IMHO, a response of “well that’s halakha” isn’t really an answer, even if it’s true. Why is it halakha, especially if the Torah appears to contradict it? I’ve struggled with the answers to a bunch of religious questions for a while and have generally found it impossible to get any real answers. At this point, as far as I can tell, I agree with the reform on some points, the Conservatives (which is where I belong) on others, the Orthodox on some, and none of them on a lot of points. The more I read, the fewer answers I have.
I shall try to answer your questions to the best of my ability. Since I am a Conservative Jew, my answers will most definitely reflect that particular bias.
One of the problems with understanding halakha is that it is a process*, not a compilation of laws. Laws can be, and have been, changed. But, for the change to be halakhic, the procedure for change must follow a particular systemic method. This concept is not peculiar to Judaism, it forms the basis for American jurisprudence as well. For example, the Constitution may guarantee people the right to own property, but the law may be changed to allow people of all ethnicities to purchase the property independent of the wishes of the owner. So, do they really own it? Congress passes the law; the Supreme Court rules on the law’s adherence to constitutional norms. The law (or change) itself is only judged “constitutional” if the proper method is followed. One might (correctly) argue that the Constitution does not represent the final word in American law but rather, a snapshot of what the legal system, which represents American values, looks like at one particular historical moment.
Similarly, though we cannot push the analogy too far, Torah law represents a snapshot of what the legal system, which represents Jewish values, looks like at one particular historical moment. Since God’s world evolves, God’s law must evolve with it. The method, not the compilation, of law is halakha.
Jewish law has been changed right from the get go. Torah itself begins the process. Exo.20:1-14, the Ten Commandments, presents Israel’s 1st law code. But, like any law code, the minute a law is established, it becomes obsolete. This is not particularly Jewish, it is the nature of law. For example, the Ten Commandments raise a host of questions: Does Rabban Gamaliel’s pictures of the moon phases violate Exo.20:4? This is covered in the Talmudic tractate of Rosh Hashana. Check out Exo.20:5 which is corroborated by Exo.34:7 and Num.14:18. Yet Deu.24:16 seems to turn this concept on its ear. Regardless of how we drash the difference, and there is some nice midrash on it, we still have to discern God’s will and use our judgment to make law. The Ten Commandments never teaches us what constitutes a violation of Sabbath nor how to honor our parents. Is there a difference between intentional and accidental death? When is it stealing and when is it not? What relationships are adulterous and what is permitted? I think you get the idea. Torah, in the very next chapter and throughout, the prophets, the rabbis, all continue the process of refining these laws just as the American governmental system continues the process of refining American law as 1st established in the Constitution.
Of course, as Rambam points out, as Jewish society evolves, and Jews live in different communities and different times, the law (not the process of changing it) evolves in a way that reflects the different eras and places. Torah institutes the Shmita, or Sabbatical year. It works fine for early Israel but by Hillel’s time it becomes the cause of much needed loans not being issued and families becoming destitute. Hillel changes the law. Torah forbids the marriage of a Kohen to a divorcee but the Committee on Jewish Law and Standards permits a Conservative rabbi to perform such a marriage in our time in an attempt to stem the tide of intermarriage. Is it a violation of “Torah true law?” I suppose it is; no less than Hillel’s overturning some of the laws of Shmita. But, for Torah to be relevant, like the Constitution, it must be given room to grow and evolve. Just as the Constitution could not have foreseen the questions of traffic violations brought on by automobiles, Torah could not have foreseen the questions of Shabbat violations brought on by automobiles. What is true in both cases is that the system of adapting the Constitution or the Torah to bear on these modern problems must follow certain systemic procedures.
A major difference between the Torah and the Constitution is that one represents the will of the people and the other represents the will of a divine God. Thus, the procedures used to evolve the one may not apply to the other. We should expect differences in the methodologies that are used to make law. In both cases, however, interpretation of an unchangeable document is involved. Interpretation is the key word; it is subject to all the human foibles you can imagine, not the least of which is political agenda.
Thus, for the last 3,000 years, Jewish law has continued to evolve subject to human interpretation in many different eras and places in an attempt to apply the law in a reasonable manner to the time and place. Little wonder, then, that it is rich with multiple decisions, confusing meanings, outright inconsistencies, and contradictions. No one law code is right for all people at all times. However, one system of maintaining the law can be. Yet, even this methodology is under scrutiny in our time. (Fact of the matter is that it always has been.) How the Orthodox, Conservative, Reconstructionist, and Reform view the system is a far more important consideration than how they agree on the relevance or the implementation of any particular law.
In closing, I would say that when a response of, “well that’s halakha,” is offered, it should be regarded as a short response which means the following: “I don’t know why people thought that the law should work this particular way, but I do know that in order to pass this law they must have followed the proper procedure. That they took the time to do so must have meant that at the time this law was enacted the issue was important to those Jews.” It is kind of like asking the question why green for go and red for stop rather than asking the real question, why traffic lights. If you wish to assign some meaning to the law beyond that, you are free to do so. The key in maintaining the halakhic system is a constant re-examination of the body of law and a reinterpretation of it in each generation so that the body of law remains relevant. How we do that is halakha, not the body of law which results from the process.
I hope this clarifies my position in some small way.* Halakha as process is treated in the excellent text: The Halakhic Process: A Systemic Analysis by Joel Roth
(peace and blessing)
ronald b. kopelman