It is time for a new code of Jewish Law.
I know this may sound a bit radical, but it really isn’t.
Some background. For the most part we learn Halacha from codes that were written in Eastern Europe in the 19th Century. Examples are: the Hayyei Adam, Kitzur Shluchan Aruch and Aruch Hashulchan. Add to that the Mishna Berura which is technically not a code but rather a commentary on the Shulchan Aruch and we have an impressive list of halachik source that still guide us to this day.
Most of these codes and commentaries relied on the written word of rabbis who came before them and did not fully consider the social, geographic and political reality of the times. The mishna berura is an excellent example of such a work.
The exception to this rule is the Aruch Hashulchan. According to Dr. Simcha Fishbane, author of The Boldness of An Halakhist, An Analysis of the writings of Rabbi Yechiel Mechel Halevi Epstein, The Arukh Hashuhan, Rabbi Epstein did consider the “social, economic and political reality of the Jews of his period and geographical location, the latter part of the 19th century in eastern Europe. Rabbi Epstein preferred considering his reality rather than basing his rulings solely upon the writings of earlier authoritative rabbinical authorities.” Many point to the fact that Rabbi Epstein was a communal rabbi who was confronted with the reality of life as the reason why he took such an approach. No doubt Rabbi Epstein only employed classic tools of psak, but overarching consideration was given to the realities of the times.
Now to the substance of the matter.
Rabbi Epstein did just what I suggested at the outset. He wrote a new code of Jewish law when the times called for it. Here are two examples that make my point.
The first example is from the custom of having another seder participant wash one‘s hands at the Pesach seder.
“The head of the household should not pour for himself, but rather another should pour, for this is an expression of freedom. We are not scrupulous about this fir it appears as a great deception for a husband to order his wife to pour the water over her husband’s hands, for the husband is not favored over her” (Orach Chaim 473:6). In this case Rabbi Epstein recognizes the contemporary status of women and rules accordingly.
The second example relates to the statement of the Shulchan Aruch that one is permitted to borrow someone else’s Tallit without permission since it is assumed that one would want someone else to be able to perform a Mitzvah with their belongings.
After quoting the Shulchan Aruch, Rabbi Epstein notes that: ”we have seen that many are very particular on this matter, especially when the Tallit is new and there are some who will not tolerate another wearing their garments because of perspiration and concerns for cleanliness. Therefore it seems to me that we must reconsider this ruling. (Orach Chaim 14:11). Rabbi Epstein realized that personal hygiene practices had changed and that the new reality meant that the halacha had to be adjusted as well.
Perhaps this new code of Jewish Law will reflect social changes such as the reality that that men now are full participants in domestic life and that women a more involved in public communal life. This new code of Jewish law will address kol isha (prohibition of hearing a woman sing) in light of modern realities and new sensibilities. Perhaps this new code of Jewish law, like Rambam’s code will deal with duties of the heart and address matters like Divine Providence – especially in our post Holocaust era and approaches to Tanach Study in light of the developments of new approaches in this area and the many legitimate questions on the Bible text raised by scholars. Perhaps this new code of Jewish law will systematically tackles issue of including the non-observant in our communities and the reality of gay and lesbian Jews who wish to be part of the orthodox community. The section on Tisha B’av would include a discussion on Yom Hashoa and whether or not the Holocaust requires a separate memorial day or it can be folded into the 9th of Av and the right after the Laws of Chanukah there will be a section dealing with Yom Ha’atzmaut and Yom Yerushalayim. This new code would also examine the 9Av liturgy in light on the fact that Jerusalem is no longer “laid waste…and desolate without inhabitants” as the text of the nachem prayer states.
To be sure, individual responsa deal with these realities, but to date there is no systematic code of Jewish law written, as Rav Epstein’s Aruch Hashulchan was, with contemporary times in mind. Some scholars have suggested that Rabbi Chaim David Halevi’s Mekor Chaim was an attempt at such a project. Despite this possibility, the work does not enjoy widespread popularity.
Some like things as they are. For many, no code brings us back to the era of Torah She B’al Peh (oral law) when our license of interpretation was greater. After al, the existing codes do not fully deal with so many modern realities, we are free to develop the halacha. On the other hand, a code written with the Modern Orthodox Jew and community in mind would do a great deal in terms of building confidence in Modern Orthodoxy and offering guidance and direction for Jews who wish to be both modern and orthodox.
This is really not a radical idea at all. Rabbi Epstein successfully completed his project of an updated code of Jewish Law when his Aruch Hashulchan was published between 1873 and 1903.*
It is time for another go of it. Any takers…?
(Subsequently a newly discovered section of Yoreh Deah and the Aruch Hashulchan He’ated (dealing with issues relevant to the newly built Temple) were published.