I recently came across this quotation and wondered what it might have to tell us about Jewish law. Does Jewish law fall into one of these categories or the other? Or instead, can the decisions and reasoning behind them of different rabbis of the Talmud and later poskim fall more into one camp or another?
Certainly, some people regard Halakhah primarily in formal terms. It is a system with its own logic and consistency; decisions on new circumstances are a matter of applying precedents correctly, of following the internal logic of tradition. Stepping outside of the rigor of this system, for whatever reason, is always wrong and the motives suspect.
Others see Halakhah not as “set in stone” (as in this week’s parashah) but intended ab initio–from Sinai–to be flexible, created in relationship to particular events and circumstances. Perhaps this theory is visible in God’s application of the law in response to particular events in Bamidbar, such as the question of the inheritance of Zelophad’s daughters. In this view, Halakhah is responsive to the needs and struggles of people, rather than an abstract system that does not take individuals into account.
Historicist views are likely a minority in Halakhah, especially in a system that is taken as divine. Nonetheless, Maimonides in his Guide for the Perplexed clearly introduces historicist explanations for various laws and ideas, such as the Temple sacrifices. While others considered this approach dangerous, clearly Maimonides thought it a necessary means of explaining change and progress in Halakhah.
The last sentence above, though, offering the perspective of American legal philosopher Oliver Wendell Holmes, takes yet an entirely different approach. Law is something organic, capacious, a wide river of opinions and views passed downstream over time. No single philosophy of law could adequately encompass a legal tradition in its entirety. The law is a treasure containing thousands of arguments, decisions made, disagreed with and overturned or “reinterpreted,” reflecting historical tragedy and triumph, individual conflict and communal quandaries. Rather than the product of one particular philosophical school, a legal tradition contains writings by jurists coming from opposing schools of thought, or who may differ in their thinking from one decision to the next. In other words, law–Halakhah–is larger than philosophy.