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