If I were to ask you to define halacha, even in the most general terms, you’d face the same difficulties as you would in trying to characterize a language such as English. Halacha varies from period to period and community to community. Naïve attempts to define halacha as what’s written in some canonical book fail for many reasons. Halacha pre-dates those books and in fact there is no book that perfectly captures even what any specific community thinks of as canonical halacha. Books such as the Mishna Berurah are canonical only because many people in particular communities have accepted them as canonical; but this very claim regards communal acceptance as more fundamental than the content of the Mishna Berurah. (I couldn’t have said that community standards are decisive because the Mishna Berurah said so. You’d immediately see that had things backwards, wouldn’t you?)

But we can easily understand halacha in all its instantiations as a process. As in the case of language, halacha develops through the interaction of expansion and aggregation. People, armed with some base of halachic knowledge, make moral judgments all the time. Some consensus regarding some matter becomes apparent and is incorporated into the base. And so on.

Just as we use some language instinct to guide the way we sub-consciously infer patterns in the English we hear and read, we use some moral instinct to guide the way we sub-consciously infer patterns in the halacha we learn. Just as the language instinct constrains the ways in which we can expand language but doesn’t strictly determine a particular one, so our moral sense constrains the ways in which we can expand halacha without determining a unique possible expansion. And just as the process of expansion and aggregation of language is fundamentally a social phenomenon and not a solitary one, so too the expansion and aggregation of halacha is a social phenomenon.

Now, I can feel your nagging discomfort already. How can I claim that the expansion of halacha requires a moral instinct? First of all, perhaps halacha could simply be generalized according to formal principles of inference, such as Occam’s razor, without resort to mushy instinctive moral principles that are not already inherent in the system? Second, how could moral instincts play any role in resolving questions of arid ritual?

The second question is based on a typically modern misunderstanding of the moral instinct that I will address in my next post. The first question is rather naïve. Just as language would be wildly under-determined from a finite example set without the constraints imposed by the hard-wiring of our brains, so too halacha would be wildly under-determined without moral instincts. Every time the gemara reads a mishna, a rishon reads a gemara, or an acharon reads a rishon, the scope of some previously-unconditional halacha is defined (a device known as an ukimta). These ukimtot are not inherent in the given material; they result from the interaction of the received halacha and the conclusion that the interpreter instinctively knows must be right. This instinct is the moral instinct (broadly construed, as we'll see in my next post).

There is, however, one basic difference between language as process and halacha as process and this difference leads to many others. The principles of aggregation are exogenous to language but endogenous to halacha. In other words, the rules of grammar say nothing about how consensus is formed with regard to linguistic expansion. But halacha has a great deal to say about whose intuitions carry more weight and whose carry less in forming consensus. Consequently, aggregation of halachic judgments entails more formalization than does aggregation of linguistic intuitions. Similarly, halacha itself places great value on continuity within halacha, while language itself is indifferent to the continuity of language.

In short, the expansion and aggregation of halacha are both performed much more consciously than the analogous linguistic phenomena. In this light, let’s look at the interaction of the two stages a bit more carefully. Individual moral judgments are instinctive, but they might easily be tainted by self-interest of various sorts. I don’t mean simply that people might over-ride their moral judgments, behaving according to other considerations while acknowledging that they are doing so. I mean that moral judgment itself can be murky due to interference by other considerations. The process of aggregating these individual judgments serves multiple purposes. First, it winnows out the effects of self-interest since these will inevitably vary from individual to individual, while the authentic moral core will not. Second, it renders collective judgments explicit so they can be preserved for future generations. Third, it founds morality on the basis of reason by identifying (or aspiring to identify) the nearest approximations of collective instinctive judgments that can be justified. (Not that it matters, but this bears on a classic dispute between the Scottish philosophers who said all moral judgments are instinctive and the French philosophers who said they were based on reason. Individual judgments are indeed instinctive, but collective ones are founded on reason.) On the other hand, as a conscious process, formalization itself can be corrupted by the self-interest of individuals or groups that are over-represented in the aggregation. We’ll get to this eventually.

Now we get to the point. Once we are dealing with a dynamic system in which the dynamics (rules of aggregation and formalization) are determined by the system itself, we are faced with questions about equilibria. In very crude terms, we might think of it this way. Suppose that the established content of halacha at some given time is sufficiently coherent that most people instinctively expand it in similar ways. It is therefore likely that the aggregation methods used by halacha at that time will credit that consensus. Thus, consensus is reached regarding most issues and halacha evolves in accord with it, creating a further basis amenable to reaching of consensus, and so on in a virtuous cycle. Then halacha is in a healthy equilibrium. But suppose now that the content of halacha at some given time is incoherent, so that there is great variance in the ways individuals expand it. This would likely lead to aggregation methods that concentrate weight on a minority of participants, increasing the variance further. This vicious cycle leads either to schism or total disintegration.

What might the whole halachic system look like if it were far from a good equilibrium? In the next few posts, I’ll try to answer this question from several perspectives. I will argue that the halacha, like any moral system, requires a code that balances different kinds of moral instincts, a narrative that allows practitioners to find meaning in the system, and criteria for determining who is a member of the community. Each of these works when halacha is near a good equilibrium and fails when it is not.