Just a Thought: On codification

Perhaps the most important book on the Jewish bookshelf is the Shulhan Aruch, composed by Rabbi Yosef Karo in 1563.

By AHARON E. WEXLER
Display of books in Yad Vashem 370 (photo credit: Reuters)
Display of books in Yad Vashem 370
(photo credit: Reuters)
Perhaps the most important book on the Jewish bookshelf is the Shulhan Aruch. Composed by Rabbi Yosef Karo in 1563, the Shulhan Aruch is the code of Jewish law and Judaism’s most authoritative book. It sets down precisely what the law is in the myriad of circumstances in which a Jew can find himself. I remember as a boy, my rabbi told me that if a Jew could take one book with him to a desert island, it should be this one.
Before this, a Jew who wanted to know the law had to consult dozens of books he rarely had access to, and hundreds of opinions that made up rabbinic responsa. He then had to know how to apply the precedent to his case, if it applied at all, and then weigh the fact that the opinion he was consulting may have been unique to the circumstance and the time period. This made Jewish law too difficult for the masses to ascertain.
Codification solves this, since by laying out precisely what the law is, a Jew can learn exactly what God expects him to do. This need for codification was recognized centuries before by Maimonides, Rabbi Jacob Ben-Asher and others – but Karo’s Shulhan Aruch became the most definitive of them all, and still serves as the main source of Jewish law today.
The solution of codification comes with its own set of problems. By definition, codification narrows the application of the law to a prescribed circumstance. In general, Jewish law resisted codification because it hindered continued development and creativity in the law. The Talmud rarely decides the law, and preserves both the minority and the majority opinion, elevating both to the words of the living God. Codification preserves but one opinion and disregards the rest.
Yet codification, Rabbi Eliezer Berkovits explains, is “the price that had to be paid for Jewish survival and the preservation of Jewish identity in exile.” Berkovits further explains that because of codification, we have now become “Karaites of the Oral Law.” Codification in Berkovits’s mind is a problem because Halacha is supposed to be fluid and looked at anew by every generation. Berkovits believes that, with a return to the Land of Israel, we need to return the original way of Halacha – by freeing ourselves from the sources that bind, as opposed to guide our practice.
One of the difficulties with the Shulhan Aruch today is that it is essentially a exilic work. (The irony of course is that it was written in the Land of Israel.) The Shulhan Aruch is inadequate to answer the questions and challenges we are facing today with the renewal of Jewish sovereignty in the State of Israel. Putting aside any technological changes, the very fact of Jewish sovereignty, even if it had happened in the 16th century, would have altered the very fabric of Halacha – and its response to such affairs would be unrecognizable to us today as Halacha. A Shulhan Aruch born in the shadow of a Jewish state would have yielded a very different book than the one we have today.
While the Shulhan Aruch was written in the Land of Israel, it is not what one would call today Torat Eretz Yisrael, in the sense that the basic assumption of the work is that Jews are not only living as a minority in the countries of their dispersion, but they are, unlike in today’s West, living at the mercy of their gentile overlords.
Judaism, lacking the Sanhedrin or any halachic legislative body, renders codification inert by virtue of it being confined to legal precedent alone. This is coupled with a general sense of Halacha being binding for all Jews at all times. The word “all” is a problem because “all Jews” must include Jews who live in vastly different circumstances and under vastly different governments, with vastly different customs. “All times” must mean that a Jew – no matter in what century he or she finds himself – in would be bound to the same Halacha.
The solution of course is for men and women who are experts in Jewish law, fear God and love Israel, to get together and decide how to apply the Torah to the new circumstances in which we are currently living.
These laws would aim to answer the halachic concerns of the Orthodox population, and even more importantly, make Judaism relevant to Israel’s secular majority.
Such a step would take courage and even chutzpah. But I am reminded of what the sages taught: In the days of the Messiah, chutzpah will reign over the generation.
The writer is a doctoral candidate in Jewish philosophy and currently teaches in many post-high-school yeshivot and midrashot.