הֲלָכָה‎ Halakah

By Levi Clancy for לוי on

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The written תּוֹרָה Torah is at the center of הֲלָכָה‎ halakah.

The nucleus of the הֲלָכָה‎ halakah is the written תּוֹרָה Torah, which contains commandments from G_d that are known as מִצְוֹת mitzvot (singular מִצְוָה mitzvah). It is generally accepted that there are 613 מִצְוֹת mitzvot, collectively called the תרי"ג מצוות‎ taryag mitzvot which are often divided into three further categories: חֻקִּים chukkim which are esoteric; מִשְׁפָּטִים mishpatim which are logical; and עֵדוֹת eidot, which are logical symbols of חֻקִּים chukkim and thus straddling esoterism and logic. Alternatively, the תרי"ג מצוות‎ taryag mitzvoht are often divided into 248 positive (do) and 365 negative (do not) מִצְוֹת mitzvot. They are also grouped into different topics oftentimes, as below.

Rabbinic tradition has built greatly upon the תרי"ג מצוות ‎taryag mitzvoht.

There are gezeirah (rules by רבנים rabanim to prevent accidentally violating the מִצְוֹת mitzvot), takkanah (rules drawn indirectly from the written תּוֹרָה Torah by רבנים rabanim) and minhag (customs endorsed by רבנים rabanim).

Though the written תּוֹרָה Torah is the heart of הֲלָכָה‎ halakah, Rabbinic tradition extrapolates, builds and protects it; most Jews view the two sources (written and oral/rabbinic) as forming the whole of הֲלָכָה‎ halakah.

Things or actions may be ritually unclean, abominable or detestable.

טָמְאָה tum'ah is the state of ritual impurity, and a person or object in this state is tamei (ritually impure). טָהֳרָה taharah is the state of ritual purity, and a person or object in this state is טָהוֹר tahor (ritually pure). If a person is tamei, then the process to become טָהֳרָה taharah generally involves a set amount of time following the incident culminating with a mikveh (ritual bath). http://www.homemikveh.org/tumah/tumah.html

תּוֹעֵבָה toebah - refers to abomination. תֶּבֶל tebel seems to mean world or globe, but is used in situations where it refers to the vast confusion, the primordial nothingness from which the ordered space of life must be protected.

Two Torahs, one source

Orthodox Judaism maintains a two Torahs, two sources view. There is a תורה שבכתב Torah shebichtav (written Torah, contained in the Tanakh) and a תורה שבעל פה Torah Shebe'al Peh (oral Torah) and both were handed down to Moses at the same time.

It is maintained by orthodox Jewish scholars that from the very beginning, i. e. from the time of the giving of the Law on mount Sinai, there had been in existence an oral law, carried on traditionally. According to D. Hoffmann [Die erste Mishna, Berlin, 1882, 3], "Mikra and Mishnah, the Bible word read from the written book and the teachings heard at the mouth of the sages, are for the Israelite the two sources from which he draws the Torah received by Moses from God on Sinai (Kid. 40b). The Torah is one, although the source from which it issues is twofold; the teaching which comes to us from the Mishna of the sages is of the identical date and identical origin as that which is derived from the scriptural word, 'all is given by One God and communicated by one and the same prophet.' Hence when we speak of written lore Torah shebikthah and oral lore Torah shebe-al pe, we have in mind one and the same law of God, derived in part from the divine Word committed to writing and in part from the authoritative statements of the teachers of tradition." Strack, p 10 - 11

This is not reflected by the Tanakh, nor a critical analysis of the Talmud itself. The Orthodox opinion is discarded upon critical academic analysis (see Strack).

In the first place, it is contradicted by the quite certain conclusions of pentateuchal criticism; then nothing in the Old Testament points in that direction with compelling force; the Talmud entertains wholly erroneous notions concerning chronology, thus reducing the 185 years from the restoration of the Temple to the fall of the Persian empire (516-331 B.C.E.) to thirty-four, hence with a loss of 151 years consigned to oblivion; lastly, the traditional chain of the carriers of tradition in the first chapter of Aboth is incomplete. One argument will suffice to show how desultory often the attempted argumentation from the Old Testament is. All that at least Judah ha-Nasi can find in Scripture upon which to rest the rules concerning the ritual mode of killing animals for food is contained in the two words ka-asher siwithika ('as I have commanded thee') Deut. 12.21, although the reference is clearly and simply to v. 15 above. Strack, p 11

תמורה Temurah 14b and גיטין Gittin 60b

The Two Torah view rests significantly on the widespread belief that it was forbidden to write down the oral tradition -- it did not evolve over time, it was carried orally in its full form through the eons.

According to an opinion widely held, it was categorically forbidden to commit to writing the traditional (lit. oral) law, Torah shebe-'al pe. It is even maintained by a number of scholars that the interdict was in force not only as regards Halakah, but also with reference to Haggada. ... When did this interdict originate? Obviously it was unknown to the translator of Ecclesiasticus into Greek (132 B. C. E.). ... Gamaliel I order a Targum of the book of Job to be immured. ... Eccles. 12.12 cannot be interpreted in this manner, nor can the haggadic interpretation of the verse in the Midrash be seriously accepted [Koheleth 12.12; Pal Sanh 20.28a]. Strack, p 12 - 13

There is nothing [in a critical historical analysis] to point to an interdict on the writing down of Halakoth, and still less so on the writing of haggadic matter, formally promulgated and universally recognized. It should be conceded, however, that again and again voices were raised in powerful opposition against writing, specifically against writing down Halakoth. It is not that writing per se was frowned upon, rather writing for the purpose of public use. If every teacher had been free to compose his own code of laws and to transmit it to his disciples, the unity of Judaism would have been endangered. Then writing as a means of giving permanence to the traditional law would have precluded the process of modifying the law in accordance with the peculiar time conditions in each period. Strack, p 17

If we turn to the principal passage in the Talmud [Temura 14b = Git 60b] bearing on this question, we obtain the following facts. It is quite true that the Palestinian Amora Johanan bar Nappaha (who lived in the third post-Christian century) delivered himself of the opinion that "he who writes down Halakoth is as one who commits the Torah to flames." It is furthermore true that Judah bar Nahmani, the interpreter of Johanan's brother-in-law Simeon ben Lakish found in Exod. 34.27 support for his deduction that "what is said orally may not be said in writing, and vice versa" and that this interpretation of the biblical passage had been current in the school of Ishmael. But we must bear in mind, in the first place, that both Johanan and Judah bar Nahmani lived as late as the third century; then, Johanan speaks only of committing to writing Halakoth, and his language which is grossly Oriental does not sound as if he were enacting a law; as for Judah, as his position indicates, he is no authoritative personality; lastly, whether we take the first or the second saying, we are in a position to adduce positive evidence that neither in point of time nor of place was the proscription regarded as in the nature of a law. Strack, p 13

Written haggadot

Testimonies for the writing down of haggadic material Strack, p 13 - 16.
  • Hiyya (an uncle of Rab's) reads in the bathhouse a haggadic work on the Psalms [Pal Kil 9.32b].

  • Jacob bar Aha, a contemporary of Rab, found written 'in the Haggada book of the academy' [Sanh 57bα].

  • It is told of Johanan and Simeon ben Lakish that they 'were studying a haggada book' [Temura 14b = Git 60a].

  • Rabba bar bar Hana states: When we studied with Johanan, he was wont, whenever he repaired to a privy, to hand us a Haggada book, if he happened to have one with him [Ber 23aΥ].

  • Johanan said: This is certain. He who studies Haggada from a book, will not so soon forget it [Pal Keth 5.9a].

  • The harsh language which Joshua ben Levi, a contemporary of Johanan, and his pupil Hiyya bar Ba use concerning committing to writing Haggada and studying from Haggada books proves at any rate that such writings were then in existence: "May the hand that wrote the Haggada collection be cut off [Pal Shab 16.15c]. Also see Soph 16.10 and Midr Ps 22.4.

  • Ze'ira (about 300 C. E.) vexed the masters of Haggada and called their writings books of witchcraft, ספרי הקסומים sifre kisme. Ze'ira speaks of the Haggadists, whom he calls masters (students) of witchcraft. But even so the expression points to the existence of haggadic writings which evoked his disapproval. Ze'ira carried in his mind the phrase ספרי הקסומים sifre kisme with which the tannaitic Halakh is wont to designate the Bibles of the Judeo-Christians. Abba bar Kahana, however, said to him: Why do you vex them? Ask them, and they will answer you [Pal Maasroth 3.51a].

  • Casual references in patristic literature [Matth 17.2; Jer 29.21; Ezek 1.10; B M 85a; Sanh 37a; Ber 46a].

What is said about variants found in the Bible codex written by the hand of R. Meir [Midr Gen R on 1.31, 3.21, 46.2; Pal Taanith 1.64a (Isai 21.11) is to be taken literally and need not refer at all to masoretic notes or haggadic expositions jotted down in the margin.

Midrash Tanhuma belongs to a period entirely too late to affect our question. "The Israelites in Egypt had scrolls, megilloth, with which they delighted themselves, mishta'ash'in, on Sabbath [Tanhuma, on Exod 5.9]."

Nor is the passage Ber 10a to the point. "Simeon bar Pazzi ordered the Haggada of Joshua ben Levi." The meaning is that he recited it in proper sequence (see Chapter XV, § 2). Nothing is said of writing; compare Taan 8a: Resh Lakish ordered/reviewed the Halakoth forty times before he stepped up to Johanan.

  • Rab Hisda (died about 309 CE) says to Tahlipha bar Abina with reference to certain foreign (Greek) words: "Write it in your Haggada book and explain it [Hul 60b]."

  • Rab Papa (died 375 CE) and Rab Huna bar Joshua found in a Haggada book that Rab Hisda and Rabba bar Huna interpreted the name Sinai in the identical manner [Shab 89a].

  • Rab Nahman bar Jacob (died 320 CE) was wont, when he repaired to a privy, to hand one of his pupils a Haggada book, if he happened to have one with him [Ber 23a].

  • It is said of Raba (died about 352 CE) that he ordered certain orphans to restore a wool-shear and a Haggada book which were claimed as the property of some one else [B M 116a, B B 52a, Shebu 46b].

Other writings
מגילת תענית
Megillath Taanith
The Scroll of Fasts is a record of days on which it is not lawful to keep a fast, as some joyous famous event had occurred on that day in history [Taan 2.8, Erub 62.b a]. The Aramaic text was likely composed in part before Jerusalem's destruction; its present form dates to Hadrian's reign.
Megilat YuhasinA scroll with genealogies and diverse records, and no literary work. It is no longer extant, but is cited by Ben Azzai (c 100 CE) [Yeh 49b]. The books reported to have been found in the Temple, shel me'onim, hi and za'atutim [Siphre Deut 33.27 (§ 356); Pal Taan 68a, 1.40; Aboth derabbi Nathan B, ch 46; Soph 6.4] have been argued by modern scholars to be of the same character. [jewishencyclopedia.com]
ספר יוחסין
Sefer Yuhasin
Sometimes said to be identical to Megilat Yuhasin, this text contained expositions and amplifications of the genealogies in the Book of Chronicles. "Rab said: From the time that the Book of Genealogies was hidden, the strength of the wise had failed and the light of their eyes has grown dim [Pes 6sb]." The contents of this book were taught as oral tradition by the Palestinian Amora Jonathan ben Eleazar. Mar Zutra, a contemporary of Ashi, states that it took 400 camels to carry the load of the haggadic interpretations of the genealogies running in the First Book of Chronicles (8.37f to 9.43f) from Azel to Azel. Obviously an exaggeration, but it shows that there existed then many haggadic books. [jewishencyclopedia.com]
Megilat HasidimAlso known as Megilat Setharim or Megilat Harisim. This is believed to be an Essene writing. [Siphre Deut 11.22]
Sefer Beth HashmonaiThe First Book of the Maccabees was, according to Eusebius [Hist Eccles VI, 25], titled Σαρ βηθ σαρβαναιελ -- a corrupt name which should read Σφαρ βηθ Ασμωναιειν.
TargumsNumerous mentions are made of written Targums [Bab Ber 8b]. There was no ban on writing Aramic translations of the תַּנַ”ךְ‎ Tanakh; it was merely forbidden to read publicly from a written Targum [Pal Meg 4.74d].

Written halakoth

Testimonies for the writing down of halakoth Strack, p 16 - 20

No inference as to the existence of written halakic records can be made from the use of the verb 'ashkah, 'to find.' Joshua ben Levi said: In twenty-four passages it is said that the court may anathematize a person guilty of affront to a scholar. Eleazar asked: Where? Joshua answered: leki tashkah, when you will find it, i. e. search and you will find. Nefak dak we'ashkah telath, he went out, reflected and found three passages (of the Mishnah) [Ber 19a]. A similar reply was made by Johanan to Eleazar [Mak 16a; for נפק כן compare also Pes 19a; Hag 19a; Yeb 36a, 105a; Keth 81b; B M 20b; B B 172b; A Z 68a; Zeb 58a; Hul 6a, 31b]. The expression 'atha we 'aithi mathnitha bideh [Shab 19b] signifies the introduction of a statement of law, hitherto unknown in the school, on the part of one who retained it mentally. What is reported of Hiyya [B M 85b] shows merely that he took pains to have copies made of the five books of Moses (nothing is said of copying the Mishna). The debates between Rab and Mar Samuel on certain readings in the Mishna concern divergences caused by mishearing rather than by misreading [Pal A Z 1.39c: Rab read in A Z 1.2 אידיהן, Samuel עידיהן; Rab read Erub 5.1 מאבדין, Samuel מעבדין; Rab read Ber 8.6 שיאוחו Samuel שיעוחו. There are variants such as סני and סכי in Bekoroth 44a on 7.3, and בעולם and בעולה in Me'ila 15b on 4.2 which suggest a divergence due to graphic similarity.]. When Abaye and Raba are divided on the text of B. M. 6.5, whether we should read kemas'oi or lemas'oi, it would seem as if neither had before him a written Mishna [B M 80b]. Strack, p 16 - 17

Sefar GezerathaIt is said in the Scroll of Fasts under the rubric of the fourteenth day of the month Tammuz: The Book of Decrees, Sefar Gezeratha, was done away with. Apparently it was a penal code disapproved of by the Pharisees. The event occurred at the accession of Alexandra, 76 BC, or at the outbreak of the Great Revolt, 66 CE.
Megilat SammaninJohanan ben Nuri, a contemporary of Akiba, received from an old man Megilat Sammanin, a catalogue of the spices used in preparing the incense, which had been an heirloom of the family of Abtinas [Bab Yoma 38b, Pal Shek 5.49a β]. However, we are dealing here with a writing composed for private use.
Megilat SetharimRab found with Hiyya a Megilat Setharim (according to Rashi, a scroll which was kept secret because of the interdict), in which were found halakic statement by Isi ben Judah [Shabb 6b, 96b; compare B M 92a].
Other writings
  • Mention is made of a halakic Midrash on Leviticus in the times of Eleazar ben Pedath [Compare Yeb 72b].

  • Samuel, head of the school of Nehardea (died about 254 CE) sent to Johanan thirty-nine camel loads of questions which had reference to the laws concerning Terepha [Hul 95b].

  • Johanan's contemporary Hilpha (aka Ilpha) had in his possession a book of פנקסא πιναξ pinaksa (notes) of halakic matter [Bab Men 70a; Pal Maas 2.49d]. Such books were also in the possession of Joshua ben Levi, Levi (230 CE) and Ze'iri [Shab 156a].

Origins of halakah

The archaeological and historical record suggests that Judaism grew and expanded from just the תַּנַ"ךְ‎ Tanakh by word of mouth during a long period in response to changing circumstances.

First Temple period

Babylonian exile

Persian era

When the occasion presented itself, legal statues [ie commanding the people to expel non-exiles], it goes without saying, were enacted, quite independently of the text of the Bible; so at least at first. But when it came to teaching the Halakah, the form of Midrash was resorted to at an early date, in all probability long before the form of Mishna was at all thought of. ... There existed no Mishna, i. e. a course of instruction in the law in comprehensive form and in proper sequence according to subject-matter, in the times of the Sopherim preceding the "five Pairs." Strack, p 23 - 24

More formally, the halakah (and later the mishna) likely began to take shape as midrash.

The presentation of the body of traditional lore took on the form of scriptural exposition, the written Torah served as the thread for stringing together the traditional matter. Josephus speaks of εξηγηται (των νομων), Philo of νομων ερμηνεις. The Talmud designates Shemaiah and Abtalion [Pes 70b] as great sages and great expounders, darshanin, who might be expected to be able to tell Israel (i. e. by deduction from Scripture) that the festival offering sets aside the Sabbath. Strack, p 24

Greek era

What brought about the beginning of mishnic vs midrash forms of study?

Could it have been the transition to Greek rule, and the effects of Ptolemaic rule putting previously small schools of thought in greater power? The gap in Aboth 1 between Simon the Just and Antigonus of Socoh suggests that the transition to Greek rule disrupted the Sopherim.

Teachers set about on the one hand to expound the Law by means of novel principles of exposition, and on the other to teach as independent Halakoth whatever had been accepted as authoritative. The Pharisees mad themselves indispensable to the people by teaching in the Mishna form, a novel method of their own invention, though the Midrash form continued by the side of the other. Subsequently the division in method created a distinction in the schools, some cultivating the Midrash form and others the Mishna form. The older Halakah, since it disapproved of the expositional methods of the more recent one, largely adhered to the Mishna form. One example: Akiba endeavors to prove that with a thanksgiving-offering there should go half a log of oil. Whereupon Eleazar ben Azariah retorts: If you go on arguing the whole day about inclusion and exclusion, it is no concern of mine: half a log is the established tradition going back to Moses on Sinai [Siphra, Saw, 11]. Strack, p 24

There was tremendous amount of extra-biblical information, primarily of an oral nature.

Philo speaks of 'myriads of unwritten customs and usages' (μυριά αγραφα έθη και νομιμα) [preserved in Eusebius' Praeparatio Evangelica]. Of special importance is the observation of Josephus: "The Pharisees have made many ordinances among the people, according to the tradition of their fathers, whereof there is nothing written in the laws of Moses; for which cause they are rejected by the sect of the Sadducees, who affirm that they ought to keep the written ordinances, and not to observe those that are grounded upon the tradition of the fathers" [Antiquities XIII 10.6]. Likewise in other passages in which mention is made, whether in Josephus or in the New Testament, of the 'tradition of the elders' (παράδοση των πρεσβυτέρων) or the 'ancestral tradition' (πατρωα παραδόσις), there is nothing that in any matter points to the traditional law in a written form [Antiq X 4.1, XIII 16.2; Matt 15.2; Mark 7.3,5]. Strack, p 11 - 12

Roman era

The first attempts to record the Mishnah likely date to the first half of the first century (before the destruction of the temple?).