On Teaching Halakhah

Jan 27, 2006

This article originally appeared in Ten Da’at 1996, 9:1, pp. 55-62. Reprinted here with permission.

A Prefatory Plea
Although I have given the matter much thought and have some ideas for the resolution of the difficulties I see in the teaching of halakhah, my purpose here is, primarily, to articulate the problems rather than the solutions. For what I seek to do is to try to create some common ground for dialogue in these pages about the problems which face us in Jewish education. For unless we can at least mutually identify the challenges and recognize the similar and dissimilar ways in which each of us perceives them, we will simply continue to talk past one another. Alternatively, we may simply ignore one another, continuing to work in our own dalet amot oblivious to the fact that in our isolation we are reinventing the wheel.

And so, I present the following as a beginning. If it sparks the reader to write a letter to the Editor voicing radical disagreement, or sharing an idea as to how s/he wrestles with similar problems or presenting a solution or two, then our purposes will have been well served.

I. Introduction
We often hear that it is almost a cardinal tenet of Orthodoxy that at the moment of divine revelation at Sinai the Jewish people took their oath of allegiance not so much in statements of belief, but rather in a commitment to action: ‘na’aseh venishma. The primary commitment is to act in accordance with the dictates of the Written and Oral Torahs, and with the interpretations and rulings of the successive generations of accepted authorities. Belief, or at least the ability to articulate the specifics of one’s belief, was generally of lesser concern than practice. Such was the posture expressed by HaKadosh Barukh Hu, Himself, in the rabbinic statement: “Better that My people should abandon (belief in) Me and keep the Torah, for observance of the mitzvot will bring them closer to Me.” 1 So, too, despite the intellectual debate that played itself out throughout the history of Jewish education between the relative merits of study versus action, 2 for all practical purposes, action-as represented by some conformity with halakhah, was always the hallmark of membership within the Jewish community.

In terms or my own educational practice, I always took the teaching of halakhah as a given. Working within an Orthodox school I no more questioned the importance of teaching dinim in my early years as a teacher than I did the teaching of the Torah. And if students were not wholly committed to the practice of halakhah, I was naively convinced that if they only knew more they would surely join the ranks of the Orthoprax. Although my goals have changed, my commitment to the teaching of halakhah has not, and, as I shall explain below, I believe that it has some critical ramifications for modern Orthodox schools in particular.

II. Halakhah and the Orthodox School
Despite the central role of halakhah in Jewish life, and despite its importance for Jewish religious education, there is little evidence to suggest that it is taken seriously within the modern Orthodox day school curriculum. Empirical data is difficult to come by in the fragmented world of the modern Orthodox day school in North America.

My own informal survey began with a conference which I coordinated a number of years ago on the subject of the teaching of halakhah. Of the sixteen schools represented, only two had any formal program in place. Of the remaining schools, most left it up to the individual teacher to speak about inyanei deyoma when (s)he felt it appropriate. Others acted upon the assumption that whatever was necessary for students to know was being learned at home. Still others felt that, unlike other subjects of Jewish Studies, the teaching of halakhah essentially represented a head-on confrontation with students’ personal practices and was “not worth the hassle” or the danger of turning students off. The overwhelming feeling was that, in any event, there were no good curriculum materials available. So much for North America. I was convinced that at least in Israel I would find that more had been done. At the very least, the presence of a national system of religious education engenders the demands for curriculum materials which, in turn, would mean that some coherent thought would have been given the subject. Yet, here too I have been disappointed. In a survey covering representative curricula in the Israeli religious educational system from 1934-1984, Yehudah Eisenberg opines that: “Torah SheBe’al Peh is the most important subject in the mamlakhti dati school.”3

Moreover, of the different subjects that fall under the rubric of Torah SheBe’al Peh, including Mishnah and Gemara, he claims that dinim is the most important since one of the primary purposes is lishmor vela’asot. Nevertheless, it is the most neglected part of the system. 4
This neglect and the reasons often cited for failure to address halakhah more seriously stem from a number of challenges, ones which must be viewed as especially significant if they stand in the way of teaching what so many agree to be a “most important” subject.

III. The Challenges: Symptoms and Problems
A. Halakhah as a Discipline
In the first place, there is the nature of the discipline itself. The history of halakhah and halakhic literature is the back and forth cycle between concise codification on the one hand, and expansive interpretation and explanation on the other. The latter kind of literature is simply too broad and complex to make it useful as a major text of learning in high schools. As such, the texts most favored for the teaching of halakhah are generally those which concisely and precisely lay down the final law, especially those which are somehow related in style or format to the Shulhan Arukh. Indeed, as Professor Twersky has pointed out: “The Shulhan Arukh is the leanest of all codes in Jewish history.” 5 It expunges all elements which are not the fixed, final law. It is thus unconcerned with the judicial process, which includes “exegesis, interpretation, derivation, awareness of controversy.” There is also “the virtually complete elimination of ideology, theology, and teleology. 6 And what is true of the Shulhan Arukh is true to a greater or lesser extent, of many of the other works that are used in its place in schools: Hayyei Adam, Hokhmat Adam, or Kitzur Shulhan Arukh. In a similar vein, the ongoing nature of the halakhic process is such that contemporary issues cannot be addressed exclusively through these traditional works, thus calling for a variety of other texts, including responsa literature, which high school students are ill-equipped to use. The result is that contemporary issues are not addressed at all, 7 or at least not in any organized way. 8

In addition to the unique characteristics of halakhic codes, these texts present many of the same problems for the teacher that are presented by texts in other disciplines within the Jewish studies curriculum, such as: unfamiliar vocabulary; lack of punctuation; reliance upon unwritten principles, and concepts; and the like. The total result is that teachers are, more often than not, left to their own devices, and, in the process, just try to muddle through. The teaching of halakhah is then reduced to an attempt to simply make students learn rules and regulations in such a way that students perceive that the same kinds of intellectual demands are not being made of them that other texts do.
The teachers themselves are no less bored. In the worst of cases, teachers simply throw up their hands in despair and do not cover material or, spend as little class time as possible on the subject, or, as in the case of the yeshivah tikhonit, simply assign students to learn it on their own. 9 For the most part, those who are responsible for teaching halakhah were themselves seldom taught it. 10 And save for a few examples there seems to have been little work done in arriving at a sound methodology for the comprehensive teaching of halakhah and its texts. 11 The one very notable exception on the North American scene is the ground-breaking work of Rabbi Raymond Harari and his staff at the Yeshivah of Flatbush. 12 In short, the teaching of halakhah all too often can be characterized in much the same way as R. Mordekhai Yaffe, the “Levush,” characterized the Shulhan Arukh itself shortly after its publication: “A table well prepared with all kinds of refreshments, but the dishes are tasteless, lacking the salt of reasoning which makes the broth boil and warms the individual.” 13

B. The Modern Orthodox Student
Of course, the texts might be far less a problem if the students learning them were more forgiving. But they are not, and here we come closer to identifying the problem. In the first place, there is the question of commitment, and we are not speaking here only of those who are non-observant. As Scot Berman has written:
Generally, students who attend a modern Orthodox day school have no a priori commitment to halakhah. At best they may observe most mitzvot. Nevertheless, the basis of their commitment is a mixture of rational thinking and considerations of conscience. If it makes sense and is not terribly troublesome, there is a chance they will accept the din. Otherwise, the authority implicit in the traditional acceptance of halakhah carries little or no weight. 14

Suffice it to say for now that the question of the acceptance of the authority of the text raises a potentially unshared assumption of teacher and student in the classroom. No matter how tempted the teacher may be to push on; no matter how much the students may understand some of the language used; confrontation or dismissal may be inevitable. Putting it more bluntly: “Teaching what is theologically proper in a context in which it is incomprehensible – is not teaching.” 15 If Dr. Hayim Soloveitchik is correct that we live in a time when religious authority is transferred to texts and religious authenticity is enshrined in texts, then the fact that some of our students challenge those texts becomes all the more problematic. 16

The articulation of this problem and some directions for its resolution have been dealt with by Professor Michael Rosenak. 17 The tensions and problems presented for our students by the explicit educational theology so often associated with Orthodoxy seem especially applicable to the teaching of halakhah. If it is true that “everything in the Written and Oral Torah is in principle equally relevant, because what is obligatory is what is relevant,” 18 then that is especially true in a discipline where the impression is given that all of the details are equally important in a way that they are not in other subjects. The questions of self-education versus indoctrination, of individuality versus conformity, teaching belief versus behavior, and the like, are all ones that must be considered if not resolved. Even acceptance of an educational philosophy of na’aseh ve-nishma requires that there be some component of nishma after a commitment has been made to observance.

If twenty-first-century students must be given the opportunity to wrestle with the question of what ancient practices mean to them, this is especially true in the modern Orthodox school with its emphasis on the religious legitimacy of studying general culture. 19 Like other Orthodox Jews, the modern Orthodox are judged and categorized by the extent to which they keep halakhah. 20 They themselves use halakhah as a way not only of defining themselves and their Orthodoxy but of measuring themselves up against other Orthodox Jews, especially those to the right. Not surprisingly, it is one of the major planks in the polemic about the definition of what is and is not normative within Jewish traditional practice. 21

But there is also a perception that is borne out by some empirical research to suggest that “centrists” are less punctilious in their observance of normative obligations than those “traditionalists” to the right. 22 They also may exhibit less religious fervency about traditional beliefs. 23 Whatever the causes for these weaknesses (and this is a critical area where more research is indicated), one is tempted to explain them, at least in part, by citing Peter Berger’s observation that: “Modern consciousness is not conducive to close contact with the gods.” It is certainly the cause that is blamed by the movement’s leaders. Dr. Norman Lamm, for example, has related the lack of serious observance to “Victor Frankl’s ‘noogenic vacuum’ in the life of contemporary man. It boils down to a metaphysical pain: the lack of transcendent anchorage or roots for all values and all of life.” 24 And if this is true of the adults in the community then it is almost certainly true of their children. Hence one finds numerous expressions by community leaders about the lack of religious fervor and the carelessness about mitzvah observance among modern Orthodox students in the areas of ethics, prayer, and basic blessings. 25 Whatever the causes for all of this, any teaching of halakhah must take this reality into account.

C. The Modern Orthodox Curriculum.
Finally, lest one imagine that the challenges only come from the outside, Rabbi Eliach of the Yeshivah of Flatbush warns us that the problem is articulated in the subject matters of the modern Orthodox day school as well: “We teach our students the importance of authority in that we have to accept the rulings of the Sages and of the poskim (codifiers). Whatever is written in the Torah cannot be questioned…; but we also teach literature, history, and science in which any authority may be challenged.” 26

In short, all learning takes place within a context. The context of twentieth century post-modernity presents its particular challenges for religious man in general, and, in the present context, the modern Orthodox Jew, in particular. But our students not only face these challenges from the outside, they are also confronted with them from within their own institutions, which see the presentation of those challenges as a part of their raison d’etre. To challenge students in this way without addressing that challenge and providing some direction for its resolution is fraught with dangers. The teaching of halakhah, consisting as it does of the teaching of the commandments geared as it is to the very question of actions and beliefs in day-to-day life, seems particularly suited to the task. The question to be answered is, how can it be taught?

1 Talmud Yerushalmi, Hagigah 1:7.
2 Dov Rappel: “Talmid Hakham ve-Hassid; Shenei Idealim Hinukhiyim beYisrael,” HaHinukh haYehudi biGevurotav (Jerusalem, 1987), 103-113.
3 Yehudah Eisenberg: Hamishim Shenot Levatim (Jerusalem, 1988), p. 9.
4 Ibid., p.20.
5 Isadore Twersky: “The Shulhan Arukh; Enduring Code of Jewish Law,” Judaism 16:2 (1967), p. 149.
6 Ibid., 152,153.
7 See, for example, some of the complaints of Yitzhak Rekanti: “LeBa’ayat Limmud Halakhah BeYeshivah Tikhonit,” Niv HaMidrashiyah (Spring-Summer, 1971), 181-187.
8 As Eisenberg notes, when the novelty of the responsa data bank at Bar Ilan University led to the creation of curriculum materials for the teaching of Talmud, the medieval halakhah le-ma’aseh responsa on any particular issue that arose in the sugya were incorporated into the curriculum. Unfortunately, it seems as if the availability of the responsa determined which sugyot were to be studied, a clear case of the tail wagging the dog. In a similar vein, there are those who advocate teaching “relevant” or “hot” topics without realizing that “relevant” does not necessarily mean appropriate. As Professor Michael Rosenak has said: “Just because it is interesting does not mean it mandates commitment.”
9 Rekanti, op. cit. Also see R. Yaakov Reinitz: “HaYeshivah HaTikhonit; Etgar Hinukhi VeLimmudi,” Shema’atin 26:7 (1970), 58-62.
10 Eisenberg, p. 19, suggests that this is the reason that many teachers cannot teach responsa literature.
11 Some notable published attempts in the field are: Raphael Shinlar: Derakhim Ve’Emtza’im BeHora’at Halakhah Jerusalem, (1981); Esther Maizlish: “Gishah Hadashah LeLimmud HaHalakhah, ” Bisdeh Hemed (Tevet, 5738), and “Shabbat” (Iyar-Sivan, 5742); Michael Tobin: “Yissum Shitat de Bono BeHora’at Mitzvah 338 BeSeifer HaHinukh,” Shema’atin 83 (Tishrei-Kislev, 5746).
12 A description of some units can be found in Raymond Harari and Joel Wolowelsky: “Developing a Yeshiva High School Curriculum in Halakhah,” Ten Da’at 2:2 (Winter, 1988), 16-18. While this material addresses the subject material, there are few guidelines for how, if at all, to address affective concerns.
13 Twersky, op. cit., 155.
14 Scot Berman: “Talmud; Text and Talmid, The Teaching of Gemara in the Modern Orthodox Day School,” Ten Da’at 5: 1 (Fall, 1990), 18.
15 Michael Rosenak: Teaching Jewish Values; A Conceptual Guide (Jerusalem, 1986), 76.
16 Hayim Soloveitchik: “Rupture and Reconstruction; The Transformation or Contemporary Orthodoxy,” Tradition 28:4 (Sumer, 1994), 64-130. The implications of the observations in this paper for all modern Orthodox education are worthy of more study.
17 Michael Rosenak: Commandments and Concerns; Jewish Religious Education in Secular Society (Philadelphia, 1987), especially chapter 7.
18 Rosenak: Jewish Values, 37.
19 Jack Bieler has already studied the educational implications of this issue for integration within the day school. See Jack Bieler: “Integration of Jewish and General Studies in the Modern Orthodox Day School,” Jewish Education 54:4 (Winter, 1986).
20 See, for example, Samuel C. Heilman and Steven M. Cohen: Cosmopolitan and Parochials; Modern Orthodox Jews in America (Chicago, 1989), chapters 1-2.
21 See, for example, Chaim Dov Keller: “Modern Orthodoxy; An Analysis and a Response,” The Jewish Observer 6:8 (1970), 3-14; reprinted in Reuven Bulka: Dimensions of Orthodox Judaism (NY, 1983), 253-271, especially 256-262.
22 Heilman and Cohen, op. cit., chapter 2.
23 Ibid., chapter 3.
24 Norman Lamm: “Torah Education at the Crossroads,” Ten Da’at 4: 1 (1989), 5. So, too, a leading academic, Shnayer Leiman, has observed that: “No traditional aspect of Judaism has been so eroded by the modern American ethos as its spirituality. Introspection, a practice highly valued by medieval Jewish ethicists, is foreign to the contemporary Jew.” [“Symposium – The State of Orthodoxy,” Tradition 20:1 (1982), 46.]
25 For examples of the ethical, see Irving Levitz: “Crisis in Orthodoxy; The Ethical Paradox,” in Bulka, op. cit., 380-386. Steven Riskin: “Inculcating Ethical Ideals Within Our Students,” Tradition 19:3 (1981), 234-237. Norman Lamm (op. cit.) has spoken of seeing yeshiva high school students at prayer where “the prayers roll off their lips f1uently-and fall to the floor, shattered and splattered.” So, too, he bemoans the lack of religiosity and the failure to recite blessings before eating. David Berger, too (“Symposium,” 10), remarks on their failure to perform netillat yadayim or to recite berakhot.
26 David Eliach: “The Jewish Day School; A Symposium,” Tradition, 100.