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.