Halacha

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Halakha (Hebrew: הלכה; also transliterated as Halakhah, Halacha, Halakhot and Halachah with pronunciation emphasis on the third syllable, "kha"), is the collective corpus of Jewish religious law, including biblical law (the 613 mitzvot) and later talmudic and rabbinic law as well as customs and traditions. Judaism classically draws no distinction in its laws between religious and ostensibly non-religious life. Hence, Halakha guides not only religious practices and beliefs, but numerous aspects of day-to-day life. Halakha is often translated as "Jewish Law," though a more literal translation might be "the path" or "the way of walking." The word is derived from the Hebrew root that means to go, to walk or to travel.

Historically, Halakha served many Jewish communities as an enforceable avenue of civil and religious law. In the modern era, Jewish citizens may be bound to Halakhah only by their voluntary consent. In Israel, though, certain areas of Israeli family and personal status law are governed by rabbinic interpretations of Halakha. Reflecting the diversity of Jewish communities, somewhat different approaches to Halakha are found among Ashkenazi, Mizrahi, Sephardi, and Yemenite Jews. Among Ashkenazi Jews, disagreements over Halakha, and over whether Jews should continue to follow Halakha, have played a pivotal role in the emergence of the Orthodox.

The sources and process of Halakha

The boundaries of Jewish law are determined through the halakhic process, a religious-ethical system of legal reasoning. Rabbis generally base their opinions on the primary sources of Halakha as well as on precedent set by previous rabbinic opinions. The major sources and genre of Halakha consulted include:

• The foundational Talmudic literature (especially the Mishna and the Babylonian Talmud) with commentaries;
• The post-Talmudic codificatory literature, such as Maimonides' Mishneh Torah and the Shulchan Aruch with commentaries;
• Regulations and other "legislative" enactments promulgated by rabbis and communal bodies:
  • Gezeirah: "preventative legislation" of the Rabbis, intended to prevent violations of the commandments
  • Takkanah: "positive legislation", practices instituted by the Rabbis not based (directly) on the commandments
• Minhag: Customs, community practices, and customary law, as well as the exemplary deeds of prominent (or local) rabbis;
• The she'eloth u-teshuvoth (responsa, literally "questions and answers") literature.
• Dina d'malchuta dina ("the law of the land is law"): an additional source of Halakha, being the principle recognizing non-Jewish laws and non-Jewish legal jurisdiction as binding on Jewish citizens, provided that they are not contrary to any laws of Judaism. This principle applies especially in areas of commercial, civil and criminal law.

In antiquity, the Sanhedrin functioned essentially as the Supreme Court and legislature for Judaism, and had the power to administer binding law, including both received law and its own Rabbinic decrees, on all Jews — rulings of the Sanhedrin became Halakha; see Oral law. That court ceased to function in its full mode in CE 40. Today, the authoritative application of Jewish law is left to the local rabbi, and the local rabbinical courts, with only local applicability. In branches of Judaism that follow halakha, lay individuals make numerous ad-hoc decisions, but are regarded as not having authority to decide definitively.

Since the days of the Sanhedrin, however, no body or authority has been generally regarded as having the authority to create universally recognized precedents. As a result, Halakha has developed in a somewhat different fashion from Anglo-American legal systems with a Supreme Court able to provide universally accepted precedents. Generally, contemporary halakhic arguments are effectively, yet unofficially, peer-reviewed. When a rabbinic posek ("decisor") proposes a new interpretation of a law, that interpretation may be considered binding for the posek's questioner or immediate community. Depending on the stature of the posek and the quality of the decision, an interpretation may also be gradually accepted by rabbis and members of similar Jewish communities.

Under this system, there is a tension between the relevance of earlier and later authorities in constraining halakhic interpretation and innovation. On the one hand, there is a principle in Halakha not to overrule a specific law from an earlier era, unless based on an earlier authority. On the other hand, another principle recognizes the responsibility and authority of later authorities, and especially the posek handling a concurrent question. In addition, the Halakha embodies a wide range of principles that permit judicial discretion and deviation (Ben-Menahem). Generally speaking, a rabbi in any one period will not overrule specific laws from an earlier era, unless supported by a relevant earlier precedent; see list below. There are important exceptions to this principle, which empower the posek (decisor) or beth din (court) responsible for a given opinion.

Notwithstanding the potential for innovation, rabbis and Jewish communities differ greatly on how they make changes in Halakha. Notably, poskim frequently extend the application of a law to new situations, but do not consider such applications as constituting a "change" in Halakha. For example, many Orthodox rulings concerning electricity are derived from rulings concerning fire, due to its physical similarity with that other form of human-managed energy. In contrast, Conservative Poskim emphasize that electricity is physically and chemically more like turning on a water tap (which is permissible) than lighting a fire (which is not permissible) and therefore permitted its use on Shabbat. Conservative Judaism, in some cases, will also explicitly interpret Halakha to take into account its view of contemporary sociological factors. For instance, most Conservative rabbis extend the application of certain Jewish obligations and permissible activities to women.

Takkanot

Main article: Takkanah

Traditional Jewish law granted the Sages wide legislative powers. Technically, one may discern two powerful legal tools within the halakhic system:

• Gezeirah: "preventative legislation" of the Rabbis, intended to prevent violations of the commandments
• Takkanah: "positive legislation", practices instituted by the Rabbis not based (directly) on the commandments

However, in common parlance sometimes people use the general term takkanah to refer either gezeirot or takkanot.

Takkanot, in general, do not affect or restrict observance of Torah mitzvot. However, the Talmud states that in exceptional cases, the Sages had the authority to "uproot matters from the Torah" in certain cases. In Talmudic and classical halakhic literature, this authority refers to the authority to prohibit some things that would otherwise be biblically sanctioned (shev v'al ta'aseh). Rabbis may rule that a Torah mitzvah should not be performed, e.g. blowing the shofar on Shabbat, or blessing the lulav and etrog on Shabbat. These are takkanot are executed out of fear that some might otherwise carry the mentioned items between home and the synagogue, thus inadvertently violating a Sabbath melakha.

Another rare and limited form of takkanah involved overriding Torah prohibitions. In some cases, the Sages allowed the temporary violation a prohibition in order to maintain the Jewish system as a whole. This was part of the basis for Esther's relationship with Ahasuerus. (Sanhedrin)

• The Tannaim (literally the "repeaters") are the sages of the Mishnah (70–200)
• The Amoraim (literally the "sayers") are the sages of the Gemara (200–500)
• The Savoraim (literally the "reasoners") are the classical Persian rabbis (500–600)
• The Geonim (literally the "prides" or "geniuses") are the rabbis of Sura and Pumbeditha, in Babylonia (650–1250)
• The Rishonim (literally the "firsts") are the rabbis of the early medieval period (1250–1550) preceding the Shulchan Aruch
• The Acharonim (literally the "lasts") are the rabbis of 1550 to the present.

Rules by which early Jewish law was derived

Hermeneutics is the study of rules for the exact determination of the meaning of a text; it played a notable role in early rabbinic Jewish discussion. The sages investigated the rules by which the requirements of the oral law were derived from and established by the written law, i.e. the Torah. These rules relate to:

1. grammar and exegesis
2. the interpretation of certain words and letters and superfluous words, prefixes, and suffixes in general
3. the interpretation of those letters, which, in certain words, are provided with points
4. the interpretation of the letters in a word according to their numerical value
5. the interpretation of a word by dividing it into two or more words
6. the interpretation of a word according to its consonantal form or according to its vocalization
7. the interpretation of a word by transposing its letters or by changing its vowels
8. the logical deduction of a halakah from a Scriptural text or from another law

Compilations of such hermeneutic rules were made in the earliest times. The tannaitic tradition recognizes three such collections, namely:

1. the seven Rules of Hillel (baraita at the beginning of Sifra; Ab. R. N. xxxvii.)
2. the thirteen Rules of R. Ishmael (baraita at the beginning of Sifra; this collection is merely an amplification of that of Hillel)
3. the thirty-two Rules of R. Eliezer b. Jose ha-Gelili.

The last-mentioned rules are contained in an independent baraita, which has been incorporated and preserved only in later works. They are intended for haggadic interpretation; but many of them are valid for the Halakah as well, coinciding with the rules of Hillel and Ishmael.

Neither Hillel, Ishmael, nor Eliezer ben Jose ha-Gelili sought to give a complete enumeration of the rules of interpretation current in his day, but they omitted from their collections many rules that were then followed. They restricted themselves to a compilation of the principal methods of logical deduction, which they called "middot" (measures), although the other rules also were known by that term (comp. Midrash Sifre, Numbers 2 [ed. Friedmann, p. 2a]).

One of these set of rules is found in the siddur, from the "Introduction to Sifra" by Ishmael ben Elisha, c. 200 CE. These are known as the thirteen rules of exegesis.

1. Kal va-Chomer (a fortiori): We find a similar stringency in a more lenient case; how more so should that stringency apply to our stricter case!
2. Gezera shava, similarity in phrase: We find a similar law in a verse containing a similar phrase to one in our verse. This method can only be used in a case where there is a tradition to use it.
3. Binyan av, either by one or two Scriptures: We find a similar law in another case, why shouldn't we assume that the same law applies here? Now the argument may go against this inference, finding some law that applies to that case but not to ours. This type of refutation is valid only if the inference was from one Scripture, not if it was from two Scriptures.
4. Klal ufrat, a generality and a particularity: If we find a phrase signifying a particularity following that of a generality, the particularity particularises the generality and we only take that particular case into account.
5. Prat ukhlal, a particularity and a generality: If the order is first the particularity and then the generality, we add from the generality upon the particularity, even to a broad extent.
6. Klal ufrat ukhlal, a generality, a particularity and a generality: If there is a particularity inserted between two generalities, we only add cases similar to the particularity.
7. Klal shehu tzarich lifrat, a generality that requires a particularity, and a particularity that requires a generality: If it is impossible to have the more general law without more specific examples or more specific cases without the statement of the general law, the above three rules don't appy.
8. Every thing that was within the general rule and was excluded from the rule to teach us a rule, we don't consider this rule as pertaining only to this excluded case, but to the entire general case.
9. Anything that was included in a general rule, and was excluded to be susceptible to one rule that is according to its subject, it is only excluded to be treated more leniently but not more strictly.
10. Anything that was included in a general rule and was excluded to be susceptible to one rule that is not according to its subject, it is excluded to be treated both more leniently and more strictly.
11. Anything that was included in a general rule and was excluded to be treated by a new rule, we cannot restore it to its general rule unless Scripture restores it explicitly.
12. A matter that is inferred from its context, and a matter that is inferred from its ending.
13. The resolution of two Scriptures that contradict each other [must wait] until a third Scripture arrives and resolves their apparent contradiction.

Codes of Jewish law

The Torah and the Talmud are not formal codes of law; they are sources of law. There are many formal codes of Jewish law that have developed over the past few thousand years. These codes have influenced, and in turn, have been influenced by, the responsa; History of Responsa thus provides an informative complement to the survey below.

The major codes are:

• The Mishnah, composed by Rabbi Judah the Prince, in 200 CE, as a basic outline of the state of the Oral Law in his time. This was the framework upon which the Talmud was based; the Talmud's dialectic analysis of the content of the Mishna (gemara; completed c. 500) became the basis for all later halakhic decisions and subsequent codes.

• Codifications by the Geonim of the halakhic material in the Talmud. An early work, She'iltot ("Questions") by Achai of Shabcha (c. 752), discusses over 190 Mitzvot — exploring and addressing various questions on these. The first legal codex proper, Halakhot Pesukot ("Decided Laws"), by Yehudai Gaon (c. 760), rearranges the Talmud passages in a structure manageable to the layman. (It was written in vernacular Aramaic, and subsequently translated into Hebrew as Hilkhot Riu). Halakhot Gedolot ("Great Law Book"), by R. Simeon Kayyara, published two generations later, contains extensive additional material, mainly from Responsa and Monographs of the Geonim, and is presented in a form that is closer to the original Talmud language and structure. (Probably since it was distributed, also, amongst the newly established Ashkenazi communities.) The She'iltot was influential on both subsequent works.

• The Hilchot of the Rif, Rabbi Isaac Alfasi (1013–1103), summations of the legal material in the Talmud. Alfasi transcribed the Talmud's halakhic conclusions verbatim, without the surrounding deliberation; he also excludes all Aggadic (non-legal, homiletic) matter. The Hilchot soon superseded the geonic codes, as it contained all the decisions and laws then relevant, and additionally, served as an accessible Talmudic commentary; it has been printed with almost every subsequent edition of the Talmud.

• The Mishneh Torah (also known as the Yad Ha-Hazaqah for its 14 volumes), by Maimonides (Rambam; 1135–1204). This work encompasses the full range of Talmudic law; it is organized and reformulated in a logical system — in 14 books, 83 sections and 1000 chapters — with each Halakha stated clearly. The Mishneh Torah is very influential to this day, and several later works reproduce passages verbatim. It also includes a section on Metaphysics and fundamental beliefs. (Some claim this section draws heavily on Aristotelian science and metaphysics; others suggest that it is within the tradition of Saadia Gaon.) It is the main source of practical Halakha for many Yemenite Jews — mainly Baladi and Dor Daim — as well as for a growing community referred to as talmidei haRambam.

• The work of the Rosh, Rabbi Asher ben Jehiel (1250?/1259?–1328), an abstract of the Talmud, concisely stating the final halakhic decision and quoting later authorities, notably Alfasi, Maimonides, and the Tosafists. This work superseded Rabbi Alfasi's and has been printed with almost every subsequent edition of the Talmud.

• The Sefer Mitzvot Gadol (The "SeMaG") of Rabbi Moses ben Jacob of Coucy (13th century, Coucy, France). "SeMaG" is organised around the 365 negative and the 248 positive commandments, separately discussing each of them according to the Talmud (in light of the commentaries of Rashi and the Tosafot) and the other codes existent at the time.

• "The Mordechai" — by Mordecai ben Hillel, d. Nuremberg 1298 — serves both as a source of analysis, as well of decided law. Mordechai considered about 350 halakhic authorities, and was widely influential, particularly amongst the Ashkenazi and Italki communities. Although organised around the Hilchot of the Rif, it is, in fact, an independent work. It has been printed with every edition of the Talmud since 1482.

• The Arba'ah Turim (The Tur, The Four Columns) by Rabbi Jacob ben Asher (1270–1343, Toledo, Spain). This work traces the Halakha from the Torah text and the Talmud through the Rishonim, with the Hilchot of Alfasi as its starting point. Ben Asher followed Maimonides's precedent in arranging his work in a topical order, however, the Tur covers only those areas of Jewish religious law that were in force in the author's time. The code is divided into four main sections; almost all codes since this time have followed the Tur's arrangement of material.
  • Orach Chayim — "The Way of Life" worship and ritual observance in the home and synagogue, through the course of the day, the weekly sabbath and the festival cycle.
  • Yoreh De'ah — "Teach Knowledge" assorted ritual prohibitions, dietary laws and regulations concerning menstrual impurity.
  • Even Ha'ezer — "The Rock of the Helpmate" marriage, divorce and other issues in family law.
  • Choshen Mishpat — "The Breastplate of Judgment" The administration and adjudication of civil law.

• The Beit Yosef, and the Shulchan Aruch of Rabbi Yosef Karo (1488–1575). The Beit Yosef is a huge commentary on the Tur in which Rabbi Karo traces the development of each law from the Talmud through later rabbinical literature (examining thirty-two authorities, beginning with the Talmud and ending with the works of Rabbi Israel Isserlein). The Shulchan Aruch is, in turn, a condensation of the Beit Yosef — stating each ruling simply (literally translated, Shulchan Aruch means "set table"); this work follows the chapter divisions of the Tur. The Shulchan Aruch, together with its related commentaries, is considered by many to be the most authoritative compilation of halakha since the Talmud. In writing the Shulchan Aruch, Rabbi Karo based his rulings on three authorities — Maimonides (Rambam), Asher ben Jehiel (Rosh), and Isaac Alfasi (Rif); he considered the Mordechai in inconclusive cases. Sephardic Jews, generally, refer to the Shulchan Aruch as the basis for their daily practice.

• The works of Rabbi Moshe Isserles ("Rema"; Krak?w, Poland, 1525 to 1572). Rema noted that the Shulkhan Arukh was based on the Sephardic tradition, and he created a series of glosses to be appended to the text of the Shulkhan Arukh for cases where Sephardi and Ashkenazi customs differed (based on the works of Yaakov Moelin, Israel Isserlein and Israel Bruna). The glosses are called Hamapah, the "Tablecloth" for the "Set Table". His comments are now incorporated into the body of all printed editions of the Shulkhan Arukh, typeset in a different script; today, "Shulchan Aruch" refers to the combined work of Karo and Isserles. Isserles' Darkhei Moshe is similarly a commentary on the Tur and the Beit Yosef.

• The Shulchan Aruch HaRav of Rabbi Shneur Zalman of Liadi (c. 1800) was an attempt to recodify the law as it stood at that time — incorporating commentaries on the Shulchan Aruch, and subsequent responsa — and thus stating the decided halakha, as well as the underlying reasoning. The work was written, partly, so that laymen would be able to study Jewish law. Unfortunately, most of the work was lost in a fire prior to publication. It is held in esteem by many Hasidim and non-Hasidim, and is quoted as authoritative by many subsequent works.

• "Layman oriented" digests of Halakha. The Kitzur Shulkhan Arukh of Rabbi Shlomo Ganzfried (Hungary 1804–1886), based on the very strict Hungarian customs of the 19th century, became immensely popular after its publication due to its simplicity. This work is not binding in the same way as the Mishneh Torah or the Shulchan Aruch. It is still popular in Orthodox Judaism as a framework for study, if not always for practice. Chayei Adam and Chochmat Adam by Avraham Danzig (Poland, 1748–1820) are similar Ashkenazi works, but are regarded as a more appropriate basis for practice. The Ben Ish Chai by Yosef Chaim (Baghdad, 1832–1909) is a corresponding Sephardi work.

• Works structured directly on the Shulchan Aruch, providing analysis in light of Acharonic material and codes. The Mishnah Berurah of Rabbi Yisroel Meir ha-Kohen, (the "Chofetz Chaim", Poland, 1838–1933) is a commentary on the "Orach Chayim" section of the Shulchan Aruch, discussing the application of each Halakha in light of all subsequent Acharonic decisions. It has become the authoritative halakhic guide for much of Orthodox Ashkenazic Jewry in the postwar period. Arukh HaShulkhan by Rabbi Yechiel Michel Epstein (1829–1888) is a scholarly analysis of Halakha through the perspective of the major Rishonim. The work follows the structure of the Tur and the Shulkhan Arukh; rules dealing with vows, agriculture, and ritual purity, are discussed in a second work known as Arukh HaShulkhan he'Atid. Kaf HaChaim on Orach Chayim and parts of Yoreh De'ah, by the Sephardi sage Yaakov Chaim Sofer (Baghdad and Jerusalem, 1870–1939) is similar in scope, authority and approach to the Mishnah Berurah. Yalkut Yosef, by Rabbi Yitzchak Yosef, is a voluminous, widely cited and contemporary work of Halakha, based on the rulings of Rabbi Ovadia Yosef.