Innovation in Jewish Law: A Case Study of Chiddush in Havineinu
By Michael J. Broyde
Urim Publications, 2010
Reviewed by Francis Nataf
In spite of the many years our students are exposed to halacha, very few are able to explain how this complicated system actually works. Moreover, when they hear the clearly fallacious notion that halacha never changes, many don’t even flinch. The problem is that even if we often teach the subject very well and in great detail, we rarely expose our students to the theoretical basis of halachic methodology. It is a case of too much “it” and not enough “about it.”
Rabbi Michael Broyde’s latest work, Innovation in Jewish Law: A Case Study of Chiddush in Havineinu may well be the answer to this problem. While most of the book consists of a very nicely presented but otherwise unremarkable halachic study, it is his masterful introduction and conclusion about halachic methodology – focusing on how and under what circumstances halacha changes – that give the book its importance.
Among other things, his background in general law allows him to dispassionately explain that any legal system changes via interpretation. He then gives three categories as to what prompts new halachic interpretations in particular: 1) abstract study (meaning when new interpretations simply arise from protracted study of the text), 2) development of technology and 3) changes in economic and social conditions. This categorization is quite helpful, as is his later distinction between harmonizing and decision-making approaches to contradictory texts.
Paradoxically, the strengths of this book are also its weaknesses. Regarding the three-fold categorization of what prompts halachic change, the serious student of halachic process will recognize this as a simplification. For example, what happens when the observable realia no longer conform to that described in the Talmud, such as concerning Talmudic evaluations of what constitutes pikuach nefesh or the recommendation that fish be eaten when it is almost spoiled (in which case, we don’t follow the Talmud) or concerning what constitutes a treifa (in which case we do follow the Talmud)? As far as I can tell, the impetus to change these halachot does not fit into any of the author’s categories. Moreover, the classification system set up by Broyde fails to point out that poskim show more reticence to accept sociological changes as valid criteria for the development of halacha and that even technological change is sometimes seen as artificial to the system. At the same time his judicious simplifications and omissions make the book more useful for a larger group of people – including most of our high school (and post-high school) students – who might otherwise get lost in the details. It has been correctly
observed that many a book has been killed by its author not knowing what to include and what to leave out.
Another strength/weakness is the actual subject matter. Broyde focuses on the rather bland mini shmoneh esresh, known as havinenu, specifically to avoid controversy. In this, he is certainly successful. (In all fairness, he presents another reason as well – the clearly traceable evolution of this particular area of halacha.) Nonetheless, he makes the task more difficult for the teacher trying to interest his or her students in this book.
Every teacher knows that most students need a hook to pique and sustain their interest. At the very least, that means choosing topics of practical relevance. Quite often, it also means specifically looking for controversial issues. But here too, R. Broyde may be making a judgment call, deciding that choosing a non-controversial subject will get his book into more schools and used by more teachers. In spite of (and also as a result of) the aforementioned issues, this book is ideally suited to be a basic text in a high school gemara/halacha curriculum. In fact, I can think of no replacement for giving our students a solid introduction to halachic methodology.
More generally, R. Broyde deserves kudos for producing a readable but sophisticated presentation of how halacha has worked and should continue to work in our own time. Given the confusion that exists about the topic and the unfortunate side-effects this engenders, this book’s usefulness is not limited to its important role in the classroom. Indeed, it should also be widely distributed by synagogues and organizations with an interest in promoting a more accurate understanding of the halachic process.
First printed in the Lookstein Digest