Lecture #19b: Development of Halakha - Part I - continued

  • Rav Tamir Granot



By Rav Tamir Granot


Lecture #19b

Development of Halakha – Part I (continued)



R. Yehuda Ha-Levi’s Approach


R. Yehuda Ha-Levi expressed in the clearest and most radical form the ideology known today as “ongoing revelation,”[1] describing Halakha as a developing and changing system – including, lest there be any misunderstanding in this regard, Halakha in its biblical dimension.


The context in which R. Yehuda Ha-Levi presents his position is of no less importance than the content. In Part III of the Kuzari, he deals with the Karaite philosophy, in a discussion which may provide us with an interesting historical and philosophical perspective on the debates of our own times.


The King of Kuzar presents the Karaite philosophy: the law, as given on Sinai and as expressed in the Written Law, is not subject to change, is not open to interpretation, and is the only law; none other exists on any level. This position is ultra-conservative in the sense that it denies any development, and it is also fundamentalist in that it accepts the plainest meaning of the text as a closed and absolute interpretation. R. Yehuda Ha-Levi, through the voice of the “Chaver,” defends the “rabbinical” position, a developing, non-conservative Halakha that wanders afield of the plain text through exegesis and through the addition of laws, enactments, and rabbinical decrees.


Beyond the historical irony of the once “progressive” view having become the Orthodox, conservative position of today, this discussion of R. Yehuda Ha-Levi is of fundamental importance for his entire ideology. He explains at length that the difference between Judaism and philosophy – and, in some respects, between Judaism and other religions – is that Judaism is a “religion of revelation” – a revelation whose content is the commandments. The words of the angel to the King of Kuzar at the beginning of the book – “Your intention is accepted before God, but your actions are not accepted” – represent the book’s message: the source of religious law is revelation, and it can have no other possible source (see the metaphor of the medications in I:39). On the other hand, there is no meaning to faith without action – that is, the commandments.


It is specifically this fundamental principle of revelation that presents R. Yehuda Ha-Levi with a real problem when he comes to address the tradition of the Oral Law as it has been developed by Chazal and continued up until his generation. After all, the great majority of Halakha as it is observed has its source not in the original Divine revelation described in the Written Law, but rather in the interpretations and additions woven around it by the Sages of all generations. R. Yehuda ha-Levi’s answer to this problem is consistent with the rest of his ideology:


The Chaver said: Our law is linked to the “Halakha passed down to Moses at Sinai,” or emerges “from the place which the Lord shall choose,” “For Torah goes forth from Tzion, and the word of God from Jerusalem” (Yishayahu 2:3), in the presence of the judges, overseers, kohanim, and Sanhedrin. It is incumbent upon us to obey the Judge appointed in each generation, as it is written: “You shall come to the Kohanim, the Levi’im, and to the judge who will be in those days… and you shall inquire, and they shall tell you the matter of the law. And you shall do whatever they tell you… from that place which God chooses, and you shall take care to do all that they instruct you” (Devarim 17). Thereafter [it says], “The man who acts presumptuously in not obeying the Kohen  that man shall die, and you shall remove the evil from your midst” (ibid.). By means of the words, “you shall remove the evil from your midst,” the Torah renders rebellion against the Kohen or the judge equivalent to the gravest of sins. Immediately thereafter it says, “And all the people shall hear and fear, and they shall not act presumptuously anymore.” All this refers to the time when the order of the Temple service, and the Sanhedrin, and all the watches [groups of Leviim] who took care of the integrity of the nation’s way of life were still intact, and the Divine consciousness was unquestionably part of them – whether through prophecy or through Divine aid and inspiration from on High, as we find during the Second Temple period. It is unthinkable that such people would have engaged in collaboration or arrived on their own at agreement on all of this. Thus, we became obligated concerning the commandment of the Megilla on Purim, and the commandment of Chanuka, and we are able to recite the blessing, “Who has commanded us concerning the reading of the Megilla” and “concerning the lighting of the Chanuka lights” and “to complete Hallel” or “to recite Hallel,” or “concerning the washing of the hands” and “concerning the commandment of eruv” and the suchlike. Because had these customs arisen only after the exile, we would not have called them “mitzvot,” and they would not require the recitation of a blessing. Rather, we would have referred to them as takkanot, or as customs. (Sefer Ha-Kuzari III:39)


In other words, the distinction between the Revelation at Sinai and the revelation that continues in later generations has literary and declarative significance, but not formal legal significance. Halakha is continuously being renewed because revelation is always continuing. There is revelation through real prophets, and there is revelation through the Kohanim in God’s House, or through the Sanhedrin in Jerusalem, or through God’s spirit. In each case, it is revelation, and therefore it has the status of conveying commandments for all intents and purposes. According to R. Yehuda Ha-Levi, the authority of the Sages to introduce laws (such as the washing of hands in the morning, eruv, Chanuka, Purim) is not vested in them by virtue of the verse, “And you shall take care to do all that they instruct you,” as the Rambam maintains, but rather by virtue of themselves – because they themselves are God’s word, which comes about through revelation. It is therefore appropriate to recite the blessing over them, “Who has sanctified us with His commandments” – literally, it is from Him; it is He Who is commanding.


This is also the source of the great controversy between R. Yehuda Ha-Levi and the Rambam concerning the interpretation of the prohibition against “adding to it [the Torah] or detracting from it”. We recall that according to the Rambam, the essence of this prohibition is a limitation on legislation. In R. Yehuda ha-Levi’s view, that idea is absurd. Ideally, the Sages should also convey God’s word, and their words themselves are sections of Torah, which should have nothing added to or detracted from them. To whom, then, does the prohibition apply? To those who have not merited revelation (an individual, a beit din in exile, etc.):


The Chaver said: This [prohibition, “You shall not add, nor shall you detract…” (Devarim 4:2)] was meant for the masses, lest they invent laws of the their own conjuring, and lest they set them down as Torah, based only on their own deduction – as the Karaites do. Therefore, the Torah warned them that they should accept instruction only from the prophets who would arise after Moshe, and from the Kohanim and the judges, as it is written, “I will raise them up a prophet from amongst their brethren, like you… and he shall speak to them all that I command him” (Devarim 18:18); Concerning the Kohanim and the judges, He commanded that we should observe and act in accordance with their instructions.  The words, “You shall not add to the thing which I command you, nor shall you detract from it…” therefore mean: You shall not add to the thing which I have commanded you through Moshe, or through a prophet from amongst you, one of your brethren, in accordance with the conditions set down for prophecy. Or: You shall not add to the thing agreed upon by the Kohanim and the judges, from the place which God will choose – because they receive Divine assistance, and since there are so many of them, it is impossible that they could concur amongst themselves on something which contradicts the Torah. (ibid. 41)


R. Yehuda ha-Levi and the Rambam agree, then, when it comes to the philosophical justification for development. The difference between them – and it is a profound one – is to be found on the normative level and in the perception of revelation. According to the Rambam, only the Revelation to Moshe can be a source of legislation, and whatever is created from that point onwards can only be exegesis, or secondary legislation. According to R. Yehuda Ha-Levi, on the other hand, revelation is an ongoing, historical phenomenon, and therefore the Torah is continually being created in each and every generation.


Presentation of the Question in the Modern Era


R. Nachman Krochmal addressed the problem of development in modern Jewish thought. In his book “Moreh Nevukhei Ha-Zeman,” he argues that religious ideas are developing all the time. Admittedly, he did not extend this theory into the realm of Halakha, which he left within the boundaries of tradition.


In general, discussion of the development of Halakha arose from reformist or semi-reformist movements, and therefore it is almost automatically associated with rebellion against the authority of Halakha in general, and faith in the eternity and divinity of the Torah in particular. Even the school of “historical positivism” (which ended up being the source for the Conservative movement), which argued for  necessary change to take place within the framework of the halakhic system and in accordance with its principles, was ultimately active outside of traditional circles. Orthodox Judaism hardened its stance, sometimes even relinquishing the use of permissible legal devices. This is reflected in the phrase coined, with a new twist, by the Chatam Sofer: “Chadash (literally referring to the wheat harvest, but homiletically referring to any new teaching) is prohibited by the Torah”. The familiar association of the qualities of change, temporality, and human source, with which we began this shiur, was realized over the course of the 19th century in processes that consolidated the Reform stream and led to the phenomenon of assimilation.


In light of the above, it is quite easy to understand Rav Kook’s alarm at the very idea that his position involved any sort of acquiescence to the idea of development, and his insistence that the idea is indeed “foreign.” However, a reading of the continuation of his response, and a review of previous sections of this letter and of Letter 89, show that the picture is more complex, and that what Rav Kook is expressing is far from being a declaration of identification with the position of the Chatam Sofer.


What, then, did Rav Kook think? To which view was he closer – that of Rav Yehuda Ha-Levi or that of the Rambam? What are the theoretical foundations of his view on Halakha and on its dimension of development? We shall attempt to answer these questions in the next shiur.



Translated by Kaeren Fish

[1]      To the best of my knowledge, the term was coined by Prof. Shalom Rosenberg in his article, "Ongoing Revelation: Three Directions,” in "Hitgalut, Emuna, Tevuna: Kovetz Hartza'ot” (Ramat-Gan, Bar-Ilan University, 5736), pp. 131-143, and thereafter in his book, “Lo Ba-Shamayim Hi,” (Alon Shevut, Herzog College, 5757).