Chapter Four: On the Possibility of Halakhic Adaptation

The discussion has so far outlined the great halakhic challenge facing our generation: to answer the needs of contemporary religious existence, caught as it is between the inherent conservatism of Halakhah presented in Chapter Two, and the vast changes in contemporary realities detailed in Chapter Three.

The dissonance between Halakhah’s conservative ethos and the changes in contemporary realities is not new in the history of Halakhah. Indeed, the purpose of the Oral Law is to deal with this dissonance, as I have written elsewhere:

The monumental achievement of the Oral law is to bridge between the eternal and the ephemeral, implementing the Written Law, which is a fixed, supra-historical Torah, in a changing, developing historical reality. This move, of enormous scope and yet subtle, is one of elaboration and creation while preserving the “unchanging Torah” so that it will function as a “Torah of life”. A Torah simultaneously sensitive to the circumstances of individual and communal existence, which are exposed to factual and value transformations bound by time and place, while also influencing them and shaping in its own spirit the ways in which they contend with their experience of existence.[49]  
 
The great vitality of Halakhah and the adaptive skills it displayed for generations are well known.[50] These features come to the fore in the elaboration of several areas of law from the biblical period – by means of the Mishnah, the Talmud, the writings of medieval and early-modern scholars, and the Responsa literature – all the way up to the present. The work of many contemporary scholars who laid the foundation for the study of Jewish law present these unparalleled legal, cultural, and religious achievements in full.[51]

Moreover, Halakhah has not only dealt successfully with new realities that affected the essential content of various areas of Halakhah, but also with changes that affected its mode of functioning and the allocation of halakhic authority. Below is a review of two such historical changes that, in my view, were no less dramatic than the ones we experience today.

The destruction of the Second Temple is a key traumatic event in Jewish history. Jews who lived at the time experienced a multidimensional catastrophe:[52] religious, political, economic, and social. The city of Jerusalem, the central polis of Jewish society in Eretz Israel, was physically destroyed; the entire country was conquered; the Jewish people ceased to exist as a political entity; an alien population settled in Eretz Israel in large numbers; Jews lost ownership of their land and became tenant farmers. In addition, the people’s spiritual and religious center, the Temple, was destroyed. The latter event was perceived by contemporaries and by subsequent generations as even more catastrophic than all the previous ones because of the vast meaning – personal, public, and national – that had been attached to life “in the shadow of the Temple” since the beginning of national history, when the Tabernacle was erected for the desert generation that had left Egypt. Throughout this period, with the exception of the brief span between the two Temples, the people had experienced the proximity of the divine presence (the Shekhinah). The destruction of the Temple spelled the discontinuation of the divine presence, which thereby undermined the roots of Jewish existence at that time. The central importance of this event is symbolized by the many prayers and practices associated with “remembering the destruction” and the fact that, until today, it provides the key for historical periodization: the First Temple era, the Second Temple era, and the era following the destruction.

As one might expect, people responded to this new reality in a variety of ways.[53] Some reacted with extended mourning and depression;[54] others escaped the new reality into hopes of an apocalyptic era awaiting in the future (the sects of the Judean desert and early Christianity); some, namely groups of zealots and members of the priestly class, fostered unrealistic hopes for the immediate restoration of the Temple; and finally, there was also “the way of Yavneh”. This response, led by R. Johanan b. Zakkai, Rabban Gamaliel, and their disciples, acknowledged the Temple’s destruction and the concomitant life of subjugation as a reality they would have to live with and adapt to in balanced and appropriate ways. They sought to reestablish Jewish religious life according to these new circumstances.

The religious task that faced the Sages of Yavneh was enormous. The loss of the Temple, involved spiritual-theological and halakhic-legal implications that can hardly be exaggerated.

Spiritually, the Temple had been the link between the people and their God. Through it, so they believed, the Shekhinah dwelt among them, and through it they obtained concrete evidence of God having chosen them from among the nations. The Temple was the paramount sign of the continuing covenant with the patriarchs and at Sinai. Its destruction, therefore, evoked fears of a breach in the covenant that so fundamentally defined Jewish existence.[55] In Yitzhak Baer’s words, with the destruction of the Temple “the instruments that had connected the terrestrial reality of the nation with the celestial world ceased to function. From now on, all the nation had left were broken remnants and memories of that vast metaphysical mechanism linking the world below and the world above”.[56]

49. Stern, “The Halakhic Approach”, 235.
 
50. For a description of this phenomenon see, for instance, Ephraim E. Urbach, On Zionism and Judaism: Essays [Hebrew] (Jerusalem: WZO: 1985), 311-345; Yeshayahu Leibowitz, The Torah and the Commandments Today: Lectures and Articles 1943-1954 [Hebrew] (Tel Aviv: Massada, 1954); Yitzhak D. Gilat, Studies in the Development of the Halakhah  [Hebrew] (Ramat Gan: Bar- Ilan University Press, 1992); Goldman, Expositions and Inquiries, 316-325. Halakhists themselves are aware of, and even admit to, a need to react to changes in reality. See, for instance, Joseph Albo, Sefer Ha-Ikkarim (Philadelphia: The Jewish Publication Society of America, 1930) 3:13; Nahman Krokhmal, Guide of the Perplexed of Our Time [Hebrew], ed. Yom Tov Lipman Zunz (Lemberg: Scheider, 1851), ch. 13. In the sixteenth century, R. Joseph b. David Ibn Lev (known as Mahari ben Lev, d. Turkey 1580), in his Responsa, Part 4, #4, states: “One generation passes away and another generation comes, and they allow as they see fit or according to the changing times”. In the twentieth century, R. Ben Zion Meir Hai Uziel (the first Sephardi Chief Rabbi in Eretz Israel, d. 1953), Responsa Mishpetei Uziel, vol. 4, Hoshen Mishpat, #28, concludes: “We therefore learn that the law changes according to the changing times”.
 
51. These works - the first fruits in the area - build, one after another, the backbone of the scientific study of Halakhah. The area is undergoing an impressive scientific renaissance, (though not free of crises), which has so far focused on laying the foundations and building an infrastructure. It exceeds the confines of this paper to mention the dozens of monographs written over the last two generations, at a pace increasing from decade to decade, which aim to use the best scientific methods and even aim to develop their own in order to trace the development of Halakhah’s legal institutions. From a historical point of view, the group of scholars in this realm is the “desert generation”, plowing the first furrow in a hard, neglected, and fallow, though potentially lush, soil. The scientific creativity of this pioneering group, which sows in tears, will eventually be acknowledged as a national endeavor resembling that of Eliezer Ben-Yehudah, who revived the Hebrew language. A great future lies ahead of this discipline, not only because the vast scope of the current endeavor barely touches the margins of its potential, and not only because basic research by nature creates follow-up studies that expand it but also, and mainly, because the study of the halakhic legal development provides wide room for the creation of a national, cultural, social, and religious Jewish identity. If the historical memory of Jewish identity relies largely on the Jewish canon, and if halakhic literature is a vital element within it, the importance of this discipline is obvious. Additionally, the scientific study of the development of Halakhah and its legal institutions is also important as a leverage energizing a new halakhic creativity, both updated and authentic, for future generations. A detailed understanding of Halakhah’s modes of functioning in the past paves the way (in the essential, subject-matter sense) and “straightens the crooked” (in the sociological sense of “facilitating” the process) for anyone wishing to go on developing Halakhah in the future.
 
52. See, for instance, Gedaliah Alon, The Jews in Their Land in the Talmudic Age (70-640 c.e.), tr. and ed. Gershon Levi, vol. 1 (Jerusalem: Magnes Press, 1980), 41-55.
 
53. The discussion below relies heavily on the comprehensive book by Avraham Aderet, From Destruction to Restoration: The Mode of Yavneh in the Reestablishment of the Jewish People [Hebrew] (Jerusalem: Magnes, 1970), and the references he cites. The gist of the book is a detailed analysis of the modes of halakhic reaction to the destruction of the Temple in three main realms: sin and atonement, purity and impurity, and land-bound commandments.
 
54. A touching expression of this feeling emerges in the passage from Tosefta Sotah, 15:11 (The Tosefta, tr. Jacob Neusner [New York, Ktav, 1979]):
After the last Temple was destroyed, abstainers became many in Israel, who would not eat meat or drink wine. R. Joshua engaged them in discourse, saying to them, “My children, on what account do you not eat meat?” They said to him, “Shall we eat meat, for every day a continual burnt offering [of meat] was offered on the altar, and now it is no more?” He said to them, “Then let us not eat it. And why are you not drinking wine?” They said to him, “Shall we drink wine, for every day wine was poured out as a drink-offering on the altar, and now it is no more”. He said to them, “Then let us not drink it”. He said to them, “But if so, we also should not eat bread, for from it did they bring the Two Loaves and the Show-Bread. We also should not eat figs and grapes, for they would bring them as first fruits on the festival of Atseret (Shavu`ot). They fell silent.
 
55. “Since the day the Temple was destroyed, an iron wall separates Israel from their Father in Heaven”. TB Berakhot, 32b.
 
56. Yitzhak F. Baer, Israel among the Nations: An Essay on the History of the Period of the Second Temple and the Mishnah and on the Foundations of the Halakhah and Jewish Religion [Hebrew] (Jerusalem: Bialik Institute, 1955), 19.