Halakhah and Modernity
When, in the tenth century, Saadia Gaon said that Jews constituted a people only in virtue of their religious laws, he was stating a proposition that would have been universally accepted until modern times. Commandments, laws, statutes and judgements formed the basis of the Sinaitic covenant, turning the Israelites from a loose confederation of slaves into a nation dedicated to the service of God. The law – God’s will translated into the constitution of a sacred society – was Israel’s singular glory. It is, says Moses, “your wisdom and understanding in the eyes of the nations, who will hear these decrees and say, ‘Surely this great nation is a wise and understanding people.’”1Deuteronomy 4:6. The commandments were, for biblical theology, the test by which Israel’s future history would be determined. If the laws were obeyed, Israel would find prosperity and peace in its land. If they were neglected, blessings would be replaced by curses and the people would eventually suffer exile.
With the destruction of the second Temple in 70 CE and the collapse of other bases of Jewish life – land, state, language, prophecy, monarchy and priesthood – the law came to occupy an even more central place. As Jews faced dispersion it was the law that united them into a shared way of life, providing them with a common framework of behaviour. It preserved them against assimilation into other cultures, marking them as a people apart. More than this, it was the one continuing basis of identity and hope. “From the day the Temple was destroyed,” said the rabbis, “the Holy One, blessed be He, has nothing in the world but the four cubits of Jewish law alone.”2Babylonian Talmud, Berakhot 8a. Though the Temple lay in ruins and the people faced dispersion, God had not revoked His covenant. The commandments were still in force. If Jews remained faithful to them, then sooner or later they must be redeemed. Torah – covenant as law – was the single remaining point of contact between the Jewish people and God.
In the centuries surrounding the fall of Jerusalem prodigious energies went into the articulation of halakhah, the word used by the rabbis to describe Judaism’s legal traditions, decisions and debates. Between the first and sixth centuries CE a vast legal literature emerged culminating in the Mishnah, a compendium of rabbinic law, and the Jerusalem and Babylonian Talmuds, extensive discussions and elaborations of the Mishnah. Halakhah covered all areas of life from ritual aspects of prayer, the holy days, purity and sacrifice, to agriculture, civil and criminal legislation and family law. Its sources were essentially twofold. There was the Written Law in the form of the Mosaic books, and the Oral Law: traditions, interpretations and rules of inference which supplemented the written text. Both carried the authority of revelation. Beyond that was rabbinic law itself, the new decrees and enactments legislated by the sages to protect the observance of the biblical commands.
To be sure, the rabbis were concerned with other matters as well, with the interpretation of biblical narrative, theology, ethics and folklore, all loosely grouped under the heading of aggadah. But it was halakhah that called for definition and decision. In aggadah, a freer spirit prevailed. When the rabbis discussed the meaning of history, theology or human existence, the arguments ranged widely and needed no conclusion. it was when they discussed law that they invoked strict rules of inference and interpretation. For it was halakhah – Jewish law applied to the civil, criminal and ritual domains – that carried the main burden of religious existence. It was here that authoritative decisions were called for, for it was through the vehicle of law that Jews translated holiness from the poetry of religious imagination into the prose of everyday life.
There is therefore considerable force to Yeshayahu Leibowitz‘s argument that halakhah constitutes the single axis of Jewish continuity from biblical to modern times.3Yeshayahu Leibowitz, Yahadut, Am Yisrael u-Medinat Yisrael (Jerusalem: Schocken, 1979). That is not to say that Judaism did not embrace much else besides. But no other area through the centuries displays consensus, consistency and distinctiveness. In matters of theological speculation, for example, there were often sharp disagreements. Biblical interpretation, too, varied widely through the ages. Even the reasons for the commandments reflect the circumstances and religious orientation of their authors rather than any normative body of thought. Only the commands themselves and their detailed elaboration – in short, the halakhah – represent an unbroken continuity and identity over time. If we are to speak not of Judaisms in the plural but of Judaism in the singular then it must be the halakhah to which we refer.
The flight from halakhah
The collapse of halakhah was therefore a fateful development in the terms of Jewish existence. As so often elsewhere it was Spinoza who, in the seventeenth century, was the precursor of much that was to follow. In the Tractatus Theologico-Politicus he argued that biblical law was clearly intended as the political constitution of a religious state. It was, and only made sense as, the law of the Israelites in their own land. Once the Jewish state had ceased to exist – as it had by the end of the first century – the law was no longer applicable. With the destruction of the second Temple, halakhah was null and void. The Jewish covenant was at an end.
No one could follow Spinoza and remain a Jew, for the whole thrust of his work argued the dissolution of Judaism. Indeed the first Jewish philosopher of emancipation, Moses Mendelssohn, turned Spinoza’s contention on its head and insisted that Judaism remained in existence precisely because it was revealed legislation. Religious truth was accessible to reason and could therefore be arrived at without reference to any particular revelation or tradition. What was disclosed at Sinai was not truth but law. And to this law Jews remained bound. To be sure, those commandments which depended on the Temple or the land of Israel could no longer be fulfilled. But all others “must, as far as we can see, be observed strictly according to the words of the law until it shall please the Most High to set our conscience at rest and to make their abrogation known in a clear voice and in a public manner.”4Moses Mendelssohn, Jerusalem, translated by Allan Arkush (Waltham, MA: Brandeis University Press, 1983), 134.
But already in this sentence we detect a decisive shift in mood. For some 2,000 years Jews had declared daily in their prayers that the Torah and its commandments are “our life and the length of our days.” By the time we reach Mendelssohn the laws have become, in his words, a “burden” made “irksome” by the mood of the times. They remain in force merely because they have not formally been repealed. There is no hint in Mendelssohn’s writings of the rabbinic sense that the law is a delight, the source (as the rabbis put it) of everlasting life. The deconstruction of halakhah could not be far distant.
By the mid-nineteenth century Samuel Holdheim, the most radical of the German Reformers, was arguing in terms drawn from Spinoza that much of Jewish law was now inoperative. The earliest advocates of Reform had sought to justify their liturgical and ritual innovations by reference to rabbinic sources. By 1848 more radical departures were being sought, and these called for a systematic restatement of the basis of Jewish obligation. Holdheim argued that major sections of Jewish law had had as their purpose the welding of Jews into a nation. Now that emancipation for the first time offered Jews the chance of becoming “integral elements of other peoples and states,” such laws were no longer relevant and had become dysfunctional. This revolutionary position was taken up by American Reform in the Pittsburgh statement of 1885, which declared that “We recognise in the Mosaic legislation a system of training the Jewish people for its mission during its national life in Palestine, and today we accept as binding only its moral laws, and maintain only such ceremonies as elevate and sanctify our lives, but reject all such as are not adapted to the views and habits of modern civilisation.” Judaism, for Reform, had become not law but ethics.
The history of Jewish thought between the mid-nineteenth and the mid-twentieth centuries could in fact be summarised as the search for a Jewish identity independent of halakhah. Reform Judaism located it in theology and ethics. Secular Zionism found it in nationalism of various ideological hues. A range of thinkers, some Zionist, some firmly rooted in the diaspora, sought it in culture, language, literature or political principle, while in the 1920s Mordecai Kaplan offered a formula for the reconstruction of Jewish life as the “evolving religious civilisation” of the Jewish people.
Even the most cautious departure from tradition, known in America as Conservative Judaism, undertook a reconceptualisation of Jewish law. Its founding spirits, Zechariah Frankel in Germany and Solomon Schechter in America, preferred to see halakhah not as revealed law but as tradition sanctified by history. Schechter, in a famous formulation, describe Jewish legal authority as resting in “a living body” which was “not represented by any section of the nation, or any corporate priesthood, or rabbihood, but by the collective conscience of Catholic Israel as embodied in the Universal Synagogue.”5Solomon Schechter, Studies in Judaism, Introduction, 15. Jewish law, in other words, was determined not by what rabbis said but by what Jews did. Law, on this conception, became a species of custom and was therefore open to natural evolution. It was determined less by text, precedent and argumentation than by sociology. Frankel and Schechter were able to speak in these terms because the constituencies they represented were still traditional. It was not until Conservative congregations became significantly less religiously observant that the inadequacy of the formulation became apparent.
With the benefit of hindsight we can see why the study and practice of halakhah, the mainstay of Jewish existence for two millennia, should have disintegrated so rapidly. It had been a discipline of difference in the ages in which Jews and their neighbours had been content to live apart. Now throughout the new nation‒states of Europe the imperative was integration. The dietary laws, sabbaths and festivals and the rabbinic courts of law which administered Jewish marriage and divorce all seemed to run counter to the mood of the nineteenth century. They signalled separateness and exclusivity at a time when Jews wished to indicate their willingness to merge into the larger society. Besides which, the idea of religion or morality as law, legislated by a commanding God, was contrary to the idea of personal autonomy as set out by a distinguished line of philosophers from Immanuel Kant to Hegel and Nietzsche. Law occupies a space which modern secular societies have not been inclined to grant religion. A faith which has law at its centre sees religion as part of community. Nineteenth-century liberalism, by contrast, saw religion as a matter of private life, and thus emphasised individual conscience over collective command. The idea of halakhah went against the intellectual, social and political spirit of the age.
Jewry still bears the legacy of that period. Daniel Elazar sums up the present situation as one in which “Perhaps 80 percent of world Jewry today no longer see themselves bound by halakhah, however much they may or may not see themselves as ‘religious’ or ‘good Jews’ and however much they may preserve in their lives Jewish tradition and mores.”6Daniel Elazar, People and Polity (Detroit, MI: Wayne State University Press, 1989), 153. Nonetheless and surprisingly there has been a considerable surge of interest in Jewish law in the past half-century, and not only within Orthodoxy, the one group not to have abandoned the classic conception of halakhah, but within Reform and Conservative Judaism as well.
A renewed engagement
One reason, undoubtedly, was the sheer intellectual interest generated by the most commanding figure of postwar Orthodox thought, Rabbi Joseph Soloveitchik. Heir to one of the great halakhic dynasties of modern times – his grandfather, Rabbi Chaim Soloveitchik, had been the most brilliant exponent of the analytic school of talmudic study – Soloveitchik himself had studied philosophy at the University of Berlin and obtained a doctorate in neo-Kantian epistemology and metaphysics. In 1941 he took over his father’s position as instructor in Talmud at Yeshiva University in New York, and in that role he brought to American Jewry an unprecedented combination of East and West, secular and Jewish scholarship. No figure in the history of modern Orthodoxy has rivalled his Maimonidean mastery of two cultures, and it was to halakhah that he devoted his greatest philosophical endeavours.
Significantly his first – and for twenty years almost his only – published work was entitled Ish ha-Halakhah, “Halakhic Man” or “The Halakhic Personality.”7Joseph B. Soloveitchik, Halakhic Man, translated by Lawrence Kaplan (Philadelphia, PA: Jewish Publication Society, 1983). It was a dazzling phenomenological study of the personality dedicated to seeing the world through the perspective of halakhah. Ish ha-Halakhah lent existential drama and philosophical resonance to what had until then been seen as a dry and juristic discipline. For the first time, halakhah was set forth not just as law but as a complete conceptual orientation, giving rise to a distinctive religious persona. Soloveitchik had mapped the conflicts, creativity and will to freedom of the modern Jew onto the ancient territory of Jewish law.
He went further. Soloveitchik’s repeated claim in his lectures and in his early but only recently published work, The Halakhic Mind,8Joseph B. Soloveitchik, The Halakhic Mind (New York: Seth Press, 1986). was that Judaism had one unique heritage from which every authentic expression must flow and in reference to which every proposition must be validated: the halakhah itself. It was, as it were, the objective datum out of which Jewish philosophy must be constructed. No one in the history of Jewish thought had advocated this position before. Certainly it had long been part of the task of Jewish philosophy to provide “reasons for the commandments.” Maimonides has done so. In the nineteenth century Samson Raphael Hirsch had developed a systematic ethical symbolism through which the commands could be interpreted. But no one hitherto had placed halakhah so firmly at the heart of Jewish thought. Soloveitchik’s success in marrying talmudic analysis with philosophical existentialism restored halakhah to the Jewish intellectual agenda.
A second impetus, from a quite different direction, was the crisis of legitimacy experienced by both the Reform and Conservative movements in America in the wake of the 1960s. Religious liberalism began increasingly to seem void of content as campus theologians subscribed to the “death of God” and the “moral revolution.” Reform thinkers drew back from the ethical universalism of a century before, which offered little by way of distinctiveness to Jewish life. They began, too, to question the pursuit of individual autonomy when it served as a warrant for moral anarchy and narcissism. Figures like Solomon Freehof and Walter Jacob introduced into American Reform their own version of responsa, quasi-halakhic rulings on specific questions. True, however, to the principles of American Reform, the decisions were offered as “guidance not governance.”9Solomon Freehof, Reform Responsa, 22. See also Walter Jacob, Contemporary American Reform Responsa (New York: Central Conference of American Rabbis, 1987). In a marked turn from its earlier stance, the American Reform Rabbinate affirmed in 1976 that “Judaism emphasises action rather than creed as the primary expression of a religious life.”10For analysis of this affirmation, see Eugene Borowitz, Reform Judaism Today (New York: Behrman House, 1983). This was not a commitment to halakhah, but it was at least a partial re-engagement with it.
In Conservative Judaism the dynamic was somewhat different. By the mid-1970s, Solomon Schechter’s principle that halakhic authority lay in what Jews did had become woefully inadequate to the needs of the movement. In most American Conservative congregations there was a sharp decline in religious practice. One could no longer base the laws of the Sabbath, for example, on “the collective conscience of Catholic Israel as embodied in the Universal Synagogue” without jettisoning most of their provisions. There was much soul-searching within the movement as to the ideology and logic of the various innovations adopted by synagogues, mostly on a piecemeal basis. One issue in particular galvanised Conservative thinkers into formulating a principled approach to halakhah. This was the question of the ordination of women as rabbis. Here was a controversy that divided the movement. It represented a sharp departure from precedent. History and sociology alone could not dictate an answer. The question was not what Jews did but what they ought to do. Eventually in 1984 the Jewish Theological Seminary of America gave its approval to women rabbis.11For the views that lay behind this decision, see Simon Greenberg (ed.), The Ordination of Women as Rabbis (New York: Jewish Theological Seminary, 1988). The debate set in motion a process of reflection on what a Conservative halakhah might be and gave rise in due course to a series of works on the subject.12See especially Louis Jacobs, A Tree of Life (Oxford: Littman Library of Jewish Civilisation, 1984); Joel Roth, The Halakhic Process: A Systemic Analysis (New York: Jewish Theological Seminary, 1986); Elliot Dorff and Arthur Rosett, A Living Tree (Albany, NY: State University of New York Press, 1988).
To these factors must be added a third. Contemporary society has raised a series of moral dilemmas in the field of medical, business and environmental ethics. The Vietnam War raised, for many Americans, the questions of conscientious objection and civil disobedience. Until the 1970s, the secular academic discipline of ethics had been absorbed in abstract enquiries into the nature of moral language and argument. Practical questions were held to be outside its concern. Since then, however, practical ethics has become a major academic field in its own right. This is precisely the strength of halakhah: the application of rules to concrete moral dilemmas. Since the earliest days of rabbinic Judaism, there had been ongoing debate on issues such as abortion and euthanasia, profits and prices, the preservation of the environment and the morality of war, and there was a large literature available with which to confront these subjects. Halakhah, which had seemed irrelevant to the interests of many Jews outside Orthodoxy, recovered its place as the primary Jewish resource with which to provide answers to the pressing ethical questions of contemporary life.
The context of halakhah
But the recovery of interest in Jewish law has gone hand in hand with a set of quandaries that constitute the fundamental problematic of halakhah in the modern world. In the past two centuries the entire sitz-im-leben of halakhah has changed. Since the beginnings of emancipation Jewish law has lacked coercive sanctions. If it has been observed, it has been so voluntarily. Hitherto Jewish communities had held a modicum of self-governing power. Breaches could be punished and regulations enforced by fines or, ultimately, excommunication. These sanctions vanished in the wake of social change in the nineteenth century. Jews were free to act as they chose. Many of them chose not to be bound by Jewish law, or if they obeyed it, they did so selectively. Halakhah was traditionally understood as the constitution of the Jewish people. That was the first dilemma: How should halakhah be interpreted and applied if the majority of Jews no longer considered themselves bound by it?
The second was this. Having acculturated to the West, European and American Jews found themselves subject to influences and attitudes whose source lay outside Judaism. Some provisions of Jewish law were no longer readily understandable in terms of these attitudes. Could and should halakhah adapt in such a way as to acknowledge the changing moral environment in which Jews live? Is it legitimately subject to influences from the outside?
The third was that since 1948 there has been a Jewish state in the land of Israel. For the first time in almost 2,000 years the possibility existed of Jewish law becoming, within a sovereign state, the law of the land. But a significant minority of Israeli Jews consider themselves to be secular, and a majority declare themselves to be “traditional” without fully subscribing to the commandments. Is it appropriate to enact halakhah through the instrumentality of a secular legislature? Is observance of Jewish law something that should be encouraged voluntarily through influence and education or enforced coercively through government, the courts and a police force? Can halakhah be applied to the needs and conditions of a modern state?
These dilemmas form the core of the recent argument about the nature of halakhah and its responsiveness to new circumstances. They can be summarised in a single question. The situation of halakhah has changed. Can halakhah itself change?
The question touches on fundamentals. At the core of Jewish law are the commands and prohibitions set forth in the Mosaic books. Having been given by God, they can be repealed only by God. Having been accepted by the Israelites as the terms of the covenant, they can be abandoned by Jews only at the cost of forsaking the covenant. To these propositions must be added two others. The first is that only the revelation granted to Moses had the force of divine legislative authority. Subsequent prophets were not authorised to make permanent changes in the law.13Maimonides, Mishneh Torah, Yesodei ha-Torah, chapter 9. The second relates to halakhic interpretation. The concept of an Oral Law, of equal authority with the Written Law, implies that the Torah cannot be legitimately interpreted without reference to tradition.14Maimonides, Mishneh Torah, Mamrim, chapters 1–3.
These principles are central to Judaism and were the cause of three of the great schisms in Jewish history. The Sadducees and later the Karaites denied the binding force of the oral tradition. The early Christians, Paul in particular, denied that the commandments could not be revoked. He argued that they had been and that a new covenant was now in force. The rabbis for their part held firmly to their view of the immutability of the law and traditions revealed at Sinai. The law is eternal because the covenant is eternal. On that faith, Jewish destiny depends.
Torah does not change. But in one sense, halakhah does change. For halakhah is the application of Torah to specific circumstance, and circumstances change. What then are the parameters within which the law is given to adjustment? This is Maimonides’s classic formulation:
God knew that the judgements of the Law will always require an extension in some cases and curtailment in others, according to place, event and circumstance. He therefore forbade adding to or subtracting from the Law…but at the same time gave permission to the sages – the Great Sanhedrin – of every generation to make fences around the judgements of the Law for their protection…and similarly they have the power temporarily to dispense with some religious act prescribed in the Law or to allow that which is forbidden if exceptional events and circumstances require it… By this method the Law will remain permanently the same but yet will admit at all times and under all circumstances of such temporary modifications as are indispensable.15Maimonides, Guide for the Perplexed, 3:41.
So halakhah can and does change, but always to preserve the essential integrity of biblical law. We should note however that Maimonides makes a distinction that substantially tilts the balance of halakhah in the direction of conservatism. A protective decree or enactment created by the sages – a “fence around the law” – is permanent whereas a suspension of the law is always only temporary.16Maimonides, Mishneh Torah, Mamrim 2:2–3. Rabbinic law, that is to say, has an inbuilt bias toward greater stringency over time.
This is compounded by the issue of juridical authority, hinted at in Maimonides’s reference to the Great Sanhedrin. This supreme court had considerable powers to create new law. But as its jurisdiction grew more circumscribed under Roman rule and as the centre of Jewish life shifted to Babylon, Jewry was left without a central authority. According to Maimonides, after the closure of the Babylonian Talmud no one had the power to legislate for all Israel.17Maimonides, Mishneh Torah, Introduction. At most a court was able to issue rulings for its own immediate locality, although some post-talmudic rulings gained widespread acceptance. The power to create new law had lapsed. The rebirth of the State of Israel led some thinkers, most notably Rabbi Judah Leib Maimon, to advocate the reconstitution of the Sanhedrin.18J. L. Maimon, Chiddush Sanhedrin bi-Medinatenu ha-Mechudeshet, (Jerusalem: Mossad Harav Kook, 1951). But this would have required broad support among Israel’s religious leaders, and it was not forthcoming.
We would be wrong to conclude that there is no scope for development in Jewish law. For what cannot be achieved through legislation can sometimes be achieved through interpretation. A new problem is rarely so exactly like others in the past that precedent dictates an unequivocal answer to a halakhic query. Since there are differences in the details and circumstances, it can be argued that the extant rules do not apply to the present case. Halakhic authorities are constantly called upon to adjudicate new questions and, as we will see in due course, there have been areas in which significant changes have occurred in Jewish law in the twentieth century.
But it would certainly be wrong to see change as a value in Jewish law. To the contrary, the central underlying proposition of the halakhah is that it articulates, within the limits of human understanding, the will of God as set forth in the Torah. Rabbinic tradition sees all valid Jewish law as inherent in the original revelation at Sinai. It is uncovered rather than made. Neither a prophet nor a sage has the authority to alter the terms of the covenant. The rabbis were emphatic in seeing their interpretations and decisions as strictly continuous with biblical precedent. As the third-century teacher Rabbi Joshua ben Levi put it, “Bible, Mishnah, Talmud and Haggadah, even what a senior disciple is due to teach in the presence of his master, were already stated to Moses at Sinai.”19Ecclesiastes Rabbah 1; see also Jerusalem Talmud Peah 2:6; Leviticus Rabbah 22:1; Exodus Rabbah 47:1. Procedurally, therefore, any new ruling must be rendered consistent with the antecedent sources. Any departure from precedent must be temporary, justified by emergency conditions and undertaken with the express purpose of safeguarding Jewish law as a whole. Developments within the halakhic system are thus homeostatic rather than evolutionary. They are undertaken to restore equilibrium rather than to transform. Halakhah is the application of an unchanging Torah to a changing world. Halakhah changes so that the Torah should not change.
Behind this proposition lies a distinctive conception of revelation, time and the course of Jewish history. Jewish law cannot be understood in positivist terms as simply the record of what rabbis and judges ruled. It is part of a larger theological system. Revelation discloses a moral order which is intimately connected with the history of Israel. Obedience to divine law creates harmony between the people and its land. Sin creates dislocation which leads to exile which begets repentance, return and harmony restored. Time is not for Judaism, as it was for other ancient civilisations, cyclical repetition or a meaningless sequence of events; nor is it evolution. Instead human history is a series of deviations from an essential and permanent moral order which will eventually be restored. The end of history is already implicit in its beginning. The changelessness of Jewish law is therefore not an accidental feature of rabbinic jurisprudence but is central to biblical theology. As Franz Rosenzweig, one of the most perceptive of twentieth-century Jewish thinkers, put it, “While the peoples of the world live in a cycle of revolutions in which their law sheds its old skin over and over, here the Law is supreme, a law that can be forsaken but never changed.”20Franz Rosenzweig, The Star of Redemption, translated by William Hallo (London: Routledge and Kegan Paul, 1971), 303–4.
The recent arguments about the nature, obligatoriness and mutability of halakhah are thus not merely technical and procedural. They are reflections of a deeper, indeed fundamental, debate about the nature of Judaism. Can the idea of an eternal covenant be sustained in an age in which Jewry has undergone revolutionary transformations? To this question, the various groupings in Jewry give markedly different answers.21For a representative survey of views, see Judaism 29:1 (Winter 1980). The issue contains Orthodox, Conservative and Reform views on “Halakhah, Authority and the Future of Judaism.”
Non-Orthodox attitudes to halakhah
Jewish secularists are for the most part convinced that the concept of halakhah has been superseded. There is no normative code of Jewish conduct. Judaism is what Jews do, not what they ought to do. This view is shared by secular Zionists like Amos Oz and A. B. Yehoshua, diaspora intellectuals like George Steiner, Reconstructionist thinkers following in the wake of Mordecai Kaplan and “transformationist” sociologists like Calvin Goldscheider. To be sure, there are profound differences between their conceptions of Jewish identity, but they are agreed on this, that the idea of Jewry as a holy people constituted by a covenant of commands has been shattered by Enlightenment and secularisation. There may or may not be a “Jewish ethic.” But if there is, it is born of historical experience or national character, not of divine revelation.
Within the Reform movement there is a range of opinions, from a radical wing that finds no value in halakhah to a more traditionalist view that grants halakhah “a vote but not a veto.” The radical position draws its inspiration from Martin Buber, who believed that revelation cannot by its nature disclose a content, least of all a content in the form of universally valid laws. For Buber, “Man receives, and he receives not a specific ‘content’ but a Presence.”22Martin Buber, I and Thou (Edinburgh: T. and T. Clark, 1958), 110. On this view, neither revelation nor the religious life is a matter of law at all.23See, for example, Eugene Mihaly, “Halakhah Is Absolute and Passé,” Judaism 29:1 (Winter 1980).
The traditionalist position is summed up by the British Reform leader, Anthony Bayfield. “There should,” he suggests, “always be a presumption in favour of halakhic tradition… Nevertheless, Progressive Judaism believes that individuals must formulate their own patterns of Jewish practice… We recognise the primacy of individual judgement and conscience, but individuals have to recognise that they exist also as part of a community and a tradition.”24Anthony Bayfield, “Progressive Judaism: A Collective Theological Essay and Discussion Paper,” Manna 27 (Spring 1990). In practice, there is little to distinguish this from American Conservative Judaism, but in principle there is a difference nonetheless. Reform Judaism retains its belief in the Kantian principle of personal autonomy. It is the individual, rather than Sinai, rabbinic tradition or the Jewish community, who must decide on the content of Judaism. The presupposition of halakhah – that independently of our choices there are objective standards of correct conduct – is rejected by Reform even in its traditionalist wing.
Secular and Reform Jews are therefore agreed that far from being changeless, something decisive has changed within Judaism, namely its encounter with Enlightenment philosophy and modern secular culture. In traditional Judaism it was the community that shaped the individual. In modern Judaism, they argue, it is the individual that determines the community. Halakhah then becomes secondary to personal decision. It is a resource rather than a code. A different struggle has taken place within the Conservative movement, which, among its more traditionalist members, has striven to develop a philosophy of change as mandated by the halakhah itself.
There is no single Conservative theory of halakhah, and the best way of approaching its current state of thought is to consider the views of three of its thinkers, Robert Gordis, Louis Jacobs and Joel Roth. Gordis argues for a “dynamic” halakhah on the grounds that Jewish law has a history of development born out of its interaction with new ages and challenges. At each point Judaism accepts some and rejects other aspects of its changing environment and is thus engaged in ongoing reformulation. “Tradition constitutes the thesis, contemporary life is the antithesis, and the resultant of these two factors becomes the new synthesis.” It is impossible to predict in advance how the law will change. Ultimately, “life is the determining factor and from its decision there is no appeal.” Rabbinic law evolves in response to new social conditions, new “ethical insights and attitudes” and the popular will of Jews. As a result “sociology is not extraneous to halakhah – it is an integral element in it.” Jewish law is not something fixed in advance but the product of a continuous interaction between the tradition of the past and the insights of the present.25Robert Gordis, “A Dynamic Halakhah: Principles and Procedures of Jewish Law,” Judaism (Summer 1979).
Louis Jacobs argues for what he calls a “non-fundamentalist” halakhah. His contention is that Jewish law must liberate itself from “the basic doctrine upon which the halakhic structure is reared, namely, the infallibility of Scripture in its rabbinic interpretation and the infallibility of the talmudic rabbis as the sole and final arbiters of the halakhah.” What this means in practice is nowhere clearly spelled out in Jacobs’s voluminous writings. There are points at which it is taken to imply ultra-conservatism: that what is at stake is not the substance of Jewish law but the reasoning and authority behind it. There are other points at which amendment or abolition of biblical law is advocated. In the case of the law of the mamzer (the child born of an adulterous or incestuous union, who is forbidden to marry a legitimate Jew), for example, Jacobs states that “a radical change in the law becomes imperative.” If neither the Bible nor any other document can be taken as a normative guide to the divine will, “the ultimate authority for determining which observances are binding upon the faithful Jew is the historical experience of the people of Israel, since, historically perceived, this is ultimately the sanction of the halakhah itself which…originated and developed as a result of Israel’s experiences.”26Jacobs, A Tree of Life, 236–48.
Joel Roth, the most sophisticated analyst of the three, prefers not to invoke either Gordis’s ethics or Jacobs’s theology. For him, halakhah is a formal system which confers wide discretionary powers on its interpreters. In particular, he points to the use by halakhists in the past of “extra-legal” facts to justify their decisions, such as changes in the state of scientific knowledge or economic necessity. New sociological realities, he suggests, might enter into the decision-making process on the same basis. So too might newly discovered meanings of biblical verses.27Roth, The Halakhic Process. In the argument over the ordination of women, Roth advocated the use of one rule of discretionary power (the principle that “the sages may abrogate a biblical norm”) to circumvent the biblical prohibition against women serving as witnesses in Jewish law. This was used in the Talmud to allow a woman to testify to the death of her husband. Roth argues that it should now be generalised to cover all testimony on the grounds of “the changed status of women in our society generally and the radical change in our conception of the nature of women.”28Joel Roth, “On the Ordination of Women as Rabbis,” in Greenberg (ed.), The Ordination of Women as Rabbis, 127–85.
It should be clear that none of these thinkers adopts a Reform position. For each, halakhah bears the meaning of law, or at least norm. Judaism is not simply the decision of individuals. It is a set of rules which have collective authority. Where then lies the difference between Conservative Judaism and Orthodoxy? With Gordis and Jacobs the answer is straightforward. Gordis would allow external influences to play an explicit part in the determination of Jewish law. Against this Jacob Neusner has pointed out that, for the sages of the Mishnah, “the law inexorably and ahistorically unfolds as an expression of its own deep structure of logic,”29Jacob Neusner, “Halakhah and History,” Judaism 29:1 (Winter 1980). a view with which Orthodox thinkers would agree. Jacobs bases his view of halakhah on the rejection of several fundamental tenets of rabbinic Judaism, including the divine authorship of the Torah and the authority of the Babylonian Talmud.
Indeed neither of these thinkers offers a criterion for determining the parameters of halakhic change. Gordis invokes sociology, Jacobs appeals to history. But if these views were to be taken seriously then virtually the whole of the halakhah would have to be dismantled since, as we noted earlier, the majority of Jews today no longer regard themselves as bound by it. They would counter this objection by saying that halakhah is not answerable to the majority of Jews but to “the consensus of the concerned” or the majority of “Jews who basically accept the authority of Jewish law.” But it is by no means clear even in America, and certainly worldwide, that this majority is Conservative. Almost certainly it is Orthodox. The fundamental incoherence of Gordis’s and Jacobs’s view of halakhah is its failure to distinguish description from prescription. No description of what Jews do can of itself enlighten us as to what they ought to do. Neither “life” nor “historical experience” determines law, though law must respond to both.
The position of Joel Roth is somewhat different. His is a purely formal argument, and is therefore open to formal objection. The most obvious is that any Conservative innovation based on discretionary powers to set aside established law would almost certainly find itself in a minority position when set against the consensus of halakhic authorities; and the law follows the majority. Roth’s answer to this is subtle. There is, he maintains, a difference between an argument within the halakhic system and an argument about the halakhic system. In the former one must reckon with contrary views; but in the latter one need not. Thus halakhic opinions which ignore contemporary sociology or psychology may simply be disregarded.30This seems to me the substance of Roth’s somewhat opaque remarks in The Halakhic Process, 310. Roth’s formal consistency is in effect purchased at the price of ignoring all but Conservative halakhists. It is also not clear that the power granted to the rabbis to set aside biblical law applies post-talmudically, or that it is mandated by considerations such as the changed status of women in society. Indeed, as Roth himself is aware, his position could be taken to justify the abolition of most of Jewish law on the ground of the “radical change” in conceptions of Jewish existence and identity.
The internal contradictions of Conservative halakhah point to the difficulty, even the impossibility, of marrying rabbinic Judaism to an evolutionary view of the history of Jewish law. That is not to say that halakhah does not have its own internal dynamic. Quite clearly it does. We have suggested that the best way of understanding halakhic change is to see it as homeostatic. Halakhah is the application of an eternal Torah to a changing world. It changes in order to preserve laws, institutions and values that do not change so that, in Maimonides’s phrase, “the Law will remain permanently the same but yet will admit at all times and under all circumstances of such temporary modifications as are indispensable.” It follows that at times of social and political upheaval there are strong pressures within the halakhic system itself to protect principles that have become endangered. Change then becomes mandated, though it is restorative rather than evolutionary.
Radical Orthodoxy
Two radical voices within Orthodoxy have argued the need for systematic halakhic change in the wake of modernity: Eliezer Berkovits and Yeshayahu Leibowitz. Their arguments bring us back to fundamentals. As we saw at the beginning of the chapter, divine law was the constitution of the people of Israel. Its natural context is as the law of a sovereign people in its land. Precisely because of this, there were those who argued that with the Roman conquest and Jewish exile the law was no longer in force. Theologically the claim came from Christianity, secularly from Spinoza. Jews nonetheless insisted that the covenant remained in force. The law still applied even in exile. Thus far the argument for 1,800 years.
But with the birth of the State of Israel the entire basis of Jewish life returned to its biblical context, that of a sovereign people in its own land. A halakhah predicated on a people dispersed and powerless cannot be substantively the same as one grounded in sovereignty and statehood. We defined halakhah as the application of an unchanging Torah to a changing world. Berkovits and Leibowitz would agree with that definition, but would argue that precisely to recapture the original intent of Torah, considerable change is necessary to mirror that which has taken place as a result of the Jewish return to Israel.
Berkovits begins with the proposition that “the classical purpose of halakhah is to shape the Jewish realities of the life of a people.”31Eliezer Berkovits, Not in Heaven: The Nature and Function of Halakhah (New York: Ktav, 1983), 85–86. Berkovits’s arguments are set out more fully in the Hebrew work Ha-Halakhah Kokhah ve-Tafkidah (Jerusalem: Mossad Harav Kook, 1981). Its natural environment is that of a self-governing nation in its land, and its natural form is that of a fluid system of two elements: a fixed Written Torah recorded in the Mosaic books, and a constantly adaptive Oral Torah that adjusts to new situations as they arise. The essence of the Oral Law is that it is not written down. It is situational, directed to specific circumstance. It is the application of universal rules to individual cases. The Oral Torah mediates between the eternity of the divine will and the immediacy of human experience. Its task is to apply the principles of the Written Torah to all elements of national existence, its economics and politics, its social ethos and its culture as well as its narrowly “religious” or ritual domain.
Halakhah is thus seriously dislocated in exile. It can no longer fully govern the experience of Jews, who are now surrounded by a non-Jewish culture and non-Jewish values. The sovereignty of halakhah is confined. The law itself ceases to be the living constitution of a nation and becomes, instead, defensive. Throughout the Middle Ages, Jewish communities retained a measure of autonomy, so that halakhah preserved at least some substance as the code of Jewish self-government. But in modern times, as Jews entered the mainstream of secular society, halakhah was driven almost completely into the private domain of home, synagogue and school and lost its central function of shaping the public domain of Jewish civilisation.
The most overt sign of the dislocation of halakhah is the codification of Jewish law. One of the fundamental rules of early rabbinic Judaism was that the Oral Law may not be committed to writing. Nonetheless, under the emergency conditions that beset the Jewish community in third-century CE Palestine, the rule was suspended and has remained so ever since. The long process of the codification of the Oral Law began, from the Mishnah in the third century to the Babylonian Talmud in the sixth, to Maimonides’s Mishneh Torah in the twelfth, to Joseph Karo’s Shulchan Arukh in the sixteenth. For Berkovits, the very idea of codification “violates the essence” of the Oral Law. Once the Oral Law is fixed in the form of universal rules it loses its “concern with life, the concrete situation in which the Jewish people, the individual and the collective, find themselves at any given time.”32Ibid., 89–93.
The contemporary failure of halakhah to respond to the rights of women and the challenges of statehood and democracy is a symptom of its alienation from life. Jewish law remains frozen in the petrification that took place in the nineteenth century. Its interpreters have failed to understand the significance of the return of Jews to their original and intended condition as a people in their own land. “The Torah is eternal,” Berkovits concludes,
because it has a Word for each generation… One can find the Word that has been waiting for this hour to be revealed only if one faces the challenge of each new situation in the history of the generations of Israel and attempts to deal with it in intellectual and ethical honesty. Alas, those who have authority to impose laws of the Torah…do not search for the Word that was intended for this hour, this generation.33Ibid., 118.
Berkovits’s argument is based on a sharp contrast between the Written and the Oral Law, the one universal and unchanging, the other specific and adaptive. A quite different argument, though reaching a similar conclusion, is advanced by Yeshayahu Leibowitz.34Yeshayahu Leibowitz, Yahadut, Am Yisrael u-Medinat Yisrael. Leibowitz holds halakhah to be constitutive of Judaism. For him, not only is there no such thing as Jewish ethics, but the very phrase is a contradiction in terms. Ethics is the search for rules of conduct based on reason, while halakhah comprises rules of conduct based on revelation. The two systems have little in common. There is, argues Leibowitz, a great difference between the ethical rule, “You shall love your neighbour as yourself,” and the biblical rule, “You shall love your neighbour as yourself; I am the Lord.” The latter is based not on rational assent but on obedience. Ethics is answerable to the needs of man, but halakhah is the command of God. For Leibowitz the paradigm of halakhic action is Abraham’s willingness to undergo the trial of the binding of Isaac, an act which runs contrary to all ethical feeling. The word of God is a given, an objective datum. The only choice is whether to obey it or not. Since the divine command emanates from beyond the human situation it cannot be judged from within the human situation. It can only be responded to.35Ibid., 13–36.
Given this view of Jewish law, we might conclude that Leibowitz’s position is the very opposite of Berkovits’s, with its insistence on the ethical and situational character of halakhah. Nonetheless, for the past half-century Leibowitz has maintained that the founding of a Jewish state radically alters the shape of halakhah. His reason is simple. Jewish law received its detailed elaboration after the demise of the Jewish kings. It contains provisions for the relationships between man and God and between man and man, but not for the relationship between man and state. To be sure, there is a significant body of rabbinic law dealing with government, the conduct of wars and the maintenance of a social order. It is summarised in the section of Maimonides’s code dealing with “The Laws of Kings and their Wars.” But since it developed at a time when Jews lacked governmental power, it is an ideal and theoretical system rather than one which developed out of the realities of political life.36Ibid., 98–216. For an English summary of these views, Yeshayahu Leibowitz, “The Crisis of Religion in the State of Israel,” Judaism 2:3 (July 1953), 204–14.
To give one example: the apocryphal First Book of Maccabees describes how a group of Jewish rebels were surrounded by Seleucid troops on the Sabbath. Fearful of breaking the Sabbath, they offered no resistance and were massacred. The remaining rebels then formally decided that it was permitted to wage war on the seventh day.37I Maccabees 2:31–41. According to rabbinic tradition, however, the permission to wage war on the Sabbath was based on an exegesis of Deuteronomy 20:20. Maimonides notes that Joshua’s campaign against Jericho was waged on the Sabbath. See Babylonian Talmud Shabbat 19a; Mishneh Torah, Shabbat 2:25, Melakhim 6:11. It was just this kind of development in the light of circumstance that had not occurred in the case of the Jewish laws of the state. “Halakhah as it has come down to us accepts the absence of Jewish statehood as axiomatic, or one might even say, as a prior condition for the fulfilment of its prescriptions.”38Leibowitz, “The Crisis of Religion,” 206. Jewish law as it developed from the first to the twentieth centuries assumed that social, political, macroeconomic and military decisions lay in non-Jewish hands. Jewish statehood therefore requires a revolutionary development in halakhah.
How can this be squared with Leibowitz’s insistence that halakhah is the word of God, unconditioned by human circumstances and needs? Here Leibowitz makes a fundamental distinction. In the area of private law, governing religious and interpersonal behaviour, halakhah does not change since it speaks to the unchanging realities of the Divine‒human situation. But in public law halakhah does change, since it reflects changing historical situations. How so? The explanation is that there are two kinds of laws: those that create relationships and those that regulate relationships already in existence. Much of Jewish law is of the first kind. The laws of prayer, for example, create the possibility of prayer. We pray because we are commanded, not because we are moved to express religious emotion. But the social laws of the Torah are of the second kind. The Torah did not create ideal social institutions de novo. Instead it took the forms already extant in society and proceeded to regulate them, slowly moving them towards an ideal. Thus the Torah did not create slavery. It found it already in existence and provided laws by which it could be circumscribed and eventually abolished. The religious forms of the Torah were created by the Torah, but the social forms were merely regulated by the Torah and reflect independently existing social realities. It follows that “when objective conditions changed to the point where halakhic laws had lost their significance, they became inoperative.”39Ibid., 210.
The State of Israel represents a social reality never contemplated by the halakhah, namely a pre-messianic state which is neither exile nor yet redemption. It called for new halakhah. But religious authorities had sidestepped the challenge and had thus allowed profound anomalies to arise. Religious Jews recognised the need for essential services to continue on the Sabbath, but instead of reformulating the laws of the Sabbath, they simply allowed non-religious Jews to operate them. They accepted the need for an army, but insisted that women and Torah students be granted exemption from military service. Since the only way Jewish law had treated problems of the state in the past was to assume that such matters were taken care of by non-Jews, religious authorities in Israel had continued the same tradition but had cast secular Jews in the role of Gentiles. Leibowitz soon became convinced a that the necessary changes would not emerge from Judaism’s official interpreters. It would come instead of its own accord, from ordinary committed Jews who believed both in the Torah and the state.
Clearly Leibowitz and Berkovits are no less radical – indeed are more so – than the Conservative thinkers we have considered. They are not representative voices or Orthodoxy, and in some circles would not be considered Orthodox at all. Nonetheless it is worthwhile spelling out the differences between theirs and the Conservative position. Firstly, their argument is not based on a rejection of the divine revelation of the Written Torah, nor on reaching an accommodation with the ethos of the age. Secondly, its context is the renewal of Jewish national life in Israel, not the adjustment of Jews to the Diaspora. Thirdly, their view of halakhah is restorative rather than evolutionary. Leibowitz and Berkovits are impressed by the significance of Jewish statehood for the pulse of halakhah. Each believes that Jewish law has been restored to its original setting, and must therefore recover the character it had in early or even pre-rabbinic times. The task of Jewish law was to regulate all aspects of the life of a holy nation. It lost this role with European emancipation and must now recover it if it is not to become sectarian and ritualistic, concerned with only a minority of Jews and a fragment of Jewish life. Leibowitz and Berkovits demonstrate the dynamic potential of halakhah considered as an autonomous system unfolding through its own norms and values.
Women, study and divorce
The changes advocated by Leibowitz and Berkovits have not come about. But others have. The most interesting question that remains to be answered is why the halakhah has developed in one way rather than another and in some areas rather than others.
Perhaps the best point of entry is to consider a realm where there has been perceptible change, most markedly in the twentieth century: the place of women in the realm of Torah study. Study of Judaism’s sacred texts is a fundamental religious duty. Rabbinic Judaism laid great emphasis on education and regarded study as a devotional act no less powerful than prayer. The exclusion of women from this duty had significant implications for their place in the religious life. The Mishnah and Talmud had seen study as a religious obligation for males rather than females. Writing in the twelfth century, Maimonides summarised the law thus: women are not commanded to study Torah, though if they do so they receive reward for their voluntary act. A father should not teach his daughter Torah, and if he taught her the Oral Law it was as if he had taught her folly.40Maimonides, Mishneh Torah, Talmud Torah 1:13.
There is evidence, however, that Jewish life was more complex than these bare principles suggest. The literature of the mishnaic period, for example, makes reference to women’s presence at lectures given by the sages and to at least one woman, Beruriah, who was a halakhic authority in her own right.41See Anne Goldfeld, “Women as Sources of Torah in the Rabbinic Tradition” in Elizabeth Koltun (ed.), The Jewish Woman: New Perspectives (New York: Schocken), 257–71. In the Middle Ages, a Christian contemporary of Maimonides could write, “A Jew, however poor, if he has ten sons, will put them all to letters, not for gain as the Christians do, but for the understanding of God’s law – and not only his sons but his daughters too.”42Quoted in Paul Johnson, A History of the Jews (London: Weidenfeld and Nicolson, 1987), 193. See also the essays of Judith Wegner, Judith Baskin, Renée Levine Melammed, Howard Adelman and Chava Weissler in Judith Baskin (ed.), Jewish Women in Historical Perspective, (Detroit, MI: Wayne State University Press, 1991). In the course of time, efforts were made to reconcile principle with practice. In the thirteenth century, the Sefer Chassidim noted that the exemption of women from study must exclude the laws pertaining to them, for if they were not taught the law, how could they observe it?43Sefer Chassidim, 313. In the late sixteenth century, Rabbi Joshua Falk argued that since Maimonides’s ruling only applied to a girl being taught by her father, it was permitted for her to study by herself.44Perishah to Tur, Yoreh Deah 246:15.
Most radically, a foremost twentieth-century halakhic authority, Rabbi Israel Meir ha-Cohen, suggested that the talmudic rulings referred to specific circumstances which no longer obtained. They presupposed an environment where “ancestral traditions were strong,” in which girls learned about Judaism not through formal instruction but simply by observing what was done at home. Nowadays two things had changed. Firstly, Jewish families were in disarray. Some were estranged from religion. Others were separated by the massive migrations from Eastern Europe. Secondly, Jewish girls were receiving a secular education which, if it were not balanced by a Jewish education, would lead them to forsake Judaism altogether. In this new environment it was not forbidden, but on the contrary a religious duty, to give girls Jewish instruction.45R. Israel Meir ha-Cohen (Chafetz Chaim), Likutei Halakhot to Sotah 21. The ruling was acted on, and within Eastern Europe a network of Jewish day schools for girls, Beis Yaakov, was created by Sarah Schenirer, herself a member of the ultra-Orthodox group of Belzer Chassidim.46See Deborah Weissman, “Bais Yaakov: A Historical Model for Jewish Feminists,” in Koltun (ed.), The Jewish Woman: New Perspectives, 139–48.
What logic underlay this ruling? Maimonides, writing about the Rabbis’ power to introduce new enactments, added that it may be exercised “to strengthen religion and create a fence so that people will not transgress the Torah’s commands.” They may even temporarily suspend biblical law as emergency measure, “to bring the masses back to religion or save them from being corrupted.” He gave an analogy. “Just as a physician may amputate a man’s hand or foot to save his life, so the court may occasionally instruct people to disobey some of the commandments so that the commandments as a whole may be preserved.”47Mishneh Torah, Mamrim 2:4. The same rationale lies behind Rabbi Israel Meir’s reversal of the rule against teaching Torah to girls. If it were not done, he wrote, “they might turn away completely from the way of God and transgress all the fundamentals of religion.”
Halakhah responds to preserve the integrity of Torah as the religious constitution of the Jewish people. At times this mandates change, as in the case of women’s education. At other times it counsels resistance to change. In modern times in particular, when most change in Jewish life has been in the direction of abandonment of tradition, many halakhists have seen it as their duty to oppose even technically permissible developments on the grounds that change as such weakens the structure of religious authority.
There are times, too, when there can be legitimate disagreement as to what counts as preserving the integrity of Torah. Modern conditions have, for example, greatly weakened the position of women in relation to the Jewish laws of divorce. The sanctions courts once had to compel a husband to grant his wife a divorce have greatly diminished with the loss, in the diaspora, of Jewish self-governing powers. How Jewish law responds to this dilemma will depend on how rabbis understand the fundamental thrust of the halakhah. If its purpose is to safeguard the rights of women in marriage, they will advocate new proposals to make it easier for a wife to secure a divorce.48For two recent proposals, both involving a pre-nuptial contract, see “The Device of the ‘Sages of Spain’ as a Solution to the Problem of the Modern-Day Agunah,” in J. David Bleich, Contemporary Halakhic Problems III (New York: Ktav, 1989), 329–43, and Shlomo Riskin, Women and Jewish Divorce (Hoboken, NJ: Ktav, 1989). A history of such attempts is contained in A. Freiman, Seder Kiddushin ve-Nissuin, (Jerusalem: Mossad Harav Kook, 1964), 385–97. If it is to protect the sanctity and stability of marriage, they will oppose such innovations. The religious integrity of women and the covenantal character of marriage are both leading themes in biblical and rabbinic thought. It is no surprise, therefore, that halakhic voices have been heard in both directions, advocating and resisting change. Since marriage laws have global consequences, broad consensus is necessary for any change to be effective, and since it is presently unavailable, moves to ameliorate the position of women have thus far been frustrated.
Covenantal constitution
Halakhah is the constitution of the covenant, the code of a “holy nation.” The fate of this proposition has formed the drama and dialectic of halakhah in the modern world. As we have seen, significant sections of Jewry, almost certainly a majority, would no longer define Jewish existence in these terms. Halakhah might represent for them a past phase in Jewish life, no longer applicable or necessary in our time. Or it might retain a lingering relevance as custom canonised by time, a personal resource to be selectively appropriated, or a communal convention to be adapted, when necessary, to the mood of the age. Thus secularised, halakhah is cut adrift from its theological moorings. It ceases to be the code binding Jews to God through the structured sanctification of private and public life. It becomes a personal enrichment, an embellishment of ethnicity, an instrument of group survival or a cultural phenomenon. But it no longer is what it was for the sages who defined halakhah as “the word of God.”49Babylonian Talmud, Shabbat 138b. Nor is it a shared code shaping Jews universally into a community of action.
Faced with the growing rift between Torah and Israel, Jewish law and the Jewish people, some Orthodox thinkers like Eliezer Berkovits and Yeshayahu Leibowitz proposed radical adaptations of the halakhah. Their argument was an inversion of Spinoza’s. Spinoza had said that since halakhah was the law of a sovereign nation, now that Jews were in exile it had expired. Berkovits and Leibowitz argue that since Israel has become again a sovereign nation, halakhah has been reborn. Their shared premiss is that the weight Judaism places on law as its primary expression means that for it, religion is a matter of the public as well as the private domain. The Sabbath, for example, is not a day of leisure in which individuals personally decide what they will do to relax. It is a day of collective rest enjoined on everyone, “the common property of all.”50A fine analysis of this point is contained in Michael Walzer, Spheres of Justice (Oxford: Blackwell, 1983), 184–96. That is why the Sabbath is not an idea, a value or a principle but a halakhic institution governed by an intricate and ever-ramifying network of laws. The shift in twentieth-century society from holy time to leisure time, from public rest to private recreation, signals the predicament of halakhic consciousness in a world of liberal individualism. Only in the context of a Jewish state could halakhah recover its role as the architecture of a public culture.
What Berkovits and Leibowitz advocate has not happened, partly because Israel is a secular state and partly because the religious groups within it are not united. Instead, in an arrangement agreed shortly before Israel’s independence, halakhah governs certain selected areas of public life. Saturday is the national day of rest. The dietary laws are observed in government institutions. Religious courts have jurisdiction over marriage and divorce, and the state supports autonomous religious schools. This, the so-called status quo agreement preserves a delicate balance between religious and secular forces and between several sharply opposed conceptions of Israel as a Jewish state.
Modernity, then, has dramatically changed the situation of halakhah in fact, if not in principle. In sociological terms it has ceased to be the constitution of all Jews and become, instead, the voluntary commitment of some: those who grant the biblical‒rabbinic tradition its classic authority. In some areas, particularly those concerning private choices like medical ethics, it has continued to develop. In others, notably those requiring universal consensus like personal status, marriage and divorce, development has been arrested. The reason is straightforward. Neither side of the divide has an interest in change. Those who accept the authority of halakhah abide by its decisions. Those who do not, do not turn to it for solutions to the problems of modernity. The advocates of halakhic change are inevitably in a minority. If, as observers have noted, halakhah has been less flexible in recent times than hitherto, this has less to do with any curtailment in the scope of rabbinic authority than it has with the social setting of the law. No longer the code of all Jews, it has become the code of a minority whose values are endangered by secularisation.
The fate of halakhah is central to the fate of Jewry as a covenantal people and a holy nation. But underlying its modern vicissitudes is a more fundamental issue still: the question of religious authority in a secular age. Halakhah addressed Jews as the command of God. It did so because it was predicated on a text which itself carried supreme authority: the Torah as the unmediated word of God. What then has been the fate of this belief?