Spirit and Nomos
The Benedictine priest Gaudenty Pikulski served as one of the confessors for the Frankists, an eighteenth-century Sabbatian offshoot, during their mass conversion to Christianity in 1759. Soon after this event Pikulski published a historical account of the Frankists, referring to them as the “Contra-Talmudists.” Surprisingly, he claimed that Frankism was not a new phenomenon, nor was it simply a kind of heretical Jewish sect. In his 1760 report Pikulski instead argued that Frankism was an expression of the true, ancient, and pure secret Jewish theology that had been confronted and suppressed by the rabbinic establishment for thousands of years. He noted:
Today's Contra-Talmudists existed in Israel even before the birth of Christ, Our Lord, though they were called by different names, according to their time. At the beginning they were called the “kabbalists” [Kabalistami] because they explained the Holy Scripture mystically, through the teachings of kabbalah; they were good and understood the mysteries of the Old Testament without any error [i.e., in complete accord with the Christian teachings]. … Later, when the sages of the Jerusalem Synagogue started to favour their Talmuds, traditions, and laws above the Divine Law, which misled the Jewish masses, the kabbalists opposed them and they came to be called the Contra-Talmudists.Footnote 1
Pawel Maciejko has recently demonstrated that Pikulski's distinction between these two contradictory Jewish strands was by no means novel. Pikulski framed the Frankist affair within a well-known medieval Hebraist pattern, one that was outlined in different variations in the influential works of Raymond Martini and Johann Reuchlin, as well as the many who followed in their footsteps.Footnote 2 This approach claimed to distinguish between the secret, mythical, and mystical original Jewish tradition and the vulgar, hyperlegalistic talmudic culture. This distinction had an important role in establishing and justifying intellectual movements like the Christian Kabbalah, for it suggested that these mystics were actually recovering the true, essential Christian truths preserved in this theosophical school. This separation also provided a convenient framework for conducting a social, intellectual, and political affair like the Frankist dispute, demarcating clean lines between the “nomian” rabbinic community (the Talmudisten) and the mystical Zoharisten or Contra-Talmudists.Footnote 3
The perceived rift between law and spirit has proven to be more than grist for medieval and early modern Christian Hebraists.Footnote 4 The impact of this dichotomy has been felt across many areas in the study of Jewish mysticism, but its influence on the academic study of Hasidism has been particularly acute.Footnote 5 Indeed, the problematic assumption that legal obligation (as expressed in allegiance to Halakhah) and spirituality exist in intractable and fundamental tension with one another has undergirded scholarship of Hasidism since the inception of the field. Yet a closer reading of the historical sources reveals that in Hasidism, nomos, eros, and mystical piety often merged together in distinctive ways, and that hasidic texts represent an arena in which new forms of Jewish legal thought, method, and discourse have emerged. The present study explores the complex interface between hasidic spirituality and Halakhah through three different heuristic lenses, each provided by clusters of sources united by a shared theme or central question. Each of these groups of sources will reveal an alternative to the influential—but simplistic—binary division between the law and the spirit. While there is no one single hasidic practice or theory of Halakhah, the creative fusion of legal traditions, mystical inclinations, and social organization found in these sources is uniquely hasidic.
The first group of texts will demonstrate the various ways in which hasidic groups internalized Lurianic ritual culture, as individuals and especially as a community. This process, in which legal and mystical sources blend together, allowed hasidic writers to use praxis and law as a claim to continuity with earlier forms of Kabbalah. The second collection of hasidic sources engage with a fascinating issue of specific jurisprudence, namely hasidic discussions of formulating and deciding the law by means of the Divine Spirit (ruaḥ ha-kodesh). This type of divine revelation was, of course, embodied in the charismatic figure of the hasidic leader, whose personal inspiration could at times lead to rewriting the law.Footnote 6 Finally, a third thematic cluster examines a surprising array of hasidic sources on the possibility of individualized law. These include teachings on subjective aesthetics of legal scholarship or decision-making, as well as the diachronic transformation of Halakhah across generations, which reflect the different “soul-roots” of the law's mystical adjudicators. These three issues or themes are examined in light of their differing theoretical, theological, and social contexts, which are well documented in hasidic legal sources and literature. And subsequently, as we shall see, each of them sparked its own lively public conflict.
Writing the History of Hasidism and Law
In 1938 Gershom Scholem, a founder of the modern study of Kabbalah, gave a series of lectures on the historical development of Jewish mysticism. These addresses were later assembled and published as Major Trends in Jewish Mysticism, which became the cornerstone of the academic study of the subject and remains a work of immeasurable influence. Scholem devoted an entire lecture to Hasidism, describing it as a spiritualist movement that sought a renewal of the mythical and mystical elements of Judaism.Footnote 7 In this chapter he articulated a fundamental contrast between the mystical life on one hand, and normative rabbinic law on the other, to such a degree that the rise of one is predicated on the fall of the other:
After an interval of a hundred years, during which Hasidism as a whole, apart from the solitary figure of Rabbi Shneur Zalman of Ladi,Footnote 8 developed independently of the rabbinic tradition, there occurred a revival of rabbinic learning, chiefly under the influence of the Rabbi [Menahem Mendel] of Kotzk…. But important as these aspects of later Hasidism no doubt are, they certainly represent a departure from what is new and original in Hasidism….
The miraculous thing about it all is the fact that Hasidism did not conflict much more sharply with orthodox Judaism than it did; and yet everything seemed to move towards a mortal struggle. The personality of the Zaddik, its interpretation by the Hasidic writers, their insistence upon his supreme religious ration, of a medium of revelation—all this fairly compelled a clash with the recognized religious authority of rabbinic Judaism.Footnote 9
Yet this “miraculous thing” is far less surprising when some of Scholem's assumptions concerning the essential relationship between mysticism, myth, and law are abandoned, and with a close historical inquiry regarding the specific context of the hasidic movement itself.
Martin Buber and Gershom Scholem fiercely debated many issues regarding the study of Hasidism, ranging from the proper source materials to theological questions like the attitude of the hasidic masters toward the physical realm.Footnote 10 It is noteworthy, however, that these two scholars agreed on this point, each seeing in Hasidism a type of spirituality that is naturally and unavoidably poised to conflict with the law.Footnote 11 For Buber, the ethos of Hasidism is an example of the larger dichotomy drawn between religion and religiosity, or the tension between the structures of formal Judaism and the heart of Jewish spirituality:
Religiosity is man's sense of wonder and adoration, an ever anew becoming, an ever anew articulation and formulation of his feeling that, transcending his conditioned being yet bursting from its very core, there is something that is unconditioned…. Religion is the sum total of the customs and teachings articulated and formulated by the religiosity of a certain epoch in a people's life; its prescriptions and dogmas are rigidly determined and handed down as unalterably binding to all future generations, without regard for their newly developed religiosity, which seeks new forms. Religion is true so long as it is creative; but it is creative only so long as religiosity, accepting the yoke of the laws and doctrines, is able (often without even noticing it) to imbue them with new and incandescent meaning, so that they will seem to have been revealed to every generation anew, revealed today, thus answering men's very own needs, needs alien to their fathers.Footnote 12
Echoes of this juxtaposition of law and spirit are present with slight variations in the works of other twentieth-century scholars,Footnote 13 including Rivka Schatz-Uffenheimer, a close disciple of Scholem, who downplayed the centrality of Halakhah in hasidic sources in her attempt to compare them to the works of quietistic Christian mystics.Footnote 14 The division of law and spirit also informs the work of contemporary scholar Arthur Green, who readily acknowledges Buber's influence on his interpretations of hasidic texts and theology. Green has argued that some of the early hasidic masters explored the theoretical possibility of spiritual service outside of the framework of Jewish law.Footnote 15 Their teachings, he suggests, articulated a new paradigm of religious life in which the ideal was to serve God beyond the confines of the commandments.Footnote 16 Although the hasidic leaders defended the importance of the law, Green suggests that these yearnings for a spirituality unbridled by the specific norms of Jewish law should not be dismissed as mere fancy.Footnote 17
Few modern scholars have engaged the relationship between hasidic spirituality and the performance or codification of Jewish law.Footnote 18 Many continue to assume a model in which pneuma inspires the mystic to new levels of intimacy with God, while nomos restrains and binds him to the norms of his community.Footnote 19 The strain between these two poles can equally be described as fraught or fruitful, both versions assuming that the spiritual quest and the obligatory practices demanded by Halakhah pull the seeker in opposing trajectories.Footnote 20 This framing of an irrepressible tension between the law and the spirit is not entirely without basis in certain historical records. The polemical works of the Mitnagdim reveal biting criticisms of the Hasidim for their lack of study and disdainful attitude toward scholars, perceived legal infractions, and even for using personal charisma and mystical authority in making legal decisions.Footnote 21 Indeed, this backlash from the Mitnagdim may have been a factor in inspiring the Hasidim to reinforce their study of Halakhah as well as their ritual observance, without tempering their powerful critique of prideful and narcissistic scholars.Footnote 22 But Halakhah as such and adherence thereof should not be misconstrued as the central flashpoint of controversy. The primary infraction for which the Hasidim were condemned was not their abrogation of rituals or customs, but rather the fact that they changed their practices—deviating as communities as well as individuals.
Many of these revolutionary hasidic figures were not only ecstatic spiritual leaders, but at the same time served as an integral part of the ancien régime of Halakhah—they were official community rabbis, authors of legal texts, poskim (legal adjudicators), and authors of original responsa.Footnote 23 This includes R. Levi Yiẓḥak of Pinsk and Barditshev (ca. 1740–1809);Footnote 24 R. Avraham Yehoshua of Apt and Jassy (ca. 1748–1825); R. Pinḥas Horowitz of Frankfurt (1731–1805)Footnote 25 and his brother R. Shmuel Shmelke Horowitz (1726–87), who headed the courts of Ryczywół, Shineva, and Nikolsburg;Footnote 26 as well as R. Yisrael ben Shabetai of Kozhenits, a legal scholar, though he was employed not as a rabbi but a preacher (maggid).Footnote 27 R. Shneur Zalman of Liady was a mighty scholar of Jewish law in addition to a charismatic leader and sophisticated mystical theologian; his summaries of the Halakhah were posthumously published as the influential Shulḥan ‘arukh ha-Rav.Footnote 28 As the hasidic movement spread and matured, it became increasingly common for the same individual to fulfill the roles of the hasidic rebbe and the posek. By the nineteenth century it was not all strange to for a tzaddik to function as both a communal spiritual leader and a legal adjudicator.Footnote 29
Scholars have assumed that the early hasidic masters left behind relatively little writing on legal subjects, and that the few remaining texts are of minimal consequence. Closer inspection, however, reminds us that many of those involved in early hasidic circles were deeply immersed in the world of Halakhah.Footnote 30 Delving into the rich legal discourse produced by these leaders, including practical decisions as well as broad conceptual and theological interpretations of the essence of Halakhah, will allow us to reevaluate the basic relations between the law and the spirit, between nomos and eros, and hasidic mysticism and legal jurisprudence.
Hasidic Halakhah as a Lurianic Outgrowth
One tack for exploring the relationship between hasidic theology and Halakhah emerges from a perception of continuity, seeing Hasidism as a contiguous branch from the beloved ethos of Lurianic Kabbalah. The ritualization of Lurianic Kabbalah, the processes through which the highly esoteric kabbalistic ethos shifted toward a theology expressed through diverse legal and religious practices, was a central phenomenon among European Jewry in the seventeenth and eighteenth centuries.Footnote 31 Under attack by the Mitnagdim for violating traditional customs and even for transgressing the law,Footnote 32 some early hasidic leaders grasped hold of this Lurianic precedent and attempted to present their community as an additional stage of this process.Footnote 33 In this light, aspects of eighteenth- and nineteenth-century Hasidism may be understood as a legal ideology of internalization through which the practices of Lurianic literature became merged with the Halakhah of particular European Ashkenazic communities. More specifically, in Hasidism we find that Lurianic or Ashkenazic pietistic customs once restricted to individuals were transformed into central elements of the communal hasidic ethos.
Apologetic declarations of this kind appeared immediately in the wake of the first bans against the Hasidim in 1772. In that same year R. Shmuel Shmelke of Nikolsburg penned a fiery and polemical letter to the community of Brody. This source bespeaks an author incensed by the accusation that the Hasidim were innovative or revolutionary; Shmuel Shmelke defends the Hasidim as bastions of tradition who strive to fulfill the law to the utmost degree. At the same time, he argues against the tradition of restricting Lurianic customs to a well-defined group of elites:
Anyone who wishes to make himself [i.e., act like] a scholar [talmid ḥakham] may do so.Footnote 34 One who sits and studies, who has a facility for and reputation inFootnote 35 the study of Talmud, Rashi and Tosafot, setting aside time for study whenever he can—[this includes] those who fear God even though they are not widely esteemed—such a one is given permission to worship [God] in the service of the heart [i.e., prayer] with all of his might, accepting all of the possible stringencies, in [matters of] clothingFootnote 36 or the offering he brings in the house of God [i.e., which liturgical rite he follows]. One does more, and another does less—[but both are praiseworthy] as long as the heart is directed [to heaven]. [These pious actions] are accepted as a pleasing scent before the His Glory….Footnote 37 The truth is as they have said, “Who knows how to distinguish between different people [Ecclesiastes 6:8], creating boundaries above,Footnote 38 separating between a famous scholar and someone unknown, between a youth and an elder.” “God is close to the brokenhearted and will deliver those of crushed spirit” [Psalms 34:19]—without distinction.Footnote 39
R. Shmuel Shmelke's letter opens the ranks of pietism beyond the scholarly or rabbinic elite, although we should not misinterpret his goal as extending these practices to the masses without exception. His more evenhanded approach recalls the mystical fellowship that crystallized around R. Dov Ber Friedman (known as the great Maggid) of Mezritsh in the 1760s, which included both scholars and talented or charismatic spiritual teachers.Footnote 40 R. Shmuel Shmelke argues that devotion and commitment, not pure intellectual acumen, should be the determining factors in giving people free reign to accept Lurianic stringencies.
Rabbi Shneur Zalman of Liady voiced a similar argument in a 1797 letter to his followers in Vilna. In this missive he castigates the great Rabbi Eliyahu of Vilna (popularly referred to as the Gaon or “genius” of Vilna, d. 1797) for his lack of faith in the authenticity of the received Lurianic corpus.Footnote 41 R. Shneur Zalman defends a hasidic practice (in this case, raising up the holy sparks) by grounding it in the authority of Lurianic Kabbalah, claiming that he and his community—and not the Lithuanian scholars—are the true inheritors of this authentic mystical tradition.Footnote 42 He grounds this claim in a two-pronged attack on R. Eliyahu's approach to Lurianic Kabbalah. R. Shneur Zalman accuses the Gaon of Vilna of believing that only a portion of the Lurianic teachings were divinely revealed. Furthermore, he cites R. Eliyahu of Vilna's assertion that the extant corpus of Lurianic writings was textually corrupt and thus of diminished authority. Against the skeptical posture of the Mitnagdim, R. Shneur Zalman portrays the Hasidim as the genuine followers of Lurianic Kabbalah. Their fidelity is manifest in theological tenets closely tied to devotional practices and legal obligations.
Sources such as these offer a new way of approaching the synthesis of Halakhah and the various realms of Lurianic culture. It is often assumed that this merger of intellectual and social worlds always leads the hasidic adjudicator toward ḥumrah (stringency),Footnote 43 but conceiving of hasidic Halakhah as turning blindly toward a strict ruling in all cases, including those connected to Lurianic Kabbalah, occludes the complexity of hasidic legal thought. Scholars have demonstrated that aspects of hasidic spirituality were a marked departure from the severe penitential pietism that characterized much of east European Jewish practice.Footnote 44 Some hasidic texts refer to stringencies as a positive expression of the Jewish community's love for the Divine.Footnote 45 But many other hasidic sources refer to ḥumrah as a crushing burden that squeezes the life and vitality out of religious practice,Footnote 46 or as a misguided and dangerous expansion of the genuine legal obligations levied by God and the classical rabbinic sages.Footnote 47
An emblematic perspective on stringent practice, indicative of the stance taken in many other early hasidic sources, appears in the following passage from a collection of teachings that likely originated in the Maggid's circle: “When one devotes his mind to the blessed Creator, God will send that person thoughts regarding what he must do, as it says, ‘Cast your burden upon God, [and He will sustain you]’ [Psalms 55:23]. If this person truly wants, desires and longs [to perform] some pious practice [davar ḥasidut], presumably it must be necessary, for God has delivered it into his thoughts.”Footnote 48 This hasidic source identifies the inclination toward stringency as a possible instance of divine revelation.Footnote 49 A worshiper should adopt a certain pious practice not because strictness is inherently valuable, but because his desire to fulfill a stringent interpretation of a commandment may disclose an immediate divine command given specifically to him. Thus the question of whether or not to follow such a stringent interpretation must rest solely upon the worshiper and his inner devotional and spiritual sensibility; it cannot be cross-applied to all moments or an entire community.
Yet another teaching included in this same collection exhibits true distrust of stringencies.Footnote 50 This homily suggests that the Evil Inclination may seduce a worshiper by claiming that he has committed a grave transgression, although he has done nothing more egregious than failing to adhere to a stringency. The misplaced guilt ensuing from this clever ruse will then lead him into despondency and eventually even into sin.
The blanket notion of “hasidic stringency” and the conceptual paradigm it belies do not adequately allow for the many nuanced attitudes in Hasidism toward ḥumrah and other forms of legal stringency or supererogatory piety. Nor can this idea account for the varied tensions and the cultural changes that followed in the wake of the literary and intellectual fusion of kabbalistic sources into hasidic nomian discourse.Footnote 51 The internalization of knowledge external to purely legal sources is, in our view, an enduring characteristic of Ashkenazic Halakhah and one of the sources of its great dynamism.Footnote 52 Ashkenazic Halakhah integrated medieval demons, communal customs, various types of magical literature (such as the Baraita de-niddah, the “Testament” of Rabbi Judah the Hasid, and so forth), the fluid body of texts known as the Zohar, and Lurianic ritual into the ever-expanding world of Jewish legal writing and thought.Footnote 53 In this sense hasidic Halakhah should be seen as a unique development within the tradition of Ashkenazic Halakhah. More specifically, hasidic attitudes toward and formulation of Halakhah are an additional stage in the continuing and complex impact of Lurianic Kabbalah on Halakhah that began in the late sixteenth century.Footnote 54 Thus the claims of continuity adumbrated by many early hasidic thinkers, raised as a bulwark against the attacks of the Mitnagdim, reflect an important aspect of the development of hasidic legal practice.
The elastic vitality of hasidic Halakhah as an outgrowth of Lurianic Kabbalah—as well as its weaknesses—may be demonstrated by examining the stormy controversy between the hasidic leader Rabbi Moshe Teitelbaum (1759–1841), head of the Jewish court in Sátoraljaújhely (northeast Hungary), and the well-known rabbi Moshe Sofer (1762–1839; known as the Ḥatam Sofer), based in the Hungarian capital city of Pressburg.Footnote 55 In the 1830s R. Teitelbaum defended the widespread hasidic observance of kabbalistic practices that had once been the prerogative of the elite, arguing that hasidic communities embody and are indeed founded on a strict legal obligation to the ethos of Lurianic culture. The case at hand involved the hasidic custom to refrain from wearing any garments made from wool, lest one unwittingly adorn himself in clothing with a forbidden mixture of wool and linen.Footnote 56 Teitelbaum, who emigrated from Poland and brought with him new hasidic rituals, writes the following:
In the land of Poland, anyone whose heart has been touched with the fear of God will not wear woolen clothing. From the time that I arrived in this land many have stopped wearing woolen garments, and blessing shall come upon them. We cannot, however, force the masses not to wear woolen garments.
Regarding the matter of one leading the prayer servicesFootnote 57 while wearing woolen clothing: in truth, if there is a forbidden mixture [of wool and linen] [sha‘atnez] in the garment he is wearing, God forbid … it will greatly damage his prayers even if he is unaware of it.Footnote 58 In addition to the fact that this is a biblical prohibition, it includes great impurity … since the power of the Satan, who is exceedingly strong and powerful [‘az], will be drawn over his clothing … and how can [divine] compassion be aroused for the community [through the leader's prayers] when he is dressed in the power of the Other Side [sitra’ ’aḥra’]?!…
Now it may be that the community wishes to establish that, although they wear woolen garments and are not concerned about a [forbidden] mixture, the one leading the services must nevertheless refrain from doing so while wearing wool. He is their emissary and must arouse the heavenly compassion on behalf of the community, so it is fitting to be more concerned. This is surely a good enactment, and they will be blessed.
If the community is unconcerned because they and the majority of the householders do wear woolen clothing, and a single individual wishes to protest, I do not think [that this is permissible]. For according to the law, if they pray in a synagogue that follows the Ashkenazic and not the Lurianic rite, the individual does not have the power to protest or establish this sort of new enactment; even if it is good thing, he does not have the power.
But if, however, they pray according to the Lurianic rite, which is the liturgy followed by the Hasidim [ba-ḥasidut], then the law is with the individual [who demands that the prayer leader be dressed in garments other than wool], since it is known that all those who pray according to this liturgy have accepted upon themselves to flee from the ninety-nine measures of permitted things so as not to be damaged by even one measure of something prohibited. [Therefore] they do not wear wool.
To have someone dressed in wool who leads the prayersFootnote 59 in a quorum [minyan] that follows the Lurianic rite is unheard of, since his garment and his prayers contradict one another! [Instead of compassion,] he will surely arouse a powerful accuser [against them].Footnote 60
R. Moshe Teitelbaum describes a community of devotees who have formed a voluntary association of piety defined by their shared allegiance to Lurianic liturgy. He argues that this loyalty necessarily extends to other Lurianic customs, in this case the added stringency of not wearing woolen garments. R. Teitelbaum admits that a community cannot be forced to accept this custom by a single pious individual among their ranks as long as they follow the Ashkenazic liturgy. But if they do elect to pray according to the Lurianic rite, as was the custom in hasidic communities, even a single individual can demand from the prayer leader not to wear wool. In the following passages Teitelbaum adds that even a community following the Ashkenazic rite would do well to prevent anyone wearing wool from leading the prayers, since such an individual serves as the temporary embodiment of the community and is charged with inspiring divine mercy on their behalf.
At the same time this question was also posed to the Ḥatam Sofer.Footnote 61 The inquirer seems to have claimed that the Sephardic (i.e., Lurianic) rite is so exalted that one dressed in woolen—and thus suspect—garments is unworthy of serving as prayer leader. The Ḥatam Sofer answers that most people did wear wool, and that although one who did not wear wool garments was surely called “saintly” (kadosh), he vehemently condemns the claim that people in woolen clothing cannot lead the prayers as entirely baseless:
Thus have I received from my teachers, the great Rabbi Natan Adler, and [R. Pinḥas Horowitz], the author of Sefer ha-fla'ah and master of all the exile, of whose words I drank and from whose source I was hewn: all of the liturgies are equal to one another. All that is in one of them is in the others, and we just do not know how to see it. We pray according to [the text given by] those who established the prayers and the liturgical rites, for all of them are directed toward a single goal; this is like “a single message that reached several prophets, but no two prophets prophesizes in the same style.”Footnote 62 The various liturgies differ only in style, but they all ascend to the same place. But the light of God, the holy Ari [Isaac Luria] came along and weighed, studied and established [the text of the liturgy], for he knew the essence the things [tokhen ha-devarim]. He put everything in its place in his prayer book, revealing the hidden depths of the Sephardic liturgy. However, he himself was Sephardi, and if he had been Ashkenazi, or if a person like him had been found among the Ashkenazim, he would have done the same with the Ashkenazic liturgy.
In these latter generations, those who have come into the mystery of God, it is enough for they who understand the words of the holy Ari. But we do not know how to bring these things forth from the Ashkenazic liturgy. Therefore it is good for them to pray from the Sephardic prayer book, in which the place of the [heavenly] palaces and yiḥudim are written according to the holy Ari. Why should they pray with Ashkenazic rite, for although everything [i.e., the supernal mysteries] is alluded to in it as well, and the one who prays in accord with the one who established the liturgy … nevertheless it is more comfortable for them to pray in accord with [the rite] that they understand than to use the [ordinary] liturgy.
Therefore my pious teacher R. Natan Adler used the Sephardic rite from the Ari's prayer book when leading [the services], as did my teacher the author of Sefer ha-fla'ah, but [even so] it was only they who would pray according to the Lurianic rite. The others gathered together in the quorum used the Ashkenazic liturgy.Footnote 63
The Ḥatam Sofer continues by affirming that most individuals actually had a legal obligation not to change the liturgical customs inherited from their ancestors, a principle with which he claims even the Ari must have concurred. Only exceptional persons initiated into the secrets of Jewish mysticism should follow the kabbalistic rite; all others should continue to employ the traditional liturgy.Footnote 64 Bringing his discussion back to the original question of whether or not one must accept the interdiction of woolen clothes when leading the prayers according to the Lurianic liturgy, his answer is resoundingly negative. The Ḥatam Sofer then gives a number of examples of neglected legal precepts to which people should pay more heed when serving in a public role in the synagogue, such as the prohibition of eating new grain before the ‘omer offering is brought (ḥadash),Footnote 65 and the legal writ allowing the rabbinical courts to absorb private debts during the Sabbatical year (prozbul). In these matters one should try to fulfill the opinion of all the various adjudicators of Halakhah, but there is no reason to extend oneself by not wearing garments of wool.
Closer inspection reveals that this ostensibly traditional responsum in fact presents an unusual and highly creative chain of argumentation. The Ḥatam Sofer does not seek to undercut the authority of Luria, something that would have aroused ire in traditional nineteenth-century rabbinic circles. He does, however, argue against a community adopting the Lurianic stringency of not wearing woolen garments by undermining the uniqueness of Lurianic liturgy. The Ḥatam Sofer levels the playing field by suggesting that all liturgical traditions include the same mystical power. Isaac Luria revealed the concealed depths of the Sephardic liturgy, that of the community in which he lived and taught, but the equally potent dimensions of the Ashkenazic rite remained invisible. This cleverly reverses the ordinary frame, for according to the Ḥatam Sofer it is the Ashkenazic liturgy that is to be seen as the more esoteric.
In another responsum the Ḥatam Sofer offers a different reason as to why entire communities should adopt neither the Lurianic rite nor the associated stringencies and customs:
No two hearts are alike in their love for God…. If the piety of an entire community of people is expressed by a single custom, it itself becomes “a law for Israel” [ḥok le-Yisra'el] and dead routine. Such a thing is impossible. Therefore I saw that my teachers, the great [author of Sefer] ha-fla'ah [R. Pinḥas Horowitz], my teacher the pious Natan Adler, and the pious Zalman, did not leave a community behind. And I hereby witness that I never heard the name of the Zohar pass through the lips of these holy ones of Israel during any homily….Footnote 66
The Ḥatam Sofer closed with the now-familiar affirmation that the various different liturgies were essentially the same, although the hidden mysteries of the Ashkenazic rite have been forgotten. Thus those who wish to achieve mystical uplift in prayer should follow the pattern established by the Ari, who paved the way in clear steps, but this fact in no way suggests that the Lurianic liturgy is superior or even qualitatively different than any other.
Here the classic Ashkenazic conservative legal figure, famous for his demands to follow tradition unflinchingly, criticizes the institutional hasidic movement precisely for its lack of spontaneity and its overly uniform and rigid outlook on Halakhah.Footnote 67 The Ḥatam Sofer argues that the treasury of kabbalistic knowledge must be kept in a loose and flexible state within the legal sphere, and it could not be allowed to crystalize into a formal or communal obligation. Only thus can the spiritual realm be preserved as a fruitful and multifaceted source of inspiration, expressed in an individual manner through personal devotion of the different members of the community. The individual must lie at the heart of true piety, for, as Sofer suggests, “no two hearts are alike in their love for God.”
Holy Spirit and Scholastic Formulation
Not all hasidic conceptions of jurisprudence were as normative as the one described above. A renewed belief in the accessibility of the Divine or Holy Spirit (ruaḥ ha-kodesh) is clearly visible in the context of early Hasidism. Rabbi Pinḥas Shapira from Korets (ca. 1726/28–1790), for instance, is credited with saying that the Divine Spirit actually pursues every person, seeking to reside within him.Footnote 68 A teaching in the name of his contemporary Rabbi Dov Ber of Mezritsh claims that it is easier to attain the Divine Spirit in the present exile than it was in the time of the temple.Footnote 69
But was this emergent focus on the Holy Spirit simply a theoretical way of explaining innovation and personal inspiration, a devotional concept never intended to be manifest in practical cases of Halakhah?Footnote 70 It now seems clear that the intensified cultural perception of the presence of the Holy Spirit indeed left its mark on the inner workings of Jewish law. Official testimonies (geviyat ‘edut) against Hasidim from 1773 record a hasidic maggid (preacher) and leader who permitted his wife's menstrual stain by means of a lottery. Similarly, he allowed the eating of the flesh of an animal suspected of being a treifah (a nonviable and therefore nonkosher animal), relying on divine inspiration to justify his assertion that the animal's soul was in need of repair and hence could not be treifah, as the simple reading of the law would imply in this case.Footnote 71
Of course, it may be tempting to dismiss these testimonies as biased, but internal hasidic traditions describe similar occurrences. For example, Shivḥe ha-Besht preserves a strange legend in which the Besht (Ba‘al Shem Tov, Yisrael ben Eliezer, ca. 1700–1760) publicly consumed an animal considered unfit (treifah) by the slaughterer, claiming that the beast itself longed for him to eat it.Footnote 72 Before he ate of the meat, however, the Besht sensed that this type of charismatic decision would be difficult for his disciples to accept. He sent the question off to a neighboring rabbinic scholar, and a letter shortly returned declaring the animal fit for consumption.
This phenomenon of deciding the law through spiritual inspiration can also be found in the responsa literature and legal sources. In these works references to the Divine Spirit are employed in order to permit the remarriage of women whose husbands’ whereabouts were unknown (‘agunot), and also to clear the name of women suspected of prostitution. The literature produced in the wake of these incidents refers to an unnamed maggid (most likely the famed R. Yisrael ben Shabetai of Kozhenits),Footnote 73 to R. Yaakov Yiẓḥak Horowitz (the Ḥozeh or “Seer”) of Lublin (both dating from the 1790s),Footnote 74 and to Rabbi Yiẓḥak Taub of Kaliv in 1814.Footnote 75
This type of flexible, individualistic, and perhaps even anarchic tendency within the legal system was not limited to the first few generations of the hasidic movement. In a legal document from the late nineteenth century, which mirrors the strange story of the Besht consuming unkosher meat in Shivḥe ha-Besht, the hasidic tzaddik Rabbi Yehoshua Rokeaḥ of Belz (1825–94) appraised a beast to be permitted via clairvoyance.Footnote 76 The Belzer Rebbe then ordered Rabbi Shalom Mordekhai Shvadron (1835–1911, known as Maharsham)—the greatest Galician adjudicator of the time—to write a responsum justifying his heavenly directed decision. This odd ruling was indeed composed but was subsequently hidden, under the pretext that this incredible judgment was only issued in regard to that specific case. Here the ideology described by Shivḥe ha-Besht, whether it is historically correct or not, became a reality at the hands of the Belzer Rebbe; the legendary past of the hasidic imagination had become manifest in a legal ruling of the hasidic present. But whereas the Besht as portrayed in hagiography had no need of legal confirmation by an official adjudicator, the Belzer Rebbe, perhaps less secure in his mystical powers and certainly much more bound to the social reality of late nineteenth-century Hasidism, participated in the formulation of an apparently official legal decree to provide support for his heavenly decisions.
This particular combination of the Divine Spirit and legal formulation is indicative of how, by midway through the nineteenth century, many elements of the hasidic movement had indeed become more stable and institutionalized, and had joined forces with the emergent traditionalist bloc of Orthodoxy. As this process of the consolidation of Hasidism within east European Orthodoxy continued, the issues of law and legal practice took on central importance. Halakhah and custom were key tools for combatting the inroads of modernity and for distinguishing various hasidic groups from one another. However, this focus on the primacy of Halakhah and legal interpretation did not necessarily eliminate the charismatic foundations of the hasidic tradition, as has generally been assumed in the wake of Mendel Piekarz's important studies.Footnote 77 In sources that invoke ruaḥ ha-kodesh as an element of determining the law, the hasidic tzaddik does not seek to break or undermine the Halakhah. On the contrary, it is the tzaddik's charismatic vision that allows him to gaze deeply into the matter (or upon the physical object), and determine the proper judgment for the unique situation.Footnote 78
The double commitment of nineteenth-century hasidic Halakhah to the strict boundaries of normative legal discourse as well as to hasidic traditions led to new explorations of the interface between legal decision-making and revelation. This literature raised questions about reliance on the Divine Spirit in a situation of doubt, in a life-threatening situation, or facing a rabbinic prohibition (de-rabbanan) or an act of legal piety (middat ḥasidut). Can every legal or moral intuition be considered the workings of the Divine Spirit? These surprising legal discussions of the late nineteenth and early twentieth centuries sought to render charismatic experience into stable legal formulas, thus tempering the spontaneous creativity with hasidic traditionalism. The writings of Rabbi Ḥayim Elazar Shapira of Munkatsh (1868–1937), a fiercely antimodern leader who expended great efforts to justify hasidic practices with legal precedents, exemplify these questions.Footnote 79 In fact, in one teaching he cites a tradition permitting to rely on the Divine Spirit only when the issue at hand is a matter of stringency, and not a fundament of the law itself. This notion is clearly an attempt to temper the potential anarchy of a legal method that is so difficult to verify objectively.Footnote 80
The scholastic formulations regarding how the Divine Spirit may be invoked in rendering legal decisions has remained a part of hasidic legal discourse, reemerging in new contexts and thus reflecting the consistent yet ever-changing intellectual horizons of hasidic Halakhah. The first responsum in a 2010 collection authored by the present-day hasidic tzaddik R. Yiẓḥak Meir Morgenstern adds a creative new layer to the issue of combining law and spirituality and the role of the Holy Spirit therein.Footnote 81 In this text he addresses a query regarding the extent to which kabbalistic sources may, or may not, be employed as a determining factor in rendering a legal decision. He cites the familiar talmudic adage of “the Torah is not in heaven”Footnote 82 —namely, the law can no longer be determined by direct revelation—and then pivots to the subject of whether an adjudicator or prophet could give a legal ruling based on divine intuition or inspiration. Morgenstern stresses that one may indeed follow a heavenly voice or the Holy Spirit, but only when there are valid (and perhaps provable) precedents on both sides of the issue. In staking his claim he offers some remarks on hasidic precedent:
In light of this we may add an explanation for something done by each and every one of the tzaddikim: answering legal questions by the Holy Spirit to clarify the situation even in matters related to ritual law [’issur ve-heter], such as knowing if the animal is kosher or not (or other things of this nature). The explanation is that clarifying the situation [by means of the Divine Spirit] does not contradict [the notion] that the Torah is not in heaven.
We should furthermore note an interpretation heard in the name of the Rebbe of Klausenberg, may his merit shield us … who explained why tzaddikim would delay their prayers. They grasped this through the Holy Spirit, from amidst the light hidden within our holy Torah, that they should act in this way.Footnote 83
R. Morgenstern embraces the notion that gazing into the Torah and seeking knowledge via the Holy Spirit are admissible elements of the judicial procedure. Certain elect individuals are alert to the fact that, in their particular instance, the Divine Will is different than the normative Halakhah. They are able to reach this illuminated understanding through the Holy Spirit or by means of a vision of the godly light within Scripture. But Morgenstern notes the radical nature of this idea, and seeks to qualify its impact through the more normative method of justifying dissent by relying on minority opinions.Footnote 84
R. Morgenstern connects the issue of deciding the law in accord with the Holy Spirit to the debate over the authority of Isaac Luria's teachings. He argues that the positions of the Ari should be followed because his teachings are actually a continuation of the Zohar itself; Luria's authority is not simply linked to the gravitas of personal revelation.Footnote 85 R. Morgenstern then returns to the aforementioned disagreement between R. Shneur Zalman of Liady and the Gaon of Vilna, in which the hasidic scholar accused the Gaon of showing too little respect for the practices found in the Lurianic corpus. But R. Morgenstern's interpretation of their controversy is more complex, since he, a member of the diverse ultra-Orthodox community in twenty-first-century Israel, cannot deride the Gaon of Vilna.Footnote 86 To this end he grasps hold of the opinion of the Vilna Gaon's disciples, who claimed that their teacher never controverted Lurianic Kabbalah openly. R. Morgenstern concedes that the rulings of the Gaon do indeed conflict with those of Luria in some cases, and that although the Vilna Gaon may have agreed with Luria in matters of mystical gnosis, the Gaon left room for a great deal of individual freedom when it comes to determining Halakhah.
Toward the conclusion of this responsum, R. Morgenstern returns us to an earlier point in our discussion, in giving the example of the Sabbatian debacle as an example of the danger inherent in involving Kabbalah and the various—even myriad—relative interpretations in the process of determining the Halakhah.Footnote 87 His rather circumspect answer is that any adjudicator, even if he reaches his verdict by examining a mystical source or even through direct experience of the Holy Spirit, must be able to ground his decision in the canonical body of classical legal literature as well. A practice cannot be deemed acceptable if it is justified only by Kabbalah or through the Holy Spirit, especially if it runs counter to the traditional Halakhah.Footnote 88
The responsum commissioned by the Belzer Rebbe and the works of Rabbis Ḥayim Elazar Shapira and Yiẓḥak Meir Morgenstern underscore the need to examine hasidic practices within the greater discourse and precedents of the world of Halakhah. In fact, close examination of the texts reveals that hasidic practices, which were in all likelihood spontaneous in their origin, must now be internalized within the discourse of Halakhah. This process of interpretation has led to some highly innovative and richly mystical legal thinking in the hands of hasidic scholars throughout the past two hundred years.
Individualism and Law
The appeal to the Divine Spirit as the ultimate arbiter of the law injected an absolute and unambiguous element into Jewish legal discourse, which is often full of doubts and uncertainties.Footnote 89 Yet, at the same time, an opposing element was introduced into hasidic approaches to the law, namely, the personal root of the adjudicator's soul. The third and final group of sources engaging with hasidic Halakhah points in the opposite direction of the legislative deployment of the Holy Spirit. The notion that legal scholars have individual soul-roots is tied to the inherent pluralism of Jewish legal discourse. Texts in this category generally focus on two primary and interrelated questions: First, why have different sages or legal scholars offered many divergent opinions—some of which are mutually exclusive—when they are confronted by similar cases or precedents from the same corpus of legal texts? Second, why has Halakhah changed over time, and why does it continue to do so in the present day?Footnote 90 These questions about legal diversity are imbricated with a third issue: Were hasidic thinkers willing to extend the mandate for theological creativity and spiritual renewal as a productive tool in the realm of practical Halakhah in their own day?Footnote 91
These questions about the nature of Jewish law and the processes through which it may be decided make a significant appearance in the sermons of the Maggid of Mezritsh. This focus on Halakhah is surprising in the teachings of a spiritual leader who never played a clearly documented role in actual legal procedures. One of his homilies begins with the classic disagreement between Beit Hillel and Beit Shammai over whether or not an egg laid on a Jewish holiday may be eaten on that same day.Footnote 92 His explains that their lack of consensus in this specific case is the key to understanding a broader legal phenomenon:
“These and those are the words of the living God,” both those that forbid and those that permit.Footnote 93 “With knowledge rooms are filled” [Proverbs 24:4]. All of the [divine] attributes [middot] come from Mind [da‘at]…. Each person draws forth from da‘at, combining the words in this way or that. This one draws love [’ahavah, i.e., ḥesed] from da‘at, meaning that the egg is permitted. Another draws down awe [yir’ah, i.e., gevurah] from da‘at, and the egg is forbidden. And when one wants to change the Halakhah, like R. Joshua, who said that “we pay no attention to a heavenly voice,”Footnote 94 he returns the ruling [din] to the attribute of da‘at and from there draws it down through a different attribute. The enlightened will understand.
Another explanation of “these and those are the words of the living God”: The Oral Torah is the adornments of the bride. One person says that the adornment must be like this, and another says that this is not so pleasing, and another way is more beautiful. The king receives great pleasure in their disagreement over the adornments, since both of them wish to adorn the king.Footnote 95
The Divine Mind is a realm of infinity and abstraction, and there the law is still unformed and exists only as pure potential. Human scholars must decide the practical application of the Halakhah by drawing forth this energy and recasting it through the various divine attributes (sefirot). The positions these judges take may all be described as the “words of the living God,” because each one of them is an authentic manifestation of the different potentialities included in God's Mind.
But the Maggid also claims, perhaps even prescriptively, that any of these rulings can be overturned and transformed by returning it to its ultimate source in the sefirah da‘at (Mind or Knowledge).Footnote 96 There in God's Mind the various other possibilities remain eternally valid and intact, and one may manifest a different legal decision as required by the hour. The seven lower sefirot, vessels for receiving divine energy that are here described as “rooms,” emerge from the sefirah da‘at. The Maggid's sermon builds on the kabbalistic geography of the divine superstructure, but in this case he is also referring to the correlate of these same sefirot within the human psyche as well. Interpreting kabbalistic symbolism as relating to the psychological and spiritual life of the individual is one of the principal features of his theology.
The Maggid often uses the term da‘at to refer to a seeker's mystical awareness of the Divine Presence, but it is also one of the deepest seats of human intellection, and in earlier Kabbalah it is often associated with Moses and with the Written Torah itself.Footnote 97 This suggests that retracing a legal ruling back into the abstract potential of da‘at—into the realm that is simultaneously the Divine Mind and the heartland of active cognition—is a moment akin to the Revelation on Mt. Sinai.
This teaching may be read as suggesting that scholars possess an a priori legal intuition that necessarily determines how they will decide the law. However, the Maggid may have been describing a more intentional process of decision-making in which judges actively seek to decide or change the Halakhah by drawing out new possibilities from the unformed potential of God's Mind. There is not enough evidence to know if this conceptualization would have affected the Maggid's own legal rulings,Footnote 98 but this framework provides an interesting kabbalistic and hasidic justification for why different scholars will reach different verdicts even when confronted by the same case. In the passage above, the heavenly voice represents the current heavenly judgment on the Halakhah. Rabbi Joshua's reasoning led him in a different direction, and, ignoring the previous divine judgment, he changed the Halakhah to accord with his own decision. The Maggid's reading of Rabbi Joshua rejecting the heavenly voice because he wants to alter the Halakhah is a fascinating interpretation, and not at all the obvious meaning of the talmudic passage.
R. Dov Ber's second reading of “these and those,” however, differs from the one given immediately preceding it. Earlier Jewish mystical texts commonly apply the term “adornments of the Bride” [i.e., Shekhinah] to Torah novellae, but here the Maggid argues that creative new interpretations of the Oral Torah, like standards of beauty, have an inherently subjective dimension.Footnote 99 He gives a parable of two sages who disagree over which of the various possible manifestations of the law is the most befitting for the king (surely referring to the King of kings), but without claiming which is the more rationally compelling. The Maggid suggests that all such decisions bring joy to God, as does the very process of legal argumentation if performed with integrity. Each decision is appealing in the eye of the beholder and pleasing to the Divine, which remains true even if they contradict one another or are mutually exclusive.
Perhaps the aesthetic analogy to sartorial ornaments is to be taken less literally, since surely each proponent has his reasons in addition to thinking that his interpretations are more beautiful. Pure subjectivity, after all, is not integrity. But it is important to note that the Maggid describes God as delighting in the multiplicity, suggesting that the Divine takes no joy in a monochromatic or static legal system.
Another homily from the Maggid focuses on the figure of King David, portraying him as the ideal adjudicator who makes his decisions based on the root of his soul:
The Talmud teaches: “David decided the tradition according to the Halakhah, but Saul did not.”Footnote 100 We must explain why this was so, for is it not taught that “these and those are the words of the living God”? Of course, in truth “these and those [are the words of God],” but each of them [i.e., David and Saul] spoke and decided the law according to his rung and the origin of his soul [shoresh nishmato].Footnote 101 It is known that the root of King David's soul was the attribute of malkhut,Footnote 102 and it is known that malkhut receives from all of the six extremities;Footnote 103 sometimes from this one, sometimes from that, and sometimes it tends toward two of the extremities. It is written, “incline after the majority” [Exodus 23:2], meaning whatever the preponderance may be, whether for kindness [ḥesed], judgment [din], or compassion [raḥamim], which mediates [between them]. Whatever it may be, this is called “inclining after the majority.” It is known that any attribute that overpowers another is called the majority, since those that oppose are subsumed within this conquering attribute and are totally nullified [betelim mi-meẓi’utam] like a lamp in broad daylight.Footnote 104 The victorious attribute is the majority, and even though the others are also the “words of the living God,” they are subsumed within the majority.
Now King David came from the attribute of malkhut, where everything is included and things reach completion. [Malkhut] is called the assembly [‘aẓeret kenishin],Footnote 105 the house of assemblyFootnote 106 where all of the upper attributes congregate. Thus David was able to align the law and to decide the tradition according to the Halakhah. This attribute is called halakhah, since it is the conclusion of all the “cosmic ways” [halikhot ‘olam; Habakkuk 3:6], whether for kindness or compassion, and so forth, etc.
Furthermore, malkhut is called the Oral Torah, which is interpreted by means of the thirteen principles, as is known.Footnote 107 The Halakhah follows whichever attribute is victorious above. [David] aligned the truth in accord with how it concluded above in the root of his soul…. This was not true of Saul, whose level was not from this attribute. He too taught “words of the living God” from the root of his soul, but could not align to the truth as it had been decided above.Footnote 108
The Maggid is offering a creative reinterpretation of Exodus 23:2, long cited in Jewish legal texts as mandating the principle of majority rule.Footnote 109 He suggests that the process of deciding Halakhah entails determining which of the sefirot is the strongest. The scholar charged with adjudicating the way has to be attentive to cosmic processes, for the practice that is to become the legal norm is the result of the interface (halikhot) between the different sefirot.
At first blush this seems to be a purely metaphysical investigation, leaving far less room for personal autonomy in deciding the Halakhah than the teaching cited above. However, the Maggid adds another important piece to the puzzle. He explains that the origin of a judge's soul is the lens that governs his internal process of deliberation, even determining the outcome of the decision-making process.Footnote 110 The Maggid describes King David as the legal sage and adjudicator par excellence.Footnote 111 As the embodiment of the sefirah malkhut, the receptive pool into which all the other sefirot flow, David was the most attuned to the cosmic processes. His legal decisions reflect the way the Halakhah had already been determined by the cosmos, which he was able to intuit due to the root of his soul. Though Saul's and David's opinions were both the “words of the living God,” only the latter figure was attuned to the higher legal truth.Footnote 112
This understanding of law is quite different from that presented in the Maggid's first homily, in which one who wished to change the Halakhah simply needed to return the law to its origin, tracing it back through the root of his soul to the sefirah da‘at, from which he would be able to draw forth another ruling more in line with his wishes. In the teaching discussed above, however, there seems to be an ultimate legal truth beyond the subjective decision of the individual scholar. The law is determined not by the scholar's logic, but through his perception—or perhaps better, his intuition, described as “the root of his soul”Footnote 113 —regarding how the matter has already been decided in the matrix of the sefirot above.Footnote 114 Perhaps the Maggid was suggesting that a sage's legal reasoning would instinctively lead him in that direction, and this ability to accord with the heavenly Halakhah was not obviously inconsistent with the notion that it could also be transformed.
The Maggid's interest in this specific dimension of legal reasoning had a significant impact on the next generation of hasidic leaders. The following teaching by R. Levi Yiẓḥak of Barditshev addresses the subjective elements of legal decision-making quite frankly:
Regarding the disagreement between Beit Shammai and Beit Hillel, we have said that, “these and those are the words of the living God.”Footnote 115 A person understands the plain-sense meaning of the holy Torah according to his own attribute [beḥinah]. If he comes from the world of Kindness [i.e., the sefirah ḥesed], everything is ritually pure, permitted and kosher, according to the ruling his mind deduces from the holy Torah. The reverse is also true. If he is from attribute of Judgment [i.e., the sefirah din], then everything is the opposite. The attribute of Beit Hillel was Kindness, and therefore they offered lenient rulings. Beit Shammai were of the attribute of Judgment, and were therefore stringent. But the truth is that each of these, according to their level, are “the words of the living God.” … The sages that came after Beit Shammai and Beit Hillel saw that the world needed to be run with Kindness, and they established the Halakhah to follow the leniencies of Beit Hillel in every case.Footnote 116
This sermon suggests that each scholar rules in light of his personal root in the cosmic realm, manifest in his intuition as well as his cognitive framework. It also offers an interesting justification regarding why the particular decisions of the school of Hillel were adopted as the normative practice, an explanation that runs counter to Talmud's own explanation in b. Eruvin 13b. But elsewhere, R. Levi Yiẓḥak offered a more programmatic vision that acknowledges the continuous evolution of Halakhah into the present:
The Oral Torah changes according to the sages of the generation. This one says such-and-such, and another says something different. The conduct of the Halakhah accords with the generations. Rashi decided that tefillin should be donned in one way, and Rabbenu Tam decided that it be done in a different manner.Footnote 117
The truth is that the Halakhah follows the attribute [middah] with which the Blessed One directs the world [in that particular age]. If it is conducted by means of [divine] love [i.e., ḥesed], then the Halakhah accords with the sage whose position reflects that. If it is tif'eret, then the Halakhah follows that one. This explains why Israel lovingly desired to receive the Torah [on Mt. Sinai], for they said, “We will do and we will understand” [Exodus 24:7], but at first did not want to receive the Oral Torah…. It was difficult for them [to grasp] that the Oral Torah would change in accord with the tzaddik of each generation. He causes the world to be directed by a certain [divine] attribute, and so too is it with Halakhah of the Oral Torah.Footnote 118
R. Levi Yiẓḥak begins with the assertion the Jewish law changed because it had to respond to dynamic manners in which the Divine guided the world. The adjudicator has to be attuned to the constant fluctuations in the Godhead, determining the particular divine attribute (from among the sefirot) that characterizes his age and should therefore be the lens through which he interprets the law. Based on this knowledge of the workings of the Divine, the tzaddik decides the correct form of the Halakhah as it applies to the entire community. Thus R. Levi Yiẓḥak turned the Maggid's theoretical description of Halakhah in accordance with the soul-root into an account of the history of Jewish law.
However, by the end of the sermon R. Levi Yiẓḥak has arrived at a different message. His conclusion suggests that the tzaddik first determines the Halakhah in his generation, and that God responds to the sage's ruling directing the world in accord with the particular attribute embodied in his decision. This notion is indeed radical, but it is very much in keeping with a cornerstone of R. Levi Yiẓḥak's theology: God willingly diminished His infinite power by creating the world and then revealing the Torah to Israel, entering into a relationship with human beings and thus demanding that the tzaddik become His partner. God does this because of the great delight brought about by the correct expressions of human agency. In the case of the teaching above, the active role of the tzaddik takes the form of an exegetical duty to interpret the Oral Torah and the Halakhah anew in each generation.Footnote 119
But surely R. Levi Yiẓḥak —the official rabbi and court head of an important Lithuanian community of Pinsk and then Barditshev—was not advocating religious anarchy, a legal free-for-all in which the preference for human autonomy leads each leader to develop his own unique version of the Halakhah. He was more cautious, suggesting that the transformation of the law must happen on a communal, perhaps even a national scale. Change began with the tzaddikim, and Halakhah was not to be reshaped in accord with the fleeting whims of private individuals. Furthermore, R. Levi Yiẓḥak's model is highly elitist, since change emerges exclusively from the intellectual and spiritual leadership. Only tzaddikim understand the different attributes with which God engages the world, and, more importantly, only they have been entrusted with the power to command these divine attributes.Footnote 120
These texts present complementary, but not identical, versions of our third thematic cluster of sources of hasidic Halakhah. They describe an approach to legal decision-making in which certain scholars have the power to change the Halakhah in accord with the unique needs of their generations, or, alternatively, will render a judgment that reflects distinctive mystical origins of the root of their own souls. This conceptualization of Halakhah is primarily oriented toward accounting for the diversity and development of Jewish law, and these reflective sources may not have been intended to prescribe a practical new method for determining contemporary Halakhah.
Yet it should not be surprising that some of these daring hasidic formulations inspired a great polemical debate. In a sermon included in his 1832 Peri kodesh hilulim, R. Tsevi Hirsch of Zhidachov remarked that, “as is well-known, the Halakhah changes according to time and place.”Footnote 121 He based his claim of perpetual change on the words of the Ari on the one hand, and on statements of scholars of astronomy on the other. Since perpetual change exists both in the heavenly realms, as taught by Lurianic Kabbalah, and in the astronomical “spheres,” the same is true of the Divine Will regarding legal decisions. In this manner the hasidic master explains the familiar rabbinic teaching that one should “study [shoneh] halakhot every day”Footnote 122 —that Halakhah in fact changed (yishtaneh [sic]) over time, since the constant changes in the Godhead and the celestial orbits mean that no two days are ever identical.
The variety of hasidic texts discussed above, many of which offer an even more daring formulation of legal development than this, demonstrate that Tsevi Hirsch's formulation was by no means out of the ordinary within the hasidic world. But his sermon caught the eye of the wrong person, and only seven years later Rabbi Shelomoh Yehudah Rapoport (1790–1867), a Galician rabbinic scholar and Maskil, cited this very passage at length in a letter written to the head of the court of a German community. Rapoport viewed this hasidic exposition as an example of the potential ruin of the Torah at the hands of radical reform, explaining that these hasidic works include “their notions that, God forbid, the Torah is supposed to change according to the times [‘assuyah lehishtanot ke-fi ha-zeman].”Footnote 123 In his letter, R. Rappaport links this anarchic approach to Halakhah to the path later taken by the Maskilim who favor significant legal reform, identifying the hasidic precedent and its ideological relativism as the precursor to what will eventually lead to the abolition of Halakhah in practice. Rapoport observes a dangerously heretical element in the aforementioned hasidic exposition, which he describes as “very close to the views of Spinoza.”Footnote 124
Was Shelomoh Yehudah Rapoport correct in his anti-Spinozan critique of a hasidic approach to Halakhah that would eventually render the law entirely obsolete? Did this hasidic ideology of ever-present legal evolution have practical or systematic ramifications? Traces of subjective legal rulings based on the unique soul of the adjudicator are in fact recorded in hasidic writings. The most prominent example is the nephew and student of the aforementioned Tsevi Hirsch, namely Yiẓḥak Ayzik Yehudah Yeḥiel Safrin (1806–74), the Rebbe of Komarno. Rabbi Yiẓḥak Ayzik was a prolific writer as well as a highly original mystical and legal thinker, and hasidic and kabbalistic themes permeate his works of Halakhah.Footnote 125
R. Safrin invokes the idea that Jewish legal scholars (and indeed, all Jews) have diverse soul-roots in order to analyze—in remarkable detail—the disagreement between Rashi and Rabbenu Tam over the arrangement of the parchments in tefillin, as well as several other well-known legal quarrels.Footnote 126 He argues that each legal adjudicator possesses a soul-root, which causes him to incline naturally either toward prohibition (gevurah) or permission (ḥesed). Such distinctions in the law do not exist in the Divine (since all souls are included therein) and both are inherently “true,” but only one decision is correct for the soul-root of a particular generation. This hasidic approach, first encountered in the teachings of the Maggid and his students, was greatly enriched and deepened by Safrin, who employed it as a model for legal innovation in his own day and not simply a historical description of the evolution of Halakhah. Safrin argues that all single, unified positions had once been established by the Sanhedrin.Footnote 127 After the demise of this centralized authority and the beginnings of the Exile, however, there emerged a number of different scenarios for deciding the law. Safrin notes that the talmudic sages gazed into the future via the Holy Spirit (ruaḥ ha-kodesh) and established the proper ruling befitting the soul-roots of all later generations. But in cases of enduring and unresolved controversy—such as that of Rabbenu Tam and Rashi—it was left up to later scholars to decide the Halakhah in accord with the soul-root of their generation or community; thus the conceptual framework becomes a prescriptive tool in the hands of the contemporary sage.
In another illustrative ruling that highlights his attention to the individual, R. Safrin took the bold step of condoning the creation of new blessings that fit new or unique occasions.Footnote 128 He begins by reinforcing the prohibition that one was not allowed to recite a blessing when it was not called for, and then underscores that the inverse is equally true: one must offer blessings whenever possible. This includes the blessings of the Talmud, as well as those found in the midrashim (works not generally considered loci for normative Halakhah) or invented by the Geonim, but Safrin extends the power of creativity into the contemporary world by arguing that the sage examine his unique situation and recite the appropriate blessing, even if it means creating something new.Footnote 129 Guided by his unique soul-root and his perception of the singular needs of the hour, the hasidic scholar is given great freedom in interpreting, applying, and perhaps even reformulating the sacred law.
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The law and its proper determination and practice were, thus, not marginal concerns sidelined by the hasidic masters in favor of mystical rapture. In fact, these issues lie at the very heart of hasidic devotional life and spirituality. Hasidism offers a surprising variety of ways in which the fires of religious passion blend with, and are expressed by, the ostensibly rigid nomos of the talmudic or rabbinic tradition. The two realms of law and spirituality are often embodied together, intertwined in the communally oriented legal decisions and theological teachings of single individuals. Hasidic sources that emphasize the importance, and indeed the centrality, of studying the codes of Jewish law indeed appear in some of the earliest layers of hasidic literature,Footnote 130 but creative new approaches to Halakhah that emerged in Hasidism are also concretized in legal decisions and ritual practices.
What emerges is that the interface between law, mysticism, and social reality is much more complex. The inner turn that characterizes Hasidism cannot be captured in the binary frame of nomos versus eros delineated by Christian Hebraists and continued by many later academic scholars. Yet the picture is still far from simple, as hasidic sources evidence unresolved tensions between the three approaches of Lurianic continuity, use of the Divine Spirit, and the embrace of legal change and diversity as emerging from the various soul-roots of scholars. For example, hasidic texts that take up the latter theme, including a wide range of sources underscoring the values of flexibility, innovation, and an openness to change, often dovetail with the revival of the Divine Spirit in legal formulation. In some works, such as the writings of R. Safrin noted above, the two notions reinforce one another; the jurisprudential tool of ruaḥ ha-kodesh is admissible because it fits with a broader ethos that embraces creativity and subjective legal decisions that reflect the soul-root of the adjudicator. But, the conceptualization of hasidic Halakhah as a cultural and legal translation of Lurianic Kabbalah also indicates a paradoxical embrace of change together with an emphasis on continuity, intensifying and drawing authority from this image of the past. In some cases this meant adopting kabbalistic stringencies or supererogatory practice (either as an individual or as an entire community), but this very turn (be it the inclination toward stricture or permission) reflects the broader hasidic—and indeed Lurianic—belief in the ever-changing nature of the cosmos. Hasidic sources preserve striking demonstrations of legal flexibility that include the Divine Spirit, and embrace continuous change and development of Halakhah, but these are held concomitantly with a surefooted devotion to piety and in some cases stringency. A balanced understanding of the uniqueness of hasidic Halakhah, however, becomes visible only as we appreciate the complex—and at time strained—interface between these intellectual currents.
Nomos, eros, and mystical piety merged together in distinctive ways in the specific contexts of Hasidism; these forces are often most visible in the novel forms of Jewish legal discourse. Hasidism offers a gateway to the complex intellectual dynamics at the core of Jewish legal discourse and traditional society in early modernity. The hasidic case study suggests that the wide variety of Jewish religious and pietistic expressions that flourished in this era cannot be forced into the oft-reiterated description of early modernity as an era of strict traditionalist formulation, or a monolithic time of conservative legal stagnation, or simple antinomian versus strict nomian trends. In early modernity local identities fractured, reintegrated, and became increasingly complex, therefore enabling new cultural fusions as well as vital re-expressions of law and theology. Elements of the resultant transformations in Jewish legal discourse are visible in the three groups of texts engaging hasidic Halakhah outlined above: the communal internalization of Lurianic ritual and legal cultures; the embodiment of the Divine Spirit within the charismatic leader and his legal decisions; and the role of subjective, personal aesthetics in legal rulings and the soul-root of the adjudicator in the development of Halakhah across generations. These preliminary models offer us a point of departure for delving into the vast legal heritage of Hasidism.
