What Is This Thing Called Law? https://mosaicmagazine.com/essay/uncategorized/2013/12/what-is-this-thing-called-law/

The Jewish Legal Tradition and Its Discontents
December 1, 2013 | Joshua Berman
About the author: Joshua Berman is professor of Bible at Bar-Ilan University and the author most recently of Ani Maamin: Biblical Criticism, Historical Truth, and the Thirteen Principles of Faith (Maggid).
The Judgment of Solomon Raphael, 1519. Palazzi Pontifici, Vatican.

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.


  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.