Orthodox Judaism & Halakhah
So halakhah can and does change, but always to preserve the essential integrity of biblical law. We should note however that Maimonides makes a distinction that substantially tilts the balance of halakhah in the direction of conservatism. A protective decree or enactment created by the sages--a "fence around the law"--is permanent, whereas a suspension of the law is always only temporary." Rabbinic law, that is to say, has an inbuilt bias toward greater stringency over time.
Who May Authorize Changes in the Application of Halakhah?
This is compounded by the issue of juridical authority, hinted at in Maimonides' reference to the Great Sanhedrin. This supreme court had considerable powers to create new law. But as its jurisdiction grew more circumscribed under Roman rule and as the center of Jewish life shifted to Babylon, Jewry was left without a central authority.
According to Maimonides, after the closure of the Babylonian Talmud no one had the power to legislate for all Israel. At most, a court was able to issue rulings for its own immediate locality, although some post-talmudic rulings gained widespread acceptance. The power to create new law had lapsed. The rebirth of the state of Israel led some thinkers, most notably Rabbi Judah Leib Maimon, to advocate the reconstitution of the Sanhedrin. But this would have required broad support among Israel's religious leaders, and it was not forthcoming.
We would be wrong to conclude that there is no scope for development in Jewish law. For what cannot be achieved through legislation can sometimes be achieved through interpretation. A new problem is rarely so exactly like others in the past that precedent dictates an unequivocal answer to a halakhic query. Since there are differences in the details and circumstances, it can be argued that the extant rules do not apply to thepresent case. Halakhic authorities are constantly called upon to adjudicate new questions and, as we will see in due course, there have been areas in which significant changes have occurred in Jewish law in the twentieth century.
Change in Jewish Law is a Reality, Not a Value
But it would certainly be wrong to see change as a value in Jewish law. To the contrary, the central underlying proposition of the halakhah is that it articulates, within the limits of human understanding, the will of God as set forth in the Torah. Rabbinic tradition sees all valid Jewish law as inherent in the original revelation at Sinai. It is uncovered rather than made. Neither a prophet nor a sage has the authority to alter the terms of the covenant.
The rabbis were emphatic in seeing their interpretations and decisions as strictly continuous with biblical precedent. As the third-century teacher Rabbi Joshua ben Levi put it, "Bible, Mishnah, Talmud and [Aggadah], even what a senior disciple is due to teach in the presence of his master, were already stated to Moses at Sinai." Procedurally, therefore, any new ruling must be rendered consistent with the antecedent sources. Any departure from precedent must be temporary, justified by emergency conditions and undertaken with the express purpose of safeguarding Jewish law as a whole.
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