Lecture #19a: Development of Halakha - Part I
RAV KOOKS LETTERS
By Rav Tamir Granot
Development of Halakha Part I
Focus of the Letter The Question of Development of Halakha
As noted, Rav Kooks letters 89-90 are successive both chronologically and biographically. In the time that elapsed in between them, Seidel sent Rav Kook another letter in which he questioned further Rav Kooks responses concerning slavery, and especially the theoretical dimension of the development of morality and Halakhas attitude towards it.
In order to understand the focus of the letter, let us consider two slightly provocative questions. First, what did Seidel understand about development from Rav Kooks words in letter 89? Second, did he understand correctly?
I believe that Rav Kooks words at the beginning of Section E. of the letter allude quite clearly to Seidels understanding:
You said that according to my words the Torah is continually developing; Heaven forbid that I should say something so foreign.
The first part of the sentence talks about Seidels understanding that the Torah is continually developing. From the continuation, it is clear that the focus of the problem is the possibility of change on the legal level. Unquestionably, what is written in the Torah does not change; the text is fixed. The question is whether the normative law is fixed and eternal, or whether it is subject to time. Of course, this is a crucial question, pertaining to the foundations of faith.
The religious consciousness used to maintain and perhaps continues to maintain the following equation:
Permanence = eternity = Divinity
Development = temporality = human Torah
If it is correct, this equation rejects out of hand any positive discussion of the possibility of change. If development in the law of the Torah requires acknowledgment that it is human as God revealed Himself once, and that revelation occurred in the past, while only human rulings are made in the present then faith in the Divinely-given Torah rejects any discussion of development. Indeed, from the sentence quoted above, it would seem that Rav Kook himself recoils from the thought that any such possibility could be understood from his words.
Background to the Problem in Classical Jewish Philosophy
The background to Rav Kooks words, which we shall get to later on, is important for our understanding of them. The most thorough discussion on the subject is presented by the Rambam in his Moreh Nevukhim (Guide of the Perplexed), and we shall now review what he says there in order to mark out the coordinates within which the problem may be understood.
The Rambams Position
The Rambam was the first to formulate a historicist theory in explaining the reasons for the commandments. He happened upon the Book of the Sabeans, which he describes as an ancient work about ancient cultures and their ways of worship. In this book, the Rambam found parallels and echoes of various mitzvot, especially the laws pertaining to sacrifices:
and the book by Yitzchak the Sabean, with the proofs of the Sabean nation, and his great work on the laws of the Sabeans and the details of their religion, festivals, sacrifices, and prayers, and other matters relating to their faith. All of these which I have mentioned are books of idolatry which have been translated into Arabic. Unquestionably, they are only a small portion in relation to that which has not been translated and is also no longer extant, but rather has been lost over the course of time. Those which are still extant today include most of the opinions of the Sabeans and their practices, some of which are still prevalent in the world such as the construction of temples and the images of metal and stone placed in them, and the construction of altars and the offering of sacrifices or various foods upon them, and the celebration of festivals, and the gathering for prayers and for various types of service in those temples; the apportioning of highly consecrated places with them, and calling them temples of intellectual forms, and placing images upon the high mountains, etc., and the honoring of those asherot and the establishment of the pillars, and other such things which you can see in those books which I have mentioned. And the knowledge of those opinions and those practices is of very great importance in explaining the reasons for the mitzvot, for the whole essence of the Torah and the axis upon which it turns is the erasing of such ideas from our thoughts, and the remnants [of those practices] from our reality. Concerning the erasure of the ideas from our thoughts, the Torah says, Lest your heart be tempted (Devarim 11:16), and whose heart turns away today (ibid. 29:17). Concerning the erasure of the remnants of the practices from our reality, the Torah says, You shall destroy their altars and burn their groves (Devarim 7:5), and And you shall cause their name to be forgotten from that place. (Moreh Nevukhim III:29).
The Rambam pondered the connection between the Torah and these ancient pagan sources, and this led him to formulate the following world-view:
· The Torah related to the cultural and spiritual reality prevailing at that time.
· In the period when the Torah was given, the surrounding culture was mired in crude idolatry, which also molded vulgar and/or tangible modes of pagan worship.
· The Torah meant to educate the people, and therefore it relates to the situation of the people at that time, the modes of ritual known to them, and their religious conceptions.
· The Torah proceeds along the path of sublimation of existing habits: i.e., the use of existing rituals with a change of their context and an adaption of them to the framework of Divine worship.
The Rambam explains this development as follows:
Many matters in our Torah follow the same principle set down by the same Supreme Being, since it is impossible to go suddenly from one extreme to the other, and thus it is not in accordance with human nature for a person to suddenly abandon all that he is accustomed to. When God sent Moshe to make of us a kingdom of priests and a holy nation through the knowledge of God as He explained, saying, It has been shown to you that you might know , Know, therefore this day, and consider in your heart , and that we should devote ourselves to His service as He said, And to serve Him with all your hearts , and He said, And you shall serve the Lord your God , and He said, And Him you shall serve - the prevailing custom practiced at the time throughout the world, and the manner of service in which we had been brought up, was the offering of all kinds of animals in those temples in which images had been placed, and to bow down to them, and to offer incense before them. Religious, ascetic individuals were at that time the ones devoted to service in those temples made to honor the stars, as we have explained. Therefore, God in His Divine wisdom and in His plan for all of His creatures, did not command us to abandon all these forms of service and to forsake and nullify them, for that would have been impossible for human nature which is always comfortable with that which is familiar to accept. To do so then would be like a prophet coming in our times and calling to serve God, saying, Behold God has commanded you not to pray to Him, nor to fast, nor to cry out to Him in times of distress; rather, your service of Him should be only in thought, without any action at all. Therefore, God permitted them these forms of service, transforming them from the service of created beings and imaginary, unreal things, to service of God. He accordingly commanded us to build a Temple for Him And you shall make Me a Sanctuary , and that there should be an altar to His Name An altar of earth shall you make for Me , and that sacrifices should be offered to Him If someone from among you offers a sacrifice to God , and bowing down to Him, and offering incense before Him, and He warned against performing such service for other gods (ibid., III:32).
Thus, for example, the Rambam explains, the source of the laws pertaining to the sacrifices is to be found in pagan rituals which the Torah enlisted and altered for the purposes of Divine worship. The offering of a sacrifice is, as it were, the offering of a gift of food to Gods Table i.e., it invokes a personal, tangible image of the God Who is being served. To the Rambams view, a comparison with the Sabean practices the pagan religious literature that he cites facilitates an understanding of the Torahs commandments pertaining to the blood, the distinctions between the various parts of the animal sacrifice, and other details:
We know that the idolaters tried to build their temples and to place their images on the highest possible places, upon the highest mountains. Therefore, Avraham Avinu sanctified Mount Moriah because it is the highest mountain there, and it was there that he proclaimed Gods Unity. And he set down that the direction towards which he would pray would be the west of that mountain, because the Holy of Holies is in the west as Chazal taught, The Divine Presence rests in the west. And Chazal also taught in Massekhet Yoma that it was Avraham Avinu who established the direction for prayer i.e., the place of the Holy of Holies. The reason for this, to my view, is that the prevailing custom in the world at the time was to worship the sun, which was viewed as a deity. Unquestionably, all people would turn to the east [to worship the sun], and therefore Avraham faced the west, at Mount Moriah i.e., at the site of the Temple, in order that his back would be towards the sun. We see the inverse of this idea when Am Yisrael, at the time of their wickedness and heresy and their backsliding to the earlier views, had their backs towards Gods Temple, and their faces forward, and they bowed down, facing east, to the sun (Yechezkel 8:15). (ibid., III:45)
Thus, the Rambam presents a historicist theory, based on the assumption that the reasons for the laws of the Torah are rooted in a particular historical reality. They have a defined cultural context and are suited to a particular historical period.
This exposition gives rise to two questions:
1) Would it be correct, according to the Rambams view, to say that the commandments of the Torah for example, the laws pertaining to the sacrifices are not suited to a cultural situation in which our religious perception has changed, and in which religious images are abstract and ideal, rather than personal and plastic? Is this not, in fact, the supposition of a fundamental contingency on historical time?
2) Based on the above, would it not be appropriate to assume (or at least to expect) the possibility of change in the commandments of the Torah, facilitating the achievements of its educational objectives within the new cultural situation?
It is important to emphasize the distinction between these two questions. The first is philosophical and hermeneutical, and a positive response would not necessarily entail a positive response to the second question, which pertains to the normative level, where other considerations must also be taken into account. Further on, it appears that the Rambam did indeed draw a clear distinction between the two questions.
His answer to the first question is set forth in one of the best-known chapters of Moreh Nevukhim. He writes that indeed the Torah cannot be expected to adapt itself to every person and to every period of time. The nature of the law is that it is suited to the majority, not to everyone, and there may well exist a socio-cultural reality and/or certain individuals for whom the Torahs law is unsuited, in the sense that it cannot fulfill its educational, religious function with regard to them:
It is also important to know that the Torah does not focus on individual cases, nor does it address itself to situations which are rare. Rather, concerning whatever is desirable to achieve whether it be a positive intellectual, moral, or practical end we focus on the majority and do not pay attention to the exceptional or individual, nor to the injury to the individual resulting from the decree and prescription of the Torah. For the Torah is the Divine word, and if we consider the practical realm we find that generally positive things sometimes involve individual injury as we and others have explained. On the basis of this distinction, it should not come as a surprise that the aims of the Torah are not fulfilled in each and every individual; rather, it is inevitable that there will be people for whom the prescriptions of the Torah do not bring perfection, just as there are beings which do not receive from the specific forms in Nature all that they require. For all emanates from one God, a single Source, All given from the same Shepherd as God said, For the congregation there shall be a single law for you but they are aimed towards the general benefit, which means towards the majority, as we have explained. (ibid., III:34)
To the Rambams view, this is a fundamental quality of the law. A law which has no rules is not law; it contradicts itself. But rules, by their very nature, cannot be suited to every possible situation. Therefore, the best arrangement that may be attained is for them to be suited to the greatest majority of people and to the greatest variety of situations:
It is impossible that it would be otherwise; and we have already explained that that which is impossible has a fixed nature and never changes. Further, it follows that the commandments cannot vary according to changes in the conditions of people and of the times, like the composition of a medication, which is specific to a person depending on his constitution at a particular time. Rather, the guidance of the Torah must be absolute and general, even though it may be positive in relation to some people while not having the same positive effect on others. For if the Torah were adapted in accordance with each individual, it would be imperfect in its totality, with everything left to personal discretion. For this reason, it is not proper that the fundamental principles of the Torah should be specific to either a particular time or place; rather, the laws should absolute and general. (ibid.)
At this point, we encounter the second question: Could we not then accept, theoretically, the Rambams jurisprudential argument concerning the generality of the law, while at the same time maintaining legitimate procedures for replacing one rule by another to serve, from that point onwards, as a fixed rule with absolute validity? The old, non-relevant law would not then necessarily merit greater status than the new law, which is relevant. Many systems of law include rules for change and amendment; they thereby preserve the general nature of the laws while at the same time allowing for the possibility of change. Moreover, does the Torah itself not provide for such procedures in authorizing the battei din of every generation to rule in matters of law (Devarim 17:8-13)? Does the rabbinical power of horaat shaah (the temporary abrogation of a law as an extraordinary measure to address a particular situation) not in fact represent just such a procedure?
The Rambams answer here is no less surprising than it is sharp:
Concerning a zaken mamrei (rebellious elder): Since God knew that the laws of the Torah will always need to be applied, in every place and time, in accordance with the changes of place and events and the circumstances, requiring additions in some cases and detractions in others, He therefore cautioned against such additions and detractions, saying, You shall not add to it, nor shall you detract from it because this would lead to the collapse of the entire system of the Torahs laws and to the belief that it was not given by God. At the same time, permission was given to the Sages of each generation i.e., to the Sanhedrin to create fences for the protection of these Torah laws through enactments which they would introduce so as to close loopholes. And these fences would be set down for all generations to come, as the mishna teaches: And make a fence around the Torah. And they were similarly permitted to dispense with some actions prescribed by the Torah, or to permit some actions which the Torah forbids, in a specific situation and in response to a specific event but this would not apply for all future generations, as we explained in the Introduction to the Commentary on the Mishnah concerning horaat shaah. By means of this arrangement, the Torah remains forever the same, while it is applied to each time period and every situation in accordance with its conditions. If every individual sage had possessed this license and power, people would be lost in the resulting multitude of disputes and differences of opinion. (ibid., III:41)
The Rambam states that the Torah is strict with its rules for change, and sets down, You shall not add to it, nor shall you detract from it (Devarim 13:1) specifically because from a philosophical point of view (i.e., from the perspective of the reasons for the mitzvot) there is justification for change and development in the Torah. In other words, Torah law is protected from change not because there is no positive justification for change, but rather the opposite: it is specifically because such justification is easily perceived, but its implementation on the normative level would violate the principle of the Divinity of the Torah.
Hans Kelsen, a prominent 20th century legal philosopher, developed the concept of the basic norms of a legal system. For example, the basic norm of the legal system in Israel is that the Knesset is the sole source of laws, and all legislation derives its authority or bindingness from this presupposed basic norm.
A simple example will demonstrate the importance of recognizing the basic norm. Let us suppose that a regular citizen petitions the High Court of Justice against some piece of legislation that, to his mind, violates his rights. For example, the Ministry of the Interior set down a timetable for submitting applications; this person was late in his submission, and therefore forfeited certain benefits. He has some justified reason, which is not specified in the law, for his delay; for the purposes of our demonstration, we will suppose further that his reason is explicitly rejected as a legitimate reason in the law. In this case, the High Court must weigh whether to rule against the existing law, because it believes that this citizen is right (exercising actual justice in a positive problem), or to accept the ruling of the legislator, even though it is not just. If the court rules for the law and against positive justice, it is only because it seeks to fortify the basic norm of the legal system, which sets down the primary status of the Knesset as the source of all legislation.
Returning to our discussion, the basic norm of the halakhic system is the obligation to obey the Divine command as expressed in the Torah. Any other legislation is validated by virtue of the Divine command and its authority. Thus, for example, the validity of a rabbinical enactment flows from the authority invested in the rabbis by the Torah to enact takkanot. This may be compared to municipal by-laws in Israel, whose validity flows from legislation by the Knesset. Undermining the Divine status of the Torah therefore damages the basic norm, thereby undermining the foundations of the entire system of Halakha. Since the Divine laws are identified with eternity i.e., the concept of being above time and hence not subject to change the Torah prevents the possibility of change even by a beit din, with the commandment, You shall not add nor shall you detract The status of rabbinical legislation throughout the generations including rabbinical enactments (gezerot), amendments (takkanot), and temporary emergency measures (horaot shaah) remains secondary.
To complete the picture, we must mention that the Rambam negates the legitimacy of legislation based on revelation; no prophet is entitled to introduce any law by virtue of his prophecy. This position fits in with his general view, which awards eternal validity to the laws of the Torah.
In summary, we may say that the Rambams approach highlights the difference between the philosophy and sociology of the commandments and their legal status. From the philosophical point of view, the Rambam was the first to point out the historical context of the Torahs commandments, long before modern discoveries of the Hammurabi Code and of the laws of ancient worship confirmed his exposition. From the point of view of law, it was the same Rambam who, in the normative sphere, sealed any crack that might have led to the possibility of change in the laws of the Torah at least on the formal level. 
(To be continued)
Translated by Kaeren Fish
 Horaat shaah (such as, for example, the offering of a sacrifice on bamot, as in the case of Eliyahu the prophet, or the hanging of witches, as did Shimon ben Shetach), rabbinical legislation (such as the prohibition of eating chicken together with milk), or enactments (such as the celebration of Chanuka and Purim) admittedly extend or limit the Halakha de facto, but de jure there remain 613 mitzvot no more and no less.