The Jewish Law Annual Volume 17

Berachyahu Lifshitz

• Publisher: Routledge-Cavendish
• Year: 2008
• ISBN:
  9781134049240
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Volume 17 of The Jewish Law Annual adds to the growing list of articles on Jewish law that have been published in volumes 1-16 of this series, providing English-speaking readers with scholarly articles presenting jurisprudential, historical, textual and comparative analysis of issues in Jewish law. The volume contains seven articles diverse in their scope and focus. Two articles are devoted to the halakhic thought of Rabbi A. I Kook; two treat classic legal questions: breach of a promise to marry, and the legal capacity of minors; two examine aspects of the judicial process, one exploring talmudic analyses of the biblical requirement that courts be established in every town, and the other, post-talmudic views on judicial authority in cases suspected of fraudulent claims. Another article addresses the fascinating question of the epistemic-pedagogic worldviews of the rival Tannaitic legal academics, the House of Hillel and the House of Shammai. The volume concludes with a section on Israeli legislation that adduces or is informed by Jewish law, and two reviews of a much-discussed recent book on a topic of considerable contemporary interest: the agunah problem.

PART ONE

IT IS INDEED IN HEAVEN: THE UNIQUENESS OF THE LAWS OF THE TEMPLE IN THE HALAKHIC DOCTRINE OF RABBI A.I. KOOK

NERIA GUTTEL*

Introduction

In my recent Innovation in Tradition: the Halakhic-Philosophical Teachings of Rabbi Kook,¹ I demonstrated that R. Kook often adduced diverse meta-halakhic materials in his responsa and rulings, to a much greater extent than other contemporary decisors (poskim). Examination of his halakhic thinking and comparison of his approach to the approaches of the central decisors of his time, reveals that unlike his colleagues, he invoked diverse considerations in the course of his halakhic decision-making. The present article has a more circumscribed focus, concentrating on one particular concept that compellingly reflects R. Kook’s halakhic disposition. This notion is not merely one of many ‘considerations’ invoked in the process of deliberation, nor is it presented as an ‘application’ of the law to be put into practice, but highlights a deeper, more essential stratum of his thought, a stratum that ordinarily remains concealed.

It is important to stress that this article shares the methodology used in the aforementioned book. The research ‘material’ is not R. Kook’s extensive philosophic oeuvre, but rather, his halakhic writings. That is, on the perspective adopted here, we will not address theoretical halakhic ideas, but rather their implementation in practice, their actual application.²

1 ‘It is not in heaven’

The biblical verse ‘It is not in heaven’ (Deut. 30: 12) was often explicated by the Sages as a fundamental halakhic directive to the effect that since the giving of the Torah at Sinai, the law is vouchsafed to mankind alone. It is the source of human authority to decide the law, as well as the source negating the authority of heavenly intervention in deciding the law. It is this authority that is invoked when R. Joshua rejects ‘the proofs’ offered by R. Eliezer in bBaba Metzia 59b:

Again he said to them: If the halakha agrees with me, let it be proved from heaven! Whereupon a heavenly voice cried out: Why do ye dispute with R. Eliezer, seeing that in all matters the halakha agrees with him? But R. Joshua arose and exclaimed: It is not in heaven…. Thou hast long since written in the Torah at Mount Sinai, ‘after the majority must one incline’ (Exod. 23: 2).³

On the other hand, the sugya in bEruvin 13b steers us in another direction, as there it was said that it was the heavenly voice (bat kol) that came forth and made the final decision, namely, that the law was in accordance with the view of the House of Hillel.⁴ In fact, the Talmud itself offers two solutions to this apparent discrepancy⁵—distinguishing between the era prior to the heavenly voice and that which followed it; or alternatively, construing the ‘it is not in heaven’ principle as controversial, and whereas R. Joshua maintains that we do not heed heavenly voices, others dispute this.

Maimonides decided the law to be applied in three places: in his halakhic Mishne Torah (henceforth, Code), Laws concerning the Fundamental Principles of the Torah, ch. 9, in the Preface to his Commentary on the Mishnah, and in his philosophic Guide for the Perplexed, II:39. The law is that “prophets are not permitted to introduce anything new from now on,” to permanently add to the law or to remove any element from it, since, as we saw, “it is not in heaven.” Whether Maimonides accepts the first solution, and we are now in the post-heavenly voice period, or he accepts the second solution and holds the same opinion as R. Joshua, his ruling rejects all halakhic reliance on ‘revelations’ of any kind.

Maimonides’ ruling was subjected to critical scrutiny by commentators,⁶ who also examined both additional talmudic sugyot,⁷ and various judicial policies adopted as the halakhaic worldview emerged.⁸ Ultimately, most of the decisors⁹ reached the conclusion that ‘heaven had to be severed from earth,’ leaving the halakhic enterprise solely in humans hands, without allowing ‘heavenly manifestations’ to have any expression or effect with respect to the halakha per se.

So too the subject of this article, R. Abraham Isaac Hakohen Kook (Latvia 1865 – Jerusalem 1935), in complete reliance on the aforementioned ruling of Maimonides, states, in an early work, “it is a fundamental principle of the Torah that prophecy will not introduce anything new with respect to halakhic decision-making.”¹⁰ But in a number of places, R. Kook invokes the method of the Tosafists, as well as the opinion of the Geonim, against the aforementioned opinion held by Maimonides. This is evident, for instance, in two passages in Igrot Hareaya. In vol. 1, letter 103, he writes as follows:

Even though in the opinion of Maimonides as set out in his Code, Laws concerning the Fundamental Principles of the Torah, prophecy is of no relevance to the halakha, nevertheless, the approach upheld by the Tosafot is that this is not a firm rule, and obviously it has its exceptions. And prophecy did have an influence on the unfolding of the Oral Law.

In vol 2, letter 690, he once again says, regarding the role of prophecy and the divine spirit in expounding the long-term law intended for implementation:

In spite of Maimonides’ view that prophecy does not have the same nature as words of the Torah, the Geonim all held fast to a single position: the Torah, the Prophets, the Writings, the Sofrim, and so on … were enabled by the divine spirit with which Israel is imbued to create the halakha for all times…. and prophecy decides and interprets, and afterwards the Sofrim came to inherit this role.¹¹

Hence, whereas on Maimonides’ view, the path to the halakhic world was closed to heavenly ‘manifestations,’ according to R. Kook, the view of the Geonim and the Tosafot is different, and they endorse the possibility of such intervention. He reminds us that the Tosafot claim that it is possible to accept the utterance of a heavenly voice when it supports a decision-making rule (‘follow the majority’) or explains it (intellectual incisiveness should not be valued above being the majority view).¹² In addition, we must distinguish between a heavenly voice that comes forth to render a decision, and a heavenly voice that comes forth for other reasons (say, to support one of the sides), and as to the former, there are those who maintain that this is acceptable.

At this point, the question that must be addressed is that of the degree to which R. Kook’s words remained theoretical principles—philosophic halakhic statements with no application or realization—and the degree to which he saw them as having application in practice. In other words: as is well known, there is a popular conception that R. Kook’s innovativeness remained at the level of intellectual speculation, and when it came to handing down the law to be applied ‘in practice,’ his ruling was conservative, predictable and lacking in innovativeness,¹³ and thus of little interest. Elsewhere I have scrutinized this argument at length, and comprehensively refuted it¹⁴; here I will focus on one specific issue, and demonstrate that R. Kook’s innovativeness on this matter most definitely did not remain purely theoretical, but was thoroughly integrated into his halakhic deliberations on matters having implications for actual practice. Moreover, in a number of concrete cases his decisions were based on these views. In examining this issue, we will draw upon sources on three different levels: we will begin with a source that can be categorized as theoretical scholarship, then consider an interpretive source, and a source explicating the law to be put into practice (halakha lemaase).

I Etz Hadar, §34

One example demonstrating that for R. Kook, these ideas are not relegated to the realm of theoretical discussion, but thoroughly and profoundly integrated into halakhic deliberations with implications for actual practice, is found in §34 of Etz Hadar.¹⁵ R. Kook devoted this work to a comprehensive halakhic study of the issue of the hybrid etrog (citron),¹⁶ and in §34 elucidates the advantages of the etrogim of the land of Israel. Earlier, in §32, in discussing the question of whether recitation of the Hallel prayer is a scriptural obligation or was established by a prophetic tradition (divrei kabala),¹⁷ R. Kook explicated the halakhic significance of prophetic statements

, and reiterated Maimonides’ rejection of prophetic interference in halakhic matters, necessarily ascribing to prophetic statements the status of ‘supporting’ traditions (asmakhta). In essence, even here, in the very examination of the status of ‘prophetic traditions’ in light of the ‘it is not in heaven’ principle as applied to the case of prophetic statements, there is a certain degree of innovation. The discussion branched out to a different issue in §33, but in §34, R. Kook asserts that according to the Tosafot, the status and validity of ‘prophetic traditions’ is “just like that of scriptural directives,”¹⁸ and this is so despite the fact that the laws in question were transmitted through prophetic inspiration. He clarifies the rules governing legal determinations made on the basis of ‘manifestations,’ and explains that whereas, on the one hand, a bat kol, a heavenly voice, is not permitted to introduce anything whose foundation is completely unknown to us from any other source, and should it do so, such a pronouncement will be seen as no more than ‘good advice,’ in a situation where there is doubt between known opinions with rationales already familiar to us, the determination of the prophetic ‘manifestation’ can be a factor in deciding the halakha.

R. Kook engages in a detailed scholarly discussion demarcating the boundaries of halakhic reliance on heavenly voices:

It is much more plausible to say that the heavenly voice can render a decision as to a point of doubt about the law … and this is simply considered a decision on the basis of the Torah, because we have [knowledge of the relevant] doubts and rationales. But to say that the heavenly voice will introduce something new, something of which we have no initial acquaintance—it is not plausible that there could be any controversy about such a matter … it is like a new Torah, and this is impossible, for regarding this it was said, ‘it is not in heaven.’ But when we are cognizant of aspects [of an issue] as to which there are doubts, it is apt to have recourse to heavenly assistance in deciding which aspect to uphold, and thus prophecy returns to Torah law.

R. Kook then quotes remarks attributed to R. Hai Gaon,¹⁹ as well as a number of talmudic sugyot,²⁰ that take issue with this view, implying that the boundaries within which there is room for prophecy are far broader, even extending to instances that may “appear to be like a new Torah.” He is thus compelled to posit a distinction between ordinary doubts and doubts arising from unresolved controversies. After an extensive and much-ramified discussion, he reaches the following conclusion: “In any case, it seems, as I wrote, that the main thing is that the heavenly voice, and indeed, everything that is decided by heaven, resolves our doubts….” This conclusion gains further importance in light of R. Kook’s clarification that even if Maimonides himself disagreed with them with regard to the s...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• PART ONE
• PART TWO
• PART THREE
• Style Sheet