Conservative Judaism: Our Ancestors to Our Descendants

By Elliott N Dorff

Extracts posted with permission of

United Synagogue of America Youth Commission

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CHAPTER III

JEWISH LAW WITHIN THE CONSERVATIVE MOVEMENT

The Torah, the foundation of Judaism, contains 613 commandments (commonly called "Taryag Mitzvot" since) "Taryag," is the Hebrew numerical equivalent of 613). Almost all of them tell you to do something or not to do something; none of them says "believe something" or "don't believe something" with the possible exception of the first of the Ten Commandments. Judaism has certainly always included a number of beliefs which serve as the source and rationale for observing the commandments, and we could probably even describe a mainstream Jewish position on many issues; but it has largely left it to the individual to decide the particular form of belief that he will adopt, as long as he continues to observe the Jewish law. Consequently, we will first examine the way in which Conservative Judaism treats Jewish law; then, in Chapter IV, we will turn our attention to Jewish beliefs.

A. The General Approach of Conservative Judaism to Jewish Law: Tradition and Change

In 1958 Rabbi Mordecai Waxman edited a book entitled Tradition and Change. That title has virtually become the motto of the Conservative Movement. As Rabbi Waxman himself explains it,

The first thing that you must understand about the Conservative approach to Jewish law is that Conservative Judaism requires observance of the laws of classical Judaism, including the dietary laws (kashrut), the Sabbaths and Festivals, daily and Sabbath worship, and the moral norms of the Torah, Prophets, and Sages. It is not the case that you are "Orthodox" if you observe the dietary laws or Shabbat, as many American Jews think: Conservative Judaism requires that too! Following the mitzvot is the "Tradition" part of the motto "Tradition and Change," and it is the reason why the Movement is called "the Conservative Movement"; as we have seen, its founders wanted to conserve Jewish law. That must be the case because Conservative Judaism insists upon studying the tradition historically, and acting in accordance with the mitzvot has always been a key factor in what it means to be a Jew. No non-observant form of Judaism is historically authentic.

On the other hand, the content of Jewish law - that is, the specific ways in which Jewish law is to be observed- has not been the same in all periods of history. On the contrary, there have been many changes in Jewish law, including additions, deletions, and modifications. For example, SimHat Torah is a major festival in the Jewish year that has no roots in the Bible or Talmud: it developed in the Diaspora and is celebrated even in Israel, where the second day of Yom Tov (on which it occurs in the Diaspora) is not observed. Similarly, the kippah has become a universally recognized Jewish symbol only in the last four centuries. On the other hand, some laws have been dropped, sometimes out of necessity (e.g., all of the laws relating to the ancient Temple), sometimes out of choice (e.g., the acceptance of "the law of the land" in place of all Jewish civil and criminal legislation in rabbinic, medieval, and, to an increased extent, in modern times), and sometimes out of disuse (e.g., some of the laws of purity). And finally, Jewish laws have been modified in form. For example, in talmudic times there was a mandatory full year period between engagement and marriage with separate ceremonies for each; since the Middle Ages, both ceremonies are done together under the wedding canopy, separated only by the reading of the ketubah (wedding contract).

That is the general approach of the Conservative Movement to Jewish law. Before you can understand that fully, however, you need to know three things:

(1) You will need to consider the evidence for the assertion that Jewish law has always been a matter of tradition and change. So far you have only been shown a few concrete examples of that process, but you deserve to see much more of the theory and practice of traditional Jewish law if you are to be convinced of that.

(2) You will also need to understand the various approaches to explain the authority of Jewish law. After all, if human beings can change it, how is it divine in ant way? And if it is not divine, why does it have any more authority than any system of law created by human beings - or, for that matter, any authority at all?

(3) Even if you accept the notion that Jewish law should involve tradition and change, how do you put that into practice? Which traditions and which changes? And who decides? What procedures has the Conservative Movement developed for such decisions?

In Sections (C), (D), and (E) of this chapter, we will try to answer those questions in turn, but first you must learn (or review) a few important facts about the history and literature of Jewish law so that you can be familiar with the terms and concepts....

B. The Historical Development of Jewish Law

In order to aid you in keeping track of what happened when, keep your finger on the following page with the Time-Line of Jewish Law as you read this section. Don't worry: the terms will be explained in the pages following, and you will not need to know all of the dates and names. All of this information is being included so that the Time-Line can serve as both a guide and a reference for you.

1) The Formation and Writing of the Oral Law: 444 BCE - 220 CE.

The biblical Book of Nehemiah, Chapters 8-10, records a very important ceremony. The Jewish People had been exiled from Jerusalem to Babylonia after the destruction of the First Temple in 586 BCE. A group of them returned to Israel in 539 BCE. with the permission of the Persians (who had conquered the Babylonians), and by 515 they had rebuilt the Temple. In the middle of the next century Ezra and Nehemiah built a wall around Jerusalem, and they got permission from the Persian king to use the Torah as the law of the Jews there. To make that work, they had to inform the people of the contents of the Torah, and so they read it to all of the people assembled. The princes, Levites, and Kohanim bound themselves to it in writing and the rest of the people swore an oath to abide by it.

Why was that so important? That depends upon your theology. If you accept Orthodox belief, all of the Torah had already been given at Sinai some 800 years earlier, and this was merely a rededication to it. If you study the Bible historically, as the Conservative Movement does, then this is nothing less than the Jewish Philadelphia, the time in which the Torah became the Constitution of the Jewish People. Until that time many of the biblical laws and stories had been known and accepted by the people, but they had not been put together as one document. In fact, the Torah contains many materials from widely different time periods and places, and that is why some of the laws and stories actually contradict each other.². It was only in Ezra's time that the Torah became "canonized" - that is, that it received its final form and became the authoritative constitution of the Jewish People. In any case, on either interpretation, the Torah had certainly achieved that status by the time of Ezra (if not earlier).

Ezra is credited by the tradition for doing something else that is of major importance for Jewish law. Chapters 4 and 13 of Deuteronomy (the last book of the Torah) forbid adding to the commandments of the Torah or subtracting from them. In other words, the Jewish constitution is different from the American Constitution in one critical point of method in that the Jewish constitution lacks an amendment clause. In fact, it forbids the entire legislative procedure. Chapter 17 of Deuteronomy, however, allows and even requires that a judicial system be established for each generation with a complete authority for that generation:

Moses had established a judiciary long before (cf. Exodus 18), but Ezra reinstituted the judiciary in the Second Temple period (Ezra 7:25-26). It was called the Knesset Hagedolah (the Great Assembly) and, later, by the Greek equivalent, "Sanhedrin."

According to tradition, there were 71 judges in the Sanhedrin. When one retired or died, the remaining members would elect a new member from among those who had passed the equivalent of the Bar Examination in those days (called "semichah"), thus demonstrating that they were learned in the law. You could not qualify by being elected by the people, or by having land or money, or through inheritance. You needed to be educated in Jewish law and certified as such. From Ezra's time on, then, Judaism increasingly became an aristocracy of the learned but an aristocracy which even a humble shepherd like Rabbi Akiba could join if he put his mind to it.

The Sanhedrin passed down its decisions from generation to generation in oral form. That may seem strange to you because the American system of law depends a great deal upon written materials. If you lived in England, though, that would not seem strange to you at all because there there is a long tradition of oral decisions, called "the common law." In fact, after the constitutional revolution in England, the House of Lords, which functions as the Supreme Court, voted in 1698 to ban and punish publication of their decisions. No more written reports of the House of Lords cases appeared until 1784.

Why the oral forms? There are several important reasons recorded in rabbinic literature:

1) God specifically gave some laws orally, so how can we dare to to change their form? (Temurah 14b, Gittin 60b).

2) God was afraid that if the laws were written, the Gentiles would discover them and either steal them for themselves, thus weakening the uniqueness and identity of the Jewish People, or else misinterpret them and use them to undermine rabbinic authority (TanHuma Buber, Ki Tissa, 58h; Numbers Rabbah, Naso, 14: 10).

3) It is simply impossible to write down all of the laws that were part of the oral tradition (Numbers Rabbah, Naso, 14:4).

4) Many of the laws are demanding and consequently seem strange. There is a much better chance of explaining the laws and encouraging people to observe them if they are taught in the context of an intimate, teacher-student relationship rather than in a cold, difficult scroll (Gittin 60a-60b).

5) Only if the Oral Law remained oral could Jewish law retain sufficient flexibility to be able to adapt to new situations (Hullin 6b-7a). This is especially important in view of the Torah's prohibition against adding to it legislatively (Deuteronomy 4: 2 and 13: 1), as we discussed earlier.

As a result, the decisions of the Sanhedrin were handed down orally from the time of Ezra on. You are probably wondering how they could ever have survived in that form. After all, human memory is short and inaccurate, and so how was it that the decisions did not just get forgotten or hopelessly confused? The answer is an ingenious system that the Rabbis invented for preserving the decisions. Recognizing that some people are better at memorizing things and some people are better at analyzing them, they chose a group of people skilled at memorization to be members of the guild of memorizers, called' 'Tanna'im," or "repeaters." When the Sanhedrin had reached a decision, the President of the Sanhedrin would teach it to the head of the Tanna'im, who, in turn, would teach it to the second-in-command, and so on, until the entire group knew it. It was their job, then, to repeat it constantly (hence their name) and to supply it when requested by the Sanhedrin in the course of its discussions of other issues. They were, in other words, a sort of human memory bank.

That system worked well until the second century CE. The Second Temple had fallen in 70 CE. After that time, there were a number of political and religious restrictions imposed upon Jews, culminating in the Hadrianic persecutions and the Bar Kochba Revolt in the 120's and 130's CE. Consequently, despite all of the considerations that led them to hand down the tradition orally and leave it in a loose form, they decided, reluctantly, to organize it in a fixed form so that it would not get lost. Rabbi Akiba, Rabbi Meir, and Rabbi Yose each compiled a collection of those decisions, but the edition that gained almost immediate authority was "The Mishnah" by (or in the name of) Rabbi Judah, the President of the Sanhedrin, probably because he held that position.

Definition: the MISHNAH is the collection by Rabbi Judah HaNasi (the President) of the decisions of the Sages from roughly 444 BCE. to 220 CE.

Another collection which gained some popularity and authority was the Tosefta (literally, "the addition"), which is another edition of the decisions of the Sages in that time period. In addition, some of the decisions which do not appear in either of these two collections are mentioned in the discussions of the Mishnah that took place in the centuries following the compilation of the Mishnah. Those decisions are called "Baraitot" (literally, "the outside ones," because they are outside of the Mishnah), and they are recorded in the Gemara, which is the record of the later discussions about the Mishnah.

The Mishnah is organized according to subject matter, divided into six S'darim ("Orders"; singular, "Seder" - just like the name for the meal following a set order on Passover). The six S'darim are, in turn, divided into Massechtot ("tractates" or "books"; singular, "Massechet"). There are 63 Massechtot in the Mishnah, each on a specific subject- although other topics are sometimes included. A list of the S'darim and Massechtot, together with a brief description of the content of each appears in Appendix V, so that you can get an idea of the scope of Jewish law and can get used to the names of the books.

There is another type of literature that comes from this time period (444 BCE-220 CE.). It is Midrash Halachah, which is the interpretation (=" Midrash") of the legal sections (="Halachah") of the Torah. Since there are very few laws in Genesis, there is only Midrash Halachah on the last four books of the Torah, collected in the three compilations listed in (B) on the Time-Line. Each book is arranged according to the order of the Bible, so that the comment on Exodus 21: 11, for example, is followed immediately by the comment on Exodus 21: 12, even though the two verses speak about totally different matters. The laws of the Bible are not organized by topic; in fact, the laws on any given subject may appear in several places in the Bible. Since the Midrash Halachah is a line-by-line interpretation of the legal sections of the Bible, it is not arranged by topic either, and that makes it rather cumbersome for a judge to use. Moreover, the Midrash Halachah often records several different possible interpretations of a verse without coming to a decision as to which one of them is the law. It should not be surprising, then, that the Mishnah, which is arranged by topic and which records decisions, gained almost immediate authority since it was that book which judges could most easily use in making their decisions when a case came to court. (Moreover, as we mentioned before, it carried the name and authority of Rabbi Judah, the President of the Sanhedrin.) On the other hand, the Mishnah rarely supplies the reasons for its decisions, and consequently the Midrash Halachah is often used by later rabbis who need to know the rationale behind a law in order to apply it to a new or difficult case - just as American judges deciding difficult cases will use the Congressional Record in addition to the United States Code in order to determine the intent of Congress in passing legislation, and will use the written opinions of previous judges in order to know how to apply their rulings. As a result, both the decisions themselves (A on the Time-line) and the reasoning that led to the decisions (B on the Time-Line) were preserved, but the Mishnah and Tosefta have greater authority than the Baraitot or Midr'shai Halachah in the sense that they were more commonly used in court.

2) The Period of the Amora'im and the Gemara.. 220-500 CE.

In the next several centuries, leadership of the Jewish community increasingly passed to the Babylonian Jewish community. A large group of Jews, had been living there ever since the destruction of the First Temple (remember that only a small percentage of that group had returned to Israel with Ezra). Between 200 and 500 CE., that community lived rather securely under Persian rule. Great law schools were developed there in which the Mishnah was discussed and applied to new circumstances. Those discussions were kept in oral form for the same reasons that we considered earlier. Once again, political and economic conditions forced the discussions to be organized at the end of this period. This time it was the increasing pressure on the Jews by radical Zoroastrian rulers in Persia that endangered the chain of tradition and convinced the Rabbis that their discussions must be organized and edited if they were not to be lost. The record of those discussions is called the" Gemara," from the Aramaic word which means "'to learn."

In Israel the Jews that remained lived under Roman rule and were not allowed to teach or practice their religion during some parts of this period. They did succeed, however, in establishing one academy in Tiberias, which was far from the centers of Roman power in Palestine. The rabbis there often had to meet in hiding, but they did manage to carry on discussions of the Mishnah in which they too applied the law to new cases. As the Roman Empire was beginning to crumble, the law and order that Rome had guaranteed (however oppressive it was) disintegrated, and once again the rabbis felt the need to write a record of their discussions.

a) The GEMARA is the record of the discussions about the Mishnah that took place in Babylonia between 200 and 500 CE and in Israel between 200 and 400 CE. (There are therefore two Gemarot, a Bablylonian Gemara and a Palestinian Gemara.)

b )The TALMUD = The Mishnah + the Gemara.

Since there are two Gemarot, there are two Talmuds, the Babylonian and the Palestinian. The Palestinian Talmud is sometimes called "The Western Talmud" ("Talmud Hamaravi") or, more commonly, "The Jerusalem Talmud" - even though the discussions it records did not take place in Jerusalem.

Because the Babylonian community was closer to the center of Arab power and the trade routes in the next major period of Jewish history, the Babylonian Talmud spread to many more Jewish communities than the Palestinian Talmud did and became more authoritative. Consequently, whenever someone refers simply to "The Talmud," he is referring to the Babylonian Talmud. Since both Gemarot are discussions of the Mishnah, the order and divisions of the Talmud are the same as the order and divisions of the Mishnah (see list in Appendix V). However, a few massechtot consist only of Mishnah without the explanatory Gemara.³.

There is one other type of rabbinic literature that was produced in this time period (although most of it was not compiled until later). It is the Midrash Aggadah, the interpretation (="Midrash") of the non-legal sections of the Bible (="Aggadah"). Since there is much more Midrash Aggadah than Midrash Halachah, the Midrash Aggadah is often simply called "The Midrash." The purpose of the rabbinic comments was to stimulate the intellect and enhance commitment, not to decide legal issues. In rabbinic terminology, the Aggadah was intended "to draw the heart of a person."⁴.

Consequently, there was no need to establish a uniformity of viewpoint within the Midrash Aggadah; on the contrary, in view of its purpose, that would have been counterproductive since different things stimulate and motivate each one of us. The Midrash Aggadah therefore contains a potpourri of views on a number of subjects. That makes it interesting and fun, but it sometimes also makes it difficult to determine whether there was any consensus on a given issue.⁵. Furthermore, since a Jew did not have to know the material in the Midrash Aggadah in order to know what was expected of him as a Jew, the Midrash Aggadah was not committed to writing until the Middle Ages, although much of the material does date from talmudic times. There are a number of books in the Midrash Aggadah, but perhaps the most famous are in the group known as "Midrash Rabbah" (literally, "the large Midrash"), which is a line-by-line commentary on the Five Books of Moses and the Five Scrolls (Song of Songs, Ruth, Lamentations, Ecclesiastes, and Esther), all of which are read in the synagogue at some point during the year and therefore especially subject to comment. We will use the Midrash Aggadah in this chapter to see the way in which the Rabbis thought about their legal authority and activity and, in the next chapter, to examine their views on God, man, and other philosophical issues.

References to biblical books traditionally are cited by book, chapter and verse (e.g., Ex. 12:2). References to the major collection of Midrash Aggadah, known as Midrash Rabbah, can easily be confused with biblical references, because they also are to book, chapter and verse. The letter R is added indicating that it is a reference to the Midrash Rabbah (e.g., Ex. R. 28: 6). References to the Mishnah are by tractate, chapter and law (e.g., BavaKamma 4:2). References to the Babylonian Talmud follow the same tractate scheme, but can be distinguished from the Mishnah because folio pages bearing the letters a or b are used in lieu of chapter and law (e.g., Bava Kamma 83b). Fortunately, the page numbering of the Bamberg edition of the Babylonian Talmud, the first complete printing of the Talmud (1520-23), has been universally accepted, and so sections are always cited according to that numbering. Sections of the Palestinian Talmud are either cited by chapter and law (e.g., Peah 4:1), indicating that the passage occurs in the discussion of that Mishnah in the Palestinian Gemara, or they are cited by the page number and column in the common, one-volume edition of the Palestinian Talmud (e.g., Peah 17d). Since the Babylonian Talmud is the more authoritative one, its contents are usually cited by tractate and page exclusively; citations from the Palestinian Talmud are usually preceded hy "P.T" (Palestinian Talmud) or "TJ." (Talmud Jerushalmi).

3) The Periods of the Sabora'im and Geonim: 500-1050 CE.

The period between 500 and 650 during the waning years of Persian rule, is the period of the Sahora'im, who standardized the text of the Talmud arid expanded some sections of it in order to explain them.

Mohammed, who preached in the early 600's, died in 632. He founded a new religion known as "Islam," meaning "submission," because its major teaching is that everyone must submit to Allah (God). Since Mohammed did not require that the submission he willing, those who followed him were quick to use military means to gain the submission of the people of the world to the will of God as they saw it. By 711 they had conquered almost all of the known world, from India to Spain. At first they were very zealous in trying to get everyone to convert to Islam, but they soon found that they did not have the manpower to do that. They were simply spread too thin. As a result, they let certain communities rule themselves (specifically, the Jews, Christians, and Zoroastrians) as long as they paid taxes to the caliph, and then the Moslems used their limited manpower to defend their realm and enforce their religious demands on other groups within it.

This policy gave the Jewish community a great deal of internal freedom. They took part in government, commerce, and the professions and practiced Judaism with few restrictions - at least in most times and places during this period. There was an official liaison of the Jewish community to the government called a "Resh Galuta" ("Head of the Diaspora"), but the real power in Jewish law rested with the Geonim. They were heads of the two major law schools in Babylonia, one in Sura and one in Pumhedita. When a Jew had a question in Jewish law, he would ask the most learned man of his community. If he did not know how to answer, he would write the question to one of the Geonim, who would write a response. In that way the responsa literature (singular, "responsum") developed. In Hebrew it is called she'elot u 'teshuvot, "questions and answers."

4) The Commentators, Posekim, Rishonim, and Synods: 1000 - 1550 CE.

Due to a drought in the Middle East and a decentralization and shifting of Arab power to the West, Jews moved to the western part of the Moslem empire in North Africa, Egypt, and Spain in the tenth and eleventh centuries. Simultaneously small numbers of Jews were being attracted to Western Europe by favorable commercial and communal policies offered to them by the Christian kings there. The political instability of Spain during the eleventh century and the persecutions which the Jews suffered at the hands of fanatic Moslem rulers of the twelfth century impelled more Jews to live under Christian rule in France and, later, in Germany. The majority still lived under the Moslems during this time period, but a significant number found themselves under Christian domain.

Moslem society was a culturally pluralistic and open one, in which the most wide-ranging philosophic questions were raised. Jews took part in these discussions along with everyone else. The time that they spent in studying secular subjects inevitably lessened the time that they had to learn about Judaism. Moreover, the discussions themselves cast doubt on fundamental Jewish beliefs and practices. In addition to the ignorance and confusion that Jews felt in the Moslem world, persecutions against Jews became an increasingly common phenomenon in both the Moslem and Christian countries in which Jews lived, especially during the Crusades (the first one was in 1096) and the expulsions from the countries of Western Europe from the late twelfth century through the sixteenth century.

Under these circumstances two types of legal literature were necessary. First of all, since Jews were scattered, they could no longer learn the traditional interpretations of the Bible and Talmud orally. Consequently, commentators like Rashi wrote commentaries on those hooks so that they could he studied by Jews everywhere.

But most Jews did not have the time or ability to study, and so there was also a need for codes which could tell a Jew in a simple, organized way what was expected of him as a Jew. The Talmud, after all, is a running discussion, often with no final conclusion, and, moreover, a number of decisions had been made during the Gaonic period. Consequently, people began to write codes. One of the most famous is Maimonides' code, entitled the Mishneh Torah ("second to the Torah" or "the instruction of the Torah"). As he explains in the Introduction, he wanted to create a code such that a Jew could read the Torah and then read his code, and through reading those two books would know what Jewish law requires. All Jewish learning that he could do after that would be "frosting on the cake," as it were. The Hebrew term for such codifiers is "Posekim" (singular, "posek"). Sometimes the commentators and codifiers of this period are also called "Rishonim," and sometimes that term is reserved for those who wrote commentaries and codes after 1250 CE. or so. In any case, the term' 'Rishonim" ("first ones") is used for the commentators and codifiers who wrote before the ShulHan Aruch was produced in 1550 (hence the name), while AHaronim ("the last ones") is used for those who wrote after the ShulHan Aruch.

The ShulHan Aruch is a code written by Joseph Karo. Its name means "a set table"; through it Karo wanted essentially to spoonfeed Jewish law to the Jewish masses, making it simple and clear. In point of fact, Maimonides' Mishneh Torah is better organized and clearer than the ShulHan Aruch is, but the ShulHan Aruch enjoys greater authority. The reason is that Karo was a Sephardic Jew (i.e., from the Mediterranean basin). After he wrote his code, a rabbi by the name of Moses Isserles wrote comments to each section where the customs of the Ashkenazic community (i.e., the Jews living in Eastern Europe) differed from those of the Sephardim. As a result, the ShulHan Aruch together with the notes by Isserles reflected Jewish law as it was practiced in all of the then-known Jewish world (the communities in China, India, and Yemen excluded). That was the last code of Jewish law for which that claim can be made. Consequently it is used widely even today.

One other important aspect of this period is the synods or councils that took place and the takkanot (revisions; literally, "fixings" of the law) that they produced. To solve the numerous problems that arose due to the persecutions of the Crusades, the ruthless taxation of the feudal lords, and the general anarchy that prevailed, the French and- German Jews of the tenth to the fourteenth centuries formed synods where representatives of the various communities gathered, usually at the call of one of the great leaders of the people and often in conjunction with one of the large commercial fairs. (We must remember that the rabbis and laymen who constituted the membership of the synods were usually not salaried officials but rather businessmen and workers of sufficient learning to be the leaders of their respective communities, and hence a trade gathering was the most convenient opportunity for the discussion of inter-communal problems.) These synods often acted as an appellate court for members of a community who could not effect redress from their local officials. They also functioned in legislative roles, laying down numerous takkanot (singular, "takkanah"), or revisions, of the law. They often used the name of the most prominent member of the group in ascribing or identifying the takkanot. To give you an idea of exactly how far-reaching these revisions were, here is a list of Takkanot of Rabbenu Gershom (c. 963-1028) taken from Louis Finkelstein, Jewish Self-Government in the Middle Ages (New York: The Jewish Theological Seminary of America, 1924, 1964), a book which presents many of the original sources on this topic :

1) Ordinances Regarding Marriage Law

a) Takkanah Against Plural Marriage

Although polygamy had not been common among Jews for centuries, especially after Rabbi Ammi in the third century laid down the rule that no one may marry a second wife against the will of his first wife (Ketubot 65a), nevertheless there must have been some specific instances of polygamy (perhaps among the wealthier classes) that prompted this ordinance. It was officially binding only on the French and German communities represented at the synod, but it achieved such wide respect that Spanish rabbis often felt compelled to enforce it on German Jews who came within their jurisdiction, and the writer of the Book of the Pious, living in Germany in the thirteenth century, demands the same respect for biblical and rabbinic laws as is paid to this ordinance of R. Gershom! (Res. R. Hayyim Or Zarua, 182).

b) Takkanah Against Compulsory Divorce

Both biblical and rabbinic law enable a man to divorce his wife virtually at will. The Rabbis instituted monetary obligations that the husband must pay his wife if he decides to divorce her, but that apparently was not enough of a deterrent to divorce. R. Gershom therefore ruled that no man may divorce his wife against her will. For the Rhine communities, he also ordained (or the synodal representatives of those communities accepted his suggestion) that no divorce should be executed without the consent of the community's representatives. Later generations strengthened this takkanah by ordaining that any writ of divorce delivered in violation of it was null and void in prohibiting the husband from remarrying, although the fact that such a writ fulfilled talmudic requirements made it valid for all other purposes. The one exception to this takkanah was if the woman had accepted baptism or had voluntarily abandoned him, in which cases the husband could issue a writ of divorce and remarry without her consent.

2) Moral Ordinances

a) Against Insulting Penitent Converts

The number of forced conversions in R. Gershom's day must have been considerable in view of the takkanah he made prohibiting anyone to insult converted Jews after their return to Judaism.

b) Protecting the Privacy a/Letters

R. Gershom forbade a person to read someone else's letters without permission. This ordinance was of special importance in days when mail delivery by government agencies was practically unknown in Europe and private messengers were often the source of fraud and blackmail.

3) Civil Ordinances

a) The jurisdiction of the local courts of the communities extends not merely to the members of the community, but to any Jew who may happen to come within their city.

b) The right of interrupting the prayers because a defendant refuses to come to Court, or because the Court refuses to summon a defendant is guaranteed, but it is limited to cases where the plaintiff has complained three times in public at the end of the service. If he finds no response from the community, he may prevent them from holding public worship until his wrongs are righted.

c) If the synagogue building is owned by a member of the community, he may not prevent any other member from attending public services except by closing it to everyone.

d) Anyone losing an object may publicly declare a Herem (ban) in the synagogue, compelling any person having knowledge of the finder to inform against him.

e) No Jew may rent a house of a Gentile who had unjustly evicted a former Jewish tenant. (This takkanah suggests the existence of very cramped Jewish quarters even in these early centuries since it is designed to present a united front against ruthless landlords.)

f) The minority in any community must accept the ordinances of the majority and abide by them. These synods probably based their authority on the acceptance of their respective communities. The members of the communities took a vow that they and their descendants would accept the synod's decisions. In that way, Jewish law was changed considerably.

5) The Ahronim 1550 -Present

The three types of legal literature that we have seen - responsa, codes, and revisions - continued on into the last four centuries, when Jews lived primarily in Eastern Europe, Moslem lands, and, in this century, in North America. In the nineteenth century the Neo-Orthodox and Reform Movements developed, and in the twentieth century Conservative Judaism became a movement with the inauguration of the United Synagogue of America, as we have seen. Rabbis in each of those movements created legal responses to the new realities of the modem world, according to their separate philosophies. We have explained the interpretation of Jewish history that each Movement uses as the basis for its approach to Jewish law. In the next section we shall examine the sources upon which the Conservative Movement bases its interpretation of Jewish history and its claim to authenticity as the proper form of Judaism, both historically and pragmatically.⁶.

Where does Jewish law come from? Does it allow any changes?

If you were to answer these questions on the basis of what the Bible says, you would probably say that God gave the law, and no changes are allowed. That certainly is the explicit meaning of the two passages in Deuteronomy (4:2 and 13:1) which we cited above, in which Jews are told "not to add anything to what I command you or take anything away from it, but keep the commandments of the Lord your God which I enjoin upon you." It is also the general impression that the Bible gives in that the laws are given at Sinai in an overpowering event, with thunder, lightening, and other features to make one think, "Hands off! This is the Law, and don't you dare tamper with it!" The understanding of the origins and functioning of Jewish law that most Jews have is usually based on these biblical stories alone.

Judaism, however, is NOT identical with the religion of the Bible. Judaism is based upon the way in which the Rabbis of the Talmud and Midrash interpreted the Bible (in contrast to nonreligious, Christian, Moslem, and other Jewish interpretations of it). Consequently, it is crucial to see how the Rabbis would have answered the questions with which this section began.

When we consult the rabbinic sources, we discover some important and surprising things. First of all, the Bible claims that God spoke to Moses and the Prophets directly, and it leaves open the possibility of future prophets. The Rabbis, however, claimed that revelation (that is, an act in which God makes His will known) ceased shortly after the destruction of the First Temple:

Furthermore, the Rabbis introduced distinctions in the authority of the prophets who had prophesied before the destruction of the First Temple, claiming that Moses' prophesies were most authoritative because his vision was clearest and most inclusive:

In place of prophecy, they greatly expanded the judicial powers that the Torah had created in Chapter 17 of Deuteronomy, and they claimed that their interpretations were the new and only way in which God spoke to mankind:

They even denied authority to revelations claimed by members of their own sect, as in this remarkable story:

What did he mean by this?

If that does not make it clear that the rabbinic methodology is significantly different from the biblical one, nothing will! The Rabbis clearly and consciously shifted the operation of the law from the Prophets to the judges, from revelation to interpretation.

Why did they do that? Undoubtedly part of the reason has to do with problems in using revelation.

(1) The Bible itself struggles to create a way of distinguishing true prophets from false ones (Deuteronomy 13: 2-6; 18: 9-22), but that was a continuing problem for the Rabbis- especially in the light of the many people roaming the hills of Judea claiming to be prophets in their time (Jesus included). Thus they said:

(Note: This is especially forceful because Deuteronomy 13, which is quoted here, says that even if the prophet gives you a sign or portent and it comes true, nevertheless you should not believe in the prophet if he tells you to follow another god or disobey God's laws "for the Lord your God is testing you" (Deut. 13: 4). In contrast compare the following: )

On the other hand, this was not to be taken too far:

(2) Besides the problem of distinguishing between true prophets and false ones, there is yet another problem with prophecy. If you accept it, then the law is always subject to changes or complete cancellation at a moment's notice because God could conceivably announce completely new rules through a prophet - or at least a prophet could claim that He had. In other words, accepting prophecy spells legal chaos. Consequently the Rabbis in the above story (Source #7) were well advised to reject divine intrusions into the lawmaking process and claim that God had had His say once and for all. So part of the reason for substituting interpretation for prophecy is because of the problems inherent in using prophecy.

(3) Another part of the reason is because the Rabbis were convinced that the Torah needs interpretation, that even the accepted revelation in the Torah could not stand alone. There are sects of Christians who are "fundamentalists." They try to make their decisions in life solely on the basis of the Bible. There also have been sects of Jews who have tried that, including the Karaites (who were strongest in the ninth and tenth centuries but who still exist today) and, to a lesser degree, the Sadducees. (Even though those sects tried to rely solely on the Bible, they themselves found it necessary to develop their own tradition of interpretation.) The Rabbis, however, claimed that that was impossible since the Torah is open to many different interpretations:

(4) Moreover, interpretation is necessary not only because the Torah on its own is ambiguous; it is also necessary if Jewish law is to retain sufficient flexibility:

In fact, the Rabbis considered new interpretations and expansions of the law not only necessary, but also desirable:

(5) Finally, human interpretation and application of the law is necessary because God Himself required it in Chapter 17 of Deuteronomy! Not to interpret the law anew in each generation would be to disobey God's Law!

That is all well and good, but with all of these interpretations, how is there to he any coherence in the law - any sense that, despite the many different understandings and applications of the law, this is still one, reasonably consistent, system? And how are the various interpretations of the word of God in any sense such that they continue to have divine authority?

Those are hard questions, but the Rabbis faced them squarely. They answered the question of coherence in three ways. First of all, the tradition would remain coherent despite the many variations of opinion because they all derive from God:

In other words, however much the interpretations of various rabbis may vary, they are all interpretations of one document, the Torah, and they will all be cohesive because God, the Author of that document, can be presumed to be consistent. In somewhat the same way, American law is consistent because it all derives from the framework and powers that were established in the Constitution - however much it has changed since then. Second, the tradition will be cohesive because there is a sense of continuity within the tradition itself. There is a famous story in the Talmud which illustrates that. When Moses visits the academy of Rabbi Akiba, who lived some 1400 years after him, he does not even understand what Rabbi Akiba is saying (let alone agree with it). Nevertheless Moses is comforted when Rabbi Akiba cites one of the new laws in Moses' name because that indicates that there is a sense of continuity in the tradition, however much it has changed in form:

(Incidentally, this story also clearly indicates that the Rabbis realized that there had been changes in the law.) This sense of continuity is dependent, of course, on having people who have studied it sufficiently to carry on its spirit and substance in new settings, and the Rabbis were keenly aware of what happens to the law's coherence when those to whom it is entrusted do not know it thoroughly:

But they also were convinced that the continuity and consistency that they sensed was real, that the law in its present form, however different from the Torah, is the direct extension of it:

(Again, the comparison to American law is instructive. Judges can make really revolutionary decisions, nut they correctly feel the need to tie those decisions to already existing laws and precedents in order to preserve a sense of continuity within the American legal system. The Supreme Court's decision in 1954 requiring integration of the public schools is a good example. Segregated schools clearly continued to exist in the United States after the First and Fourteenth Amendments to the Constitution became law, and the framers of those Amendments certainly did not intend to outlaw such schools in passing them. Moreover, the Supreme Court itself specifically upheld the constitutionality of segregated facilities in 1896. Nevertheless, in 1954 the Supreme Court declared segregated schools unconstitutional and based their decision on the First and Fourteenth Amendments in order to preserve a sense of continuity and consistency in the law. Shades of Rabbi Akiba!)

Third, Jewish law would retain its coherence because it includes a way of making decisions. All opinions could be aired in discussion, and, in fact, all are to be considered "the words of the living God," but in the end a decision must be made:

There is a famous instance in the Mishnah in which the authority of the President of the Sanhedrin was asserted forcefully when it was called into question. Until the fourth century CE., there was no fixed Jewish calendar. Instead witnesses would come to the Sanhedrin during the day and testify that they had seen the first sliver of the new moon on the previous night, and the President of the Sanhedrin would then declare that day the first day of the new month. There were some special rules to make sure that the calendar would never be too much out of tune with the movements of the sun and the moon, no matter whether there were witnesses to the new moon or not, but the fixing of the dates of the calendar depended to a large extent on the testimony of witnesses. You can imagine how important this was: after all, if the first day of the Hebrew month Tishre, for example, was declared to be on a Monday, then that day was Rosh Hashanah, no work should be done, special services should be held, and Yom Kippur would be ten days later, on the Tuesday night and Wednesday of the following week. If, on the other hand, the first day of the month were declared to be on Tuesday, then both Rosh Hashanah and Yom Kippur would take place a day later, and all of the special laws of the High Holy Days should be observed then. Now you can understand the story in the following Mishnah and why it is important:

The situation became more complicated when the Sanhedrin ceased to exist and there was no longer central authority in Judaism, but there are still ways in which decisions are made in Jewish law, thus preserving its continuity. In some places and times, Jewish communities have been sufficiently organized to have a centralized court system for a group of communities. We have seen an example of that in the synods of the Middle Ages. When that is not possible, each community follows the decisions of its local rabbi, its mara d 'atra ("the teacher - or master - of the place") and the court that he often chairs, for each community is commanded to establish a court:

That means, of course, that there are many different decisions being made on any given issue in the various places in which Jews live, but even then there is a general rule to coordinate the decisions and give Jewish law coherence. Maimonides summarizes it well:

Moreover, since Jews have lived under many different conditions in the scattered places in which they have found themselves, it probably is a good thing that the court in each area makes decisions appropriate to its particular setting. Jewish law thereby gains the necessary flexibility to enable it to work in many different times and places. Nevertheless, there is a clear way of making decisions wherever Jews live, and that, together with the sense of continuity and the dependence upon one Torah that we discussed earlier, give Jewish law coherence and a reasonable degree of consistency.

The second question posed above goes to the very root of the authority of Jewish law: with all of the various interpretations of the law and the new applications of it, how is it in any sense divine? After all, the Rabbis explicitly claimed that it is the human judges in each generation that have the authority to make decisions in Jewish law, that God no longer has the right or authority to do that even if He wants to (remember Source #7 above), and so how is Jewish law as the rabbis interpret it God's word any more?

That is the crucial question, and it is important to remember why it arises in the first place. On the one hand, the Rabbis clearly wanted to retain divine authority for Jewish law: there may be many reasons to observe it, but the most important one by far is that it is the will of God. On the other hand, they had to assert the right of the rabbis in each generation to interpret or apply it for the reasons we discussed above: the difficulties of using prophecy as a legal guide; the ambiguity of the Torah, especially in regard to how it is to be applied to new situations; the need to retain flexibility in the law in order to enable it to function under new circumstances; and the commandment of God Himself that judges in each generation take on the responsibility of interpreting the law.

There is no simple way of affirming both the divine authority of the law and the right of human beings to interpret it. The Rabbis, in a style typical of them, claimed two opposite things in order to assert the truth of both of them. On the one hand, they claimed that all later developments in the law were revealed at Sinai:

Consequently, since all of the interpretations, extensions, and revisions of the law by the rabbis of all generations to come were already revealed at Sinai, they carry God's authority. On the other hand, the Rabbis were aware that many of their interpretations and laws were new (cf. Sources #7 and #19 above), and they even held that it is God's desire that the Rabbis create new laws in each generation (cf. Sources #14 and #15 above). Moreover they claimed that these new interpretations were the form in which God revealed His will (cf. Source #6 above). They therefore also said this:

How is it possible that everything was revealed at Sinai and yet new things are revealed each day? Actually, it is not so contradictory as it seems. If you have ever read a good story as a child and then again when you were older, you will know how that can be. You understood the story in one way the first time, but the second time you might have seen completely new levels of  meaning in it. The text was the same, but it said something new to you because you were different. You were older and could relate the story to more areas of life. You also could appreciate more of the themes of the story. Alice in Wonderland, for example, is not just a funny story about a girl who has a crazy dream. It is also a satire on many different types of people and includes even some interesting problems of logic. You certainly did not see it that way when you read it at age seven or eight (or, alas, saw the movie!), but you may be able to understand it that way now. Similar things could be said about the stories in the Bible. If you have considered them only as stories, you have missed a great deal of their meaning. The Bible is at least good literature, and you need to study it again many times as a teenager and an adult to understand it maturely. The reason why people call it a classic is because it says important things about life, but you need to be trained to recognize the various levels of meaning that it has.

On the other hand, while they effectually nullified the death penalty, they created a whole structure of Sabbath laws far beyond those in the Bible such that they themselves said:

Thus the Rabbis of the Talmud and Midrash clearly and consciously changed Jewish law as evidenced both by what they said and what they did, adding a number of laws, dropping some, and changing the form of some.

Two things must be emphasized about this. First of all, they considered their actions authorized by God because they were the ones appointed by the Torah to interpret and apply it in every age. In other words, in the Jewish law, as in the American law, the Constitution establishes some laws and also bodies to interpret and apply those laws. In both systems, the interpretations in later generations may vary widely from the original intention of the constitutional laws - even to the extent of nullifying them - but the new interpretations carry constitutional authority because they are made by the bodies which the Constitution establishes. This is the reason why lawyers cite recent court decisions about the Constitution rather than the Constitution itself, and that is also the reason for the Gaonic rule in Jewish law that halachah k'batrai, ("the law is according to the last, i.e., most recent, authorities"). In both cases, it is the forms (institutions) established by the Constitution which determine its meaning, even to the point of effectively canceling sections of its contents, and it is because the new rulings issue from the duly authorized bodies that they carry constitutional authority.

Secondly, and perhaps more importantly, with all of the changes that the Rabbis instituted, they did not think that "anything goes," that they could play completely fast and loose with the law. On the contrary, for them it was clearly a matter of "tradition and change. " In fact, all of the changes that we have mentioned have meaning only if one accepts the authority of the law in the first place. If that is not the case, then the whole legal system is not a matter of practical concern, and changes in it are irrelevant. The Rabbis dared to make the changes that they did because they took the law seriously. They practiced it, honored it, and were deeply concerned with its continuing authority and viability. It is the Law which defines Jews as Jews; without it there is no point to their separate identity:

Israel's acceptance of the law was the reason why it had a special covenant with God:

Moreover, the law is Israel's gift to God and the world, and through it Israel gains not only worth, but beauty:

Consequently, if you do not observe the Law, say the Rabbis, you might as well not have been created:

In sum, then, the Rabbis of the Talmud and Midrash, who were the framers of Judaism and gave it its distinctive cast, held unequivocally that a Jew must observe the law. They also held, though, that the law was not given once and for all at Sinai but rather must be interpreted and applied anew in each generation. Only if that happens can the law continue to be an important concern of Jews, a program for living. The alternative is to let it petrify into a relic of history. If the law is to retain a reasonable degree of consistency, however, it cannot be left to every individual to decide which laws to change, and how. That must be done together as a community, and in Section (E) of this chapter we will discuss more fully the process by which communal decisions are made in Jewish law. But changes make sense only if you observe the law in the first place. Consequently for the Rabbis it is very much a matter of tradition and change, in which neither element can exist without the other.

But why accept the authority of the law at all? Until now we have assumed that Jews accept the law as binding, and we have discussed how the Jewish tradition defined the content of the law. But why should I observed he law in the first place?

There are a variety of different responses to that important question within the Conservative Movement, and we will turn to them in the next section....