The Surprising Essences of Halakhah

Commonly Halakhah refers now to the body of Jewish law which governs the way of life of Orthodox Jews. They speak of the halakhah as if it was a unitary source of sacred guidance for what Jews ought to do or not do.

But it's not so simple.

I did some research a while ago into the use of the term in early rabbinic literature. I found that the term halakhah is not commonly used in the Mishnah, Tosefta, or the Tannaitic Midrashim as a primary theological category or as a main descriptor of an entire realm of content.

The word halakhah or its plural form appears 31 times in Mishnah, 105 times in Tosefta and in 59 instances in the early midrashic compilations: Sifra (20), Sifre Numbers (6), Sifre Deuteronomy (18), Mekhilta (10) and Mekhilta of R. Simeon Bar Yohai (5). There is one usage in the Dead Sea Scrolls. I based this on the concordance of the Academy for the Hebrew Language, microfilm version, searches conducted in 1995. Other search methods may provide different results.

By my reckoning there are at least 17 usages of the rabbinic term and concept halakhah in the early literature.  I list them below.

Note well: Only categories V, IX and XII suggest that the rabbis referred to a body of knowledge called halakhah. The other categories of usage do not support that idea.

Briefly the categories of the term are as follows.

I: A “halakhah of Moses” is a tradition handed down from Sinai. This is a statement of the authority and antiquity of a practice.

II: “The halakhah agrees with, accords with, follows, laid down by, stated by” a given source or master is a decision of law or practice in accord with a specified text or authority.

III: “X is a halakhah or the halakhah is X” denotes a statement of a law as it was decided or should be practiced.

IV: “A ruined, defective, wrong halakhah” refers to an improper decision of law or practice.

V: “...in the halakhah” refers to a matter that is part of the body of halakhah.

VI: “A word of halakhah; a matter of halakhah” denotes an identifiable mode of speech, rhetoric, or expression.

VII: “...through the halakhah” associates the term with a process of reasoning, law, or culture.

VIII: “The four cubits of halakhah” suggests that there is a realm of halakhah with its own ontological essence.

IX: “Study halakhah, elucidate halakhah, repeat halakhah” means that one may partake of the corpus, or from the culture or domain of halakhah.

X: “The halakhah follows the majority or group vs. the individual” is a statement of a more specified principle of decisions of law or practice.

XI: “To fix the halakhah (for the future)” suggests another way to express a statement of the law or practice.

XII: “The absolute halakhah, no discussion about its correctness (e.g., b. Ber. 31a)” shows that a legal rule about which there is no dispute is also referred to as halakhah.

XIII: “Knowledge of halakhah (anthropomorphized)” again makes reference to part of the body of halakhah as a realm with its own ontological essence.

XIV: “The halakhah in actual practice (e.g., b. Shab. 54a)” implies the term refers to an ethic or ritual practiced in a social context.

XV: “The halakhah decided by reference to practice” is the reverse of the process spelled out in the more common usages as above in categories I, II, III, etc.

XVI: “The halakhah accords with strict view or the lenient view” makes reference to external principles for determining a halakhah or decision of law.

XVII: “The halakhah as a ruling of a disciple against the view of his master” is an unusual bit of data showing how on occasion the text preserves a decision that contravenes the traditional nature of the rabbinic process (esp. cat. I).

Conclusion: In the early texts of the rabbis there is little evidence of the conceptualization called halakhah as a central category of theology or a realm of thought or religious guidance unto itself.

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