The Evolution of a Halakhah

Innovation in Jewish Law

Innovation in Jewish Law

by Gil Student

I. Does Halakhah Change?

Halakhah, Jewish law, has a static core whose applications and many details vary based on time, place, circumstance and authority. This dichotomy is often overlooked. Academics tend to emphasize the exceptional cases which do not reflect the larger corpus while traditionalists reactively focus on the unchanging center. In truth, there is natural and uncontroversial development that occurs throughout Jewish law.

Occasional guest blogger Rabbi Michael J. Broyde’s recent book, Innovation in Jewish Law: A Case Study of Chiddush in Havineinu, studies the rule rather than the exception. The book is remarkably broad while still narrowly focused, conducting a vertical study of a specific halakhah that is thorough but unconnected to the larger corpus of Jewish law. In doing so, R. Broyde is able to conduct his work without concern for polemic or politico-historical speculation. The results of his study are clear and persuasive.

II. The Havineinu Mini-Prayer

R. Broyde selected the mini-prayer called Havineinu, about which there are numerous apparent contradictions within the Talmud. Who can recite it instead of the standard Shemoneh Esreh prayer? Under what circumstances? Authorities over the ages have adopted different approaches to resolving the conflicting texts, yielding divergent practical rulings. Through R. Broyde’s analysis, we see the changes in halakhah that occur in the normal course of Torah study, as commentators debate the merits of different interpretations and rule accordingly.

This type of natural, analytical shift is free of agenda because this topic is not controversial. It has never been subject to political, social or economic pressures. Accusations of manipulating the texts for communal benefit do not arise. Instead, we see the process of slow legal change based on the careful study of Torah for its own sake.

III. Changes in Circumstances

Toward the end of the progression from Mishnah to the modern state of Israel, there are a number of changes that add notable ingredients to the mix. One is the impact of the printing press and the resultant proliferation of prayerbooks. This technological advance has, according to many authorities, affected halakhah. While in the past we allowed the recitation of the brief Havineinu prayer in exceptional circumstances where haste or worry may lead to confusion, many no longer allow it because prayerbooks are plentiful and the person praying can easily follow the printed wording of the full prayer.

Another is the lessening of the work burden on most employees. It is unlikely today that employers object to a complete Shemoneh Esreh and, therefore, employees are not free to use the shorter Havineinu. On the other hand, Israeli soldiers are often in situations where they cannot recite the full prayer and are instructed to recite Havineinu instead. They can be (and are) trained and equipped to recite the shorter prayer as appropriate.

R. Hershel Schachter often says that when circumstances change, the application of halakhah must change. This is not an evolution of halakhah but a proper application of it. In one circumstance paragraph A of the law code might apply and in another paragraph B. Continuing past practice when the situation has changed, failing to properly apply the correct paragraph, is actually the innovation in halakhah.

IV. General Lessons

R. Broyde’s study demonstrates this but also emphasizes the impact of continued study and innovation. Agenda-free Torah study will inevitably yield original interpretations that affect the practice of halakhah in a natural and unobjectionable way. R. Broyde’s study does not, however, touch on issues that are fraught with political, social and economic pressures.

The most important lesson I learned from this extensive technical study is that innovation within the appropriate context is natural. Therefore, when looking back at more complex cases where various pressures challenged a Jewish community and halakhah changed its course, we cannot conclusively state that the halakhic innovation was due to the prevailing social or economic circumstances. Perhaps the changes in halakhah were merely the natural result of study and had nothing to do with external pressures.

From Torah Musings

The original article may be found here.

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