Why Jewish law is so much more than a dry, unbending code
Review by Rabbi Jonny Solomon • Lookstein Digest · Times of Israel
I. PREFACE
Ever since first encountering the writings of Rabbi Dr. Nathan Lopes Cardozo I have found myself agreeing with much of what he has written. He is a rare thinker who lives in many worlds, and he describes many of his ideas with true elegance by weaving profound Jewish teachings with exquisite insights from the world of philosophy, art and music. Moreover, as someone who not only listens to Beethoven, Bach & Mozart but plays them too, I have a debt of gratitude to Rabbi Cardozo for putting into words my love affair with music and for explaining how I can understand more about my relationship with God through my relationship with music.
However, beyond my admiration of Rabbi Cardozo, as well as my love of music, I am very much in love with halacha (Jewish law). When I study halachic writings – and specifically, responsa literature – I encounter poskim (halachic decisors) who wrestle with the conflicting values of Torah laws and human needs in order to formulate solutions that reflect the spirit and values of the Torah. For me, halachah is both mindful and soulful.
In light of all the above, it was great interest that I received a copy of Rabbi Cardozo’s most recent book Jewish Law as Rebellion: A Plea for Religious Authenticity and Halachic Courage which contains 54 essays/chapters in addition to an introductory essay titled ‘Jewish Law (Halachah) as Rebellion’ where Rabbi Cardozo outlines what he, and some of the ideas found in this book, seek to achieve. It is with this essay I would like to begin.
II. JEWISH LAW AS REBELLION (INTRODUCTORY ESSAY)
Like many of his other essays– Rabbi Cardozo’s opening paragraph expresses a stark yet grabbing statement: ‘For too long, Halacha has been jailed in compartmentalized and awkward boxes. It is time to liberate it’.
Of course, this call to ‘liberate halacha’ sounds exciting, and when Rabbi Cardozo expresses how ‘while in ages past, discussions within Halacha could ignite fires of debate, we are now confronted with an increasingly post-idea halacha’ and that ‘the problem is that.. easily accessible information has replaced creative thinking’, it very much sounds like he is right.
However, what is Rabbi Cardozo specifically referring to? Certainly, there are many halachic handbooks being produced today which ‘recycle halacha’ (as Rabbi Cardozo puts it) rather than generate halacha, and if it is to this that Rabbi Cardozo is referring then he is certainly right. But since when are halachic handbooks a measure of halachic creativity?
Instead, when I read the contemporary responsa volumes that line my shelves – those of Rabbi Asher Weiss, Rabbi Ovadia Yosef, Rabbi Hayyim David Halevy, Rabbi Nachum Rabinovitch, Dayan Shlomo Deichovsky, Rabbi Yehuda Henkin, Rabbi Yoni Rosensweig, Rabbi Rachamim Berachyahu & Rabbanit Malka Puterkovsky (and I should add, this is aside from those of Rabbi Eliezer Waldenberg, Rabbi Moshe Sternbuch, Rabbi Moshe Feinstein – each of which contains a multitude of creative rulings and interpretations, as well as numerous Rabbinic journals such as Techumin & Tzohar which contain some truly magnificent responsa), I am moved by their boldness and creativity.
Then, Rabbi Cardozo challenges the yeshiva education system and explains how ‘most of our yeshivot have retreated from creative thinking’ and that ‘we tell them what to think instead of teaching them how to think’. Moreover, he adds that ‘Jewish education today is, for the most part, producing a generation of religious Jews who know more and more about Jewish observance, but think less and less about what it means’. To this I fully agree. Yet, notwithstanding this valid criticism of Jewish education, it is noteworthy that almost every one of the poskim listed above become bold halachic decisors based on experiences outside the classic beit midrash, and that – to my knowledge – no model of training towards bold halakhic creativity has ever existed in an institutionalized setting.
However, it is in his paragraph titled ‘The quest for certainty paralyzes the search for meaning’ which highlights some of what I believe are the flaws in this essay, and this book, while also revealing what Rabbi Cardozo is ultimately frustrated by.
Rabbi Cardozo begins this section by noting how ‘instead of new theories, hypotheses, and great ideas, we get instant answers to questions of the utmost importance… Trivial, simplistic, and often incorrect information replaces significant ideas. The information is reduced to a catchline – thus too brief and unsupported by proper arguments – yet still presented as “the answer”. By delivering “perfect” answers, which fit nicely into the often underdeveloped philosophies of their authors, everything is done to crush the questioning of halachic conclusions. The quest for certainty paralyzes the search for meaning.’
For those unaware of what Rabbi Cardozo is troubled by, it is the way in which some rabbis – most famously, Rabbi Shlomo Aviner – offer rapid SMS so-called halachic answers to complex halachic questions. In Israel, these answers are reproduced in the weekly newsletters that are distributed in synagogues, and they are often the source of discussion in synagogues, homes and facebook groups. Here too, I fully agree with him. Yet, to use this as an example of what is wrong with halacha is simply ridiculous and it is comparable to suggesting that there is no creativity in cooking today simply because of the existence of fast food restaurants. Just as the existence of a poor quality, bland, and under nourishing source of food does not suggest that all food today is poor quality, bland and under nourishing, the existence of poor quality, bland and under nourishing halachic writing does not mean that all halachic writing is poor quality, bland and under nourishing.
Later on, Rabbi Cardozo does admit how ‘there are still dissidents with in the world of Halacha today – and they are growing in number’, but ‘the religious establishment is unable to hear [them]’ because ‘original halachic Jewish thinkers today fall victim to the glut of conformists’. According to Rabbi Cardozo, ‘while these thinkers challenge conventional views, they remain unsupported and live lonely lives because our culture writes them off. Rather than saying yes to new halachic ideas, which we are in desperate need of, the conformists pander to the idol worship of intellectual and spiritual submission’. Here too, I wonder to what Rabbi Cardozo is referring, and it is to this that he now turns.
According to Rabbi Cardozo, ‘Halacha is the practical upshot of living by unfinalized beliefs while remaining in theological suspense’, and this is why he thinks that ‘what we need to do is search for the Halacha as it was in its embroyonic form, before it was solidified into the great halachic codifications such as Rambam’s Mishne Torah or Rabbi Yosef Karo’s Shulchan Aruch.’
Simply put, Rabbi Cardozo – like many before him – believes that codification leads to the stagnation and recycling of halacha and a yearning towards halachic absoluteness that does not reflect the complexity of life. And were this to be the totality of halachic writing, he again would be right. But this is why codes such as the Mishne Torah and the Shulchan Aruch fill only half of the halachic bookshelf, with the other being filled with the ‘chaotic’ (a word that Rabbi Carodozo employs often) collection of responsa literature which is messy by its very definition.
Within responsa – and here I mean real responsa rather than the SMS version of Rabbi Aviner – we find halachic answers to complex human needs based not only on the words of halachic codes but also on from what is found between the lines of these great works. As Rabbi Cardozo himself explains in Chapter 1, it is within responsa where individualized responses to individual challenges are found.
Ultimately, it is the balance between codes and responsa which helps us maintain a balance between halachic conformity (which at times we need as a community) and halachic individuality (which we often need as individuals), and to claim that we should do away with one by ignoring the richness and contribution of the other seems to be somewhat disingenuous, or to paraphrase Rabbi Cardozo himself, a ‘dishonest attempt of portraying halachic fundamentalism’.
In the final paragraphs of this opening essay, Rabbi Cardozo writes that ‘what the religious establishment needs to realize is that Halacha itself has generally fallen victim to boredom’ and that ‘today the world is astir while the Halacha is sleeping’. As mentioned, this is simply not the case, but this made me wonder why Rabbi Cardozo would make such a statement. And it is to the rest of the essays that I now turn.
III. FURTHER ESSAYS
As previously mentioned, Rabbi Cardozo raises what is a valid challenge against halachic codification, and it is in Chapter 2 where he elaborates on his position, particularly citing the Maharshal who was one of the most vociferous critics of the Shulchan Aruch. According to Rabbi Cardozo, the model of halachic codification means that halacha is perceived by young searching people as a dry and unbending text to which they do not relate.
However, if Rabbi Cardozo is right, and if ‘the very image of halacha [must be].. seen in a different light’, then rather than ‘de-codifying’ (this too is a term that Rabbi Cardozo repeatedly employs), our task is to counterbalance the halachic conversation by popularising the study and discussion of responsa which clearly reflect how halacha can, and should be, individualized.
In fact, this is even more evident in Chapter 3 which discusses the law of yayin nesech (the prohibition of using wine that has been handled by a non-Jew). Though Rabbi Cardozo does cite a number of poskim whose responsa come close to relegating this law into the history books, he is insistent that de-codification is the necessary stepping stone to halachic creativity. I challenge this approach, and believe that a greater emphasis on halachic creativity as found within responsa literature, and an understanding of the enormous contribution to responsa in terms of halachic change, is a far more ‘authentic’ approach to finding the answers to the many complex problems that we face.
In the ensuing essays, Rabbi Cardozo addresses many other important topics, but it is in his essays on Conversion where the weakness in his underlying argument is particularly evident. Though he writes how ‘whether or not the convert must a priori take on all the commandments, or only some, is a matter of great debate among the authorities’, it is important to note that the stipulations for kabbalat ol mitzvot (accepting the mitzvot) as found in Rambam’s Mishne Torah and Rabbi Yosef Karo’s Shulchan Aruch allowing for considerable halachic flexibility. Simply put, the limiting factor relating to conversion today is not codification.
Beyond this, as Rabbi Cardozo himself admits, bold and creative halachic solutions regarding conversion have in fact been offered and discussed in responsa volumes. Ultimately, Halacha is not the problem, and creativity is not lacking. Instead, it is both the rabbinic will and the social pressure ‘to boldly go where no one has gone before’ (and yes, Rabbi Cardozo does quote this line from Star Trek!).
IV. CONCLUSION
In conclusion, I agree with many of the issues that Rabbi Cardozo lists in his essays as requiring attention in the contemporary Orthodox world, and it should be noted that a single review cannot address the wide range of fascinating topics addressed in this book. However, I believe that Rabbi Cardozo’s criticism of ‘Halacha’ is overstated, and his call for halacha to be ‘liberated’ emerges from a misrepresentation of the richness of halacha as merely a dry and unbending code.
True, codification has its weaknesses, but this is why we have responsa, and strengths of one are the weakness of the other. Ultimately, to claim that codification is the problem without celebrating and exploring in equal measure the creativity of the responsa literature – of the past and present – is to give a warped view of halacha.
Jewish Law as Rebellion is a fascinating and thoroughly enjoyable book. Rabbi Cardozo writes in a way that truly engages the reader, and many of the ideas he expresses are truly exquisite. But for me, this is a book which is rooted in the worldview of theologians like Heschel, while offering a harsh critique of halacha through focusing on codification while at the same time paying little attention to the rich halachic conversations that codes have stimulated or the countless bold responsa that have been written.
Personally, had I written a book such as this, each of the 54 chapters would have been a case study of bold and creative halachic rulings and responsa from past and contemporary poskim, and the final chapter would have been a list of questions for which bold and creative halachic answers need to be written, and an email address to where they can be sent.
It takes great courage to challenge the status quo of Orthodoxy, and for this Rabbi Cardozo should be applauded. But true change comes when we show how it has been done before, and give support for how it can be done in the future.
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