Halakhah: Sources and Development

From biblical law, through classic rabbinic debate and medieval law codes, and continuing in the modern period, Jewish law has undergone constant development.

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A talmudic saying about the debates between the houses of Hillel and Shammai has often been quoted in this connection. This statement, attributed in the [Babylonian] Talmud (Eruvin 13b) to a heavenly voice, has it that "Both these and those are the words of the living God, but the halakhah [the ruling] follows the opinions of the House of Hillel." A number of distinguished talmudists in the Middle Ages and many in contemporary Orthodoxy have understood this in a literal fashion to mean that when God gave the Torah to Moses He gave both opinions, even though only one can be followed in practice.

Modern Scholarship and the Development of Halakhah

The static picture described above has been challenged by modern historical-critical scholarship. Scholarly research has succeeded in demonstrating that the halakhah, like other religious institutions, Jewish and non-Jewish, has had a history. Judaism, in different periods, has reacted to the conditions of the time, so as to produce the particular halakhah required by the time.

The three law codes in the Pentateuch are seen by the critics as stemming from three different periods, the laws of each being governed by conditions obtaining when the code was compiled. So, too, the halakhah itself and the doctrine of the Oral Law upon which it is based are now seen [by modern critical scholarship] not as dropping down from heaven ready-made, but as evolving as the result of a lengthy process.

And there is the problem of the manner in which the halakhah is derived from Scripture. There are numerous instances where the scriptural support given in the talmudic literature for a particular law is so weak that the law was obviously established on other grounds and then support for it was discovered in Scripture. This can only mean that the real basis for many of the laws is in the life of the people.

Throughout the history of the halakhah, scholarship has shown, the halakhists were not only concerned with discovering what the law is, but with what it must be if the other values of Judaism are to be realized. Research has now shown, too, that in extra-talmudic sources such as the Apocrypha, [the works of the first-century CE historian] Josephus [Flavius], the Dead Sea Scrolls, and [the works of the first-century CE Alexandrian Jewish philosopher] Philo, details of the early halakhah are different from talmudic halakhah. Moreover, the most formative era of the halakhah is from the return from Babylonian exile [in the late 6th century BCE] down to the age of the Maccabees [in the second century BCE], and this period is shrouded in obscurity.

For all the difficulties inherent in the attempt to discover how the Halakhah developed, and the difficulties are formidable, without any consensus having emerged among scholars, it has become fairly clear that there is a history of the halakhah and the static picture of tradition is not a true picture of the tradition itself. Yet, as in every legal system, the halakhah proceeds by its own principles in which the law is established by precedent and consensus.

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Rabbi Louis Jacobs

Rabbi Dr. Louis Jacobs (1920-2006) was a Masorti rabbi, the first leader of Masorti Judaism (also known as Conservative Judaism) in the United Kingdom, and a leading writer and thinker on Judaism.