Mosaic Magazine

Response to: "What Is This Thing Called Law?"December 2013

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
  

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.

Comments

  • David Heller

    What does the picture of Mrs. Friedman have to do with the article? She is neither quoted nor mentioned. And Golinkin writes “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 response and by emphasizing practical observance. ”

    Golinkin misses the obvious. “Taking halakha seriously” won’t help; the vast majority of non-Orthodox Jews don’t want to keep halakha. Even Orthodox Jews don’t keep halakha because they like it; they like being Jewish in a way that is meaningfully distinct from non-Jewish living, so they keep halakha. That is why Orthodoxy is growing while every other movement is shrinking or becoming an assimilated platform for politically correct secular priorities that are not in harmony with halakha.

    • Rebecca K.

      “Even Orthodox Jews don’t keep halakha because they like it; they like being Jewish in a way that is meaningfully distinct from non-Jewish living, so they keep halakha.”

      I have to strongly disagree with this point. This is the reason 100 yrs ago so many Orthodox Jews (and those who leave the fold today in many cases) left Orthodox Judaism.

      The biggest motive to keep halacha is to acknowledge that the mitzvos are gift to us from One Who loves us, and Whom we love. We’re talking an Omnipresent, omnipotent, and all-loving G-d. Otherwise, doing mitzvos are a burden, and people walk around going, “Shver zeine yid.” (Sorry if my conjugation is wrong there.)

      Many of us left Conservative Judaism not just because we thought that their particular form of “halachic commitment” was disingenuous (and in some cases, incapable of standing up to intellectual inquiry), but because Conservative Judaism (as pointed out by a recent article by Danny Gordis) does not present G-d in a way that comforts, guides, or otherwise builds up the soul and heart of the average Jew.

      Books that tell Jews that G-d lets bad things happen to good people because G-d is incapable of doing otherwise, or sermons that suppose contemporary humans are smarter than amoraim, tanaim, etc., etc.–as well as prophets and G-d Himself–also do not help the situation. Teaching that halacha is infinitely malleable does not provide a person with a feeling of stability or guidance when a person is in a tight spot.

    • Cheryl Birkner Mack

      Of course “taking halakha seriously” would help. You posit that “the vast majority of non-Orthodox Jews don’t want to keep halakha”. Golinkin posits that the vast majority of non-Orthodox Jews don’t take halakha seriously. Wouldn’t they want to keep halakha if they took it seriously?

      • Rebecca K.

        Part of the reason they don’t take halacha seriously is because the constant tinkering with halacha by the Conservative establishment makes it looks like the Conservative movement as a whole does not take halacha seriously.

  • Reb Yid

    “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.”

    First of all, this is factually incorrect. The idea that one can convert to Judaism without accepting the Torah, besides sounding preposterous on its face, is contradicted by a multitude of sources. But beyond that, what the author is suggesting is that he, a lone voice in the wilderness, should be believed to be correct, rather than the legions of contemporary halachic authorities who disagree with him. As such, the Conservative movement is akin to a paranoid alternative health website, which touts unsubstantiated dangers and cures that fly in the face of 99.9% of medical doctors’ opinions.

  • Avi Kessner

    I thought this essay was very well written. I would like to suggest that what is most important, is for us to understand the actual requirements of Halacha.
    We can not go back to a purely case based law, and we can not ignore all the codes that are written and re-written. But perhaps we can write a code that is by it’s nature, more open to case law.

    http://halachicminimalism.blogspot.co.il/

  • http://hartman.org.il/ Alan Abbey

    Well argued and compelling as usual, David. Thanks.

  • Naomi Graetz

    What is missing in all of the discussion is the use of takkanot, amendments, which halakhic tools for change which have their roots in the bible and mishnah. The most famous ones are the Prosbule, a takkanah enacted by Hillel the Elder and the Takkanah of Rabbi Gershom (c. 1000) prohibiting polygyny. Takkanah is a very important tool in the system of halakha which, despite its centrality to the viability of the halakhic process, has fallen on disuse. It is, therefore, necessary to reactivate it in our day. One major proponent of this approach is Menahem Elon, who has spelled out the need for takkanah, and the expectation shared by R. Avraham Kookthat it would be a major part of the reconstituted rabbinic judiciary of Israel. Many people are unaware of the continuing use of takkanah throughout Jewish history; however, recent collections of takkanot attest to their ongoing use as a regular halakhic tool. The most relevant book in recent history is Takkanot Rabbanei Morocco, by R. Amar, which is about the regular use of the takkanah by Moroccan rabbis to solve difficult halakhic problems up until the 1950s. The Mishnah fixes the basic tools and principles of halakha; thus the place of takkanah in the halakhic system is fixed because of its prominent use in the Mishnah. Takkanot appear in the Mishnah in almost every area of halakha, and this shows its role as a general tool. (This is a quote from Rabbi Michael Graetz, “REVIVING TAKKANAH IN THE HALAKHIC PROCESS,” which appears as an appendix to my book Silence is Deadly: Judaism Confronts Wifebeating (1998).

  • Shlomoh

    I think it relevant to point out that the ideals represented here by Rabbi Golinkin are not those of the US Conservative Movement and certainly not those of its younger generation of rabbis, who find Rabbi Golinkin’s positions (on Gay Marriage and Gay Ordination) so objectionable that they have protested the requirement that they spend a year at his seminary as part of their Rabbinnic training.

    Rabbi Golinkin has also written that the permission granted to Conservative worshippers to drive to synagogue on Shabbat has no basis in halacha.

    I know of no Conservative congregation that accepts his ruling on this matter.

    WHile Rabbi Golinkin’s perspective here might be of academic interest, I know of no Conservative congregation in the US that very much cares what he has to say on these matters, nor any that puts it into practice.

    • Kevin_in_Chicago

      Apparently, you accept that intellectual honesty in dealing with the halakhah is merely “of academic interest.” Have you read the “driving teshuvah?” By ordinary logic it is objectionable, although it is presented as a temporary measure (hora’at sha’ah) based on the circumstances of 20th-century American Jews. The opinion permitting Jewish same-sex commitment ceremonies, on the other hand, is both unlimited and nonsense.

      I won’t dispute your characterization of the opinions of Conservative congregations and the “younger generation” of Conservative rabbis, but this is a major reason why I no longer consider myself a Conservative Jew. (Orthodoxy has its own problems of intellectual honesty, not relevant here.) Perhaps Conservative congregations don’t care about intellectual honesty, but that may be one reason why they are dwindling, as fewer of us feel bound by ties of nostalgia to affiliate with intellectual mush.

      • Chaim

        Well said. I grew up in the “traditional” conservative movement, of which today’s “conservative” movement is a pale imitation. I now consider myself modern orthodox, though there are no such shuls in my suburban area. Because of that lack of modern orthodox shuls, I divde my time between a conservative shul and a Chabad shul since those are my only two realistic choices. Sadly, what I see in the conservative movement is little commitment to tradition and ritual; largely uneducated congregants upon whom no real demands are made for fear of offending them or driving them away; a frequent bar mitzah mill where 75% effectively drop out once the bar mitz. training ends; and rabbis who prefer political correctness (egalitarianism, environmentalism, two-state solutions, “diversity,” Obama worship) to tradition and ritual. Many younger conservative rabbis clearly do not feel comfortable preaching God and the centrality of the Jewish people, because that would be “exclusionary” and “non-diverse”, if not racist.

  • DansDaMan

    Which all goes to prove a little Yiddishkeit (and rabbinic vocabulary) is a dangerous thing. In the hands of the Conservative and the Reform it will always be used to kosher a pig. They say “build a fence around the Torah,” and now you know why.

  • sidslivko

    Evolution is a continuing confrontation between status quo and the agents of change. Think of this as evolution in action.

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