the Babylonian Talmud. With the “closing” of the Talmud this work virtually became the infallible source of the halakhah. Occasionally in the Middle Ages, as Weiss (Dor, 3 (I904) 216-30) has demonstrated, authorities would disagree with talmudic rulings. Maimonides, for example, disregards in his code any laws based on a belief in the efficacy of magic even though the laws are found in the Talmud and are not disputed there. Some of the geonim tended to adopt a more lenient attitude toward the laws governing the relations between Jews and gentiles on the grounds that the gentiles in their milieu (the Muslims) were not idolaters. But such exceptions were few. The history of post-talmudic halakhah is founded on the appeal to the Talmud as the final and overriding authority. “To it [the Talmud] one must not add and from it one must not subtract” (Maim., Comm. to Mishnah, intro.). Of the two Talmuds the Babylonian became the more authoritative for a number of reasons. The halakhah of the Babylonian Talmud is more highly developed and more comprehensive; the Babylonian Talmud is later than the Jerusalem and hence able to override the decisions of the latter; the textual condition of the Babylonian Talmud is in a more satisfactory state; the Babylonian geonim at Sura and Pumbedita were in direct succession to the Babylonian amoraim (so that the Babylonian Talmud became “our Talmud”) and the hegemony of the teachings of Babylonia was considerably strengthened as a result of political developments, including the emergence of Baghdad as the seat of the caliphate. Maimonides (Yad, intro.) states the accepted view: “All Israel is obliged to follow the matters stated in the Babylonian Talmud. Every city and every province are to be coerced to follow all the customs which the sages of the Talmud followed and to obey their decisions and follow their enactments since all the matters in the Talmud have been accepted by all Israel. And those sages who made the enactments or introduced the decrees or ordained the customs or decided the laws, teaching that the decision was so, were all the sages of Israel or the majority of them. And they heard by tradition the main principles of the whole Torah generation after generation reaching back to the generation of Moses our teacher on whom be peace.”
Rules for determining the actual decision in law from the labyrinth of legal debate and discussion that is the Talmud are provided by the Talmud itself and by the savoraic additions to the Talmud, and other rules were widely accepted by the post-talmudic authorities. The following, in addition to those mentioned above, are some of the more important of these rules which enabled the Talmud to serve as the final authority in halakhah even though it is not itself a code of law.
Where there is a debate between an individual sage and his colleagues the view of the majority is adopted (Ber. 9a). The school of Hillel is always followed against the school of Shammai (Er. 6b). In the many matters debated by Rav and Samuel the view of Rav is followed in religious matters and that of Samuel in civil law (Bek. 49b). Except in three specified cases the opinion of R. Johanan is followed against that of R. Simeon b. Lakish (Yev. 36a). Similarly, except in three specified cases the opinion of Rabbah is followed against that of R. Joseph (BB 114b). The decision of Rava is followed against that of Abbaye except in six specified cases (Kid. 52a). Wherever a talmudic debate concludes with the statement “the law is . . .” (ve-hilkheta) this ruling is adopted. The lenient opinion is adopted when there is a debate regarding the laws of mourning for near relatives (MK 26b). The rulings of later authorities are generally preferred to those of earlier ones (from Rava onward) on the grounds that the later scholars, though aware of the opinions of the others, still saw fit to disagree with them (Sefer Keritut, 4: 3, 6). It is generally accepted that where a ruling is conveyed in a talmudic passage anonymously (setama) this implies unanimity among the final editors and is to be followed even if elsewhere in the Talmud the matter is a subject or debate (see Tos. to Ber. 20b and Yev. 116a). Halakhic decisions are not generally to be derived from aggadic statements (based on TJ, Pe’ah 2: 4; see ET, 1 (1951), 62). This rule was not applied consistently and was occasionally departed from, particularly in the French and German schools in the Middle Ages for whom the entire talmudic material, including the aggadah, tended to be invested with infallible authority.
In spite of the “closing” of the Talmud (occasioned chiefly by the disturbed conditions at the end of the fifth century when the great Babylonian schools were closed for a fairly long period) and its acceptance as the final authority, new legislation could still be introduced under the heading of takkanah (“enactment”), of which there are many examples in the Talmud itself. By means of the takkanah it was possible to cope with new circumstances not covered by the talmudic law. From time to time the principle, found in the Talmud, was resorted to that “a court can inflict penalties even when these run counter to the Torah” if the times require it (Yev. 90b; see above). In Spain, for example, in the Middle Ages, he courts assumed the power to inflict capital and corporal punishment even though this right had long been taken from them according to the strict letter of the law (see Baron, Community, 1 (1942), 168-9 and notes).
Codification of the Halakhah. Teachers of the halakhah in the Middle Ages and afterwards were of two main types. Firstly there were the legal theoreticians such as Rashi and the tosefists, whose main activity consisted of exposition of the classical legal texts of the Talmud and other early rabbinic works. These were known as the mefareshim (“commentators”) and their writings were naturally utilized to determine the practical law even though this was not their own province. Secondly there were the posekim (“decision-makers”) whose opinions in practical legal matters were accepted because of their acknowledged expertise in this field. The activity of the posekim was of two kinds; responsa and codification. Questions of law on which direct guidance from the Talmud was not forthcoming were addressed to the great legal luminaries and from time to time these responsa were collected, helping to form the basis for new codifications of the halakhah. Both the new and older laws were frequently classified and codified. The process of responsa and subsequent codification has continued down to the present.
One of the earliest codes was the Halakhot Gedolot of Simeon Kayyara (ninth century). Isaac Alfasi compiled an abbreviated, and with regard to some texts an expanded, version of the Babylonian Talmud in which only the conclusions of the talmudic discussions were recorded so as to provide a digest of talmudic halakhah in its practical application. Where the Babylonian Talmud has no rulings Alfasi followed decisions found in the Jerusalem Talmud. Maimonides compiled his gigantic code, the Mishneh Torah (called, after his death, the Yad ha-Hazakah), in which he presented the final decisions in all matters of halakhah, including those laws which no longer obtained in his day, such as the laws of the sacrificial cult. Asher b. Jehiel, known as the Rosh (Rabbenu Asher), compiled a code in which due weight was given to the opinions of the French and German authorities which frequently differed from those of the Spanish authorities as recorded by Maimonides. Asher’s son, Jacob b. Asher, followed in his father’s footsteps in his code known as the Tur (“row,” pl. Turim, properly the “Four Rows,” so called because the work is divided into four parts).
By the time of Joseph Caro there was much confusion in the whole realm of practical halakhah. In addition to the many differences between the codes, Jewish communities tended t differ in their application of the laws so that, as Caro remarks (Beit Yosef, intro.), the Torah had become not two torot but many torot. In his great commentary to the Tur, called Beit Yosef, Caro sought to remedy the situation by working out a practical guide for a uniform application of the halakhah. His method was to follow a majority opinion whenever the three earlier codes of Alfasi, Maimonides, and the Tur disagreed and to rely on other authorities whenever this method of deciding was not possible. Caro’s Shulhan Arukh contains the gist of his decisions as worked out in the Beit Yosef. Unfortunately, however, Caro’s method weighted the scales in favor of the Spanish schools, since these were generally in accord with the views of Alfasi and Maimonides, against the German views as represented by Asher b. Jehiel and the Tur. The Shulhan Arukh was thus incapable of serving as a practical guide to the German Jews and their followers in Poland, which from the 16th century became a foremost center of Jewish life. The remedy was provided by Moses Isserles of Cracow who added notes to the Shulhan Arukh, known as the Mappah, in which the German-Polish practices were recorded where these differed from the opinions of the Shulhan Arukh. The Shulhan Arukh, together with the Mappah, became the most authoritative code in the history of the halakhah, partly, at least, because it was the first code to be compiled after the invention of printing and so sure of the widest dissemination.
The Shulhan Arukh marked a turning point in the history of the halakhah. Even when later authorities departed from its rulings they did so reluctantly. Adherence to the Shulhan Arukh became the test of Jewish fidelity. The “Shulhan Arukh Jew” became the supreme type of Jewish piety. Earlier rabbinical authorities were known as rishonim while later ones were known as aharonim. Rabbinic authority even in modern times is much more reluctant to disagree with the rishonim than the aharonim.
THE AUTHORITY OF THE HALAKHAH
Halakhah is the distinctive feature of Judaism as a religion of obedience to the word of God. It united Jews of many different temperaments, origins, and theological opinions, though the view (“pan-halakhism” as A. J. Heschel called it) that submission to the halakhah is all that is demanded of the Jew is a travesty of traditional Judaism. The major practical differences between Orthodox and Reform Judaism depend on the different attitudes of these groups to the halakhah. Orthodoxy considers the halakhah, in its traditional form, to be absolutely binding, whereas Reform, while prepared to be guided by the legal decisions of the past in some areas, rejects the absolute binding force of the traditional halakhah. Conservative Judaism adopts a midway position, treating the traditional halakhah as binding but feeling freer to interpret it and attempting to preserve the dynamic principle of legal development which, it claims, is typical of the talmudic period. The Orthodox rabbi, when faced with new halakhic problems raised, for instance, by the invention of printing and the use of electricity, will try to arrive at a decision by applying directly the ancient halakhic principles in the new circumstances. The Reform rabbi will be more inclined to consider the religious demands of the new age and will tend to operate within non-halakhic categories. The Conservative rabbi will try to utilize these latter in working out a fresh interpretation of the traditional halakhah. [L.J.]
Bibliography: Weiss, Dor; Frankel, Mishnah; Halevy, Dorot; G. F. Moore, Judaism in the First Centuries of the Christian Era, 3 vols.(1927-30); J. Kaplan, The Redaction of the Talmud (1933); H. Tchernowitz, Toledot ha-Halakhah, 4 vols. (1934-50), idem, Toledot ha-Posekim, 3 vols. (1946-47); J. Z. Lauterbach, Midrash and Mishnah, in his Rabbinic Essays (1951), 163-256; B. Cohen, Law and Ethics in the the Light of Jewish Tradition (1957); idem, Law and Tradition in Judaism (1959); ET, 9 (1959), 241-339; M. Kadushin, The Rabbinic Mind (1965), includes bibliography; Z. HII. Chajes, The Student’s Guide Through the Talmud (1960).