What Is This Thing Called Law?

The Jewish Legal Tradition and Its Discontents
What Is This Thing Called Law?
The Judgment of Solomon Raphael, 1519. Palazzi Pontifici, Vatican.
 
Essay
Joshua Berman
Dec. 1 2013

The headline-making issues facing American Jews and Judaism are all too obvious from the statistics gathered in the latest Pew report: climbing rates of out-marriage, growing numbers of Jews with no interest whatsoever in Judaism, a noticeable distancing from Israel. Only among the religiously observant, it seems, is the continuity of a vibrant Jewish life secured.

But whatever partial comfort is to be had from this last finding, it would be wrong to conclude that Jews who remain deeply immersed in the practice of Judaism and highly affiliated with Jewish institutions are without troubles of their own. To the contrary: in Israel as well as in the Diaspora, these communities are embroiled in fierce internal debates over any number of contemporary issues—the public role of women in synagogue life; the requirements for conversion to Judaism; and others—that threaten their own cohesiveness and future vitality.

The debates themselves reflect an ongoing tension—indeed, an age-old tension—between the impulse for traditionalism and the counter-impulse for adaptation and change in the light of shifting circumstances. For many tradition-minded Jews, the issue comes down to one of halakhah, which is to say religious law and its proper interpretation. Spirituality, community, personal growth, views of the future and of the past: all are mediated through the scrupulous practice of halakhah, the “portable homeland” of the observant Jew for more than two millennia. In addressing these and other issues, such Jews turn reflexively to see how the Jewish legal tradition has addressed similar issues in the past, and how past legislation informs the religious decisions they make today.

But (with apologies to Cole Porter) what is this thing called Jewish law, and what is the Jewish legal tradition?

In invoking law, or in equating halakhah with law, observant Jews tend to have in mind a specific view of what law is and how it operates. That view is captured in phrases like “uphold the law,” “comply with the law,” “the letter of the law,” “against the law.” All of these usages share a basic assumption: namely, that the law in question is a written formulation and is to be found in a law code.

And yet this very notion—that by “law” we mean written law found in a law code—is itself a relative newcomer in the history of legal thought. Once upon a time, the norms of society—even of Jewish society— were not written. There were no codes.

What follows is the story of how the word “law” came to take on its modern meaning and—more pertinently—how this understanding has put Jews out of touch with much of their own legal tradition. Revisiting that tradition can in turn allow a fuller appreciation of contemporary debates within observant Jewish communities and contribute some fresh thoughts about the delicate balance between continuity and change in the halakhic process.

 

1. Statutory Law vs. Common Law

In thinking of law as something contained in a codified text, most people have in mind what legal theorists call statutory law—not in the American sense of “statutes,” or isolated pieces of legislation, but in the sense of a legal system in which the primary source of law is codes. In this conception, only what is written in the code is the law, and the code supersedes all other sources of norms that preceded the code’s formulation. Therefore, courts must pay great attention to the wording of the text and cite the text in their decisions. Where explicit legislation is lacking, judges must proceed with the code as their primary guide.

For many of us today, this approach to law is intuitive and even unremarkable. Yet as recently as the early 19th century, the vast majority of Germans, Englishmen, and Americans thought about law in very different terms—namely, in terms of common law. In that view, a judge arrives at a decision based not on a written code but on the mores and spirit of the community and its customs. Legal norms develop, gradually, through the distillation and continual restatement of such court decisions, and judges are empowered incrementally to modify those norms in consultation with previous judicial formulations. Critically, the judicial decision itself does not create binding precedent. 

As a system of legal thought, common law is consciously and inherently incomplete, fluid, and vague. When decisions and precedents are collected and written down, the resultant texts do not become the source of law but rather a resource for later jurists to consult. Every decision, in the words of the early-19th-century theorist John Joseph Park, becomes “a datum from which to reason,” allowing judges to address new needs and circumstances by reworking old norms, decisions, and ideas.1

Common-law thinking has flourished in communities where common values and cultural touchstones were maintained by all. In the pre-modern period, when villages were small and homogeneous, families typically lived in the same place for generations and expected to do so into the future, sharing with others a common language, religion, and heritage as well as common economic opportunities and common enemies. In these circumstances, there was no need for societal norms to be legislated, let alone written down. What was expected of a person in attitude and behavior was part of the warp and woof of day-to-day life. There were no “jurists” as a professional guild. Village elders, in possession of the wisdom of the ages, determined on an ad-hoc basis the best redress for the situation at hand.

Where cohesion breaks down, however, and the continuity and homogeneity of small communities are torn asunder, it becomes difficult to anchor law in a collective set of mores and values. There are some ancient and less than ancient precedents for this. The first written Greek laws, which date to the middle of the 7th century B.C.E., proliferate in just the period when Greek city-states were developing more formal political systems. Roman law, canon law, and even the English writ system represent attempts similarly to systematize law across locales. But it is only with the onset of modernity that the pattern becomes truly widespread.

In 19th-century Europe, with large-scale urbanization and the rise of the modern nation-state, disparate individuals were coalescing into social and political entities of ever greater scope. What was needed to unite a heterogeneous populace around a single code of behavior was, among other things, a clearly formulated set of rules to bridge the behavioral and attitudinal differences among constituent citizens.2 By the end of the century, legal codes were being drafted across much of the Western world; the statutory approach had won the day.

This remains the case today. For us, citizens more often than not of heterogeneous and sometimes multilingual political entities, far removed from the spirit that animated the common-law jurisprudence of the past, codified law is law.

 

2. Before Judaism Had Codes

In the beginning—that is, in the Bible—there was no Israelite “law” in the sense of a statutory code. Indeed, there was no such law anywhere in the ancient Near East.

I can hear the reader asking: really? What about what is often called history’s first law code, the Code of Hammurabi, which dates all the way back to the early second millennium B.C.E.? As scholars have reluctantly come to conclude, that famous document is in fact no code at all.

French archeologists discovered the Code of Hammurabi while digging in 1901 at Susa, ancient Shushan. There they unearthed an imposing seven-foot-tall column of black diorite inscribed with cuneiform writing on all sides; today it stands as the marquee holding of the Louvre in Paris. Quickly translating the Akkadian script, written around 1750 B.C.E., scholars found that it contained provisions—282 of them, to be exact—like this one:

[55] If anyone opens his ditches to water his crop, but is careless, and the waters flood the field of his neighbor, then he shall pay his neighbor corn for his loss.

And this one:

[229] If a builder builds a house for someone, and does not construct it properly, and the house that he built falls in and kills its owner, then the builder shall be put to death.

Seeking to define the nature of this text, its early decipherers reasoned that since it looked like a law code, and read like a law code, it had to be a law code. This­ was, after all, the early 20th century, and every civilized country in Europe was beginning to champion statutory law. Moreover, evidence was quickly adduced to support this thesis in the form of more than fifty fragments of the Code found all across the Mesopotamian region. These fragments, copies that had been made over a period of more than 1,500 years, revealed virtually no adjustments of content, further cementing the impression that the Code of Hammurabi—or CH, as scholars refer to it in shorthand—enjoyed canonical status throughout Mesopotamia and was unrivaled as the source of law.

Around the middle of the 20th century, however, cracks began to appear in the scholarly consensus. For one thing, it was well known that throughout the ancient Near East, there had been wild fluctuations of economic inflation and deflation; nonetheless, the financial penalties mandated by the Code for various offenses remained unchanged everywhere in the epigraphic record. For another thing, significant areas of day-to-day life receive no attention at all in the Code; for example, there are no stipulations relating to inheritance—inexplicable in the binding law code of a culture. 

Even more puzzling was the evidence from the archeological record. Copies of CH showed up in royal archives and in temples, but never at the sites of local courts, and never together with the thousands of court dockets that were coming to light from ancient Mesopotamia. Most puzzling of all: not one of those court dockets ever refers to or cites CH—or any law collection—as a source of law. Finally, and crucially, many court dockets record proceedings of cases whose remedy CH directly addresses but in which the judge rules counter to the Code’s prescription.

These complications raised two inter-related questions. If collections like CH did not contain the law, where could the law be found—where was it written? And if texts like CH were not statutory codes, what were they?

Where was the law written in Mesopotamia? The answer is: it wasn’t. A judge would render a decision by drawing on an extensive reservoir of custom and accepted norms. Such decisions would vary from locale to locale. One could not point to an accepted text of the law as the final word on what the law was or prescriptively should be. Philology here speaks volumes: in ancient Greece, the word for written law was thesmos and, later, nomos. But, as we have seen, that was Greece. Nowhere in the cultures of the ancient Near East is there a word for written law. The concept does not exist. 

So if CH wasn’t a collection of laws, what was it? Both it and other such collections are anthologies of judgments—snapshots of decisions rendered by judges or perhaps even by the king himself. The domain of these texts was the ivory tower of old: the palaces and the temples, the world of the court-scribe. The collections offer a model of justice meant to inspire: a kind of treatise, proceeding by way of examples of the exercise of judicial power. They are records of precedent, not of legislation.

 

All of this throws great light upon what we call law in the Bible.

Nowhere does the Bible instruct judges to consult written sources.3 Nor do narratives of adjudication, like Solomon’s “split the baby” trial in the book of Kings, make reference to written sources of law. Nor do any of the collections of biblical “laws”—like those in the so-called Book of the Covenant (Exodus 21-23) or those enumerated in chapters 12-26 of Deuteronomy—strive to provide a comprehensive set of rules to be applied in judicial cases.

Similarly, as in CH, critical aspects of daily life receive no legal attention. The Torah clearly endorses and sanctifies the institution of marriage, for example; yet, if you want to get married, it nowhere says just what you have to do, ritually or contractually. In a work of statutory law, that would be unthinkable.

Let’s look at two examples of how law in the Bible is negotiated through a common-law mentality. Recall the parable of the poor man’s ewe in the book of Samuel.4 David has slept with Bathsheba, the wife of Uriah, one of his soldiers on the battlefront. The prophet Nathan wishes to compel the errant king into an awareness of his misdoing. He brings up a fictitious case in which a man blessed with large flocks steals and slaughters the ewe of his neighbor, a poor man who owned nothing but the ewe, which he loved very much.

The king does not realize that the parable is a metaphor of his own lust for women, of whom he has had many. Asked by Nathan to adjudicate this hypothetical case, he imposes a punishment on the thief. Now, if biblical law were statutory law, David would need only to consult Exodus 21:37: “If a man steals an ox or a sheep and slaughters it or sells it, he shall pay five oxen for the ox and four sheep for the sheep.” David, however, deviates from this ostensible statute. In addition to obligating the thief to four-fold restitution—as per Exodus—he also sentences him to death.

From a statutory perspective, David’s actions are out of line, a violation of the cardinal tenet of strict construction: interpreting the law as literally as possible. Seen as common law, however, the proposal in Exodus of four-fold restitution for a stolen and slaughtered sheep is not prescriptive but rather an example of justice in the given circumstances: presumably, a case of the thief’s need for food or cash. David, clearly aware of the Torah’s teaching, applies it to a case in which the thief’s actions are flagrant and contemptible in the extreme. The thief is not some poor person desperate to feed his family, while the victim is not only poor himself but has been brutally robbed of his only, beloved possession. Such avarice and callousness warrant the perpetrator’s death. 

From the perspective of statutory jurisprudence, David performs a miscarriage of justice. From the perspective of common-law jurisprudence, David, even as he alludes to the verse in Exodus as “a datum from which to reason,” applies justice to the specifics at hand. Within the Bible’s common-law jurisprudence, the word of the Lord is the first word, but not the final word. 

 

My second example reaches deeper and wider, showing how common-law jurisprudence works across the Torah as a whole. This happens most saliently in the book of Deuteronomy, where many legal passages found earlier—in Exodus, Leviticus, and Numbers—are reformulated, in some cases changing the law outright.

Take the laws of debt relief, observance of the paschal sacrifice, and others. Not only do they occur in different forms in different books, but nowhere in Deuteronomy does God issue His standard command to perform the laws contained in that book. There is no “And God told Moses, saying. . . .” Indeed, nowhere in Deuteronomy does Moses even claim that God told him or commanded him to issue these laws. 

Why are laws in the earlier books “God’s laws,” while laws in Deuteronomy seem to be Moses’? The answer is that Deuteronomy presents a record of Moses’ common-law application of earlier teachings. God had spoken at Sinai to a people just released from bondage. Now, with the people poised to enter the land of Israel, Moses interprets and reapplies the laws to accord with an array of challenges they will meet there.5

The idea that divine law can be as malleable as human law no doubt sounds counterintuitive. Humans are fallible and limited in their perspective; God’s wisdom is infinite, and surely His laws cannot be altered. This intuition, however, rests on a misunderstanding. The fluid nature of common law stems only partially from the limitations of the human jurist. It also stems from the fluidity of society itself, a quality of human life to which even divine law must adapt.

This position was forcefully advocated by one of the most creative rabbinic minds of the 19th century: Tzadok ha-Cohen Rabinowitz of Lublin (1823-1900), a great hasidic master. As against the many voices in the rabbinic tradition who have seen halakhah as a relatively static inheritance passed down through an unbroken chain of transmission, Rabinowitz adheres to an alternative view that emphasizes its changing and dynamic nature. This alternative view is substantiated by the way Scripture itself approaches the law. There, laws do not assume a single, immutable form. Rather, the basic institution undergoes restatement and receives new expression through the generations. 

To Rabinowitz, the Ten Commandments themselves were subject to adaptation. The Decalogue, after all, appears in two versions in the Torah. The first is at Sinai, in Exodus 20. The second is in Deuteronomy 5, where Moses “recounts” what God said at Sinai. Remarkably, there are discrepancies—some only of style, but others of substance. 

The rabbis of the Talmud resolve these discrepancies by attributing them to the unique nature of divine speech. When God spoke at Sinai, they explain (Sh’vuot 20b), the complexity of His word could be conveyed only by preserving two separate records of that communication. But Rabinowitz rejects this explanation. For him, God spoke the version recorded in Exodus, while Moses’ retelling of the Decalogue in Deuteronomy is a reapplication of God’s word in accordance with the needs of the new generation about to enter the land.6

The same patterns of reinterpretation and reapplication of a biblical command can be seen with regard to the laws of the Sabbath, Passover, levirate marriage, and many other commandments throughout the Bible. Who controlled these processes of scriptural interpretation and reapplication? Were all laws open to endless revision? Were there foundational principles that guided the process? The Bible is remarkably silent on these issues, registering no anxiety about what for observant Jews today are matters of burning import.

But if the limits and controls of the legal process in biblical times are shrouded in mystery, we do know this: when Israel flagrantly ignored a particular instruction, the prophets would register divine disapproval. Thus, for example, Israel is criticized for completely ignoring the injunction against working the land during the sabbatical year.7 Yet, despite censuring Israel for these and many more grievous failings—theft, murder, idolatry—nowhere do the prophets throw the book at the people for performing a law in a fashion that happens to differ from the Torah’s specific prescription. “So it shall be written; so it shall be done!”—the essence of codified law—was fine for Cecil B. DeMille’s 1956 film The Ten Commandments. But the actual Ten Commandments and many other commandments were interpreted and applied by judges and leaders through the processes of common law.

 

3. From Common Law to Statutory Law

Jewish jurisprudence retained its common-law nature from the close of the biblical period and into the beginnings of rabbinic history. Through varied systems of interpretation (midrash) the rabbis continually engaged anew with Scripture and tradition in a fashion that allowed law to develop over time in response to the needs of the day. Codification of the halakhah was expressly discouraged. Several talmudic sages actually prohibit the commitment of halakhic decisions to writing. In the words of one, “Those who write down halakhot are like those who set fire to the Torah.”8

How then did Judaism come to embrace the legal codes of Moses Maimonides (1138-1204) and Joseph Karo (1488-1575)? When and why did Jewish jurisprudence turn toward statutory law?

As in Greece in the 7th century B.C.E. or in 19th-century Europe, the impetus within Judaism was the same. Whether we look at the redaction of the Mishnah by Rabbi Judah the Prince (circa 220 C.E.), Maimonides’ Mishneh Torah, or Joseph Karo’s Shulhan Arukh, the underlying goal was to achieve an elusive unity. At the same time, since each jurist confronted a distinct social and religious landscape, each employed codification as a means toward a distinct end.

The Mishnah itself, properly speaking, is not a code. It is at most a skeletal outline of Jewish law. Entire areas—the laws of t’filin (phylacteries), Hanukkah, and conversion—are omitted, and only in some instances are prescriptive conclusions reached. Some scholars maintain that the Mishnah was not even written down until well into the talmudic period. Nor do we have a first-hand account from Rabbi Judah of his reasons for formulating this text. It would appear that, rather than compiling a definitive code, he sought to preserve and disseminate a record of protocols and deliberations—a need occasioned by the upheaval and displacement wrought by the destruction of the Second Temple in 70 C.E. and the aftermath of the failed Bar-Kokhba revolt in 135 C.E.

The Babylonian Talmud is likewise a record of discussions and cannot be considered a code of any kind. Indeed, throughout the talmudic period, Jewish law retained its common-law character. During much of this time, the competing needs of continuity and change were mediated by the Sanhedrin, the universally recognized legal authority. Following the Sanhedrin’s dissolution in 358 and the close of the talmudic era, the Geonim of Babylonia (7th-11th centuries) penned digests of specific areas of law.

Not until Maimonides did anyone truly codify the halakhah. Not only did his Mishneh Torah, completed in 1180, have no precedent in the annals of Jewish law; it has no precedent in the history of legal codification. When Greeks and Romans and others codified their laws, they did so (as we have seen) in order to unite disparate peoples and incorporate them into new and large polities. Maimonides wrote his code to achieve the converse: to preserve the unity of a single people facing ever greater dispersion. Keenly aware of the original nature of his work, he explained its historical impetus in just these terms.

So long as the great yeshivas of Babylonia flourished, Maimonides writes, Jewish learning and knowledge were at their height; in his own day, however, these institutions are but a distant memory. Now the Jewish people face unprecedented dispersal, compounded by political instability. For the Jews of these newly far-flung communities, mobility and communication are severely limited, and hence ignorance has soared. Maimonides conceives of his code as a solution. If Jews cannot gravitate to centers of learning, the code will come to them, providing clear instruction in all spheres of halakhic life.

What was the fate of Maimonides’ bold innovation? Some communities embraced his Mishneh Torah as a statutory code. Many others came to regard it as a source to consult while electing to retain autonomy of rule and practice. It took another four centuries and the composition of Karo’s Shulhan Arukh, completed in 1563, for codification to reach its apex.

Karo had personally experienced the expulsions from Spain in 1492 and Portugal in 1497. In his introduction to Beit Yosef, the longer work of which the Shulhan Arukh is a condensation, Karo reveals that he wrote the code to save Judaism from an unanticipated threat—namely, Judaism itself. For seven centuries, commentaries on the sources had flourished along with the expansion and application of the Talmud’s legal discussions. In Spain, Germany, and France, great traditions of learning had emerged, each with its own interpretations of the Talmud and its rulings. The printing press, now a century old, allowed access to the plethora of these commentaries and interpretations.

If Maimonides composed his code to grapple with the spread of ignorance, Karo composed his to grapple with the spread of knowledge and conflicting interpretation. “It is not that we have today two Torahs,” he wrote. “Today we have an infinite number of Torahs”—a blessing in itself but one that threatened the future cohesiveness of Jewish practice. His code would serve as a unifying element. Aware of his enormous personal stature and the sway his work would have, Karo offered a homily on his given name: “[The biblical] Joseph saved an entire populace, providing them nourishment of the body. I do the same, providing nourishment of the soul.”

Karo’s hopes for the reception of his code were well placed. Many today would define an Orthodox Jew as someone who adheres to halakhah as laid down in the Shulhan Arukh. Yet, in the first decades following the work’s publication, the reception was far from uniformly enthusiastic. Rabbinic luminaries like Yehuda Loeb ben Bezalel (c. 1520-1609), the famed Maharal of Prague, and the eminent talmudist Shlomo Luria, known as Maharshal (1510-1573), regarded Karo’s reform as radical and misguided. They clung to a common-law view of the halakhic process as a continuing conversation among authorities applying principles articulated in the Talmud to an array of dynamic and changing situations. To them, the often indeterminate nature of talmudic discourse was a wellspring of elasticity. The rule of the code, they warned, would end all this, while also placing in jeopardy the privileged status of local custom rooted in tradition.9

What about the danger of Judaism’s becoming subject to “an infinite number of Torahs,” as Karo warned? To the contrary, wrote Luria, the multitude of opinions was to be celebrated. The souls of Israel are each endowed with different capacities, he observed, and each may be considered to bear an aspect of a larger truth.10 Halakhah, in this thinking, positively resists unity of expression.

The battle lines were now drawn, and the debate raged for several decades. Within a century, however, Karo’s code became accepted as the benchmark of Jewish law. 

 

4. Negotiating a Dual Legacy

Under the seminal influence of H. L. A. Hart’s The Concept of Law (1961), modern jurisprudence in general has sought a balance between the two poles of statutory and common law. In Judaism, however, consensus over how to achieve such a balance has proved elusive. Instead, over the past decades, the war over the nature of Judaism’s jurisprudential soul has reignited, affecting Orthodoxy in particular but also the already sensitive relations between Orthodoxy and other denominations.

On one side of the denominational divide (to begin there) is the modern Conservative movement, which like Orthodoxy accepts the binding authority of halakhah (a point of differentiation between it and Reform Judaism, which does not). The movement’s Committee on Jewish Law and Standards follows a common-law approach, frequently citing and finding inspiration in earlier rabbinic critics of code-based ruling.11

Orthodox jurists have frequently argued that the Conservative approach neglects or negates proper halakhic processes, but that is an unfair criticism. To reach a decision based on the Talmud rather than by rigidly following the codes is to follow in the best tradition of Jewish jurisprudence, arguably from Sinai until the medieval period; today, just as in the past, such an approach can infuse halakhah with contemporary vitality. But there is a more valid criticism: for a movement that places a premium on sensitivity to historical developments, the insistence of Conservative halakhists on retaining a highly fluid common-law jurisprudence itself reveals historical short-sightedness.

As we have seen, cultures far and wide have turned to codification to achieve unity, and Judaism is no exception. Were Maimonides and Joseph Karo mistaken in undertaking their work? If Jews four centuries ago had followed the lead of the Maharal of Prague and Shlomo Luria, where would we be today if not face to face with “an infinite number of Torahs”? Would there not be one Judaism on the Upper West Side of Manhattan, another in the Bronx, several more in Brooklyn, and still more in Jerusalem’s ultra-Orthodox neighborhood of Meah Sh’arim? 

It is true that in ancient times, the House of Hillel and the House of Shammai issued widely divergent rulings and yet retained their standing as partners in a unified Jewish people. But back then there were only “two Torahs,” and adherents of those schools lived in integrated communities. Such ancient precedents have little relevance to the religious and demographic complexity of the contemporary Jewish world. Although I am sympathetic to the Conservative movement’s attempt to invigorate halakhic practice within the best tradition of talmudic jurisprudence, I don’t see how that can be responsibly executed with an eye toward the unity of the Jewish people and of Judaism itself.

Unfortunately, there is scant recognition or discussion of this dilemma among advocates of Conservative halakhah.12 Perhaps they believe that Jewish unity has been irreparably shattered, and that the best we can hope for is to adjudicate according to the needs of our respective communities. Or, conversely, perhaps they believe that greater jurisprudential freedom will itself guarantee Jewish unity and that only a more inclusive halakhah can succeed in retaining Jews who are today only marginally affiliated with organized Judaism. Both of these positions are open to criticism.

 

What, then, of the Orthodox camp? Ever since the publication of the Shulhan Arukh, an extensive body of Orthodox responsa has been composed, displaying all the legal expansion and creativity characteristic of common law. In practice, however, only on rare and extreme occasions do today’s Orthodox jurists rule contrary to the codified prescriptions found in the Shulhan Arukh or in the glosses to it by Moshe Isserles (1520-1572) reflecting the customs of Ashkenazic Jewry.

In other words, Judaism’s dual legacy poses the opposite challenge to Orthodoxy that it does to Conservatism. For Orthodox jurists, fidelity to a system of codes means that halakhah cannot respond with the flexibility it once displayed, and halakhic adaptation to changing circumstances is a very slow process. Indeed, some would argue that it is only getting slower: in a seminal essay, Haym Soloveitchik has traced the process by which, in recent decades, the statutory nature of halakhah has produced an ever greater rigidity.13

On this point, however, it may be helpful to examine two movements currently seeking to effect change within the parameters of classical Orthodox jurisprudence. The fact that one campaign has met with greater acceptance than the other sheds light on the dynamics of decision-making in a code-based, traditionalist world in which decision-making is ringed about with caution and hesitancy.

One effort now under way addresses the role of women in the public sphere of Orthodox life. Two key issues here are the ordination of women as rabbis and women’s assumption of certain liturgical roles hitherto restricted to men. The paramount halakhic figure supporting both of these changes is Rabbi Daniel Sperber, a distinguished talmudist, a recipient of the Israel Prize—the country’s highest civil honor—and the world’s leading expert in the history of Jewish customs.14

The other effort seeks greater latitude in the requirement that candidates for conversion to Judaism in Israel display a commitment to full halakhic observance. This movement for change was prompted by the mass arrival in the 1990s of emigrants from the former Soviet Union; within their ranks were more than 300,000 individuals who were of Jewish lineage but unable to prove direct matrilineal descent. The state’s Law of Return regards such individuals as Jews for the purposes of aliyah and therefore automatically entitled to citizenship. Halakhah, however, requires matrilineal descent for an individual to be considered Jewish. Today, it is estimated that some 5 percent of all marriages in Israel are between Jews and immigrants (or their descendants) who are not considered halakhically Jewish; and the number is rising.

How are these two efforts faring? Arguably, it should be easier, on classical halakhic grounds, to build a case for women’s ordination than for lowering the bar of commitment to Judaism by candidates for conversion. And yet many more rabbinic authorities have come out in favor of leniency in the latter instance than have come out for women’s ordination.15 The chief rabbis of Haifa, Ramat Gan, and Kiryat Arba are among the many Orthodox authorities pressing the cause of the immigrants from the FSU, while only a small circle in the United States has endorsed Sperber’s writings on behalf of women rabbis.

Why is this so?

First, the question of women’s ordination requires Orthodoxy to confront the question of its relationship with feminism more broadly. Generally speaking, when Orthodoxy finds itself challenged by shifts in the cultural winds, it is thrown on the defensive. Feminism itself speaks with many voices, some of which are openly antagonistic to Orthodoxy. One line of feminist criticism maintains that Judaism as a whole is irredeemably “androcentric” in its theology and law, and needs to be completely reconstructed in egalitarian fashion. Rightly or wrongly, then, Orthodoxy fears that giving an inch in its engagement with feminism can lead ineluctably to the demand that it give a mile, or more.

By contrast, the conversion issue in Israel is a product not of a Western-influenced Zeitgeist but of a practical and entirely home-grown dilemma. Spurred by its best Zionist impulses, the state of Israel took in as many exiles as possible, as quickly as possible—with the natural consequence that among them were many lacking halakhically approved credentials. The resolution of this issue—one way or the other—will have vast implications for Israeli society, but in grappling with it Orthodoxy need not worry about falling hostage to an ideology inimical to itself.

Second, the tactics employed by each movement have played a role in determining the degree of support it has garnered. Inspired in part by Sperber’s writings, a few Orthodox figures in the United States have taken the unilateral step of issuing ordination to qualified women without waiting for broad consent or institutional backing. Such a move by any rabbinic figure, on any issue, is bound to elicit pushback from other members of the community. Will these unilateral moves nevertheless lead to an eventual consensus favoring women’s ordination in the community at large? Or have they and the reaction to them actually retarded a process that has already seen the recognition of women as halakhic arbiters in some areas of family law and that in the absence of this latest episode would have moved forward naturally on its own? Only time will tell.

By contrast (again), the movement in Israel to relax conversion standards for the immigrants from the former Soviet Union has progressed by establishing a consensus. Of the many community leaders who endorse this cause, none has proposed instituting independent rabbinic courts to carry out the conversions. All maintain that the process should be enacted only within the system of state-run rabbinical courts—in other words, with the stamp of legitimacy both of the state and of the chief rabbinate. Although the result on the ground so far is stasis, the restraint demonstrated by leaders of the movement has helped to draw a growing number of adherents to their side. Will a political constellation arise to enable their agenda to be actualized, or will some rabbis end by breaking from the state-run apparatus? Again, only time will tell.

Taken together, these two examples suggest a primary reason for the slowness of change in contemporary halakhic jurisprudence: the historically unprecedented complexities of our times. In 15th-century Germany, halakhic authorities ruled for the first time that during Passover a Jew could retain possession of leavened items (hametz) in his property by formally selling them to a non-Jew prior to the holiday. At the time, the ruling was considered revolutionary. It could take hold only because communities lived in relative isolation and autonomy: German Jews accepted it even as Jews of other Ashkenazic lands did not; in the fullness of time, it became accepted by most.

By contrast, halakhically observant Jews today are at once ever more divided from one another and ever more connected. Ever more divided, because of competing visions of Judaism in general and of Jewish law in particular; ever more connected, because of the global village that is the Internet. When a halakhic authority issues a ruling, he no longer does so in isolation; the speakerphone is on. If his opinion is even slightly controversial, in nanoseconds the filibuster in cyberspace will begin to block its adoption. There is never time and space for innovation to take hold on the local level, to demonstrate its merits, and then to become slowly adopted (or not) by others. In this environment, halakhic reform can most likely succeed only by slowly building a prior consensus for change.

 

5. The Inner Life of the Observant Jew 

Nor is that all. If stasis is increasingly the rule in contemporary Orthodox jurisprudence affecting the public or communal realm, the same stasis can affect the ritual practice and inner life of the individual observant Jew.

Optimally, observant Jews would like to believe that their best ideals inform their practice, and vice-versa. This is indeed often the case. Take, as one homely example, the rabbinic mandate to wash one’s hands upon arising in the morning. One medieval Talmudist suggested that in engaging in this rite, Jews are emulating the priests in the ancient Temple, who would perform a ritual ablution each morning before starting their daily service. Here, memory of the Temple informs practice, and practice, in turn, shapes attitudes. The halakhah calling upon Jews to wash at the day’s beginning, even as the priests did in the Temple, reminds us that our daily routine, whatever else it may be, is a service to God and a series of opportunities to sanctify the divine name. The idea speaks to contemporaries no less meaningfully than it did to earlier generations.

But what about other areas, where halakhic practice reflects attitudes and mores no longer relevant? Consider a second homely example: halakhah mandates the morning recitation of the Sh’ma (“Hear, O Israel . . .”) by some point between 8:00 and 9:00 a.m., depending on the season. The reason given by the Talmud is that this, being the hour when the nobility get up, is the latest anyone would arise in the morning. But the reason is outdated; if rising by 9:00 a.m. is a luxury reserved for the nobility, today’s teenagers on summer break live a noble life indeed. Nonetheless, the law and its reason remain on the books, compelling the Orthodox Jew to confront the gap between absolute commitment to a practice and the anachronistic reasoning that explains it.

Some will simply resist the compulsion. Thinking is not required by halakhah; action is, and for some that is sufficient. For others, however, the disconnect is glaring enough to threaten the vitality of their religious experience. Speaking personally, and generalizing from this and other specific instances, I offer my own strategy for balancing halakhic fidelity with spiritual and intellectual integrity. Yes, halakhah dictates action; but it does not have an exclusive hold on attitude and ideology. In the Bible and the Talmud, Judaism’s most central texts, law is never a free-standing genre; rather, it is embedded in a large and rich corpus of thought that incorporates liturgy, narrative, poetry, wisdom, and more. These sources can inform an authentic Jewish worldview—a worldview that responds to the times more fully than does halakhic practice. I have greater freedom to implement that worldview in my civic and professional life than I do in my life of halakhic practice.

In this connection, a final example: Jewish sources display an astonishing range of views concerning the status and capacities of women. Along this continuum lies the norm that has so far limited rabbinic ordination to men—but also the opinion, held by previous chief rabbis of Israel among others, that halakhically women are fully eligible to hold leadership positions in the administration of state affairs. As an Orthodox Jew presenting to his daughter the vistas available to her in civic and professional life, I am free to choose among these sources, each of which reflects an authentic Jewish worldview.

 

There is no denying that, for many, the situation I have been describing is imperfect and unsatisfying; to my knowledge, no one within Orthodoxy has formulated a satisfying approach to it. So intractable has the problem seemed that some have gone so far as to propose cutting the Gordian knot in a single bold stroke: by resurrecting the ancient Sanhedrin. As it happens, even Joseph Karo, the author of the Shulhan Arukh, recognized the advantage of a Sanhedrin over a code; several years before embarking on his codification of Jewish law, he was at the forefront of a movement to reinstate the institution. What the leaders of that movement understood was that only a Sanhedrin would enjoy the authority to adapt and modify halakhah in a fashion that would ensure both uniformity of practice and the unity of the Jewish people.

In modern times, too, with the rise of the Zionist movement and the state of Israel, there have been several calls to reinstate the Sanhedrin. In the unlikely event that any of them had succeeded, might we have witnessed a renaissance of common-law jurisprudence, with a central halakhic authority mediating continuity and change on an ongoing basis? Or, under the influence of our post-Karo understanding of codified law, would we be saddled with a jurisprudence so rigid and ossified as to convince us that the experiment should never have been attempted?

I have no ten-point program of my own to put forward. What I would like to suggest, however, is that, in its noble commitment to precedent, Orthodoxy strive to keep in mind the precedent offered by such figures as Tzadok ha-Cohen Rabinowitz of Lublin, whom we met earlier.

Unflinching in his commitment to halakhah as codified in the Shulhan Arukh, Rabinowitz speaks of change—halakhic change—as a great virtue. Just as humanity mutates from generation to generation, he writes, so too must the Torah. Jews are destined always to be small players on the larger fields of culture, and are likely to be influenced by the cultural winds around them. This, too, Rabinowitz insists, should be welcomed and taken into account.16 Moreover, he points out, some activities that are prohibited today will likely become permissible in the future, just as other activities once obligatory have become prohibited.17

Rabinowitz was by no means a sweeping reformer of halakhah—which makes his cues all the more important and useful. Even in a system of codified law, the jurist brings certain assumptions to the process of interpretation and adjudication. Openness to and acceptance of change can be among them—can be seen, indeed, as positive Orthodox values.

As they try to negotiate the dual legacy of Jewish jurisprudence, observant Jews remain caught between the ideal of unity and the ideal of relevance, between continuity and change, and between Judaism’s common-law and code-based approaches to halakhic jurisprudence. At the very least, gaining a fuller appreciation of how those tensions have played out in the past might help today’s observant Jews think creatively about how the same currents and counter-currents could play out differently in the future—with reverberations for Jews of every persuasion everywhere.

Responses

  1. Can Jewish Law Get Its Creativity Back? by Joshua Berman
    A reply to my respondents.
  2. The Crisis in Jewish Law Today by David Golinkin
    Orthodox rabbis need to stop worrying about 200-year-old battles with “Reformers” and allow Jewish law to develop organically, as it always did in the past
  3. The Paths Not Taken by Chaim Saiman
    There have been two moments in the last 150 years when the assumptions behind Jewish law seemed poised to change. Nothing happened. Is today different?
  4. The Art of Halakhah by Gil Student
    Why Jewish law is more a set of guidelines than of rules.

More about: Bible, Common law, Decalogue, Halakhah, Jewish law, Joshua Berman, law code, Mishneh Torah, Shulhan Arukh, Statutory law

 

The Art of Halakhah

Why Jewish law is more a set of guidelines than of rules.

The Art of <em>Halakhah</em>
From Mishneh Torah Master of the Barbo Missal, c.1457. Photograph © The Israel Museum, Jerusalem, for Michael and Judy Steinhardt, by Ardon Bar-Hama.
 
Response
Gil Student
Dec. 8 2013

In his fascinating article on law in Judaism, Joshua Berman divides post-talmudic halakhic authorities into roughly two schools: those who follow a codified or statutory-law approach and those who adopt a common-law approach. As against this, I would contend that everyone—even the codifiers—approaches the task of halakhic decision-making through a unique mix of common and statutory law. If the results sometimes convey an impression of arbitrariness or inconsistency, the fault lies in a misunderstanding of the system by which those results have been reached.

On the issue of Berman’s two jurisprudential schools, let me begin by citing a work that he would presumably include solidly within the statutory-law camp: Rabbi Shlomo Ganzfried’s 1864 Kitzur Shulhan Arukh (“The Concise Shulkhan Arukh”). In this short but wildly influential book, an adaptation and abridgement of the great 16th-century code by Rabbi Joseph Karo, Ganzfried conclusively lays down the law on all common Jewish rituals.

But consider the sheer number of variations of this work that have since appeared in print. Not only are successive editions frequently accompanied by footnotes from dissenting authorities, but Ganzfried’s rulings themselves have often been revised, with the result that the burgeoning text itself includes disparate prescriptions. Among the leading participants in this ongoing enterprise have been at least two chief rabbis of Israel and other recognized luminaries of Jewish law.

All of these authors share the goal of codifying halakhah. But, you may well ask, doesn’t it violate the very nature of a statutory code to revise—or even contradict—its black-letter provisions with one’s own rulings? The answer is that these authorities, Ganzfried included, are actually practicing not statutory but common law. For them, the legal code is a form, not an essence, a vehicle of publication rather than a mode of thought. Ganzfried’s code was a masterpiece, but his halakhic decisions reflect his own rulings and the 19th-century Hungarian community in which they were formulated. Later authorities, recognizing the usefulness of such a digest, then harnessed his language and organizing plan to the needs of their own time and their own views on Jewish law.

Another question: if so respected a work as Ganzfried’s code can be revised, on what grounds do Orthodox halakhic authorities treat the Shulhan Arukh, or for that matter the Talmud itself, as binding? In the case of the Talmud, its conclusions are religiously binding because they were irrevocably accepted by the Jewish people. The Talmud, then, serves as a source of statutory law. As for the Shulhan Arukh, it gained acceptance by representing the culmination of medieval Jewish common law: the summary of an era. But it also reflected Sephardi practice alone, and for just that reason was originally rejected by Ashkenazi Jews. Only when accompanied by Rabbi Moses Isserles’ glosses, adding Ashkenazi precedents and practices, did the Shulhan Arukh become influential for all. Which means that the resultant work is best understood not as a statutory code like the Talmud but as an extraordinarily influential compendium of common law.

 

A significant factor in the makeup of Jewish law as common law, though one insufficiently treated by Berman, is the method by which halakhic authorities reach their decisions. In The Making of a Halachic Decision, Rabbi Moshe Walter tackles this issue by tracing the way that leading scholars across the generations, working backward from the conclusions of great authorities, have attempted to construct a methodology of the halakhic process. Their arduous work displays staggering genius, complete mastery of published materials, and an ability to assemble scattered pieces of a vast puzzle into a coherent map of legal reasoning. Unfortunately, the results are for the most part unimpressive. Exceptions accumulate quickly, making the whole process seem subjective and arbitrary.

In his effort to make order of this mess, Walter sets up a typology similar to Berman’s. Some authorities—typified by Rabbi Elijah the Gaon of Vilna—decide cases on a putatively common-law basis, which is to say strictly according to the evidence at hand, subject only to the authority of the Talmud. Others, operating from a putatively statutory viewpoint, assert the sanctity of codes like, preeminently, Karo’s Shulhan Arukh, building brick by brick on its foundation. In the middle lie people like Rabbi Chaim Soloveitchik of Brisk (1853-1918), whom Walter quotes as advising to rule in accordance with the evidence at hand but always reach the Shulhan Arukh’s conclusion.

To Walter, and presumably to Berman, this division among the authorities demonstrates a fundamental difference in kind; I see it as a difference in degree.

In brief, the halakhic process is more a set of guidelines than of rules, and decision-making itself is a religious act—one that mobilizes all of a jurist’s God-given skills, talents, and personality. It is art, not arithmetic. A halakhic authority is afforded a good deal of leeway to follow the texts; his method is fluid, bounded by precedent but not enslaved to it, and mindful of the force of proof and counterproof. He decides not on the basis of whim but compelled by his deliberations, and he is as religiously bound by his conclusion as are his inquirers.

For these reasons, it is false to assert, as some have done, that “where there is a rabbinic will, there is a halakhic way.” Halakhic authorities do not choose their conclusions; they follow them.

Throughout the centuries since its initial publication in 1565, the Shulhan Arukh has served as the standard of discussion; because it is such an important precedent, jurists face a high burden of proof before disagreeing with it. But if it were a real statutory code, authorities would not be allowed to disagree with it at all; no Jewish work since the Babylonian Talmud has attained such a status.

 

We can see in contemporary developments precisely this mixed nature of Jewish jurisprudence at work. Berman discusses two contrasting examples of difficult issues facing jurists in Israel today. In the first case—whether to relax halakhic standards of conversion to Judaism for recent immigrants from the FSU—jurists advocating leniency have had some relative success. In the second—whether to allow the ordination of women as rabbis—the lenient side has gotten no traction. Berman explains the discrepancy by reference to the agendas being pursued in each case: a comfortably religious-Zionist agenda in the conversion case versus an uncomfortably feminist agenda in the case of ordaining women.

There is a simpler explanation. Statutory law is egalitarian in that it places greater emphasis on the argument than on the person advancing it. By contrast, common law requires a person—a judge or judges—with standing. The religious-Zionist rabbis who are behind the conversion leniencies have long careers as accomplished halakhic authorities. They have published responsa covering a broad cross-section of law and serve also as community leaders, accepted by their peers and the public. In addition, they have acquired international reputations, so that even those (like me) who may not support them on this particular issue respect their expertise. They are serious halakhists making bold, controversial, but legitimate decisions.

No equivalent figures are to be found among the feminists—or “neo-Conservatives” (large “C”), as they have been called. Their ranks include brilliant academics and educators, accomplished speakers and clergymen, but no established halakhic authorities. In a common-law system, the greatest responsibility lies with the judge. The neo-Conservatives have no judges and are therefore outsiders to the system. So far, for a variety of reasons, they have failed to convince any judge to embrace their cause. Lacking a qualified judge, they are powerless to enact real change.

The final paradox is this: by virtue of the fact that halakhah is a mixed system in which precedent plays such a strong role, conservatives (small “c”) will always have the stronger argument. Progress and innovation are important to the vitality of the halakhic community, but proposed changes have to be measured by expert jurists who command respect from their colleagues and the broader community. Deviation requires justification, and justification requires authoritative judges.

______________ 

Rabbi Gil Student is the publisher and editor-in-chief of TorahMusings.com

More about: Common law, Jewish identity, Joshua Berman, Kitzur Shulhan Arukh, Neoconservatism, Shulhan Arukh, Talmud

 

The Paths Not Taken

There have been two moments in the last 150 years when the assumptions behind Jewish law seemed poised to change. Nothing happened. Is today different?

The Paths Not Taken
From Moses Maimonides Amadeo Ruiz Olmos, 1985. Old Quarter, Cordoba. Photograph © Emanuele Leoni, Dreamstime.
 
Response
Chaim Saiman
Dec. 15 2013

Joshua Berman’s “What Is This Thing Called Law? has much to commend it. As opposed to the rather simplistic declarations typically heard on the subject, Berman offers a serious discussion about what halakhah is, what it should be, who decides it, who decides who decides it, and what role it ought to fill in Israeli and Jewish society—Orthodox and otherwise. In so doing, he draws much-needed attention to the social as well as textual forces that shape halakhic decision-making, and to the conflicts between Orthodox doctrine and the inner life of many committed Jews.

All this is important and illuminating, and I identify with the essay’s overall direction. But in anchoring the discussion in the Bible (Berman’s primary area of expertise), rather than in the Mishnah and Talmud, and in focusing attention on the format of the law rather than its method of interpretation, Berman makes it hard for even a sympathetic reader to be convinced.

 

The thrust of Berman’s piece is that Jewish law can be divided into two eras. The first, dominated by a “common-law” approach, runs from the Bible until sometime between Moses Maimonides in the 12th century and Joseph Karo’s Shulhan Arukh in the 16th. Thereafter, we enter what he calls the “statutory” era, which endures to the present. Berman argues that the codification of halakhah (somewhat confusingly merged with the “statutory era”) has resulted in a loss of vitality and alienated halakhah from the society it aims to govern. This can be corrected, however, if we recalibrate the dual legacy of “common-law” and “statutory” halakhah to produce a more vibrant and responsive version of the Jewish legal tradition.

Let me begin with the terms common law and statutory law. At least to a modern lawyer, the distinction between the two speaks not, as Berman suggests, to jurisprudential method but to different sources of authority. Where halakhah is concerned, the divide Berman puts his finger on is closer to what legal theorists know as functionalism and/or realism on the one side, formalism and/or positivism on the other.

To oversimplify, functionalism avers that law is a set of policies that the rules aim to embody; to this, the realist adds that law doesn’t simply decide itself, that there is far more maneuverability than most people realize, and that law is open to a host of “non-legal” social considerations. For its part, formalism imagines law as a series of sharply defined rules and categories that are impervious to social influences; to this, the positivist adds that law is nothing but those rules. In other words: one approach sees law as residing within society, while the other reads law as something that acts on society.

Why quibble with terms? Because Berman’s opposition between “common law” and “statutes” is what allows him to spend so large a chunk of his essay describing a legal approach that supposedly stretches from the Bible until well after the Talmud. This is distracting at best. To put it bluntly, the legal reasoning found in the Bible has very little to do with how the Mishnah, the Talmud, or the rest of the halakhic tradition thinks or functions.

Berman is correct that the Bible exhibits few examples of formal legal reasoning. It presents its commandments (mitzvot) within the context of grand theological and national narratives, and asks whether the Jewish nation is living in accordance with God’s will. But this just serves to highlight the differences between the Bible and the Mishnah, whose formalistic or “statutory” framing offers thousands of cases where an individual is either hayav (liable) or patur (exempt); where something is either asur (prohibited) or mutar (permitted); where one has either discharged or failed to discharge an obligation; and so on. These categories are nowhere found in the Bible, but they are the bedrock of halakhic thinking. Hence, the path from the second-century Mishnah to Maimonides’ code (Mishneh Torah) a millennium later, down to the 19th- century code, Mishnah B’rurah, is far more direct than any route from the Bible to the Mishnah.

The arguments cited by Berman as examples of the “common law” that allegedly encompasses both the biblical and the talmudic era also have no standing, or parallel, in the Mishnah—or at any point thereafter. His example of Solomon splitting the baby is especially relevant here, though not in the sense he intends. The Bible presents this ruling in the context of a dramatic narrative describing Solomon’s ascendancy to the throne. The point of the story is not the law but the wisdom God grants Solomon to lead the nation.

Contrast this with the opening lines of the Mishnah’s tractate Bava Metzia, which likewise presents a case about dueling claims of ownership. Here the rich tones of the Bible are replaced with prosaic legal phrasing: “Two are holding onto a garment . . . this one says it belongs wholly to me, and that one says it belongs wholly to me. This one shall take an oath. . . .” And legal rule is very much at the heart of the matter. In the Talmud, this passage becomes the focus of a wide-ranging technical discussion about property rights, ownership, and factual doubt, but nowhere is the Solomon story so much as mentioned as a precedent.

I have no doubt Berman knows all this, which makes it hard to understand the basis of his “common-law” tradition stretching from the Bible through the Talmud.

 

Moving to the other side, Berman also overplays the degree that codification in the Shulhan Arukh creates uniformity or is determinative of halakhic practice. Just glancing at a standard printed page of the Shulhan Arukh shows that subsequent generations had no qualms about undoing its attempts at halakhic tidiness. R. Karo’s words are overwhelmed by commentaries, glosses, and glosses to the glosses. Reading the tiny print reveals that the commentators approach the Shulhan Arukh much as the talmudic rabbis approach the Mishnah.

Indeed, most observant Jews conduct their entire lives with nary a reference to Hoshen Mishpat—the section of the four-part Shulhan Arukh that deals with business and commercial law. The same goes for about half of Even HaEzer (the section dealing with marriage, divorce, and marital property), which could be excised with minimal impact on contemporary practice. Even when it comes to Orah Hayim, the section of the Shulhan Arukh devoted to daily living, many good, God-fearing Jews do not dress in precisely the manner set forth in subsection 2, or insist on having their beds arranged as prescribed by subsection 3, or follow the procedure to have a nightmare “improved” to a positive dream as in subsection 220, or observe a cycle of fast days atoning for excessive levity on Passover and Sukkot as in subsection 492. I could go on.

In the 500 years since it was published, the Shulhan Arukh, like all codes, has been interpreted, molded, and glossed by the society it seeks to govern. To take a somewhat recent example from the American scene, in the 1960s and 70s Rabbi Moshe Feinstein was able to accommodate young Jews returning to the fold even though their parents’ marital status raised numerous halakhic issues. Another example is the worldwide flowering of women’s Torah study in the modern-Orthodox community. Judged by the standard of the black-letter halakhah of the codes, these innovations are highly problematic. But clearly that is not the only standard in play.

 

Given the many examples of flexible readings of halakhah, what distinguishes today’s situation from eras past? One way of understanding this is to look not only at shifts but at the rhetoric surrounding them. Previously, doctrinal development could have been interpreted as exemplifying functionalism, or halakhah-within-society. Today the discussion has become increasingly self-conscious and formalistic. Moreover, affirming the formalist view that halakhah stands outside society has itself become a central tenet—and boundary marker—of Orthodoxy.

In this connection, we might look at the current crisis over agunot (sing. agunah): women who are civilly divorced and live outside the marital home but, because their husbands refuse to give them a halakhically valid writ of divorce, are prohibited from remarrying under Jewish law. Though it cannot be proven, one senses that talmudic and perhaps medieval rabbis, facing this problem in its modern guise, would have employed their interpretive powers to solve it.

Today, however, though it recognizes the severity of the crisis, mainstream Orthodoxy is committed to the view that halakhah has no tools to fix it. In the United States, the solution has been a pre-nuptial agreement that uses American contract law to export the problem to the secular courts that can do the work halakhah cannot. Notably, the Orthodox women’s organization JOFA, which aligns with Rabbi Daniel Sperber’s conception of Orthodoxy—a model cited by Berman—advocates “a systemic halakhic [emphasis added] solution to the plight of agunot.”

Though less charged, the same dynamic plays out in commercial law. Classical halakhah does not recognize a corporation. I am quite confident that before the era of codification, rabbis would have molded halakhah to keep pace with business practices. Today however, such attempts are few and far between. Halakhists recognize corporations via principles of secular law, but they feel powerless to develop halakhic principles organically.

The contexts of the two cases are different, yet each shows that even in the process of changing halakhah, Orthodoxy insists on its structural inability to do so.

 

In the past 150 years, there have been two moments when halakhah’s jurisprudential assumptions were poised to change. In each case, this was the path not taken. First, in the 18th and 19th centuries, the experience of the Enlightenment and of Jewish emancipation pushed halakhah toward insularity, leaving most Jews outside its tent. Second, in the middle of the 20th century, some dreamed that Zionism’s success would create a proactive halakhah that would grow to govern a modern, diverse, and autonomous Jewish state. But this project also failed, leaving the early state in the hands of a secular majority, halakhah in the hands of a conservative minority, and neither side talking to the other (except when trying to impose its own exclusive vision). 

Today, the growth and increasing diversity of the observant population, set alongside secular Jewry’s search for a post-Zionist identity, may yet present a third moment. Will the result be different? Only time will tell.

__________________ 

Chaim Saiman is professor of law at Villanova Law School and Gruss professor of talmudic law at the University of Pennsylvania Law School. He is completing a book, Halakhah: The Rabbinic Idea of Law

More about: Bible, Common law, Halakhah, Jewish identity, Joshua Berman, Maimonides, Mishnah, Orthodoxy, Shulhan Arukh, Talmud

 

The Crisis in Jewish Law Today

Orthodox rabbis need to stop worrying about 200-year-old battles with “Reformers” and allow Jewish law to develop organically, as it always did in the past.

The Crisis in Jewish Law Today
Ruth Balinsky Friedman, an Orthodox woman who was ordained in June 2013 as a maharat, a female legal, spiritual and Torah leader. Photograph © Jennifer S. Altman/The Washington Post.
 
Response
David Golinkin
Dec. 22 2013

I enjoyed reading Joshua Berman’s ambitious essay, which examines over 3,000 years of Jewish law through the lens of the contrast between common law and statutory law. Particularly enjoyable was the first section, where he maintains that both the Code of Hammurabi and the Torah are not codes of law but rather collections of precedents applied in a flexible fashion by later judges.

From there, Berman proceeds to argue that the Mishnah and Talmud continue in this same common-law tradition. Only in the 12th century did Maimonides become the first to write a comprehensive code of “statutory” Jewish law, followed four centuries later by Rabbi Joseph Karo with the Shulhan Arukh (1563). Despite opposition by those who wanted to continue to base halakhah directly on the Talmud, the Shulhan Arukh won out, becoming the benchmark of Jewish law to this day.

When he comes to today’s situation, Berman notes that the Conservative movement, for its part, continues to be guided by the common-law approach to halakhah, frequently referring back to the Talmud and the rishonim (rabbis who lived ca. 1000-1500). Berman finds this approach legitimate but problematic, believing that it will lead to a lack of unity in Jewish practice. But he finds equally problematic the approach of Orthodox rabbis, who rarely rule against the Shulhan Arukh, since their statutory approach leads to a lack of flexibility on most halakhic issues confronting contemporary observant Jews. In this connection, Berman takes up the contrasting cases of Orthodox feminism, which has not been widely accepted among Orthodox rabbis, and standards of conversion to Judaism in Israel, where many are disposed to greater leniency.

Skipping over minor disagreements, I would respectfully like to differ with Berman on two major points.

 

The first has to do with the tension between common law versus statutory law. I agree with Berman that common law was the dominant form of Jewish law in the biblical, talmudic, and geonic periods. But ever since Maimonides’ attempt to codify all of Jewish law in his Mishneh Torah, there has been a constant struggle, until today, between advocates of common law and advocates of codes. Whenever a rabbi (usually, a Sephardi rabbi) has compiled a code in order to unify or standardize Jewish practice, a hundred or more rabbis, basing themselves on the Talmud and other sources, have penned commentaries augmenting or disagreeing with hundreds or thousands of points in that code. As a consequence, in printed editions of all standard codes, the codified text is surrounded by its critics and commentators. It is as if they cannot let the author get away with unifying Jewish practice; they must look for the sources, disagree, quote conflicting opinions, and add new laws and customs.

Then there are the responsa, rabbinic answers to halakhic queries down the ages, which Berman hardly mentions. There are well over 300,000 individual responsa, written from ca. 500 C.E. until today and couched largely in the medium of common law. The responsa do cite the major codes, but frequently rely directly on the Talmud, the rishonim, and previous responsa—often contradicting the rulings of the standard codes of Jewish law.

Finally, Conservative rabbis are not the only modern rabbis who bypass the codes and jump back to the Talmud and common law. Some Orthodox authorities state explicitly that it is perfectly legitimate to do so. As Rabbi Hayyim David Halevi wrote in 1978:

[T]here was never a halakhic decision by any great sage in Israel after the completion of the Talmud that is binding, and permission is given to every person to disagree even with his teachers by means of correct and straightforward proofs. . . . Even in the case of Maimonides and [Rabbi Joseph Karo], of blessed memory, both their contemporaries and those who came afterward disagreed with them, and in many matters, we do not follow them.1 

In short, Berman claims that the Shulhan Arukh and the statutory approach won the battle, and common law all but disappeared, but I maintain that this battle is ongoing and has never been settled.

  

This brings me to my second point of disagreement. As noted above, Berman traces the divide between Orthodox and Conservative Judaism to their divergent approaches to common law vs. statutory law. I believe that issue is totally irrelevant to the major difference between Conservative and Orthodox Jews. That difference goes back to the title of Rabbi Mordecai Waxman’s classic defense of Conservative Judaism, Tradition and Change (1958). There he states:

Reform [Judaism] has asserted the right of interpretation but it has rejected the authority of the legal tradition. Orthodoxy has clung fast to the principle of authority, but has in our own and recent generations rejected the right to any but minor interpretations. The Conservative view is that both are necessary for a living Judaism…

In my view, one of the reasons for the contraction of the Conservative movement in the U.S. lies in its overemphasis on change and underemphasis on tradition.

This was stressed in a thoughtful opinion piece by the historian Michah Gottlieb, reacting to the sobering statistics on the Conservative movement in the recent Pew Report. Having grown up in a Conservative community in Montreal, Gottlieb turned toward modern Orthodoxy during his university years. One of his reasons relates directly to our topic:

I was told that Conservative Jews were as serious in their commitment to halakhah as Orthodox Jews were, but differed in that they recognized halakhic change. But as I knew no Conservative Jews who cared about halakhah, my teenage sensitivity to inconsistency led me to see Conservative Judaism as inauthentic. . . .

I felt that Conservative Judaism was distracted by what I saw as political rather than religious issues. The burning issue of the day in the Conservative movement was egalitarianism and the ordination of women. My synagogue was not egalitarian, although women could be called to the Torah on special occasions. The argument was made that egalitarianism was crucial to keeping Jews affiliated.

I did not buy that. It seemed to me that focusing on egalitarianism was a distraction from the real problem: that Conservative Jews were not committed to halakhah and Jewish learning, and that no serious effort was being made to engage them in these matters.

 

I personally am committed to expanding the roles of women in Judaism via organic halakhic change. I have taught the subject for over 30 years and have published two volumes of responsa on the issue, one each in Hebrew and English.2 Even so, I think that Gottlieb’s critique is correct. The Conservative movement has focused so much on changes in halakhah that it has forgotten to stress the observance of halakhah. It is perfectly permissible to change certain laws and customs using the tools and methods of halakhah, provided that you are fully committed to halakhah and the halakhic system. I have advocated for years that Conservative Jews must be committed to tradition and willing to make changes within that halakhic tradition. Both are needed for a healthy legal system.3

Orthodox Jews, and especially haredi Jews, have the opposite problem. They were so spooked by the far-reaching changes instituted by the Reform movement in the 19th century that change in the direction of leniency became a dirty word. For them, either halakhah must remain static or it can change in the direction of stringency; it cannot change in the direction of leniency. 

This last point is amply proved by Berman’s final example concerning the struggle in Israel over converts’ acceptance of the mitzvot. As I have shown elsewhere, the modern haredi attitude—namely, that a prospective convert must declare his commitment to observing all of the mitzvot, and must have full intent in his heart to do so—was invented by Rabbi Yitzhak Schmelkes in 1876. As a prooftext, he, along with Rabbis Abraham Isaac Kook, Moshe Feinstein, and others, cited a neglected passage in the Talmud (Bekhorot 30b) which seems to demand that a convert observe all of the mitzvot.

But what does this mean in the context of our discussion? Contrary to Berman’s conceptual framework, this Orthodox stringency, which is followed by most haredi rabbis and by the chief rabbinate of Israel, is not based on Maimonides, the Shulhan Arukh, or statutory law. In fact, the standard codes of Jewish law have a very lenient attitude toward acceptance of the commandments, which they quote directly from another passage in the Talmud (Yevamot 47a-b). Rather, the stringent approach since 1876 is based on common law. It goes back to the Talmud to invent a stringency which never existed throughout Jewish history!4

Sadly, neither the Conservative nor the Orthodox movement has succeeded in creating the proper balance between tradition and change that I believe is crucial for the future of Judaism and the Jewish people both in Israel and the Diaspora. The Conservative movement needs to start taking halakhah seriously by teaching both codes and responsa and by emphasizing practical observance. Orthodox rabbis need to stop worrying about 200-year-old battles with “Reformers” and allow Jewish law to develop organically as it always did in the past. I hope and pray that both sides will listen.

 ______________________

David Golinkin, a Conservative rabbi, is president and Miriam and Jerome Katzin professor at the Schechter Institute of Jewish Studies in Jerusalem, where he teaches Talmud and Jewish law. He is the author or editor of nineteen books in the field of Conservative halakhah.

 

1 Hayyim David Halevi, Aseh L’kha Rav  (Hebrew, 1978) Vol. 2, p. 146. See also Menahem Elon, Hamishpat Ha’ivri, 2nd ed. (Hebrew, 1988), pp. 902-904, 1013-1017; David Golinkin, Responsa of the Vaad Halakhah of the Rabbinical Assembly of Israel 6 (5755-5758), pp. 13-14 (Hebrew) and The Status of Women in Jewish Law:Responsa (2012), pp. 112-115. 

2 The Status of Women in Jewish Law: Responsa (Hebrew, 2001; English, 2012)

3 See my Halakhah for Our Time: A Conservative Approach to Jewish Law (1991), also published in Hebrew, French, Spanish, and Russian.

4 See my Responsa in a Moment, Vol. II  (2011), pp. 227-243 and my essay “A Halakhic Agenda for the Conservative Movement,” in Elliot Dorff, ed., The Unfolding Tradition: Philosophies of Jewish Law (2011), pp. 408-422.

More about: Bible, Common law, Conservative Judaism, Halakhah, Jewish identity, Joshua Berman, Maimonides, Mishnah, Orthodoxy, Shulhan Arukh, Talmud

Can Jewish Law Get Its Creativity Back?

A reply to my respondents.

Can Jewish Law Get Its Creativity Back?
The great sanhedrin of the French Israelites, February 4th, 1807. Edouard Moyse, 1807. Bibliothèque des Arts Décoratifs, Paris.
 
Response
Joshua Berman
Dec. 25 2013

I thank Gil Student, Chaim Saiman, and David Golinkin for their contributions to this discussion about the history and process of Jewish law. Their deep knowledge of Jewish sources adds important context and penetrating conceptual models with which to apprehend not only the state of halakhic discourse but also the crucial issues of identity confronting today’s observant Jews. In addressing those two themes, I’d like to respond first to Chaim Saiman, next to David Golinkin, and finally to Gil Student.

When and where (and how) does Jewish jurisprudence begin? In my essay I located the source in the Bible, but Chaim Saiman insists that it begins only with the writings of the rabbinic period, specifically the Mishnah and the Talmud. In asserting this, he participates, no doubt unwittingly, in a modern myth that severs Judaism from its biblical origins. Tracing back to 18th- and 19th-century German Protestantism, the myth holds that before the Babylonian exile of 586 B.C.E., the then-sovereign “Israelites” adhered to a “biblical religion” distinguished by the enlightened ideals of the prophets; a half-century later, the weakened returnees from Babylon, now transmogrified into “Jews,” would replace that vibrant religion with a retrograde emphasis on the priestly cult and on law—the twin banes of German Protestantism—thus giving birth to “Judaism.”

In our own times, the same myth has been propagated, in a less ominous but no less influential way, by modern academics seeking to establish defined chronologies within their areas of specialization. In the service of delivering a clean narrative, they pay excessive obeisance to the requirements of periodization: “in period A things were this way, in period B they became that way.” As a consequence, lines of continuity and fluidity go underappreciated.

Saiman is surely correct that, from the standpoint of halakhic methodology, a more direct line connects the Mishnah with contemporary jurisprudence than connects the Bible with the Mishnah. But, obviously, much of talmudic discourse is devoted precisely to interpreting the legal passages of the Torah. Moreover, the process of interpreting these passages and deriving laws from them can be observed already within the later books of the Bible itself. True, the interpretive tools employed in talmudic literature are sui generis; true, too, Jewish jurisprudence undergoes a steady evolution from the latest books of the Bible through the earliest rabbinic writings. But the views reflected in some of those writings are already anticipated earlier.

Nor is that all. Because so many people today equate halakhah with codified law, it is important to set the record straight about the earliest records of the Jewish legal tradition. To eschew the Bible as the cradle of that tradition is to miss important continuities; recognizing it not only enriches the historical record but empowers us to deflect unfounded charges against the status and integrity of both the Bible and the rabbinic interpretive tradition.

Ever since the middle of the 19th century—precisely when statutory jurisprudence was in ascendance across Europe—biblical scholarship has maintained that the legal passages of the Torah are a patchwork of conflicting statutory codes. That claim—which has also gripped the popular imagination—undermines more than the cogency and integrity of the Torah. It undermines the rabbinic tradition as well. For if the Torah’s legal passages are a patchwork of statutory codes, to be read according to the positivist axioms of strict construction, then the rabbis were imposters who appropriated an ancient text and rewrote the rules of interpretation to serve their own agenda. 

This is why it is so critical to understand the Torah’s laws not as statutory codes but as texts in a common-law setting, as data “from which to reason”—which is what I tried to do in my essay. After all, this understanding of the fluid nature of the law is the sine qua non of the entire rabbinic interpretive enterprise. The two common-law examples that I cited from the Bible (regrettably, Saiman misidentifies the Solomon trial narrative as one of them) demonstrate that this approach to biblical law does not begin with the rabbis but is native to the Bible itself.

These considerations aside, Chaim Saiman in the latter part of his remarks offers some acute comments on the current condition of halakhic jurisprudence. I will return to them below.

 

What is the difference between the methods of halakhic interpretation employed by modern Orthodox jurists and those adopted by their counterparts in the Conservative movement? David Golinkin, a leading Conservative jurist, surprised me with his answer: for him, there is no difference. He sees his own work as, in the best rabbinic tradition, applying the entire range of tools and approaches that have been available and in use for centuries. To him, where Conservative jurists differ is not in their method of interpretation but precisely in their willingness to use those tools fully; as exemplars of this approach in action, he points to his own two halakhic volumes on the status of women in Judaism.

Granting for the sake of discussion the legitimacy of his methodological contentions, let me play out their ramifications. Here we have a learned and thoughtful jurist, wedded to a bold approach and prepared to bypass the standard codes in favor of earlier sources, who has put out two volumes of rulings on a single subject; but that approach and consequently these volumes are not accepted by the vast majority of the halakhically observant community. Again for the sake of discussion, let me grant that in halakhic reasoning, a lone voice is not necessarily a wrong voice. But now imagine Golinkin’s position becoming the position of other competent jurists, of whom there are thousands.

What would be the nature of the legal world created by such an approach? In each community, a learned scholar would be free to pen volumes of his (or her) own rulings, and the community would be free to follow that practice even if no other community anywhere adopted it. The result might be formally legitimate, but would lead to utter anarchy in the world of halakhic practice.

Golinkin notes, correctly, that one can point to moments of halakhic boldness and freedom of interpretation even in our modern, code-driven period. For the most part, however, jurists have proved highly conservative (small “c”), unwilling to circumvent the codes or to base their rulings on pre-code sources. Their restraint, I would propose, whatever its drawbacks—see below—does have the virtue of protecting the system as a whole from anarchy. Is it not therefore incumbent upon a jurist like Golinkin to explain how the halakhic system can survive his recommended degree of juridical autonomy?

I observed in my essay that I’d been unable to find any discussion of this problem by Conservative halakhists, which is one reason I was pleased to learn that David Golinkin would be responding to me. In the Conservative movement, few are as well-positioned as he to address the issue. I regret that he chose not to.

 

Gil Student offers a fine statement of the contemporary Orthodox position. Like David Golinkin and Chaim Saiman, he is persuaded that “progress and innovation” are important to the vitality of the halakhic community. He also believes that halakhic jurisprudence is fluid enough, where warranted, to depart boldly from the past. But there are limits to the law’s expansion, and there is a mechanism to safeguard those limits. Authority, Student writes, rests with arbiters who not only are bona-fide scholars but possess three additional qualifications. They must be community leaders; their work must be accepted by their peers and the wider public; and they must enjoy international reputations.

Student feels that, overall, the system is a balanced one and produces the right results. In my experience, the vast majority of Orthodox Jews feel the same way. But here I would reintroduce Chaim Saiman, whose reflections on the contemporary jurisprudential scene are sharply relevant in this connection.

It is true, Saiman writes, that classical halakhah displayed a realist, “law-within-society” character, open to progress and innovation. Today’s jurists, however, have undergone a paradigm shift. For them, “affirming the formalist view that halakhah stands outside society has itself become a central tenet—and boundary marker—of Orthodoxy.” “[E]ven in the process of changing halakhah,” Saiman laments, “Orthodoxy insists on its structural inability to do so.”

To me, the system is even more frozen than that. Saiman points to modern giants of halakhic erudition like Rabbi Moshe Feinstein (1895-1986), figures whose broad shoulders and widely accepted authority allowed them to adopt and propagate rulings that lesser authorities could not. Today, however, such figures appear to be a dying breed. In the post-World War II period, one is hard put to name a halakhic leader of towering eminence who has been succeeded within his community by someone of equal stature. This is true across all lines in the halakhic world; as true in the United States as in Israel; as true among Sephardim, especially after the recent death of Rabbi Ovadiah Yosef, as among Ashkenazim; as true for the haredim as for the modern Orthodox.

Is there something about the modern condition itself that has engendered this surprising trend? Is it that today’s scholars live in an age of unprecedented prosperity, with unprecedented access and exposure to the world outside the study hall and unprecedented freedom of choice—all, arguably, inimical to scholarship at the highest level?

Or, alternatively, is it that thanks precisely to the blessings of modernity, which have encouraged unprecedented numbers to engage in classical Torah study, it has become much more difficult for any one individual to stand out? In previous generations, a scholar would achieve acclaim within his city or region, and from there his reputation might spread. Today, when the halakhic world partakes of the global village, reputations have little chance to develop incrementally, and the very word “local” has become a vestige of a long-gone past.

Whatever may be the causes of the trend I have been describing, by now it has been in place for six decades. If it continues, and if leaders do not emerge to command a broad following as in the past, then the bias toward formalism will become all the more ingrained.

 

I conclude with a thought about the inner life of the observant Jew. Reading my respondents’ trenchant remarks can be a spiritually challenging exercise. For an observant Jew to step outside the system and question whether it functions properly borders on the heretical. The dilemma of such a Jew—a foot soldier in the army of the Almighty—is akin to that of the patriot forced to come to grips with the misdeeds of a beloved country, or the child of any age who must reconcile himself to the shortcomings of revered parents.

It is through the lens of history that we have come to this painful recognition about the functioning of halakhah. Once upon a time, we learn, rabbinic jurisprudence displayed the creativity needed to address burning issues. In another age, it seems, a way would have been found to clear the path to remarriage for an agunah. To take in these facts is to acknowledge that the teleological system guiding one’s life displays signs of partial dysfunction. One is naturally tempted to look away, to forgo the perspective of history; if it comes at the expense of piety, the price is too high.

I would argue the opposite. Failure to confront the underlying and systemic reasons for the crisis of agunot is a species of false piety—false because it is to turn a deliberate blind eye to suffering, hiding behind the mistaken belief that change of this order never was and never is the halakhic way. True piety entails the capacity for soul-searching, by the community no less than by the individual. The perspective of history lays bare the degree to which, in the halakhic process, the realism of yesteryear has given way to formalism and the stifling of necessary adaptation. The willingness to adopt that perspective requires courage; I believe it is also a mark of true piety.

Indeed, a balanced historical perspective can afford an even greater appreciation of the achievements of the halakhic system and the privilege of participating in it. The historical perspective reveals that perhaps no legal system in the world has ever had to bear the strains that the Jewish legal system bore over two millennia of exile and fractured authority, millennia followed miraculously by a sharp return to the uncharted terrain of national sovereignty. That the system has endured all this, while in large measure flourishing and continuing to flourish, is nothing short of a marvel.

If anything, perspective and introspection can end not only in strengthening our appreciation for the privilege of inclusion in this portable homeland of the Jewish people but in redoubling our resolve to carry that homeland forward into the future.

___________________

Joshua Berman, professor of Bible at Bar-Ilan University and at Shalem College in Israel, and a research fellow at the Herzl Institute, has ordination from the Israeli chief rabbinate. He is the author most recently of Created Equal: How the Bible Broke with Ancient Political Thought.

More about: Bible, Common law, Halakhah, Jewish identity, Mishnah, Talmud