Sources of Jewish Law (Part I)

This is a quick look at where Jews get their laws. Note that I use the present tense; although the Torah is fixed for all time, what we make of it is not. Our laws have been debated, extended, and adapted since Second Temple times.

I make no claim to any particular wisdom or understanding. I'm fumbling around myself, puzzling over questions like why Haribo Gold Bears brand gummies are or are not kosher, which blessing do you say when eating an ice cream cone, and many others that are, frankly, irrelevant to me as a barely observant Reform Jew. But seeking answers is one of my compulsions.

If you have any suggestions for improving or correcting this material, please let me know. Send an email to [email protected]. If you have any questions about the law itself, please use one of the many "ask the rabbi" resources that Google can find for you.

Or ask an AI. Here's what Rabbi Copilot ben Microsoft has to say about the two questions I posed:

Haribo offers a kosher line of products, which is exclusively sold through their partner, Paskesz. These kosher-certified Haribo products are made in Austria and are clearly marked as such on the front and back of each pack. So, if you’re looking for kosher gummy bears, be sure to check for the certified kosher label on the packaging! 🐻

When enjoying an ice cream cone, a Jew would recite the Shehakol blessing. This blessing acknowledges the Creator for providing us with the pleasure of enjoying food and drink. Even though the cone is eaten primarily because of the ice cream and serves to prevent our hands from getting messy, it is still considered subordinate to the ice cream itself. So, next time you savor that delightful ice cream cone, remember to say the Shehakol blessing! 🍦

The Torah is often thought of as "The Law." After all, that's where it all starts. There are 613 commandments in the Torah. But our practices come from a number of sources. I once tried to create a cheat sheet outlining those sources and derivations. My goal was to fit it on one piece of paper. It grew to eight pages. When I asked some more knowledgeable friends what they thought of it, they pointed out things I should add. That's where the project choked and died.

The covenants enumerated in the Torah (and later books) provided the foundation of Jewish law. A covenant, in a secular sense, is an agreement, a bargain, or perhaps a contract between two or more parties. In a theological sense, it is a commitment between God and his people. Either way, there's always a quid pro quo.

Throughout the Torah, God made covenants with our ancestors. These could be considered the first laws: they prescribed certain rules of behavior, and what God would do in return. But these early covenants were for the most part between God and one individual or family. Here are some examples:

What are the terms of the covenant? What is God's part of the bargain? What is ours?

Although this is, strictly speaking, a covenant between God and Noah's family. But since all human beings are "sons of Noah," we are all included by extension.

What are the terms of the covenant? What is God's part of the bargain? What is ours?

What are the terms of the covenant? What is God's part of the bargain? What is ours?

Moses went up on the mountain and met with God. God spelled out what he expected from the people in exchange for his love and protection.

Here are the commandments in an easier to read format.

What are the terms of the covenant? What is God's part of the bargain? What is ours?

In my own mind, I tend to categorize Jewish laws this way:

• Covenants
• The Ten Commandments
• The Written Law (the text of the Torah)
• The Oral Law (a body of work, equal in weight to the Written Law, dictated directly to the people)
• The Rabbinic commentaries on, disputes about, and analyses of the Oral Law

Evolution

The flexibility of Jewish law often derives from the Oral Law. Since it was an oral tradition, it could be re-remembered and reinterpreted endlessly.

It was originally forbidden to write down the Oral Law. But the rabbis feared that it would be lost or garbled in the diaspora, so they compiled it into the Mishnah. (Parts of the Oral Law were written down as Baraitot, which were left out of the Mishnah. Some might have been minority opinions, and perhaps some were from the losing side of a debate.)

The Rabbinic exegesis on the Mishnah was also originally handed down as an oral tradition, but was eventually compiled into the Gemara. There are two versions of the Gemara. One was written down in Babylonia, and the other was written down in Jerusalem.

Collectively, the Mishna and the Gemara are referred to as the Talmud.

No sooner had the Talmud been compiled when scholars began interpreting the interpretations. That process continues today. We'll see a few examples of Talmudic and later materials as we continue.

The Midrash

In addition to the legal discussions of the Torah, there are also legends. These often-fanciful stories, referred to as the Aggadah, are where you find accounts of

• Titanic contests of strength between the patriarchs
• Why the gentiles refused the Torah
• How the various angels felt about the creation of man (and were punished or rewarded for it)
• How the soul and sperm are chosen to become one
• Which of our ancestors were born circumcised

There are also fables and morality tales. The Aggadic material approaches, and sometimes enters, the territory of myth.

A more traditional way of organizing Torah laws is based on how human understanding allows us to perceive them:

• Mishpatim—Laws that human understanding could rationally deduce as necessary for an orderly society
• Chukim—Laws that have no basis in human understanding and which we observe because we were commanded to do so
• Eidot—Laws that can be rationally understood once given, but which human understanding could not have deduced​​​​​​

Those laws are the fundamental topic of the Talmud.

And then there's that other category of rules: minchagim (customs). Although they are not Torah law, they are often observed as though they were. We'll get to that later.

The reason for and meaning of the chukim is a matter of debate. The verse below is an example of chukim, and you can see how our scholars approached them.

Here are three takes on that verse. The first is Talmudic, and the others are from later commentators.

The Lubavitcher have a more holistic view.

How would we classify the Ten Commandments?

In case you've wandered off looking for a red heifer and forgotten them, here they are again:

Mishpatim, Eidot, or Chukim?

Torah law is where we get the 613 mishpatim, chukim, and eidot. It's often taken for granted that the Ten Commandments were the first commandments given to the Israelites; but they were not. The very first commandments were the eidot establishing Passover:

Halakhah (the way) is the body of law that informs and guides the daily life of observant (whatever that means) Jews. Although it's based on and derived from Torah law, it is subject to interpretation and reinterpretation as times and circumstances change. Like a coral reef, it is continually growing by accretion; and the building material is the opinions of scholars from second Temple times to the present. When later scholars summarize and interpret the work of previous sages, typically precedents are considered authoritative; the degree of consensus is taken into account; and the reputations of individuals can have great weight.

Often Halakhah is forced to expand. For example, not even the wisest of the Talmudic sages could have ruled on the use of incandescent lights on Shabbat, but currently turning on a light is considered equivalent to making a fire. No doubt there's someone, somewhere, thinking about how close turning on an LED comes to the Torah's prohibition against making fire.

Halakha is still evolving, and you can get answers to your questions by Googling "ask the rabbi." Just remember that people have been asking the rabbis for millennia. Much of what we think of as laws are actually rules derived from interpretations of the mitzvot.

Since many laws of Halakha are of human devising, do the categories of mishpatim, chokim, and eidot even apply? Or do they belong to the separate category of mishpatim (customs)?

Isn't there a prohibition against modifying the laws in the Torah?

In addition to the kinds of law discussed above, there is also the category of minchagim. Minchagim are customs. They are not laws, but they are widely observed as though they were.

A custom doesn’t have the force of law, although it might be strictly observed by some or many communities. For example, Sephardic Jews eat rice during Passover; Ashkenazim do not.

Many of these customs were universally (or widely) observed. The Shulchan Arukh, compiled in the 16^th century, is an authoritative compendium of Jewish law. But it also includes customs:

• We have a custom everywhere to eat dairy food on the first day of Shavuot.

• One who prays should not stand on a bed, a chair, a bench even if they are not 3 [hand-breadths tall] (Beit Yosef in the name of Mahari"ya), and not on top of any high place, except if one was old or sick [and thus cannot descend], or if one's intent was to make the congregation hear one [i.e.: a chazzan].

Other examples of minchagim:

• Unveiling a tombstone on the anniversary of a death is an American Jewish custom
• Not eating buckwheat (kasha), maize, beans, or rice on Passover is primarily an Ashkenazic (non-Mediterranean European) custom
• Setting a cup for Elijah at the Passover Seder table
• Sending a child outside to knock on the door (Iraqi and Kurdish Passover seder custom)
• The henna ceremony for a Mizrahi (Middle Eastern or North African) or Sephardic (Mediterranean) wedding

If your grandmother did it, but you can't find it in the Torah or Talmud, it's probably a minchag.