Non-halachic Judaisms

It is time for modern Orthodox Jews to hold our heads up and realise that we are just as halachic as our "ultra Orthodox" fellows - or perhaps more-so.

This year at Limmud Conference, I was privileged to attend a number of lectures by Ysoscher Katz, who heads Yeshivat Chovevei Torah.  These talks have helped clarify in my mind why it is time to stop being embarrassed about being modern Orthodox Jews, and to hold our heads up and realise that not only are we just as halachic as our 'ultra Orthodox' fellow Jews, but actually we can claim to be the torch-bearers of true Judaism. 

Rabbi Katz explained the following idea (among others) in his lectures.  In nurturing forward-thinking halachic Judaism, perhaps the greatest challenge we face is the accusation that we are doing the halachic equivalent of data mining in Statistics.  In other words, we know what end results we want (more equality for women, etc.) and so we seek a halachic opinion that justifies what we have already decided to do.    The argument goes that if you really are committed to Halacha --- if you are a proper frum Jew --- then you will accept the law even if it jars with what you want it to say.  Such is the sacrifice of serving God.  Halacha is law and the law is the law.   From this point of view, how can we justify the 'halachic innovations' being produced that permit such things as partnership minyanim, previously thought to be prohibited?

What I learnt at Limmud is that this sort of argument misses the importance of facts on the ground.  Of course, you do not go searching for an opinion to justify what you want to do, any more than a statistician searches for data to fit a theory.  However, the 'right' halachic answer is not actually a fixed thing, and actually depends on practice.   Any rabbi knows this, as often the halachic answer to a question can differ from one community to another.  If a community has a minhag (established custom) to do things one way, unless a Rabbi can prove that this minhag is unhalachic, the minhag stands and in fact it is against halacha to change it. 

The importance of minhag essentially means that, contrary to what some people might think, Halacha is not black and white.  Several practices might all be potentially correct, and which is correct in a particular situation is contextual.  There is no one halachic way to be Jewish.  It's a lovely idea, and it gives us hope.  However, it also cuts both ways.  The supremacy of minhag has often been used by reactionary Jews to justify stasis.  Nothing can change because the minhag is that we do things as we have always done them.  Any change is therefore forbidden.  As the chatam sofer famously said 'chadash asur min haTorah' (New things are forbidden according to the Torah.)

So what is our way out, and why do I say that modern Orthodoxy is true halachic Judaism?  The point is that facts on the ground determine where the burden of proof lies in halachic decisions by rabbis.  Although a rabbi might disapprove of some social innovation such as partnership minyanim, if the practice emerges from social events and becomes established, then one can argue that now the burden of proof is on rabbis to prove that the practice is forbidden rather than on the participants to prove that it is permitted.  By the way, this also reflects another halachic principle: that if something is not forbidden then it is permitted.  There have been numerous times in Jewish history when practice has changed in this way.  In all such cases, the Halacha has not changed, but its application has changed and practice has changed.

The process of halachic innovation is therefore laid out to us:  If we want things to change, then the lay folk need to learn the Halacha and find ways to innovate that might break with minhag, but are not forbidden.  Don't ask a rabbi for permission to innovate, because he will have to say no.  But once you have done your innovation, you can ask a rabbi to say that it is OK to keep doing it.  I argue that this is precisely what is happening in the Open Orthodox community.  People who are committed to Halacha and to serving God have learnt the sources and found ways to give honour to women without transgressing Halacha.  Now some brave rabbis are telling them that what they are doing is not forbidden and they can keep doing it.

So why now do I say that modern orthodoxy is the most halachic form of Judaism?  The reason is this.  In terms of the interaction between minhag and Halacha, there seem to be four approaches in the Jewish community today. 

1. Post-halachic Judaism

On the left, 'halachah has a vote but not a veto' (as Mordecai Kaplan put it so clearly).  People decide what they want to change based on such motives as modern ideas of equality or social justice or practicality, and then they say that Judaism should change even if Halacha would say otherwise.   This approach is not halachic, but it is honest. 

2. Pseudo-halachic Judaism

A little to the right of post-halacha, is the position that a halachic justification should be sought for a desired change, by mining the range of opinions available, if necessary by even going back to the Talmud.  If even that approach does not work, then the change will be justified by an appeal to the principle 'Eit Laasot Lashem'.   (Time to do something for God – a general catchall that allows Halacha to be changed in times of social emergency.)

3. Halachic Judaism

Normative halachic Judaism looks at practices and asks whether they are permitted or not.  If a change in practice occurs and it is not forbidden, then it is permitted.  Those who seek to change practice to meet social needs seek changes that will pass the halachic test post facto.  This is how Judaism has adapted to the need for change over the centuries, a dance between the laity and the rabbis in which each group respects the other.

4. Reactionary / Authoritarian Judaism

Practice cannot change unless those in Authority like the change.  If a change in practice occurs and those in Authority do not like the change, then this change is declared wrong.  Change is wrong whether or not it is forbidden according to Halacha.  If a halachic reason to oppose change cannot be found, then appeal is made to the principle of Das Torah (which means that those in Authority are always right.)  If those in Authority want a change, then Das Torah can also be used to justify the change even if the change is not according to Halacha (for example nullifying conversions for political reasons).

As one reads the description of Reactionary Judaism, it becomes clear just how similar it really is to Pseudo-halachic Judaism.  I fail to see how one is more halachic than the other.  I now understand that as one moves to the right, one does not become 'more' orthodox at all.  It is like coming round a circle.  So it is time to scrap the term 'ultra orthodox' and call Reactionary Judaism by its real name.

For myself, I will stick to the middle path of Halachic Judaism, and I make no excuses for being modern and orthodox.