Jul 8, 2008

A Reflection on Jewish Law for the Modern Jew

A Reflection on Jewish Law for the Modern Jew
Rabbi Menachem Creditor

For those who have not heard of the decision by Church of England this past Monday (July 7) to endorse women as bishops, the relevant New York Times article should be read as a potential tool for re-understanding the tension felt by any living spiritual community:  how to remain both religiously authentic and honestly responsive to the world in which we live. 

There are those in every faith tradition who would depict responsive traditionalists as "manipulators of [Religious Law] to justify their abandonment of whatever elements of Jewish religious law frustrate some of their congregants' wishes or clash with contemporary societal mores."  These were the words of Rabbi Avi Shafran, in the sequel to his now-infamous "The Conservative Lie (Moment, Feb. 2001)," in which he claimed that "while proclaiming fealty to halachah [Jewish Law], the movement's leaders have brazenly trampled the very concept."  Compare them, in tone, to the following words in reaction to the Church of England's decision this week:

"It's getting worse; it's going downhill very badly," the Rev. David Houlding, a leader of the traditionalists, said after the York vote, according to a report by the newspaper The Guardian. "It's quite clear that there is a pincer movement, and we're being squeezed out." But he added, "There will be no walkout — yet."

How do those who advocate for a responsive tradition respond to both the claim of inauthenticity and the threat of walkout by self-described 'traditionalists'?

Charles Taylor argued in his classic The Ethics of Authenticity (1992) that "we are only individuals in so far as we are social... [and that] being authentic, being faithful to ourselves, is being faithful to something which was produced in collaboration with a lot of other people."  Taylor points out that the concept of "authenticity, of self-fulfillment... seems to render ineffective the whole tradition of common values and social commitment."  Whereas Taylor carefully pointed out the perils connected to modernity's inclination towards self-realization, he was not as quick as others to dismiss it, calling for a "freeze on cultural pessimism."

Some words from the masterful new book by Rabbi Elliot Dorff, For the Love of God and People: A Philosophy of Jewish Law (2007) are useful here.  In rejecting the theory of Legal Positivism, embraced by some including Rabbi Joel Roth, and positively pessimistic in my understanding of Taylor's term, Dorff writes:

"[Legal Positivism is] the doctrine that the law is totally encompassed by what the legislators say it is in the the law they posit.  They may have had all kinds of reasons to enact a particular law - moral, social, economic, political, or simply the pressure of time - but none of that matters in interpreting and applying the law; what counts is what the law says (49). ...Roth gives less weight to [external] factors than to the stated law itself, evidenced by the very term he uses: by describing such factors [as moral, social, economic, etc...] as extralegal, he clearly asserts that for him their are, literally, outside the law (50).  ...This immediately identifies the law with the received, written tradition.  Other theorists of the Law [including Dorff] would disagree with him completely, pointing to the oral nature of most of the tradition from its very origins and the immense role that custom, morality, economics, politics, and even style have played in the history of Jewish law, especially as Jews spread all over the world.  As a result, despite Roth's conscientious effort to demonstrate the role of such extralegal elements in the law in the past, his theory seems to limit the scope and the methods of the law far too much to be historically accurate, and many would find his definition of Jewish law too narrow to form a wide basis for making Jewish legal decisions in our own time (52). ...Finally, with Roth's understanding of the nature of the law, there can be no serious moral or social critique of the law.  Instead either the law is accepted forever as the criterion of what it means to be moral or it loses any claim to morality. ...  This was clearly in evidence, for example, in [Roth's] method for justifying the ordination of women [in the Conservative Movement], by which he based his argument solely on what he could find in precedents without mentioning morality as even one of several motivating factors for the change (57). ...[The] continuing interaction between received Jewish law with both internal and external factors is the reason that Joel Roth's claim that law must be 'the dog wagging the tail of theology' cannot be right.  It is rather that Jewish law, theology, morality, and political, social, technological, scientific, and economic developments in the Jewish community and in the larger communities within which Jews live are all intertwined, and each affects each other in critical ways in an ongoing basis (68)."

There are important balances to this philosophy of responsive traditionalism, including deliberately maintaining the integrity of the system while celebrating every advance.  But the claim that introducing change into religious tradition is corrosive presumes a limited legal approach similar to Roth's and is damaging to both the relevance and the authenticity of a modern traditional Judaism.  After Roth resigned from the Conservative Committee on Jewish Law and Standards due to the acceptance of a legal response permitting most sexual activity between men, sexual activity between women, commitment ceremonies and ordination for LGBT Jews, he wrote in the JTA op-ed Committee on Gay Ruling Stepped out of Halachic Framework (Dec. 10, 2006):

"Despite the popular view of what we were arguing about, I believe that the subject of gays was not what we were really divided over. It happened to be the specific subject that revealed the real fault lines in the committee, and in the Conservative movement in general. ...I believe we were divided over the following irreconcilable issues: How entitled are we to overturn longstanding and uncontested precedents of Jewish law? ...What divided us was the question of our right to adopt a legal stance... Even if the prohibition against sexual behavior other than male intercourse is rabbinic in authority and not biblical, what justifies our abrogating that prohibition? ...How halachically defensible does an argument have to be before it can be considered within the halachic ballpark?"

Roth was right about the questions being asked.  But embodied in his response is the presumption of modern powerlessness in the face of imperfect inherited tradition.  Older Jewish codes which are challenged by new questions were themselves, so many times, challenges to earlier articulations of tradition, none of which were infinite in their future vision or authority. 

The authenticity of each generation's religious voice and the parameters by which they are commanded must include the wisdom gained by their own experience and an expansive and textured love for the God who has yearned along with every generation of spiritual seekers.

Rabbi Menachem Creditor
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