Intro to Masorti - Changing the Law

As Abraham Isaac Kook (1865–1935) once said: just as there are laws of poetry, there is poetry in laws. The halakhist obeys the rules and plays the game according to them. In order to arrive at his decisions the halakhist must use the acceptable legal ploys. He has al- ways to demonstrate that the law really is what he declares it to be, and that his decision has been reached on halakhic grounds. Yet, especially when the problem he confronts is of vital religious or ethical concern, he knows only too well that some conclusions are ruled out from the beginning even if these appear convincing from the point of view of abstract logic and pure legal theory.

1] The original justification for the law is the only reason to keep it, and that reason no longer obtains, therefore the law can be altered or abrogated.

2] The consequences of maintaining the status quo is worse than the consequences of changing it, therefore the law can be altered or abrogated.

-Human Dignity

-Paths of Peace

-Concern over excessive financial loss

-Not causing wanton harm

-Preservation of life

A very striking example of a change in the law is in connection with a husband who has been lost at sea. The talmudic law is strict in this matter. If the water is limitless (mayim she’ein lahem sof ), i.e. it has no visible boundaries, the wife is not allowed to remarry since her husband may have survived.94 At the beginning of the thirteenth century a ship went down, and after a number of years Eliezer of Verona permitted a woman whose husband had apparently disappeared with the ship to remarry. He argued that the Talmud does not say that the wife may never remarry, only that ‘she is forbidden’, which he interpreted as meaning that she is forbidden to do so until permitted by the rabbis— that is, it is left to the rabbinical court to determine whether it is likely that, after a lengthy period of time and in the particular circumstances, the husband is still alive. This is known in the halakhic literature as ‘the permission advanced by Eliezer of Verona on the grounds of circumstantial evidence’...

This dispensation was not in itself accepted by later halakhists but was nevertheless relied on when it could be added to other reasons leading to a lenient decision. In the nineteenth century Moses Sofer adds the further consideration that, ‘nowadays’, when communications have improved beyond all recognition (he cites the postal service, the telegraph, and newspapers), it is all the more likely that if the husband were still alive he would have found means of notifying his family. He also adduces the argument only when there are other reasons for leniency, but he does attach significance to it. In this he is followed by the Lithuanian rabbi Isaac Elhanan Spektor, the foremost nineteenth-century authority on the problem of the missing husband. The same argument was used, among others, to permit the wives of the crew of the Israeli submarine Dakkar to remarry when it went down at sea in 1968.

by RABBIS ELLIOT N. DORFF, DANIEL S. NEVINS & AVRAM I. REISNER

The Committee on Jewish Law and Standards (CJLS) has a long and proud history of addressing weighty issues of ritual and social practice as our community wrestles with the challenges of observing Jewish law in a modern context. We are motivated always by our tradition’s mandate that rabbis in every generation apply Jewish law sensitively and effectively to the new circumstances of their time, drawing upon not only the precedents of our tradition but also its fundamental concepts and values. The issue of homosexuality and halakhah is particularly contentious in our historical moment, but it is hardly unique when compared to the complex topics addressed by our predecessors. Fifty years ago our committee was similarly occupied by the subject of agunot, women who had been abandoned by their husbands but who were considered “chained” to them by the law. Then too, critics warned that the creative halakhic solutions fashioned by the CJLS would be the undoing of halakhah but, in fact, this has emerged as one of the finest hours of modern rabbinic leadership. Our predecessors applied classical halakhic principles in new ways in order to free women from this legal quandary.

Dor dor v’doroshav—each generation demands its own interpretations of Jewish law. As the Torah says, “When a matter shall arise that confounds you…you shall go and inquire of the judge who shall be in that day, and they will tell you the law.” (Deut. 17:9) For the CJLS to avoid this issue or to declare that nothing can be done for homosexuals who wish to observe the halakhah would be to abandon the Torah’s mandate. Indeed, were we unable to find compelling guidance in the halakhah for the sexual lives of our contemporary Jews, including those who are gay and lesbian, that would be a terrible defeat for our religious mission.

​​​​​​​How is our attitude to the living halakhah affected? If there is such a vast gulf between us and the traditional halakhists in the theory of the halakh- ah, can there be any continuity in practice? Part of the answer is that the traditional halakhists were inspired by their theory but were not in thraldom to it. They did adopt a fundamentalist stance, but when they did it was quite a respectable stance to adopt. Before the rise of modern scholarship and without any anticipation of its achievements, the doc- trine of verbal inspiration and the rest did not offend reason and did not call into compromise the intellectual integrity of the halakhist. It provided the background to all his activity because no convincing rival theory ever presented itself to his mind. And the halakhists never understood the theory in a way that would have inhibited them from making their own original contribution. On the contrary, the whole area of rabbinic law, of the right to issue ordinances and to interpret the halakhah so as to make it conform to as well as to guide and direct the life of the people, was itself seen as having biblical sanction.