A broadside at the halakhic process

I posted earlier about Professor Joshua Berman’s essay in Mosaic Magazine, “What Is This Thing Called Law?,” about the reduction of flexibility in Jewish law. Mosaic has started (as is its format) to post responses to Berman’s essay, and the first one is from Rabbi Gil Student, entitled “The Art of Halakhah.” Accepting Berman’s common law/statutory law dichotomy, Student argues that the loss of flexibility is a result of both what those adhering to halakhah have actually wanted and the hybrid process by which poskim and dayyanim arrive at their decisions.

I like much of what Student says in response, even though, as I noted in my post on Berman’s essay, I don’t think the common law/statutory law distinction is particularly apt. But I like the response not merely for what it says, but for what I think it lays bare.

What I think we get from Student’s response to Berman (and, for that matter from Berman’s essay, though less directly) is that this is all a fundamentally human process.

I don’t mean to say what rabbinic authorities typically mean to say here. Frequently, we see citations to things like, “elu v’elu divre elohim hayyim,” “these and these are the words of the living God.” Eruvin 13a. Yet in the Talmud, this phrase is introduced by a bat kol–a heavenly voice–which is quickly to point out that “the law is according to the school of Hillel.” And it comes in the context of a series of statements exploring why the halakhah follows one or another side in a dispute, and why one might or might not prosper based upon God favoring the humble. That is, we get an acknowledgment of disagreement and a recognition that everyone is trying to do the same thing–suss out the divine will–but that only one side is right, and rightness” is ultimately a result of divine will.

In a more pluralist setting (e.g., halakhah within the Conservative movement) the analysis sometimes stops without picking a side in a dispute, or with asserting that several positions are acceptable within the Conservative movement. But even then, in the Conservative movement some sense that divine revelation is being worked out sits underneath the process. That sense may be diminished from its likely strength in the more traditional world, but it is nonetheless present (at least according to Emet Ve-Emunah, which appears still to be “the party line”).

This process is part of how we get the notion that the laws of Shabbat observance are divinely mandated, yet at the same time are k’hararim hateluyin b’shaarah, shehen mikra muat vehalakhot merovot, “like mountains that are hanging from a hair, since there is little Scripture but numerous halakhot.” Hagigah 1:8.

And yet, something Student says in his response to Berman’s post is, I think, very telling:

Progress and innovation are important to the vitality of the halakhic community, but proposed changes have to be measured by expert jurists who command respect from their colleagues and the broader community. Deviation requires justification, and justification requires authoritative judges.

That is, the authority for halakhah is fundamentally human. That applies not merely to the individual decisions rendered by poskim. It applies as well to the codes whose heavy hand Berman laments in his original essay.

Thus, I think the answer to Berman’s lament in his original article is simple: acknowledge the fundamentally human aspects of halakhah. Even if you don’t want to acknowledge the fundamentally human aspects of the written Torah–and I don’t think Berman would, nor would Student–recognize that the flexibility is there whether the source of the law is a code, a responsum, or something else.

And then recognize that the insistence upon certain kinds of authority and the implied force of law behind those authorities means that all the other Jews aren’t signing onto the program because they see it for what it is–fundamentally human.

There’s an answer to the rigidity of halakhah. Drop the facade of divine inspiration in the oral Torah. See where it takes you. Here’s where it took me.