Towards a Philosophy of Halachah

By Mayer Twersky

The Rav’s Unwritten Work

Rav Yosef Dov Soloveitchik, zt”l, concludes his philosophical monograph, Halakhic Mind, on an exciting and tantalizing note. “Out of the sources of Halakhah, a new world view awaits formulation.” This sentence is exciting because it promises new vistas of thought—a comprehensive philosophy of halachah. But it is also frustratingly and endlessly tantalizing because the Rav, for whatever reason, never wrote the sequent volume on the philosophy of halachah. A careful review of the Rav’s writings, however, can somewhat assuage our frustration. In his writings, the Rav—at times in a remarkably didactically conspicuous fashion—develops elements of the philosophy of halachah.1 Scattered throughout the Rav’s works we can discern paragraphs and even whole chapters of the book that was never written.2 This article seeks to clarify the concept of philosophy of halachah and then gather and piece together some fragments of the book that was never written.

I begin with a word of caution and a plea for forbearance. This article is not formally organized or rigorously structured. It is difficult to isolate specific elements of the Rav’s thought. In his thought, content is inseparable from method, halachah from philosophy. His thought is rich and stimulating and, accordingly, sets one’s mind racing with all sorts of associations. Consequently, even though I have the topic of the philosophy of halachah in mind, it seems inordinately difficult and, more importantly, entirely undesirable, to streamline the presentation. Hence, the reader will—indulgently, I hope—encounter a variety of associations and tangential observations along the way.

The occasion for this study is the recent posthumous publication of two wonderful volumes from the Rav: Worship of the Heart (New Jersey, 2003), which incisively analyzes the concept of prayer while lyrically depicting the experience of prayer, and Out of the Whirlwind (New Jersey, 2003), which depicts the halachic approach to, and quintessential religious experience of, adversity, suffering and mourning.

Exciting and enthralling in their own right, these volumes also underscore the remarkable creativity of the Rav’s earliest published writings, Halakhic Man, Halakhic Mind and “UVikkashtem MiSham.” For example, the incisive analyses of mourning and rejoicing as well as the dialectical nature of the religious experience have already been anticipated in “UVikkashtem MiSham.” Similarly, the profound discussion of time and the Jewish existentialist philosophy of being and becoming in Out of the Whirlwind echo the Rav’s words in Halakhic Man. And, most importantly for our present purposes, the Rav’s pioneering thesis regarding the philosophy of halachah, first articulated in Halakhic Man, reverberates throughout both of these new volumes. To be sure, the Rav’s elaboration and popularization of these seminal ideas are extremely valuable; nonetheless the singular, extraordinary creativity of the Rav’s earlier works is effectively highlighted.

Equally remarkable is that these earlier books were all pioneering essays written in the early 1940s, a time of unprecedented national tragedy and, for the Rav, personal tragedy as well. (The Rav’s father, with whom he shared a remarkably close relationship, died in 1941.) One could ascribe biographical reasons for this paradoxical symbiosis of tragedy and creativity. I believe, however, that the appropriate perspective is metaphysical, not simply biographical.

From time immemorial, whenever the identity of the individual and community was shattered, man encountered God (e.g., the Paradisiacal man after his fall; Moses after the episode of the golden calf). Religious experience is born in crisis.3

God reveals Himself to man in the wilderness . . . . Not in a settled and flourishing land, but rather in the plains of a great and awesome desert—a forsaken land, the shadow of death—does the Almighty appear with some of the myriads of the holy . . . . The Holy One, blessed is He, revealed himself to Adam when the latter had sunk in the miry pit of the primordial sin, which separated him from his Creator, and he did not anticipate divine revelation . . . . Initially God reveals Himself to man when evil triumphs in the world, at a time when the beauty of life has been removed . . . . The word of God initially comes at a time of historical and metaphysical desolation.4

The Rav’s phenomenology of Divine revelation accounts for his own burst of creativity, as well.

The publication of these volumes coincided with the tenth anniversary of the Rav’s passing as well as the one-hundredth anniversary of his birth. This convergence invites us to reflect on the corpus of the Rav’s writings and philosophy in the context of his life and times. It is especially rewarding to reflect upon the Rav’s attitude towards “modern” questions because this will provide insight into his entire literary oeuvre.

One might have anticipated that the Rav would have systematically addressed “modern” questions. He certainly possessed the “intellectual capital” to do so. He achieved “sovereign mastery” over all philosophic, scientific and humanistic knowledge.5 He seemingly effortlessly employed modern Western vernacular. And yet, the Rav did not address some glaringly “modern” questions. He did not seek to reconcile apparent contradictions between the dicta of modern science and Torah, such as the age of the world or the fossil record, and he did not respond to the heresies of Biblical criticism.

My revered father, zt”l, observed and explained this distinctive feature of the Rav’s writings: [There] is no attempt to demonstrate that traditional Judaism is completely congruent with philosophy (or any part of it). This truly noteworthy feature is a result of the fact that for the Rov there was nothing essentially problematic about the masorah; he did not feel compelled to prove that Torah and philosophy or science are compatible.6

Accordingly, the Rav undertook to actively exposit, rather than reactively defend, Judaism. This does not mean that he ignored all questions. On the contrary, his non-apologetic stance not withstanding, he did respond to several challenges of the day. But the Rav responded only to those challenges to religion in general or to Judaism in particular that fell within the purview of his exposition of Yehadut.

Thus, in Halakhic Mind, in his discussion of objectification within religious life, the Rav responds to the derisive critics of so-called “rabbinic legalism”7—critics who fail to grasp that halachah is the religious system par excellence of objectification and quantification of religious norms and experience. Similarly, in Halakhic Man, apropos of his phenomenology of religious experience, the Rav exposes the superficiality and distortion of the utilitarian conception of religion as a haven of tranquility.8 And in “Ma Dodech Midod,” the Rav’s depiction of the conceptual, ideal world of halachic thought, which he analogizes to the ideal constructs of modern scientific thought, exposes the fundamental misunderstanding and misdirectedness of the attempts to historicize or psychologize halachah.9

As for the vexing questions involving the fossil record and the like, which pose external challenges and thus did not fall within the Rav’s purview, I believe that we can transpose an insight that the Rav was wont to share during his shiurim. When confronted with a question regarding his analysis, the Rav would immediately intuit whether the question represented a possible refutation of his explanation. When it did not, the Rav did not feel compelled to answer it in order to justify his interpretation. If the truth of his explanation was overwhelmingly clear, questions were just that—questions, but not potential refutations. On such occasions the Rav would say, “Men shtarbt nisht fun a kasha” (“One does not die from a question”). Similarly, the Rav was convinced that if Jews understood Judaism—its way of life and philosophy—any question would be just that, a question and no more.

Accordingly, the Rav was preoccupied with seminal, internal issues of Judaism and Jewish thought. Halakhic Man is a pioneering tour de force, which depicts the spirituality and teleology of halachah. It opens a window into the spiritual world of halachic man. “UVikkashtem MiSham” describes the quest for deveikut with God. It is essentially a pietistic work with an emphasis on intuitive knowledge and immediacy of religious experience, as opposed to discursive knowledge and impersonal reason.10

Halakhic Mind is the most difficult and challenging of the Rav’s writings. In this remarkable monograph, the Rav develops the idea that there is a philosophy of halachah and a methodology for reconstructing it. He thus revolutionizes Jewish thought with his assertion that “many concepts employed by science and philosophy are incompatible with religious theoretical schemes. Elementary concepts such as time, substance, causality and reality, in order to become eligible for religious knowledge, must be reviewed and reinterpreted. . . . To this end there is only a single source from which a Jewish philosophical Weltanschauung could emerge; the objective order—the Halakhah. . . . Problems of freedom, causality, God-man relationship, creation, and nihility would be illuminated by halakhic principles.”11

Let us carefully clarify the Rav’s revolutionary breakthrough regarding the existence of a philosophy of halachah. Philosophy is the study of the assumptions, axioms and underlying principles of a particular system or discipline. Thus, the philosophy of science, for example, concerns itself with the axioms and assumptions of science. What metaphysical assumptions underlie the scientific endeavor? What defines a scientific theory? What characteristics must it possess to be considered scientific? The laws of gravity and relativity belong to the domain of science. The assumption that the natural world is orderly and governed by physical laws accessible to man’s intellect and the insistence that a scientific theory be verifiable or refutable belong to the domain of philosophy of science.

General philosophy deals with basic questions regarding time, space, causality, et cetera—the basic, axiomatic categories of human thought and experience. What is time? Does it independently exist or is it just a descriptive category of measurement—(e.g., is it an hour’s drive?) If time exists, is it homogenous or heterogeneous? Similarly, space, causality and other basic categories invite the same scrutiny.

Religious philosophy investigates the assumptions, axioms and underlying principles of man’s relationship with God. What relationship exists between God who is infinite, eternal and absolutely self-sufficient and man who is finite, mortal and dependent? The nature of religious experience and related issues are scrutinized.

Halachah, according to the Rav, addresses the domains of both religious and general philosophy. First of all, halachic principles can illumine the nature of man’s relationship with God. The second element of the Rav’s thesis is even more remarkable–basic philosophical ideas and religious experiences regarding space, time and causality are objectified within halachah.

Halachah, according to the Rav, is not simply a legal system but also an objectified philosophical system. Within halachah, fundamental philosophical concepts and religious experiences have been translated into halachic norms.12

The Rav’s contribution can best be delineated and appreciated in the context of the history of Jewish thought. In the eleventh century Rabbeinu Bachya “redeemed” the idea of “duties of the heart,”13—that is, the idea that halachah does not simply regulate activity and behavior, but also that it regulates thought and emotion. This idea, however, its centrality notwithstanding, is not the same as the Rav’s. Emphasizing commandments such as bitachon, yirah and ahavah (trust, fear and love of God), all of which are “duties of the heart” and not “duties of the limbs,” does not expose or presuppose a philosophy of halachah. A philosopher of halachah systematically discovers—when present—the philosophical axioms and religious realities, which are objectified within these “duties of the heart.” The Rav did precisely this. While Rabbeinu Bachya, in his trailblazing work, defines the “duties of the heart,” and emphasizes their centrality, he does not analyze these commandments in order to reconstruct axioms and experiences of religious philosophy, as the Rav did.14 Moreover, the Rav’s philosophy of halachah is to be gleaned from “duties of the limbs” as well.

The great medieval Jewish philosophers such as Rabbi Yehudah Halevi and Maimonides constructed elaborate philosophical systems but did not systematically draw upon halachah as the primary source.15 Thus, to paraphrase the words of the Talmud, the Rav’s luminous predecessors—Rabbeinu Bachya, Rabbi Yehudah Halevi and Maimonides—progenitors of the exceedingly rich tradition of Jewish thought—allowed the philosophy of halachah to remain hidden whereby the Rav might achieve greatness in this realm as well.16

Defining Philosophy of Halachah

What is philosophy of halachah and how is it to be derived? To understand what the philosophy of halachah is, we must clarify what it is not. It is possible to derive philosophy from halachic sources without these philosophical ideas qualifying as elements of the philosophy of halachah. In this context methodology is crucial. While some of the ensuing comments and distinctions may initially appear rather abstract, I hope that the subsequent examples of the philosophy of halachah will clarify these distinctions.

The first crucial distinction is that the philosophy of halachah does not interpret halachah symbolically. Symbolic interpretation treats halachah as a symbol and penetrates its symbolic content. Consider, for example, the commandment of eating korech. At first glance, it seems antithetical to eat matzah, which is associated with redemption, with maror, which is associated with the bitterness of enslavement. And yet the mitzvah of korech mandates this. Perhaps this is because the Torah is hinting that redemption is not the reversal of suffering but its culmination. In particular, the Exodus represented the culmination, rather than the mere cessation, of our experience in Egypt, whereby our national character was forged. According to God’s plan—implemented according to His inscrutable will—suffering leads to redemption. Accordingly, we are commanded to eat matzah with maror to signify that the suffering is actually an integral part of the process of redemption.

This explanation develops a philosophy of Divine providence out of halachic materials. Moreover, the methodology of symbolic interpretation employed, which greatly enhances our religious experience of mitzvot as well as our religious perspective in general, is undoubtedly valid and traditional. Nevertheless, this interpretation does not qualify as the philosophy of halachah; it is a philosophy of halachic symbols. In a similar vein, kabbalistic interpretations, which interpret halachah mystically, do not reveal the philosophy of halachah. This mode of interpretation, as well, albeit traditional and sacred, does not reconstruct the philosophy of halachah. The philosophy of halachah can only be reconstructed by analyzing and conceptualizing the exoteric substance of halachah. According to the Rav, halachah, substantively interpreted, is a source—veritably, the most authentic source—of Jewish philosophy.

The Rav describes the method whereby the philosophy of halachah can be exposed as “reconstruction.” “. . . philosophy of religion performs an act of reconstruction.”17 “. . . the method of reconstruction . . . is of immense importance in the field of Jewish philosophy.”18 The underlying reasoning of this methodology is compelling. In Judaism religious experience and belief are objectified.

The Halakhah is no longer satisfied with the inner image, and it demands externalization and actual representations. The purely experiential search ends in action.19

The Halakhah is distrustful of the genuineness and depth of our inner life, because of its vagueness, transience, and volatility. Therefore, it has introduced, in the realm of the experiential norm, concrete media through which a religious feeling manifests itself in the form of a concrete act. 20

Judaism insists that religious experience and belief be manifested in halachically prescribed forms. Consequently, reasons the Rav, the way to discover the religious experience and beliefs, viz., the philosophy of halachah, is to retrace the objectification process. The procedure is retrospective.21 In other words, the task of the philosopher of halachah is to reconstruct the experiences or axioms concretized within the practical halachah.

Although the Rav is breaking the new and fertile ground of the philosophy of halachah, the methodology is uncannily familiar. Elsewhere the Rav describes Reb Chaim’s Talmudic methodology (derech halimud):

Reb Chaim revealed the light within this tractate (i.e., Keilim); he made it shed its practical garb and introduced the concept in place of the fact, the logical relationship in place of the actual connection, ideal content in place of concrete objects. . . . Just as he introduced a new interpretation to these disciplines, so too he probed and weighed and interpreted according to his method, the method of conceptualization, all areas of Torah. Everywhere he gazed and every topic that he touched was transformed into halakhic content, conceptual idea and abstract essence.22 The Rav’s method for reconstructing the philosophy of halachah is essentially Reb Chaim’s derech halimud.23

The “What” and the “Why” Question

Before proceeding further, one final note of clarification is needed. The philosophy of halachah does not entail philosophizing about halachah but rather analyzing and conceptualizing it. Philosophizing poses the “why” question whereas conceptualizing poses the “what” question. “In this respect the metaphysical thesis that the problem of philosophy is . . . the ‘what’ is correct. . . . At this point many philosophers have blundered. The curse of the ‘why’ question followed them relentlessly.”24

Imagine a student questioning what he will study in an American history course. He is told that he will learn about the colonies, the struggle for independence, the Declaration of Independence, et cetera. The “what” question has given him insight into American history. A second student questions why he must take the course. Ultimately, the answer must be because the school board has mandated it. A sensitive teacher may rationalize the decision and explain that it is important for people to learn about their heritage, but the student will remain clueless about American history. Whatever ideas or values emerge in the answer to his question, they are superimposed from without; they are not part of the discipline of American history. We can now appreciate the Rav’s rejection of the “why” method.

It has already been made clear that philosophically the causalistic method [i.e., the “why” method] invariably leads to penetrative description. The enumeration of causes never exhausts the eidetic substance [the idea] itself. It discloses the “what has gone before” but never the “is” of the subject matter.25 As soon as they had begun to interpret religious phenomena causally, they negated their very object.26 The only method open is the retrospective which explores the objective series for the sake of excavating hidden strata underlying these objective forms.27

In other words, only the “what” question can lead to an understanding of the beliefs and experiences objectified within the halachic norm. “What” questions can help reconstruct the philosophy of halachah concretized within halachah, while the “why” question invites supra-halachic answers, which do not constitute philosophy of halachah.

Interestingly, Reb Chaim’s derech halimud also insists on posing the “what” and disallowing the “why” question. 

Halachah’s Conception of Time

One of the most basic philosophical quandaries concerns time. Does time exist independently or is it merely a category of human thought? Physical bodies (a table, a tree) clearly exist even if no one is thinking about them. But does time also exist independently? Time certainly functions as a descriptive, cognitive category. The earth rotates on its axis once a day, it circles the sun once a year, et cetera, but does time exist in its own right even if we are not seeking to describe motion? Or is time merely a category of human thought? If time does exist independently, what is its nature? Is it purely mathematical? Quantitative time (in this context the terms quantitative and mathematical are used interchangeably), although it “flows equably without relation to anything external,”28 does not “actually do anything.”29 Quantitative time is “uniform, empty, and non-creative” and, as such, even though it exists independently, it is meaningful only in a descriptive sense, as a unit of measurement.30 “How ‘old’ are you?” “How ‘long’ is the trip from the United States to Eretz Yisrael?” Accordingly, the basic units of time are linked to motion. Time is measured “by the rotation of the earth on its axis, and its revolution about the sun.”31 Quantitative time has no inherent qualities, hence its nomenclature. Or does time exist in a qualitative sense as well? According to this approach, time is not simply a “system of reference,”32 it exists meaningfully in its own right, not simply in the descriptive sense of “how old,” “how long,” et cetera. Moreover, qualitative time is perceived as “pure duration.”33

According to halachah, the Rav explains, time undoubtedly exists in a qualitative as well as a quantitative sense. Moreover, halachah, as evidenced by the cardinal principle of kedushat hazeman (sanctity of time), operates with a unique understanding of qualitative time. Qualitative time is capable of heterogeneity. Time possesses distinctive qualities. “Time is not a mere void but a ‘reality.’ Religion ascribes to time attributes such as ‘holy,’ ‘profane,’ but these can be applied only to a substance.”34 The heterogeneity of time, viz., its division into sacred and profane, the subtle distinctions within sacred time between Shabbat and Yom Tov, et cetera, in the halachic system, allows the Rav to reconstruct halachah’s unique qualitative conception of time.

But halachah’s philosophy of time is even more resplendent. The halachic conception of time, which the Rav discovers as the underpinning of teshuvah (repentance), is breathtakingly new and profound.

Halachah’s conception of teshuvah is epitomized within the following rabbinic apothegm: “Gedolah teshuvah shezdonot na’asot lo kezechuyot.” (“Great is repentance, for deliberate sins are accounted to him as merits”).35 For halachah, repentance consists of not merely regretting past sins but changing oneself. And to change oneself is to change the past. From a religious experiential perspective the past does not irretrievably slip away like sand in an hourglass. A person’s spiritual identity—his character, convictions and inclinations—in the present is the composite of past influences and experiences. Thus, the past resonates and endures into the present. And thus to change oneself and reverse the direction of one’s life is, in a religious sense, to change one’s past. The factualness of the past (e.g., Reuben ate non-kosher food) is unalterable, but its spiritual reality (e.g., Reuben sinned and contaminated himself), which continues into the present, is malleable. Our sages have expressed precisely this idea in their dictum that repentance can transform deliberate sins into merits. Moreover, by the same spiritual logic, the future is not something unborn; rather it is firmly rooted in one’s present spiritual identity. One’s spiritual identity does not merely prognosticate the future; it encapsulates the future. Thus, in the halachic view, past, present and future coexist. And with the primordial power of teshuvah, one is sovereign over all elements of time.

Halakhic man is engaged in self-creation, in creating a new “I.” He does not regret an irretrievably lost past but a past still in existence, one that stretches into and interpenetrates with the present and future. . . . Halakhic man is concerned with the image of the past that is alive and active in the center of his present tempestuous and clamorous life and with a pulsating, throbbing future that has already been “created.”36

The time consciousness of halachic man encompasses not only his own past but also the past of the Jewish people. Just as halachic man’s individual past resonates and lives in the present so does our collective, national past. Within halachic man, historical consciousness becomes personal consciousness.

The whole thrust of the various commandments of remembrance set forth in the Torah—for example, the remembrance of the Exodus, the remembrance (according to Nahmanides) of the revelation at Mount Sinai, . . . is directed toward the integration of these ancient events into man’s time consciousness. . . . The commandment to relate the story of the Exodus carries with it a unique halachah: “In every generation a man must regard himself as if he came forth out of Egypt.” But how can a person regard himself as one of those who left Egypt . . .if not by including himself in this ancient past . . .?37

The past lives into the present and future in another realm as well. Our mesorah is not simply a legacy or spiritual heirloom; it, too, resonates and continues into the present and future. Similarly, within the act of talmud Torah, the sages of all generations transcend the boundaries of past and present and are contemporaries.

The masorah, the process of transmission, symbolizes the Jewish people’s outlook regarding the beautiful and resplendent phenomenon of time. The chain of tradition, begun millennia ago, will continue until the end of all time. Time, in this conception, is not destructive, all-consuming, and it does not simply consist of fleeting, imperceptible moments. . . . The consciousness of halakhic man, that master of the received tradition, embraces the entire company of the sages of the masorah. He lives in their midst, discusses and argues questions of Halakhah with them. . . .38

Time possesses these remarkable qualities because Hashem created it not only as something transient, but as something eternal as well. Transient time slips away and is forever lost. Eternal time is experienced and lives into the present and future.

Judaism declares: There can be no eternity without time. On the contrary, everlasting life only reveals itself through the medium of the experience of time—the hour is transformed into infinity, the moment into eternity . . . . The fleeting, evanescent moment is transformed into eternity.39

Enlightened by the Rav’s remarkable reconstruction of halachah’s philosophy of time, we glimpse an exciting, holistic dimension of knowledge. Our sages teach that in creating the world, Hashem “looked into the Torah and created the world.”40 In other words, Torah is the blueprint for Creation. At first glance, this comment is quite puzzling. Torah is comprised of religious, not physical, laws and concepts. How could Torah serve as the blueprint for the universe? Upon reflection, it becomes clear that our sages are revealing that there exists a dazzling symmetry between the spiritual and physical. The physical universe reflects aspects of the spiritual universe. This principle is especially pronounced in kabbalah, the Jewish mystical tradition. Accordingly, kabbalah metaphorically employs physical imagery in presenting spiritual concepts.

This principle is especially pronounced in kabbalah, which metaphorically employs physical imagery in presenting spiritual concepts.

The Rav’s remarkable philosophical exposition of halachic time, when juxtaposed with the teachings of modern physics regarding physical time, provides a splendid example of such holistic symmetry. Dr. Paul Davies, a contemporary physicist, contrasts the conventional, common sense understanding of time with that of modern physics.

The past we think of as having slipped out of existence, whereas the future is even more shadowy, its details still unformed . . . . Obvious though this commonsense description may seem, it is seriously at odds with modern physics . . . . Physicists prefer to think of time as laid out in its entirety—a timescape, analogous to a landscape—with all past and future events located there together. It is a notion sometimes referred to as block time.41

Dr. Davies reiterates this contrast. According to conventional wisdom, the present moment has special significance. It is all that is real. As the clock ticks, the moment passes and another comes into existence—a process that we call the flow of time . . . . Researchers who think about such things, however, generally argue that we cannot single out a present moment as special . . . Objectively, past, present, and future must be equally real. All of eternity is laid out in a four-dimensional block composed of time and the three spatial dimensions.

The imagery of a train traveling along tracks can help us understand modern physics’ notion of time and partially reconcile it with our everyday experience. When a train travels along tracks, there is movement and change. But the tracks are not moving, nor do they pass out of existence as the train advances. The tracks are the analogue to time. People and objects travel along the timeline (or, to employ Dr. Davies’ coinage, the timescape). Undeniably, we age, but the past does not disappear or slip away; similarly, the future is not subsequently born. Instead past, present and future coexist.

Admittedly, we cannot travel backwards along the timescape.42 The time track is a one-way street. But that does not mean that the time of the past does not exist—just as if I travel in a southerly direction, the mass of land to the north still exists.

The physical conception of time adumbrated above remarkably echoes the Rav’s words, which resonate so clearly. “Both—past and future—are alive; . . . From this perspective we neither perceive the past as ‘no more’ nor the future as ‘not yet’ nor the present as ‘a fleeting moment.’ Rather past, present, future merge and blend together.” 43

Of course, there is no analogue in the physical world to the Rav’s halachic-spiritual concept of changing or reliving the past in a real, spiritual sense. Some realities are exclusively spiritual. Nevertheless, this does not detract one iota from the exciting, holistic symmetry, which we have glimpsed within the concept of time.

Halachic Concept of Causality

In a similar manner, [viz., similar to the analysis of time], all basic concepts of reality should be subjected to reexamination [viz., from the perspective of philosophy of religion]. Causality, space, quantity, quality, necessity, etc., will then assume new meaning. If, for example, causality be analysed, it would be seen that neither the mechanistic causality of science nor the sensate, teleological causation of the humanistic sciences suffice for religion.44

The Rav’s philosophical depiction of halachic time has very definite implications for the concept of causality. Within a universe where the past ceases to exist, mechanistic causality (i.e., causality that functions automatically as a machine) rules sovereign. Mechanistic causality is uni-directional. Past events cause present and future consequences. The cause is always temporally antecedent to the effect. Within the halachic universe, however, where the past continues to exist and is malleable, mechanistic causality is dethroned. The future can influence and mold the past. Accordingly, the Rav explains, that “The law of causality, from this perspective, also assumes a new form. We do not have here the determinate order of a scientific, causal process . . . .The past by itself is indeterminate, a closed book . . . .The future transforms the thrust of the past.”45

Halachic Concept of Free Will

Free will is axiomatic to all of halachah. In the words of Maimonides:

This doctrine is an important principle, the pillar of the Torah and commandment, as it is said, “See, I set before you this day life and good, and death and evil,” . . . If God had decreed that a person should be either righteous or wicked, or if there were some force inherent in his nature which irresistibly drew him to a particular course, or to a special branch of knowledge, to special views or activities, as the foolish astrologers out of their own fancy pretend, how could the Almighty have charged us through the prophets: “Do this and do not do that, improve your ways, do not follow your wicked impulses,” when, from the beginning of his existence his destiny had already been decreed, or his innate constitution irresistibly drew him to that from which he could not set himself free? What room would there be for the whole of the Torah? By what right or justice could God punish the wicked or reward the righteous?46

The centrality of free will within the philosophy of halachah, as Maimonides describes, is immediately apparent. Its remarkable scope and magnitude, however, are not as immediately apparent. The Rav revisits the laws of teshuvah in order to reconstruct these features.47

The Rav begins his analysis by noting that Maimonides, in his Hilchot Teshuvah, provides two differing descriptions of teshuvah. In chapters one and two, Maimonides speaks exclusively of repentance for sins in the realm of action—viz., doing something that the Torah prohibits or neglecting to do something that the Torah mandates. In this context he also lists different categories of sins and details what each necessitates in attaining atonement. If one repents for neglecting to fulfill a positive commandment, complete, immediate atonement is granted. In all other cases, however, teshuvah as a source of atonement has to be supplemented—either with the Day of Atonement or with the Day of Atonement and suffering or with the Day of Atonement, suffering and death, depending upon the severity of the transgression.

Subsequent to this initial presentation of the mitzvah of teshuvah, Maimonides interpolates a discussion of free will. Revisiting the mitzvah of teshuvah in chapter seven, he offers a different description.

Since every human being, as we have explained, has free will, a man should strive to repent and make verbal confession of his sins and renounce them . . . Do not say that one need only repent of sinful deeds such as fornication, robbery and theft. Just as a man needs to repent of these sins involving acts, so he needs to investigate and repent of any evil dispositions that he may have, such as a hot temper, hatred, jealousy, scoffing, eager pursuit of wealth or honors, greediness in eating and so on. Of all these faults one should repent. . . . How exalted is the degree of repentance! Just last night this [individual] was separated from Hashem . . . . He cries aloud and it is not answered . . . He fulfills mitzvot and they are flung back in his face . . . . Today, the same individual [having repented] is closely attached to the Divine Presence . . . . He cries and is immediately answered . . . He fulfills mitzvot and they are accepted with pleasure and joy . . . . 48

The Rav notes that in these halachot, Maimonides predicates the mitzvah of teshuvah upon the principle of free will, expands the charter of teshuvah to include character traits and includes a stirring lyrical characterization of teshuvah that, inter alia, clearly indicates immediate acceptance and atonement. In all of these respects, the presentation of the mitzvah of teshuvah in chapter seven differs from that of chapters one and two.

The Rav accounts for these differences by invoking the Talmud’s distinction between teshuvah me’ahavah (repentance out of love) and teshuvah me’yirah (repentance out of fear).49 The impetus for teshuvah me’yirah is fear of punishment or guilt. Such repentance, the Rav explains, does not represent a radical transformation of the sinner’s character. In sinning, man allows himself to succumb to an unsanctified instinct—for physical pleasure, wealth, honor, et cetera. But man has other core instincts as well. Instinctively, we love ourselves and fear suffering and death. Moreover, the conscience that Hashem has imbedded within us arouses feelings of guilt when we sin. When a person repents from fear or guilt, it indicates that the balance between his various impulses has shifted. In repenting, he has simply responded to the healthier impulses and instincts. The penitent me’yirah does not act with complete free will; he is still a captive of impulses and instincts. His free will is limited; it manifests itself only in adjudicating between opposing instincts, in overcoming a base instinct in favor of a noble one.

By contrast the penitent me’ahavah transcends the level of instinctual behavior. His teshuvah arises out of love, not out of an innate albeit a noble instinct. Moreover, in acting uninstinctively out of love rather than instinctively out of fear, the penitent me’ahavah is able to go beyond merely repenting for specific actions; instead he totally transforms his own personality. Unlike the penitent me’yirah who has limited free will, the penitent me’ahavah discovers and exercises absolute free will. He does not merely balance or adjudicate innate impulses and instincts. Rather he forms his own instincts. “Man has the capacity to legislate and determine the content of the law of cause and effect which operates within him. Man can be the architect of his personality; with his own hands he can form his character . . . The seal of causality is indeed set upon life . . . but it is in the hands of man [to determine the causes] and whither the law of causality will lead him . . . .”50

One who discovers and exercises absolute free will also masters his emotions. This halachic philosophic principle underlies many mitzvot. “The whole concept of avelut, mourning, . . . is nurtured by a unique doctrine about man and his emotional world . . . . The Halakhah holds the view that man’s mastery of his emotional life is unqualified and that he is capable of changing thought patterns, emotional structures and experiential motifs . . . .”51

This concept of absolute free will that can shape and form anew the human personality is inextricably intertwined with halachah’s conceptions of time and causality. As the Rav explains in Halakhic Man:

In this outlook we find contained the basic principle of choice and free will. Choice forms the base of creation. Now causality and creation are two irreconcilable antagonists. . . .  But the above applies only if the general law of natural causality which prevails in the physical realm also operates in the world of the spirit . . . . But it [choice/creation] can be reconciled with the principle of causality that is rooted in the type of time consciousness we described earlier. When the future participates in the clarification and elucidation of the past—points out the way it is to take, defines its goals, and indicates the direction of its development—then man becomes a creator of worlds. Man molds the image of the past by infusing it with the future, by subjecting the “was” to the “will be.”52

The Rav reconstructs halachah’s conception of absolute free will. Such free will is unfettered by innate impulses and instincts and even acquired habits of the past because it is free to refine or replace them and to forge a new personality. Free will has the potential to be radically transformative. Accordingly, it not only can deter repeated transgressions, it can also correct character flaws. And since, when exercised to the fullest in the form of teshuvah me’ahavah, it effects a radical character transformation and forges a new personality, it results in immediate atonement for all sins. The new “I” is not punished for the misdeeds of the former “I.”

Such is the Rav’s reconstruction of the philosophy of halachah regarding free will. Halachah does not deny that man acts on instinct and impulse and experiences powerful emotions. But he is sovereign to forge these instincts and impulses. Likewise “The freedom to adopt and accept emotions or to reject and disown them is within the jurisdiction of man.”53 Careful study of the history of Jewish thought reveals ample precedent for the notion of forging and forming instincts and impulses. Let us briefly review two of these precedents and then reassess the Rav’s novel contribution.

The Torah prohibits coveting. It is prohibited to covet the wife, house or any possession of a fellow Jew. Coveting per se is prohibited; even if one does not act on that feeling. The eleventh century Biblical exegete and philosopher, Rabbi Avraham Ibn Ezra, records that many are confounded by how the Torah can legislate something of this sort.54 “How can there be a person who will not covet in his heart what is pleasing and desirable to his eyes?” To fully appreciate this question and Ibn Ezra’s answer, we need to recognize that coveting is an instinctive emotional reaction. It is in no way premeditated. Thus, the question can be paraphrased as such: “How can the Torah prohibit an involuntary instinctive reaction?”

Ibn Ezra answers with a parable, which provides psychological insight. A poor, uneducated villager does not covet the king’s daughter. Human nature is such that one does not covet that which is impossible to attain. Ibn Ezra analogizes:

Similarly, every discerning person must know that a person does not find a beautiful wife or wealth because of his wisdom and intelligence—only as Hashem apportions to him. . . .And for this reason a discerning person will not desire or covet . . . because he will recognize that he can not acquire with his strength, thoughts and strategies that which Hashem does not want to give him . . . . 55

Ibn Ezra explains that coveting is precluded by one’s belief in Divine providence. Man is helpless—all illusions of self-sufficiency and potency notwithstanding—to attain that which Hashem does not will him to have. But this represents a carefully thought out rational reaction. How does this prevent the immediate, instinctive reaction of coveting?

Clearly, according to Ibn Ezra, the Torah believes that we are capable of internalizing belief in Divine providence to such an extent that this belief will condition our seemingly involuntary instinctive reactions. In one sense, instinctive reactions are involuntary. We do not always decide to feel or think a certain way. We just do. However, we can control the forming of instincts. For instance: Ibn Ezra’s example where internalizing belief in Divine providence conditions our “involuntary” instinctive reactions. This is the point that the Rav made in his depiction of free will.

Free will does not have to interfere every time a man stands before some sort of decision . . . . Free will, if a person knows how to exercise it appropriately can mold the form in which he will instinctively react when he arrives at a moment of trial or test. With the force of free will, man is primed to shape the religious dynamic that operates within him; his reactions become natural, a part of his spiritual mechanism . . . . 56

The Sefer Hachinuch, a classic fourteenth-century compilation of the six-hundred-and-thirteen mitzvot, also assumes that internalizing the belief in Divine providence can and must condition our actions and even reactions. The Sefer Hachinuch explains that the Torah prohibits taking revenge not for ethical or moral reasons but for theological reasons. It is theologically wrong and therefore pernicious to seek revenge because man only suffers if Hashem decrees so. One’s fellow man is never the ultimate cause of one’s own suffering, and thus the desire for revenge is nonsensical. Again the Torah expects us to refrain not only from premeditated revenge, but also instinctive revenge. Notice Sefer Hachinuch’s emphasis on internalization, which conditions even instinctive reactions. “The reason for the mitzvah: that a person should know and internalize [yetain el lebo] that whatever happens to him, good or bad, is caused by Hashem . . . .Therefore when someone causes him distress or pain . . . he should not set his thoughts to take revenge because he is not the cause of his bad plight . . . .”57

There is, as evidenced above, precedent in Jewish thought for the Rav’s fundamental idea of forming instincts and thereby controlling even instinctive behavior. Nevertheless these precedents do not eclipse the Rav’s originality. We might say of the Rav regarding free will what he said of Maimonides regarding prayer: he redeemed the idea.58 Ibn Ezra and Sefer Hachinuch clearly assume that man possesses the capacity to curb innate instincts and even forge new ones but it is a latent assumption and applied in a narrow context. The Rav brought this idea to the surface, established it as the formative principle of the human personality and emphasized its revolutionary effect in all realms of human behavior. The Rav restored the idea of absolute free will, which can even transform impulses and instincts, to its central position and established it as a pillar in the edifice of halachic philosophy.

God-Man Relationship

“Problems of freedom, causality, God-man relationship, creation, and nihility would be illuminated by halakhic principles.”59

In this sentence in Halakhic Mind, the Rav adds another element to his charter for the philosophy of halachah; viz., halachic principles can illuminate the God-man relationship. A search of the Rav’s other writings will elaborate this cryptic, programmatic statement.

Halachah singles out “seven names [of Hashem], which are prohibited to be erased.”60 According to Maimonides, Elokim and Elokei are enumerated separately.61 At first glance, this is incomprehensible because they do not appear to be two different names but rather different grammatical forms of the same name. Elokei is simply in the construct state, denoting Elokim (God) of, as in the phrase Elokei Yisrael (God of Israel).

The Rav offers an enthralling explanation.62 Employing a name of Hashem in the construct state is, from a grammatical perspective, quite routine, but from a philosophical perspective, absolutely revolutionary. The construct state expresses a sense of belonging, of ownership. For instance, the phrase nichsei haish (the assets of the man), which is in the construct state, expresses the man’s ownership of the assets. Is it not then impossible to place a name of Hashem in the construct state? Hashem exists absolutely independently and is entirely self-sufficient. How can one speak of Elokei? And, the Rav notes quoting Ibn Ezra, there is no construct state of the Tetragrammaton for precisely this reason. And yet Hashem’s covenant with Avraham Avinu establishes this revolutionary notion. “I will uphold My covenant between Me and you and your offspring after you, throughout their generations, as an everlasting covenant, to be a God to you and to your offspring after you.”63 There exists reciprocity between Hashem and the Jewish people. Just as we belong to Him, in His interaction with the world, He belongs to us!

Accordingly, the Rav explains, Elokei is not simply a grammatical variant of Elokim; it is an independent name. Each name expresses an actional attribute of Hashem that we perceive. And thus Elokei certainly constitutes a separate name because it expresses the revolutionary philosophical-religious idea of reciprocity, which is not expressed by Elokim.

Certainly this is one instance of halachic principles illuminating the God-man relationship. It is worth noting that the Rav offered the above analysis in the halachic component of one of his celebrated yahrtzeit shiurim. This fact reiterates our earlier definition of philosophy of halachah and its methodology.

Fortunately, the Rav’s writings yield a second, closely related element of the God-man relationship within halachic philosophy.64 One of the most fundamental Torah concepts is that the Jewish people are Hashem’s chosen nation. This axiomatic halachic concept, the Rav explains, is predicated upon Hashem’s love of the Jewish people. In a similar vein, this love is the dominant theme of the two blessings that we recite, morning and night, before the Shema. These blessings begin with the phrases “With an abundant love have you loved us Hashem” and “With an eternal love have You loved the House of Israel.”

Thus, the Rav supplies another fundamental element of the halachic world view. The God-man relationship is reciprocal; the love is mutual.

In conclusion, it should be noted that we have collected mere fragments of the philosophy of halachah. Indeed, the Rav’s writings yield several additional elements of halachah’s philosophical system, but space constraints do not allow them to be included in the present forum. But even after that lacuna is filled, it will still be appropriate to paraphrase the Kohen Gadol (high priest): there is much more in the unwritten book of the philosophy of halachah than I have presented to you. As for the rest—Hu yiftach lebeinu beTorato (May He open our hearts through His Torah).

Rabbi Twersky is a rosh yeshivah at the Rabbi Isaac Elchanan Theological Seminary.

*This article was greatly enhanced by my mother’s editorial suggestions.

Notes

1. See, for instance, Out of the Whirlwind, 9-10. “I would like to try in this presentation to interpret the halakhic terms and concepts that relate to mourning in philosophical . . . categories . . . . One cannot get a religious experience—that is, a Jewish religious experience—without utilizing the materials of Halakhah. There can be no philosophy of science or nature unless one is an expert in the field of physics, chemistry and biology, . . . . So, too, it is impossible for one to philosophize about Judaism and speak about its experiential universe without having the Halakhah at his fingertips.” And, ibid., 114 “What I have developed is more a philosophy of the Halakhah.”
2. Much of the material in our reconstruction endeavor is culled from Halakhic Man. While the book provides significant material for a volume on the philosophy of halachah, it was not intended to be, and is not, that volume. Instead Halakhic Man portrays the spiritual world of a halachic man, which while obviously overlapping with the philosophy of halachah, is by no means identical.
3. Halakhic Mind, 3.
4. “UVikkashtem MiSham,” reprinted in Ish HaHalakhah—Galuy veNistar (Jerusalem, 1979), 142.
5. The rich, suggestive phraseology in this sentence, as well as the phrase “intellectual capital” used previously, are taken from my father’s incisive article “The Rov,” reprinted in Menachem Genack ed., Rabbi Joseph B. Soloveitchik: Man of Halacha, Man of Faith (New Jersey, 1998).
6. Ibid., 29.
7. 85.
8. 141-3.
9. Reprinted in Besod Hayachid Vehayachad (Jerusalem, 1976), 222.
10. In conversation, my father once described “UVikkashtem MiSham” as an outstanding work of “old-fashioned pietism,” which draws upon vast modern erudition with remarkable creativity and versatility. He intended “old-fashioned” as a laudatory term, in the sense of being wholly steeped in tradition. My father indicated that ofttimes people who were overwhelmed by the Rav’s vast erudition drew erroneous conclusions regarding his engagement of modernity by failing to appreciate the traditional character of his thought.
11. 46-47, 101.
12. Actually, in Halakhic Mind, “philosophy of Halakhah” denotes a halachic philosophy of religious experience. The Rav, in speaking of the philosophy of halachah, is not referring to abstract philosophical or theological concepts but exclusively to philosophical or theological concepts that are experienced by halachic man.
13. The Rav, in “Reflections on the Amidah,” Worship of the Heart, 44 ff, metaphorically and suggestively, applies the category of redemption to the world of ideas. The evocative imagery of redeeming an idea indicates that hitherto the idea was under appreciated. The idea was on people’s radar screens, but inconspicuously so. To restore the idea to its rightful place is to redeem it from undue obscurity.
14. See the section on free will and the source cited in note 49.
15. An isolated instance of the philosophy of halachah in Maimonides’ Guide for the Perplexed possibly occurs in part 1, ch.59. Maimonides, having developed his doctrine of negative attributes, also reconstructs this doctrine from the halachah featured in Berachot 33b, which states that we are not allowed to add to the three epithets of gadol, gibbor, and norah (great, valiant, and awesome) in the opening blessing of our tefillah. The Talmud reasons that we are restricted from declaring the praise of Hashem, and that we only have dispensation for these three epithets because they appear in the Torah; and the Men of the Great Assembly instituted that they be included in tefillah.

First of all, this is an isolated instance. It is not representative of Maimonides’ philosophical system as a whole. Second of all, even this example does not contribute to a philosophy of halachah that elucidates religious experience, which is the central focus of Halakhic Mind.

16. Vide Talmud Bavli, Chulin 7a.
17. Halakhic Mind, 71.
18. Ibid., 91.
19. Worship of the Heart,16.
20. Ibid., 16-17.
21. Halakhic Mind, 75ff.
22. “Ma Dodech Midod,” in Besod Hayachid Vehayachad, 227-228.
23. The Rav’s method for reconstructing the philosophy of halachah is essentially Reb Chaim’s derech halimud. This remarkable congruence deserves further comment than is possible in the present forum.
24. Halakhic Mind, 86-87. See also Whirlwind, 44, “In a word, I am asking not ‘why parah adumah?’ but ‘what is parah adumah?’ (The distinction between ‘why’ and ‘what?’ was introduced by Nahmanides in his commentary to Deut. 22:6.)”
25. Halakhic Mind, 98.
26. Ibid., 87.
27. Ibid., 98.
28. Isaac Newton, quoted in Paul Davies, About Time: Einstein’s Unfinished Revolution (New York, 1996), 31.
29. Davies, ibid., 17.
30. Rav Joseph B. Soloveitchik, “Kodesh and Chol,” Gesher 3, no. 1 (1966): 14.
31. Ibid.
32. Halakhic Mind, 47.
33. Ibid.
34. Ibid.
35. Talmud Bavli, Yoma 86b. As indicated ad loc. and discussed below, this statement refers to teshuvah me’ahavah.
36. Halakhic Man, 113-114.
37. Ibid.,118.
38. Ibid.,120.
39. Ibid.,118-119.
40. Bereishit Rabba 1,1.
41. All the quotations in this paragraph are from “That Mysterious Flow,” Scientific American (September 2002). I am indebted to Dr. Michael Kramer, shlita, for bringing this article to my attention.
42. Remarkably, some physicists believe in the possibility of traveling backwards in time. See, for example, Igor Novikov, The River of Time (London, 1998).
43. Halakhic Man, 114.
44. Halakhic Mind, 50.
45. Halakhic Man, 114-5.
46. Hilchot Teshuvah 5: 3-4.
47. Pinchas Peli ed., Al Hateshuvah: Devarim Shebeal Peh (Jerusalem, 1975), 191 ff.
48. Halachot 1, 3, 7.
49. Talmud Bavli Yoma 86a.
50. Al Hateshuvah, 241-2.
51. Whirlwind, 10, 3.
52. 116-7.
53. Whirlwind,11.
54. Commentary to Shemot, 20:14. It is curious that Ibn Ezra comments in Shemot and not in Devarim. According to our Sages, there is a difference between “lo tachmod” in Shemot and “lo titaveh” in Devarim. The former prohibition is only violated if one seeks to obtain the object that he covets, whereas the latter applies even if he takes no action whatsoever. Thus, Ibn Ezra’s comments seem to relate to “lo titaveh.” The Rav cites this passage from Ibn Ezra in Whirlwind, 11.
55. Commentary to Shemot, 20:14.
56. Al Hateshuvah, 242.
57. Mitzvah 241.
58. See above fn. 12.
59. Halakhic Mind, 101.
60. Rambam, Yesodei HaTorah 6:1. See Avodat Hamelech ad loc.
61. Ibid.
62. Shiurim Lezecher Aba Mori, vol. 2, pp. 174-175. See also “UVikkashtem MiSham,” 183.
63. Bereishit 17:7.
64. “UVikkashtem MiSham,” 121-4, fn 2.