Sunday, December 10, 2006

Homosexuality in halacha, post II: Biblical and Rabbinic law

Within the halachic system, there are two possible sources of law. These are Biblical law and Rabbinic law. Within the Conservative understanding, both are considered equally binding. The excuse “it's just Rabbinic anyway” has no meaning. Introducing this distinction, however, is one place where the system becomes really complicated. The reason is that a law being written in the Torah does not necessarily make its literal word a "Biblical law" and a law's specifics not being found anywhere in the Bible does not make them "Rabbinic Law." The distinction itself is Rabbinic in origin! The forbidden manners of work on Shabbat is one example where this concept can be made abundantly clear. The Torah explicitly forbids “creative work” (a loose translation of “מלאכה”) on the Sabbath. Few of what modern Jews recognize as the “39 categories” are directly mentioned in the Torah as forbidden. And, some acts which are directly mentioned as forbidden are not contained in the 39 categories. The categories were derived (or, better, “derived”) from the Torah. Other activities were forbidden by the authority of the Rabbis in order to prevent the transgression of the Biblical laws.

The distinction between Biblical and Rabbinic law does have some practical implications. The first is that, as a general principle, one should rule stringently in an indeterminate case of a transgression of Biblical law, and one should rule leniently in an indeterminate case of a transgression of Rabbinic law. Another distinction is that while both are binding, the "legislative process" of interpretation proceeds differently. Overturning Biblical law (within the confines of the system) is difficult. Overturning or changing Rabbinic law may involve showing that it no longer provides any protection against transgression of a Biblical law, or that its stated social purpose is no longer valid. By the nature of the system, it is far easier to add new Rabbinic prohibitions than to remove old prohibitions, whether they be Biblical or Rabbinic. As a very loose analogy to secular law, Biblical law resembles a written constitution, and Rabbinic law resembles ordinary legislation. While this analogy holds to some extent for Rabbinic law decided at the time of the Talmud, contemporary Rabbinic law more resembles case law than actual legislation.

There are two processes of halachic decision-making available to contemporary rabbinic bodies. The first is the takkanah, or decree, where a Rabbinic authority makes declaration of new law that becomes binding on the community that accepts that authority (as far as I can tell, this usually a means adding a new prohibition, not removing one). The second process is responsa. Under this process, a questioner asks a rabbi or rabbinic authority for a decision. A teshuva (literally, answer) is a clarification of the halacha under the particular circumstance that is asked. The "clarification" effectively adds new binding case law.

Because Rabbinic law is considered more malleable, one way the Rabbis approach halacha is to begin with a known Biblical law, limit its scope, then legislate the remainder Rabbinically. A classical example of this process is the theory underlying the eruv that allows Jews to carry otherwise-Sabbath-permitted objects outside on Shabbat. Carrying outside in the public domain is considered a transgression of Biblical law, which cannot be undone through Rabbinic intercession. The solution to the problem, one that is nearly universally accepted today, was to define a limited scope of the Biblical prohibition (effectively, removing the possibility that one can transgress the Biblical prohibition), regulate the remainder of Shabbat carrying activities under Rabbinic law, and provide an exception to the Rabbinic prohibition, namely, the eruv.

The previous discussion is relevant because there is clearly a Biblical prohibition related to homosexual relations. Our teshuvot -- whether permissive or not permissive -- have to address the nature of this prohibition. The teshuvot purport to be working within the system of halacha. Therefore, they must limit themselves to providing an answer within the boundaries of their authority. Should a question be asked, and there is no opposition between halachic principles, the decision is clear. No responsum can make pork kosher. It is in this context that I set out to read the Dorff-Nevins-Reisner teshuva.

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