Originally published in Journal of Jewish Studies 46.
Yitzhak D. Gilat, Studies in the Development of the Halakha (in Hebrew). Bar-llan University Press, Ramat-Gan, 1992.417 pp.
Bernard Jackson (ed.), The Jewish Law Annual, Volumes IX and X (1991-1992). Harwood Academic Publishers, New York. 300 and 302 pp. £65.00 per volume.
Walter Jacob and Moshe Zemer, Rabbinic-Lay Relations in Jewish Law. Rodef Shalom Press, Tel-Aviv and Pittsburgh, 1993. ix, 128 pp. $10.95.
Aaron Levine, Economic Public Policy and Jewish Law. KTAV/Yeshiva University-Press, Hoboken NJ/New York, 1993. xv, 285 pp. $25.00.
All these volumes treat in one way or another the subject of how Jewish law, the Halakha, has actually worked in the past and how it can work today in response to new situations, but the various authors see the process differently. Gilat, in the title and throughout the book, speaks openly of the development of the Halakha, implying that the system is dynamic and really does change when circumstances warrant this. The Jacob and Zemer book pursues the idea of development in new directions which, presumably, traditional Halakhists would eschew. The contributors to these and earlier volumes of The Jewish Law Annual generally accept the idea while rarely stating this explicitly. Judging by the stance he adopts in the book, Levine rejects the idea that the Halakha has had a history. Levine seems to deny that the Halakha itself ever suffers change. For Levine, the changes are in the situations to which the immutable Halakha successfully addresses itself. The old debate whether it is the Halakha or the conditions which change should not be dismissed as a semantic quibble. In the final analysis, two very different philosophies of the Halakha are here at stake.
In a series of essays (many of them previously published in learned journals) Gilat demonstrates the flexibility and creativity of the Halakha. The headings of the sections into which Gilat divides his book speak for themselves: ‘The Development of Concepts and Principles in Halakha’: ‘Changes in Halakha and in its Interpretation’: The Dynamics of the Halakha’; ‘From Biblical Authority to Rabbinic Injunction’; ‘The Formation and Evolution of Halakhot; ‘Halakhic Interpretation (Midrash Halakha) and its application throughout the Ages’.
Two examples of Gilat’s methodology can be given here. It is now universally accepted that a boy attains his majority at the age of thirteen and a girl at the age of twelve. Gilat maintains that in the Tannaitic period it was the appearance of the signs of puberty that determined when the majority status is attained for most legal purposes, whereas there was no fixed aged for the obligation to carry out the precepts. For this latter purpose it all depended on the capacity of the particular child, a precocious child having the obligation even if he or she was as young as six or seven. Only as late as the Amoraic period was it ruled that when a girl has reached the age of twelve and a boy the age of thirteen it can be assumed that the signs of puberty are present without requiring any actual examination. As for the well-known Mishnah (Avot 5:21): ‘Thirteen for mitzvot’, the whole section on the ages of man, of which the saying is part, is a much later interpolation and is not Tannaitic. Moreover, this is as little a legal maxim as the others in the list such as ‘Eighteen for the bridal canopy’ or ‘Forty for understanding’. It is similarly universally accepted that it is forbidden to fast on the Sabbath and such a belief must be ancient among Jews since the extra Halakhic Book of Jubilees (50:12) lists fasting on the Sabbath among capital offences. Naturally, the Rabbinic Halakhah holds that it is forbidden to fast on the Sabbath, but Gilat quotes pagan writers who mention that Jews fasted on the Sabbath and he finds traces here and there in the Halakhic literature of the practice of some Jews to fast on the Sabbath, for instance, after a bad dream or simply as an act of penance.
In the ‘Chronicle’ and ‘Survey of Recent Literature’ sections of the two volumes noted here of The Jewish Law Annual there is a wealth of material for the serious student of Jewish law, especially with regard to contemporary Jewish life and scholarship. Part One of volume IX consists of a Symposium on ‘Criminal Law: Husband and Wife’, and Part One of volume X a Symposium on ‘Parent and Child’.
The contributors to the Jacob and Zamer book discuss how Jewish law treats the respective roles of rabbi and layman in the (Reform) community. This little book is a publication of the ‘Freehof Institute of Progressive Halakhah’, an organisation which pursues the aim of applying Halakhic norms by ‘progressive’ Jewish thinkers, not necessarily only those who, like the editors, belong to the Reform movement. For all the problems this approach raises, the example of Solomon B. Freehof, after whom the Institute is named, shows that it can be done; whether to the satisfaction of traditional Halakhists is another matter.
Aaron Levine, an Orthodox Rabbi and an authority on Jewish business law, discusses how Halakhic norms can be applied to the ethical dimensions of public policy. Among the topics discussed are: minimum wage legislation; the concept of equal pay for equal work; insider trading and its regulation; truth in advertising and its ramifications; resale price maintenance; and the application of copyright to products of the new technology—all absolutely spot-on subjects for consideration in the modern world. This very learned work, in which the most abstruse Halakhic arguments are presented with admirable clarity, is vitiated, to a large extent, by the picture it seeks to draw of what the author calls ‘the Torah society’, defined as ‘a society which is bound by Halakhah’ (p. 3). The trouble with this concept is its lack of realism. A Torah society, as envisaged by Levine, is an unrealized ideal, even if, itself doubtful, the nature of such a society can be extrapolated from the Halakhic sources. Levine constantly compares, with great skill it must be said, the laws of his ideal society with American law, even though, by his own definition, he is not comparing like with like. It is not at all a question whether, in some instances, the laws of one are compatible with those of the other while in others they are not. The two societies are totally different in conception, the one secular, the other sacred.
Moreover, some of Levine’s sources belong to the Aggadah, which is loose and flexible, rather than to the far more inflexible Halakhah. As an example of such confusion, we may quote Levine’s declaration (p. 12) that the idea of Imitatio Dei is ‘the guidepost for economic policy in the Torah society’. Apart from the fact that Imitatio Dei belongs to Aggadah, this ideal is normally found in the sources as personal, rather than social, although he tries to read the social aspect into the comment of Abba Saul (Shabbat 133b) on the verse: ‘This is my God and I will glorify Him’ (Exodus 15:2). Abba Saul reads ve-anvehu (‘And I will glorify Him’) as ani ve-hu (‘I and He’) to convey the ideal of Imitatio Dei. Levine argues that, since the context of the verse is the Song at the Sea which benefited the people as a whole, it follows that Abba Saul ‘advances Imitatio Dei beyond interpersonal relations, making it man’s duty to incorporate God’s attitudes of mercy into the community’s social fabric and legal environment’. This is a pleasant bit of pilpul but nothing more.
The difference between the Torah society and general society is noted by Levine in his discussion of copyright law. He observes (p. 180): ‘One caveat should be noted. Copyright protection in a Torah society can never be as comprehensive as it is under American law, which constitutionally guarantees freedom of speech. The halachic [sic] prohibition against inciting the evil inclination makes the reading of erotic books a forbidden activity. Relatedly, in the Torah society it would be prohibited to either create, publish, or study works espousing heretical ideas.’ This comes perilously close to an affirmation that the Torah society rejects the principle of freedom of speech and would favour an ‘Index’ of forbidden books. Many a devout Jew, having tasted the benefits of the free society, would not wish to live in the kind of Torah society envisaged by Levine.