Britain has been a surprisingly fertile ground for the development of Conservative philosophy of halakhah. There are a number of early twentieth-century examples of Anglo-Jewish religious thinkers articulating an approach to the Bible and Jewish law that became identified with Conservative Judaism. For reasons I will explore, these theologians and their writings did not exert much direct influence on the wider Conservative movement, nor did their ideas take root in Britain, and as a result their intellectual efforts have been somewhat overlooked. This article will attempt to place them in their proper position in the intellectual genealogy of Conservative Judaism.
First, I must define my terms. I have referred to the “Conservative theology of halakhah,” but Elliot Dorff has identified no fewer than four different Conservative approaches to revelation and halakhah.1 In this article, I mean the belief that the Pentateuch was not given directly, word for word, by God to Moses on Sinai (torah min ha-shamayim as traditionally understood), still less the entire Oral Law that was recorded in the Talmud and other rabbinic literature. Rather, these documents were produced by human beings over a long period acting under the influence of divine inspiration. The halakhah that was a product of Jewish religious activity [End Page 55] remains authoritative because although the Torah, Written and Oral, that we have today is not itself unmediated revelation, it is a record, albeit an imperfect one, of revelation. The fact that it has become the religious mode of expression of the Jewish people demonstrates that it has the sanction of God operating through history.
According to this view, the halakhic process has always been, and must continue to be, flexible and fluid. Halakhah will develop and change, but that process will be organic, within the spirit of what has come before, and the halakhah as it stands at any given time is binding.2 This is what Louis Jacobs called “liberal supernaturalism” or a “non-fundamentalist halakhah” —a modern approach to biblical studies combined with a belief that the Bible and Jewish codes convey God’s wishes for the Jewish people.3
Until the Second World War, and even for a time after, the Conservative movement was very tentative about articulating this idea fully and clearly. The United Synagogue of America, later the United Synagogue of Conservative Judaism, has never been a cohesive organization in terms either of theology or practice. It was not until the 1950s that the Jewish Theological Seminary became completely at ease with Higher Criticism of the Pentateuch, and there were some on its faculty, such as Saul Lieberman, who probably never accepted it. However, since the 1970s the theology of halakhah of the rabbis graduating from JTS and serving Conservative synagogues has been, by and large, that God did not give the Torah directly, but that God speaks through it and Jews are obliged to follow its teachings.4
The Conservative movement has long identified its European forebears as founders of this idea.5 Zacharias Frankel is often claimed as the father of Conservative Judaism.6 That is problematic, however: whatever Frankel’s views were on the development of the Mishnah and the status of those laws labelled in the Talmud as halakhah l’moshe mi-sinai, he did nevertheless believe that the Pentateuch was given on Sinai.7 That was the view taught at Frankel’s Seminary in Breslau and at similar institutions in Europe.8 Frankel’s original contribution was to emphasise the authority of halakhah in its own right as a separate issue from the origin of the Pentateuch and the Oral Law. [End Page 56]
For Frankel, contemporary Jewish practices—whether biblical or rabbinic in origin, or merely an established custom—represented the will of God acting in history. This was a religious restatement of the thought of the German historical school of law, of Friedrich Karl von Savigny and others, who argued that laws were as much an expression of the Volkgeist, the spirit of a people, as were its language and customs. Laws are not necessarily handed down by an authority but evolve over time...