Review of Innovation in Jewish Law: A Case Study of Chiddush in Havineinu

by Marc Herman

How does Jewish law change?   How does a system that claims divine sanction adapt to new circumstances and justify such adaptations?  This is the subject of Michael J. Broyde’s latest contribution, Innovation in Jewish Law: A Case Study of Chiddush in Havineinu.  Broyde, Professor of Law at Emory University School of Law and member of the Rabbinical Council of America’s beth din, brings his considerable halakhic knowledge and legal prowess to bear on a rather obscure area of Jewish law, the mishnaic abridgment of the Amidah, known as Havineinu.  Any casual observer of contemporary Jewish practice will notice that Havineinu has fallen into disuse; accounting for the abandonment of this shortened-prayer is the task of this monograph.

The bulk of this book, four of the five chapters, reads like an extended synagogue lecture series, which makes it difficult to read as an academically oriented tome. Admirably, sources are cited, translated thoroughly, and organized in clear, accessible charts.  The audience of this book is clearly not the academic reader: just as in contemporary Modern- Orthodox discourse, primary texts are referred to not by author, but by title, and the organizing principles are not historical, chronological, or geographic, but interpretative and thematic. The intended audience seems to be an educated Orthodox laity interested in understanding the reasons why contemporary Jewish practice does not accord with Talmudic law.  Those looking for a historically critical analysis should look elsewhere.

Only in his fifth chapter does Broyde defend his central thesis, namely that “halakha largely changes through chiddush–the innovative interpretation of sources” (133).  Broyde’s main argument is that the ongoing intensive study of Jewish law applied to “ambiguous and inconclusive primary texts” (133) creates a dynamic legal system.  He argues that “internal ambiguities and inconclusive rulings are a direct result of the unique presentation of Jewish law [i.e. the Talmud],” which he categorizes as a “presentation of multiple opinions on a given subject or a multiplicity of cases exemplifying the application of the law” (139).  Yet just as Broyde admits that the “driving force behind chiddushim that come as a result of changes in reality are based on extra-halachic sources,” he insists that “the means of change are faithful to the halakhic process of study, thorough understanding, and correct application of texts” (148).

In order to be properly contextualized, this book must be placed in conversation with Broyde’s earlier writings about the ways Jewish law changes.  In the Spring 1990 volume of Judaism, Marc Shapiro argued that Jewish “law” develops in consonance with popular practice – changes are adopted by the community and post facto codified by rabbinic authorities.  Viable minhag develops despite opposition from halakhic authorities, and is only later granted validity by those same authorities.  Broyde, in the Winter 1991 volume of that same journal, vehemently disagreed, arguing that “minhag as a legal tool is limited to deciding which of halakhically tenable positions is the one that should be followed; it cannot be used to justify what is undeniably impermissible (Judaism 40:1, 81, emphasis in original).

As Shapiro correctly points out, much of the disagreement revolves around the extent one accepts Jacob Katz’s notion of “ritual instinct” (see The“Shabbes Goy”, 230-32) as a motivating factor behind change in the halakhic system.  To use Katz here, contrary to Broyde, one could suggest that the Jewish ritual instinct towards authentic and complete prayer avoided Havineinu; Havineinu felt too abbreviated, too incomplete, too inauthentic.  How can one approach the Creator by means of a shortcut?

At the same time, Broyde’s integration of extra-legal concerns with intensive halakhic analysis does in fact seem to account for the lived experience of generations of posekim.  Shapiro explains, on the other hand, that precisely those customs adopted by “the Torah community” (Judaism 40:1, 91, emphasis in original) would be granted rabbinic approval and integrated within the codes.  While Katz’s notions of the “ritual instinct” in Jewish life are best developed in the pre-modern world, where most Jews were members of their community by default, applying Katz’s theories to the contemporary experience may require some reevaluation.  In a world of voluntary communities largely defined by halakhic commitment rather than by the non-Jewish world, Katz’s loop of halakhic malfeasance turning into halakhic observance becomes considerably more difficult to distill.  In text-obsessed contemporary Orthodoxy, Broyde’s model of halakhic change should perhaps be more relevant than in the medieval period.  Yet, completely ignoring sociology in exploring halakhic change is done at the peril of all who study it.

This review appeared on the YU blog on Sept. 14, 2011.


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