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It is officially summer (we are so lucky to have officials tell us when summer starts, otherwise we would never know how to dress or when to apply suntan lotion – clarity sure helps), and in the world of Halakha that means a major headache. Questions which lay dormant during the year wake up, and new ones pop up as the leisure industry feverishly invents new pastimes to keep children interested and help their exasperated parents. One summer, for example, I was asked if kids can play, on Shabbat, in a protected water trampoline lowered from a yacht into the ocean (yes). There is, of course the “regular” quests about physical activity on Shabbat such as jogging, biking, swimming, and exercising (yes, yes, yes and yes), weddings and parties until Rosh Hodesh Av (yes), and eating options for travelers.

I will discuss the last question in length in the future, and address the aspects of trusting the host, using “non-Kosher” dishes, “uncertified” products, food cooked by non-Jews and more. I will also gladly continue to answer personal questions of Halakha (if urgent or time-sensitive – please mark accordingly.

In the meantime, however, I would like to introduce the readers to the inner workings of Halakha. From conversations I have had with rabbis, academics, and laymen, as well as from popular Halakhic literature, an interesting picture emerges. Academics dig into the history and mechanics of Halakha, rabbis try to portray their rulings as objective and absolute, and laymen remain sometimes confused in face of the different opinions. In this series, I would like to take you behind the scenes of the Halakhic process, and show you, among other things, that rabbis constantly “pick and choose”. You will see that the ruling is not achieved by using simple mathematic formulae, but rather by a complex and multi-faceted process, which is subject to innumerable influences.

It matters, for example, if one lived under the rule of Islam or Christianity, in what period, and in which country or empire. Personal agendas, ego, money, and power struggles are also part of the equation. Trends and events within Judaism are also part of the mix – Crusades, Spanish Golden Age, rise of Kabbalah, Shabbetai Zevi, and the new world map with Israel on it, to mention but a few. To this list, we can add world events and trends, as well as superstitions, and we will then have started to grasp the complexity of the process. Let us start, though, with an intriguing formula used by rabbis who want to override a ruling from a previous generation, which is usually considered a higher authority.

This is the flexible and very convenient rule of:

אילו היה רואה דברי… היה חוזר בו

Had the author seen the words of… he would have changed his mind.
This rule is the ultimate weapon in an argument against a scholar who is no longer alive, and it is sometime wielded against a living one, as long as he has no way to respond. It is sometimes used to diametrically opposed purposes by the same rabbi, as we shall later see, so let us start with some examples.

R Levi Ben Haviv, aka מהרלב”ח     (1483-1545), writes about a case in which a marriage was cancelled after a long engagement period, during which the groom showered the bride with gifts. He concludes that the marriage is null and void, against the ruling of another rabbi, who believed that a divorce is necessary. R Ben Haviv explains that if the other rabbi knew of the Tzova (Aleppo) community’s practice of conducting marriage with coins rather than jewelry, he would not have written as he had:

שו”ת מהרלב”ח, סימן קלד: מה שכתב לענין שלפנינו דאף על גב דנאמר דבעלמא צריך ליתן זוזים בכאן שנתן תכשיטין יצא  

אינו אמת כלל
ואלו היה יודע מנהג קהל קדוש קהל צובה  בזה לא היה כותב מה שכתב

 

We will examine several more examples in future post, but the question which lingers when we read these lines is: “where do you draw the line?”

Can one argue that sages of the past would have ruled differently if they had our knowledge of technology, psychology, medicine, and ancient Jewish manuscripts, or is the formula limited to certain fields of knowledge?

To be continued…

Rabbi Haim Ovadia

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