Encore

On this page, we present essays – profound or timely – culled from the CLAL literary archive. Most of the articles that appear here appeared originally in the pages of Sh'ma– A Journal of Jewish Responsibility, which was founded by Eugene Borowitz in 1970 and published by CLAL from 1994-1998.

For further information regarding Sh'ma today, click here.

(from Sh’ma 13/257, September 16, 1983)

Who Are Today’s Modern Orthodox?

By David Singer

Poor Blu Greenberg, has she let herself in for it. In seeking to effect a synthesis between Orthodoxy and feminism in On Women and Judaism, she has managed to anger partisans on both sides of the issue. As the fabrente (fanatic) feminists see it, Greenberg is a willful apologist for a woman-hating religion. The Orthodox apparatchiks (partisans), on the other hand, are outraged by her call for a significant upgrading in the status of women in Judaism. On one point, they agree: Greenberg cannot have it both ways; she will have to choose between feminism and Orthodoxy.

Because of the fireworks which have surrounded the debate over the feminism-Orthodoxy issue, one vitally significant aspect of On Women and Judaism has been passed over in silence. I refer to Greenberg’s frank articulation of a truly modern Orthodox understanding of the nature and development of the halachah. There are, no doubt, large numbers of university trained Orthodox intellectuals who share Greenberg’s position, at least in its broad outlines. The key point, however, is that they do so on the sly – in private. Greenberg is one of the few Orthodox thinkers who have had the guts to go public about the matter, particularly as it relates to questions of practical psak (legal rulings) on the current scene. (The yarmulke-wearing professors who belong, say, to the Association for Jewish Studies have it a lot easier. Their Wissenschaft analyses of the halachah appear in little-read academic journals. Moreover, they deal with the “dead” past.) What a delicious irony in the context to the debate over Greenberg’s book: The modern Orthodox philosopher of halachah turns out to be a woman!

Rabbinic Will, Halachic Way

While many in the Orthodox community would question the orthodoxy of Greenberg’s perspective on the halachah, none would gainsay its obvious modernity. Modern has three significances here. In the first place, Greenberg understands that the halachah has a history, that it has developed over time in response to changing conditions. Secondly, she takes it for granted that the posek (legal decisor) is not a computer, but a flesh and blood human being who brings his own values to bear in rendering halachic decisions. Finally, Greenberg, building upon the first two points, makes no bones about the fact that she wants to see significant halachic changes introduced in a number of areas (particularly, of course, where women are concerned). All of this is neatly summarized by her as follows:

“Halachah is a system that is being perfected continually. Indeed, the rabbinic tradition stresses humanity’s role as a partner in the task of perfecting an imperfect world. One cannot but perceive halachah as a fluid, dynamic system….

“Halachah interprets and reflects reality, not just tradition. Halachah never operated in a totally closed system. There always has been a healthy consideration of immediate circumstances and broader societal forces. Even when rabbinic leaders enacted circumscribing legislation, that too was a form of interaction with broader society. The whole body of responsa literature reflects those influences….

“The techniques of reinterpretation are built right into the system. It was proper use of these techniques that enabled rabbinic Judaism to be continuous with the past, even as it redirected the present and future….

“A central theme seems to emerge: where there was a rabbinic will, there was a halachic way. This is not to say that talmudic and post-talmudic literature is not ‘the law of Moses at Sinai.’ It is that, but it is also the substance of rabbinic will finding a halachic way. What shall we call it? Continuing revelation? Wise, interpretive judgment based on inherited tradition? An understanding, divinely given or intuited, of the appropriate moment for greater restraint, or relaxation of the rules, or heightened responsibility?”

Radical For Today’s Orthodoxy

To those who operate outside the framework of Orthodoxy, Greenberg’s ideas, no doubt, will seem very much like old hat. In the context of contemporary Orthodox life, however, they are nothing less than wildly radical. This point can easily be established by comparing Greenberg’s halachic outlook with that of J. David Bleich, the extraordinarily learned rosh yeshivah (professor of Talmud) at New York’s Isaac Elchanan Theological Seminary, who is well on his way to becoming one of the outstanding gedolim (talmudic sages) of our time. Bleich is an American Ph.D. and not an East European patriarch. Still, his conception of how the halachic process works is utterly traditional:

“[S]ubjective considerations or volitional inclinations may [never] be allowed consciously to influence scholarly opinion. Torah study requires, first and foremost, intellectual honesty….It is a travesty of the halachic process to begin with a preconceived conclusion and then attempt to justify it by means of halachic dialectic. Neither Hillel nor Shammai nor any of their spiritual heirs engaged in sophistry in order to justify previously held viewpoints. The dialectic of halachic reasoning has always been conducted in the spirit of ‘let the law bore through mountain.’ The law must be determined on its own merit and let the chips fall where they may….

“Halachic decisions are not a matter of arbitrary choice. Decision making is also bound by rules of procedure….

“The decisor may not arbitrarily seize upon an individual opinion or a solitary source to the negation of the weight of halachic precedent or consensus. He most certainly may not be swayed by the consideration that the resultant decision be popular or expedient or simply by the fact that it appeals to his own personal predilection.”

As for the idea that the halachah develops historically, Bleich flatly asserts: “Jewish law does not change” (emphasis in original). This, then, is what Greenberg has to contend with.

Additional insight into Greenberg’s halachic position may be had by taking note of an important symposium on “Jewish Law” that appeared in the Winter 1980 issue of Judaism. The symposium consists of seventeen responses by a diverse group of rabbis and Jewish scholars to Robert Gordis’ essay, “A Dynamic Halachah: Principles and Procedures of Jewish Law.” (The essay itself ran in Judaism, Summer 1979.) Gordis, who is a leading theologian of Conservative Judaism, marshals a broad array of evidence in support of the thesis that “there [are] two factors making for growth in the halachah….The first [is] the necessity to respond to new external conditions – social, economic, political, or cultural – that pose a challenge…to accepted religious and ethical values. The second [is] the need to give recognition to new ethical insights and attitudes… even if there [is] no change in objective conditions.” To a reader of On Women and Judaism, this argument will be immediately recognizable, since it essentially reproduces Greenberg’s own thesis. Indeed, the only difference between Greenberg and Gordis in this area is that she, the Orthodox thinker, states the case more emphatically than does he, the Conservative spokesman!

Is Change A Value In Halachah?

Since Greenberg’s halachic outlook is virtually identical to Gordis’, one can draw upon the actual responses to his article as a way of gauging probable reactions to her book. It is certainly significant in this context that at least two of the Orthodox symposiasts, Emanuel Rackman and Marvin Fox, explicitly endorse Gordis’ historical and value-oriented approach to the halachah. Two caveats, however, must be entered here. On the one hand, it should not be assumed that Rackman and Fox are in any way representative of mainstream Orthodoxy today. Rackman has long been the leading rabbinic maverick in the Orthodox community, while Fox is a philosophy professor who has spent the whole of his adult life in the modern intellectual environment of the university. On the other hand, it is necessary to point out that both Rackman and Fox regard Gordis’ discussion, even within its own frame of reference, as excessively one-sided. As Rackman puts it:

“The thesis that Dr. Gordis states and proves can hardly be challenged….The halachah does respond to contemporary problems; it does cope with changed conditions; it does not regard itself as the antagonist of the world or of human nature. But one could also make out a very good case for the antithesis: halachah resists contemporary values and tries not to yield to them; it would like to change the conditions that it finds rather than change itself; and, above all, it does want to change the world and especially human nature….[W]hat the moment requires…is clarification on when one adopt[s] [Gordis’] thesis and when its antithesis.”

Fox makes much the same point as follows:

“…Dr. Gordis sets forth a philosophy of Jewish law which stresses the dynamism of the halachah and its responsiveness to changing circumstances. So far as it goes, his version of the halachah is basically sound….

“What we miss in Dr. Gordis’ account is a description of the no less strong conservative tendency in the halachah. In general, the presumption is in favor of the established law, and change occurs only with great care and in the face of urgent necessity.”

Interestingly enough, Rackman’s and Fox’s argument is endorsed by a leading Conservative symposiast, David Novak: “One cannot dispute [Gordis’] factual observation that the halachah has changed. However, one can certainly dispute the assertion that change is, therefore, a halachic value. Quite the contrary, one can cite numerous examples in the classical rabbinic sources to show that the Rabbis regarded change as a necessary, lamentable evil rather than an exemplary good.”

It is left to Louis Jacobs, a symposiast who is “non-fundamentalist… yet totally committed to the halachic way,” to make the most telling point against the Gordis-Greenberg halachic position. As a religious modernist, Jacobs takes it for granted that the halachah has undergone significant changes over time. However, he is also keenly aware that the halachic sources on which the historical approach is based never acknowledge these changes. Indeed, the sources deny the very possibility of change. (This, of course, is the basis for J. David Bleich’s position.) Jacobs states:

“Modern scholarship has, indeed, uncovered the dynamics of the halachah, but, by the same token of scholarly integrity, we are forced to acknowledge that the halachic process, from the close of the Talmud down to the present day, is paradoxically one in which change takes place in a theoretically unchanging system. The reality of change is ever denied by the brave assertion that nothing has changed or can ever be changed….[R]esistance to change is not only due to the need for legal stability, but is also based on a most powerful religious dogma, that the Word of God is unchanging and His law immutable….”

Jacobs, then, is led to wonder how a historically informed perspective on the halachah can claim to be continuous with the past and, indeed, how it can function in relationship to the past. He notes ruefully: “Fifteen hundred years of halachic activity cannot readily be swept aside in an approach which purports to follow the normative processes of traditional Judaism….”

Questions That Remain

Where does all of this lead? It leads me, for one, to pose a series of questions that beg for clarification – “beg” because it is the very future of the halachah that is at stake.

1. Can there be a dialogue about the nature of the halachah between Blu Greenberg, the Orthodox modernist, and J. David Bleich, the Orthodox traditionalist? Does the basis exist for a possible modus vivendi between them? How would Greenberg, given the silence of the sources about the matter, go about the task of convincing Bleich that the halachah has indeed evolved (i.e., changed) over time? How would Bleich, with his computer model of the posek, account for the less than random distribution of halachic opinions (e.g., consistent patterns of strictness and leniency as between various poskim, various periods, and various cultural milieus)?

2. How, exactly, would a historical and value-oriented approach to the halachah, such as Greenberg’s, function in practice? What weight would it give to halachic precedents arising out of a past in which change was either blissfully ignored or flatly denied? Does Greenberg’s statement, “[W]here there was a rabbinic will, there was a halachic way,” imply that anything and everything can be validated within Orthodoxy? Are there objective criteria that are to be used in rendering psak, or does it ultimately boil down to a subjective debate over values? And, then again, whose values? Derived from what source?

3. What is the significance of the fact that Greenberg’s approach to the halachah, developed within a modern Orthodox framework, differs in no way from that of Robert Gordis, who is a centrist in the Conservative movement? Or, to cite another example, that the halachic rulings of David Novak, who is affiliated with Conservative Judaism, appear to be far to the right of those of Emanuel Rackman, the leading advocate of modern Orthodoxy? Is it the case that denominational labels lose their significance once a historical and value-oriented halachic methodology is brought into play? Or, on the other hand, is there a distinctive modern Orthodox way of employing such a methodology?

4. Why is it that the modern Orthodox intellectuals who share, at least in general terms, Greenberg’s position on the halachah fail to speak out about the matter? Do they consider themselves to be closet apikorsim (heretics)? Are they afraid of the vigilantes in the Orthodox community? Do they maintain a la Maimonides and the Kabbalists that “advanced” ideas are not to be shared with the masses? What is the price of their silence in terms of the future of Orthodoxy?

I eagerly – no, urgently – await some answers to these questions. In the meantime, I am deeply grateful to Blu Greenberg for prompting at least one Orthodox modernist to think through his views about the halachah.

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