I have written a variety of blog posts that one way or another rely on this philosophy. However, I do not have the time to collect these all at the moment bibligraphically. (See also http://michaelmakovi.blogspot.com/2009/01/rabbi-dr-isidore-epstein-on-oral-law.html, that Rabbi Dr. Isidore Epstein seems to hold a similar view.)
As regards Rabbi Glasner's own view, in and of itself, it is easy enough to come by. Rabbi Glasner explained his view in his hakdama (preface) to his Dor Revi'i, and an abridged translation by Professor Yaakov Elman is available as text and as PDF, from Tradition magazine. See also the two biographical articles about Rabbi Glasner, by his descedants David Glasner (text and PDF) and Isaac Glasner (link); these two articles present, inter alia, the novel aspects of Rabbi Glasner's theory.
However, as regards Dr. Berkovits's own views, there is little available except for those with access to his books. Therefore, I will now present, unaltered, excerpts from his writings, illustrating his philosophy of the Oral Law. They have been removed from their contexts; all of Dr. Berkovits's discussions center around some practical case at hand, but I have ommitted these, for I am rather concerned with his general philosophy overall.
I am actually working on an essay that compares the philosophies of Rabbis Glasner and Berkovits, not only on the Oral Law, but also on Zionism. This essay of mine will also compare their philosophies to Conversative Judaism, and explore what they share and in what they differ. However, this essay will not be ready for at least some many years, and in the meantime, regarding the comparison between Dr. Berkovits on the one hand and Conservative on the other (Rabbi Glasner is not dealt with), see David Hazony's introduction to Essential Essays on Judaism, available as Eliezer Berkovits and the Revival of Jewish Moral Thought.
(I am also working on an essay regarding the Meiri's philosophy of gentiles, its applicability today, and echoes of it in the thought of such figures as Rabbi S. R. Hirsch and Rabbi Dr. J. H. Hertz and Rabbi Dr. Isidore Epstein. YCT's Meorot has expressed interest in this essay of mine, but it too will not be ready for quite some time. Stay tuned.)
The following are excerpts of Dr. Berkovits, taken from that aforementioned essay of mine.
"Identity Problems in the State of Israel", Judaism 28:3, Summer 1979, pp. 334-344; reprinted in Essential Essays as chapter 9, "The Spiritual Crisis in Israel". The following is from p. 209:
We may better appreciate the importance of applying the Torah the full range of actual life situations by recalling that the halacha – that is, the discipline of such application – was originally an oral Tora. R. Joseph Albo, in his Book of Fundamentals, explains the need for an "oral teaching" in the following manner:The law of God cannot be perfect as to be adequate for all times, because the ever-new details of human relations, their customs and their acts, are too numerous to be embraced in a book. Therefore Moses was given certain general principles, only briefly alluded to in the Tora, by means of which the wise men of every generation may work out the details as they appear. [R. Joseph Albo, Book of Fundamentals, 3:23]
Halacha was meant to deal with the specific life situation. But that situation is forever changing. The new, the unexpected in the human condition is the material with which the halacha has to contend. It examines the situation, it considers its basic principles and then renders a decision.
"Conversion ‘According to Halakha’: What Is It?". Judaism 23:4, Fall 1974, pp. 467-478; reprinted as "Conversion and the Decline of the Oral Law". Essential Essays on Judaism, ed. David Hazony, Jerusalem: Shalem Press, 2002. Chapter 3 pp. 89-102.
[Let us now] understand why the Written Torah is not enough, why it needed to be completed by an Oral Tora, and why the halacha could not be anything else but oral teaching. Every written law is somewhat “inhuman”. As a code laid down for generations, it must express a general idea and an abstract principle of what is right, of what is desired by the lawgiver. But every human situation is unique. No general law speaks to the specific situation. The uniqueness of the situation will often call for additional attention by some other principle, which has its validity within the system. [Rabbi Berkovits gives an example, selected from the discussion preceding the current one, regarding laws which Chazal modified according to certain moral imperatives:] Two witnesses are necessary to establish a fact. That rule has general validity. But the woman whose husband has disappeared is in a specific situation. The law of the Tora itself calls for responsible care for her specific plight. Resolution can be found only in the totality of the ethos of the law. But no written code can provide the resolution. The code can deal only with the general, not with the specific. Once you write it down as a code, you have generalized it. Only the Oral Tora, alive in the conscience of the contemporary teachers and masters, who can fully evaluate the significance of the confrontation between one word of God and another in a given situation, can resolve the conflict with the creative boldness of the application of the comprehensive ethos of the Torah to the case. Thus, the Oral Tora as halacha redeems the Written Tora from the prison of its generality and “humanizes” it. The written law longs for this, its redemption, by the Oral Tora. That is why God rejoices when he is defeated by his children. Such defeat is his victory [a reference to the famous incident of the oven of aknai].
According to an opinion in the Talmud, God concluded his covenant with Israel only on account of the oral tradition [Gittin 60b]. A covenant is a relationship of mutuality. The covenantal relationship could find no expression in the revelation and acceptance of the Tora at Sinai. It was a case, as the Talmud puts it, in which “he hung a mountain over them like a barrel” – a law given, imposed. Only in halacha is the covenant, as mutuality of relationship, fully present. … The halachist recognizes the will of God as expressed in the Tora; he is wholly committed to the law and the teaching of the Tora. But in the mutuality of the covenant, the responsibility has fallen to him to take upon himself the risk of determining, in the light of the totality of the Tora as teaching and living, the manner in which the will of the other party to the covenant is to be realized in a specific situation. Ultimately, he has to do that in the independence of his own conscience, which is imbued with the Tora.
This is our share in the covenant, the existential component of our participation in it. Loyalty to the Tora, to the divine partner to the covenant, demands that we accept the responsibility, notwithstanding the risk involved in the subjective aspect of our participation. Only in this way may the generality and abstractness of the Written Tora be transformed into torat hayim, a Tora of life, its realization in whatever situations Jews find themselves in the course of history.
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[O]ne of the most striking examples of halachic boldness and independence found in the Talmud [is]: The great debate about the oven of achnai. The subject matter of the debate itself is irrelevant to our discussion. The dispute over the law in this case raged between R. Eliezer ben Horkenos and the other masters. Since his colleagues did not accept his arguments, the great R. Eliezer wrought a number of miracles to prove he was right. The miracles were disregarded. Finally a voice from heaven came to the support of R. Eliezer, declaring: "What do you want from R. Eliezer? The halacha is always as he teaches it." What was there for the rabbis to do? The Talmud continues the story: R. Yehoshua then stood up and said (quoting from the Bible somewhat out of context): "It is not in heaven!" [Deuteronomy 30:12] The Tora has already been given to us on the mountain. The answer is that we pay no attention, not even to a heavenly voice, because God has already written in the Tora at the mountain: ‘Decide according to the majority.’" [Exodus 23:2] (This, of course, is itself a "halachic" reinterpretation of the literary meaning of the verse.)
Needless to say, the second part of the story is no longer about the oven of Achnai. It is about the confrontation between the divine voice, which the rabbis clearly received, and their own conscience as to what was the right decision in the case of the oven. How did they resolve the controntation? They beat the divine voice with God’s own words, as they understood these words. However, their own personal share in the decision is obvious. For one could have easily argued with R. Yehoshua: It is true that one should rule in accordance with the majority opinion, but only when the discussion is among men. However, in a debate with God himself, how dare you rule against God? How, indeed, dare you enter into a debate with him? Yet the rabbis did rule against a voice from heaven. Once again, there was a conflict between two demands of the Tora: To obey the heavenly voice, or to administer the law in a given case as they were able to understand it. Once again, the conflict was resolved on the basis of a more comprehensive principle which, in the rabbis’ own estimation, deserved priority. The story itself finds its charming conclusion as follows: R. Natan met the prophet Elijah (who, in Jewish lore, occasionally walks among the people and reveals himself to them) and asked him, "What did the Holy One do in that hour [of the great debate]?" Said Elijah: "He laughed and exclaimed, ‘My children have defeated me! My children have defeated me!’" [Baba Metzia 59b] The postscript to the story is decisive. To his own joy, God is overruled. A specific word of God is controlled by a more comprehensive divine command. Therein lies the secret of the creative vitality of the halacha. We might now formulate it more generally. When, in a given situation, a specific law is in conflict with another law, principle or concern of the Tora, the specific law may be limited in its application, reinterpreted, adapted, suspended, or changed in this one situation but not abolished, by the overruling concern of the comprehensive Tora.
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In the course of the ages a calamity has overtaken the Oral Tora. In the course of time, what was to be oral teaching became more and more committed to writing. The first “text” of the Oral Tora was the Mishna. In the Gemara, which is usually understood to be the explanation of the mishnaic text, one notices the struggle of the Oral Tora, still very much alive, with the mishnaic phase of its solidification. There is a continuous tension between the oral teaching and the written word of what, too, was in its origin Oral Tora. The text is “corrected”; a law often formulated in the Mishna as a general principle is interpreted to mean only a single rule in a specific case. The plain meaning of the text is often changed into its very opposite by an insertion. Interpretation is often “creative,” in that it often disregards syntax and literal meaning. The whole of the Gemara testifies to the unavoidable struggle of the spoken word of the halacha with its solidification in a text. But, then, the Gemara too was “concluded.” And now the Oral Tora has been committed to two texts. However, the second text has a much less solidified form of the oral teaching than the first. Whereas the Mishna was indeed a transformation of the spoken word into the written one, the Gemara was the writing down of the spoken word in a manner that preserved its essential spoken quality. The Mishna is a text; the Gemara is more like notes for a text.
Then came the third phase, that of the codifiers. Maimonides, for instance, in his monumental halachic work, Mishneh Tora, imitating the Mishnaic style, transformed the “notes” of the Gemara into a text and, thus, he transformed the entire extent of the Oral Tora into a new kind of Written Tora. The ultimate outcome of this process was, of course, the Shulchan Aruch.
Thus, what was not meant to be did come about: The Oral Tora became a written one. In fact, this whole development took place in actual violation of a principle of the Tora, according to which it was forbidden to apply to commit to writing the Oral Tora [Gittin 60b]. Why, then, was it done? One might apply to this entire development what was said in the Talmud of R. Yohanan and R. Shimon ben Lakish, who allowed themselves to study the written version of certain parts of the oral tradition. It is said there that they did it following a verse in Psalms which, in a famous Talmudic interpretation, reads: “When it is time to act for God, one may violate his commandment” [Psalms 119:126; Gittin 60a]. They meant to say that since it was impossible to preserve the entire body of the oral teaching in memory alone, some parts of it had to be put to writing, especially in light of the vicissitudes, uncertainties, distinction of communities and talmudic academies, and exiles in the history of the Jewish people in many lands. This conclusion is supported by Maimonides’ introduction to his Mishneh Tora.
This means that the transformation of the Oral Tora into a text was due to political history. It was an unavoidable violation of the essence of halacha when the spoken word was forced into the straitjacket of a written mold. It was no one’s fault; nevertheless, it was a spiritual calamity of the first magnitude. Orthodoxy is, in a sense, halacha in a straitjacket. Having had to transform the Oral Tora into a new written one, we have become Karaites of this new Written Tora, forced upon us by external circumstances. It was part of the spiritual tragedy of the exile that exactly what halacha in its original vitality and wisdom intended to protect us from has happened. In a sense, we have become Karaites. God can no longer rejoice over his “defeat” by his children. It is a condition we have had to accept. It is the price we have paid for the preservation of our identity and Jewish survival.
From Towards Historic Judaism (Oxford: East and West Library, 1943, chapters 3-4, pp. 25-51; reprinted in Essential Essays as "On the Return to Jewish National Life" pp. 155-175). The following is Essential Essays pp. 156ff:
Since its conclusion, all religious and spiritual authority in Judaism has been centered within the Talmud. Every decision in Jewish life, great or small, has been taken in accordance with talmudic authority. This was historic necessity in the life of a nation that had no state of its own, that was dispersed all over the world, its branches continually in danger of extermination. Such a nation had to vest its unifying authority somewhere where it did not depend on either geography or material well-being, the two factors over which the Jewish people had no control. The Talmud became the spiritual authority – voluntarily accepted by the whole nation. ...
Nevertheless, we made a very serious sacrifice in constituting that great work as it stood at 500 C.E., as the only authority in Judaism, an authority that could be commented on but never overruled. Until the end of the fifth century C. E., authority rested in living institutions – in the land of Israel in the office of the nasi, the prince of the Jews, and his court; in Babylon, in the person of the exilarch, and the heads of the great Babylonian academies. Though these institutions had been losing influence over time (as we shall see later), they were nonetheless living authority [emphasis Dr. Berkovits’s]. Living authority is always elastic, for it has in itself the possibility of development, it is able to make its decisions in accordance with the necessities of life. It can guide and direct life, not in the shape of compromise, but by applying to it the living spirit of tradition, thus not only preserving traditional values but developing them in faithfulness to their intrinsic sense. Living authority is always built upon tradition, but as it is alive it can exist only where there is a possibility of organic evolution in the application of tradition. When, owing to the hard facts of Jewish history, owing to the insecurity of Jewish life, living authority was no longer applicable, and authority had to be transferred to the book, the Talmud, the records of a once-living authority, Judaism had to sacrifice the possibility of organic development; it renounced the great principle of evolution of traditional teachings. The structure of Judaism became rigid, for it had lost its evolutionary strength. For many centuries this was not felt to be hampering Jewish existence. The Jewish people was living for the most part amid semi-barbaric surroundings, however high-sounding their names might be, which were at a state of culture development far behing the world of the Talmud.
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In order to understand how serious is the predicament of Judaism, we must not forget that Judaism originally was not lacking in the potential for development. The prophets and their successors, the teachers of the Mishna and Talmud, were not Orthodox Jews in the sense which we understand the word today. … The Talmud tells us, for instance, that R. Eliezer, in a controversy with R. Yehoshua, called for miracles to testify to the truth of his opinion, and in the end a voice from heaven declared that everywhere the opinion of R. Eliezer was decisive halacha. And yet, R. Yehoshua was able to say, “The Tora is no longer in heaven; we are not obliged to obey the miraculous voice from heaven” [Berachot 19a]. Such a Judaism, claiming an independence that could not be influenced either by miracles or even by a direct “message from heaven,” was surely not lacking in intellectual courage. In another rabbinic legend, the story is told that when God introduced Moses into the study house of R. Akiva, Moses was unable to follow the lectures of that great master, and regained his peace of mind only when he heard R. Akiva replying to a pupil that what he was teaching was nothing new but in fact a tradition directly “received by Moses from Sinai” [Menahot 29b]. A legend like this expresses in a striking manner the evolutionary unfolding of Judaism in the course of Jewish history. Not even Moses himself is able to able to recognize the Judaism of R. Akiva at first glance, for it is somehow different, something new. Nevertheless, it is still torat moshe, the Tora of Moses, for it is indeed his teaching, organically unfolding itself in the life of the nation. Everywhere in the Talmud and midrash we meet this courage to apply the spirit of the ancient word to new situations and in so doing give the word a new shape. The Tora is not eternal in the sense that it retains for all time that shape in which it was first understood by men. It is eternal because it has the miraculous power to reveal to each generation new meanings which are yet old ones, which have waited just for this generation to be lifted into the sun of the passing day.
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The inflexibility of Judaism, as it has been handed down since the conclusion of the Talmud, is not of the essence of Judaism. The static quality is certainly no religious dogma or article of faith. Had it been so, the exigencies of our life would have jettisoned such a belief long ago, without endangering the essential contents of Judaism. As it is, the rigidity is something far more serious, for it is concrete fact. Judaism has indeed lost its flexibility, its strength of development. You may override principles; you cannot overlook historical facts. For that reason, any attempt to reform or reshape Judaism must fail. Reform is only possible where there is flexibility. It is folly to treat Judaism today as it if were flexible. Whoever tries to break its rigidity is not building anything new; he is only destroying the old mold that was useful for so many centuries, and that even today is more useful than the shortsighted innovations by which reformist bodies are bringing about the dissolution of Judaism.
Before we can begin to address the predicament of modern Jewry with any hope of success, Judaism must regain its original capacity for development. Nothing will ever be achieved, and we shall ultimately face disaster, if we fail to understand this. Before anything can be done to overcome the dualism of our modern existence, we shall have to bring about those conditions in which alone may Judaism unfold itself naturally, in the line of previous Jewish history.
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But before addressing the question of how to effect such change, we have to examine the causes of rigidity in Judaism. It is not enough to say that with the closing of the Talmud, Judaism lost its evolutionary capacity. For the closing of the Talmud itself was a product of the time: It was itself the effect of certain historical causes. To understand the underlying causes, we must restate some fundamental facts concerning the nature of Judaism.
The teachings of the Tora were not suspended in mid-air. They were closely related to living human institutions Judaism looks upon life as the raw material which has to be shaped in conformity with the spiritual values contained in the Bible. Judaism is a great human endeavor to fashion the whole of life, every part and every moment of it, in accordance with standards that have their origin in unchallengeable authority. Its aim is not merely to cultivate the spirit, but to infuse prosaic, everyday existence with the spirit. Its great interest is not the human soul, but the living human body controlled by the forces of the soul. It is in and of this world. It will never yield to the obstinacy of that gigantic mass of raw material which we call life, and which so reluctantly allows itself to be molded by the spirit. It will never reconcile itself to a divided existence of which part is Caesars’ and part God’s. The whole of life is one piece; the whole of life is the testing place for man. Judaism is in love with life, for it knows that life is God’s great question to mankind; and the way a man lives, what he does with his life, the meaning he is able to implant in it – is man’s reply. Actual life is the partner to the spirit; without the one the other is meaningless.
In "Conversion and the Decline of the Oral Law", Dr. Berkovits speaks of the approach that is needed to solve today's problems:
Today, however, we are faced with unprecedented new challenges, problems of a true halachic nature, which require solutions in the true halachic spirit. ... When some leading rabbinical authorities there [in Israel] maintain that halacha can solve all the problems of that may be raised for Judaism in a modern state, they are right and they are wrong. They are right, for halacha in its original strength could solve all such problems. Yet they are wrong. Halacha in its present state cannot fulfill that function.
This is certainly no plea for reform. Many of our inherited molds are leaking, and cannot meaningfully contain the life that has fallen to the lot of our generation. What is needed is to retrace our steps. To return to the original halacha, to rediscover it, and, having rediscovered it, to restore it to its original function. If the problem were thoroughly understood, it would liberate us from the burden of this type of halacha. We would then see that in this generation we have been called upon, as it were, by another “divine voice” to accept the responsibility to make use of whatever is still left of the Oral Tora in its textual solidification. It would be the beginning that would lead us back to the original source and strength of halacha. It would be the beginning of its restoration to its original vitality and dignity, for the sake of which God concluded this covenant with Israel. What is needed is not less study of Tora, but better study of Tora; not less dedication to halacha, but more faith in halacha. Where there is greater faith, greater boldness is justified.
As in the past, because it was time to act for God, shackles had to be placed on the Oral Tora in violation of God’s command, so now the hour has come when the need to act for God places upon us the responsibility to free the Oral Tora from its shackles, in obedience to God’s original command. There are risks involved in such an undertaking. Because of it we need more love of all Israel, to illuminate our love of Tora. And to pray to God for his guidance.
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In all the preceding, Dr. Berkovits followed Rabbi Glasner's conception (from the hakdama to the Dor Revi'i) of the Oral Law as being flexible, to allow organic evolution. Where Dr. Berkovits differs with Rabbi Glasner is perhaps only in the effort to restore the Oral Law's original nature.
Rabbi Glasner, in his petiha (introduction) to the same Dor Revi'i, had another component to his philosophy of the halacha. David Glasner (in his biographical article about Rabbi Glasner) writes,
His [Rabbi Glasner’s] belief that rational principles are as authoritative as the Torah itself led R. Moshe Shmuel to argue that universal principles of good and bad and right and wrong can override even an explicit prohibition of the Torah. For example, while there are d-oraita prohibitions against wearing a garment made of shatnez and against wearing a garment designed for the opposite sex, R. Moshe Shmuel insisted (p'tihah 26b) that transgressing those prohibitions is preferable to appearing naked in public (which would violate no d-oraita prohibition) if one had no other garments with which to clothe himself. Similarly, eating human flesh, though not explicitly prohibited, is worse than eating n'veilah or treifah. "Whatever is disgusting in the eyes of mankind," R. Moshe Shmuel concluded,even if it has not been specifically forbidden by the Torah, is prohibited to us even more than are explicit prohibitions in the Torah. And this is not only because of hilul ha-Shem . . . , but because whatever is prohibited to the Noahides cannot be permissible to us because of the principle "Is there something [which is prohibited to them but not to us]" (Sanhedrin 59a). Thus, for a dangerously sick person, the consumption of human flesh or spoiled n'veilah is certainly a more serious offense than the consumption of heilev or tevel. The statement in Yoma 83a that it is preferable to feed n'veilah than to feed tevel to a dangerously sick person must be referring to n'veilah through an improper sh'hitah, but not to n'veilah from natural causes, the consumption of which is prohibited by the general laws of morality and decency. Moreover, it is well known that the flesh of an animal that died of natural causes is dangerous, so how could one imagine that the sages would have commanded to give to a sick person meat that is spoiled and fit for dogs rather than tevel that was not prepared. And anyone who denies this diminishes the honor of the Torah and causes it to be said of us "a foolish and depraved nation" instead of "a wise and understanding nation" (p’tihah 26b).
Cf. Marc B. Shapiro - Responses to Comments and Elaborations of Previous Posts III:
In his opposition to halakho-centrism, Amital finds a kindred spirit in R. Moses Samuel Glasner and cites the latter with regard to the following case. What should someone do if he has no food to eat, except non-kosher meat and human flesh. From a purely halakhic standpoint, eating non-kosher meat, which is a violation of a negative commandment, is worse than cannibalism. The latter is at most a violation of a positive commandment (Maimonides) or a rabbinic commandment according to others.[16] Yet Glasner sees it as obvious that one should not eat the human flesh, even though this is what the "pure" halakhah would require, for there are larger values at stake and the technical halakhah is not the be-all and end-all of Torah.[17]
Glasner writes as follows in his introduction to Dor Revi'i:כל מה שנתקבל בעיני בני אדם הנאורים לתועבה, אפילו אינו מפורש בתורה לאיסור, העובר על זה גרע מן העובר על חוקי התורה . . . ועתה אמור נא, בחולה שיש בו סכנה ולפניו בשר בהמה נחורה או טרפה ובשר אדם, איזה בשר יאכל, הכי נאמר דיאכל בשר אדם שאין בו איסור תורה אע"פ שמחוק הנימוס שמקובל מכלל האנושי, כל האוכל או מאכיל בשר אדם מודח מלהיות נמנה בין האישים, ולא יאכל בשר שהתורה אסרו בלאו, היעלה על הדעת שאנו עם הנבחר עם חכם ונבון נעבור על חוק הנימוס כזה להינצל מאיסור תורה? אתמהה!In other words, the Torah has an overarching ethos (Natural Law?) which is not expressed in any specific legal text, and this can sometimes trump explicit prohibitions.[18]
Glasner has another example of this: Someone is in bed naked and a fire breaks out. He can't get to his clothes and has two choices: He can run outside naked or put on some women's clothes. The pure halakhic perspective would, according to Glasner, require him to go outside naked, since there is no biblical violation in this. But Glasner rejects this out of hand:ובעיני פשוט הדבר דלצאת ערום עברה יותר גדולה . . . כי היא עברה המוסכמת אצל כל בעלי דעה, והעובר עליה יצא מכלל אדם הנברא בצלם אלוקים.
[16] See J. David Bleich, Contemporary Halakhic Problems, vol. 1 pp. 194-196.
[17] Ve-Ha'aretz Natan li-Venei Adam (Alon Shvut, 2005), pp. 38ff.
[18] In attempting to explain why there is no explicit prohibition against cannibalism in the Torah, R. Kook expresses a similar concept (Otzarot ha-Re'iyah [2002], vol. 2, p. 89):לא הוצרכה תורה לכתוב עליו איסור מפורש, שאין האדם צריך אזהרה על מה שקנה לו כבר מושג טבעי בזה.
Weinberg speaks of cannibalism as being against "the will of the Torah," even though not explicitly forbidden. See Seridei Esh, vol. 3, no. 127 (p. 342). See the discussion in Daniel Sinclair, "Musar u-Mishpat ha-Tiv'i be-Mishpat ha-Ivri: Akihlat Basar Adam ke-Mashal," available here.
So Rabbi Glasner holds that certain moral values were taken for granted by the Torah and never expressed as concrete mitzvoth, but that they are nevertheless obligatory. As Rabbi Dr. Alan Brill points out, we must face the Kalam questions of why G-d commanded that which is obvious (murder, etc.), and did not command other obvious matters (cannibalism, etc.), but this need not detain us here. Suffice it to say, I do have a personal answer to this question, based on the difference between statutory law and case law; I say the Torah only dealt with those cases that were common and paradigmatic, as a way of teaching broad principles.
Rabbi Berkovits took this a step further, and said that Hazal actually used moral values and principles as an exegetical tool in deciding halakha. This topic is a major subject of Not in Heaven: The Nature and Function of Halacha (chapter one thereof, pp. 3-45, is reprinted as "The Nature and Function of Jewish Law" in Essential Essays, pp. 41-87). Rabbi Berkovits writes,
In his Kuzari, Judah Halevi writes: “God forbid that there should be anything in the Torah that contradicts reason.” The rabbis in the Talmud were guided by the insight: God forbid that there should be anything in the application of the Tora to the actual life condition that is contrary to the principles of ethics. What are those principles? They are Torah principles, like: "And you shall do that which is right and good in the sight of the Eternal" [Deuteronomy 6:18]; or, "Her ways are ways of pleasantness, and all her paths are peace" [Proverbs 3:17] (according to talmudic teaching, this refers to the ways and the paths of the Tora); or, "That you may walk in the way of good people, and keep the paths of the righteous." [Proverbs 2:20] In summation of such principles, the Talmud would say: "The Tora in its entirety exists for the sake of the ways of peace." [Gittin 59b] Quite clearly, these principles, and such an understanding of the meaning of the Tora, give priority to the ethical demand.
In this philosophy we see precisely what Rabbi Berkovits intends when he says that the Oral Law was oral in order to allow its adaptation to the needs of human life. Rabbi Berkovits explains,
[I]n halacha, theoretical reason found its application in the “Thirteen Rules” in midrashic and talmudic literature that the rabbis used in interpreting the biblical text. A comprehensive study of the Thirteen Rules would give us a treatise on talmdudic logic.
Our concern, however, is chiefly with the "practical" reason of halacha. We use the term in a twofold sense: Halacha facing the theoretical needs of human existence, and halacha teaching the application of ethical principles in the midst of the daily life of the Jewish people.
One such principle offered is
[The] talmudic principle: "Where it is possible, it is possible; where it is not possible, it is not possible" ["Heicha de’efshar efshar; heicha delo efshar lo efshar." Hullin 11b].He notes,
A careful examination of the examples discussed will show that in the application of the principle of the possible, the impossible is not the objectively impossible, but that which is not reasonably feasible. The category of the possible (efshar) represents that which, in view of human nature and with proper attention to human needs, is practically or morally feasible.Rabbi Berkovits offers an example of when a certain halakhic principle, that according to strict logic ought to be applied equally to two cases, but is in actuality only applied to one; the reasoning offered by the Talmud is an explicitly moral, not legal, one, based on the idea that applying it to one of the cases is morally unfeasible:
[Described is an elderly childless man who lives faraway from his wife without possibility of communication. He has a brother, and to avoid obligating his wife in yibum or halitza should the man die, he sends a messenger with a get. While the get is in transit, the man dies.]...In such a case, the divorce ought to be invalid [and yibum or chalitza obligatory], for a divorce cannot take place after the husband’s death. Nevertheless, the Mishna states that the messenger should hand the woman the writ under the assumption that the husband is still alive. This accords with the halachic principle of hazaka, or presumption, according to which a condition, once established, is legally assumed to continue unchanged until the opposite has become known.So we see now that according to strict legal logic, it ought to be that either both husbands are presumed alive, or both presumed dead; there is no legal reason to distinguish the two. Rabbi Berkovits continues,
In another authoritative source, however, it is taught that if a kohen, a member of the priestly caste, gives a writ of divorce to his wife under the condition that it will take effect just before his death, his wife must immediately refrain from eating food that is teruma (the share that was given to a priest from the yield of the land). In this case, the wife is of Israelite parentage; as long as she is married to the priest, she may benefit from teruma on account of her husband. But once she is divorced, she returns to her Israelite status; like any other Israelite, she is barred from deriving any benefit from the priests’ share. In this case, as soon as she receives the writ of divorce, even though it becomes valid only immediately prior to her husband’s death, she is already considered an Israelite woman. This is due to the possibility that her husband may die at any moment, in which case she already be divorced now.
The two seem to contradict one another. In the case of the divorce documents sent from a faraway country, the husband is presumed alive as long as we do not receive information to the contrary; in the case of a woman married to a kohen, we do not make that assumption, and instead take into consideration the possibility of his death.
In attempting to resolve the contradiction, the Talmud offers: "You are comparing terumah to divorce? Teruma is possible; divorce is impossible" [Gittin 28a]. The meaning is: For the woman married to a priest, it is relatively easy to make arrangements to live on food that does not have the sanctity of teruma. But the consequences of assuming the death of the husband in the first case would be much more serious. The faraway husband, knowing that a writ of divorce sent by a messenger would have no validity, would refrain from sending one. As a result, his wife would become an aguna, neither married in fact nor able to remarry, since her husband might be alive.
As another example, Rabbi Berkovits cites the case of a person who left his Shabbat techum to come to the aid in an emergency. According to strict legal reasoning, the halakha clearly ought to be one way, but pragmatic moral considerations reverse the ruling. Rabbi Berkovits writes,
In...[the preceding]...examples, the principle of the possible is explicitly use. In other cases, it is not mentioned, but it is clearly the guiding consideration.
According to the law, one who journeyed beyond the two-thousand-cubit limit must remain where he is until the end of the Sabbath. It is true that in our case the person was permitted to go beyond the Sabbath limit, but that was because of the ermergency. Now that the emergency is over, is one tied down to the spot where he finds himself after the event?
R. Gamliel the elder, the head of the Sanhedrin, ruled that people who are allowed to travel for the sake of emergency are to be considered as inhabitants of the city to which they have gone in order to help; like the latter, they too may move a distance of two thousand cubits in all directions. His reason was that if they were to be immobilized until the end of the Sabbath at the spot where they rendered help, they would not leave their homes to help in the first place. Thus, "the end was permitted on account of the beginning" is the Talmudic formulation in this case [Rosh Hashana 23b].
Rabbi Berkovits cites a multitude of cases, involving marriage and divorce (Yevamot 36b-37a), Rabbinic decrees (Avoda Zara 36a), reproving one’s fellow (Beitza 36b, Baba Batra 60b, Tosafot ad.loc.), intercalation of thecalendar (Sanhedrin 11a, 12a), the mitzvah to build a Sukkah (Succah 26a), the remission of debts in the shemittah year (Mishna Shvi’it 10:3, Gittin 36a-b), the boundaries of Eretz Yisrael (Yevamot 16a), farming in the shemittah year (Sanhedrin 26a), oaths (Shevu’ot 45a, Mishna Gittin 5:3), economic and financial regulation (Mishna Baba Kama 10:3, Baba Batra 175b, Hullin 49b and76b-77a, Bechorot 40a). Obviously, these are far too many cases for them all to be cited here.
However, one more deserves attention, and especially so, as it is especially tied to a unique interpretation on the part of Rabbi Berkovits himself. According to the Torah (Leviticus 12:6, 8), a woman who gave birth brought a sacrifice of either a lamb and a turtle-dove or pigeon, or two such birds, depending on her financial ability. But she had the ability to postpone her bringing of the sacrifice, and so it could happen that a woman would give birth multiple times and postpone bring the offering each time, so that she would be liable for multiple offerings, which she would bring at one time. Rabbi Berkovits explains,
After the first sacrifice, she would be considered ritually pure again (meaning that she may now partake of the meat of animals offered in the Temple). [So the woman would bring the first, but postpone the second, third, etc., until later.] Now, it apparently happened quite often that women neglected to offer the prescribed sacrifice after every birth, so that the number of sacrificial obligations was accumulating. Women owed three, four, five, or more sacrifices. In accordance with the law of demand and supply, the price of pigeons usually went up. As the Mishna tells it:In this last example, we see most strikingly Rabbi Berkovit’s conception of a moral principle serving as a tool in halakhic ruling. To avoid costing the poor too much, even a Biblical law can be explicitly overturned. Further on, Rabbi Berkovits offers further examples of Chazal overturning the plain sense of Biblical laws (at least in Rabbi Berkovits’s interpretation) due to moral concerns: the rebellious gluttonous child and the idolatrous city. He writes,It happened once that the price of for two such pigeons went up to a golden dinar. R Shimon ben Gamliel, the head of the Sanhedrin, then took an oath and said: "I shall not go to bed tonight until the price goes down to a silver dinar." He went into the study house and taught: "A woman, even if she gives birth five times, brings only one sacrifice; the rest are no obligation upon her." Soon after, the price for the pigeons came down to half a silver dinar. (Kritot 8a).Some of the commentaries are aghast. How could R. Shimon rule against the law? Rashi explains that though R. Shimon was treating a biblical commandment lightly, it was an occasion "to act for the sake of God." For if prices did not go down, women would not bring even one sacrifice, but would nevertheless eat of sacrificial meals in their ritual impurity. This was, indeed, one of the cases when one rules against the law for the sake of the law. But even Rashi, the great classical commentator on the plain meaning of all biblical and talmudic texts, was hesitant to accept the ruling of R. Shimon, as one may see from the fact that he had to give it a ritual justification – a reason for which there is no suggestion in the text. We are inclined to follow the view of Maimonides, he cites R. Shimon’s declaration without any further comment [Mishneh Yotah, Hilchot [???] 1:10, cf. his perush to the Mishna 8a (sic.)]. In this case, we have before us a perfect combination of economic and moral feasibility. Not to allow the exploitation of the poor was indeed acting for the sake of God.
R. Yehuda went even further [than R. Shimon, who simply said the law was not one that would ever happen in reality, simply because no parent would hand over their child for death simply for stealing and consuming a large amount of fine meat and wine]. He [Rabbi Yehuda] "interpreted" [quotes in original] the biblical text in such a manner as to show that if you followed its literal meaning, it would be hardly possible to make any use of this law.Rabbi Berkovits cites Rabbi Yehuda’s extensive list of qualifications (the parents must have the same voice and appearance), with Rabbi Berkovits’s obvious intent being that Rabbi Yehuda invented these qualifications so as to limit the law. Rabbi Berkovits similarly interprets the law of the idolatrous city; the presence of a mezuzah invalidates the entire law, which Rabbi Berkovits interprets as a creative way that the Rabbis annulled the law.
Rabbi Berkovits brings other laws that were decided based solely on such moral principles as a person’s honor (Berachot 20a), shaming the ignorant and poor (Hagiga 3:7 and 26a, Moed Katan 27b, Ta’anit 26b and 31-32), "the ways of peace" (Gittin 59a-b, Tosefta ad. loc.), "and you shall do that which is right and good in the sight of the Eternal" (Deuteronomy 6:17-18; Baba Metzia 35a, 83a, 108a), and other concerns. In all these, Rabbi Berkovits shows that it was not strictly legal considerations, but rather moral ones, that precipitated the ruling.
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