A Tree of Life: Diversity, Flexibility, and Creativity in Jewish Law, and: Evolving Halakhah: A Progressive Approach to Traditional Jewish Law (review)

While the Orthodox rabbinate has been racing to the right with ever more strict and narrowly construed halakhic decisions, a number of thinkers have gradually been inves tigating alternatives aimed at empowering a more flexible and open approach. On the moderate Orthodox side, voices have been raised pointing out that within the halakhic system itself are grounds for more humane and liberal rulings. On the side of Progressive Judaism, the new and growing interest in halakhah and the halakhic tradition has created a whole body of halakhically based decisions that offer an alternative to the proclamations of the Orthodox rabbis. The two books before us represent in many ways the best of these two alternative streams. Louis Jacobs is one of the foremost voices of Modern Orthodox Judaism in England. His book, A Tree of Life, which calls for a “non-fundamentalist” approach to halakhah, first appeared in 1984. It has just been republished in an expanded version. Moshe Zemer is one of the leading intellects of Progressive Judaism in Israel. He has spent much of his pro fessional career responding, in halakhic terms, to the decisions of the Orthodox rabbinate in Israel and producing a body of Progressive Israeli responsa. His book is largely a product of those efforts. Together, these two authors, coming from opposite directions and out of different traditions, show us the path that the future development of a non-fundamentalist halakhah might well take.

Let me begin with Louis Jacobs. Rabbi Jacobs opens this new edition with a second Introduction in which he responds to attacks generated by the original 1984 edition, and in so doing lays out the problem, as he sees it, with remarkable clarity. There are, he notes, two fundamentally different approaches to the halakhah fighting for supremacy within Orthodoxy. One approach is what he labels “fundamentalist” or “objective.” This view holds that the halakhah has its own internal nature and content and so is self- sufficient and never to be influenced by outside conditions. In fact, in this view, outside influences only pollute and corrupt the halakhah. The other view is historical and assumes that the social situatedness of the posekhas always been important. It is for this second view that Jacobs forcefully is arguing in this book. As he puts matters in his new Introduction, “the halachah . . . far from being entirely self-sufficient and self- authenticating, is influenced by the attitudes, conscious or unconscious, of its practitioners toward the wider demands and ideals of Judaism and by the social, economic, theological, and political conditions that occur when the ostensibly purely legal norms and methodology are developed.” In other words, the halakhah has always been shaped at least in part in response to the social reality of the community.

At this juncture, Jacobs hastens to point out that he does not mean here to provide an opening for the creation of a “liberal” or “watered down” halakhah. Just because the halakhah has a history, he argues, does not mean that any innovation can now be justified in accordance with the latest fad of the day. Yet appeal to commonly held ethical values such as justice and compassion are perfectly legitimate, and is in the end not a hallmark of “liberal” halakhah at all but has been part and parcel of what traditional Orthodox poskimhave been doing all along. What Jacobs finds wrong is not the traditional halakhah, but the new, “fundamentalist,” ascription of infallibility in all matters of life to the posek. This raising of the posekto the level of a super-historical, super-societal spokesperson whose every word is an instance of perfect “ da’as torah” runs exactly counter to what the traditional halakhic method has been all about...