Halakha in Modernity

 In modern times, there has been a defensive Modern Orthodox transformation of all of ritual Halakha into Divine fiat.  Some have argued academically that a rigorous analysis of Talmudic sources reveals that the rabbis interpreted ritual norms restrictively because they did not understand those norms and so “had little choice” (Spero 1983, 52-53).  Most, however, have adopted the formal method developed by R. Hayyim Soloveitchik of Brisk (1853-1918).  In the words of an American doyen of the ideology of Jewish Law as purely formal law, R. Dr. J. David Bleich:

Other than to the extent that historical context is explicitly referenced in a given teshuva, or to the extent that such context is implied by the manner in which facts are presented, historical context is irrelevant.  If there is any single factor that distinguishes talmidei hakhamim from “scholars,” it is that the… former regard halakha as objective, eternal and immutable.”[1]

Instead of seeing the human concerns that a given law is balancing or at least addressing, this doyen treats words or categories as objectively real concepts that have no explicability beyond the logical concept.  Accordingly, he argued that “to formulate the hakirah [the analysis] is to recognize the answer” (Bleich 2006, 98).

This claim of inexplicability has met several modern needs:

1. As discussed in my dissertation (V-A), it served to defend Jewish Law against the hegemonic challenges of the (regionally varied) Enlightenment to the values of traditional Jewish culture.  It did so by transforming Jewish law into a purely logical structure of precise terminological and conceptual definition rather than an attempted balance of human needs.
2. It also allowed Halakhically observant Jews to identify themselves as participants in the hegemonic liberal Western culture for which particularistic “religious reasoning is categorized as the product of special revelation rather than universal rationality,”[2] a reasoning that can be tolerated because it recognizes that its claims are based on a private epistemological foundation and so has no right to try to impose its practices, values, and reasoning on others.[3]
3. Most importantly, this claim of inexplicability helped observant Jews protect Halakhic norms from the dissipation that a subgroup’s norms would face if they were unpacked in front of “the pluralizing, relativizing forces of modernity” (Aydin and Colak 2004, 224).

However, the fact that some Jews at some times have had an ideological need to prioritize their loyalty to God’s inexplicable laws over their loyalty to a substantive tradition, does not mean that traditionalist rabbinic sages of the law refrained from understanding the goals of the various Judaic norms.  Not only have both both religious approaches long existed in Judaism,[4] but more importantly, the examples I have examined elsewhere illustrated that whenever the choice of how to practice a given norm had serious ramifications on people’s lives, the rabbinic legal sages always related to the substantive human concerns underlying that norm.

A Problem With the Logico-Conceptual Approach

In this modern model, Jewish law is formally analytical; it is treated as a law whose logical concepts can be discovered but whose purpose is inexplicable.  In other words, it is treated as inexplicable concepts.  For a light example: R. Bleich pointed out that once one notices that the Saturday-night blessing over ending Shabbat is both added to and recited independently of the evening prayer, one realizes that it is not an evening blessing per se but rather a blessing to end Shabbat, which is “associate[d]… with the first shemoneh esreh [prescribed prayer] recited after the conclusion of Shabbat” (Bleich 2006, 98).  On that basis, R. Bleich argued that since the blessing over ending Shabbat is not an evening blessing per se, R. Hayyim Brisk was necessarily correct in concluding that one who missed the evening prayer and prays an additional prayer in the morning in lieu of the missed evening prayer should recite the Saturday-night blessing over ending Shabbat in the first prescribed prayer that he does recite and not in the second that is in lieu of the missed evening prayer (ibid).  He rejected as shallow positivists those who ruled that the blessing should be recited in the second prayer that is in lieu of the missed evening prayer (ibid n.16).

If one treats norms as logical expressions of formal concepts, R. Bleich is correct.  If the requirement to bless God over ending Shabbat is not part and parcel of the prescribed evening prayer but its own concept, it necessarily should be recited in the first prayer that one prays after Shabbat even if that prayer is a morning prayer.  However, once one considers the human context of the law, one notices that the reason that the primary (= Biblical) need to distinguish between Shabbat and the week only applies Saturday night – while the requirement to recite that blessing afterward if it was missed on Saturday night is a secondary (= Rabbinic) need – is because the new morning provides an overriding experiential distinction between Shabbat and the following week.    Thus, one could argue that on Sunday morning it is more important to recite the no longer Biblically necessary blessing in the second prayer, the prayer that substitutes for the missed night prayer.  This way, one reinforces the norm that the blessing must be recited on Saturday night and cannot be left to the morning.  Of course, one could also argue that reciting the blessing in the added prayer is worse because it will inculcate a mistaken notion that the blessing must be recited in a prayer and thus cannot be recited until the morning if one who had prayed at night forgot the blessing during the prayer.


The point is that the conceptual non-contextual approach treats norms as explicable by concepts but treats concepts as inexplicable and context-free.  It ignores the fact “that before attempting to translate our data into the rigorous language of symbols, it is above all things necessary to ascertain the intended import of the words we are using” (Boole 1854, 60).

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[1] Lamm 2007.

[2] Anand 2004, 296-297.

[3] For example, see Moses Mendelssohn’s variation of this claim (in Sorkin 1996, 38).

[4] As pointed out by R. Yekusiel Yehuda Halberstam, the Sanz-Klausenberg Rebbe (1905-1994), in Responsa Divrei Yatziv OH #260.