Tradition Today: Halacha and history

Halacha is not static. It has always reacted to the needs of the people and the conditions of the time.

Carob 521 (photo credit: Courtesy)
Carob 521
(photo credit: Courtesy)
The Tu Bishvat celebrations are over. Trees have been planted, fruit has been eaten, and a certain amount of environmental consciousness has entered our minds, though probably not enough. None of that, of course, has anything to do with the original meaning of Tu Bishvat as found in the Mishna: “The New Year of the Trees is on the first of Shvat according to Beit Shammai. Beit Hillel says the 15th of the month.”
That is, the year of counting the cycle of tithing the fruits begins on that date. The metamorphosis of the day only illustrates the way that observances grow and change with the times.
On Tu Bishvat, two associations automatically come to my mind. The first goes back to pre-state days when I was a child in Hebrew school. Every Tu Bishvat we were given fruit from Palestine to eat. It was called bokser (carob). The problem was that it was truly inedible. I don’t know how it arrived in America and how long it had taken to get there, but it was as hard as a rock. And if you did manage to chew it without breaking your teeth, it tasted a bit like cardboard. I suspect that bokser did more than anything else to discourage aliya. Years later, when I tasted it in Israel, fresh off the tree, I was shocked at how good it actually was.
The other association is from my student days at the Jewish Theological Seminary’s Rabbinical School. I was given an essay to read written by the brilliant talmudist Prof. Louis Ginzberg, who unfortunately passed away my first year there, so I had no chance to study with him. Ginzberg was undoubtedly the greatest rabbinics scholar of that and many other generations. His magnum opus, Legends of the Jews, is an unrivaled masterpiece.
Incidentally, it was translated into English from his German manuscript by the young Henrietta Szold, who was somewhat infatuated with him and was the first woman given permission to sit in on rabbinical school classes at JTS. Obviously, she was not enrolled or eligible for ordination.
The essay I read was entitled “The Significance of the Halacha for Jewish History.” It had been delivered in Hebrew as a lecture at the Hebrew University in Jerusalem during the academic year 1929-30. “My chief purpose,” Ginzberg said, “is to demonstrate that the development of the Halacha... is not a creation of the house of study but an expression of life itself.” His theme was the influence of socioeconomic factors on the development of Jewish law, and Tu Bishvat was one of the primary examples that he brought to prove his thesis.
Ginzberg demonstrated that the controversies between the School of Hillel and the School of Shammai were the result of the differences in the socioeconomic status of these two groups. The Hillelites represented the lower social classes, while the Shammaites were wealthy patricians.
Ginzberg goes through an entire list of the conflicts between the law as interpreted by Hillel and by Shammai and demonstrates that in each case it reflects the differing needs and views of the upper and the lower classes.
The last one he deals with has to do with the date of the New Year of the Trees which, as noted, according to Shammai was the first of Shvat and according to Hillel was the 15th. Why? “There is no need to indulge in fanciful theorizing, for the simplest explanation is that the rich possessed good and fruitful fields on which the trees began to blossom a week or two before the blossoming of the trees on the meager and unyielding soil of the poor.”
Ginzberg also contends that various rabbinic enactments against gentiles in the Land of Israel were not based on biblical law but on the specific problems of that particular generation, faced with threats against Jewish settlement in the land because it was controlled by the Romans.
Subsequent studies of Jewish law by such scholars as Prof. Yaakov Katz and many others have continued this line, demonstrating that halachic decisions in the Middle Ages, as well as those in antiquity, were frequently made on the basis the needs of the specific community. More often than not, the realities of life and the need for the community to survive economically, politically and socially determined what was permitted and what was forbidden according to Jewish law.
As Ginzberg wrote concerning the Pharisees, “They did not avoid dealing with the questions that contemporary life presented and solving them according to the needs of the day.”
Halacha is not static. It has always reacted to the needs of the people and the conditions of the time. In Israel above all places, it is crucial that we recognize that a halacha that does not take history and changing conditions into account and that does not demonstrate flexibility is a dead letter that cannot fulfill the Torah’s command “and you shall live by them” (Leviticus 18:5).
The writer, former president of the International Rabbinical Assembly and current member of its Committee on Jewish Law and Standards, was the founding director of the Schechter Rabbinical School. A twotime winner of the National Jewish Book Award, his latest book is Entering Torah.