Torat Hesed and Torat Hayyim: Learning Torah as a Living Document

American law, like Halakhah, rests upon documents at the heart of its legal system.  This gives rise to the ongoing debate as to whether the American Constitution should be read as a “living document” whose words can be understood and interpreted in various rational and logical ways to reflect the fluctuating needs and trends of society, or as reflecting only the “original intent” of the Constitution’s authors regarding how to understand the law.  In this vein, Supreme Court Justice Antonin Scalia, a leading voice of the “original intent” school, once commented that “the Constitution is not a living organism […] it’s a legal document,”[i] and legal decisions must therefore be based on probing the author’s original intention in formulating the text.  On the other hand, Justice William Brennan Jr. maintains that “the genius of the Constitution rests not in any static meaning it may have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs;”[ii] thus, the words of the Constitution can be analyzed and expanded upon based on cultural trends and societal demands.

Shifting this mode of analysis into the discussion of talmud Torah, we are faced with a similar question.  If a given text becomes accepted or incorporated into the corpus we call “Torah,” does the author’s original intention define how we must understand the text or legal decision, or can we approach the text and legitimately suggest any interpretation which fits into our overall conceptual or analytical framework?  Are we trying to probe Rava’s intentions when we study his view?  Does Rambam actually agree with R. Hayyim’s Hiddushei Rabbeinu Hayyim ha-Levi al ha-Rambam, which presents novella on Rambam’s teachings?  Similarly, can we suggest an interpretation of a text if the author himself offers a different explanation in a responsum?[iii]

In his essay, “Torat Hesed and Torat Emet: Methodological Reflections,”[iv] R. Aharon Lichtenstein explains that any given text has two layers of meaning and can be approached in two ways: through the aspects of Torat hesed and Torat emet.  While any given text is naturally infused with the author’s intentions, the Torat emet, there is also latent in that text the potential for alternative understandings and approaches, namely the Torat hesed.  Developing this point, Rav Lichtenstein explains that Hakhmei Yisrael (the “wise men” of the Torah tradition) have

“a dual corpus: their Torat emet – that which, as best as can be perceived, constitutes, [sic] an accurate statement of their consciously willed position; and their Torat hesed – the possible multiple readings of their dicta which, in a sense, lead their own lives, regarded both as independent entities and in relation to the halakhic order as a whole.”[v]

In this light, R. Lichtenstein explains and analyzes the words of Rishonim in alternative and innovative ways – without concerning himself with apprehending the mind of any given Rishon – because his primary concern is learning “the Torah of Rishonim.”[vi] Thus, although understanding the Rishon’s viewpoint would be an exercise in studying the Torat emet of his words, when R. Lichtenstein approaches a sugya (Talmudic discussion), his understanding “is marked by vitality and growth”[vii] as he works to learn the Torah as a living entity with multiple levels of meaning that can transcend the author’s viewpoint.

R. Lichtenstein clearly serves as a rav ha-makhshir (a rabbinic kashrut certifier), if not more than that, of learning with such a perspective.  However, in addition to explaining what we are really doing when learning Torah, this theory, I think, can safeguard traditional learning from potential criticism.  In this light, I would like to share some thoughts which demonstrate how and why R. Lichtenstein’s view is so important for an inquisitive mind that approaches traditional talmud Torah in search for truth.

My first thought relates to the general notion of intellectual endeavor.  As a rule, what does the study of a given discipline mean?  Studying Physics, for example, means achieving understanding of the universe and laws that govern the world in which we live.  Studying Biology means learning about the cells and DNA of organisms.  Therefore, in order to study these fields, a student will look to the experts in the field and, using the hierarchy of significant opinions, attempt to understand and grasp the particular discipline.  When studying Physics, names like Newton and Einstein are revered and respected, while biologists embrace the works of Watson and Crick.

However, is anything which these experts say in their fields inherently meaningful or correct?  Of course not.  Newton, Einstein, Watson, and Crick are only meaningful to their fields if the scientific evidence supports their theories.  Since their ideas have been proven, their contributions are significant.  Thus, if an expert carried his correct theory to a faulty conclusion, or even if a correct conclusion emerged from an incorrect assumption, the result is nonetheless meaningful and truthful, because we ignore the particular understanding of the individual and focus on the truthful component involved.  Ultimately, all that matters is that the theory can be proven correct in the context of the larger field of study.  Thus, while the expert’s particular understanding, interpretation, and perspective comprise a fascinating component of the intellectual history of his or her personality and field, they are insignificant in relation to the veracity of the emergent ideas.

Similarly, if talmud Torah were based on the authority of individual Hakhmei ha-Masorah and their contributions, then we would be compelled to study their personal interpretations and views.[viii] However, because talmud Torah is the study of a legal system which transcends the individual contributors, we must separate the contributions and understandings of each figure and focus on the entity of Torah as an independent discipline.  Thus, when approaching a halakhic topic, our goal is to understand the law with all its complexities and nuances.  Just like a physicist studying relativity theory guided by Einstein’s insights, the ben Torah approaches a halakhic topic with the aid of the Hakhmei ha-Masorah in an attempt to analyze and comprehend the profundity of the Torah. Although understanding the view of a particular Rishon might be a fascinating study in intellectual history, it is not important for talmud Torah.

In other words, talmud Torah is the study of Devar Hashem (the Word of God).  It consists of analyzing and understanding Halakhah, the legal code which God transmitted to mankind.  Thus, studying Torah entails apprehending and appreciating all the laws, details, and permutations.  That being the case, any given thinker’s interpretation or understanding is insignificant. Learning a halakhic text means viewing the words as if they are alive and can be continually reinterpreted and re-understood, much like the way we approach the Constitution if we regard it as a living document.  Therefore, it is only in light of R. Lichtenstein’s approach to talmud Torah that hours spent analyzing a halakhic text can be seen as an exercise in the Torah of the Hakham ha-Masorah, and not simply as a study in theoretical thinking or intellectual history.  Thus, as traditional learning appears to be the study of ideas and texts, R. Lichtenstein’s penetrating insight allows the modern student to feel that talmud Torah is not a dry and arid study of a particular figure’s viewpoint, but rather a probing of the depths and brilliance of the divine legal system.

Moreover, and R. Lichtenstein makes this point in passing, viewing talmud Torah as a search for historical accuracy poses an additional problem.  If I were really searching for Rambam’s viewpoint in his writings, I would be better advised to study his culture, family history and societal influences, as well as who his teachers were and what their methodology was.  I should find out what girsa (version of the text) he was reading and ascertain the areas of Halakhah in which he was best versed.  I should determine which parts he wrote when he was young and which he wrote when he was older.  In fact, this is exactly what Academic Jewish Studies entails.  As R. Lichtenstein notes, “the world of the Wissenschaft[ix] envisions itself as primarily devoted to Torat emet.  It focuses upon facts, is committed to the hegemony of authorial intent, and is marked by a measure of austerity – critics would say, of aridity.”[x] However, because the goal of traditional learning is to understand Halakhah, the divine and transcendent legal system to which Rambam contributed invaluable insight, we can and must study his words and ideas without the limitations or backdrop of his personal viewpoint.

Nonetheless, understanding Rambam’s view of his work, or his life in general, based on the questions posed above, is certainly a fascinating and intriguing issue for a ben Torah who reveres Rambam.  However, these pursuits are best carried out in the halls of academia and not in the beit midrash.  Such questions are irrelevant to the lamdan (the trained and skilled student of Torah law).  When one learns Torah, he learns God’s law.  Law, by nature, transcends its individual contributors.  It is the compilation of countless debates, discussions, and decisions. Halakhah is a living system of law which is composed of all the contributions of the Hakhmei ha-Masorah, culled from logical, analytical, conceptual or other modes of analysis.

Danny Shulman is a senior at YC and SSSB majoring in Jewish Studies and Accounting and is a Staff Writer for Kol Hamevaser.

[i] Chris Tisch, “Scalia at Stetson Praises Original Intent View of Constitution,” St. Petersburg Times(April 5, 2007), available at:

[ii] “Biography of William J. Brennan Jr., Associate Justice of the U.S. Supreme Court,” Arlington National Cemetery Website, Historical Information, available at:

[iii] Marc Shapiro asks this question in “The Brisker Method Reconsidered: Review Essay,” Tradition 31,3 (1997): 78-102.

[iv] R. Aharon Lichtenstein, “Torat Hesed and Torat Emet: Methodological Reflections,” Leaves of Faith: The World of Jewish Learning (Jersey City: Ktav, 2003), pp. 61-87.  Also see Marc Shapiro’s review essay (ibid.) for a similar discussion of this topic.

[v] R. Lichtenstein, “Torat Hesed and Torat Emet,” p. 80.

[vi] Ibid., p. 78.

[vii] Ibid., p. 63.

[viii] A corollary to this point is the fact that non-halakhic works of Rishonim (philosophical works, etc.) have neither the status of talmud Torah nor the flexibility of interpretation being afforded them in halakhic contexts.  However, this is assuming that such works are not within the purview of halakhic analysis.  In some instances, it is possible that they are within this purview.  Alternatively, it is possible that such works are otherwise meaningful, because they instruct us regarding the particular thinker’s view of a pressing issue.  Said differently, surely it is worthwhile to know what someone as esteemed as Rambam thinks about ta’amei ha-mitsvot (the reasons for the mitsvot) or Creation, regardless of the question of whether this view can be considered as formal talmud Torah.

[ix] A movement of Jewish intellectuals dedicated to the scientific study of Judaism.  These 19th-century German thinkers were the forerunners of modern academics of Jewish Studies.

[x] R. Lichtenstein, “Torat Hesed and Torat Emet,” p. 83.