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The Role of Hahkba in Reconstructionist Decision Malung The Role of Hahkba in Reconstructionist Decision Malung any Reconstructionists as follows: and other liberal Jews We accept the halakha, 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- rabbi 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 Judaism 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 rabbis 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 Maimonides, "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 Ira Eisenstein 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.
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