Lecture #20a: Development of Halakha - Part II

  • Rav Tamir Granot


By Rav Tamir Granot


Lecture #20a

Development of Halakha – Part II



At the end of the previous lecture, we questioned what Rav Kook thought about the question of the development of Halakha. To which position was he closer – that of R. Yehuda Ha-Levi or that of the Rambam? What are the thematic foundations of his world-view about Halakha and the scope of its development?


Revelation of God’s Word in History – Foundations of Rav Kook’s Thought


For now, let us consider not Rav Kook’s initial resistance, but rather the explanation that follows:


The idea of development, as most people understand it, is of change, [and this idea] leads to irreverence. What I say is that the [divine] lofty knowledge which scrutinizes everything, from the beginning to the end of time, encompasses the entire Torah. This belief is the true acceptance of God's absolute sovereignty, that all the causes which form and influence understanding, and the feelings leading to decisions in every generation, were prepared from the beginning, in the proper and correct way. Therefore, the truth of the Torah can be revealed only when the entire nation of God is in its land, perfected in all its spiritual and physical manners. Then the oral law will regain its essential condition, according to the understanding of the Great Court [Sanhedrin] that will sit in the place of the Lord's choice, to deal with matters too difficult for lower courts to judge. At that time, we may be certain that any new interpretation will be crowned with all might and holiness, because Israel is holy to the Lord.[1]  And if a question arises about some law of the Torah, which ethical notions indicate should be understood in a different way, then truly, if the Great Court decides that this law pertains only to conditions which no longer exist, a source in the Torah will certainly be found for it. The conjunction of events with the power of the courts and interpretation of the Torah is not a coincidence.  They are rather signs of the light of the Torah and the truth of the Torah's oral law, for we are obligated to accept [the rulings] of the judge that will be in those days,[2] and this is not a deleterious "development."


What are the principles laid down here by Rav Kook?


1) Acceptance of the yoke of Heaven means not only accepting God’s word as it appears in prophecy or in the Torah, but also reading God’s will as expressed in the pages of history. God’s will or God’s Providence do not identify themselves openly as such. The revelation is imminent: the historical circumstances themselves, the moral feelings, the sociology, the halakhic constraints – all of these ultimately mold certain halakhic rulings. This is a major principle in Rav Kook’s teaching: God’s voice resounds within and by means of history. In other words, history itself is a medium for the revelation of the Divine will.


2) In order for the revelation of the Divine will to be complete and not fragmented, in order for it to be able to be interpreted in full, Am Yisrael must also be living a full national and spiritual life in Eretz Yisrael. Then God’s voice in history is clear and whole, not splintered and muffled, as when the nation is in exile. Just as in prophecy there are different levels of quality and clarity, ranging from the “clear lens” of Moshe Rabbeinu to the dream-prophecies that the prophet himself testifies that he is unable to understand, so God’s voice in history may likewise be clear and full or a mixture of eternal truth and cultural fads, like wheat mixed with chaff. This connection between the wholeness of life of Knesset Yisrael and the wholeness of the Divine revelation will be further clarified below.


3) The body authorized to pass halakhic rulings, to innovate, is the Sanhedrin. It is entrusted with this Torah authority, and it also possesses the charisma and perspective necessary to read accurately the voice of God that echoes in history and to make the right decisions accordingly.


4) There are rules of exegesis and decision making that allow the Sages to introduce new laws and even to cancel a law for a certain situation. Rav Kook takes care with his words when he says, “if the Great Court decides that this law pertains only to conditions which no longer exist.” In other words, even a Halakha in the Written Law has a context; it exists within time, it is not beyond time. The problem arises on the normative legal level. How can we accurately determine the original context? How can we establish the existence of a new context, which fundamentally changes the law? Does there exist any authority to introduce or cancel a law on the basis of such considerations? Rav Kook’s answer to this final question is in the affirmative. To his view, this authority resides with the Sanhedrin.


The legal basis for such change exists already on the level of exegesis: “A source in the Torah will certainly be found for it.” The creation of a new reading or interpretation – whether directly or through the hermeneutical laws by means of which the Torah is understood – anchors the innovation in the source, that is, in the Torah. This is the essence of the creation of “Midrash Halakha” which, according to Rav Kook in this letter, is unquestionably innovative.[3]


Just as the innovation receives validity from the exegesis, so the exegesis receives its validity from the innovation, and receives its justification – as stated above – from the fact that its motivation has its source in God’s voice that is manifest in history.


Rav Kook vs. R. Yehuda Ha-Levi and the Rambam


On a deeper level, these principles represent the source of the legitimacy of “midrash yotzer” (midrash that creates Halakha), which exposes genuine exegetical possibilities that only the new reality – itself a manifestation of God’s will – allows us to notice. “Is this the original intention of the Torah?” we often ask when we learn a Midrash Halakha. Is this the “peshat” (plain meaning)? Isn’t the Midrash Halakha stretching the meaning of the text?


Rav Kook’s response to all of these questions is that the peshat belongs to history. The language of the peshat is the language of the generation that received the Torah at Sinai. But the peshat is a sort of lid that conceals the water which lies below it. Exegesis of the Torah – including the Midrash, on all its different levels – allows us to draw out the innovation which actually already exists within the well, and which, until this new interpretation and the new midrash were arrived at, could not be accessed.


There should be no mistake here: midrash and exegesis are not manipulative tools. They must be used honestly; they must be approached in an authentic way. Questions relating to the community, the “constraints” or “necessities” of any given historical and social situation and the sense of justice and morality in the hearts of Am Yisrael and their Sages, are the rope that draws the water from the well; they are the torch that reveals the vessels. It is only through them that the new exegesis is revealed as an innovation that shows God’s will in the present. It is only by virtue of them that it is not a foreign idea, born from something other than God’s authentic will, and a manifestation of the will of the commentator himself.


Like the Rambam, Rav Kook believes that the mitzvot should be understood within an historical context. We have already seen in previous lectures that such issues as the laws of war, slavery, polygamy and monogamy, or the license to eat meat can only be understood from within a view of the systems of the various laws as systems that are connected to reality and which attempt to lead reality in the direction of a certain ideal. We have also seen Rambam’s explanation that the Torah wages war on idolatry not by ignoring its cultural and psychological aspects, but rather by refining the ways of worship and the emotions characterizing idolatry and channeling them in the proper direction, with a view to bringing about their ultimate disappearance.


Rav Kook, too, understood that the commandments were given in an historical context, but he supplies a different answer to the question of the fate of a certain law when the cultural, historical or psychological situation changes.


We recall from the previous lecture that the Rambam, in his Moreh Nevukhim rejects the possibility of change and explains that the essence of law – and certainly of Divine law – is that it is general in nature. It applies, or is tailored to, the majority –most situations and in most periods. Although there will certainly be a minority of cases in which it will not be relevant, that in no way changes the general and fixed nature of the law. To the Rambam’s view, by means of the prohibition, “You shall not add to it nor shall you diminish from it,” the Torah sets limitations on the activity of Chazal, so as to avoid the appearance that the law is in human hands and is not fixed and general.


At this point, Rav Kook differs from the Rambam and turns in the direction of R. Yehuda Ha-Levi. We recall that the latter formulates the view that revelation is not a one-time event; not only does prophecy continue through all generation, but Divine law and commandments, whose source is in revelation, are likewise renewed in every generation, whether through actual prophecy or through the rulings of the Sanhedrin, which is aided by heavenly inspiration in “the place which God will choose.” In his view, the Torah and the commandments, in their broadest sense, are not closed and sealed after Mount Sinai or after the death of Moshe; rather, they continue to be revealed.


The status of Chanuka and Purim is, according to R. Yehuda Ha-Levi, exactly like that of commandments that are written in the Torah, and it is therefore proper to recite the blessing, “Who has sanctified us with His commandments” over them. In the gemara (Shabbat 23a), there is a discussion about the use of this formula, and two explanations are offered:


One recites: “…Who has sanctified us with His commandments and has commanded us to kindle the Chanuka light.”

But where did He command us thus? R. Avia said: From [the law], “You shall not deviate [from that which they instruct you]” (Devarim 17:11).

R. Nechemia said: [From the verse,] “Ask your father and he will tell you; your elders, and they shall say to you” (ibid. 32:7).


R. Yehuda Ha-Levi, in any event, seems to understood the term “commanded us” as being meant quite literally, through revelation, or, in the case that it is through rulings of the Sages, by the will of Heaven. Unlike the Rambam, who maintains that the source of the legitimacy for the rulings of the Sages lies in the authority vested in them by the Torah in its command “You shall not deviate…,” R. Yehuda Ha-Levi believes that the rulings of the Sages are an actual expression of God’s will, because it is ruach Ha-kodesh (the Divine spirit) that speaks from their throats, and Divine inspiration guides them.


R. Kook teaches us that indeed God’s word is continually being revealed, in every generation, as R. Yehuda Ha-Levi insists. This provides a solution to the danger that arises from the Rambam’s position: that the law, which is on one hand fixed, but on the other hand bound to history – could become irrelevant or devoid of meaning. The Torah is continually being revealed. The Sages of Israel, sensitive to moral and historical development and to the crises of each age as reflected in the questions that arise and who issue rulings by virtue of their national authority and their representation of Knesset Yisrael in its entirety, reveal through God’s inspiration the Divine will by deriving new insights and interpretations from the Torah that respond to the new situation.


(To be continued)


Translated by Kaeren Fish


[1]      Jeremiah 2:3.

[2]      Deuteronomy 17:9.

[3]     Scholars of recent generations were divided over whether Midrashei Halakha indeed represent the source of the Halakha (midrash yotzer – “innovative/creative Halakha”) or whether they are base an ancient Halakha on the verse in question, thereby giving it validity (midrash mekayem – “restorative/preservative Halakha”).