Halachah In European Progressive Judaism
John D. Rayner
Issues
Spring 1997
Definitions
What is Halachah? It is one side of Rabbinic Judaism. What is Rabbinic Judaism? It is a particular kind of Judaism, pioneered by the Pharisees, which became normative after the destruction of the Second Temple, received its classic expression in the Mishnah, Talmud and Midrash, and its codification in the Middle Ages, and dominated Jewish life until the Emancipation.
Rabbinic Judaism has two sides: theoretical and practical. The theoretical side is called Aggadah, which means "narrative." It is a realm of legends and speculations in which there is virtually unrestricted freedom of thought and expression. The practical side is called Halachah, which is the Hebrew form of an Aramaic word for "law." Its aim is to regulate Jewish life. Therefore it does not allow freedom but demands conformity. It does so, furthermore, on the highest of all authorities, that of the Almighty, whose will it claims to represent.
How can it make such a claim? By virtue of a doctrine, fundamental to the system, commonly known as. This means that the commandments of the Pentateuch, as well as the supplementary oral traditions assembled in such works as the Mishnah, emanate from God.
They don’t always mean what at first sight they seem to mean. So they have to be interpreted: obscurities have to be clarified, contradictions resolved, new situations confronted. That process continues, and so there is still some fluidity along the edges of the system. But inevitably, it became more rigid from age to age, and since the Emancipation it has been 99% rigid.
The Rejectionist Attitude
To this heritage of Halachah, three different attitudes are to be found among Progressive Jews, of which the first is rejectionist. Halachah, according to this view, belongs to Orthodox Judaism: it has nothing to do with us. "No Halachah, please: we’re liberal! We live in the modern world, not the Middle Ages, and the hallmark of modernity is individual autonomy. Therefore we don’t want anybody to lay down the law for us, thank you very much. There is no place for Halachah in our kind of Judaism."
This rejectionist attitude is unacceptable for three reasons. In the first place it ignores the fact that a community without rules is a contradiction in terms. By the very fact of joining a community, we give up a portion of our individual autonomy, so that we may do things together with others according to common rules. A worshiping community, for instance, must agree where and when to worship and what liturgy to use. A community in which everybody does what is right in their own eyes, is simply not a community at all.
Secondly, the rejectionist attitude ignores the fact that even in the most radical kind of Progressive Judaism, not only are there rules, but rules that derive from the Halachah. For instance, the religious calendar we follow is the Pharisaic one. We even celebrate Shavuot on the sixth of Sivan, although it is perfectly clear from the Bible that, as the Sadducees rightly maintained, it should always be celebrated on a Sunday. Even the way we do things, like lighting Shabbat candles, is halachic. In other words, the rejectionist self-description of Progressive Judaism as non-halachic is simply untrue.
Thirdly and above all, the rejectionist attitude rejects an extremely precious part of our Jewish heritage, in fact nothing less than one half of the Judaism that dominated the life of our ancestors from the first century until the nineteenth.
Whatever shortcomings the Halachah may have, the attempt which it represents to construct out of the data of Scripture, supplemented by the ancient oral traditions, a way of life monumental in its comprehensiveness and mind-boggling in the minuteness of its detail, must surely be accounted one of the greatest intellectual enterprises in the history of human civilisation. To dismiss it out of hand would therefore be sheer vandalism.
The Traditionalist Attitude
But just as total rejection of the Halachah doesn’t really exist within the parameters of Progressive Judaism, since however much we may disown it, we are all governed by it to some extent, so the opposite attitude, of total acceptance, doesn’t exist in Progressive Judaism either, since it would place us on the side of Orthodoxy. What does exist, however, is a certain kind of traditionalism, and that is the second attitude I want to consider with you.
According to this view, we stand within the tradition of Rabbinic Judaism and therefore of the Halachah. Why then are we not Orthodox? Because Orthodoxy, according to this view, is only one way of carrying on the Rabbinic tradition in the modern world, and an unnecessarily timid and rigid one. In its heyday, so it is alleged, Rabbinic Judaism was imaginative and flexible. It adapted itself boldly to changing circumstances. That capacity for adaptation is still contained in the system, only the Orthodox, for various reasons, are afraid to make use of it. "We, the Traditionalist Progressives, mean to revive the dynamism inherent in the Halachah. We are the true heirs of the Pharisees."
In practice this means that we follow the Halachah as far as we possibly can. Only when there is an incontrovertibly clear religious or ethical objection, do we deviate from it, and then by means which are themselves, as far as possible, in accord with the letter, or at least the spirit, of the Halachah.
All of which may sound very reasonable, but it raises a number of problems. In the first place the Rabbinic Halachah is based fairly and squarely on the doctrine of , which, if Pro-gressive Judaism means anything, is no longer credible from our point of view. And if we reject the very foundation of the Halachah, how can we say that it is authoritative for us?
Secondly, it isn’t only the "building bricks" of the Halachah that are said to have the stamp of divine authority, but also the methods it uses in dealing with new circumstances. Take, for instance, the "legal fiction," the whole point of which is to change the law even while pretending that it has not been changed. How can we use such methods when there is no need to pretend since the sources are no longer sacrosanct for us?
Thirdly, just as the self-description of the rejectionists is untrue to the facts, so the self-description of the traditionalists, namely as followers of the Halachah in all but a few exceptional instances, is untrue. For the fact is that whole vast areas of the Halachah are rejected or ignored even by the most conservative Progressive Jews. As a rough estimate, I would say that applies to two-thirds of it. But how can you reject or ignore two-thirds of the Halachah and still claim to be a follower of it?
Fourth, the picture which the traditionalists like to paint of the dynamism that once characterised the Halachah and that is still inherent in it, is highly imaginative. It is based on a selective use of anthologies, not a serious study of the sources. For this is another characteristic of the traditionalists: that while they talk a great deal about the Halachah, very few of them take the trouble to study it.
What finally transpires, therefore, is that in the vocabulary of the traditionalists the word "Halachah" does not generally stand for a thought-through theological position but serves a psychological and political purpose. Psychologically, it relieves the guilt they feel about not being Orthodox. Politically, it is their way of claiming respectability, of playing to the gallery, of bidding for the allegiance of the masses by reassuring them that Progressive Judaism, contrary to its denigrators, is perfectly kosher.
A Genuinely Progressive Attitude
Paradoxically, therefore, the rejectionist and traditionalist attitudes have this in common: that they both fail to take the Halachah seriously. Consequently we need to consider a third attitude, which does take it seriously: a genuinely Progressive attitude.
On this view, the task which the Pharisees took upon themselves and which their successors, the Rabbis, executed so brilliantly, namely to define the will of God for every human situation, is the most important of all human enterprises. Therefore the Rabbinic Halachah deserves our utmost admiration and demands our closest study.
But having said that, we must go on to say that from our point of view it is flawed. It is flawed not only because recent generations of Orthodox Rabbis have lacked the courage to make such adjustments to the system as its limited flexibility allows, though that is also true. It is flawed because it is based on a premise, namely , which we know to be mistaken.
Take, for example, the law forbidding Ammonites and Moabites to marry into the Jewish community, even after conversion, because of the alleged wickedness of their ancestors; or the law of the, penalising innocent children for the adultery of their parents; or the law of the , requiring that a "rebellious and disobedient son" shall be put to death on the testimony of his parents; or the law of the , the wo-man suspected of adultery, whose guilt or innocence is to be established by the magic of the Ordeal of Jealousy; or the law of the , the red cow whose ashes are supposed to cleanse ritual impurity; or the law of the, the scapegoat that is to be pushed over a precipice to atone for the sins of the people; or the many laws of the sacrificial cult, including the burnt-offering that is to provide , a pleasing fragrance for the nostrils of the Almighty; or the laws of capital punishment, ordaining death by stoning, burning, decapitation or strangulation for the most serious crimes; or the matri-monial law, predicated on the superiority of men, who alone may practise polygamy and initiate marriage and divorce.
Surely it is certain — as certain as anything can be in religion — that these things, which are integral to the Scriptural basis of the Halachah and in various ways still play a role in it, are not expressions of the Divine Will but human misinterpretations of it. I mention them, not to denigrate the Torah, Heaven forbid, but because it is an elementary principle of logic that a generalisation is tested not by favourable but by un-favourable instances. By that principle, and in the light of modern factual knowledge and ethical perception, the gen-eralisation of fails the test.
That doesn’t mean that the unfavourable instances are the whole of the story; on the contrary, the Torah is full of good things which have stood the test of time. Nor does it mean that we should be ashamed of the unfavourable instances, for we see them in their historical context, as part of a gigantic effort on the part of our ancestors — often but not always successful — to rise above the paganism of their time. But it does mean that we can no longer believe that whatever Scripture says on a given subject is necessarily to be accepted as divine.
Different Approach To Halachah
Therefore our approach to Halachah must necessarily be different from the Rabbinic one which Orthodoxy seeks to perpetuate. We do indeed begin where Orthodoxy begins, with the biblical and rabbinic texts. But we don’t stop there. We go on to try to understand the texts historically and the evaluate them ethically, bringing to bear on the subject whatever source of knowledge may be relevant to it as well as the modern conscience.
Often our conclusions will endorse the traditional view. Sometimes they will differ from it. Always they will be offered, not dogmatically, as decrees, but humbly, as recommendations, representing the consensus of our leadership as to what, in all probability, God requires of us in our time: a consensus which may well undergo change in the future as it has in the past. For the Middle Ages, with their grand illusion of certainty, are over. Precisely that is why Rabbinic Judaism has lost its credibility and why Progressive Judaism is needed to take its place.
That, in broad outline, is what a serious approach to Halachah, in the context of Progressive Judaism, involves: not the cavalier repudiation of the rejectionists, nor the sycophantic lip-service of the traditionalists, but a self-respecting, principled attempt to construct an alternative Halachah, responsive both to the values of the past and to the insights of the present: in short, a Progressive Halachah.
Much of it exists already in resolutions, platforms, responsa and prayerbooks, but much of it has yet to be formulated. That is the challenge facing the leadership of Progressive Judaism, in Europe as elsewhere. There may indeed be short-term political advantages to be gained from pandering to the prejudices either of the rejectionists or of the traditionalists, but only a self-consistent Progressive Judaism will in the long term gain the respect and trust of the Jewish people, or deserve to do so.
An Example
I am aware that I have been speaking in the abstract. To make clear the practical implications would require many concrete examples. But as the time allotted to me is almost up, I must make do with just a single example: that of divorce. In other words, what do we do about the traditional get?
The rejectionist answer, which goes back to Samuel Holdheim, is clear. It is to have nothing to do with the Rabbinic get but, instead, to recognise the power of the civil courts to dissolve Jewish marriages.
The traditionalist answer is also clear. It is to transact the Rabbinic get in the traditional way, and if one spouse refuses to co-operate, either to annul the marriage, which involves the lie that it never existed, or else to pretend that a Rabbinic Court has the power to dissolve a marriage, which it does not.
Neither of these solutions is satisfactory. The rejectionist approach won’t do because those who have been married in a Jewish religious ceremony do need, when their marriage breaks down, to be religiously released from the vows they made at its inception.
But the traditionalist approach won’t do either, and not only because it cannot deal with the case of the recalcitrant spouse in a way that satisfies the Rabbinic Halachah, but because the get itself is, both in its text and in its manner of transaction, unilateral, the husband divorcing the wife, not vice versa, and therefore manifestly an instrument of an antiquated matrimonial law, in blatant contradiction with the equality of the sexes which is a major principle of Progressive Judaism.
For Orthodox to insist on the traditional get makes sense. For Progressive ones to do so makes no sense at all, except for the hope that such a policy may gain Orthodox approval: a hope which, as has been demonstrated over and over again, is quite illusory; and as a British politician once said, "a policy of expedience is never justified when unsuccessful!"
What is required is blindingly obvious: it is a reciprocal divorce certificate written, not in Babylonian Aramaic, but in Hebrew and the vernacular. If we took the Halachah seriously, instead of either ignoring it or using it as a political football, that is the sort of thing we should be doing.
Conclusion
The whole Halachah may be understood as a gigantic answer to the question of the Deuteronomist, "And now, O Israel, what does the Eternal One your God require of you?" (10:12). If we are serious about seeking answers to that question for our time, we must do so in full consistency with our honestly held beliefs as Progressive Jews. We must construct a Progressive Halachah.
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