Philosophy of halakhah

This article gives a panoramic picture of Rabbi Yossef Messas' (1892-1974) approach of Kabbalah as a source of law. The article illustrates his doctrine of separation between Halakha and Kabbalah and proves that despite the central place of Kabbala in Morocco, some halakhic authorities attempted to limit its influence on the halakhic discourse, even in the first half of the 20th century.

This dissertation investigates the ways scientific and biotechnological advancement impact and change Jewish law and ethics. It analyzes the contemporary Jewish bioethical debate concerning the identification of maternity and paternity in four cases of assisted reproductive technologies (ART): in vitro fertilization, gestational surrogacy, cloning, and mitochondrial replacement therapy. Unprecedented modes of procreation engender new definitions of parenthood, challenging a longstanding Jewish framework of theology, law, and ethics. Part I develops a conceptual scaffolding for the discrete analyses of Part II, and considers the philosophical bases of parenthood, the gendered nature of Jewish legal bioethics, the relationship of law and ethics, and ways of relating religion and science. For each case of ART, Part II examines the biological science and technology in historical context, locates Jewish bioethical concerns within the larger bioethical discussion, and critically reviews the epistemological and axiological dimensions of the legally oriented analyses of a select group of leading Jewish bioethicists, chosen for their copious writings on ART and contextualizing oeuvres: Rabbi J. David Bleich, Rabbi Michael J. Broyde, Rabbi Elliot N. Dorff, and the collaborative writings of Dr. John D. Loike and Rabbi Moshe D. Tendler. Insights from Jewish feminist bioethical criticism and other notable Jewish bioethical works enhance the analyses. Through a focused study of the redefinition of parenthood in Jewish law and bioethics, I demonstrate four ways in which advances in science impact Jewish law and ethics. One, scientific awareness leads to greater sophistication and nuance of analysis. Two, Jewish bioethicists grapple with religion and science relations, and speak directly to these overarching considerations. Three, the epistemological and axiological influence of religion and science relations correlate with greater openness to new technologies, theoretical conceptualizations, and their practical applications. Four, advances in science change Jewish legal and bioethical analyses and outcomes through (at least) four possible methodological mechanisms – namely, theoretic holism, innovative interpretation, indeterminate gaps, and realist realignment. Jewish bioethics are thus shown to illumine the intricate interrelationship between religion and science and its impact on Jewish law and ethics.

Although this responsum is the result of a lot of deep thought on this issue for a long time, this paper was written extremely quickly because of do'heq wuqosser hazeman. It is far from complete to a satisfactory level, and is still not properly sourced. I am uploading it solely for feedback, comments and additions. IT IS NOT A FINISHED PRODUCT. Thank you for your consideration.

What is the relationship between friendship and human flourishing? This is a central topic in Aristotle’s Nicomachean Ethics and one to which Maimonides also returned throughout his career. Despite the relative neglect of this topic in recent scholarship, I argue that friendship (philia) was an important link between moral and intellectual perfection for Maimonides. He identified Aristotle’s virtue friendship with the love between students and teachers and also interpreted many of the divine commandments as efforts to promote both family and virtue friendship among the Jewish people. Friendship was aligned thematically in Maimonides’ writings with topics like kinship and sexuality, circumcision, and the ethics of speech, all of which point in different ways to the unresolved tension between rational and sensual aspects of our human condition. This article therefore contributes to the investigation of the relationship between Maimonides’ legal and philosophical writing on social themes. While Aristotle clearly influenced his reading of biblical and rabbinic texts for example, I will also argue that Maimonides’ religious and communal commitments helped to push his reading of Aristotle in a broadly inclusive direction— both with respect to the range of different goods that are appropriate to an ideal human life as well as the potential accessibility of those goods to different classes of persons. I offer this article as a corrective to the exaggerated focus on seclusion and solitary contemplation that has characterized academic scholarship on Maimonides.

This thesis seeks to address the nature of dichotomy in its relationship to truth; whether that truth is binary or pluralistic and the epistemological and ontological implications that stem from it. These issues present themselves in the discipline of Halakha as well as Science and provide fertile ground for an interdisciplinary analysis of the two.
In Halakha, as illustrated in the Talmudic exegesis of elu v’elu – “These and those are the words of the Living God”, truth is simultaneously prescribed to two mutually exclusive schools of thought. In Science, the search for the nature of light has opened the Pandora’s Box of the wave-particle paradox in the field of quantum mechanics and has revolutionized not only our understanding of the atomic world but questioned the very basis which scientific endeavor is founded upon. By drawing parallels between the approaches of interpretation established in these respective disciplines we will be afforded conceptual tools of analysis and understanding for the purpose of cross-pollination between the two. With this, we will glean a deeper understanding of the philosophical implications and bases of these approaches.
It will be shown that the traditional approach, both rabbinic and scientific, subscribes to an epistemological realism which translates into binary truth values. This approach will be expanded to other areas and be carried through as an overriding general world view.
The second school of thought will be shown to have developed much more recently, relatively speaking, with a lean towards neo-Kantian epistemology. In the realm of Halakha, it only surfaces with Kabbalistic origins, no earlier than the 16th century. It will be demonstrated how this approach expands in its application beyond Halakha, and represents not only a philosophy of law, but of Torah and reality itself. In the realm of science, this view is championed and revolutionized in Bohr’s complementarity principle. Here too it will be shown how this principle extends beyond a local set of experiments as an overarching approach to science and the epistemology of the atomic world.

ישעיהו ליבוביץ כשופרה של ההשקפה הרבנית הצרופה – טיוטה – מאת נפתלי רוטנברג 15.11.2021
ישעיהו ליבוביץ היה דובר רהוט של ההשקפה הרבנית. בחינת דבריו תורמת ללימוד והבנה מהי ההשקפה הרבנית ומה הם עקרונותיה גם ללא קשר להגותו של ליבוביץ עצמו. יש לכך חשיבות רבה משום שמעט מאוד רבנים לאורך הדורות עסקו בהגדרות, ניתוח ותיאור השקפה זו כשיטה כוללת.
ניסיתי לתאר את עיקרי ההשקפה הרבנית כפי שראה אותה ישעיהו ליבוביץ, הזדהה  עמה ואימץ אותה. נראה מי הם הדמויות והפרשנים אותם למד ולימד. נדון על העקרונות העומדים ביסוד המסורת הרבנית: התורה שבעל-פה כמקור הסמכות, תפיסת ההלכה ותהליך הפסיקה, מרכזיותו של תלמוד-תורה, עידוד לשמירת מצוות והיחס לציבור היהודי מחוץ לאורתודוקסיה. לבסוף נתאר פערים בין התיאור הליבוביציאני של מה שניתן לכנות 'השקפה רבנית' לבין האופן שבו היא נתפשת בפועל בקרב מי שנמנים על מה שליבוביץ מכנה 'יהדות ההלכה' או 'היהדות הרבנית'.
אשמח מאוד אם המאמר יעניין אתכם. מודה לכם מראש על כל הערה, תיקון וכל מה שתרצו להציע לי על-מנת לשפר את התוצאה הסופית. במיוחד אשמח אם תפנו אותי למה שהחסרתי מכתביו של ליבוביץ או ממאמרים שכתבתם או כתבו אחרים והכרחי לקשור אותם למאמר זה.

The central object of the essay is to describe two ways to writing the history of Halakhah. I portray two archetypical dichotomous approaches to the historical research of Halakhah defined as positivist and contextual. The halakhic positivist approach is the outcome of traditional yeshiva studies, while the contextual approach is the product of scholarship practiced in universities and other academically oriented institutes of Jewish studies. These approaches adapted from the frameworks shaped by philosophers and historians seeking to describe and discuss the history of science. The terminology which derives from the philosophy of Natural Science facilitates the secondary object of the article, i.e. comparing the work of historians of Halakhah to the work of historians of Science.

Rabbi Shlomo Luria (1510-1574) stands as one of the 16 th century's most fascinating yet neglected figures, for while his erudition is readily acknowledged, his works have been largely overshadowed by the codes of his contemporaries, Rabbi Yosef Karo and Rabbi Moshe Isserles. In this essay, we will examine his introductions to his seminal Talmudic commentary, Yam Shel Shlomo, and investigate his halakhic methodology and opposition to the codification of halakha.

The present article examines the halakhic attitudes toward homosexuality in Modern Orthodoxy and in the Conservative movement, through the prism of the "Aqedah theology" and the link between religion and morality. The article argues that even if there is no clear halakhic boundary between some of the positions of Conservative and Modern Orthodox Judaism, there is a clear difference between them with regard to the Aqedah theology. For Modern Orthodoxy, even if God commands certain things that on the surface clash with contemporary moral concepts, individuals are expected to sacrifice or "bind" their inclinations to comply with the divine injunction. This is not the case in the Conservative movement. Here the debate is not about whether the Aqedah theology is legitimate (all agree that it is not), but whether the situation of a human being who is barred from realizing his sexual orientation involves "binding" moral concepts.

The present study explores the origins of Jewish ritual immersion – inquiring when immersion first appeared as a rite of purification and what the reasons may have been for this development specifically at this time. Textual and archaeological evidence suggest that immersion emerged at some point during – or perhaps slightly prior to – the first half of the first century B.C.E. It is suggested here that the practice grew out of contemporary bathing practices involving the Hellenistic hip bath. Through a process of ritualization, full-body immersion emerged as a method of purificatory washing clearly differentiated from profane bathing. By way of a subsequent process of 'hyper-ritualization', some ventured further to distinguish purificatory ablutions from profane bathing by restricting use of 'drawn water' for purification and by assigning impurity to anyone who bathed in such water. Before us is an enlightening example of one of the many ways wherein Jewish religious practices evolved and adapted in response to Hellenistic cultural innovations.

במאמר זה אני דן בכלל שקבעו חז"ל במדרשים ובתלמוד 'אין מקרא יוצא מידי פשוטו'. אני מציג את הפירוש והמשמעות שניתנו לכלל הזה הפרשנים בכל הדורות מרש"י ועד קאסוטו. כללתי גם דיון מיוחד במחלוקת בעניין זה בין הרמב"ם לרמב"ן. ככלל נחלקו הפרשנים בשאלה אם כוונת המימרה הזו לומר שגם לפשט יש מקום כלשהו או להיפך, שלדרש אין מקום בפירוש המשמעות הראשונה של הטקסט. המחלוקת הזו קשורה קשר אמיץ לשאלה אם ההלכות שבמשנה ובתלמוד הן ברובן יצירה של החכמים או נמסרו בסיני.

Maimonides’s readers have long recognized that his presentation of the Oral Torah differed markedly from that of the Baghdadi geonim, particularly Sa‘adya Gaon. Maimonides did not cite any precedent for his disagreements with the geonim. Recent studies, however, have called attention to Andalusian sources that prefigure and parallel Maimonidean claims, suggesting that his views, at least in part, drew on earlier Andalusian thought. This article argues that a uniquely Andalusian understanding of the talmudic adage “A sage is superior to a prophet,” first found in the writings of Isaac Ibn Ghiyāth, demonstrates that Andalusian Rabbanite culture had long approached the Oral Torah differently than did the geonim of Baghdad. After identifying a number of Andalusian antecedents for Maimonides’s approach to the Oral Torah, this article explores possible motives for the divergent pictures of revelation put forward by Rabbanites in Baghdad and Andalusia. It is suggested that the impact of Andalusian Maliki jurists helps explain the divergent positions of Baghdadi and Andalusian Rabbanites.
https://link.springer.com/article/10.1007%2Fs10835-017-9278-9

This book presents, from the perspective of feminist jurisprudence and feminist and liberal bioethics, a complete study of Jewish law (halakhah) on contemporary reproductive issues such as birth control, abortion, and assisted fertility. Irshai examines these issues to probe gender-based values that underlie the interpretations and determinations reached by modern practitioners of halakhah. Her primary goal is to tell, through common halakhic tools, a different halakhic story, one that takes account of the female narrative and its missing perspective. (From Amazon.com)

If one is willing to take on the commandments of the Jewish people, one's belief system should not be an obstacle for joining the Jewish people.  From the very beginning of the institution of conversion until today, there have been rabbinic authorities who have said as much.  In today's intellectual climate, reclaiming those voices is more important than ever.

On the margins of Israeli society, in the Ultra-Orthodox Jewish community, there is a lively and fierce debate over the status of Modern Hebrew. At the beginning of the resistance , the reservations and opposition concerning Hebrew formed part of the reaction to the innovative activities of secular Zionists. Despite the fact that it was taken as a continuation of the beloved " Holy Tongue " of the Bible, the Ultra-Orthodox viewed it as a modernist innovation. This paradoxical situation produced an extensive literature rejecting Modern Hebrew on ideological and educational grounds. Later, during the second stage of the resistance, opposition to Hebrew also acquired a pseudo-halakhic tone. This article describes the various opinions of members of the Ultra-Orthodox community regarding Modern Hebrew, the different stages of their resistance to it, and the reasons given for this resistance. The changes that occurred in the attitude of Ultra-Orthodox society toward Hebrew are not only of interest in their own right but also provide an interesting case study on the emergence of a binding norm that quickly became phrased in halakhic terminology.

Rabbinic literature was the most prestigious genre of literature in early nineteenth-century Moravia. Debates between rabbis shaped public discourse on the local level. As a consequence, maskilic literature could occupy only a peripheral position in the literary system. This point is illustrated by Benjamin Zeev Wolf Prerau’s supercommentary on Ibn Ezra and by Samson Bloch’s geographical–ethnographical work, Shevilei olam.
Mordecai Benet, the chief rabbi of Moravia, was remarkably flexible concerning those innovations that did not threaten the prestige of rabbinic literature. However, he was a rigid opponent of any changes that could have restructured the inner hierarchy of the literary system.

There are many ways in which a Jew can express Jewish identity. One of these is, by living according to the guidelines of halakha-the normative aspect of Torah as explicated by scholarly rabbis. Different understandings of halakha will generate different modes of Jewish halakhic identity. In this article, I seek to illustrate this thesis by consideration of halakhic dynamic in modern times in Northern European vrs. Muslim countries. Subsequently I argue, that the cadre of the Shas movement in contemporary Israel reflects an interesting case in which Jews of Sephardic extraction have internalized central aspects of a non-Sephardic halakhic identity. It is hard to imagine a human society in which change and development do not occur over time. This is true not only of modern societies; even in ancient times and pre-modern societies, change was omnipresent. Sometimes change was sharp and acute; a clear example of this in the history of the Jewish people is the destruction of the Second Temple. But during most of human history social norms evolved at a moderate pace enabling people to imagine, along with Ecclesiastes, that "there is nothing new under the sun". 1 The above held true for the world of halakha as well. Indeed, even bracketing the effects of historical-social change, some dynamic is bound to characterize halakha simply as a result of the intellectual activity of Torah sages: "A beit midrash [hall of study] is never totally without 1 I:9.

In the two iterations of the Holiness Code, in Leviticus 18 and Leviticus 22, the Torah explicitly prohibits homosexual intercourse between men. It seems that the text is clear enough and the prohibition absolute; no lenient interpretation seems possible. But Judaism always reads divine injunctions through an exegetical prism. The only question is the motivation for the exegesis and how is it carried out.
In Orthodoxy, I believe that we can identify a number of key areas in the evolution of the halakhic attitude towards homosexuality.
One of them is the attitude towards homosexual individuals, ranging from their total exclusion to an empathetic and respectful attitude and their acceptance in the religious community. Another domain is that of how the ban is interpreted: is it broad and includes homoerotic attraction between two men, or more limited and only a prohibition of all or some forms of sexual contact between them? The third domain is the transition from the idea that sexual orientation is a preference that can be modified, whence the call for conversion or reparative therapy, towards the realization that in many cases the attraction to men is irreversible. The fourth domain is the question of whether gay men should establish heterosexual families.
All these developments raise the question how Rabbis understand masculinity through the prism of homosexuality? What do they think of the male "nature" with regard to sexual attraction? Do they believe that social constructions refer to homosexuality? Finally, what can we learn from the ways masculinity is understood and being built by halakhic writings about the nature of heterosexuality and heteronormativity?
In this article I analyze some central writings in contemporary Jewish Ultra-Orthodoxy and try to trace the ways through which masculinity is being built and its gender implications.

Torat Ha-Melekh is an extremist tract that deploys halakhic arguments to justify and even promote the killing of non-Jews. This essay brings this work and the controversy it unleashed in Israel to English-reading audiences. I argue that It is not sufficient to oppose such violent chauvinism from a halakhic perspective alone; it must be opposed from a universal ethical perspective.

Among Maimonides’s many statements about extrascriptural laws in rabbinic literature, none has attracted as much attention as principle 2 in his Book of the Commandments. Modern scholars have largely understood this text to claim that very few of the laws found in rabbinic literature are Sinaitic in origin and of biblical status. Yet, until the twentieth century, principle 2 was primarily read as distinguishing between revealed laws that constitute enumerated commandments and revealed laws that do not. In fact, neither reading is consistent with other Maimonidean statements. By contextualizing principle 2 within the Book of the Commandments, this essay reconsiders Maimonides’s enumeration of the commandments and argues that many of the problems that principle 2 was designed to address, and that it also generated, resulted from the incongruity of his project of enumerating precisely 613 commandments alongside his understanding of revelation as a corpus that included not only the Written Torah but innumerable extrascriptural traditions as well. An appendix evaluates pertinent aspects of the most recent monograph dedicated to Maimonides’s scriptural hermeneutics.

Rabbi Shlomo Zalman Auerbach (1910–1995) was one of the most influential Halakhic authorities of the twentieth century. Although he was an ultra-Orthodox rabbi, Rabbi Auerbach dealt with the complexity of army and military life. This article shows that he possessed of a clear " operational way of thinking, " reflecting deeply on the unique needs of the military of the Jewish State. Additionally, the article examines various approaches of filling the normative gap in issues of war and the military. Rabbi Auerbach based his specification of the Halakhah on his personal understanding and his own S'vara, that is, Halakhic logic.

While Kant says moral laws are human duty as if they were divine commandments, Cohen says moral laws are divine commandments. Cohen would not adopt the Kantian distinction between morality and (political) legality, based on the heteronomous nature of compulsion. For Cohen autonomous acts are compelled, too – not by external forces, however, but by the power of human reason. Concerning the divine source of halakhah, Cohen’s view would consequently mean that there is no heteronomy involved. If divine Jewish law is followed not for reward, and if divine here means the transcendent idea of the infinite realization of the good in the world, ideally halakhah is but a religious instantiation of autonomous moral law.

In this lecture I will review the attitude of Orthodox Jewish law (halakhah) over the past half-century to sex-reassignment surgery by analyzing Dor Tahpukhot, by Rabbi Idan Ben-Efrayim. This work, published in 2004, is the first comprehensive halakhic treatment of the topic.
The dominant approach of Orthodox halakhists is that such procedures are an assault on the natural divine order and a violation of many prohibitions, including those on castration and cross-dressing. Accordingly—and in addition to seeing the act itself as a perversion and abomination—many rabbis hold that halakhah continues to view transsexuals as members of their birth gender.
Ben-Efrayim proposes a more complex and tolerant approach, in which the key to the treatment of transsexuals in the public sphere of a religious community (such as the synagogue) is their outward appearance after the surgery (he relies for this on the opinion of Rabbi Waldenberg), even though, as a matter of strict halakhah, they remain as they were at birth. Ben-Ephrayim incorporates a kabbalistic vein into his halakhic analysis. It is possible that his approach marks the start of the recognition that the souls of persons who seek sex-reassignment surgery are trapped in the wrong body.

This article offers one response, rooted in traditional Jewish and Islamic perspectives of what it means to have a rule of law, to the problem of indeterminacy in Western jurisprudence. Some Jewish and Muslim scholars have conceptualized the rule of law not as a system of objective, democratic, prospective, stable, and equally applied substantive norms, but as the commitment of the legal community to be broadly and deeply engaged with studying, interpreting, and applying the materials and methods of their legal tradition as the principal source of normative conduct. This way of thinking about law, which I call " law-as-engagement, " has been deployed by Jewish and Muslim scholars to leverage the incidence of indeterminacy, disagreement, and judicial sub-jectivity in law for the purpose of reinforcing rather than undermining the rule of law. Keywords Jewish Law – Halakhah – jurisprudence – rule of law – Islamic Law – indeterminacy