Contemporary Jews and Halakhah

Jews of different stripes differ greatly with respect to their assessment of the role Jewish law should play today—and each camp has much to learn from the others.

By Rabbi Fred Dobb

Chaim Nachman Bialik (1873-1934), poet laureate of the Hebrew renaissance, studied in yeshivot (traditional Jewish academies) as a child and young adult. An accomplished writer who moved easily in the secular Tel Aviv society of the early twentieth century, he never left Judaism’s classical texts far behind. He managed to rebuke both secular and religious Jews in his 1917 essay, “Halakhah and Aggadah,” which brilliantly links the two: halakhah, literally meaning “the way,” or “the going,” but usually used to refer to Jewish law; and aggadah, “telling”: stories, ideas, philosophy, legend, and all other non-legal strands of Jewish thought and literature.

Bialik initially presents them in opposition to one another, calling halakhah “severe, strict, hard like steel” and aggadah “compliant, merciful, softer than oil.” But quickly he shows this to be a false dichotomy. The two are like flower and fruit, water and ice, thoughts and words; they are “different phases of the same larger entity: Living and creative halakhah is aggadah of the past or future, and vice versa.” Bialik laments the “permissive Judaism” that downplays halakhah and minimizes obligations, even as he rejects a verbatim reading of the Shulhan Arukh (the late 16th century legal code that became uniquely authoritative).

jewish law today Bialik still speaks directly to the Jewish world nearly a century later. All but the most ardent secularists agree that halakhah is part of the creative record bequeathed by past generations as a resource, however binding or non-binding we understand it to be. And all but the most insular haredim (ultra-orthodox Jews) agree that halakhah admits change, whatever its pace.

Yet views of Jewish law often remain polarized according to Jews’ different denominational affiliation, backgrounds, and assumptions. Like Bialik, today’s literature about the nature of halakhah and its proper role bids us to clarify where we stand, see the validity in other approaches, and challenge our own expectations.

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Halakhah is both a process and a set of outcomes, and each is rooted in Torah. Jewish tradition holds that Moses received at Mount Sinai not just the Ten Commandments, or even just the Five Books of Moses containing (according to rabbinic tradition) 613 commandments, but the entirety of Jewish law, both the written record and an oral tradition of its interpretation. According to Mishnah Avot 1:1, Moses passed this knowledge down to Joshua, who taught it to the elders, who shared it with the men of the Great Assembly, who passed it all the way down to the rabbis of 200 CE, when the Mishnah was codified. Mishnah Avot’s model assumes gradual diminishment of truth, since the further one is removed from the Source, the less complete or accurate is one’s understanding of revelation.

But in the context of modernity and post-modernity, traditional ideas about revelation came under new scrutiny. Shouldn’t each generation’s interpretations be getting marginally better, not worse? After all, even if we ourselves are short, we stand on the shoulders of all the generations of giants before us. Some contemporary approaches to halakhah celebrate the impact of our modern, empiricist, voluntary society on Jewish law, and others bemoan it, but all strive to bring the essence of the past solidly into the future.

According to an old joke, a rather radical rabbi was expounding his views when a congregant challenged him with the most direct question he could imagine: “Rabbi, do you or do you not believe that God gave the Torah to Moses at Sinai?” The rabbi smiled, and answered, “Absolutely I do–depending on what you mean by Torah, when you think Sinai happened, how you envision God, and who you think Moses was!” Of course, how we understand revelation affects our halakhic outlook. A literal reading of the biblical account of revelation suggests fuller observance of traditional halakhah, while understanding Sinai metaphorically can lead to liberal legal views.

But contemporary issues in halakhah are not always so simple as the difference between traditionalist and liberal readings. Feminists across all movements address the near-absence of female influences shaping the tradition, and seek to redress the under-representation even today of women among those who interpret the law. The Mishpat Ivri approach in modern Israeli law–the term, meaning “Hebrew law,” is deliberately used as an alternative to the term “halakhah”–treats the Jewish legal tradition as a potential precedent even within the state’s secular courts, especially on civil matters. And those who echo the prominent 20th century American Jewish thinker Mordechai Kaplan’s adage that “halakhah gets a vote, not a veto” will likely see halakhah (law) and minhag (custom) as basically the same, since both are “folkways,” the ways in which Jewish people historically act.

We relate to halakhah for both its divinely revealed nature and its humanly developed nature. Ever since the early second century CE–when Bava Metzia 59b records Rabbi Yehoshua twisting Deuteronomy 30:12 (“It is not in the heavens”) to mean “humans make the rules, and God stays out of it”–the halakhic process itself has been at least as important as the particular rulings it has begotten. And the ultimate question about the halakhic process is, “Who decides?”

The issue of where ultimate halakhic authority lies is the one that differs most across the Jewish religious movements. For Orthodoxy, it resides with the g’dolei hador, the greatest of today’s rabbis, who remain as loyal as possible to the corpus of halakhah received from prior generations. Conservative Judaism invests today’s local rabbis, who privilege traditional Jewish law but admit all factors into their decision-making, with greatest authority. Reconstructionist autonomy lies mainly in communal decision-making, through a process bringing together classical Jewish texts, contemporary norms, and personal experiences and preferences. Reform Judaism allows the individual to retain ultimate authority, though always within certain ethical parameters, and usually with serious attention to the voice of tradition.

Yet despite these clear differences, Jews across the denominational spectrum share aspects of each of the above. We are all beholden to the great rabbis of each generation for interpreting the past in light of the present. We are all influenced by local rabbis and scholars, who contextualize and array the choices for us. The Talmud itself contains the statement that “ein ha-Torah nikneit eleh b’havurah”–the Torah and its teachings can only be acquired through a community. And clearly, the individual, endowed by our Creator with remarkable faculties for thought and perspective and choice, looms large in any approach to halakhah.

The Talmud speaks of the Torah’s seventy faces (shivim panim laTorah). In the context of contemporary Jewish pluralism, serious, Jews of all stripes have the opportunity to learn from the multiple approaches of other communities–going beyond what some have called the “sacred envy” of appreciating the strengths of movements other than one’s own, keeping the process of halakhic development alive, and uncovering more of the Torah’s richness of meanings.