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Reconstructing Halakha

Many Reconstructionists and other liberal Jews seem afraid of the term halakha, reacting as if it invokes some dark presence coming out of the past to crush them with its oppressive weight. They would be surprised to learn that Mordecai Kaplan wrote that “Jewish life [is] meaningless without Jewish law.” He made this statement not as the young rabbi of an Orthodox congregation, but relatively late in his career, in one of his most thorough and systematic examinations of Jewish life in America, The Future of the American Jew (1948).

Years earlier, one of the five planks of the platform of the proto- Reconstructionist organization that Kaplan helped to found in 1920, the Society for the Jewish Renascence, stated as follows: “We accept the halakha, which is rooted in the Talmud, as the norm of Jewish life, availing ourselves, at the same time, of the method implicit therein to interpret and develop the body of Jewish Law in accordance with the actual conditions and spiritual needs of modern life.”

A close reading of this plank reveals that what at first appears to be a remarkably conservative statement is, in fact, remarkably subversive.

First, Kaplan diverges from the Orthodox approach by identifying the Talmud, rather than the Shulhan Arukh or the other medieval law codes, as the foundational halakhic text. While the law codes generally consist of dry, impersonal recitations of legal rules, the halakhic portions of the Talmud generally consist of freewheeling discussions of legal issues, with particular views generally attributed to particular rabbis and with dissenting opinions often respectfully set forth.

Second, Kaplan claims for “ourselves” — not just for traditionally recognized halakhic authorities — the right “to interpret and develop” Jewish law. He goes on to recognize the changed “spiritual needs” of today’s Jews, in addition to the changed “actual conditions” of today’s Jewish communities, as a valid basis on which to make changes in Jewish law.

Unlike Kaplan, most Reconstructionists, and liberal Jews in general, have left halakha to the Orthodox and unintentionally promoted the perception that the Orthodox are the only “authentic” Jews. I, for one, believe that we have collaborated in creating this impression, for I am willing to stand with Kaplan in asserting that any form of Judaism that does not recognize halakha as an essential component of the fabric of Jewish life is inauthentic. The value of individual autonomy has been elevated by liberal Jews to the point where it conflicts with the essentially communitarian nature of Judaism.  

At the same time, I recognize that the traditional halakhic system is incapable of producing a code of conduct that is meaningful for, and acceptable to, the vast majority of contemporary Jews.

Jewish law has undergone tremendous evolution over the past 2,000 years or so and has shown remarkable variability as it has been adapted to the local conditions and needs of Jewish communities around the world. As Ira Eisenstein z”l and others have pointed out, Jews of all denominations often err by saying that the “halakha says thus-and-so” when we should instead say that “particular halakhic authorities said thus-and-so at particular times and in particular places.” The real debate among Jews today should not be about whether Jewish law can change, but about who has the authority to make changes in Jewish law and in what manner.

On a similar note, there has been a pervasive misunderstanding by Reconstructionists of their own aphorism, “The past has a vote but not a veto.” Too many read this as, “The halakha has a vote but not a veto,” making it a sort of declaration of independence from what is perceived to be an ossified legal system. A better reading might be, “Past understandings of halakha have a vote but not a veto in our formulations of contemporary halakha.”

We need to move away from the typical liberal Jewish attitude to halakha — “Here is the collection of fixed rules that we have received from traditional Judaism. Now we will decide (individually or, in some sense, communally) which of these rules to obey and which to disregard.” Our approach should instead be something like: “Drawing on the wisdom that we have received from centuries of Jewish legal thinking, we, as a community, must construct for ourselves a set of rules that are at once rooted in our tradition and consonant with the actual conditions and spiritual needs of modern life. We must then commit ourselves to obeying those rules.”

Many liberal Jews believe we are living in a “post-halakhic” age. By this they mean that Jewish communities outside of Israel no longer possess the juridical sovereignty that enabled them in the past to impose sanctions for violations of legal rules — and that Jewish law, without such “enforcement,” cannot function in any meaningful sense. The validity of this is obviously rejected by our Orthodox brothers and sisters, as well as by the leaders (at least) of the Conservative movement, for they sincerely believe that they are bound by halakha. The flaw of the post-halakhic thesis is that it rests on an unnecessarily strong reading of the words “law” and “sanction,” as I will try to illustrate with some real-life examples.

For the past seven years, I have been a member of a transdenominational Talmud study group, in which the primary teacher is an Orthodox rabbi and the majority of the other participants are Reconstructionists. The group meets at lunchtime, and many of us eat while we study. Early on, the organizers of the group announced the rule that our foods need not be kosher-certified but could not include meat or non-kosher seafood. No member expressed a dissenting opinion, and no one has brought a “forbidden” food for lunch.

What would happen if someone did? Someone else would remind that person of our eating policy, and most likely that person would immediately dispose of the offending food. In the unlikely event that the person for some reason insisted on eating the food, he or she would be asked to leave the room. Repeated violations would result in the person’s being told that he or she could no longer participate in the study group. In other words, sanctions can apply to violations of the “dietary law” of this small community. Failure to follow our rule subjects the offender, to shaming and the possibility of expulsion.

These are precisely the two sanctions that have historically been the most important and effective in securing obedience to halakha. What primarily differentiates the operation of these sanctions within my Talmud study group and within, say, the 18th century Kehillah (community) of Vilna are the sizes of the communities involved and the consequences of the sanctions. Expulsion from the Vilna Kehillah might well have resulted not just in social stigmatization, but in the loss of one’s ability to make a living, at least in the absence of the extreme step of conversion to Christianity. That my study group is a small, voluntary association and that the consequences of expulsion are not life-threatening do not alter the fact that shaming and expulsion are meaningful sanctions for our members.

Moving to the level of a larger community, I have heard members of my synagogue say that they are not subject to any binding community obligations (“laws”) that go beyond the rules of the American legal system or the norms of common courtesy. They might deny that the congregation even attempts to impose any rules of “Jewish law” on its members, but they are wrong. For example, our congregation does not permit an interfaith marriage ceremony to take place within its building. Although quite a few of the members probably object to this policy, and some might work to change the policy through a vote of the board of directors or perhaps of the entire membership, I believe that all accept the current policy as a binding restriction on their behavior.

Moving to yet another level, what happens if a member of my congregation whose parent has just died wants to recite Kaddish in the presence of a minyan in his or her home during the full shiva period? A synagogue community is seriously deficient if a mourner has to worry about whether the community will make sure that such minyanim are present. A member who receives a call to do so should regard it in much the way that he or she would regard a summons for jury duty — as a civic obligation that, in the absence of compelling extenuating circumstances, must be fulfilled and, in that sense, is not voluntary.

We are too squeamish about using the word “must” rather than the word “should” when we discuss these and similar issues within our communities. “Must” is appropriate, not because we believe that the obligation is literally ordained by God, but because it has its source in a democratically determined social contract, informed by our people’s evolving understanding of how best to make Godliness manifest in the world. That should have the force of law for the community.

Some used to say that the defining slogan of Reconstructionism was “Act kosher, think treyf.” Less flippantly, some Reconstructionists used to say that they espoused “maximalist liberal Judaism” and that Reconstructionism is the only real “liberal alternative to Orthodoxy.” By ceding halakha to Orthodoxy, we leave these catch-phrases with little real content.

The process of reconstructing halakha could begin with a democratically created responsa commission or similar body of the Reconstructionist movement, which could, on a case-by-case basis in response to questions from rabbis or lay members, issue pronouncements that would make up, over time, our understanding of halakha. When the commission had produced a significant body of written decisions, all affiliated Reconstructionist congregations and havurot might be asked formally to adopt the commission’s body of work. Acceptance of this evolving halakha by a community might then become one of the requirements for affiliation with the Jewish Reconstructionist Federation

Such a reconstructed halakha might well emphasize the traditional distinction between those rules of Jewish law that pertain to obligations that are beyn adam la’havero (between or among people) and those rules that pertain to obligations that are beyn adam la’Makom (between a person and God). The primary focus of this halakhic process would presumably be on the former category of rules, as they are the ones that directly affect the functioning of a community. However, within the realm of ritual or ceremonial rules (generally assigned to the latter category), a distinction might well be drawn between those matters that are communal in nature (for example, the recitation of a blessing before eating a communal meal) and those matters that are truly private in nature (for example, the recitation of individual prayers upon waking).

Other traditional halakhic categories or concepts could also play a fruitful role in this process. One important example is the traditional classification of actions along a spectrum that might include: hayav (forbidden actions that subject the transgressor to full sanctions); pattur aval assur (which we could interpret as actions to be avoided but for which there are only minor sanctions); pattur mi’klum (which we could interpret as actions that carry no sanctions, but from which it could nonetheless be beneficial to refrain); to mutar (fully permitted actions).

An individual’s eating of pork at home might be found to be pattur mi’klum, an individual’s eating of pork in a restaurant (a public place) might be found to be pattur aval assur and an individual’s serving pork to fellow congregants at a congregationally-sponsored dinner in his or her home might be found to be hayav. The shirking of one’s obligation to be the tenth person in a shiva minyan would presumably be hayav (result in full liability), as would failing to give tzedakah at some reasonable level. The extent of one’s obligations, if any, to participate in worship services (when the presence of a minyan is not in doubt) is among the much more debatable questions.

Another example of something that could usefully be drawn from the traditional halakhic process is the recognition that changes in Jewish law are not always evolutionary and sometimes need to be discontinuous — for which we have available the traditional tool of the takanah (an authoritative judgment, sometimes abridging existing law). Basically, use of a takanah is appropriate when changes in social reality make a traditional halakhic rule run counter to a fundamental purpose of halakha, such as furthering tikkun olam (repair of the world) or darkhei shalom (promotion of peace).

Takanot appear frequently in the Mishnah. The most famous example is Hillel the Elder’s ordaining that, for a certain category of loans, the obligation of repayment is not canceled by the Sabbatical Year, which in effect overturned the rule stated in Deuteronomy 15:2. Calls for the revival of the takanah have recently been heard in the Conservative movement, and even in some Orthodox quarters.

In formulating Reconstructionist halakha, giving attention even to matters of purely private ritual practice might be desirable, not for the purpose of regulating behavior but for the purpose of providing the individual with a communally-determined set of guidelines with regard to such practice. The operative term here would be “should” or “ought” rather than “must.” As Kaplan wrote in The Future of the American Jew: “Ritual practices are the concern of every one who wants to be a Jew in the fullest sense of the term. However much or little either the observance, or the neglect, of these practices may affect our human relationships, they cannot be ignored. They can serve as a source of immediate good in the life of the individual. In their present state, they are either a nuisance, or an occasion for a sense of guilt.”

A knowledgeable and committed Reconstructionist once told me that he felt guilty about the fact that he rarely puts on tefillin in the morning, an act that apparently has little spiritual value for him. What I believe he was saying is that he wants to be an observant Jew (as he is, by traditional standards, in many areas of practice), and that his failure regularly to put on tefillin is undermining his ability to consider himself an observant Jew.

Like many other non-Orthodox Jews, he is seeking a non-subjective yardstick against which to measure the adequacy of his ritual practice. He is quite familiar with the traditional yardstick, and, unfortunately, the liberal Jewish world has not provided him with any alternative objective measuring device. Creating such an alternative could be one of the goals of the Reconstructionist halakhic process.

A Reconstructionist responsa commission might well determine that the act of putting on tefillin is of little spiritual benefit to most Reconstructionists and that, because the practice (at least when done in private) does nothing to strengthen Jewish community, it should fall into the category of ritual practices that are (of course) permitted but not held out as normative.

Grappling with issues of even purely private ritual conduct in reconstructing halakha also has the advantage of helping to preserve the traditional concept of halakha as a seamless fabric. During the past 2,000 years, only the architects of the Reform movement attempted to draw sharp distinctions between ethical rules and ceremonial or ritual rules — and at least some of the leaders of the Reform movement have in the recent past confessed error in this regard. The problem is that once one takes the position that some of the rules that are part of a coherent legal framework are not worthy of respect, rationalizing disobedience of other rules becomes much easier. When a person has been taught, for example, that ignoring the dietary laws presents no problem, such laws as assisting the communal poor may seem less like obligations and more like ethical suggestions.

Still, care must be taken to avoid confusing ritual practices with the ethical agendas that they serve (for example, saying a blessing before eating and having a renewed commitment to helping to feed the hungry). As Kaplan wrote (in Questions Jews Ask: Reconstructionist Answers): “Rituals can be abused by the tendency to assume that the performance of the symbolic rite is itself a virtuous act, whether it impels one to serve the ethical ideal it symbolizes or not.” But, as Kaplan went on to say, “as with religion in general, so with its ritual aspect, it would be folly to dispense with it because of its possible abuse.”

Finally, in reconstructing halakha, we should be mindful of Kaplan’s admonition (in The Future of the American Jew) that “Jewish law … refrain from interfering with the freedom of economic and social intercourse with the non-Jewish elements of the population.” Kaplan saw that erecting artificial barriers between North American Jewish and non-Jewish communities could ultimately harm Judaism and Jews in three ways: first, by depriving Jews of the economic benefits and social pleasures of full interaction with their non-Jewish neighbors; second, by making the incorporation of the highest ideals of the American civilization into Jewish life more difficult; and third, through a sort of cultural protectionism, weakening the products of Jewish creativity, including a reconstructed halakha, by insulating them from the rigors of competition in an open marketplace of ideas.

In advocating the reconstruction of halakha, I am simply calling on our movement to return to some of its fundamental Kaplanian roots. For Kaplan, as for his ancestors, Judaism was at least as much a matter of the head as of the heart, and one could perform no more important religious service than fully using one’s intellect to ascertain and advance divine purpose in the world. And for Kaplan, as for his ancestors, Jewish life without Jewish law was unthinkable. Kaplan empowered us; may we have the strength to carry on with his work.

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