The analogy between language and halacha is obvious to Shimen. He experiences them in the same way: both were learned mainly mimetically, both are practiced intuitively and both are communal phenomena.
But for a typical contemporary American yeshiva bochur – let’s call him Yitzy – the analogy between language and halacha is perplexing. He learned halacha from books, he practices it by navigating an obstacle course of seemingly arbitrary rules and he is irritated by the propensity of his parents’ community to get everything wrong.
The difference between Shimen and Yitzy is that Shimen speaks halacha like a first language and Yitzy speaks it like a second language. A first language is spoken fluently and intuitively without much conscious knowledge of the rules. A second language is spoken haltingly and stiltedly, as part of the mind is occupied with retrieving the relevant learned rule.
There are many good sociological reasons for halacha having become a second language for the bulk of its practitioners and I’ll devote several posts to this phenomenon later in the series. At this stage, I want to make a single point that I’m afraid is completely lost on Yitzy: halacha is meant to be spoken as a first language. To celebrate the shift of halachic knowledge from people’s minds to their books is to make a virtue of necessity.
We’ll attack the issue from two sides. On the theoretical side, the main written sources of Jewish tradition themselves repeatedly make the point that halacha is ideally meant to be spoken fluently like a first language and not learned from written rules like a second language. On the practical side, many examples of halachic development demonstrate that laws in written halachic codes reflect common practice rather than practice reflecting the codes.
The Talmud itself (Gittin 60b) records the undisputed opinion of Rabbi Yohanan that no text other than the Bible should be written: “That which was transmitted orally you are not permitted to write.” The oral tradition was compiled in writing only when social turmoil threatened its very existence. Elaborating on this point, the midrash (Midrash Rabba Exodus 47:1) tells of Moses’ request of God at Sinai that the Oral Law being transmitted to him in conjunction with the Torah be written. God refuses, explaining that what is written can be copied and imitated, but the oral tradition will uniquely define the Jewish people; native speakers of the language are distinguishable from those who speak by the rules without nuance.
A number of stories related in the Talmud focus on the crisis-driven substitution of intuitive understanding of the Oral Law with formal rules. The Talmud (Temurah 16a) reports that after Moses died, taking with him his uniquely intuitive understanding of Torah, the Law had to be reconstructed by Otniel ben Knaz (the first leader of the Jews not present at Sinai) using formal methods. Such reconstructions are reported (Sukkah 20a) as having been undertaken by a number of transitional leaders, including Ezra the Scribe and Hillel the Elder, during periods of crisis. And it is Hillel the Elder who when faced with a halachic conundrum that the leading rabbis could not solve, is reported (Pesachim 66a) to have responded “Let the Jews decide, for if they aren’t prophets, they are the children of prophets.”
In a related story (Menachot 29b), Moses visits the school of Rabbi Akiva and finds the discussion bewilderingly unfamiliar, only to be informed that the laws under discussion originate with Moses himself. To an intuitive speaker of a language, the rules of grammar that are taught to those acquiring the language in a school are unfamiliar and bewildering, even though the students are in fact acquiring his own native language.
Each of these stories makes the same point. Intuitive knowledge of Torah (Torah as a first language) is replaced by a compiled set of rules (Torah as an acquired language) only when necessary.
Yitzy will be surprised to hear that each of the major codifications of Jewish law were resisted by leading contemporary scholars, who feared ossification of halacha. Thus, for example, the Maharal of Prague, opposed the publication of the Shulchan Aruch (lit. “the set table”), arguing that “we ought not rely on parchment… The Torah should be in our mouths not on the table.”
The Maharal’s fears might have been somewhat exaggerated. Codes like the Shulchan Aruch actually reflect popular practices more than they determine them and are incapable of preventing popular disinclination to abide by their rulings. In a considerable number of cases, rulings cited in the codes lose general support and subsequent codes reflect the later practice.
Consider a number of examples of halachot that became counter-intuitive: Mourners stopped wearing hoods (“it makes us look ridiculous to the goyim”: Beit Yosef YD 386) and their visitors stopped sitting on the ground with them; people stopped submitting to lashes on the eve of Yom Kippur (though they commonly practice kaparot of which the Shulchan Aruch disapproves); single women stopped covering their hair. All contemporary codes reflect the later custom.
When new issues arise, popular consensus often precedes rabbinic consensus. For example, turkey was almost universally regarded as a kosher bird long before rabbis made any determination to that effect. Conversely, gelatin was almost universally regarded as non-kosher, despite significant rabbinic support for its permissibility.
It might be instructive to think of the power of poskim to establish halacha as something like the power of merchants to set prices. It looks to all the world as if merchants are free to set prices as they wish. In fact, supply and demand determine a very narrow range of supportable prices.
The use of technologies on Shabbat is an area rife with examples of poskim leading from behind. Electricity came into wide use in urban areas in the 1880s. The first to rule against the permissibility of the use of electric devices on Shabbat was the rabbi of Lemberg, R. Isaac Shmelkes, in 1895. He argued that creating a new electric current was akin to transferring fragrance, which the Talmud forbids on somewhat vague grounds. The prohibition was universally accepted, as evidenced by the fact that almost all subsequent scholars take the prohibition as a given, despite rejecting the reasoning behind it. Now, in case you’re thinking that it was R. Shmelkes’ authority that determined the popular practice, consider that the very same responsum that prohibited creating a new electric current used the identical reasoning to prohibit carbonating water, a prohibition honored by exactly nobody. Evidently, it was not the ruling that determined the practice, but rather the widespread sense that electricity was a bigger threat to Shabbat than seltzer.
Similarly, the almost-universally recognized leading posek in the United States from the 1950s through the 1970s, R. Moshe Feinstein, ruled that the use of liquid soap on Shabbat is prohibited, extending R. Shmelkes’ argument to the creation of bubbles. This one never caught on. On the other hand, Rabbi Feinstein broadly hints in several places that extinguishing gas burners on Festivals (and, reading between the lines, possibly on Shabbat) may not be prohibited at all, but he is plainly unwilling to state this publicly, presumably because he regarded this as a leniency the public could not bear. Contemporary codes, reflect the common practice, not the rulings of the leading posek of the past generation.
Finally, those of us who’ve been alive long enough have seen customs change before our very eyes. The recitation of hoshanos after mussaf on Sukkot, until a generation ago the standard practice of those who daven in nusach ashkenaz, is slowly disappearing, despite no rabbinic rulings on the matter. Similarly, the blowing of the shofar during the silent musaf on Rosh Hashanah, the standard practice of those who daven in nusach sefard, is losing popularity.
Another, somewhat esoteric, example is the current American yeshivish custom for those who are seated at a chupah to stand as the groom and then the bride pass by. Yitzy, who earnestly practices this sacred rite, will be shocked to learn that it was completely unheard of as recently as a single generation ago. Leading American poskim have already ruled on the matter, manufacturing several unconvincing grounds for the practice (presumably, not including seeing too many church weddings on TV).
In short, halacha is meant to be uncodified, like the rules of grammar, precisely so that its practice remain fluid much the way a native language is spoken. Codification is necessary to prevent too much drift during transitional periods, but it typically reflects the common practice during its time. In the next post, we’ll consider how this blend of bottom-up and top-down development is responsible for halacha’s adaptiveness.