[Avodah] Jewish law has evolved

[Micha Berger]

On Tue, Mar 23, 2021 at 02:46:28PM +0000, Rich, Joel via Avodah wrote:
> I can't know the grasp that anyone has but to say "The correctness
> of the statement that, "Jewish law has evolved and continues to do so,"
> is incorrect," requires a bit of logic (e.g. evolved means evolved in a
> way not reflective of prior precedent and changes in facts on the ground)
> that might not be obvious to the average reader. Thoughts?

There are cases where halakhah grows to cover new situations. In many
of them we could have extrapolated very different pesaqim for the new
from what exists already. Like, in the case of electricity on Shabbos.

So, halakhah grows.

Changes in facts on the ground don't drive an "evolution" of halakhah.
They're really just a non-obvious case of the above. The whole point
of such changes isn't that we switched sides on a machloqes, but that
the side chosen in the past doesn't work in the new case. So we need
to grow new halakhah for the new situation. Even if on most levels it
feels like we're doing the same thing but with a new pesaq.

Like educable deaf-mutes. We didn't do away with din cheireish. And anyone
uneducable because they can neither hear nor talk would qualify. We just
don't have too many people like that any more. (RHS, for example,
includes the pesi, the sane but intellectually diabled, as cheireish not
shoteh. With implications (e.g.) WRT gittin after brain injury.)




And then there are cases of actual evolution, where we are following
new pesaqim. Halakhah evolves but according kelalei pesaq. Of course,
kelalei pesaq are themselves subject to pesaqim, so they could evolve as
well. And precedent isn't the only kelal in pesaq. Or, if precedent shifts
unconsciously, mimetically. Like an increase in the number of people who
just take it for granted that they should look to the soft-stringencies
(baal nefesh yachmir and such) in the MB for their rulings rather than
the MB's pesaqim or the AhS's. Or RMF grows in esteem, and LORs shift
from R Henkin's pesaqim to spending more time with IM. The publishing
(and new editions) of Shemiras Shabbos keHilkhasa similarly changed
which pesaqim the LOR spends time analyzing, and which get accepted. So,
rulings can in principle change.




That was a very legal description.

R/Dr Moshe Koppel convinced me of a very Rupture-and-Reconstruction-esque
understanding of how halakhah evolves, in which dinim are more like laws
of a language.

So, at Har Sinai, we didn't need as many pesaqim. We were fully emersed
in the halachic language, and had a native speaker's ear for what sounds
right. And a good poet, a navi, can know just how and when the rules
can be occasionally bent or even more rarely broken. But as we lose
that culture we become more like English as a second language students,
who need more rules. (And we have no idea what's valid poetic license.)

And so, as we lose culture halakhah gains formality and rigidity. A
steady shift from a mimetic "sounds right" to a textual law book. Until
a rupture can cause a major step in this progression. Moshe dies, laws
are lost, Osniel ben Kenaz is meyaseid them again. Numerous dinim were
similarly codified by Anshei Keneses haGedolah, this is R/Dr Koppel's
take on shakhechum vechazar veyasdum. And then we needed a mishnah, an
actual structured code to memorize. Then shas, then writing them down...
then rishonim wrote codes, and to add my own example -- the way the AhS
and then MB were embraced.

That is a kind of evolution where the range of valid practices narrow
for a situation that didn't change nor did we learn more about the
situation.

Tir'u baTov!
-Micha

-- 
Micha Berger                 When one truly looks at everyone's good side,
http://www.aishdas.org/asp   others come to love him very naturally, and
Author: Widen Your Tent      he does not need even a speck of flattery.
- https://amzn.to/2JRxnDF                      - Rabbi AY Kook