Can Jewish Law Get Its Creativity Back?

A reply to my respondents.

The great sanhedrin of the French Israelites, February 4th, 1807. Edouard Moyse, 1807. Bibliothèque des Arts Décoratifs, Paris.
The great sanhedrin of the French Israelites, February 4th, 1807. Edouard Moyse, 1807. Bibliothèque des Arts Décoratifs, Paris.
Dec. 25 2013
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).

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