To paraphrase the prophet Amos,2lo tei·olog v’lo ben tei·olog anokhi, ki m’lammeid anokhi u-va·al halakhah. My life as a rabbi and as an academic has been devoted to the study and the teaching of Talmud and halakhah, and not extensively either to the study of or the “doing of” theology. Of course, there is no doubt that there are theological implications to the process of halakhic decision-making, and perhaps it was my duty to spell those out more often than I ever did. I admit that until recent years I felt no compulsion to do so. The implications, I thought, were clear. Besides that, I felt, it is the job of theologians to do theology, and the job of halakhists to do halakhah.
What has changed? In the past, almost without exception, no matter what thinkers of the Conservative movement may have written or said theologically, the responsa written for the Committee on Jewish Law and Standards were virtually all in the classical form and style of responsa literature, and the theological implications of that methodology underlay them, almost no matter how radical the conclusions were. When Aaron Blumenthal wrote his t’shuvah, “An Aliyah for Women”; or Philip Sigal wrote his, entitled “Women in a Prayer Quorum”;3 or the (in)famous driving and electricity t’shuvot4 of the last century were written, they were all written in the classical style of responsa literature.5 There was no reason to assume or suspect that the authors of those papers had called into question the premises which were presumed for ages to be fundamental and foundational [End Page 22] to the halakhic system—like the idea that the Torah reflects the will of God, or that it is legally infallible, or that laws traced to the Torah itself cannot be easily ignored or overturned, if at all. For example, in the driving t’shuvah the authors went to great lengths to attempt to demonstrate that the internal combustion engine did not fall under the halakhic category of havarah. The clear implication was that if it had fallen under that category, the prohibition would have been de’oraita, i.e., traced to the Torah itself, and the sought-after permission could therefore not legitimately be given. It did not occur to the authors to claim that the verse in the Torah is not authoritative and driving is therefore permitted because the verse which seems to forbid does not, in fact, reflect God’s will. Even when Heschel wrote that “as a report about revelation, the Bible itself is a midrash,”6 there was no intimation that the halakhic system was inadequate to confront the halakhic issues of modernity without radically reconfiguring how halakhah is to be decided.
I have no recollection of any of the t’shuvot of the Law Committee justifying the actions which they suggested on the grounds that we Conservative Jews have been taught, convincingly, that the Torah is not directly revealed, but is instead the redacted form of documents J, E, P, and D.
It may be the case that the issues with which the authors of the past were dealing could, in their opinion, be handled without recourse to such arguments, and, given that, that it was preferable to do just that—but, had that been impossible, they would have invoked such arguments. It is hard to know whether they would or would not have done so. It is difficult, however, to imagine that an argument from the Documentary Hypothesis or from “the Bible itself is a midrash” would not have been invoked to solve the agunah problem7 or the mamzeirut problem,8 had those who struggled mightily to find solutions to these problems considered such an argument authentically halakhic—instead of recognizing that to invoke such an argument would have the effect of undermining the very halakhic authenticity that they sought.9
In recent years, thinkers of the Movement have either affirmed explicitly or intimated the possibility that the foundational elements of the classical halakhic system are not inviolate, that the Torah need...