This post is in response to R’ Nathan Lopez Cordozo’s “On the Nature and Future of Halakha in Relation to Autonomous Religiosity” on the Institute for Jewish Ideas and Ideals web site.
First to quote some points with which I firmly agree:
I teach Jewish Philosophy. I am confronted daily with countless young Jews who search for an authentic Jewish religious way of life, but are unable to find spiritual satisfaction in the prevalent halakhic system as practiced today in most Ultra or Modern-Orthodox communities. For many of them, typical halakhic life is not synonymous with genuine religiosity. They feel that halakha has become too monotonous, too standardized and too external for them to experience the presence of God on a day-to-day basis. Beyond “observance”, they look for holiness and meaning. Many of them feel there is too much formalism in the halakhic system, and not enough internal meaning; too much obedience and not enough room for the individualistic soul, or for religious spontaneity.
A careful read of modern Jewish Orthodox literature reveals that many authors misunderstand the nature of Jewish law. Much of this literature is dedicated to extreme and obsessive codification, which goes hand in hand with a desire to “fix” halakha once and for all. The laws of muktzeh, tevilath kelim, tzeniut and many others are codified in much greater detail than ever before. These works have become the standard by which the young growing observant community lives its life. When studying them one wonders whether our forefathers were ever really observant, since such compendia were never available to them and they could never have known all the minutiae presented today to the observant Jew. Over the years we have embalmed Judaism while claiming it is alive because it continues to maintain its external shape.
The majority of halakhic literature today is streamlined, allowing little room for halakhic flexibility and for the spiritual need for novelty. For the most part, the reader is encouraged to follow the most stringent view without asking whether this will actually help her or him in their Avodath Ha-Borei (service of the Almighty) according to her or his distinct personality. The song of the halakha, its spirit and mission are entirely lost in this type of literature. When the student looks beyond these works seeking music, he is often confronted with a dogmatic approach to Judaism which entirely misses the mark. We are plagued by over-codification and dogmatization.
Another obsessive attempt which contrasts the very nature of Judaism is the attempt to codify Jewish beliefs. Jewish beliefs are constantly dogmatized and halakhicized by rabbinic authorities, and anyone who does not accept these rigid beliefs is no longer considered to be a real religious Jew. A spirit of finalization has taken over Judaism.
An easy example is a comparison of R’ Maurice Lamm’s “The Jewish Way in Death and Mourning” with a more recent guide for the aveil, such as ArtScroll’s “Mourning in Halachah”. The former weaves together halakhah, agadah, and the experience of the mourner in the current generation.
However, I feel that R’ Cardozo, in his battle against ossification, errs too far on the other side. I do not know if it’s his actual position, the article appears to say that he is intentionally being provocative in order to spark a dialog:
Surely there are many arguments which can be brought against the contents of this essay, some of which I can point to myself. However, the purpose of this essay is to get people thinking, not to claim the definitive truth of my observations and suggestions.
I am fully aware that the views expressed may not be palatable to most bona fide and respected poskim. My analysis and suggestions will probably not carry their approval. I hope only to act as a catalyst in the hope that some halakhic authorities and Jewish thinkers will take my suggestions seriously and be prepared to discuss them. They are nothing more than thoughts which came to mind when contemplating and discussing these issues with students.
That said, he ties the current spate of quickie guides for the sound-bite generation, “just give me the bottom line” to the objections against codification in the days of the rishonim.
Over the last five hundred years, famous rabbinic leaders have called to limit the overwhelming authority of Rabbi Josef Karo’s Shulhan Arukh and Maimonides’ Mishneh Torah. They felt that these works do not reflect authentic Judaism and its halakhic tradition. The reason is obvious. Both these great codes of Jewish Law are very un-Jewish in spirit. They present halakha in ways which oppose the heart and soul of the Talmud, and therefore of Judaism itself. They deprived Judaism of its multifaceted halakhic tradition and its inherent music. It is not the works themselves which are the problem but the ideology which they represent: The ethos of codifying and finalizing Jewish Law.
Halakha is the practical upshot of un-finalized beliefs, a practical way of life while remaining in theological suspense. In matters of the spirit and the quest to find God, it is not possible to come to final conclusions. The quest for God must remain open-ended to enable the human spirit to find its way through trial and discovery. As such, Judaism has no catechism. It has an inherent aversion to dogma. Although it includes strong beliefs, they are not susceptible to formulation in any kind of authoritative system. It is up to the Talmudic scholar to choose between many opinions, for they are all authentic. They are part of God’s Torah, and even opposing opinions “are all from one Shepherd” (Hagiga 3b).
Three early authorities were deeply concerned about this development: Rabbi Shelomo Luria, known as Maharshal (1510-1573); Rabbi Yehudah Low ben Betzalel, known as the Maharal of Prague (1520-1609); and Rabbi Haim Ben Betzalel (1530-1588), brother of the Maharal. Each in his own way attacked the Mishneh Torah and the Shulhan Arukh, claiming they were anti-Talmudic and therefore anti-halakhic. Maharshal accused Maimonides of acting “as if (he) received it (the Mishneh Torah) directly from Moshe at Mount Sinai who received it directly from Heaven, offering no proof …” (Yam shel Shelomo, Introduction to Bava Kama). Directing his attack to Rabbi Joseph Karo’s Shulhan Arukh in which the author follows the majority opinion of three authorities (Rif, Rosh and Maimonides), Maharshal asked how the author had the right to do so. Did Rabbi Joseph Karo receive such a tradition going back to the days of the sages? (ibid)
Maharshal goes on to state that the Shulhan Arukh’s entire enterprise is dangerous. Those who study it will come to believe that what Rabbi Joseph Karo wrote has finality…
R’ Cardozo, by going further than most of his audience would be (and I will argue below — should be) willing to, loses that audience with respect to the primary problem. The same flaw can be found in Rav Gidon Rothstein’s response to the article, “Halacha and Autonomous Religiosity: What’s the Problem?” on the RCA‘s blog, Text and Texture. In response to an article which suggests too much fluidity in halakhah, he posits a more rigid definition of halakhah than commonly accepted.
As to Talmudic times, the Tosefta in Sotah 14;9, cited in Sanhedrin 98b, blames the multiplicity of debates on students’ failure to study properly, hardly an encomium for diversity of opinion in the halachic world; turning to elu va-elu itself, while Kabbalists did, indeed, find an interpretation in which it meant that all those opinions were right, most rishonim (and R. Moshe Feinstein, in his introduction to Iggerot Moshe) understand the phrase as allowing us to tolerate a wrong opinion as long as it was reached through valid process. Indeed, the general understanding of the mitzvah to follow majority rule—and the largely-ignored obligation of lo titgodedu, not to have Jewish communities be split by multiple forms of practice– seems to prefer avoiding precisely the kinds of splits R. Cardozo wants to uphold as an ideal.
And in a response to a comment on that blog entry, R’ Rothstein adds, “…it seems to me that Elu Va-Elu was taken in a completely different direction from about the 15th century on, a guess that ties in to my PhD dissertation and my feelings about detours of Jewish thought, but that’s not for here…”
However, as we saw in the past, the notion that halakhah contains “49 ways to declare [something] impure and 49 ways to declare [it] pure” is a more clear-cut source for plurality than the talmud about eilu va’eilu“. For sources in the gemara, Rashi, the Ran (who was a rationalist, not a Qabbalist), and numerous other pre-15th cent. CE baalei mesorah, please see my summary of articles on the subject by R’ Moshe Halbertal (“Controversy in Halacha“) and R’ Michael Rosensweig (“Elu Va-Elu Divre Elokim Hayyim: Halakhic Pluralism And Theories Of Controversy“).
I also find an interesting point of commonality between the two positions. R’ Marc Angel questions the binding nature of evolution to halakhah since the gemara. R’ Gidon Rothstein questions the significance of the evolution of aggadita since the rishonim. Both are therefore calling for some sort of roll back to what they believe to be an earlier state that was more to their liking. (And neither describe the past as I would.)
To present my own take on the subject…
I think there is a major failing in his essay in not clearly distinguishing between codification and the need for codification. When we say that Rebbe’s decision to codify the mishnah was an instance of overturning a specific law for the sake of the whole (“eis la’asos Lashem, heifeiru Sorasekha — it’s time to do for G-d, overturn Your Torah”), we’re clearly saying the situation was a step down. BUT, that doesn’t mean that codifying — whether the Medrashei Halakhah completed before Rebbe’s day, his completion of the Mishnah, the Tosefta, the Talmuds, the Beha”g, the Rif, the Rambam, the Tur, the Shulchan Arukh, the Rama, the Levush, the Shulchan Arukh haRav, the Chayei Adam, the Qitzur, the Arukh haShulchan, the Mishnah Berurah, the Ben Ish Hai, etc, etc, etc.. were themselves a bad idea. It is sad when we reach an impasse that requires a new round of codification. But when we do need it, producing a code is the right response. It is not codification itself which is ill, and until we repair the cause for the need, the progressive codification is still necessary.
The formula the Rambam uses to describe the what gave the Talmud Bavli its binding nature is that it was accepted by “all of Israel”. Not in every one of its rulings, but as the point of origin for further study. And today, across the gamut, semichah studies center around the Shulchan Arukh (with the exception of Bal’adi Teimanim who center their pisqa on the Rambam). The same mechanism which gives the gemara the authority R’ Cardozo attributes to it gives the Shulchan Arukh its authority.
Someone who davens from R’ Saadia Gaon’s (much shorter) siddur, omitting things said by all our communities for centuries, or to take a real case, from Nusach Eretz Yisrael as found in the Cairo Geniza, isn’t following the halachic process. The plurality caused by having a distinctly oral and fluid tradition is part of a stream down time; by leaving that stream, that dialog down the generations, one abandoned the core of Judaism.
Orthodox Jews today are under the impression that the job of religion is to provide answers; and moreso, easy-to-understand answers that can resolve life’s dilemmas in one sitting — all tied up with a nice bow.
In reality, life’s problems are hard. Let me give a story from personal experience. Someone close to me is a baalas teshuvah. The only one in her family in a few generations to embrace observance. And she, like most baalei teshuvah, was presented a worldview in which, if you just believe enough, the only airplane one would miss is the one that was going to crash. (Many of you are familiar with this genre of story that I’m trying to portray.) But she, alone among all her siblings and cousins, went through the crashing pain of losing a daughter. So, where is the “better life” the kiruv professionals led her to expect? Life is not simple, and we do ourselves a disservice pretending it is.
Religion’s job isn’t to resolve life’s struggles, but to give us a meaningful way to grapple with them. Whether we’re talking about our perspective on life, or about pesaq halakhah.
Quick and cut-and-dry one-size-fits-all rulings isn’t how halakhah is supposed to work. While I’m arguing that a ruling that “all of Israel” accepts is binding, we have gone well beyond that with the current proliferation of English halachic guides. There is a feel to the give-and-take of halakhah, to its responses to the costs to the individual, to their personal talents and emotional proclivities, where they stand spiritually, the challenges and gifts Hashem placed in their path, and how they view life, that one really not only needs a human halachic decisor, but preferably one who knows the asker and can help them coordinate a spiritual journey through life.
There is enough room among decisions which have so far not reached universal consenus (“nishpasheit bekhol Yisrael“) nor canonized as the person’s inviolate minhag (eg: qitniyos) to address the contemporary Orthodox Jew’s need for a meaninful spiritual life through a synthesis of religion (aish) and rite (das).