Halakhah: Jewish Law
Level: Intermediate |
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Judaism is not just a set of beliefs about
G-d, man and the universe. Judaism is a comprehensive
way of life, filled with rules and practices that affect every aspect of
life: what you do when you wake up in the morning, what you can and cannot
eat, what you can and cannot wear, how to
groom yourself, how to conduct business, who you can
marry, how to observe the
holidays and
Shabbat, and perhaps most important, how to
treat G-d, other people, and
animals. This set of rules and practices is
known as halakhah.
The word "halakhah" is usually translated as "Jewish Law," although a more
literal (and more appropriate) translation might be "the path that one walks."
The word is derived from the Hebrew root
Hei-Lamed-Kaf, meaning to go, to walk or to travel.
Some non-Jews and non-observant Jews criticize this legalistic aspect of
traditional Judaism, saying that it reduces the religion to a set of rituals
devoid of spirituality. While there are certainly some Jews who observe halakhah
in this way, that is not the intention of halakhah, and it is not even the
correct way to observe halakhah.
On the contrary, when properly observed, halakhah increases the spirituality
in a person's life, because it turns the most trivial, mundane acts, such
as eating and getting dressed, into acts of religious significance. When
people write to me and ask how to increase their spirituality or the influence
of their religion in their lives, the only answer I can think of is: observe
more halakhah. Keep kosher or light
Shabbat candles, pray
after meals or once or twice a day. When
you do these things, you are constantly reminded of your relationship with
the Divine, and it becomes an integral part of your entire existence.
Are these laws sometimes inconvenient? Yes, of course. But if someone you
care about -- your parent, your child, your spouse -- asked you to do something
inconvenient or unpleasant, something you didn't feel like doing, you would
do it, wouldn't you? It is a very shallow and meaningless kind of love if
you aren't willing to do something inconvenient for someone. How much more
so should we be willing to perform some occasionally inconvenient tasks that
were set before us by our Creator, who assigned those tasks to us for our
own good?
Halakhah is made up of mitzvot from the Torah
(d'oraita), laws instituted by the rabbis
(d'rabbanan) and long-standing customs (minhag). All of these have the status
of Jewish law and all are binding, though there are differences in the way
they are applied (see below).
At the heart of halakhah is the unchangeable 613 mitzvot that
G-d gave to the Jewish
people in the Torah (the first five books
of the Bible). The word "mitzvah" (plural: mitzvot) means "commandment."
In its strictest sense, it refers only to commandments instituted in the
Torah; however, the word is commonly used in a more generic sense to include
all of the laws, practices and customs of halakhah, and is often used in
an even more loose way to refer to any good deed. Because of this looser
usage, sophisticated halakhic discussions are careful to make a distinction
between mitzvot d'oraita (an Aramaic word meaning "from the Torah") and mitzvot
d'rabbanan (Aramaic for "from the rabbis").
Some of the mitzvot d'oraita are clear, explicit commands in the text of
the Torah (thou shalt not murder; you shall write words of Torah on the
doorposts of your house), others are more
implicit (the mitzvah to recite grace after meals,
which is inferred from "and you will eat and be satisfied and bless the L-rd
your G-d"), and some can only be ascertained by deductive reasoning (that
a man shall not commit incest with his daughter, which is deduced from the
commandment not to commit incest with his daughter's daughter).
Some of the mitzvot overlap; for example, it is a positive commandment to
rest on Shabbat and a negative commandment
not to do work on Shabbat.
Although there is not 100% agreement on the precise list of the 613 (there
are some slight discrepancies in the way some lists divide related or overlapping
mitzvot), there is complete agreement that there are 613 mitzvot. This number
is significant: it is the numeric value of
the word Torah (Tav = 400 + Vav = 6 + Reish = 200 + Hei = 5), plus 2 for
the two mitzvot whose existence precedes the Torah: I am the L-rd, your G-d
and You shall have no other gods before Me. There is also complete agreement
that these 613 mitzvot can be broken down into 248 positive mitzvot (one
for each bone and organ of the male body, according to the Talmud) and 365
negative mitzvot (one for each day of the solar year).
The most accepted list of the 613 mitzvot is
Rambam's list in his Mishneh Torah. In the
introduction to the first book of the Mishneh Torah, Rambam lists all of
the positive mitzvot and all of the negative mitzvot, then proceeds to divide
them up into subject matter categories. See
List of the 613 Mitzvot.
Many of these 613 mitzvot cannot be observed at this time for various reasons.
For example, a large portion of the laws relate to
sacrifices and offerings, which can only
be made in the Temple, and the Temple does
not exist today. Some of the laws relate to the theocratic state of Israel,
its king, its supreme court, and its system of justice, and cannot be observed
because the theocratic state of Israel does not exist today. In addition,
some laws do not apply to all people or places. Agricultural laws only apply
within the state of Israel, and certain laws
only apply to kohanim or
Levites. The 19th/20th century scholar Rabbi
Israel Meir Kagan, commonly known as the Chafetz Chayim, has identified 77
positive mitzvot and 194 negative mitzvot which can be observed outside of
Israel today.
In addition to the laws that come directly from
Torah (d'oraita), halakhah includes laws that
were enacted by the rabbis (d'rabbanan). These
rabbinic laws are still referred to as mitzvot (commandments), even though
they are not part of the original 613 mitzvot
d'oraita. Mitzvot d'rabbanan are considered to be as binding as Torah
laws, but there are differences in the way we apply laws that are d'oraita
and laws that are d'rabbanan (see
below).
Mitzvot d'rabbanan are commonly divided into three categories: gezeirah,
takkanah and minhag.
 A gezeirah is a law instituted by the
rabbis to prevent people from accidentally violating
a Torah mitzvah. We commonly speak of a gezeirah
as a "fence" around the Torah. For example, the
Torah commands us not to work on
Shabbat, but a gezeirah commands us not to
even handle an implement that you would use to perform prohibited work (such
as a pencil, money, a hammer), because someone holding the implement might
forget that it was Shabbat and perform prohibited work. The word is derived
from the root Gimel-Zayin-Reish, meaning to cut off or to separate.
 A takkanah is a rule unrelated to biblical laws
that was created by the rabbis for the public welfare. For example, the practice
of public Torah readings every Monday and Thursday is a takkanah instituted
by Ezra. The "mitzvah" to light candles on
Chanukkah, a post-biblical holiday, is also
a takkanah. The word is derived from the Hebrew root Tav-Qof-Nun, meaning
to fix, to remedy or to repair. It is the same root as in "tikkun olam,"
repairing the world, or making the world a better place, an important concept
in all branches of Judaism.
Some takkanot vary from community to community or from region to region.
For example, around the year 1000 C.E., a Rabbeinu
Gershom Me'or Ha-Golah instituted a takkanah prohibiting polygyny (multiple
wives), a practice clearly permitted by the Torah and the
Talmud. This takkanah was accepted by
Ashkenazic Jews, who lived in Christian
countries where polygyny was not permitted, but was not accepted by
Sephardic Jews, who lived in Islamic countries
where men were permitted up to four wives.
 A minhag is a custom that evolved for worthy religious
reasons and has continued long enough to become a binding religious practice.
For example, the second, extra day of holidays
was originally instituted as a gezeirah, so that people outside of
Israel, not certain of the day of a holiday,
would not accidentally violate the holiday's
mitzvot. After the mathematical calendar was
instituted and there was no doubt about the days, the added second day was
not necessary. The rabbis considered ending
the practice at that time, but decided to continue it as a minhag.
It is important to note that these "customs" are a binding part of halakhah,
just like a mitzvah, a
takkanah or a
gezeirah.
The word "minhag" is also used in a looser sense, to indicate a community
or an individual's customary way of doing some religious thing. For example,
it may be the minhag in one synagogue to stand while reciting a certain prayer,
while in another synagogue it is the minhag to sit during that prayer. Even
in this looser sense, it is generally recommended that a person follow his
own minhag, even when visiting another community.
As we have seen, Jewish law includes both laws that come directly from the
Torah (either expressed, implied or deduced)
and laws that were enacted by the rabbis. In
a sense, however, even laws enacted by the rabbis can be considered derived
from the Torah: the Torah gives certain people the authority to teach and
to make judgments about the law (Deut. 17:11), so these rabbinical laws should
not be casually dismissed as merely the "laws of man" (as opposed to the
laws of G-d). Rabbinical laws are considered to be as binding as Torah laws,
but there are differences in the way we apply laws that are "d'oraita" (from
the Torah) and laws that are "d'rabbanan" (from the rabbis).
The first important difference is a matter of precedence: d'oraita takes
precedence over d'rabbanan. If two d'oraita rules come into conflict in a
particular situation, rules of precedence are applied to determine which
rule is followed; however, if a d'oraita rule comes into conflict with a
d'rabbanan rule, the d'oraita rule (Torah rule) always takes precedence.
Do we fast on Yom Kippur when it falls on
Shabbat? These are both d'oraita, so rules of precedence must apply. Specific
rules take precedence over general rules, so the specific rules of Yom Kippur
fasting takes precedence over the general rule of Shabbat joy, and yes, we
fast on Yom Kippur on Shabbat. However, the other fasts on the Jewish calendar
are d'rabbanan, so the rule of Shabbat joy takes precedence, and other fasts
that fall on Shabbat are changed to another day.
The second important difference is the strictness of observance. If there
is doubt (in Hebrew: safek) in a matter that is d'oraita, we take the strict
position (in Hebrew: machmir) regarding the rule; if there is doubt in a
matter that is d'rabbanan, we take the lenient position (in Hebrew: makil)
regarding the rule. In Hebrew, this rule is stated: safek d'oraita l'humra;
safek d'rabbanan l'kula. This is easier to understand with an example: suppose
you are reading the morning prayers and you can't remember whether you read
Bar'khu and Shema (two important prayers). You are in doubt, safek. The
recitation of Shema in the morning is a mitzvah d'oraita, a biblical commandment
(Deut. 6:7), so you must be machmir, you must go back and recite Shema if
you are not sure whether you did. The recitation of Bar'khu, on the other
hand, is a mitzvah d'rabbanan, a rabbinic law, so you can be makil, you don't
have to go back and recite it if you are not sure. If you are certain that
you did not recite either of them, then you must go back and recite both,
there is no doubt so no basis for leniency.
© Copyright 5756-5767 (1995-2007), Tracey R Rich
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