What Is This Thing Called Law? The Jewish Legal Tradition and Its Discontents. By Joshua Berman. Mosaic, December 2013.
The Crisis in Jewish Law Today. By David Golinkin. Mosaic, December 2013.
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.
Over at Mosaic, Bar-Ilan University’s Rabbi Joshua Berman has written an absorbing essay on common law and statutory law in Jewish observance. The response pieces Mosaic has published are thoughtful as well, but there’s a side issue touched on in Berman’s piece and addressed more intently by David Golinkin that warrants more attention: namely, how all this applies to Conservative Judaism.
It is true that in ancient times, the House of Hillel and the House of Shammai issued widely divergent rulings and yet retained their standing as partners in a unified Jewish people. But back then there were only “two Torahs,” and adherents of those schools lived in integrated communities. Such ancient precedents have little relevance to the religious and demographic complexity of the contemporary Jewish world. Although I am sympathetic to the Conservative movement’s attempt to invigorate halakhic practice within the best tradition of talmudic jurisprudence, I don’t see how that can be responsibly executed with an eye toward the unity of the Jewish people and of Judaism itself.
Golinkin, a Conservative rabbi, responds that Conservative Judaism’s struggles have less to do with the prominent role of common law and more do to with an inability to strike the right balance:
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. . . .
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. Even so, I think that Gottleib’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.
The challenge for someone like Golinkin, of course, is that once halakha becomes subject to cultural norms increasingly out of step with Jewish tradition, it’s difficult to avoid the conclusion that so much of that tradition is optional. To put it another way: what’s the use of stressing tradition if the community is empowered to break with that tradition? Any aspect of it deemed relevant doesn’t need to be encouraged, and any part deemed obsolete will be rendered as such with the imprimatur of the community’s rabbinic leadership. Further, doesn’t such a situation invert the historical relationship between rabbi and congregation?