The Motivation for Instituting Changes in Halakha 1: Initial Recoil

 

In recent times, voices coming from different directions have been heard calling for changes in Halakha. For some, the word "change" evokes fear, and so an alternative is often used: Halakha must be "refreshed," "renewed," or the like.  The underlying objective, however, is one and the same: instituting changes in various areas of Halakha.

 

The response to such demands is usually formulated in terms of the limitations that prevent us from effecting dramatic halakhic changes: we lack the halakhic tools that would allow us to change existing halakhot in an essential way. As long as there is no Sanhedrin, or at least, as long as there no consensus among the leading Torah authorities, our capability of changing Halakha is extremely limited.

 

In this lecture, I wish to deal with a different question, one that ought to precede the discussion concerning the instruments that may allow or prevent changes in Halakha. Before we investigate whether we have the authority to change Halakha, let us examine whether it is desirable to do so. If we were to discover that we have the authority to institute very significant changes in Halakha – would we want to exercise this authority? Were the authority entrusted into our hands, would we rejoice at the opportunity to refashion the Shulchan Arukh?

 

In my eyes, this question is conceptually more significant than the issue of authority. This is what Rabbi Avraham Yitzchak Kook, of blessed memory, wrote regarding one of the details pertaining to the circumvention of the laws of the sabbatical year by selling the Land of Israel to gentiles:

 

Even though the question of whether we interpret the rationale of a biblical law has been discussed at length – this discussion regards the law itself, so that we not violate the biblical law by adopting a leniency based on its [supposed] rationale. But where, on the basis of the rationale of the biblical law, it is fitting to issue a lenient ruling outright, it is certainly appropriate to issue a ruling allowing the use of a permissible evasion of the law. (Shabbat Ha-aretz, Introduction, chap. 13, p. 112)

 

Rav Kook writes that we may not change Halakha merely because we think that in certain situations a particular law fails to actualize its rationale. "We do not interpret the rationale of a biblical law," and we may not alter Halakha because of philosophical conceptions. Should, however, we reach the conclusion that from an ideological perspective a certain Halakha must be changed, we may then try to mobilize legitimate halakhic tools in order to execute such a change. In the case under discussion, Rav Kook speaks about a legal evasion. Obviously, this is just an example. There are many halakhic instruments that allow us to effect change. But, as was stated above, we must first decide whether we are interested in such change. After we have decided that we wish to change Halakha, sometimes we will succeed, but at other times we will discover that we are incapable of effecting such a change. First, however, we must examine whether we wish at all to seek the instruments that allow us to execute change.

 

As stated above, in this lecture I shall abstain almost entirely from analyzing the halakhic instruments that allow us to institute change in Halakha. I shall focus on the fundamental question arising from Rav Kook's words: How are we to arrive at the conclusion that change is, indeed, necessary?  What considerations should we take into account in order to decide whether, from an ideological perspective, Halakha ought to be renewed? How will we know that it is time to seclude ourselves in an halakhic laboratory and mobilize all the halakhic ammunition in our arsenals to accomplish the mission of changing Halakha?

 

1. THE INITIAL RECOILING

 

First of all, it should be noted that even before we examine the rationale of any specific mitzva, there exists an instinctive recoiling from instituting changes in Halakha, regardless of the content of those changes. One of the basic principles of Judaism is the fear of God, a religious perspective that involves our maintaining a respectful distance from the Master of the Universe. This principle expresses itself in the most complete and perfect manner in religious law – Halakha.

 

Chazal have already noted that Halakha also includes statutes (chukkim) – mitzvot that appear to lack all rationale:

 

"You shall keep my judgments" (Vayikra 18:4) – [this refers to] matters that had they not been written should have been written: idolatry, illicit sexual relations, murder, theft, and blasphemy; "and you shall keep my statutes" – [this refers to] matters that Satan argues against [and the nations of the world argue against], such as: eating pig, wearing garments made of a mixture of wool and linen, chalitza, a leper's purification, and the scapegoat. You might say they are meaningless acts. Therefore the verse states: "I am the Lord" – I am the Lord who enacted them, and you have no right to criticize them. (Yoma 67b)

 

As was noted by Rambam and Ramban, Chazal do not mean to say that these mitzvot have no rationale, but only that their rationales are not known to us.[1] In any event, these mitzvot emphasize the element of fear in the observance of the mitzvot; they demand of us action that is not accompanied by identification and understanding, but rather by acceptance of the yoke of Heaven. Moreover, Rambam argues that all mitzvot do, indeed, have a rationale, but their particulars do not:

 

But no cause will ever be found for the fact that one particular sacrifice consists in a lamb and another in a ram and that the number of the victims should be one particular number. Accordingly, in my opinion, all those who occupy themselves with finding causes for something of these particulars are stricken with a prolonged madness. (Guide of the Perplexed III:26)

 

Rambam argues that the details of the mitzvot have no reason.  Why then were we given commandments that are so laden with particulars? Why did God not suffice with a general commandment, "bring a sacrifice," but instead He took the trouble to specify when to bring an ox or a ram and when to bring two pigeons – there being no true reason for choosing the one over the other?

 

It seems that, according to Rambam, there is value in the very observance of a mitzva, the fulfillment of God's word, even when the mitzva itself has no other utility. Through our observance of the details of a mitzva, we accept upon ourselves God's kingship, the significance of which does not depend upon the rationale of any particular mitzva. God gave us a multitude of particulars, so that we may give fuller expression to our absolute subordination to Him. Everything that we do only because God commanded us to do so is a realization of the acceptance of the yoke of Heaven's kingdom. This applies even if the mitzva is entirely arbitrary, having no internal reason whatsoever.

 

From this perspective, there is something inherently wrong with effecting changes in Halakha. Even when, indeed, the rationale of a mitzva is no longer valid, and from an ideological perspective the mitzva needs to be changed, the general value of accepting the yoke of God's kingship still applies. Even if the mitzvot had no reasons whatsoever, this value would still be realized through them.

 

Furthermore, in addition to the fact that even a mitzva whose rationale is no longer valid is still imbued with religious value, the very preoccupation with changes in Halakha tarnishes our sense of subservience to God. On the face of it, it should always be preferable to change a mitzva whose rationale no longer applies. For with the new garb we give it, we will come out ahead, achieving the general objective of accepting the yoke of God's kingship, as well as the particular objective of the mitzva which will once again be relevant. This, however, is not the case. The moment we assume the authority to change Halakha, our sense of subordination to God is spoiled. When we shape a mitzva to fit our tastes, the mitzva from our perspective loses its "statutory" dimension. It is no longer an absolute and obligating Divine imperative. Even those mitzvot that fall into the category of "judgments" (mishpatim), those commandments that have clear and understandable rationales, must be observed first and foremost as "statutes" (chukkim), so that their observance will be accompanied by the feeling of accepting the yoke of Heaven.

 

It is fitting to cite here the words of Dr. Isaac Breuer, the great proponent of the "Torah with Derekh Eretz" approach:

 

There is no other reason for our obedience besides the will of the King of Israel. Woe to us, if the "rationales of the mitzvot," as we imagine them, are also the reason for our obedience. (Moriah, Jerusalem, 1954, p. 111)[2]

 

From a psychological perspective, when we perform mitzvot that we ourselves have fashioned as we like, we will experience identification, joy, and love, but not the feeling of awe and commitment. The uneasiness that arises from the very occupation with the absolute statutes of God, an uneasiness that stems from the fear of God, leads to an instinctive recoiling from changes in Halakha.[3]

 

The Oral Law, indeed, contains human input. But as long as the creative process follows formal, legal rules, without bringing in value considerations, our involvement in the formation of Halakha does not negatively impact upon our sense of commitment and acceptance of God's yoke. From our perspective, Halakha remains, first and foremost, a set of chukkim, mitzvot that are observed because of the authority of the Lawmaker, and not because of our identification with their value content. When we conduct a deliberate campaign of initiated changes that flow from a specific value system, no longer do the halakhot send out a message of absolute commitment. We sense that these are laws that we have fashioned as we like.

 

The immediate recoiling from instituting changes in Halakha that we find among the halakhic authorities is not mere conservatism. Rather, it is a healthy expression of one of the central principles of our religious outlook – the sense of awe that emphasizes our commitment to the word of God and our distance from Him. In the nature of things, it is difficult to speak in generalities: we are dealing here with a psychological reaction that is very much based on the circumstances of the case and the personality of the authority. On the one hand, we do not wish to deal intensively with changes in Halakha; on the other hand, we have no desire for a Torah comprised entirely of laws that have lost their rationales. In the end, we must seek a balance which is difficult to define. In the second part of this lecture, I shall expand upon a second factor that reins in our motivation to effect halakhic change.

 

FOOTNOTES

 

[1] See Guide III:31, and Ramban's well-known remarks regarding the mitzva of driving away the mother-bird from the nest (Devarim 22:6).

 

[2] See also Dr. Breuer's work, Nachliel, p. 3.

 

[3] I have expanded upon this point in my article, "Derusha Yetzivut," Akdamot VI (5759), pp. 119-131.

 

 

(Translated by Rav David Strauss)