Orthodox Judaism seeks to preserve Jewish practice as inherited from the pre-modern period. In the passage before the one reprinted below, the author–a leading advocate of "centrist" or "modern" Orthodoxy–notes three of the intellectual and moral challenges posed by modernity: (1) Adherence to Jewish law is voluntary since Jewish communities lost the power to sanction their members; (2) modern Jews have attitudes formed by non-Jewish society that make the demands of Jewish law no longer self-evident; and (3) the rise of Jewish statehood in Israel raises new questions. Below, he reviews the ways in which Jewish law responds to these contemporary challenges. Reprinted with permission from Crisis and Covenant: Jewish Thought after the Holocaust, published by Manchester University Press.
[The dilemmas noted above] form the core of the recent argument about the nature of halakhah [Jewish law] and its responsiveness to new circumstances. They can be summarized in a single question. The situation of halakhah has changed. Can halakhah itself change?
The question touches on fundamentals. At the core of Jewish law are the commands and prohibitions set forth in the Mosaic books. Having been given by God, they can be repealed only by God. Having been accepted by the Israelites as the terms of the covenant, they can be abandoned by Jews only at the cost of forsaking the covenant.
To these propositions must be added two others. The first is that only the revelation granted to Moses had the force of divine legislative authority. Subsequent prophets were not authorized to make permanent changes in the law. The second relates to halakhic interpretation. The concept of an Oral Law, of equal authority with the Written Law, implies that the Torah cannot be legitimately interpreted without reference to tradition.
These principles are central to Judaism and were the cause of three of the great schisms in Jewish history. The Sadducees and later the Karaites denied the binding force of the oral tradition. The early Christians, Paul in particular, denied that the commandments could not be revoked. He argued that they had been and that a new covenant was now in force. The rabbis for their part held firmly to their view of the immutabilityof the law and traditions revealed at Sinai. The law is eternal because the covenant is eternal. On that faith, Jewish destiny depends.
God’s Law is Unchanging, but Its Application Does Change
Torah does not change. But in one sense, halakhah does change. For halakhah is the application of Torah to specific circumstance, and circumstances change. What then are the parameters within which the law is given to adjustment? This is Maimonides’ classic formulation:
"God knew that the judgements of the Law will always require an extension in some cases and curtailment in others, according to place, event and circumstance. He therefore forbade adding to or subtracting from the Law … but at the same time gave permission to the sages–the Great Sanhedrin–of every generation to make fences around the judgements of the Law for their protection … and similarly they have the power temporarily to dispense with some religious act prescribed in the Law or to allow that which is forbidden if exceptional events and circumstances require it … By this method the Law will remain permanently the same but yet will admit at all times and under all circumstances of such temporary modifications as are indispensable."
So halakhah can and does change, but always to preserve the essential integrity of biblical law. We should note however that Maimonides makes a distinction that substantially tilts the balance of halakhah in the direction of conservatism. A protective decree or enactment created by the sages–a "fence around the law"–is permanent, whereas a suspension of the law is always only temporary." Rabbinic law, that is to say, has an inbuilt bias toward greater stringency over time.
Who May Authorize Changes in the Application of Halakhah?
This is compounded by the issue of juridical authority, hinted at in Maimonides’ reference to the Great Sanhedrin. This supreme court had considerable powers to create new law. But as its jurisdiction grew more circumscribed under Roman rule and as the center of Jewish life shifted to Babylon, Jewry was left without a central authority.
According to Maimonides, after the closure of the Babylonian Talmud no one had the power to legislate for all Israel. At most, a court was able to issue rulings for its own immediate locality, although some post-talmudic rulings gained widespread acceptance. The power to create new law had lapsed. The rebirth of the state of Israel led some thinkers, most notably Rabbi Judah Leib Maimon, to advocate the reconstitution of the Sanhedrin. But this would have required broad support among Israel’s religious leaders, and it was not forthcoming.
We would be wrong to conclude that there is no scope for development in Jewish law. For what cannot be achieved through legislation can sometimes be achieved through interpretation. A new problem is rarely so exactly like others in the past that precedent dictates an unequivocal answer to a halakhic query. Since there are differences in the details and circumstances, it can be argued that the extant rules do not apply to thepresent case. Halakhic authorities are constantly called upon to adjudicate new questions and, as we will see in due course, there have been areas in which significant changes have occurred in Jewish law in the twentieth century.
Change in Jewish Law is a Reality, Not a Value
But it would certainly be wrong to see change as a value in Jewish law. To the contrary, the central underlying proposition of the halakhah is that it articulates, within the limits of human understanding, the will of God as set forth in the Torah. Rabbinic tradition sees all valid Jewish law as inherent in the original revelation at Sinai. It is uncovered rather than made. Neither a prophet nor a sage has the authority to alter the terms of the covenant.
The rabbis were emphatic in seeing their interpretations and decisions as strictly continuous with biblical precedent. As the third-century teacher Rabbi Joshua ben Levi put it, "Bible, Mishnah, Talmud and [Aggadah], even what a senior disciple is due to teach in the presence of his master, were already stated to Moses at Sinai." Procedurally, therefore, any new ruling must be rendered consistent with the antecedent sources. Any departure from precedent must be temporary, justified by emergency conditions and undertaken with the express purpose of safeguarding Jewish law as a whole.
Developments within the halakhic system are thus homeostatic rather than evolutionary. They are undertaken to restore equilibrium rather than to transform. Halakhah is the application of an unchanging Torah to a changing world. Halakhah changes so that the Torah should not change.
Behind this proposition lies a distinctive conception of revelation, time and the course of Jewish history. Jewish law cannot be understood in positivist terms as simply the record of what rabbis and judges ruled. It is part of a larger theological system. Revelation discloses a moral order which is intimately connected with the history of Israel. Obedience to divine law creates harmony between the people and its land. Sin creates dislocation which leads to exile which begets repentance, return and harmony restored.
Time is not for Judaism, as it was for other ancient civilizations, cyclical repetition or a meaningless sequence of events; nor is it evolution. Instead, human history is a series of deviations from an essential and permanent moral order which will eventually be restored. The end of history is already implicit in its beginning.
The changelessness of Jewish law is therefore not an accidental feature of rabbinic jurisprudence but is central to biblical theology. As Franz Rosenzweig, one of the most perceptive of 20th century Jewish thinkers, put it, "While the peoples of the world live in a cycle of revolutions in which their law sheds its old skin over and over, here the Law is supreme, a law that can be forsaken but never changed."
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