Inexplicit Halakha

Josh Weissman, Princeton University

“We have become enslaved to the very technology designed to liberate us,” says Rav Ari Kahn of Aish,1 an apolitical, international network of Jewish educational centers. He was responding to the advent of the Shabbat App, which, by using a number of halakhic loopholes, makes using a cell phone on Shabbat entirely ‘permissible.’ Interestingly, the app has sparked less contention about its efficacy to evade halakhic concerns than it has about its ability to destroy the amorphous Sabbath environment. But where does this concept come from, and is it a concept that pervades other areas of halakha?

While the Talmud discusses thirty-nine Biblically prohibited acts in a precise and encompassing list, Jewish authorities have been quick to note a parallel commandment: “On the Seventh, day you shall rest,” a proscription more inclusive than the list of melachot, the constructive acts performed in the Tabernacle. In fact, Nachmanides2 understands the Hebrew word “Shabbaton” to delineate a Biblical commandment to rest on Yom Tov even from actions that do not involve melachah, exacting prohibitions to arenas of life not explicated by the Talmud’s list. Furthermore, already thousands of years ago, the prophet Isaiah related to this concept when he required the closure of storefronts and prohibited the discussion of business affairs on Shabbat, both not explicitly forbidden by the Torah.3

These amorphous regions of halakha are rare but critical, requiring ingenuity and integrity to maintain a coherent and accessible system. Ingenuity refers to the logic-based, and sensitive expansion of a legal framework, and integrity refers to the notion that this expansion must constantly be checked by the backbone values and rules of the framework itself. So as we are wedded to our primary texts, how do we approach the ambiguity of life and those things not explicit in our tradition? How do we practically apply this ingenuity and integrity?

Understanding the lifestyles of Abraham and Noah can provide insight to the ideals of the halakhic framework, and to how we utilize it responsibly. Abraham and Noah were praised for incorporating G-d into their daily lives; every act was categorized as being “in” or “out” of the path of G-d.4 The psukim are clearly indicative of this point. The Talmud, in line with this model, illuminates the requirement to ‘act in the way of G-d’ – visiting the sick, comforting the bereaved; as He acts, so must we.5 As Rabbi Daniel Schreiber explains further, Nachmanides understands the Biblical phrase “kedoshim tihyu,” or “you shall be holy,” in the same way he understands “Shabbaton”: “as a springboard to build a towering edifice of meta-halakhic principles, expanding the obligations of the Torah to include far more than any list of 613 mitzvot could ever encompass.”6 Biblical precepts extend further than the four cubits of the law, in that the ‘spirit of the law’ might contribute as legitimate halakhic force as the law itself.

Certainly modern Jewish thought has addressed the potential for a meta-halakhic moral obligation, rather than being a common courtesy alone. Rabbi Aharon Lichtenstein elaborated on what is presumably the Ramban’s (Nachmanides) position, noting that “if we recognize that halakha is multiplanar and many dimensional: that properly conceived, it includes much more than is explicitly required or permitted by specific rules, we shall realize that ethical moment we are seeking is itself an aspect of halakha.”7 Rooted deeply in the halakhic framework is the fusion of Jewish thought and daily conduct, that by ‘living Jewish lives’ we mean living an adaptable life infused with both Jewish laws and values.

Yet in the modern era, life became a lot more complex: widespread discussions of abortion, politics and the corporate business model required halakhic attention, and in what has been a hundred-year polemic, leading Jewish thinkers have sought to make relevant halakhic import to the questions of the modern world, questions never before asked in halakhic context.

What differentiates the expansion of halakha to the business model from its extension to Shabbat? Rabbinic authorities have indeed always brought ingenuity and integrity to the discussion, by which I mean that Judaism has addressed burgeoning fields with both logic and precedent the same was a modern court might address a new case study – synthesizing new applications of an old text with a profound sense of humility before the existing legal framework.

The real problem comes up with the projection of personal sentiments and beliefs onto texts that properly convey things entirely different. Projection is often confirmation bias: the reading of tradition text with the presuppositions which we already have. We do this on a daily basis, and often the values we read into a certain text are not distant (not contradictory) from the intended implications of that text. For this reason, projection cannot be flawed absolutely. In the same way that Elisha ben Avuyah, and even Maimonides to some degree, confronted great cynicism, Jews for centuries have been reluctant to accept certain Biblical and Talmudic exegeses because of what they perceived to be a convergence with heresy – a concern for projection. For instance, Elisha ben Avuyah’s divergence from mainstream Rabbinic thought yielded for him the title acher, meaning “other.” Despite making Biblical interpretation a personal vocation, the Talmud recounts how he mutilated the roots of the pardes, an orchard which seems to metaphorically represent the entirety of Jewish mysticism. Some, such as Rabbi Meir, entertained a certain closeness with Elisha,8 with whom he traded Biblical exegeses and whose grave he protected upon being consumed by fire. But as a general rule, listening to these interpretations may have been quite convincing, but in the face of what many presumed to be heretical baggage, they were also suspect to extreme projection.

Edgar Allan Poe, by contrast, in “The Philosophy of Composition,” an analysis on his writing of “The Raven,” professes how good writing means beginning with a denouement: most of our own papers, analysis, opinions and conversations approach logic in the same way.9 To a certain degree, Poe projects the pre-established finale onto its plot line in the same way that people naturally project what they want to see onto current status quo. We instinctively become aware of what we believe and presuppose its veracity; we start with a thesis, and only later realize it is not supported. We preach values and cannot delineate their origins. Poe considered a tension and constructed its resolution before knowing the path his characters would take from one to the other. Projection is the assumptive, presumptuous nature of our being – and it is not entirely foreign to halakha, in that living life involves preconceptions from yesterday and projections about today.

So as modernity brought the steam-engine, the sewing machine, and the Shabbat App, Jewish communities around the world have been struggling if and how to place halakhic emphasis in a variety of new spheres. Yet the interface between projection and the combination of ingenuity and integrity has not always been clear. For example, regarding the then-new 20th century business model, Jewish law mandates that Jews pay their debts, but must a Jewish shareholder use personal assets to satisfy an unpaid, corporate debt?7 If we presume yes, is this halakha or is it so commonplace and indisputable that it would be too ridiculous to assume otherwise? Do charitable donations fulfill one’s obligation to charity? The list suddenly became endless. Business ethics, codes of law, and so on.

Discussing the “Jewish law consequences of the American corporate structure”10 and how secular laws influence Jewish laws, Rabbi Michael Broyde and Steven Resnicoff write:

“Secular law…affect[s] Jewish law on at least two levels. On one level, secular commercial institutions create or involve “facts” that directly resonate in principles indigenous to Jewish law…On another level, Jewish law contains a doctrine, “the law of the land is the law” (dina de’malkhuta dina), which validates…certain secular laws.”11

Determining halakha for the corporation therefore coincides with understanding society’s laws, which complicates this issue of projection, especially within an entrenched Jewish community outside of Israel. Has the broad, current scope of dina de’malkhuta dina come to shape our values and beliefs, or do these societal laws represent only a temporary obligation, distant and foreign to halakha?

The power of projection in today’s business world is exceptional; this is also true in social advocacy. To a certain degree, the halakha-as-lifestyle approach has largely been replaced by halakha-as-accessory. Haym Soloveitchik posits regarding modern society, “the new climate of inclusion [has] reduced the social and psychological costs of distinctiveness,” where Judaism to some may appear strikingly similar to secular social activism.12 If this is true, the ingenuity of halakha might be linked to a dual role: first, as a steering guide for living a lifestyle directed by the Divine word, and second, as a means to differentiate the Jew from modern culture in a purely constructive way.

But even if halakha simply connoted a lifestyle directed by Divine word, man’s role in uncovering the beauty and breadth in specific as well as inexplicit halakha is a basis for religious living. Treating morality as a halakhic responsibility, protecting the nature of the Shabbat environment, ethics in the business sector – these all amount to preserving the letter as much as the spirit of Halacha.  Interrelated but independent concepts, Jewish values are often implicit in, even if not entirely coterminous with, halakhic requirements. If we establish halacha as a lighthouse, we can avoid falling prey to Soloveitchik’s many societal concerns, where the “religious life” becomes “less distinguishable from that of others,” where “modernity has thus defoliated” most religious practices and “stripped the remaining ones of their significance.”13 Without the intangible presence of an inexplicit but pervasive set of halakhic precepts, religious life diverges as it loses its patterned coloration.

So without discussing the necessity per se to ‘be different,’ we can simply accrue respect and understanding for the prevalence of the inexplicit halakhic framework. From morality to business norms to the Shabbat aura, the inexplicit halakha is a fundamental part of leading a Jewish life, and we might do well to consider its practical import as we lead our daily lives, incorporating the ingenuity and integrity of the inexplicit halakha into the very fibers of our being.

Bibliography

  1. Klein, Ari. “The Shabbat App.” com.
  2. Nachmadines, on Leviticus 23:24
  3. Isaiah 58:13; Mesechet Kesubos 5A
  4. Genesis 6:9
  5. Sota 14A
  6. Shreiber, Daniel. “Asymptotically Approaching God: Kedusha in the Thoughts of the Ramban.” Tradition 44:1, 2011, p.31
  7. Lichtenstein, Aharon. “Modern Jewish Ethics”, Does Jewish Tradition Recognize an Ethic independent of Halakha?”, p.70.
  8. Chagiga 15A/B
  9. Poe, Edgar Allen. “The Philosophy of Composition.” Graham’s American Monthly Magazine of Literature and Art.
  10. Broyde, Michael J. Resnicoff, Steven. “Jewish Law and Modern Business Structures: The Corporate Paradigm.” The Wayne Law Review, Vol43:1685. p.1691.
  11. ibid p.1696.
  12. Soloveitchik, Haym. “Rupture and Reconstruction.” Tradition: A Journal of Traditional Orthodox Thought. 28:4. 1994.
  13. Ibid.