n memory of my mother, Devorah Golinkin z”l on her second yahrzeit, 27 Tevet 5774
In December, 2013, Prof. Joshua Berman, a Professor of Bible at Bar Ilan University, published a lengthy essay in “Mosaic” entitled “What is This Thing Called Law? The Jewish Legal Tradition and its Discontents”(mosaicmagazine.com/essay/2013/…/what-is-this-thing-called-law/). The following response was written at the request of the editors of Mosaic and was published there in an abbreviated form. The following is the complete version of my response.
I enjoyed reading Prof. Berman’s very ambitious essay which examines over 3,000 years of Jewish law via the prism of common law vs. statutory law. I particularly enjoyed the first half on Biblical law, in which he maintains that both the Code of Hammurabi and the Torah are not codes of law but rather collections of precedents which were not slavishly followed but rather applied in a flexible fashion by later judges.
He proceeds to argue that the Mishnah and Talmud continue in the common-law tradition. Maimonides was the first to write a comprehensive code of Jewish law, completed in 1180, inorder to unite the dispersed Jewish people, followed by Rabbi Yosef Karo who wrote the Shulhan Arukh in 1563 in order to unify “an infinite number of Torahs” and thereby unify the Jewish people. Despite opposition to the Shulhan Arukh by Rabbi Shlomo Luria and others who wanted to continue to base halakhah directly on the Talmud, the Shulhan Arukh won out and become the benchmark of Jewish law.
He further states that the Conservative movement and its Committee on Jewish Law and Standards have continued the common-law approach, frequently going back to the Talmud andRishonim (rabbis who lived ca. 1000-1500). This approach is legitimate but problematic because it will lead to a lack of unity in Jewish practice. Orthodox rabbis, on the other hand, rarely rule against the Shulhan Arukh and this leads to a lack of flexibility on most issues.
Finally, he tries to explain why Orthodox feminism has not been widely accepted among Modern Orthodox rabbis, whereas lenient approaches to conversion have been accepted by Modern Orthodox rabbis.
I would like to respectfully differ with Prof. Berman on two major points: (I will not list here minor points of disagreement. For example, he writes that “the Babylonian Talmud is likewise a record of discussions”. Many if not most modern Talmud scholars would disagree with this sentence. The Talmud is primarily a literary creation of stam hatalmud, the anonymous editors of the Talmud, who lived long after the Tannaim and Amoriam).
I) Common Law vs. Statutory Law from 1180 C.E. until the present
I agree with him that common law was the dominant form of Jewish law in the Biblical, Talmudic and Geonic periods. But since Maimonides attempted to codify all of Jewish law, there has been a constant struggle until today among those who favor common law and those who favor law codes. Every time a rabbi – usually a Sephardic rabbi – wrote a code in order to unify or standardize Jewish practice, there arose 100 rabbis (or more) who wrote commentaries disagreeing with hundreds or thousands of points in that code and going back to the Talmud and other sources to argue with the author. Indeed, the standard printed page of all the famous codes is literally surrounded by these critics and commentaries. Rabbi Yitzhak Alfasi is surrounded by Rabbi Zerahiah Halevi, Ramban, Ran, Nimukei Yosef and others. Maimonides is surrounded by the Ra’avad of Posquieres, Maggid Mishneh, Kesef Mishneh, Hagahot Maimoniot and others. The Tur is surrounded by the Bet Yosef, Ba”H, Darkei Moshe, Perishah and Derishah, and others. The Shulhan Arukh is surrounded by Magen Avraham, Taz, Ba’er Heteiev, Gra, Mishnah Berurah and many more. It is as if the commentators will not let the author of a code get away with unifying Jewish practice – they must look for the sources, disagree, quote conflicting opinions and add new laws and customs.
In addition, Prof. Berman hardly mentions the responsa literature which consists of thousands of volumes and well over 300,000 individual reponsa written from ca. 500 C.E. until today which are for the most part common law. These questions and answers do quote the major codes, but they frequently rely directly on the Talmud, the Rishonim and earlier responsa and they frequently contradict 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 this and to contradict Maimonides, the Shulhan Arukhand other major codes of Jewish law by quoting from the Talmud. As Rabbi Hayyim David Halevi wrote in 1978:
… and there was never a halakhic decision of 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 with correct and straightforward proofs… and even Maimonides and Maran [Rabbi Yosef Karo] of blessed memory, both their contemporaries and those who came after them disagreed with them, and in many matters, we do not follow them (Rabbi Hayyim David Halevi, Aseh Lekhah Rav, Volume 2, Tel Aviv, 1978, p. 146. For other sources that stress similar points, see Menahem Elon, Hamishpat Ha’ivri, second edition, Jerusalem, 1988, pp. 902-904, 1013-1017 (Hebrew); David Golinkin, Responsa of the Vaad Halakhah of the Rabbinical Assembly of Israel 6 (5755-5758), pp. 13-14 (Hebrew); and idem, The Status of Women in Jewish Law: Responsa, Jerusalem, 2012, pp. 112-115).
In other words, Prof. Berman claims that the Shulhan Arukh and the statutory approach won the battle and that common law all but disappeared. I maintain that this battle is ongoing and has never been settled.
II) The Crisis in Jewish Law Today
As mentioned, Prof. Berman believes that the main difference between Orthodox and Conservative rabbis hinges on his major thesis in legal theory – common law vs. statutory law. I claimed above that that issue has never been settled. Furthermore, I believe that it is totally irrelevant to the major difference between Conservative and Orthodox Jews. That difference goes back to the title of Rabbi Mordechai Waxman’s classic book Tradition and Change,published in 1958:
Reform 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… (ibid., p. 20).
I believe that one of the reasons for the contraction of the Conservative movement in the United Statesis because it has overemphasized change and underemphasized observance. This was stressed in a thoughtful article by Dr. Michah Gottlieb reacting to the recent Pew Report. He grew up in a Conservative synagogue inMontreal but became modern Orthodox 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 Halacha as Orthodox Jews were, but they differed in that they recognized halachic change. But as I knew no Conservative Jews who cared about Halacha, 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 Halacha and Jewish learning and that no serious effort was being made to engage them in these matters.. (The Forward, November 8, 2013).
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 I have published two entire volumes of responsa on the subject, one in Hebrew and one in English (The Status of Women in Jewish Law: Responsa, Jerusalem, 2001 (Hebrew) and 2012 (English)). Even so, I think that Dr. Gottleib’s critique is correct. The Conservative movement has focused so much on changes in halakhah that it has forgotten to emphasize 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 (See David Golinkin, Halakhah for Our Time: A Conservative Approach to Jewish Law, New York, 1991, which has also been published in Hebrew, French, Spanish and Russian. Also see my article “A Halakhic Agenda for the Conservative Movement”,Conservative Judaism 46/3 (Spring 1994), pp. 29-39, which appeared in an expanded form in Elliot Dorff, editor, The Unfolding Tradition: Philosophies of Jewish Law, revised edition, New York, 2011, pp. 408-422).
Orthodox Jews and especially haredi Jews have the opposite problem. They were so spooked by the far-reaching changes made by the Reform movement in the 19th century that change in the direction of leniency became a dirty word. Halakhah must either remain static or it can change in the direction of stringency; it cannot change in the direction of leniency.
This last point is amply proven by Prof. Berman’s last example – the acceptance of the mitzvot by converts. I have shown elsewhere that the modern haredi attitude, which demands that a convert must declare that he/she will observe ALL the mitzvot and he/she must have the full intent in his heart to do so, was invented by Rabbi Yitzhak Schmelkes in 1876. Furthermore, Rabbis Schmelkes, Kook, Feinstein and others quoted a neglected passage in the Talmud (Bekhorot 30b) which seems to demand that a convert observe ALL the mitzvot. As opposed to Prof. Berman’s theory, 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 and statutory law! The standard codes of Jewish law have a very lenient attitude towards the acceptance of the commandments which they quote directly from another passage in the Talmud – Yevamot 47a-b. The stringent approach since 1876 is not based on statutory law; it is based on common law. It goes back to the Talmud to invent a stringency which never existed throughout Jewish history! (David Golinkin, Responsa in a Moment, Volume II, Jerusalem, 2011, pp. 227-243 = www.schechter.edu/responsa.aspx?ID=23).
Sadly, neither the Conservative nor the Orthodox movement has succeeded in creating the proper balance between tradition and change which I believe are 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 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 is President of The Schechter Institutes, Inc. and President Emeritus of the Schechter Institute of Jewish Studies. For twenty years he served as Chair of the Va’ad Halakhah (Law Committee) of the Rabbinical Assembly which gives halakhic guidance to the Masorti Movement in Israel. He is the founder and director of the Institute of Applied Halakhah at Schechter and also directs the Center for Women in Jewish Law. Rabbi Professor Golinkin made aliyah in 1972, earning a BA in Jewish History and two teaching certificates from The Hebrew University in Jerusalem. He received an MA in Rabbinics and a PhD in Talmud from the Jewish Theological Seminary of America where he was also ordained as Rabbi. For a complete bio click here.