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We Jews like to define ourselves as Reform, Conservative, Orthodox, Humanist, or just Jewish. Most Jews make the distinction based on which synagogue they attend on the High Holy Days. But the real distinction should be based on one’s relationship to Halacha.
But what is Halacha?
For Halacha to make such a large and uncompromising claim on our lives, it has to be both Divine and relatable. Without its Divinity, Halacha is no more than temporal mores, customs and ethics. For it to actually mean something more than a platonic truth, it must be relevant and accessible.
“Lo b’shamayim hi” (“It is not in heaven”), it has to occupy the same space as man. Scholars living with this tension are torn between the “monologic view” and the “dialogic view” of halachic decision-making. The monologic view places its emphasis on God’s message and the experience of revelation. This view minimizes and even erases any human element to the Divine encounter and sees God’s revelation as a monologue dictated to man. He is but a passive recipient of the word of God.
The dialogic view, however, sees God in dialogue with man. Therefore, while the monologic view sees Halacha as operating in a vacuum yielding an immutable halachic decision, the dialogic view yields a tailor- made Halacha responding to man and his needs. Rabbi Eliezer Berkovits explained that “the divine truth had to be poured into human vessels; it had to be humanized.”
In Berkovits’s view, then, the Torah is not immutable. It takes the form it needs based on time, people and circumstance. Perhaps Berkovits was basing himself on the view of the Zohar that teaches that the Torah had to adopt the particular form that it bears in order to exist in this world. This would mean that the Torah is not prescriptive but descriptive. Responding to a less then perfect human society, the Torah teaches man how to navigate the world and live in it in accordance with His will.
The Maharal explained that this is why the first Tablets had to be smashed. They represented the primordial Torah, the perfect Torah outside humanity’s grasp. Moses then came down with the second Tablets, bearing a subjective truth, one that man can live with. The Rabbis would later illustrate the difference between these two views with two different descriptions of revelation. The monological view depicts God holding a mountain over the heads of the Israelites and forcing the covenant on them, “making them an offer they can’t refuse.” The second description illustrates the dialogical view, with Israel responding eagerly to God’s call with the words “Na’aseh v’nishma” (“We will do and we will listen!”).
It is for this reason that many rabbis objected to the codification of Jewish law.
While it is hard to imagine this now, both Maimonides and Rabbi Yosef Karo met with fierce opposition in their times for trying to set down a “final law.” Codification says to the reader: This is the law that you must follow. It robs the reader of the nuances and arguments that preceded this determination and neuters it of its dialogical component. So important was it for the reader to see the tension behind the formulation of the law that, till this day, those codes are almost always printed with the commentaries surrounding them, explaining how the author came to his determination and discussing circumstances in which that particular law would not apply.
Berkovits believed that codification was “the price that had to be paid for Jewish survival and the preservation of Jewish identity in the Exile.” But that does not free us from forgetting the dialogical as a fundamental part of the determination of Halacha. For example, Berkovits claimed that to the Talmud, svara (human reasoning and common sense) is “no less authoritative than the biblical text itself.”
One of the most famous applications of svara is in the realm of marital law.
Judaism believes adultery to be one of the gravest of sins. So great a sin is adultery that the Rabbis literally spend tractates discussing the issues of marriage and divorce, not just for the social implications of these two institutions but to have clear definitions of just who is married and who is not, in order to prevent the sin of adultery to be unwittingly committed. Nevertheless, the case is told of a woman who arrives in town whom no one knows and proclaims herself to be a divorcee. The law is that she is free to marry again without offering any proof of her divorce. This allowance is based on svara. “The mouth that bound her now releases her.”
In other words, she could have easily claimed that she was a single woman and none would be the wiser, yet she “incriminated” herself by stating she was once married. If she also states that she is a divorcee, she is to be believed based on svara. Why would she lie about her divorce if she could have just as easily lied that she was single? The idea that svara can have such a powerful influence on the Halacha is incredible in light of the fact that the Talmud seems to be filled with proof texts for the most minute halachot. The waiving of proof texts in favor of human reasoning is proof the Halacha functions not in a vacuum but in consonance with human beings and their world. Only a deep understanding of human psychology can determine the principle that “the mouth that bound her now releases her.”
Berkovits pointed out that svara can even cancel out a majority rule. The idea that a majority should determine law isn’t born in the idea that majorities are always right. As history has proven time and again, the majority can be just as wrong as a minority. Therefore, if the svara of the minority – even of a single person – is more sound, then we are to follow it. We are to follow the majority only if it presents sound and equally logical arguments. Thus, the principle of majority rule is not a dogmatic decision but a pragmatic one.
There are countless more examples of how svara can affect and even override other halachot. The point is that lost in the contemporary discussion of Halacha is a proper understanding of its very nature. Perhaps, if we had a better grasp of the dialogical view and the possibilities it presents to us to make the covenant with God even more relevant and accessible to us, Jews would be more accepting of it and ready to hear what it says. The writer is a doctoral candidate in Jewish philosophy and teaches in many posthigh- school yeshivot and midrashot.