Halakha

Halakha (Hebrew: הלכה; also transliterated as Halakhah, Halacha, Halachah) is the collective corpus of Jewish rabbinic law, custom and tradition. Like the religious laws in many other cultures, Judaism classically drew no distinction in its laws between religious and non-religious life. Hence, Halakha guides not only religious practices and beliefs, but numerous aspects of day-to-day life.

The sources and process of Halakha

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:

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• 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 Shulkhan Arukh 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 source of Halakha, being the principle recognizing non-Jewish laws and non-Jewish legal jurisdiction as binding on Jewish citizens, especially for many areas of commercial, civil and criminal law, provided that they are not contrary to any laws of Judaism.

Unlike Anglo-American common law, though, Halakhah does not rely on a strict theory of binding precedent nor provide for systematic review of precedents. Generally, 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.

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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 to not overrule a specific law from an earlier era, unless based on an earlier authority. 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.

Related Topics:
Posek - Beth din

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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, due to its similarity with that other form of human-managed energy. Conservative Judaism and Reform Judaism tend to explicitly interpret Halakha to take into account sociological factors. For instance, the liberal Jewish movements extend the application of certain Jewish obligations and permissible activitites to women. See below: How Halakha is viewed today.

Related Topics:
Orthodox - Conservative Judaism - Reform Judaism - How Halakha is viewed today

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There is no formal peer-review process for the entire Jewish community in general, since the Jewish community has no one central body that speaks for all of Judaism. However, within certain Jewish communities formal organized bodies exist: Each division or dynasty of Orthodox Hasidic Judaism has their own rebbe, who is their ultimate decisor of Jewish law. 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.

Related Topics:
Hasidic Judaism - Rebbe - Modern Orthodox Judaism - Rabbinical Council of America - Conservative Judaism - Rabbinical Assembly - Committee on Jewish Law and Standards

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In antiquity, the Sanhedrin functioned essentially as the Supreme Court and legislature for Judaism, and had the power to create and administer binding law on all Jews - rulings of the Sanhedrin became Halakha; see Oral law. That court ceased to function in its full mode in AD 40. Today, application of Jewish law is left to the local rabbi, and the local rabbinical courts, with only local applicability.

Related Topics:
Sanhedrin - Oral law - AD 40

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Eras of history important in Jewish law

:See also Rabbinic literature.

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• The Tannaim are the sages of the Mishna (70–200)
• The Amoraim are the sages of the Talmud (200–500)
• The Savoraim are the classical Persian rabbis (500–600)
• The Geonim are the rabbis of Sura and Pumbeditha, in Babylonia (650–1250)
• The Rishonim are the rabbis of the early medieval period (1250–1550) preceding the Shulkhan Arukh
• The Acharonim are the rabbis of 1550 to the present.

The thirteen rules by which Jewish law was derived

During the time of the Mishnah, the oral law was said to be derived from the written Torah by virtue of one or more of the following methods ("Introduction to Sifra" by Ishmael ben Elisha, c. 200 CE):

Related Topics:
Torah - Ishmael ben Elisha

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• Kal va-Chomer (a fortiori): We find a similar law in a more lenient case; how more so should that law apply to our stricter case!
• Gezera shava, similarity in phrase: We find a similar law in a verse containing a similar phrase to one in our verse. This method can only be used by oral tradition.
• Binyan av, either by one or two Scriptures: We find a similar law in another case, why shouldn't we assume that the same law applies here? Now the argument may go against this inference, finding some law which applies to that case but not to ours. This type of refutation is valid only if the inference was from one Scripture, not if it was from two Scriptures.
• Klal ufrat, a generality and a particularity: If we find a phrase signifying a particularity following that of a generality, the particularity particularises the generality and we only take that particular case into account.
• Prat ukhlal, a particularity and a generality: If the order is first the particularity and then the generality, we add from the generality upon the particularity, even to a broad extent.
• Klal ufrat ukhlal, a generality, a particularity and a generality: If there is a particularity inserted between two generalities, we only add cases similar to the particularity.
• Klal shehu tzarich lifrat, a generality that requires a particularity, and a particularity that requires a generality:
• Every thing that was within the general rule and was excluded from the rule to teach us a rule, we don't consider this rule as pertaining only to this excluded case, but to the entire general case.
• Anything that was included in a general rule, and was excluded to be susceptible to one rule that is according to its subject, it is only excluded to be treated more leniently but not more strictly.
• Anything that was included in a general rule and was excluded to be susceptible to one rule that is not according to its subject, it is excluded to be treated both more leniently and more strictly.
• Anything that was included in a general rule and was excluded to be treated by a new rule, we cannot restore it to its general rule unless Scripture restores it explicitly.
• A matter that is inferred from its context, and a matter that is inferred from its ending.
• The resolution of two Scriptures that contradict each other until a third Scripture arrives and resolves their apparent contradiction.

Scholars have noted the similarity between these rabbinic rules of interpretation and the hermeneutics of ancient Hellenistic culture.

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