Halakha - Sources and Process

Sources and Process

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 aspect 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 primarily 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, after it got accepted by the community as a law or vow. 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, as electricity is deemed to be a form of fire. In contrast, Conservative Poskim consider that switching on electrical equipment 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 on Shabbat. The reformative Conservative Judaism, in some cases, explicitly interprets Halakha to take into account its view of contemporary society. For instance, most Conservative rabbis extend the application of certain Jewish obligations and permissible activities to women. See below: How Halakha is viewed today.

Within certain Jewish communities, formal organized bodies do exist. Within Modern Orthodox Judaism, there is no one committee or leader, but Modern Orthodox rabbis generally agree with the views set by consensus by the leaders of the Rabbinical Council of America. Within Conservative Judaism, the Rabbinical Assembly has an official Committee on Jewish Law and Standards.