Historical Study of Halakhah

The study of the history of halakhah is fraught with methodological and religious dangers. Good study requires thorough understanding of the breadth of rabbinic writings throughout history, as well as an appreciation for the rabbinic mindset. It also requires careful investigation of manuscripts and cross-citations through a wide array of published and unpublished texts. Few are as capable of approaching this from a proper background as Dr. Haym Soloveitchik, who has a thorough education in both traditional talmudic study and academic study of medieval Jewish texts and history. He is also an extremely meticulous scholar when it comes to researching texts. (See a list of his articles here: link.)

But there is a religious danger in that there is a tendency among historians to associate religious doctrines with historical causes. Is it possible to study the history of halakhah without historicizing it? Can one study the history of halakhah while still remaining within the line of Orthodox doctrine, or stretching that line almost to its limit?

Click here to read moreDr. Soloveitchik was challenged on this by R. Ephraim Buckwold in his critique in The Torah U-Madda Journal (link). In his recent response to R. Buckwold, he responds to this challenge (link). Here are some relevant excerpts, followed by some comments:

In the matter of response to contemporary problems, one has to clearly distinguish between the realm of ritual and civil law, between the area of Orah Hayyim and Yoreh De‘ah and that of Hoshen Mishpat. The Reform movements of the past two centuries have centered on ritual law; adjustments of Hoshen Mishpat are an ongoing enterprise of Halakhah. Suppose religious Jews were to insist on having all their business litigation adjudicated by rabbinic courts, or that the State of Israel were to hand civil litigation over to rabbinic courts; does R. Buckwold not think that efforts would be made to justify the existence in Halakhah of corporations, of the stock markets, of credit cards? (p. 194)

R. Buckwold further feels that the response to contemporary problems yields a false or specious Halakhah. To my thinking the problem of sale of notes of indebtedness (mekhirat hov) like that of credit cards today is simply a challenge to halakhic thinking, as is a problem or objection (kushya) posed in the beit midrash. Both stimuli can generate a correct response or a specious one, and instances of good and bad replies can be found in abundance for each of the two catalysts. The fact that a theorem is a response to a contemporary kushya scarcely invalidates it; similarly a response to contemporary challenge is not disqualified by its origins. A reflexive, undiscriminating reaction to the phrase “an halakhic response to a contemporary problem,” while readily understandable, advances the comprehension neither of Halakhah nor of its history. (p. 196)

R. Buckwold is particularly offended by my suggestion that the question whether there is a right to collection in the case of a gaged loan was generated by Gentile practice. To him this impugns the integrity of halakhic discourse. I don’t see why it does. Suppose contemporary Jewry were to return to having their business affairs regulated by Halakhah. Would not the question immediately arise whether an endorsed check that has been given to a third party has met the requirements of כתיבה ומסירה needed in the sale of loan documents? Endorsement is common practice in the surrounding society, so the question naturally arises: What is its standing in Halakhah? The overwhelming bulk of Jewish credit was extended to Gentiles and in these numerous transactions, gaged loans were not collectible. Nothing was then more natural than to ask: What is the standing of gaged loans in Jewish law? R. Buckwold goes on at length to show that there are good grounds in Halakhah for serious doubt about collection in an open-ended possessory mortgage. Of course there were; otherwise Rabad would not have been stumped. Why does grappling with contemporary realities, which by definition are of Gentile manufacture, impugn the integrity of the Halakhah? Only if one assumes that any contact of civil law with the nitty-gritty of actual business undermines its purity. I don’t share my learned critic’s assumption. (p. 211)

Truth to tell, I never claimed that Rabad’s solution stemmed simply from a pressing contemporary problem. I wrote: “Rabad’s famous doctrine of לא לך שיעבדתי את נפשי with all its conceptual significance, was at the same time an attempt to validate the coin minted by a society suffering from a dearth of currency.” (Italics now added- HS.) If an idea is a major contribution to halakhic thought, is it the worse for being, at the same time, a solution to a pressing contemporary problem? Must important halakhic ideas, to R. Buckwold’s way of thinking, be inutile or of utility by coincidence only? And had this major contribution arisen solely in consequence of grappling with contemporary problems, why would it be the worse for this fact? (p. 220)

If I understand correcly, Dr. Soloveitchik is saying that of course halakhic decisors have to respond to contemporary developments. To refrain from doing so is irresponsible and would cause halakhic paralysis. Surprisingly, Dr. Soloveitchik states that this is not currently done. But it is! There are countless responsa on these issues of modern finance, including corporations, stock markets, credit cards and inheritance laws. Just see the many examples discussed in R. Michael J. Broyde's The Pursuit of Justice and Jewish Law, or in R. J. David Bleich's five volumes of Contemporary Halakhic Problems or R. Aaron Levine's many books on business ethics (including Moral Issues of the Marketplace in Jewish Law).

Some of the responses to contemporary conditions are merely a continuation of traditional approaches but some are breathtakingly radical, such as R. Moshe Feinstein's position that there is no issue of charging interest when dealing with a corporation (Iggeros Moshe, Yoreh De'ah 2:63). These are not economic concerns forcing authorities to be lenient but, rather, forcing them to look very closely at the halakhah and achieve a careful and nuanced understanding of its contemporary applications.

But why does Dr. Soloveitchik limit this to Choshen Mishpat, financial matters? Certainly his studies encompass issues of Yoreh De'ah, such as gentile wine and suicide under religious duress. And even in those areas, authorities have arrived at radical positions in response to contemporary conditions, which can be viewed as simply taking a hard but honest look at the sources based on economic or other need.

Interestingly, Dr. Soloveitchik's father, R. Joseph B. Soloveitchik, offered a similar idea regarding the laws of building a sukkah, as recorded by R. Hershel Schachter (Nefesh Ha-Rav, p. 12). Someone at JTS (I'm not sure who) suggested that there was a wood shortage during Mishnaic times and, to facilitate the building of sukkos, the rabbis of the Mishnah created complex laws such as lavud and pi tikra yored ve-sosem that permits walls with various types of gaps. R. Soloveitchik said that this is heresy, but it is legitimate to suggest that because of a wood shortage, the rabbis of the Mishnah studied the laws of sukkah very carefully and, based on comparisons with other laws (e.g. eruvin) and other deductive methods, developed the laws of sukkah in more detail than previously. That is the reality of halakhic development that maintains the sanctity of the tradition but allows for its development in response to contemporary challenges.

According to Dr. Soloveitchik's defense in this article of his general approach, there is ample room within Orthodox Judaism for a careful, respectful study of the interaction of Jewish law and history.