A Prolegomenon to a Modern Orthodox Theory of Jewish Law

Modern/Open Orthodoxy has emerged as the new, bold, and dynamic trend in the United States and Israel. It synthesizes Orthodoxy’s commitment to Jewish Law, memory, and Tradition with the social reality it happens to inhabit. R.   Mordecai Kaplan once observed that the Conservative Movement in Judaism was only a a convenient coalition of “traditional” Reformers and “liberal” Orthodox practitioners. Ironically, Reconstructionism’s founder, who himself did not believe in prophecy, was here prophetic.  The center of the American Jewish continuum, could, would, and did not hold. Conservative Judaism’s signature slogan, “Tradition and Change” was only a slogan, not a first principle. By its nature, “Tradition” negotiates the creative tension between the unchanging sacred Book and the pushes, pulls and pains of an irresistible present. By substituting a vague, undefined “Tradition,” which changes slowly,  for the eternal religious anchor called “Torah,” Conservative Judaism’s  Jewish law was reduced to folkways, becoming “sancta,” and the Torah was no longer “from Heaven,”  the historical expression  of God’s contract with Israel.  The Conservative rabbinic community is now reconsidering its  ban on intermarriage. The market for this indefinable, and for many, indefensible  social/religious communal product seems to be shrinking rapidly.

On the contrary, Orthodoxy is growing demographically and divisively.  Orthodox Jews marry at a younger age, creating more stable–and larger—families than do less observant Jews. In Israel, twenty-five percent of Modern or Open Orthodox, best described as religious cosmopolitans, and ten percent of Haredi Orthodoxy, what is misleadingly demeaned as “ultra”, but is better described as the modernity culture resisting Orthodox, leave the communities into which they were born. But Orthodoxy’s retention rates are relatively high when compared to non-Orthodox or non-affiliating Jewry. Neither the Conservative and Reform laity nor clergy enjoy Orthodoxy’s retention rates among to their offspring. Yet Orthodoxy’s two contending streams remain rather impatient, if not unhappy, with each other.  While Orthodoxy’s extremes are easy to identify, Orthodoxy’s center interacts with both Haredi and Modernist Orthodox streams, albeit with an uneasy ambivalence.

Haredi Orthodoxy proudly proclaims that it alone is Torah complaint, it points to its growing demographic numbers  as well as the validating attraction of newly Haredi “penitents” who have undergone an ideological, “conversionary” experience.  This Orthodoxy regards Torah to be divine,  but understandable and readable only by its own elite, called the “gedolim,” i.e. the “great one’s.”  Their human words reflect God’s will in our time. Haredi policy proclaims that Jewry requires taller and stouter walls in order to keep  heretically troubling ideas intruding from outside of its sacred precincts. Forbidding owning televisions, discouraging computer usage for anything but professional use, listening to and being influenced by non-Haredi media, and outlawing secular studies are enforced communal norms.  Compliance  to these social standards is a condition of Haredi identity.  Mandatory modesty codes, “accepted” social/religious expectations, and the threat of expulsion for non-compliance all contribute to Haredi communal cohesiveness.  This cohesion demands an intense commitment but comes with a heavy social cost. Without a good secular education, supporting its larger, stable families is a daunting task. Haredi full-time Torah study is a spiritual and social activity  but may not become  a creative  intellectual enterprise.  Torah’s true content may not be found in the plain, common sense, grammatical understanding of the Torah’s sacred library; it may be found only in the Narrative that Haredi rabbinic leaders  read into the Torah canon.  Unless one is a “godol,” one does not even have the right to express a reasoned opinion.  “Tradition” is not only the documented Oral Law library; it must be proclaimed by the “godol,” whose word is Torah incarnate  This Orthodoxy is generally hyper-strict because its approach to Jewish law is loose-constructionist. Ever new stringencies emerge to enable an individual to express one’s piety, validate virtuosity, and to demonstrate exactly how religiously and socially worthy one really is.

Modern, Open, or cosmopolitan Orthodoxy also claims to follow Jewish law, albeit far less rigorously than Haredi Orthodoxy. For this “modern” Orthodoxy, strictness beyond the letter of the law is  neither commanded  nor valorized by the Law, but only serves to render Jewry more distinctly and counter-culturally  “other.” Jewish law’s norms only require, forbid, and when silent on a given issue, actually authorize individual autonomy.  Like its Haredi counterpart, Modern Orthodoxy’s commitment to Shabbat observance, including acquiring a residence near a synagogue, fosters a sense of belonging that is reinforced by Orthodox educational and social institutions. These institutions foster Jewish behaving,  belonging, and generally—but not always—believing. However, Modern, Open, or cosmopolitan Orthodoxy does not erect extra stout walls and fences to keep troublesome modernity out—or to lock insiders in–its community. In both Israel and in the Diaspora, Modern Orthodoxy Jewry works for a living and its offspring are expected to master a dual—a Jewishly religious and utilitarian secular—education. In Haredi Orthodoxy, piety is measured by culture compliance and social status depends upon wealth, standing, perceived erudition, and pedigree more than talent or work product assessment.  In Modern Orthodoxy, young people are expected to work for a living and to obtain a secular education, if only for utilitarian if not humanistic ends. Furthermore, the Modern Orthodox educational work product is assessed quantitatively; socially valued, piety alone is socially insufficient.  Some find the dual, i.e. secular modern and religiously Orthodox life style too onerous to endure, the $ 25,000 tuition per child per year is often beyond parental means, and the high housing cost of Modern Orthodox neighborhoods, to be accounts inconceivable.  Israeli Modern Orthodoxy also tends to be Middle Class, ritually observant but not obsessively so, fretting about providing housing for their to be married children, and worrying that military service will not erode their children’s religious identity or render them casualties.

Haredi education consciously and constantly reinforces its ideology and social construction of reality. Its approach to Jewish law is oracular, not textual. The Great Sage is self-proclaimed to be everybody’s teacher—and as such, religious superior.  He alone is the guardian of Masorah, the undefined, not codified culture of the Haredi Jewish street.  Haredi society penalizes and marginalizes those who question God’s word as mediated by the Great Sage. In point of fact, Jewish law’s actual, and identifiable, prescriptions and Haredi culture norms are not the same.  Talmudic law considers a woman’s shame to be sufficient grounds for allowing an abortion [Arachin 7b], it requires drafting both men and women in defensive Israeli wars [Sota 44b], yet forbids  clapping, dancing [Betsa  31a], and women’s  wigs on the Shabbat [Shabbat 64b].  Latter day saintly rabbis interpret these rules into disuse while inventing new rules unimagined by the Talmudic sages, like not cutting a toddler’s hair until age three, discouraging “important” women to recline at the Seder, forbidding women to learn Oral Torah [See however Tosefta Berachot 2:12], and disallowing the required pre-Shabbat bathing on the Shabbat eve before the 9th of Av fast.  Calling these inconvenient facts to the public’s attention is seen as seditious, impious, and subversive; these facts show that Haredi Orthodoxy is a Judaism of ritually rigorous, modernity denying, social control.  The learner may not understand or apply sacred texts. Any and every social act must be filtered, processed, and approved by the Haredi Rabbinic elite.

Upon purchase of a Church building  for a yeshiva building when serving Congregation Israe in Springfield, New Jersey, I asked the Yeshiva’s head rabbi, “how could you enter the church facility, as the congregation prays to the Christian hero as if to a ‘god’?”  I was informed that since the particular Protestant denomination does  not use statues, i.e. idols, in its rites, the premises  is not idolatrous. And I was also told that an Israeli Haredi godol said that it was on these grounds permitted to enter such a place.  I suggested, somewhat subversively, that ‘Avoda Zara is not only idolatry, it is any invented religion. After all, making offerings to the “spirit” of the archangel Michael [bHullin 40b], like praying to the Christian hero, are equally forbidden. My naïveté led me to “correct” a Great Sage by calling attention to an inadvertent – and embarrassing – error. Contradicting the Narrative that knitting kippa rabbis must duly defer to their black hatted, bearded, Borsalino wearing betters is akin to denying Torah truth.

The same R. Moses Sofer who taught that “innovation is forbidden according to Torah law” also claimed that a custom may overrule a law, like clapping on the Shabbat. But according to Jewish law, innovation is permitted by Jewish law but, as argued above, prohibitions alone are prohibited by Jewish law. Allowing a popular culture usage to override a Talmudic law would however be forbidden according to  Jewish law. Thus, being Haredi is not really about being more Orthodox, it is being culturally and counter-culturally “other,” it is about a different version of Orthodoxy. Haredi Orthodoxy should live Judaism after its own lights, propriety, and religious conscience.  It also has the right to advocate its program in the free market of Jewish ideas.  But  those who adopt alternative Orthodox Narratives, ideologies, or agendas, have a right to their positions, as well. The Orthodoxy advocated here is based upon a plain, common sense, socially appropriate reading  of Jewish Law.

Modern Orthodoxy views Halakhah like Maimonides does, as Law. Law is based on norms, or “ought” rules, arranged hierarchically.  When Rav Ashi died [428  C.E.], the age of “Hora’ah,” apodictic rabbinic legislation, lapsed.  There are positive, i.e. “to do,” and negative, i.e. “not to do” rules. Torah laws have greater valence and may not [generally] override Rabbinic laws, and customary practice, while binding locally, may not override Biblical [like popular if anomalous forbidding the intoning of Birkat Kohanim in the Ashkenazi Diaspora].  The medieval, Ashkenazi claim, “the customs of Israel are Torah,” is not consistent with Torah. When a legitimate custom, a custom that does not contradict higher grade law,  is accepted by all Israel [e.g. the daily evening prayers, the prayer kippa, the fast of Esther], these customs then become binding upon all Israel, just like the Talmud, which was the last Oral Law document accepted by all Israel.

Modern Orthodoxy has been compared to the unorthodox Conservative Movement by its parochializing Orthodox detractors.   However superficially similar Modern Orthodoxy and Conservative Judaism appear to the untrained eye, there are critical differences. Since the 1980’s, Conservative Judaism has not appealed to an Halakhically committed laity, or for that matter, rabbinical students. Although professing a commitment to “pluralism,” Conservative Judaism is openly hostile to what it portrays as the arcane, sexist, Orthodox.  Its Melton approach to adult Judaic studies is intellectually critical and descriptive of past precedent, but never normative or prescriptive.

For Conservative Judaism, just because the Tradition mandates a practice, that practice will not be presented as mandatory for either its laity or clergy. Ultimate values are determined democratically and by communal consensus, but not Halakhically, by applying philology to read the sacred text and accepting on principle the values encoded in the canon.  When the larger culture’s value system conflicts with Jewish law, Conservative Judaism always prefers, defers, and adopts the larger culture’s position. After all, Conservative Judaism’s target client population is not prepared to make Torah, however understood, its ultimate concern.  At best, Conservative Judaism does not advocate a total commitment to Judaism, however understood; it does present a Judaism that is a worthy accessory to secular culture. In 1934, R. Mordecai Kaplan wrote that the Jewish past gets “a voice, not a veto.” In fact, Conservative Judaism’s secular sociology vetoes socially inconvenient, Halakhically required Jewish behavior.

Modern Orthodoxy permits what Jewish law does not forbid. Other Orthodox voices identify and conflate popular culture with Sinai’s law. For Modern Orthodoxy, changes in usage that do not violate Jewish law are legitimate. Statutory Oral Torah law, not the tradition of nostalgic taste, is the bar of Jewish propriety.  Married Orthodox female clergy cover their hair, by hat and not by wig [see again bShabbat 64b], affirm family purity, reject unisex minyanim, or improperly serving on a rabbinical court. In Orthodoxy, “ordination” testifies that its holder has been vetted to be Halakhically knowledgeable, professionally competent, and religiously committed. In Liberal Judaism, ordination is a professional credential that has market value, but does not necessarily attest to deep Jewish erudition.

The contrasting approaches to the ordination of women illustrate how Conservatism and Modern Orthodoxy differ. Modern Orthodoxy is prepared to change usage, but not to reform, reject, or overturn Torah law. But Conservative Judaism ignores Jewish law when Halakkhah’s norms conflict with the secular,  modern, ethos because the pull of secular America’s values is irresistible.

Modern/Open Orthodoxy would, however, be wise to take its detractors’ criticism to heart, if only to insure responsible decision making and to avoid agenda driven policies.  When  secular values conflict with Jewish values,  which ethos will Open Orthodoxy adopt?  The secular European/American ethos has accepted homosexuality to be morally acceptable.  Every non-Orthodox Jewish stream has accepted homosexuality to be morally normative, as have liberal Protestant denominations.  Gezeirat ha-Katuv, the unambiguous Torah line in the sand, does not condone homosexual activity [Leviticus 18:22, 20:13]. Modern Orthodoxy will rightly relate to homosexuals with respect, welcome them in their congregations, protest secular anti-GLBTSQ legislation, but it may not contradict or deny the clear Torah’s mandate.  It will live with this tension, as life is often untidy, inconsistent, and conflicted.   But being Orthodox, the Open wing of Modern Orthodoxy accepts the “other” along with the “Torah,”  and leaves God to be the ultimate judge [mAvot 2:4].

“Tradition” is understood very differently by Orthodoxy’s contending streams. The “Tradition” of social inertia is invoked by Modern/Open Orthodox’s ideological detractors.  The Talmud explicitly permits women to perform acts, like leaning on the sacrificial animal, that are addressed to men

[b’Eruvin 96a, bHagiga 16b]. “Tradition,” what one Orthodox rabbi called the  “non-codified” Judaism adopted by Haredi Orthodoxy, invests legislative power in the subjective, non-reviewable hands of the Haredi elite.

However, Maimonides maintains that the local rabbi has the jurisdictional right to rule, limited only by Talmudic legislation. One Yeshiva rabbi has coined legal concepts called middas ha-tseinius, the modesty trait, middas ha-histasterus, the inferiority trait, and ziyyuf ha-Torah, falsifying Torah, which are invoked to forbid in communal practice what is not forbidden by statute.  And because these newly minted legal rules are proclaimed by the Great Sage, who claims to be guided by divine providence [bSotah 4b], they must be accepted as legally binding without question or review.  The authority to legislate Jewish law for all Israel by apodictic decree is affirmed by Yeshiva Orthodoxy to be operative in modern times, even though this legislative power [hora’ah] has lapsed.   In other words, Modern Orthodoxy’s Haredi detractors, like Conservative Judaism, changes Jewish law so that the culture of the old time religion does not appear to change because it was good enough for our ancestors.

These two Orthodoxy’s Judaisms offer conflicting sources of religious authority.  Haredi Orthodoxy maintains that the Oral Law library must reviewed and revered, but it may not be read, understood, or applied by anyone but their elite. This Orthodoxy’s Great Rabbis articulate Narratives which empower them to be Orthodoxy’s singular, spiritual anchor.  In contrast, Modern Orthodoxy’s Great Rabbis openly ask what the law permits, requires, and authorizes, what is appropriate. Like their medieval forbears, these scholars teach, suggest, and persuade; they do not intimidate, bully, or deride. These  great rabbis are educational resources, not apodictic tyrants. If Orthodoxy postulates that the Torah text reflects God’s word, its advocates take pains not to misstate what the law really requires. Holy hyperbole is no virtue and being extra strict is not a statement of personal  piety, or propriety.

Open/Modern Orthodoxy’s rabbis  formulate an alternative Narrative of Jewish life. But their benchmark is Jewish law, not Western secularity. Respect for human dignity [kavod ha-beriyyot], good feelings [nahat ru’ah], social cohesion [darkei shalom],  and doing what is right and good [ve-‘asita ha-yashar ve-ha-tov], are legal factors when considering how Halakhah has to be  applied when when confronting the contemporary Jewish reality.  Modern/Open Orthodoxy looks into the sacred book to see what God said; Haredi Orthodoxy looks over its shoulder for social human approval. Each Orthodoxy challenges its competitor; may the zealousness of scribes increase wisdom [bBava Batra 21a].

The Modern Orthodox Manifesto maintains that:

1. Orthodox Judaism is grounded in the doctrine that God’s will is encoded in the Torah sacred library,  idiomatically rendered “Torah from Heaven.”
2. This doctrine, “Torah from Heaven,” is Judaism’s legal “Basic Norm,” that affirms that God is the King, Who Commands  that the Torah laws be obeyed.
3. These laws, what H. L. A. Hart calls “Rules of Obligation, in Hebrew, mitsvot, are subject review on the basis of what Hart calls “Rules of Recognition,” rules which determine whether an act, a doctrine, or a  policy is in fact a legitimate rule of the Halakhic order.
4. Since “Modernity” is not stigmatized by Jewish law, which does not explicitly endorse or condemn either the political Right [which stresses law and order and the value of Tradition] or Left [as evidenced by the prophetic call for social justice and King Solomon’s higher taxes which paid for social services].
5. Modernity’s scientific method, widened intellectual openness, and technological advances are welcomed; its sexual libertarianism, the dimming of spiritual insight, and the secularity of the public square, are to be bemoaned.
6. Modern Orthodoxy affirms Zionism, the 19th Century nationalist movement of the Jewish people. Its children spend learning time in Israel more often than  non-Orthodox or Haredi Orthodox children. Since canonical Jewish law does explicitly forbid the return of the people Israel to Zion,
7. Modern Orthodoxy is neither politically Right or Left, but based on and biased by Torah values. Modern Orthodoxy boasts both Naftali Bennett, a religiously tolerant Orthodox political hawk, and Elazar Stern, an Orthodox advocate for Land for Peace negotiations with the Palestinian Authority. Both are Zionists and patriots.
8. Modern Orthodoxy adopts the mindset, mood, and method of the secular academy. Jewish law does not forbid secular studies, great rabbis imbibed worldly wisdom, and the spiritual thrill of discovery outweighs the “danger” that non-sacred study undermines religious faith. An academic reading of the Jewish literary and historical tradition provides the student with the tools for discovery; while this empowerment does undermine the Haredi Narrative, this sensibility and mindset enable Orthodox academic Torah learners to read, understand, and suggest alternative options for Orthodoxy.
9. Modern Orthodoxy enhances the status, standing, and respect for Jewish women.