The Role of Hahkba in Reconstructionist Decision Malung

any Reconstructionists as follows: and other liberal Jews We accept the , which is seem afraid of the term rooted in the Talmud, as the halakha, reacting as if it invokes some norm of Jewish life, availing our- dark presence coming out of the past selves, at the same time, of the to crush them with its oppressive method implicit therein to inter- weight. They would be surprised to pret and develop the body of learn that Mordecai Kaplan wrote Jewish Law in accordance with that "Jewish life [is] meaningless the actual conditions and spiri- without Jewish law." They would be tual needs of modern life. more surprised to learn that Kaplan made this statement not as the young A close reading of this plank re- of an Orthodox congregation, veals that what at first appears, from but relatively late in his career in one a Reconstructionist perspective, to be of his most thorough and systematic a remarkably conservative statement examinations of Jewish life in is in fact, from an Orthodox perspec- America, The Future of the American tive, a remarkably subversive state- Jew.' ment. First, Kaplan diverges from the Kaplan's Advocacy of Halakba Orthodox approach by identifying as the foundational halakhic text the Years earlier, one of the five planks Talmud (more particularly the Ge- of the platform of the proto- marah) rather than the Shulban Reconstructionist organization that Arukh or the other medieval law Kaplan founded in 1920, The Soci- codes. The differences in style, and ety for the Jewish Renascence, stated often in substance as well, between

Daniel Goldman Cedarbaum, a lawyer in private practice, is a member of the Jewish Reconstructionist Congregation in Evanston, IL and is the secretary of the Board of the Jewish Reconstructionist Federation.

The Reconstructionist Spring 2001 29 the law codes and the Talmud are have collaborated in creating this well-known and dramatic. The law impression, for I am willing to stand codes (as the term implies) generally with Kaplan in asserting that any consist of dry, impersonal recitations form of that does not recog- of legal rules. he halakhic portions nize halakha as an essential compo- of the Gemarah, on the othkr hand, nent of the fabric of Jewish life is not generally consist of relatively free- authentic. (Even the Karaites are not wheeling discussions of legal issues, an exception, although their version with particular views generally attrib- of halakha may be very different from uted to particular, named and the rabbinic version.) The value of with dissenting opinions often re- individual autonomy has been el- spectfully set forth. (This shift of evated by liberal Jews to the point emphasis from the law codes to the where it conflicts with the essentially ~acmudis one that I understand the communitarian nature of Judaism. Conservative movement to have At the same time, I recognize that adopted.) the traditional halakhic system is in- Even more striking is the next part capable of producing a code of con- of Kaplan's statement. He claims for duct that is meaningful for, and ac- "ourselves" (and not just for tradi- ceptable to, the vast majority of con- tionally recognized halakhic authori- temporary Jews. And I am also will- ties) the right "to interpret and de- ing to stand with Kaplan in asserting velop" Jewish law. He then goes on that non-Orthodox Jews have evaded to recognize the changed "spiritual and avoided the challenge of recon- needs" of today's Jews, in addition to structing halakha. the changed "actual conditions7' of Even among the Orthodox, no one today's Jewish communities, as a valid today would argue (other than as a basis on which to make changes in pure statement of traditional faith di- Jewish law. vorced from historical reality) that Jewish law has not undergone tre- Fear of Halakha mendous evolution over the past 2,000 years or so, or that Jewish law The liberal Jewish fear of the term has not shown remarkable varia- halakha is mixed with a type of awe, bility as it has been adapted to the leaving many of us scared to touch local conditions and needs of Jewish Jewish law, much less wrestle with it. communities around the world. In- But by leaving halakha to the Ortho- deed, in the preeminent academic dox and other "traditional" Jews, treatise in the field, Jewish Law: His- Reconstructionists in particular, and tory, Sources, Principles (Philadelphia, liberal Jews in general, have uninten- Pennsylvania: The Jewish Publication tionally promoted the perception Society 1994), the renowned Israeli that the Orthodox are the only "au- scholar and jurist Menachem Elon, thentic" Jews. And I believe that we himself an Orthodox Jew, celebrates

30 Spring 2001 The Reconstructionist the enormous elasticity and adapt- halakha," thereby reflecting our in- ability of Jewish law across time and terpretation of the fundamental . - from place to place. halakhic principle that legal rulings are to be made by contemporary Halakba Evolves judges (see chapter 17 of Deuter- onomy). The practice of treating halakha as We must move away from the lib- an unchanging monolith that can eral Jewish approach to halakha that speak independently of human voices typically has looked something like: is perhaps traceable to , "Here is the collection of fixed rules who wanted to create the perception that we have received from tradi- that halakha was an impersonal, fixed tional Judaism. Now we will decide and unamendable body of law even (whether individually or, in some as he was making significant changes sense, communally) which of these to it. And yet, as and rules to obey and which to disregard." others have pointed out, Jews of all Our approach to halakha should denominations often err by saying instead look something like: "Draw- that the "halakha says thus-and-so" ing on the wisdom that we have re- when we should instead say that "par- ceived from thousands of years of ticular halakhic authorities said thus- Jewish legal thinking, we, as a com- and-so at particular times and in par- munity, must construct for ourselves ticular places." The real debate a set of rules that are at once rooted among Jews today should not be in our tradition and consonant with about whether Jewish law can change,- the actual conditions and spiritual but about who has the authority to needs of modern life. We must then make changes in Jewish law, and in commit ourselves to obeying those what manner. rules." A related phenomenon is what I believe to be the pervasive misunder- Is This a "Post-Halakhic"Age? standing by Reconstructionists of their own favorite aphorism about Many Reconstructionists, as well Jewish law, "The past has a vote but as other liberal Jews, like to say that not a veto." Too many Reconstruc- we are living in a "post-halakhic" age. tionists read this as, "The halakha has By this they generally mean that, like a vote but not a veto," making it a it or not, Jewish communities (at sort of declaration of independence least outside of Israel) no longer from what is perceived to be an ossi- possess the juridical sovereignty that fied legal system. once enabled them to impose sanc- A better reading of the aphorism tions for violations of legal rules, and might be "Past understandings of that without such an ability to im- halakha have a vote but not a veto in pose sanctions, Jewish law cannot our formulations of contemporary function in any meaningful sense.

The Reconstructionist Spring ZOO1 31 In a technical sense, this proposi- eating policy, and most likely that tion (that I call the "post-halakhic person would immediately dispose of thesis") seems self-evidently true; the offending food. In the unlikely but on another important level, it event that the person for some rea- seems false. In any case, the validity son insisted on eating the shrimp of the post-halakhic thesis is any- salad, he or she would be asked to thing but self-evident to our Ortho- leave the room. Repeated violations dox brothers and sisters, and to the would result in the person's being leaders (at least) of the Conservative told that he or she could no longer movement as well, for they sincerely participate in the study group. In believe that they are bound by other words, sanctions can apply to halakha. The main problem, I be- violations of the "dietary law" of this lieve, with the post-halakhic thesis is small community. Failure to follow that it rests on an unnecessarily our rule subjects the offender, first, strong reading of the word "law," as to shaming and, beyond that, to the I will attempt to illustrate with some possibility of expulsion from our non-abstract examples. community.

Practical Examples Sanctions and Freedom

For the past eight years, I have These are precisely the two sanc- been a member of a trans-denomi- tions, I believe, that have historically national Talmud study group, in been the most important and effec- which the primary teacher is an tive in securing obedience to halakha. Orthodox rabbi and the majority of What primarily differentiates the op- the other participants are Recon- eration of these sanctions within my structionists. The group meets at Talmud study group and within, say, lunchtime, and many of its mem- the 18th century Kehillah of Vilna, bers typically eat lunch while they are the sizes of the communities in- study. volved and the consequences of the Early on, the organizers of the sanctions to the wrongdoers. For ex- group announced the rule that, while ample, expulsion from the Vilna the lunch foods of the members need Kehillah might well have resulted not not be kosher-certified, they could just in social stigmatization, but in not include meat or non-kosher sea- the loss of one's ability to make a liv- food, and no member expressed a ing, at least in the absence of the ex- dissenting opinion at that time. Ever treme step of conversion to Chris- since, no one has brought a "forbid- tianity. den" food for lunch. That my study group is a small, And what would happen if some- voluntary association and that the one brought shrimp salad? Someone consequences of expulsion from it else would remind that person of our may not be objectively severe do not

32 Spring2001 The Reconstructionist alter the fact that expulsion, and From Option To Obligation shaming as well, are meaningfLl sanc- tions for the members. Membership Moving to yet another level, what in good standing in the study group happens if a member of my congre- confers real benefits on the member; gation whose parent has just died otherwise, he or she would not wants to recite Kaddish, in the pres- choose to participate. ence of a minyan, in his or her home Moving to the level of a larger during the full shiva period? A syna- community, I have heard members gogue community is, I believe, seri- of my say that they are ously deficient if a mourner has to not subject to any binding commu- worry about whether the community nity obligations ("laws") that go be- will make sure that such minyanim yond the rules of the American legal are present. The congregation should system or the norms of common have in place a formal or informal courtesy. They might deny that the structure for contacting members of congregation even attempts to im- the congregation and asking them to pose any rules of "Jewish law" on its go to the house of mourning at the members. But they are wrong. For appropriate times. A member who example, the congregation has a receives a call to do so should regard formal policy against bringing such a call in much the same way that non-kosher meat into its building he or she would regard a summons Although many of the members eat for jury service, as a civic obligation pork in restaurants and in their that, in the absence of compelling homes, my sense is that, once in- extenuating circumstances, must be formed of the congregation's kashrut fulfilled and in that sense is not vol- rules, none would even think about untary. disobeying these rules in our build- We are too squeamish about using ing, even though the rules are in fact the word "must" rather than the word infringements on their freedom. "should" when we discuss these and Perhaps more significantly, our similar issues within our communi- congregation does not permit an in- ties. "Must" is appropriate, not be- terfaith marriage ceremony to take cause we believe that the obligation place within its building Although is literally ordained by , but be- quite a few of the members probably cause it has its source in a democrati- object to this policy, and some might cally determined social contract, in- work to change the policy through a formed by our people's evolving un- vote of the board of directors or per- derstanding of how best to make haps of the entire membership, I be- Godliness manifest in the world. lieve that all accept the current policy That should have the force of law for as a binding restriction on their be- the community. havior. Some used to say that the defin- ing slogan of Reconstructionism was

The Reconstructionist "Act kosher, think treyj" Less flip- sions, all affiliated Reconstructionist pantly, some Reconstructionists used congregations and havurot might be to say that they espoused "maximalist asked formally to adopt the com- liberal Judaism" and that Reconstruc- mission's body of work. Eventually, tionism is the only real "liberal alter- acceptance of this evolving halakha native to Orthodoxy." But by ced- by a congregation or havurah might ing halakha to Orthodoxy, we have become one of the requirements for left these catch-phrases with no real affiliation with the Jewish Recon- content. Kaplan at one time proposed structionist Federation. the creation of an international San- What the specific substance of hedrin, composed both of rabbis and such a reconstructed halakha might of educated lay people from all de- look like is, of course, beyond Fhe nominational backgrounds, which scope of this article (indeed, is be- would reconstruct halakha in an es- yond the scope of anything but the sentially democratic manner. That communal process that would, over proposal (at least today) seems more time, create it). However, in the in- like a messianic dream than a practi- terest of making my argument less cal call to action. abstract, I will offer a few thoughts about the direction that such a pro- Reconstructionist Responsa cess might take.

More realistically, though, the Guiding Principles process of reconstructing halakha could begin with the creation of a First, it would likely involve an responsa commission, or similar emphasis on the traditional distinc- body, of the national Reconstruc- tion between those rules of Jewish law tionist movement, which could, on that pertain to obligations that are a case-by-case basis in response to beyn adam la'havero (between or questions from rabbis or lay members among people) and those rules that of Reconstructionist affiliates, issue pertain to obligations that are beyn pronouncements on various matters, adam la'Makom (between a person both of ritual or ceremonial practice and God). The primary, though by and of interpersonal conduct, that no means exclusive, focus of this would make up, over time, our un- halakhic process would presumably derstanding of halakha. Such a com- be on the former category of rules, mission would be made up both of as they are the ones that directly af- rabbis and of educated lay people, fect the functioning of a community. and they would (at least indirectly) However, within the realm of be democratically selected. ritual or ceremonial practice rules At some point in the future, when (generally assigned to the latter cat- the commission had produced a sig- egory), a distinction might well be nificant body of written legal deci- drawn between those matters that are

34 Spring2001 The Reconstructionist nevertheless communal in nature (for might be found to be bayav. example, the recitation of a blessing As suggested above, the shirking of before eating a communal meal) and one's obligation to be the tenth per- those matters that are truly private son in a shiva minyan would presum- in nature (for example, the recitation ably be bayav (result in full liability), of individual prayers upon waking). as would failing to give tzedakab at Among the questions of commu- some reasonable level. The extent of nal ritual practice that could be an- one's obligations, if any, to partici- swered for the entire Reconstruc- pate in worship services (when the tionist movement are whether the presence of a minyan is not in doubt) shofar should be blown when Rosh is among the questions that are much Hashanah coincides with Shabbat more debatable. and whether the regalim festivals should retain Yom Tov Sheni (the ad- Reviving the Takanah ditional days of observance man- dated in traditional halakha for the Another example of something Diaspora) . that could usefully be drawn from the Other traditional halakhic catego- traditional halakhic process is the ries or concepts could also play a recognition that changes in Jewish fruitful role in this process. One law are not always evolutionary and important example is the traditional sometimes need to be discontinuous, classification of actions along a spec- for which we have available the tra- trum that might include: bayav (for- ditional tool of the takanah. Basically, bidden actions that subject the trans- use of a takanah is appropriate when gressor to full sanctions); pattur aval changes in social reality make a par- assur (that we could interpret as ac- ticular traditional halakhic rule run tions to be avoided but for which counter to a fundamental purpose of there are only minor sanctions); halakha, such as furthering tikkun pattur mi'klum (that we could inter- olam (repair of the world) or darkhei pret as actions that carry no sanc- shalom (promotion of peace). tions, but from which it could none- Takanot appear frequently in the theless be beneficial to refrain); to Mishnah, the most famous example mutar (fully permitted actions). of which being Hillel the Elder's or- Thus, an individual's eating of daining that, for a certain category pork in his or her home migh; be of loans, the obligation of repayment found to be pattur mi'klum, an in- is not canceled by the Sabbatical Year, dividual's eating of pork in a restau- which in effect overturned the rule rant (that is, in a public place) might stated in Deuteronomy 15:2. (Calls be found to be pattur aval assur and for the revival of the takanah have re- an individual's serving pork to fellow cently been heard in the Conserva- congregants at a congregationally- tive movement, and even in some Or- sponsored dinner in his or her home thodox

The Reconstructionist Spring 2001 35 The Private Realm lem, I think, is not his ritual behav- ior (or lack thereof) but the limited In formulating Reconstructionist definition we currently have of "ob- halakha, giving attention even to servant Jew." matters of purely private ritual prac- In other words like many other tice might be desirable, not for the non-Orthodox Jews, he is seeking a purpose of regulating behavior but non-subjective yardstick against for the purpose of providing the in- which to measure the adequacy of his dividual with a communally-deter- ritual practice. He is quite familiar mined set of pidelines with regard with the traditional yardstick, and, to such practice. The operative term unfortunately, the liberal Jewish world here would be "should"" or "ought," has not provided him with any alter- rather than "must." As Kaplan once native objective measuring device. wrote: "Ritual practices are the con- Creating such an alternative measur- cern of every one who wants to be a ing device could be one of the goals of Jew in the fullest sense of the term. the Reconstructionist halakhic process. However much or little either the A Reconstructionist responsa com- observance, or the neglect, of these mission might well determine that practices may affect our human rela- the act of putting on tefillin is of little tionships, they cannot be ignored. spiritual benefit to most Reconstruc- They can serve as a source of imme- tionist Jews, and that, because the diate good- in the life of the indi- practice (at least when done in pri- vidual. In their present state, they vate) does nothing to strengthen Jew- are either a nuisance, or an occasion ish community, i[should fall into the for a sense of guilt."3 category of ritual practices that are (of course) permitted but that are not Standards of Observance held out as normative.

A knowledgeable and committed Ritual And Ethical Halakrba Reconstructionist once told me that he felt guilty about the fact that he Grappling with issues of even rarely puts on tefillin in the morn- purely private ritual conduct in re- ing, an act that for him apparently constructing halakha also has the has little spiritual value. What I be- advantage of helping to preserve the lieve he was saying is that he wants traditional concept of halakha as a to be an observant Jew (as he is, by seamless fabric. Over the past 2,000 traditional standards, in many areas years, only the architects of the Re- of practice), and that his failure regu- form movement have attempted to larly to put on tefillin is undermin- draw sharp distinctions between ethi- ing his ability to consider himself an cal rules, on the one hand, and cer- observant Jew. emonial or ritual rules, on the other The underlying source of his prob- hand, and at least some of the lead-

36 * Spring2001 The Reconshuctionist ers of the Reform movement have in ments of the pop~lation."~Kaplan the recent past confessed error in this saw that, at least in America, erect- regard. ing artificial barriers between Jewish The problem here is that once one and non-Jewish communities could takes the position that some of the ultimately harm Judaism, and Jews. rules that are part of a coherent legal There are three ways that such bar- framework are not worthy of respect, riers could have negative- conse- rationalizing disobedience of other quences. First, by depriving Jews of rules becomes much easier. In other the economic benefits aid social words, when a person has been taught pleasures of full interaction with their that ignoring the dietary laws presents non-Jewish neighbors; second, by no problem, then such laws as, for ex- making the incorporation of the ample, assisting the communal poor highesFideals of the~mericancivili- may seem less like obligations and more zation into Jewish life more difficult; like ethical suggestions. and, third, through a sort of cultural Still, care must be taken to avoid protectionism, weakening the prod- confusing ritual practices in them- ucts of Jewish creativity, including a selves with the ethical agendas with reconstructed halakba itself, by insu- which the ritual practices are, or lating them from the rigors of com- ought to be, associated (for example, petition in an open marketplace of saying a blessing before eating and ideas. having a renewed commitment to helping to feed the hungry). As Return to Roots Kaplan wrote: "Rituals can be abused by the tendency to assume that the In advocating the reconstruction performance of the symbolic rite is of halakba, I am simply calling on itself a virtuous act, whether it im- our movement to return to some of pels one to serve the ethical ideal it its fundamental Kaplanian roots. For symbolizes or not." But, as Kaplan Kaplan, as for his ancestors, Judaism went on to say, "as with religion in was at least as much a matter of the general, so with its ritual aspect, it head as of the heart, and one could would be folly to dispense with it perform no more important religious because of its possible ab~se."~ service than fully using one's intel- lect to ascertain and advance divine Avoiding Insularity purpose in the world. And for Kap- lan, as for his ancestors, Jewish life Finally, in reconstructing halakha, without Jewish law was unthink- we should be mindful of Kaplan's able. Kaplan empowered us; may we admonition that "Jewish law . . . have the strength to carry on with his [must] refrain from interfering with work. the freedom of economic and social intercourse with the non-Jewish ele-

The Reconstructionist 1. Mordecai Kaplan, The Future ofthe 1998). American Jew (, Reconstruc- 3. Kaplan, op. cit., 394. tionist Press, 1948), 387-401. 4. Mordecai Kaplan, Questions Jews Ask: 2. See Michael Graetz, "Reviving Reconstructionist Answers (New York, Takanah in the Halakhic Process" re- Reconstructionist Press, 1956), 227. printed as Appendix A in Naomi Graetz, 5. Kaplan, Future of the American Jew, Silence Is Deadly:Judaisrn Confonts Wife- op, cit., 392. beating (New Jersey, Jason Aronson,

38 Spring 2001 The Reconstructionist