Also: Legislation

DEFINITION

The word "halakhah" (from the root halakh, "to go"), the legal side of Judaism (as distinct from aggadah, the name given to the non-legal material, particularly of the rabbinic literature) embraces personal, social, national, and international relationships, and all the other practices and observances of Judaism. In the Bible the good life is frequently spoken of as a way in which men are "to go," e.g., "and shalt show them the way wherein they are to go and the work that they must do" (Ex. 18:20). Originally the term halakhah (pl. halakhot) had the meaning of the particular law or decision in a given instance, as in the frequent expression "this is a law given to Moses on Sinai" (Halakhah le-Moshe mi-Sinai). This usage persisted, but side by side with it there developed the use of halakhah as a generic term for the whole legal system of Judaism, embracing all the detailed laws and observances. For instance, the Talmud (Shab. 138b) comments on "the word of the Lord" (Amos 8:12) that this means the halakhah.

The study of the halakhah in the rabbinic period and beyond it became the supreme religious duty. Because of its difficult subject matter and its importance for practical Judaism this study took precedence over that of any other aspect of Jewish teaching. Typical is the rabbinic saying that after the destruction of the Temple, God has nothing else in His world than the four cubits of the halakhah (Ber. 8a). The superiority of halakhic study over aggadic was expressed in the parable of the two merchants, one selling precious stones, the other small ware. Only the connoisseur comes to buy from the former (Sot. 40a).

The general assumption in the classical Jewish sources is that the halakhah in its entirety goes back to Moses, except for various later elaborations, extensions, applications, and innovations in accordance with new circumstances. Thus Maimonides (Yad, intro.) counts 40 generations backward from R. Ashi, the traditional editor of the Babylonian Talmud, to Moses and he concludes: "In the two Talmuds and the Tosefta, the Sifra and the Sifrei, in all these are explained the permitted and the forbidden, the clean and the unclean, the liabilities and lack of liability, the unfit and the fit, as handed down from person to person from the mouth of Moses our teacher at Sinai." But the verdict of modern scholarship is that the halakhah has had a history and that it is possible to trace the stages in its development with a considerable degree of success (see below).

[Louis Jacobs]

DOGMATICS OF THE HALAKHAH

Sources of Authority

Like other legal systems, the halakhah is composed of different elements, not all of equal value, since some are regarded as of Sinaitic origin and others of rabbinical. Five sources can be differentiated:

THE WRITTEN LAW

According to the traditional concept of halakhic Judaism, the Written Law is not a collection of legal, religious, ethical statutes and the like deriving from separate sources, but a law uniform in nature and content and a revelation of the will of God—a revelation that was a single nonrecurring historical event (at Sinai). This law is considered to be a book of commandments, positive and negative, numbering 613 (see Commandments, the 613).

STATEMENTS HANDED DOWN BY TRADITION (KABBALAH)

On the verse "These are the commandments" (Lev. 27:34), the Sifra (Be-Hukkotai, 13:7) comments, "Henceforth no prophet may make innovations." Thus such commandments or injunctions the source of which is in the words of the prophets or the Hagiographa (referred to as Kabbalah) are generally regarded as of Sinaitic force, on the assumption that the prophets received them as an interpretation or as a halakhah given to Moses at Sinai. Thus, e.g., it is inferred from Jeremiah 32:44; "and subscribe the deeds, and seal them, and call witnesses," that the signature by witnesses to a document is a Sinaitic law (Git. 36a). At times, however, the amoraim conclude that the verse is to be regarded as a mere support (asmakhta), and the matter does not come within the definition of Torah law. An ambivalent attitude on their part toward traditional statements can be discerned; there is even in the Babylonian Talmud a rule: inferences concerning statements of the Torah may not be drawn from statements contained in Kabbalah (Hag. 10b; BK 2b; Nid. 23a).

From the dogmatic point of view, however, the statement of Nahmanides (on principle 2 of Maimonides' Sefer ha-Mitzvot) and his differentiation seem correct; namely that wherever in the prophets and Hagiographa statements are made as commands and injunctions, they are merely an explanation of the Torah and have the same authority as the Oral Law, as tradition, while where statements are made by way of narrative, as "relating some event" (e.g., the case of sale in the Book of Jeremiah) they are of rabbinic status. The same applies to those laws designated in the Talmud as takkanot ("regulations") of the prophets, even if attributed to Moses himself. For the concept de-rabbanan ("of rabbinical authority") is not chronological but qualitative, so that such statements can be de-orayta (of Sinaitic authority) even if first revealed in the words of a late prophet, and de-rabbanan even if attributed to Moses, if they were transmitted as a takkanah or the confirmation of an ancient custom (e.g., the seven days of bridal festivity, the seven days of mourning).

THE ORAL LAW

This includes: the interpretation of the Written Law transmitted, according to the sages, in its entirety with its details and minutiae at Sinai; halakhah, e.g., given to Moses at Sinai in the restricted sense; and logical deduction.

Interpretation of the Written Law

This interpretation consists of two elements: that regarded as certainly handed down at Sinai; that intrinsically inherent in the written word, but made manifest through the interpretation of Scripture by means of the accepted hermeneutical rules (see hermeneutics). According to talmudic tradition anything transmitted directly by tradition counts as de-orayta and is in every way equivalent to the Written Law, while difference of opinion is found with regard to halakhah inferred only by means of interpretation since the Talmud itself has no systematic dogma on the subject.

Maimonides and Nahmanides differ on this. According to the former (Sefer ha-Mitzvot, principle 2), anything inferred by interpretation is de-orayta only if supported by a tradition. If the Talmud does not clearly testify to its having been transmitted, then it is "the words of the soferim" or de-rabbanan.

On the other hand Nahmanides holds (gloss, ad loc.) that anything derived by interpretation is also de-orayta whether or not supported by a talmudic tradition, unless the Talmud states explicitly that this is de-rabbanan (in the language of the Babylonian Talmud: "It is de-rabbanan, the verse being a mere support"). Both from the statements of Maimonides, as well as from those of Nahmanides, it follows that halakhot inferred by interpretation of Scripture may be divided into three categories: halakhah received from Sinai where the purpose of the interpretation is to explain it and to connect it with the scriptural verse; in these cases there is no dispute as to the content of the halakhah since the interpretation at times merely serves a mnemotechnical purpose; halakhah not received from Sinai, but deduced by the sages from the scriptural verse, where the interpretation is in most cases to the point and included in the meaning of the verse; halakhah which all agree to be an innovation and de-rabbanan, the purpose of the interpretation being to find a support for it in Scripture (e.g., the rabbinic injunction against marrying relatives of the second degree, derived from Lev. 18:30: "Therefore shall ye keep My charge" (Yev. 21a)).

Halakhah Given to Moses at Sinai

This designation is given to ancient halakhot for which there is no scriptural support (or at the most very faint support). Examples are quantities (in connection with issur ve-hetter and things ritually unclean and clean, such as an olive's bulk, a quarter of a log, etc., Er. 4a), or that tefillin must be square (Meg. 24b) and written on parchment (Shab. 79b). It is difficult to decide whether in the early tannaitic period they actually regarded such halakhot as having been given at Sinai or whether the term "at Sinai" is employed merely to indicate their antiquity in order to increase their holiness and thus to immunize them against challenge (see the commentaries of Samson of Sens and Asher b. Jehiel to Yad. 4:3; Jair Hayyim Bacharach, in his Havvot Ya'ir (no. 192) enumerates about 70 such halakhot). See also Halakhah le-Moshe mi-Sinai.

Logical Deduction

Sometimes the authors of the Talmud say of a certain halakhah, "it is self-evident," and as such it does not require scriptural proof since it is regarded as axiomatic; such as "whoever wishes to claim anything in the possession of his fellow must bring proof." To this category belong, strictly speaking, also fundamental concepts such as hazakah, the majority rule, etc., since the scriptural verse adduced is only intended to provide a support for the halakhah. It is not the verse which is the source but logical reasoning and analogy.

SAYINGS OF THE SCRIBES (ELDERS)

In talmudic literature, the expression mi-divrei soferim (of scribal origin) has two meanings: a statement in principle from the Torah but its explanation is of scribal origin (see above, and e.g., Sanh. 88b); a statement decreed or enacted originally by the soferim, like "the second degrees of forbidden marriages are of scribal origin" (Yev. 2:4). What follows applies to the second meaning. Everything whose source is in statements of the scholars throughout the generations, from Moses to the present time, is called de-rabbanan. These teachings include: positive enactments (takkanot) made to protect the principles of religion and Torah, and negative enactments (gezerot) decreed to prevent breaches. From the verse: "According to the law which they shall teach thee... thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left" (Deut. 17:11) it was inferred that it is a positive precept to obey the great bet din not only in everything applying to the text of the Torah, but also in everything that they found necessary to enact, and a warning is issued to anyone disregarding it.

The Authority of the Sages

In the Talmud the authority of the sages was defined as follows:

The sages have the power to abolish a biblical injunction (Yev. 89b–90b) in certain circumstances, such as: in monetary matters, on the basis of the rule that "deprivation of ownership by the bet din is valid": where it is a case of the passive act of "refraining from an action" (shev ve-al ta'aseh), as where they forbade the lulav and shofar to be handled and used on the Sabbath, lest they be carried in a public domain (thus the rabbinic prohibition is the cause of the biblical precept being ignored!).

The bet din has the power to temporarily disregard a biblical precept in order to reinforce observance. Similarly the court "may inflict flagellation and other punishment not in accordance with Torah law, in order to erect a protective fence round the Torah," but such acts may not be defined as halakhah—which would imply that the ruling is of a permanent character. So too, if they saw a temporary need to suspend a positive precept, or to transgress an injunction, in order to bring many back to religion, or to save the community from being ensnared in a transgression, all in accordance with the need of the time but not for future generations (Maim. Yad, Sanhedrin 24:4; Mamrim 2:4). The classical example is Elijah offering sacrifice on Mt. Carmel at the time the Temple existed (when sacrifice outside it was prohibited, Zev. 4b).

No restriction may be imposed upon the congregation if the majority cannot abide by it (BB 60b). So too no restriction may be imposed that would cause substantial loss (see, e.g., MK 2a) or excessive trouble. "It is preferable for them to transgress inadvertently rather than deliberately" (Bezah 30a).

No court can abolish the decision of another contemporary court unless it be greater in wisdom and in number. The possibility of abolishing a restriction thus depends upon an important limitation: "It must be greater in wisdom and number" (Eduy. 1:5; for the meaning of this rule, which apparently prevents all possiblity of abolishing a bet din ruling, see Weiss, Dor, pt. 2, sec. 7 and Albeck in the supplements to Mishnah Nezikin).

At times the sages gave their pronouncements the same, and at times, even greater validity than those of the Torah. As an example "These days, enumerated in Megillat Ta'anit, are forbidden [for fasting], along with both the preceding and the following day. As to Sabbaths and New Moons, fasting on them is forbidden, but it is permitted on the preceding and following days. What is the difference between them? The latter are of biblical origin and words of the Torah require no reinforcement, whereas the former are of scribal authority and the words of the scribes require reinforcement" (RH 19a). Thus they were more stringent about the fulfillment of their takkanot than about the enactment of the Torah itself, because for the latter no danger of negligence was anticipated, as it was with their regulations. Many of the edicts and takkanot are anonymous, just as the early halakhah in general is anonymous: according to dogmatic conception they were all enacted and accepted by a vote of the great bet din in which, too, all disputed matters were decided. The modern historical approach, too, is close to this view, even though the concept "the great bet din" was not identical in all periods (see H. Albeck, in: Zion, 8 (1942/43), 85–93, 165–78; L. Finkelstein, The Pharisees, 19623). Notwithstanding, many takkanot and edicts are mentioned that are connected with the names of definite persons or places, such as Joshua b. Gamla, Simeon b. Shetah, Bet Shammai and Bet Hillel, Gamaliel the Elder, Johanan b. Zakkai, Gamaliel of Jabneh, the scholars of Usha, Judah ha-Nasi, etc. There are also many halakhot that are attributed to biblical personalities such as Moses, Joshua, Samuel, David, Solomon, Hezekiah, Daniel, the prophets (and the men of the Great Synagogue). The individuals enumerated appear as heads of batei din.

The distinction between the concepts de-orayta and de-rabbanan in the whole field of halakhah actually derives from the amoraim, but it already existed in the time of the tannaim and is recognizable by the penalties fixed for transgressions of the different categories, and there is also found the explicit expression "statements of the scribes" in contrast to "statements of the Torah" (e.g., Yev. 2:4; Par. 11:5–6; Yad. 3:2; Zev. 99b). But the views of the tannaim and amoraim on this matter do not completely coincide, and at times a matter which according to tannaitic sources appears to be de-orayta becomes in the era of the amoraim de-rabbanan. The difference between the two concepts de-orayta and de-rabbanan not only expresses itself in penalties (thus, e.g., the sacrifices which one who transgresses the words of the Torah must bring as an atonement for his iniquity are not imposed as an obligation on one transgressing a prohibition of the sages, but on the other hand the sages have the right to flog one transgressing their words with "stripes of correction" in order to punish and reform him); there is also a difference in the halakhic consideration: "In the case of doubt with regard to a biblical injunction the stringent view is accepted, in the case of rabbinical, the lenient" (Bezah 3b; TJ, Er. 3:4).

CUSTOM

The word custom (Heb. minhag) has various meanings in talmudic literature, and not all have the same force, even though all serve as sources of halakhah.

Religious custom which can be relied upon where the halakhah is unclear: "Every halakhah that is unclear in the bet din and you do not know its nature, go and see how the community conducts itself and conduct yourself accordingly" (TJ, Pe'ah 7:5). Here the concept of custom is close to the concept of "consensus" in Muslim law in its original stage: the people as a whole do not err, and therefore custom decides the matter; its nature is as the nature of the halakhah. In the Babylonian Talmud this idea is expressed in the words, "Go and see how the public are accustomed to act" (Ber. 45a) and this too is what Hillel certainly meant when he said: "Leave it to Israel; if they are not prophets, they are the children of prophets" (Pes. 66a).

Religious custom that is not publicly proclaimed as the official halakhah (see Ta'an 26b); here too, as in the previous section, the reference is not to a new custom but to fixing the norm in a halakhah concerning which there is a dispute, in accordance with the existing custom.

A custom that is in contradiction to the theoretical halakhah but by virtue of being a public custom, and that of conscientious people, has the power to cancel the halakhah (TJ, Yev, 12:1; Sof. 14, ed. Higger, 270f.). In these cases, the custom replaces the halakhah.

A custom introduced by a definite group—such as the citizens of a town, a group of pious men, women, professional groups, etc.—in some area of religious, social, or legal life, additional to the existing halakhah, serves as a source of halakhah which may not be altered and has the same authority as the words of the sages (see, e.g., Pes. 4:1; BM 7:1; et al.).

[Benjamin De-Vries]

See also Minhag.

DEVELOPMENT OF HALAKHAH

The Early Period

Codes of law are found in the Pentateuch (Ex. 21–23:19; Lev. 19; Deut. 21–25) together with smaller collections and numerous individual laws. Biblical criticism explains the differences in style and the contradictions between one collection and another on the grounds that these groups of laws were produced in different circles at diverse times, e.g., in one collection the tithe is given to the levite (Num. 18:20–32) whereas in Deuteronomy it is retained by the farmer himself to be eaten in the place of the central sanctuary (Deut. 14:22–26). This kind of solution was not open to the Pharisaic teachers so that the early halakhah reconciles the two passages by postulating two tithes, the first (ma'aser rishon) to be given to the Levite and the second (ma'aser sheni) to be eaten in the place of the central sanctuary. Moreover, according to the traditional view, God conveyed to Moses together with the Written Law (torah she-bi-khetav) an Oral Law (torah she be-al peh). This latter embraced both the specific "laws given to Moses at Sinai" and the many interpretations of the written text now found in the rabbinic literature.

One of the main points at issue between the Sadducees and the Pharisees was the validity of this doctrine of the Oral Law, the Pharisees affirming and the Sadducees denying it. But this is to oversimplify the problem. It is obvious that some process of interpretation of the written texts must have begun at the earliest period since many of the texts are unintelligible as they stand (though this is very different from the affirmation that the interpretation was uniform and handed down unimpaired from generation to generation). Buying and selling, for example, are mentioned in the Pentateuch without any indication of how the transfer of property was to be effected. The law of divorce (Deut. 24:1–4) speaks of a "bill of divorcement," but gives no information on how this is to be written. Ezekiel 44:31 would seem to be an interpretation of the laws found in Exodus 22:30 and Deuteronomy 14:21 (Weiss, Dor, 1 (19044), 44–45). Jeremiah 17:21 is an interpretation of what is involved in Sabbath "work." It would appear certain that by about 400 B.C.E., after the return from Babylon and the establishment of the Second Temple, the Pentateuch had become the Torah (the Written Law) and there had begun to develop an oral interpretation of the Pentateuchal texts.

The identity of the men of the Great Synagogue, who are said to have flourished immediately after the return, is still a major problem, as is the relationship of this body to the "Scribes" (soferim; according to Frankel, Darkhei ha-Mishnah (1923), 3–7 et al.), the men of the Great Synagogue were the executive of a movement of Pentateuchal interpretation of which the "Scribes" formed the general body. However, more recent studies have demonstrated that the soferim were simply a class of biblical exegetes inferior in status to the "sages" so that it is illegitimate to speak of the period of the "Scribes" (Kaufmann, Y., Toledot, 4 (1960), 481–5; E. Urbach, in: Tarbiz, 27 (1957/58), 166–82). The Midrash process, in which the texts were carefully examined for their wider meaning and application, no doubt had its origin in this period. Another vexed question is whether the Midrash of a particular text is the real source of the law said to be derived from it or whether the law came first with the Midrash no more than a peg on which to hang it. The most convincing way of coping with the evidence on this matter is to suggest that the earliest Midrashim were in the nature of a real derivative process by means of which the deeper meaning and wider application of the texts were uncovered (although this must not be taken to exclude the existence of actual traditions for which texts were subsequently found). In the later Midrash the process is reversed.

The whole period down to the age of the Maccabees—on any showing the formative period in the history of the halakhah—is shrouded in obscurity. Y. Baer (in Zion, 17 (1951/52), 1–55) has argued that there was little pure academic legal activity at this period and that many of the laws originating at this time were produced by a kind of rule of thumb in which pious farmers in a comparatively simple form of society worked out basic rules of neighborly conduct, much in the same way as this was done among the Greeks in the age of Solon. Some of these rules can possibly still be detected among the earliest strata of the Mishnah, e.g., in the first chapter of Bava Kamma, which includes a formulation of the law of torts worded in the first person.

There are references in the sources to five pairs of teachers—the zugot ("pairs," duumviri)—beginning with Yose b. Joezer and Yose b. Johanan in the time of the Maccabees and ending with Hillel and Shammai in the time of Herod. The ethical maxims of these teachers are recorded in the Mishnah (Avot 1:4–5) but little legal material has been transmitted in their name. At this time, it was said, there was no legal debate in Israel (Tosef., Hag. 2:9), i.e., the law was known or where in doubt was decided by the "great court" in Jerusalem.

Historically considered there is no question, however, of a uniform halakhah, even at this early period, handed down from generation to generation in the form the halakhah assumes in the tannaitic period. Apart from the great debates on legal matters between the Sadducees and the Pharisees, the halakhah in the books of the Apocrypha (and the writings of the Qumran sect) is not infrequently at variance with the halakhah as recorded in the Mishnah and the other tannaitic sources (e.g., the law of false witnesses in Susannah conflicts with the Pharisaic law as recorded in the Mishnah, Mak. 1:4). Even in the Pharisaic party itself the schools of Hillel and Shammai at the beginning of the present era differed on hundreds of laws, so that it was said that there was a danger of the Torah becoming two torot (Sanh. 88b).

A major problem here is the motivation behind the approaches of the two rival schools. The theory associated with L. Ginzberg (On Jewish Law and Lore (1955), 102–18) and L. Finkelstein (op. cit.) finds the differences in the different social strata to which the schools belonged. The school of Shammai, it is argued, was legislating for the upper classes, the wealthy landowners and aristocrats, while the school of Hillel was legislating for the poorer urban workers and artisans. Thus according to the school of Hillel the legal definition of a "meal" is one dish, whereas according to the school of Shammai it is at least two dishes (Bezah 2:1). In most societies the woman has a much more significant role among the upper classes than among the lower. Hence the school of Hillel rules that a valid marriage can be effected by the delivery to the woman of the smallest coin—a perutah—whereas the school of Shammai demands the much larger minimum amount of a dinar (Kid. 1:1). The school of Shammai only permits the divorce of a wife if she is unfaithful whereas the school of Hillel permits it on other grounds (Git. 9:10). While there is undoubtedly some truth in the theory of social motivation it is too sweeping to be entirely adequate. Other motives, such as different exegetical methods were also at work (see Alon, Mehkarim, 2 (1958), 181–222).

The Tannaitic Period (c. 1–220 C.E.).

The debates between the schools of Hillel and Shammai set in motion new debating processes among the rabbinic teachers of first-and second-century Palestine, the tannaim. Prominent in the second century were the rival schools of R. Akiva and R. Ishmael, who differed in their concept of the Torah revelation and, as a result, in their attitude toward the scope of the halakhah (see A. J. Heschel, Torah min ha-Shamayim (first 2 vols., 1962, 1965). According to R. Ishmael's school "the Torah speaks in the language of men" (Sif. Num. 15:31) and it is therefore not permissible to derive new laws from such linguistic usages as the infinitive absolute before the verb. According to the school of R. Akiva it is legitimate to do this and to derive laws from the use of the particles gam ("also") and et (the sign of the accusative), for example in Pesahim 22b, since in the view of this school no word or letter of the Torah can be considered superfluous or merely for the purpose of literary effect. A later teacher characterized the methods of the Akiva school by telling of Moses on high asking God why He had affixed the decorative "crowns" to some of the letters of the Torah. God replies that after many generations there will arise a man, Akiva b. Joseph by name, "who will expound upon each tittle heaps and heaps of laws." Moses then asks permission to see Akiva and is transported across time to enter Akiva's academy where he is unable to follow the arguments! Moses is distressed but is later comforted when Akiva replies to the question of his disciples: "Whence do you know this?" by stating: "It is a law given to Moses at Sinai" (Men. 29b).

At the end of the second century R. Judah ha-Nasi edited the Mishnah, in which were summarized all the legal debates and decisions of the tannaim. Judah ha-Nasi is better spoken of as the editor of the Mishnah, not its author, since it is clear that his compilation is based on earlier formulations, particularly those of R. Akiva and his disciple R. Meir. Indeed it is possible to detect various early strata embedded in the final form the Mishnah has assumed. For instance, the Mishnah (Pes. 1:1) records a rule that a wine cellar requires to be searched for leaven on the eve of Passover and then records a debate between the schools of Hillel and Shammai on how this rule is to be defined.

The Amoraic Period (c. 220–470 C.E.).

Once the Mishnah had been compiled it became a sacred text second only to the Bible. The word of the post-mishnaic teachers in both Palestine and Babylon (the amoraim) was confined chiefly to discussion and comment on the Mishnah and to the application of its laws (and those found in the other tannaitic sources). It became axiomatic that no amora had the right to disagree with a tanna in matters of law unless he was able to adduce tannaitic support for his view. It must not be thought, however, that the amoraim were only concerned with practical application of the halakhah. A good deal of their work was in the field of abstract legal theory in which purely academic questions were examined and debated (see M. Guttmann, in Devir, 1 (1923), 38–87; 2 (1923), 101–64).

The halakhah of the Palestinian amoraim was eventually collected in the Jerusalem Talmud, that of the Babylonian amoraim in the Babylonian Talmud. With the "closing" of the Talmud this work virtually became the infallible source of the halakhah. Occasionally in the Middle Ages, as Weiss (Dor, 3 (19044) 216–30) has demonstrated, authorities would disagree with talmudic rulings. Maimonides, for example, disregards in his code any laws based on a belief in the efficacy of magic even though the laws are found in the Talmud and are not disputed there. Some of the geonim tended to adopt a more lenient attitude toward the talmudic laws governing the relations between Jews and gentiles on the grounds that the gentiles in their milieu (the Muslims) were not idolaters. But such exceptions were few. The history of post-talmudic halakhah is founded on the appeal to the Talmud as the final and overriding authority. "To it [the Talmud] one must not add and from it one must not subtract" (Maim., Comm. to Mishnah, intro.). Of the two Talmuds the Babylonian became the more authoritative for a number of reasons. The halakhah of the Babylonian Talmud is more highly developed and more comprehensive; the Babylonian Talmud is later than the Jerusalem and hence able to override the decisions of the latter; the textual condition of the Babylonian Talmud is in a more satisfactory state; the Babylonian geonim at Sura and Pumbedita were in direct succession to the Babylonian amoraim (so that the Babylonian Talmud became "our Talmud") and the hegemony of the teachings of Babylonia was considerably strengthened as a result of political developments, including the emergence of Baghdad as the seat of the caliphate. Maimonides (Yad, intro.) states the accepted view: "All Israel is obliged to follow the matters stated in the Babylonian Talmud. Every city and every province are to be coerced to follow all the customs which the sages of the Talmud followed and to obey their decisions and follow their enactments since all the matters in the Talmud have been accepted by all Israel. And those sages who made the enactments or introduced the decrees or ordained the customs or decided the laws, teaching that the decision was so, were all the sages of Israel or the majority of them. And they heard by tradition the main principles of the whole Torah generation after generation reaching back to the generation of Moses our teacher on whom be peace."

Rules for determining the actual decision in law from the labyrinth of legal debate and discussion that is the Talmud are provided by the Talmud itself and by the savoraic additions to the Talmud, and other rules were widely accepted by the post-talmudic authorities. The following, in addition to those mentioned above, are some of the more important of these rules which enabled the Talmud to serve as the final authority in halakhah even though it is not itself a code of law.

Where there is a debate between an individual sage and his colleagues the view of the majority is adopted (Ber. 9a). The school of Hillel is always followed against the school of Shammai (Er. 6b). In the many matters debated by Rav and Samuel the view of Rav is followed in religious matters and that of Samuel in civil law (Bek. 49b). Except in three specified cases the opinion of R. Johanan is followed against that of R. Simeon b. Lakish (Yev. 36a). Similarly, except in three specified cases the opinion of Rabbah is followed against that of R. Joseph (BB 114b). The decision of Rava is followed against that of Abbaye except in six specified cases (Kid. 52a). Wherever a talmudic debate concludes with the statement "the law is..." (ve-hilkheta) this ruling is adopted. The lenient opinion is adopted when there is a debate regarding the laws of mourning for near relatives (MK 26b). The rulings of later authorities are generally preferred to those of earlier ones (from Rava onward) on the grounds that the later scholars, though aware of the opinions of the others, still saw fit to disagree with them (Sefer Keritut, 4:3, 6). It is generally accepted that where a ruling is conveyed in a talmudic passage anonymously (setama) this implies unanimity among the final editors and is to be followed even if elsewhere in the Talmud the matter is a subject of debate (see Tos. to Ber. 20b and Yev. 116a). Halakhic decisions are not generally to be derived from aggadic statements (based on TJ, Pe'ah 2:4; see ET, 1 (19513), 62). This rule was not applied consistently and was occasionally departed from, particularly in the French and German schools in the Middle Ages for whom the entire talmudic material, including the aggadah, tended to be invested with infallible authority.

In spite of the "closing" of the Talmud (occasioned chiefly by the disturbed conditions at the end of the fifth century when the great Babylonian schools were closed for a fairly long period) and its acceptance as the final authority, new legislation could still be introduced under the heading of takkanah ("enactment"), of which there are many examples in the Talmud itself. By means of the takkanah it was possible to cope with new circumstances not covered by the talmudic law. From time to time the principle, found in the Talmud, was resorted to that "a court can inflict penalties even when these run counter to the Torah" if the times require it (Yev. 90b; see above). In Spain, for example, in the Middle Ages, the courts assumed the power to inflict capital and corporal punishment even though this right had long been taken from them according to the strict letter of the law (see Baron, Community, 1 (1942), 168–9 and notes).

Codification of the Halakhah

Teachers of the halakhah in the Middle Ages and afterward were of two main types. Firstly there were the legal theoreticians such as Rashi and the tosafists, whose main activity consisted of exposition of the classical legal texts of the Talmud and other early rabbinic works. These were known as the mefareshim ("commentators") and their writings were naturally utilized to determine the practical law even though this was not their own province. Secondly there were the posekim ("decision-makers") whose opinions in practical legal matters were accepted because of their acknowledged expertise in this field. The activity of the posekim was of two kinds: responsa and codification. Questions of law on which direct guidance from the Talmud was not forthcoming were addressed to the great legal luminaries and from time to time these responsa were collected, helping to form the basis for new codifications of the halakhah. Both the new and older laws were frequently classified and codified. The process of responsa and subsequent codification has continued down to the present.

One of the earliest codes was the Halakhot Gedolot of Simeon Kayyara (ninth century). Isaac Alfasi compiled an abbreviated, and with regard to some texts an expanded, version of the Babylonian Talmud in which only the conclusions of the talmudic discussions were recorded so as to provide a digest of talmudic halakhah in its practical application. Where the Babylonian Talmud has no rulings Alfasi followed decisions found in the Jerusalem Talmud. Maimonides compiled his gigantic code, the Mishneh Torah (called, after his death, the Yad ha-Hazakah), in which he presented the final decisions in all matters of halakhah, including those laws which no longer obtained in his day, such as the laws of the sacrificial cult. Asher b. Jehiel, known as the Rosh (Rabbenu Asher), compiled a code in which due weight was given to the opinions of the French and German authorities which frequently differed from those of the Spanish authorities as recorded by Maimonides. Asher's son, Jacob b. Asher, followed in his father's footsteps in his code known as the Tur ("row," pl. Turim, properly the "Four Rows," so called because the work is divided into four parts).

By the time of Joseph Caro there was much confusion in the whole realm of practical halakhah. In addition to the many differences between the codes, Jewish communities tended to differ in their application of the laws so that, as Caro remarks (Beit Yosef, intro.), the Torah had become not two torot but many torot. In his great commentary to the Tur, called Beit Yosef, Caro sought to remedy the situation by working out a practical guide for a uniform application of the halakhah. His method was to follow a majority opinion whenever the three earlier codes of Alfasi, Maimonides, and the Tur disagreed and to rely on other authorities whenever this method of deciding was not possible. Caro's Shulhan Arukh contains the gist of his decisions as worked out in the Beit Yosef. Unfortunately, however, Caro's method weighted the scales in favor of the Spanish schools, since these were generally in accord with the views of Alfasi and Maimonides, against the German views as represented by Asher b. Jehiel and the Tur. The Shulhan Arukh was thus incapable of serving as a practical guide to the German Jews and their followers in Poland, which from the 16th century became a foremost center of Jewish life. The remedy was provided by Moses Isserles of Cracow who added notes to the Shulhan Arukh, known as the Mappah, in which the German-Polish practices were recorded where these differed from the opinions of the Shulhan Arukh. The Shulhan Arukh, together with the Mappah, became the most authoritative code in the history of the halakhah, partly, at least, because it was the first code to be compiled after the invention of printing and so sure of the widest dissemination.

The Shulhan Arukh marked a turning point in the history of the halakhah. Even when later authorities departed from its rulings they did so reluctantly. Adherence to the Shulhan Arukh became the test of Jewish fidelity. The "Shulhan Arukh Jew" became the supreme type of Jewish piety. Earlier rabbinical authorities were known as rishonim while later ones were known as aharonim. Rabbinic authority even in modern times is much more reluctant to disagree with the rishonim than the aharonim.

THE AUTHORITY OF THE HALAKHAH

Halakhah is the distinctive feature of Judaism as a religion of obedience to the word of God. It united Jews of many different temperaments, origins, and theological opinions, though the view ("pan-halakhism" as A. J. Heschel called it) that submission to the halakhah is all that is demanded of the Jew is a travesty of traditional Judaism. The major practical differences between Orthodox and Reform Judaism depend on the different attitudes of these groups to the halakhah. Orthodoxy considers the halakhah, in its traditional form, to be absolutely binding, whereas Reform, while prepared to be guided by the legal decisions of the past in some areas, rejects the absolute binding force of the traditional halakhah. Conservative Judaism adopts a midway position, treating the traditional halakhah as binding but feeling freer to interpret it and attempting to preserve the dynamic principle of legal development which, it claims, is typical of the talmudic period. The Orthodox rabbi, when faced with new halakhic problems raised, for instance, by the invention of printing and the use of electricity, will try to arrive at a decision by applying directly the ancient halakhic principles in the new circumstances. The Reform rabbi will be more inclined to consider the religious demands of the new age and will tend to operate within non-halakhic categories. The Conservative rabbi will try to utilize these latter in working out a fresh interpretation of the traditional halakhah.

[Louis Jacobs]

APPROACHES TO HALAKHAH

Orthodox

THE ANALYTICAL APPROACH

Most halakhic authorities regard the halakhah as a body of rules handed down by the Divine Sovereign to enable the Jew to live according to His will. Some of these rules were transmitted by Moses in writing, while others were transmitted orally by him, together with a methodology for creativity within the revealed rules. Disobedience to some of the rules may be punished by authorities to whom God delegated that power, while for other breaches of the Covenant He reserved unto Himself the power to punish.

In such a simplistic conception of the halakhah, the rationale of the rules is rarely, if ever, an integral part of the rules themselves. Man simply lives to obey these rules—and in obedience lies his salvation. To the extent that creativity is possible, it must be without reference to social or economic conditions, unless such considerations are implicit in the rule. Such instances are very few. The process of halakhah is discovering what God had said. This is what the law is. Such an analysis must be strictly logical, arrived at deductively or inductively from existing rules and texts, without reference to ideal ends or social facts.

Thus, when in modern times the question arose as to whether light produced by an electric current does or does not constitute fire, and consequently whether it falls under the biblical prohibition on making fire on the Sabbath, the approach of many who made reply was purely analytical. The words and the applicable rules were carefully studied on the basis of textual distinction between hot coals and hot metals. The philosophical rationale of the biblical command was not relevant to the issue.

In modern jurisprudence this approach is known as "analytical" or "imperative." It distinguishes sharply between the role of the legislator and the role of the jurist. Whereas the legislator may promulgate new rules, the jurist limits his activity to the analysis and exposition of established rules and recognized authorities.

It was in line with this juridical approach that Rabbi Moses Feinstein, when asked about bat mitzvah celebrations, discouraged them since there was no source for such celebrations in halakhic literature, and thus festive meals marking such occasions could not be deemed se'udot mitzvah (banquets in fulfillment of religious obligations). He even forbade the use of synagogue premises for such ceremonies.1

In the absence of a text or precedent he had no role to play as a jurist in the halakhic tradition. On the other hand, Rabbi Isaac Nissim, former Chief Rabbi of Israel, did find a precedent for such banquets in a collection of unpublished responsa by a Sephardi scholar, and he consequently permitted them.2 But neither rabbi chose to take into consideration contemporary pressures for the equality of the sexes.

Similarly, halakhic experts refused to consider granting equal status to sons and daughters in inheriting estates of their parents. There is no authority whatever for such a move in either biblical or rabbinic literature, especially with regard to the father's assets, although with regard to a mother's assets there was such a minority view in favor of daughters inheriting equally with the sons in both the Babylonian and Palestinian Talmuds.3 As a result, a determined effort by the late Chief Rabbi Isaac Herzog to legislate equality ended in failure. Those committed to the analytical approach cannot act in the absence of well-accepted texts and authorities in halakhic literature.

Because of their total commitment to what the law is, as it has come down from the past, halakhic authorities are especially intransigent with regard to many problems of modern medicine. The old texts simply did not envision the developments that the halakhah must now face. The question of the permissibility of organ transplants can serve as an example.

In certain cases an organ must be removed from the donor before the moment of death as the latter is defined in the halakhah, that is, before the cessation of respiratory and/or cardiac activity. A talmudic source (Yoma 83a, 85a) dealing with the desecration of sacred days in order to save a person's life states that so long as there is some respiratory or cardiac activity he is presumed capable of being revived, and no effort must be spared to save him. Total, irreversible, brain damage is not a factor; it has been assumed for millennia that a person is alive no matter how dead his brain is. Jewish law, for reasons that are cogent, tolerates no mercy killing. Notwithstanding the arguments of many ethical philosophers today, Judaism is opposed to any acts that would put an end to the misery of conscious patients or the helplessness of the unconscious.

However, if a man leaves instructions that, should he suffer total, irreversible, brain damage, his heart or kidneys are to be donated to a patient in need of them, are his wishes to be honored? Two questions arise here. Is the surgeon permitted to "murder" one person to save the life of another who otherwise would die? May one deem a donor the master of his own body to the extent that he can authorize such "murder" to be committed against his own person? The position of the halakhah with regard to killing a human being is well-nigh absolute. Whereas the killing of an attacker and the execution of a criminal are permitted, there exist no precedents for killing one person in order to save another; a talmudic maxim (Sanh. 72b) enjoins one from preferring one person's life to another's. The halakhah does specify priorities when the issue is whose life should be saved when a choice is possible, but the problem of organ transplants was never contemplated; a purely analytical approach can yield no answer, because the old texts never envisioned the new situation. The surgeon would indeed be a "murderer."

To return to the question of the donor: may he authorize the gift of his organs, even though consummation of the gift will involve his own death? Suicide is prohibited by the halakhah. Nevertheless, one may risk one's life to save another, and one is even exhorted to martyr oneself to sanctify God's name; one must also engage in war to protect one's people and one's country. Thus there are precedents that permit what might be regarded as the equivalent of suicide. However, logical analysis demonstrates that these cases differ from that of the donor, who unimpulsively, after long premeditation, decides to be heroic and authorize his own death in order to enable another human being to live with consciousness, a blessing he himself will no longer have. Unless he applies a non-analytical approach to the halakhah, a rabbi today cannot approve of this heroic decision; and even other approaches do not enable him to add one more instance to the list of situations in which taking one's life is a mitzvah—a noble deed. The texts and authorities that specify the situations in which one may fulfill kiddush ha-Shem by martyrdom do not include dying to save another from such a fate.

The late Chief Rabbi Abraham Isaac Kook did suggest—and he is the sole authority to have done so—that the heroic sacrifice of one's life by submitting to certain death to spare another from a similar fate may be permitted. Often in Jewish history individual Jews did precisely that—they offered themselves to the enemy to save groups or communities or even other individuals whose lives they deemed worthier than their own. But there was no halakhic authority that permitted this. On the contrary, a talmudic maxim supports the view that one's own life has the highest priority; to meet this difficulty, Rabbi Kook suggested that this maxim may be permissive, rather than mandatory (Mishpat Kohen (19662), No. 143, cf. ET, 10 (1961), 347). The Talmud (BM 62a) suggests that if one of two individuals traveling in a desert has just enough water to save his own life, he need not share it with his companion. The opposite view—that both shall drink and neither see the death of the other—is not the prevailing one. But may the owner of the water give it to his friend, and thereby sacrifice himself? Rabbi Kook thinks that he may, but this too would hardly be an authority that would, for example, permit one to place one's body in the path of a bullet destined for one's son. And it certainly would not justify the donation of a heart or a kidney to be taken from the donor when he suffers irreversible brain damage. In these two situations one is destroying oneself by action rather than inaction. For, as stated, the analytical approach is bound by texts and authorities, and permits virtually no consideration whatever of imperatives other than divine ones already established. The impulse of the heroic parent to save his child has no support in the literature and therefore may be halakhically objectionable.

THE NO-RISK APPROACH

An added factor which tends toward a rigid approach to the halakhah derives from the fact that, because the halakhic imperatives are divine in origin, many authorities dread using even the analytical approach for anything other than broadening the prohibitions, since one should not incur any risk with regard to God's will. Since that will is indescribably sacred, one dare not risk acting in violation of it! If in doubt about the permissibility of a particular deed, the best course is to avoid action.

For a devotee of the law, its prescriptions require at least as much caution as is exercised with regard to personal health or safety. One does not drink a potion that may be only doubtfully poisonous, and one does not cross a bridge which may be only remotely liable to collapse. By the same token, one does not marry a person about whose legitimacy there may be the slightest reservations. And one does not, for example, bring into being children by artificial insemination, with the donor someone other than the husband, because one rabbi or another expressed the view that such offspring may suffer the taint of bastardy, even though the overwhelming majority of authorities hold the contrary view. (There can be no bastardy according to the halakhah unless there has been literal sexual intercourse.) But when one distinguished halakhic authority in the United States published this view he was mercilessly attacked as rash and brazen by the followers of one hasidic rabbi, even as he himself subsequently attacked Chief Rabbi Shlomo Goren of Israel for his opinion regarding the competency of the Langer sister and brother to marry. The "no-risk" approach has much to commend it when it is invoked to determine one's own course of action. However, it is certainly not approved by the halakhic tradition as a suitable approach when others are involved. Indeed, the Talmud lauds those authorities who have the courage to permit rather than prohibit.

Especially with regard to the development of Jewish family law in the modern era, the "no-risk" approach is stifling. Jewish family law is presently palpably unfair to women. For them to enjoy complete equality in the area of divorce it is necessary once again—as in the distant past—to renew the exercise by rabbinical authorities of their power to annul marriages. In this way also the agunah problem can be solved, whether it is caused by the husband's disappearance without trace, or the refusal of the recalcitrant brother-in-law to release his brother's childless widow. The annulment of marriages is a great power which only courageous rabbis will undertake; those who shun risks will avoid it like the plague.

THE LEGITIMACY OF DIVERSITY IN INTERPRETING DIVINE LAW

Persons unfamiliar with halakhic literature often wonder how there can be so many different Orthodox views when the analytical and no-risk approaches enjoy such overwhelming support. After all, if logic rather than history and experience is the life of the halakhah, can logic yield so many contradictory answers to the same question? Moreover, they question whether a revealed religion can ever evolve. Given that God's will is timeless and eternal, can man arrogate to himself the right to change it?

In general, a pat negative is assumed to be the correct reply to such questions; as a result, many Jews have come to regard Orthodox Judaism as monolithic—as having a fixed philosophy, and a completely inflexible approach based on Jewish Law. The very term "Orthodox" conjures up the image of a central authority, comparable to that of the Pope, who makes ultimate decisions binding upon the faithful. This is, however, not even true of Roman Catholicism, and far less so of Orthodox Judaism. There have always been, and still are, different modes of Orthodox Jewish thought and practice, and Orthodoxy has always admitted a great measure of innovation. It is a fact that Orthodox Judaism has more splinter rabbinic groups than either Conservative or Reform Judaism. While Conservative and Reform rabbis are predominantly American, Orthodox Judaism has substantial rabbinic groups all over the world, their number and diversity often reflect ideological as well as national and geographical differences, and members not infrequently espouse ideas that are atypical for the particular groups to which they belong.

A few examples from contemporary Jewish life will show that not all Orthodox Jews think alike or act alike. Orthodox rabbinical seminaries disagree as to the propriety of studying non-Jewish culture. New York's Rabbi Isaac Elchanan Theological Seminary, by far the largest, advocates the mastering of all Western thought in order to create an ultimate synthesis with Jewish learning, and it was with this aim in mind that it founded Yeshiva University. Others hold that secular studies endanger faith, and that if a rabbinical student wants a baccalaureate degree, it would be better for him to major in a subject that would not impinge upon his religious convictions—mathematics, for example. Others simply forbid their students to study anything other than Torah. This is the position of most yeshivot in Israel. In the United States, one large group of Orthodox rabbis today cooperates with their Conservative and Reform colleagues in whatever areas their programs are similar, whereas others even refuse to address them as "rabbi."

There is also a wide spectrum of opinion with regard to the re-establishment of the Sanhedrin. Even proponents of the idea are not in agreement: some want a central authority solely to impose uniformity in Orthodox practice throughout the world, whereas others wish to effect changes in at least rabbinic, if not biblical, law. Opposition to the Sanhedrin among Orthodox Jews includes both "rightists" and "leftists." The "rightists" oppose a Sanhedrin on the ground that the present generation is not pious enough to make any changes whatever in Jewish Law. The "leftists" are in dread of what those who controlled a Sanhedrin could do; they prefer that freedom that still prevails in Orthodoxy because of the very absence of a central authority.

THE VERY NATURE OF THE HALAKHIC SYSTEM EVOKES DIVERSITY

Although the term halakhah is generally used to describe the literature of Jewish law, in contradistinction to the aggadah, which comprises the non-legal literature of Judaism, in fact Jewish law comprises much more than is generally deemed law by modern states. It is important to bear this in mind when trying to understand why there is so much diversity of rules and why there are so many different approaches to its development, even among those fervently commited to it.

In modern states one of the most important characteristics of a law is its enforceability. A law without sanctions is not regarded as law at all, but as mere exhortation. Yet a very substantial portion of the halakhah is only exhortation, directed only to the conscience of individuals. No action by courts was ever contemplated in such matters. Disobedience often entails no punishment by human tribunals. Moreover, the halakhah does not hesitate to prohibit action of which no one other than the actor is aware. It also enjoins the mind with regard to beliefs and attitudes. Halakhah is much more than law insofar as it encompasses almost all the behavior and thought of those who live by it.

In a system in which the scope of law is limited in that it deals only with matters that can be brought to court for final resolution, there must be an ultimate authority that hands down decisions binding on all the courts within that judicial system. No judicial system could tolerate for long a situation wherein different courts in the same jurisdiction apply the law differently. That would in effect mean that all citizens are not subject to the same law, a denial of the basic ideal of equality before the law. In the United States, for example, the United States Supreme Court is frequently called upon to make the final decision when lower courts in different regions arrive at contradictory rulings. The Supreme Court makes the decision which then binds all the judges in the land. However, since the halakhah—even when ideally there is a Sanhedrin and a system of lower and appellate courts—pertains so overwhelmingly to matters that never come before courts for resolution—matters pertaining principally to personal behavior, with no sanctions attached—there is no way to impose the will of an ultimate authority on the diversity of opinions that are advanced. It is virtually impossible to create regimentation. There are differences with regard to almost every new issue that arises. In addition, in matters of religious observance there is a plethora of local custom. In matters of creed there is hardly ever precise formulation. And with respect to almost all matters that do not evoke the resistance of another, an applicant is practically always autonomous both with regard to the choice of an authority as well as whether to obey or not.

It thus appears that the presumably totalitarian character of the halakhah contains a paradox. On the one hand, because the halakhah affects almost everything that a person thinks, says, or does, his personal freedom is radically proscribed. On the other hand, precisely because its scope is so extensive and most of it is beyond the possibility of enforcement, the rules and opinions that it contains defy description and make it the least monolithic system of law known to legal scholars in the west.

It has been suggested that the existence of so much diversity of opinion in the halakhic system is not intrinsic, nor ideal, but rather one of the unfortunate consequences of the Jewish dispersion. "Ideally," it is said, the halakhah "envisages some ultimate authority in which there is vested the final responsibility for the determination of all questions which fall within the purview of problems to be settled by reference to halakhic standards."4 This is simply not true unless the ultimate authority meant is God Himself. So long as it is only men who exercise the authority, not even a unanimous Sanhedrin relieves the Jew of his obligation to ignore its decision when he knows it has erred.5 He must obey the Sanhedrin if he is acting as a judge in a lower court; without such a rule, there would be anarchy in the judicial system. Moreover, if the Sanhedrin is trying to establish its authority in a period when there is the threat of chaos, it is the moral obligation of the dissenter to make his contribution to the establishment of order. In addition, when the decision affects persons other than himself, he cannot, of course, use his dissent as an excuse for disobedience. However, when the mandate pertains to his own religious observance, and he is certain that he is right and the Sanhedrin is wrong, he must express himself and act accordingly. Thus even ideally neither a majority nor a unanimous Sanhedrin becomes a surrogate for personal commitment to the Covenant and the will of God that must be fulfilled because of it.

Furthermore, the halakhic system prescribes much that can never fall within the purview of problems that enter the jurisdiction of the Sanhedrin. For example there is a wide range of prohibitions the flouting of which draws neither divine nor human punishment. Of these prohibitions the individual Jew can, if he so wishes, be critical, and he can disobey them with impunity. Insofar as such matters are concerned, even the halakhah's highest tribunal engages in nothing more than exhortation. And surely if, in the exercise of personal autonomy the will of the Sanhedrin can be flouted in matters involving biblical mandates, all the more can this pertain when the prohibitions are only rabbinic ordinances!

What, then, unites all who are committed to the halakhah, those presently called "Orthodox"? It is simply the belief that from the Covenant between God and Israel there emerged the obligation to obey His Law, which is subject to change and development only as that Law—Written and Oral—made such change and development possible. The dissenter, or the champion of a new rule, must base his dissent or his call for legislation on these fundamental norms and the methodology they prescribe. This essay purports to describe some of the ways in which halakhists, both now and in the past, undertook or declined to be creative, and either permitted or prohibited, or proposed revision or retention of the rules, without feeling limited by the analytical and no-risk approaches. These approaches enjoy substantial support in halakhic literature. It is principally the ultra-conservatism of present-day "doctors of the Law" that deters them from being as creative as they could be were they to enrich their process of decision-making by taking into account more data. Occasionally they do—but not often enough.

CONSIDERATION OF PSYCHOLOGICAL DATA

There are in the Talmud at least two instances in which the sages were at a loss on the interpretation of biblical commands. The verses involved lent themselves to different interpretations which, according to the analytical approach, could be regarded as equally valid. The problems were resolved on one basis only. The sages favored the interpretations which people would find more acceptable, for they held that the Torah's ways must be "ways of pleasantness."6 Thus they yielded exclusively to a psychological factor—the greater aesthetic appeal of the procedures which they ordained and they rejected alternative possibilities which seemed repugnant.

A number of responsa in modern times reveal that psychological data are not altogether ignored. Thus on the Sabbath one may do many things otherwise prohibited merely in order to allay the mental anguish of the sick even if there is no real danger to life. A distinguished modern halakhist has laid it down that husbands should travel to the hospital on the Sabbath when their wives are in labor, not only in order to provide added peace of mind to the prospective mother, but also to draw public attention to the fact that life-saving in Judaism is of supreme importance, and thereby to enhance respect for the tradition as a whole.7

Similarly for the education of the young it is permitted to disregard certain requirements about the presence in a minyan of ten Jews who have reached their majority, and to include minors in this quorum. Moreover, for educational goals even the biblical command not to take the name of the Lord in vain can be ignored. As yet, very few rabbis have been equally liberal with regard to the same issues insofar as women are concerned. The argument in favor of males who are minors is that they are being trained for their later performance as adults while women will never have those obligations; however, it could be claimed that by indulging women the same privileges one is helping to train future mothers who presently bear the greater burden of training children in Judaism.

However, it is especially in family law that the use of psychological data should and can play a greater role than is now the case. The Talmud, for example, asks why a woman betrothed to a man who died before consummation of the marriage—and thus in need of a release from a surviving brother-in-law (halizah) before being permitted to remarry—cannot obtain annulment of the betrothal on the ground that her husband's untimely death was a circumstance that would have deterred her from entering upon the marital relationship. The answer is that there is a presumption that every woman prefers any kind of a marriage, even a bad one, to living alone. But this presumption cannot be said to reflect modern conditions. In today's society, which has witnessed the "Women's Liberation" movement, it can be said unequivocally that the overwhelming majority of women would prefer to be single and cope very well as such, rather than be bound in any way to dead men or their kin. Nevertheless, rabbis are reluctant to make decisions and either reinterpret old rules or legislate in the light of such well-known psychological facts.

Furthermore, while rabbis have taken physiological facts into consideration in connection with the annulment of marriages, only rarely do they reckon with psychological disorders of the husband (except for homosexuality) to arrive at the same result. In one interesting case8 Rabbi Moses Feinstein did precisely that, and again he was made the butt of fierce criticism. However, halakhic literature indicates that the early masters were as conscious of the psychological as they were of the physiological in all areas. Maimonides might almost be regarded as an expert in psychosomatic medicine. The reluctance to exploit this method to administer justice to those who seek it is not due to the dearth of halakhic authority, but rather to a psychotic fear that all that is modern is taboo.

CONSIDERATION OF SOCIOLOGICAL DATA

The social and economic needs of Jews were always considered in halakhic literature. Rules pertaining to man's relationship with God, such as rules of cleanness and uncleanness and rules involving the Sabbatical year, were often either suspended or strengthened to accommodate such needs.

During the Middle Ages Jews found that several rabbinic rules prevented them from engaging in business with non-Jews. For instance, it was prohibited to enter into business partnerships with them, the reason being that in the event of a disagreement between the partners, the gentile would be required to take an oath by his god. In the Middle Ages the prohibition was relaxed by the decision that Christians were not to be regarded as idol-worshippers. The analytical approach would have sufficed to justify the change—Christianity had also outlawed paganism, and the rabbinic rule was directed against pagans. But for seven or eight centuries no official pronouncement was made on this point, and the prohibition continued to apply to Christians as well. However, cooperation between Christians and Jews in business had not yet attained the dimensions that prevailed in the days of Rabbenu Tam (12th century), when the prohibition was relaxed, and apparently the social and economic needs of the time precipitated his modification of the rule and common practice.9

The rabbis today may not be as courageous as their forbears, but nonetheless this approach is still used occasionally, and is very much to be encouraged. Thus, for example, Rabbi Menahem M. Kasher dealt extensively with the problem of the international date line and its effect upon the Sabbath. According to the presently effective international agreement, when it is the Sabbath in Israel it is Sunday in certain parts of the Pacific. Now, when shall Jews in these Pacific islands observe the Sabbath—on the seventh day by their local calendar, or on Sunday, on the theory that it was God's intent that the Sabbath day be computed with Jerusalem as the center of time?

The problem is reminiscent of the great medieval dispute as to whether the earth or the sun was the center of the universe. The Church chose the earth and any other opinion was declared heresy. Similarly, many rabbis argued that Jerusalem was the center for the computation of time, and that no other place would satisfy the requirements of Jewish law. Against this view Rabbi Kasher marshalled all the sources, and he was upheld by Israel's Chief Rabbinate when he asserted that the international date line was binding on Jews. Actually Rabbi Kasher has been anticipated by earlier authorities but what makes his decision particularly interesting is that one of his arguments is sociological. He stated, for example, that if "the nations of the world in years gone by used their own capitals" for the purpose of measuring time, it reflected their concern for national pride and honor. We should not imitate them... particularly when they have waived their honor and agreed upon a more reasonable approach. His decision was also influenced by the practice with regard to the Sabbath already prevailing among Jews in the areas affected by the date line. Thus an awareness of what is good for humanity at large played an important role in his decision.

Those familiar with the few responsa that Rabbi Joseph B. Soloveitchik has written are also aware of his great concern not only for halakhic sources but also for social facts. Thus, for example, a generation ago there arose a halakhic problem that involved the armed forces of the United States, which required Jewish chaplains. The three largest rabbinic groups in America—Orthodox, Conservative and Reform—instituted a draft procedure: rabbis were to be drafted compulsorily by their own rabbinic groups. For Orthodox rabbis, there was a significant halakhic problem. Could rabbis undertake to place any colleague in jeopardy? Furthermore, could they undertake to place a colleague in a position that might one day compel him to desecrate the Sabbath or another holy festival?

To this query Rabbi Soloveitchik gave an affirmative reply. In a magnificent unpublished responsum based on a keen analysis of talmudic sources, he upheld the action of Yeshiva University in calling for the drafting of its alumni for the military chaplaincy. He cited a medieval text permitting one to embark upon a voyage to fulfill a mitzvah, even though it was possible that in the course of the voyage it might be necessary to desecrate the Sabbath in order to save one's own life or the life of another. Rabbi Soloveitchik admitted that he had not approached the sources with complete objectivity; that he had certain intuitive feelings and held certain basic values that prejudiced him in favor of the decision rendered by Yeshiva University had guided him in his exploration of the various aspects and facets of the problem. But this lack of objectivity is merely a fundamental avowal of inevitable human limitation, and is not to be confused with arbitrariness. As anyone who has studied the Talmud knows, the halakhah is too objective a discipline to permit an approach based on transient moods. Nevertheless, in the deepest strata of halakhic thinking, logical judgment is preceded by value judgment, and intuitive insight gives impetus to the logic of argument.

An important factor in his decision was the status of Orthodox Judaism in the eyes of the non-Orthodox and in the eyes of non-Jews—simply the matter of public relations. This consideration also played a part in his halakhic analysis of the question whether it was proper for Orthodox rabbis and synagogues to be associated with the non-Orthodox in the same organizations. What people would say about the separatism of the Orthodox was not to be ignored. What people will say is not a factor to be ignored in halakhah.

It is lamentable that today's "doctors of the Law" choose to remain oblivious of the negative impressions of the halakhah they are conveying by their ultra-conservatism. While on the one hand, their rigidity may conserve the tradition, on the other hand it is alienating thousands of Jews from the Law.

THE USE OF HISTORY

The dates of Jewish history have always played a role in halakhic development; the Wissenschaft des Judentums of the nineteenth century is not to be credited with this discovery. Much of Jewish law has its unmistakeable source in the events of the Jewish past and these events account for much biblical and rabbinic legislation. However, historical considerations also played a part in the revision of halakhic rules. Thus, for example, several rabbis held that a ruling promulgated by earlier authorities on the basis of conditions existing in their time was no longer applicable when the conditions changed; so there need be no formal nullification of the rule and it becomes obsolescent automatically. It was presumed that the original legislation was predicated on the continuance of the situation that existed at that time and that the rabbis who instituted it intended it to lapse automatically when the situation changed. R. Menahem ben Solomon Meiri (13th–14th century) was so bold as to suggest that there were only two rules that were impervious to this obsolescence: they involved the existence of the Temple in Jerusalem, and the promulgators of those rules could never have had in mind the destruction of the Temple and the exile of the Jews.10

On the basis of historical considerations, Menahem Elon has made a challenging suggestion for the liberalization of Jewish family law in our day. The question has been raised why rabbis today hesitate to liberalize the halakhah so that they would be enabled to annul marriages as their forebears had done up until less than a thousand years ago. It is universally recognized that without renewed exercise of this power it will be almost impossible to accord women their due and to relieve them of many of the disadvantages and disabilities that the halakhah imposes upon them. Moshe Silberg has been the most articulate exponent for such a move and many Orthodox rabbis—especially those in the active rabbinate, as opposed to those who are the heads of yeshivot—agree with him. It is the rabbis who serve congregations who have to encounter day after day the inequalities of the halakhah with respect to women, and it is they who clamor for the revival of an ancient rabbinic power. The resistance to Silberg's proposals is enormous, and despite the impressive arguments in support of him in unimpeachable scholarly works like the Tenai bi-Nissu'in u-ve-Get (1967) of Eliezer Berkovits there is no movement forward. The principal argument of the opposition is that for centuries rabbis have hesitated to do what Abraham H. Freiman demonstrated was done in the Middle Ages and earlier (Seder Kiddushin ve-Nissu'in Aharei Hatimat ha-Talmud (1945)). On what basis can one resurrect a power that may have lapsed because of lack of usage—a species of legal atrophy?

Elon counters this challenge on the basis of history.11 The power lapsed, he argued, because of the dispersion of Jews. It was unwise when Jews lived in hundreds of communities greatly distant from each other, and often without adequate communication, to exercise the power to annul marriages when one rabbinical court in one place would act on grounds or on the basis of takkanot not recognized by another court. One court would then hold the couple still wedded to each other while another court would regard them as divorced. Today, however, the centrality in the Jewish world of the rabbinical courts of Israel is generally accepted, there is no reason that the power should not be revived and the enactments of Israel's supreme religious council recognized everywhere. This is an instance of the historical approach paving the way for real progress in halakhic development.

THE TELEOLOGICAL APPROACH

This approach simply calls for recognition of the teleology of the halakhah—the purpose which Jewish law is to fulfill. It is the boldest of all the controversial approaches, because halakhists were always reluctant to interpret the law with an eye to the achievement of its goal when the goal was not explicit in either biblical or talmudic literature. However, this has led to a tragic paradox. Louis I. Rabinowitz has made the telling point that in Israel today, were persons living in the same building to agree that occupancy was limited to "religious" people, a breach of that agreement would occur if a tenant drove his car into the parking area on the Sabbath, but not if he were found guilty of embezzlement.

A more tragic consequence of the refusal to reckon with the law's purpose is that many rabbis who resist changes in Jewish family law are committed to the idea that they want to preserve the integrity of Jewish family life and the unequivocal legitimacy of Jewish offspring when in fact their intransigence is only multiplying bastardy all over the world. Fortunately most of the tainted will never be identified, but the champions of no action prefer to play it safe rather than take the measures that would prevent increasing incidence of the stigma.

Indeed, one rabbi has argued that the annulment of marriages would mean that the offspring of such marriages will be deemed bastards by rabbinic standards, and quotes good authority for his view; however, he completely ignores the fact that the equally competent authority cited in the very same passage holds that this is a good way to legitimatize the status of many bastards and views this as a great gain for the Jewish people!

Perhaps it was because rabbis could not always agree on the purpose of the law that it was regarded as safe to rely on texts alone in judicial decision-making. Nevertheless, occasionally there were rabbis who did not hesitate to say that intuitively they felt what the correct decision was—on the basis of ethical or even political considerations—and they later supported their intuition with relevant texts. Indeed, were more rabbis to be this candid it would be discovered that a personal philosophy is a very important factor in the process. Needless to say, the conclusion must be based on the law, and its vast literature, and the reasoning must be objective and able to withstand criticism by peers. The subjective element cannot be the basis for decision, but honesty requires that its presence shall not be denied. If rabbis have no sympathy whatever with the demands of modern women for equal status in the Jewish law of marriage and divorce, they will find texts adequate to support their intransigence. If, however, they feel that the present situation is simply intolerable and an insult to God and God's law, they will be vociferous and militant in making use of the halakhic authorities and the texts available to propose revisions in the halakhah. They are no less "Orthodox" than their colleagues, and indeed, they may even be more halakhically "authentic."

It is not only with regard to family law that the teleological approach is important. Another area involves the taking of interest or usury. The unrelenting erosion of the biblical and talmudic prohibitions against the taking and giving of interest has reached its climax in Israel, whose citizens are not only the most highly taxed people in the world but also the victims of the highest rates of interest. The moneylenders include banks and individuals identified with the strictest halakhic commitment. How will this travesty come to an end? One must ponder the rationale of the biblical and talmudic rules and then consider which needs of Jews in a Christian world prompted their relaxation, and finally ask whether in a Jewish state—among brothers and "a holy people and kingdom of priests"—some of the earlier prohibitions should not be restored.

In the matter of organ transplants, only the teleological approach can be productive. The Talmud tells us of that when people are in danger there is a list of priorities as to who is to be saved first. The criterion is the extent to which the person to be saved has the burden of mitzvot. The more halakhic obligations a person has, the greater is his worth for purposes of survival. A person with irreversible brain damage can perform no mitzvot. Perhaps, then, he should not be denied the choice to help another to perform many by his voluntary gift of parts of his body by means of a consent signed while he is still competent.

The leading halakhic authorities of our day differ among themselves as to how much of Israel's sacred soil may be returned to neighboring states in order to achieve peace and security. Some hold that none can be returned. It is a mitzvah to conquer the land—and the cost of war is immaterial. This one commandment transcends the commandment to save life. Others are not so sure. The analytical approach certainly justified the uncompromising position. However, by a teleological approach one must posit the survival of the Jewish people as a halakhic desideratum that is virtually an absolute. It might therefore not be a mitzvah to hold on to conquered territories and face the threat of annihilation. The mere fact that very distinguished halakhic authorities in Israel and in the Diaspora so hold is evidence of the fact that they are using the teleological approach even though they do not articulate it as such.

Perhaps the most dramatic use of this approach is to be found in the ruling of at least three of Israel's greatest halakhic authorities—Chief Rabbis Kook and Herzog and Rabbi Avraham Yeshayahu Karelitz, known as the "Hazon Ish"—that there is to be no religious coercion in the new state. There is no doubt that halakhic literature approved of religious coercion. The Jew who refused to perform any of the commandments could be subjected to lashes until he consented to conform. There was a single exception—the Jew who in his infancy had been taken captive by non-Jews and raised without the benefit of Jewish society and Jewish indoctrination. The refusal of such a Jew to accept the yoke of the Torah could be condoned. To preclude religious coercion in the modern state of Israel (although there are still extremists who hold to the more traditional view and deem every non-conformist as one unworthy of survival), it was held that every modern Jew is in the category of a Jew who was taken captive by non-Jews. Certainly this borders on legal fiction. Most Israelis for whose benefit the ruling was originally made were not only raised in a Jewish society but in a religiously committed one. They rejected that background and chose instead one of several other available philosophies of life and action. Why, then, should they be exempted from religious coercion, even were the state in the control of rabbinical authorities?

One must concede that considerations other than strict law prompted the relaxation of the talmudic rule. It is simply not feasible in the modern age to exercise religious coercion. Just as no proliferation of police can safeguard moral sexual behavior in any society, so no religious enforcement is possible. And the same applies to the entire galaxy of Jewish rituals. However, there is a more cogent reason for the change in the talmudic rule. That rule was designed to insure that in a closed Jewish society the deviationist would not place in jeopardy the very factors that made for the sentiment of social solidarity. Occasionally an individual could leave that society at his own risk, but discipline had to be maintained to consolidate its ranks internally. However, in a generally open society and with Jewish society equally open, religious coercion would be counter-productive. Instead of consolidating Jewish ranks it would decimate them. The rabbis were thus wise to recognize that the law's purpose would be served better by regarding every Jew—even those raised within the ghetto walls—as a child who had been taken captive. In the final analysis we are all captives in a world whose endless variety of doctrines fill the atmosphere and reach every one of us, even via the ether.

CONCLUSION

The very nature of the halakhah as a legal system makes for a great diversity of opinions as to what rules are binding on Jews committed to it. However, the diversity itself is the result of many diverse approaches to the development of the halakhah within the framework of its own methodology and the vast sea that are its sources. The sea feeds many rivers and tributaries, but somehow all the waters end up in the same sea—which is the glory of Judaism and the means by which the Jewish people forever remain afloat.

NOTES

1. Iggerot Moshe, Pt. Orah Hayyim, 1:104.

2. See Tradition, 14, 2 (1973), 126–7.

3. BB 111a; TJ, BB 8:1, 16a.

4. W. S. Wurzburger, "Plural Modes and the Authority of the Halakhah", in: Judaism, 20, 4 (1971), 391.

5. Horayot 2a and 3b.

6. TJ, Sukkah 32a-b. See also Yevamot 15a and 87b.

7. Iggerot Moshe, Pt. Orah Hayyim, 132.

8. Iggerot Moshe, Pt. Even ha-Ezer, No. 80, 190–2.

9. E. Berkovits, "The Role of the Halakhah," in: Judaism, 19, 1 (1970), 68.

10. ET, 6 (1954), 703, and footnote 44.

11. M. Elon, in: Petahim, 4/5 (Sept. 1972), 24–25.

[E.Ra.]

Year Book 1975–76 Feature

The Conservative Attitude

The origins of Conservative Judaism as a whole, and its attitude towards the halakhah in particular, are to be traced to the rise and growth in the 19th century of the scientific, objective study of the history of Judaism, its literature and institutions. Commonly referred to by its proponents as the "Science of Judaism" (Wissenschaft des Judentums), it was based on three fundamental principles. In the first instance, it viewed Judaism as the product of a long, continuous inner development, responsive to its changing historical setting. Secondly, it was based on the conviction that Judaism owes its survival to the organic continuity that characterized it in all its successive phases. Finally, it held the view that history puts a stamp of sanctity on common religious practices that have been observed by the Jewish people over a long period of time. In the light of these considerations, its founders adopted, and became known by, the rather ponderous term the "Positive-Historical School in Judaism."

The first to draw the practical implications of these studies for contemporary Judaism—though adumbrations are to be found in the writings of other scholars of this school, especially in those of Leopold Zunz in the field of liturgy and Isaac Hirsch Weiss in the field of the history of the Oral Law—was Zacharias Frankel, who, as a result, is commonly regarded as the founding father of Conservative Judaism.

Frankel's sharp reaction to the pronounced anti-halakhic views of the early proponents of Reform Judaism must be seen as an additional factor in the genesis of Conservative Judaism's attitude towards the halakhah.1 He makes obvious reference to it in his programmatic statement on the founding of the Breslau Seminary. Thus, he writes, "We shall conceive it to be our task to avoid the kind of negative reform which leads to dissolution, but instead, to show how the teachings of Judaism itself contain the possibility of progress."2 Frankel participated in the Frankfort rabbinical conference held in 1845 sponsored by a number of rabbis sympathetic to the then burgeoning Reform movement. However, when the conference refused to adopt the principle proposed by him to the effect that the historical-positive attitude forms the basis of Judaism, Frankel withdrew. The actual question on the agenda was whether Hebrew was to be retained as the language of worship. The adoption of the principle mentioned above, Frankel maintained, would automatically answer the question in the affirmative. Though the halakhah permits prayer in any language known to the worshipper, to approve the gradual elimination of Hebrew would be tantamount to ignoring the historic-positive principle, since Hebrew is organically intertwined with the very birth and growth of Judaism.3 Curiously, Abraham Geiger (1810–1874), who was destined to become an outstanding exponent of the anti-halakhic attitude in Reform Judaism argued at the time that since the halakhah permitted prayer in the vernacular, there could be no valid objection to the elimination of Hebrew.

Frankel's vigorous objection to the jettisoning of Hebrew as the language of prayer may well serve as a significant clue to his general outlook on the place of halakhah in Jewish religion and the possibility of what he termed "moderate reform." This outlook he set forth in an essay entitled "On Change in Judaism."4 Here, in what is actually a rationale for the halakhah, Frankel maintains that the specific laws of the halakhah have a twofold purpose. "These revealed laws are the guardians of Judaism, the never-slumbering watchmen of the holiest elements within it. They are designed to protect the highest truths [truths regarding the Godhead and morality divinely revealed in the Torah]...." Again, "through their practice man is enabled to bind himself to the divine.... The idea must clothe itself in a body, else it is lost to man. They express recognition of, and reverence for, the divine will; they themselves become spiritualized and carriers of spiritual impulses."

In justifying moderate changes in traditional religious practice in order that it might "achieve some agreement with the concepts and conditions of the time," Frankel, in the essay mentioned, appeals to history. "The early teachers, by interpretation, changed the literal meaning of Scripture, later scholars that of the Mishnah, and the post-Talmudic scholars that of the Talmud.... Thanks to such studies, Judaism achieved stabilization and avoided estrangement from the conditions of the time in various periods.... This [the acceptance of the Pharisaic non-literal interpretation of the verse 'An eye for an eye' (Ex. 21:24) as over against the literal Sadducean interpretation]5... because it led to the establishment of the principle that the letter of the law is not decisive but rather that the spirit must animate the law6 and raise it to a divine status worthy to become a norm to man who is himself endowed with spirit.... But on the other hand, they established a rule which was intended as a guardian and protector against undue change. It reads as follows: That which was adopted by the entire community of Israel and became part of its life, can not be changed by any authority."7... And yet, "when the people allow certain practices to fall into disuse, then the practices cease to exist."8 In nuce, the essay foreshadows some of the more basic propositions on which the Conservative attitude towards the halakhah has been grounded.

These propositions were to be echoed though in general form by some of the early members of the faculty of the Jewish Theological Seminary of America, the institution devoted to the training of Conservative Rabbis. Thus, Alexander Kohut (1842–1894), its first professor of Talmud, wrote in 1885: "The teachings of the ancients we must make our starting point; but we must not lose sight of what is needed in every generation.... If the power to make changes was granted to the Elders, is not that power equally given to us?"9 The centrality of the halakhah in Judaism is underscored in the writings of Louis Ginzberg (1873–1953) who, for half a century (1903–1953) occupied the chair in Talmud at the Jewish Theological Seminary. A typical passage may be cited. "... Whether for weal or woe in the development of Jewish History [the halakhah] became the specifically Jewish expression of religiousness. The dietary laws are not incumbent upon us because they lead to moderation.... The law as a whole is not the means to an end but the end in itself.... The law is active religiousness, and in active religion must lie what is specifically Jewish."10 In his scholarly books on rabbinics, Ginzberg employed the method utilized by the Positive-Historical School, taking note of the growth and development of the halakhah in the past in response to changing social and economic conditions.11 In general terms, Ginzberg was prepared to acknowledge that, for example, "the changes brought about in the social-economic situation of the woman in our day demand readjustment of her position in the religious life of the Jew."12 Only once, however, did he publicly issue a responsum on a question that agitated religious Jewry in his time—during the Prohibition Era in the United States.

In view of the law prohibiting the use of intoxicating spirits and wine, the question was raised whether according to the halakhah one is permitted to use unfermented grape juice for sacramental purposes. Though government regulations made provision for the sale of wine for sacramental purposes, under control, this exception was abused by unscrupulous persons far beyond its legal limits. Ginzberg wrote his responsum in the wake of numerous widely publicized scandals involving individuals connected with the religious establishment.13 After tracing the various codifications of the halakhah on the question, he appealed to public Jewish policy as a determinative factor in his decision permitting the use of grape juice for sacramental purposes. "The decision of the Magen Avraham that the commandment is honored best by the use of old (fermented) wine is rejected. Even this authority would admit that it is better to pronounce the Kiddush over new wine than to desecrate the Name and to disgrace the Jewish people, and we well know the damage caused the Jewish people by the trafficking in sacramental wine".

THE CONSERVATIVE PHILOSOPHY OF JEWISH LAW

A fairly consistent consensus on the basic principles of a philosophy of Jewish law may be gleaned from the writings of the adherents of the Conservative school who have written on the subject.14 These principles may be summarized as follows:

(1) The affirmation of the divine origin of the law, both Written and Oral. In asserting the divine sanction of the law, the writers of the Conservative school interpret the doctrine in a non-literal sense. Thus, Robert Gordis writes: "Like our predecessors in rabbinic, medieval and modern times, each of us is free to give the term a greater or lesser degree of definiteness and literalness of meaning."15 More specifically, Boaz Cohen in positing the divine origin of the law as a cardinal principle writes:16 "We understand by revelation the internal experience of the prophet permeated by the divine spirit rather than a perceptible event in the external world.... The inspiration which was not necessarily verbal or plenary was precipitated by a dynamic action of the Ruah ha-kodesh through the mind and heart of our sacred writers...."17

(2) The permanence of the law. Two complementary meanings are assigned to this classic doctrine; firstly, that the halakhah is the permanent requisite for attaining a fuller and deeper level of Jewish religious living and for achieving nobler human sensibilities; secondly, that the law cannot be abrogated but only amended by the traditional method of interpretation and enactment (takkanah).18

(3) Judaism consists not alone of law but of basic principles, e.g., "Thou shalt love thy neighbor as thyself" (Lev. 19:18); "In the image of God made He man" (Gen. 5:1). In rabbinic literature these are referred to as "Great Principles" (Kelal Gadol).19 When a conflict arises between the halakhah and such basic principles, the halakhah must give way to the principle of the religious and ethical values of Judaism.

(4) In interpreting the halakhah, consideration must be given not only to its letter but to its general aim and spirit. In such consideration, Jewish interests and the consequences of the specific decision are of significant moment.

(5) While change is a significant and characteristic aspect of the halakhah, a reasonable balance or polarity must be maintained between the fixity of the law and its viability in responding to changed circumstance.

Historical Grounding of the Conservative Philosophy of Jewish Law

The aforesaid principles underlying the Conservative attitude toward the halakhah are grounded in, and flow from, a variety of studies of the history and development of Jewish law pursued by the method fostered by the positive-historical school described above. A few examples are offered, culled from the sources of the halakhah and illustrative of the above basic principles. (No illustrations of the first two principles are given since these clearly constitute classical often-enunciated doctrine.)

(3) A conflict between law and principles. In talmudic terms, the authority of the Sages temporarily to suspend a biblical law in order to safeguard a basic principle of Judaism is denominated as a hora'at sha'ah (an ad hoc legal decision justified by special circumstance). The classic example, cited by the Sages, is that of the prophet Elijah's offering of sacrifice on Mount Carmel at a time when such sacrifice were biblically prohibited.20

A second example of setting principle above law when the two clash is afforded by the following talmudic discussion.21 The following question is raised: "Did not David violate the biblical injunction 'Sons shall not be put to death for the sins of the father' (Deut. 24:16) when he handed over the seven sons of Saul to the Gibeonites for execution?" The Sages respond that it is "better that a letter of the Torah be annulled rather than the name of Heaven be desecrated in public." Similarly, the Talmud21a justifies the action of Rizpah in violating a biblical law on the ground that it is "better that a letter of the Torah be violated in order to publicly sanctify the name of Heaven."

(4) Jewish interests and the general aim and spirit of the halakhah as significant factors in its interpretation. That the classical moulders of the halakhah gave serious weight in their legal decisions to public welfare is to be seen from the following examples. According to biblical law (Lev. 12:6–8), a woman was obligated to bring an offering to the Temple after each childbirth. Once, the price of pigeons—the type of offering to be brought by a poor woman after childbirth—rose exorbitantly. Whereupon, Rabban Simeon b. Gamaliel I (fourth generation tanna) declared that a woman was required to bring but one offering after several childbirths.22

To comply with the laws of hamez (leaven) on Passover, it was the common practice of householders to break and discard earthenware pots before the festival. In view of the sharply increased demand for such utensils immediately after Passover, merchants charged exorbitant prices. Thereupon, Samuel (first generation Babylonian amora) threatened to accept and promulgate R. Simeon's view (third generation tanna) that hamez earthenware pots need not be discarded before Passover. His threat sufficed to bring about an immediate reduction in the price of such vessels.23

It is a rabbinic principle that "the Torah has concern for the economic interests of Israel,"24 that is, it does not require excessive expenditures in order to fulfill its prescriptions. According to one opinion—that of the third generation Babylonian amora Rava—this principle is invoked in deciding ritual questions.24a

The final illustration in this area reveals the formative impact of historical circumstance in shaping halakhic decisions. The circumstance in question is that of the period following the Hadrianic persecution. Prior to the Hadrianic decrees, which attempted to suppress the practice of Judaism, it was Roman policy to exempt Jews from the payment of taxes during the Sabbatical Year since Jewish fields were not cultivated. In the wake of the persecution, this exemption was canceled and Jews were faced with the almost impossible obligation to pay their taxes even though their fields had lain fallow during the year. It is in the light of this circumstance that one is to understand R. Yannai's (first generation Palestinian amora) proclamation: "Go out and sow your fields on the Sabbatical Year that you might have the means to pay your taxes."25

That ethical considerations take precedence over ritual requirements is a permanent principle of Judaism that dates back to the days of the prophets. The principle is incorporated into the halakhah. Its concretization can be exemplified by the following halakhot. The classic example, perhaps, is the talmudic treatment of the biblical law of the rebellious son (Deut. 21:18–21). The law was deliberately qualified by the Sages by numerous limitations intended to make it unenforceable. Indeed, a baraita declares26 that the law was never put into effect and never will be. "Why, then, was it written? In order that you might expound it and thereby receive your reward." The ethical motivation for this kind of interpretation that rendered the law of the rebellious son unenforceable is made transparently clear by R. Simeon bar Yohai's (third generation tanna) question: "Because this lad ate about three ounces of meat and drank half a log (measure) of wine shall his father and mother take him out to be stoned?"

When an argument a fortiori—a universally accepted hermeneutic principle in rabbinic interpretation of Scripture—leads to a conclusion that is obviously inequitable, the conclusion is rejected by the Talmud because it runs counter to the spirit of the Torah, described in the Scriptural verse (Prov. 3:17), "Its ways are ways of pleasantness".27

(5) In interpreting the halakhah for our time, a creative tension must be maintained between the fixity of the law and change in response to altered conditions. The essential organic continuity of the halakhah through the ages is so striking as to lend some surface credence to the assertion put forth by Samson Raphael Hirsch (1808–1888), the distinguished ideologue of nineteenth-century Orthodox Judaism, that Orthodox Judaism knows nothing of a tradition that has a history in the course of the ages. However, an objective study of the halakhic tradition does reveal a process of organic growth and change achieved in the main by the method of interpretation. When the limits of the latter were reached, the method of enactment (takkanah) was employed. Finally, the Sages, in giving halakhic sanction to widespread common practice, which differed from the previously accepted mode, used the principle of "now-a-days" or, more literally, "in our time" (ha-iddana).27a A recent scholar, in categorizing the different types of interpretation employed by the Sages, characterizes one as "restrictive interpretation."28 His brief introduction to this section of his work merits quotation. "Just as interpretation served to extend the area of the halakhah, so at times, it served to limit the applicability of a particular law in varying degree. Examples of this function of interpretation are scattered throughout talmudic literature." The author then proceeds to analyze a number of typical examples.29

As indicated, the Sages had recourse to the method of enactment (takkanah) on the occasion, when not even the most ingenious interpretation of Scripture could conceivably yield the desired result. The Talmud traces various takkanot to remote biblical antiquity, attributing them inter alia to the Patriarchs,30 to Moses, to Joshua and to Ezra,31 evidence enough of the integral place occupied by the takkanah in the halakhah. The operative clause in the ketubbah, an essential aspect of the traditional Jewish marriage ritual to this day, is described by the Talmud as a takkanah enacted by Simeon b. Shetah (first century B.C.E. Sage).32 The geonic period witnessed the enactment of numerous ordinances, especially in the area of liturgy and synagogue practice.33 Some of them, as already pointed out by I. H. Weiss,33 are patently contrary to talmudic usage. From geonic times almost down to our own time, the takkanah has served as a typical halakhic method of adjusting the halakhah to changed social and economic situations.34

This above view of the development of the halakhah has furnished the historical precedent and warrant for the decisions and enactments issued by the Committee on Jewish Law and Standards of the Rabbinical Assembly, the international body of Conservative rabbis. There follows a partial enumeration and characterization of these as representative of the Conservative attitude toward the halakhah.

CONSERVATIVE HALAKHIC DECISIONS AND ENACTMENTS

On its establishment, the Committee on Jewish Law (the original name of the Committee) was charged by the Rabbinical Assembly with the duty of responding to halakhic questions put to it by members of the Assembly and to serve as a bet din for the issuance of gittin (writs of divorce). Its members consisted of musmakhim (rabbis who had received the traditional rabbinic ordination in addition to being graduates of the Jewish Theological Seminary). The principles that guided the Committee in formulating its decisions were set forth by its chairman in a paper entitled "Canons of Interpretation of Jewish Law."35 These include "the historical view of the law"; a distinction between law and custom (the validity of the latter is asserted where the custom is ancient and not repugnant to any fundamental principle of law or ethics); "the need for perspective" (that is, a distinction between essential Jewish religious practice and those which may be regarded as of secondary importance); "a reckoning with the spirit of the times" and "the continuity of Jewish law." The decisions of the Committee prior to its reorganization reflect a pronounced conservative character and are hardly to be distinguished from those of modern Orthodox halakhic authorities. Mention may be made, however, of its decision stating that a Rabbi who is a kohen may enter a cemetery in order to officiate at a funeral provided he does not step over a grave.36 On the more far-reaching issue, the problem of finding an halakhic solution for a woman whose husband has disappeared or who refuses to grant her a get (writ of divorce) despite a civil divorce (the problem of the agunah), the Committee recommended the adoption by the Rabbinical Assembly of a takkanah drawn up by Rabbi Louis M. Epstein.37 Halakhic scholars have deliberately refrained from enacting any takkanot even such as are aimed to give the woman a more equitable status in the area of domestic relations. Essentially, the takkanah called for the groom, at the time of the wedding, to authorize the bride to have a get written on her behalf by the bet din if the marriage should be terminated by civil divorce, or if the husband's whereabouts could not be determined. The proposal was adopted by the Rabbinical Assembly in 1935 but its implementation was postponed to Rosh Ha-Shanah 1937. The Orthodox rabbinate in both the United States and Poland immediately launched a vigorous campaign against the proposal, the former going so far as to put under the ban (herem) any Rabbi who would make use of it. None of the polemical literature attacking the proposal related to its halakhic validity, but simply stated that the Conservative Rabbinate lacked the authority to deal with halakhic matters. Under the barrage of attack, the proposal was quietly shelved and remained on the agenda of the Rabbinical Assembly until some time after the reorganization of the Committee on Jewish Law.

This took place in 1948 when the membership of the Committee was enlarged to twenty-three and its name changed to Committee on Jewish Law and Standards. The increase in membership was intended to provide the Committee with a broader spectrum of the views of the members of the Rabbinical Assembly. The number twenty-three was a reminiscence of the number of members of the Small Sanhedrin of mishnaic times. In its reconstitution, the role was adopted that unanimous decisions of the Committee were to be binding on all members of the Rabbinical Assembly. In case of a majority and minority opinion on a specific question, members of the Assembly were to be free to follow either the majority or minority opinion, but in no instance, to go beyond such opinion. (Subsequently, it was laid down that a minority opinion would be considered as such only if it had the approval of at least three members of the Committee.) The change in name—the addition of the term "Standards"—was meant to indicate that henceforth the Committee would seek to set standards for religious observance and practice, that, in some instances, would go beyond the requirements of the halakhah. Several examples of such standards adopted by the Committee since its reorganization may be offered.

In 1964,38 the Committee rendered a majority opinion on the question of the status of a Jew who had intermarried in regard to synagogue affiliation. The Committee declared that: "The Jewish party to the marriage may be accepted into membership in a congregation provided that there is a definite agreement that the children of the marriage shall be raised as Jews and converted to Judaism....The intermarried Jew while admitted to membership in the congregation shall not be entitled to hold any office...nor shall he be singled out for any honors." A minority opinion allowed the couple a limited period of five years in which to regularize their status (the conversion of the non-Jewish partner in the marriage to Judaism). Failure to convert to Judaism during this time would entail the dropping of the Jewish member of the marriage from the membership roster of the congregation. In his report for 1963,39 the chairman of the Committee noted that "in some areas, we have adopted more stringent rules than the halakhah requires.

Thus, we have forbidden the use of glass dishes for milk and meat. We have forbidden gambling in our synagogues. We have set higher standards for the admission of proselytes and for the bar mitzvah, bat mitzvah and Confirmation."

In its halakhic decisions and enactments, the Committee has rendered opinions on virtually the entire range of operable Jewish law and practice (such matters as are covered by the Orah Hayyim, Yoreh De'ah and Even ha-Ezer). The following is a precis of the major decisions in these areas, beginning with the problem of the agunah described above.

In 1953, the Committee, in co-operation with the Jewish Theological Seminary, convoked a Joint Law Conference to discuss and act upon a proposal drawn up by Professor Saul Lieberman to obviate future cases of agunah. The proposal called for the addition to the traditional ketubbah of an ante-nuptial agreement in which the couple about to be married agrees to respond to the summons of the bet din at the request of either party "in order to enable the party so requesting to live in accordance with the Jewish law of marriage throughout his or her life-time." Failure to appear and carry out the decision of the bet din would entail the payment of such compensation as fixed by the bet din.40 Some years of experiences with the operation of the agreement indicated that it was but partially effective since it was inoperable where a husband had disappeared. Moreover, legal opinion held that it would be unenforceable in the Civil Courts. Finally, in 1969, the Committee unanimously adopted and approved the procedure of hafka'at kiddushin (annulment of marriage) basing itself on the talmudic principle, rarely invoked during the course of the centuries, that "he who marries, marries with the consent of the Sages and the Sages have the right in such cases to nullify his marriage."41 The principle is embodied in an ante-nuptial agreement between bride and groom and incorporated into the traditional ketubbah. It reads: "But if our marriage should be terminated by a decree of the Civil Courts and if, by the expiration of six months after decree, I do not give you a divorce according to the laws of Moses and Israel (get) then our betrothal (kiddushin) and marriage (nissu'in) will have been null and void." "These annulments," the Committee noted in its report,42 "are granted only upon certification of an appellant rabbi and after painstaking investigation." In other words, in such instances where all efforts to obtain a get for a woman who has been divorced civilly had proven unavailing, the bet din of the Committee would declare the marriage annulled and thus obviate the necessity for a get and permit the woman to remarry in accordance with Jewish law.43

Under the rubric of Jewish marriage law may be included the Committee's decision in regard to the permissibility of marriages during the Three Weeks—between the 17th of Tammuz and the 9th of Av (traditionally, marriages are not performed during this period). The Committee ruled44 to continue the prohibition in regard to the fast days of the 17th Tammuz and the 9th of Av themselves but to permit weddings to be held from the 18th of Tammuz until and including the last day of Tammuz. Moreover, small weddings, either at home or in the rabbi's study, may be held from the first to the 8th of Av.

According to the halakhah, one who is a kohen (of priestly descent) may not marry either a divorcee or a proselyte. A responsum on the latter question, written by Rabbi Isaac Klein, was unanimously adopted by the Committee. In his responsum, the author notes that the traditional prohibition is based on Leviticus 21:7. By rabbinic interpretation of the verse, a female proselyte is classed as a harlot or a woman of loose morals. Such continued prohibition, Rabbi Klein writes, constitutes a Hillul ha-Shem (desecration of the Divine Name), since we cannot consider our non-Jewish neighbors as people of loose sexual morals. Moreover, the authenticity of the status of a kohen is at best doubtful. Finally, Christians or Muhammadans cannot be regarded as idolators.45 The question whether a Rabbi may officiate at the marriage of a kohen and a divorcee was answered in the affirmative in a responsum jointly written by Rabbi Ben Zion Bokser and the author of this article. In support of their decision, the authors of the responsum assert: "We must accept the fact too that an unequivocal condemnation of such marriage and an unwillingness to officiate may present Judaism as arbitrary and indifferent to personal happiness, and as placing legal formalism above human values, with the result that such people would be driven to leave the synagogue and Jewish observance generally." Noting further that halakhically such marriage is valid—though a get is indicated since it violates a biblical prohibition—the authors of the responsum write that the officiating Rabbi must inform the kohen that his offspring from such marriage will lose the status of kohen. Moreover, such weddings should be held in the privacy of the home or the rabbi's study.46

In the area of conversion, two major decisions are to be noted.47 On the question of converts of doubtful status, the Committee fixed the policy that "where the convert lacks tevilah (ritual immersion) and/or berit milah (ritual circumcision), we must, with utmost tact, indicate to such convert that while what was required of them was satisfactory to others, the standards of Conservative Judaism are more stringent and should be met. Hence, proselytes who have been converted by Reform rabbis and hence, presumably not having undergone ritual immersion and/or circumcision, shall be recognized as full-fledged Jews provided that these requirements be met." The second major decision of the Committee in regard to the ritual requirements for conversion relates to the permissibility of using a swimming pool as a valid mikveh (ritualarium). A Hebrew responsum on the question48 by Rabbi Benjamin Z. Kreitman, adopted by the Committee, concludes with the decision that "where no sanitary, esthetic appearing Mikveh is available, a swimming pool located in a building operated by a Jewish communal agency may be used."

The rapid advancement of medical science in recent years has brought in its wake an increasing number of halakhic problems presented to the Committee. While the question of the permissibility of an autopsy has exercised halakhists ever since the famous responsum on the subject by Rabbi Ezekiel Landau49 (1713–1793), eliciting a variety of responses, the Conservative view was stated by the Committee fairly early in its history.50 "The performance of an autopsy as a general routine in order to increase the prestige of a hospital is incompatible with Jewish law. But wherever it would aid in establishing a doubtful diagnosis or help to discover a cure for a baffling disease, it should be permitted." Of more recent vintage is the question of the permissibility of performing a corneal transplant from the eyes of someone who has just expired in order to give sight to a blind person. The question was answered in the affirmative in a responsum written by the author of this article and unanimously adopted by the Committee.51 Within recent years, halakhists have had to confront the question of the permissibility of heart transplantations. Orthodox halakhists, without exception, have declared this surgical procedure a blatant violation of Jewish law, mainly on the ground that according to the latter a person is considered alive as long as he is breathing, even though all brain activity, as indicated by the electroencephalogram has ceased.52 A different view of the biological definition of life, drawn from the sources of the halakhah, is put forth by Rabbi Jack Segal (a member of the Committee) in an unpublished responsum.53 The author concludes his analysis of the sources with: "The decision as to the permissibility or nonpermissibility of performing heart transplants is a difficult one. However, it would seem that Judaism would permit it in order to perpetuate the life of an individual. Each life is important to Judaism. We do not have the right to squander it."

On a number of major issues, the Committee has found itself sharply divided in recent years, as reflected in the majority and minority opinions rendered on these issues. These include questions related to Sabbath observance, the observance of the second day of the festivals (yom tov sheni shel galuyyot) and the status of women in Jewish religious life and observance.

In a responsum on Sabbath observance, written by Rabbis Jacob Agus, Morris Adler and the present author, approved by a majority of the Committee,54 the actual decision is prefaced by two lengthy introductory statements; one, devoted to an explanation of the religious, social and moral values inherent in the Sabbath; the other, entitled, "How Can We Revitalize Sabbath Observance." In the latter section, the authors write: "it is the merest truism to state that the overwhelming majority of our people are not presently spiritually prepared to forego the opportunity for economic advancement in favor of Sabbath observance. It is equally true that in many instances the abandonment of work on the Sabbath would entail a complete disruption of a family's economic base.... However, we should continue to hold out as our ultimate objective observance of the Sabbath by cessation from all gainful employment.... In our efforts in behalf of the program that we propose, the ultimate goal must be made both vivid and explicit. But that goal will lose its contact with reality unless in the meantime, we keep alive in the lives of our people the sense of the sanctity and high spiritual values of the Sabbath." Following a seven-point program for the revitalization of the Sabbath, the authors of the responsum conclude with the following halakhic decision: "Refraining from the use of a motor vehicle is an important aid in the maintenance of the spirit of repose. Such restraint, moreover, aids in keeping the members of the family together on the Sabbath. However, where a family resides beyond reasonable walking distance from the synagogue, the use of a motor vehicle for the purpose of synagogue attendance shall in no wise be construed as a violation of the Sabbath but, on the contrary, such attendance shall be deemed as expression of loyalty to our faith."55 "In our time, regular attendance at the synagogue has become a sine qua non for the maintenance of Judaism. We are, we sincerely believe, acting in accordance with the spirit of our Rabbis when they declared that the Sabbath prohibition of shevut56 does not apply to the carrying out of the Temple ritual."57 Following an halakhic analysis, the responsum concludes that "riding in an automobile on the Sabbath is at most a rabbinically interdicted activity. Where this act prevents the fulfillments of a mitzvah, it shall not be considered a prohibited act. We base this conclusion upon the numerous precedents in the halakhah for the setting aside of a rabbinic prohibition when a great mitzvah is involved." A dissenting opinion, representing a minority view to the above responsum, was written by Rabbi Ben Zion Bokser.58

The question of the observance of the second day of the festivals (yom tov sheni shel galuyyot) occupied the Committee intermittently since 1933. In 1967, the Rabbinical Assembly instructed the Committee "to reconsider the matter of the second day of the festivals and to rethink its observance." In response to these instructions, the Committee offered the membership of the Rabbinical Assembly three options, each in the form of a responsum to the question. One is that put forth by Rabbis Philip Sigal and Abraham J. Ehrlich.59 In their conclusion, the authors make the observance of the second day of the festival a matter to be decided by the local rabbi. To quote their conclusion: "While we reaffirm the inherent value of yom tov sheni, in order to provide relief to those who no longer find in it spiritual enrichment, and to those who for socio-economic reasons find it is not feasible to observe the second day of yom tov, we declare that yom tov sheni is not a hok, a permanent enactment, but a minhag, a custom Congregations need not feel compelled to observe other than the second day of Rosh Ha-Shanah."60 A dissenting opinion, written by Rabbi Wilfred Shuchat, urged the retention of the observance of yom tov sheni. One of his arguments is that the retention of the observance of the day will serve to "deepen the centrality of Zion" by keeping alive the sense of galut. An intermediate position is taken by Rabbi Aaron Blumenthal in a responsum in which he asserts "that it would be tragic for us to initiate a program which must lead inevitably to the abandonment of the second day of the festivals. Let those who have no alternative... not feel that they are in violation of halakhah if they observe only one day. But we cannot condone the initiation of discussions about the second day in those Congregations which do have regular and meaningful services on it."61

No less divided are the opinions given in a series of responsa on the status of women in Jewish religious observance; specifically, whether women may be called to the reading of the Torah (aliyah) and whether they may be counted for a minyan (a quorum of ten required for the conduct of a public religious service). A majority of the Committee has rendered a decision permitting the calling of women to the reading of the Torah but left its implementation contingent upon the approval of the local rabbi.62 No less than four points of view were elicited from members of the Committee on the question whether men and women may be counted equally for a minyan. These are contained in a series of responsa which may be summarized as follows.

(1) While recognizing that the weight of the tradition and traditional halakhic authorities were obviously opposed to the counting of women for a minyan, it is argued that since one early medieval authority63 is reported to have included a woman in a minyan, it is possible in consonance with the philosophy of Jewish law of Conservative Judaism to depend even upon one authority when necessary. (Responsum by Rabbis Aaron Blumenthal, and Philip Sigal).

(2) Though favoring the resolution to grant women equality of status for the purpose of a minyan, it was argued that in view of the weak halakhic support for such decision, the situation called for a takkanah. Since, in modern times, women have been assigned a larger role in the synagogue and in Jewish education and as further incentive to their participation in religious services, it was appropriate by means of an enactment to recognize the equality of men and women in regard to the minyan.

(3) It is argued that there is no significant halakhic basis for the counting of women for a minyan. An objective examination of the relevant halakhic sources must lead to the conclusion that there is no warrant in Jewish law for such decision.64 Hence, the author of the responsum is constrained to respond in the negative to the question put before the Committee.

(4) Equally opposed to counting women for a minyan were members of the Committee who maintained that such move would discourage men from attending synagogue services, that the idea of a minyan required the heads of households who supported the community; moreover, a response in the affirmative would represent succumbing to what might prove to be only a passing fad. In light of the foregoing, no enactment was called for. A majority of the Committee voted in favor of the resolution permitting counting women for a minyan but, again, leaving the final decision to the rabbi of the local synagogue.

The foregoing represents some of the more basic decisions of the Committee on Jewish Law and Standards during the almost half-century of its existence. Discussions and summaries of halakhic decisions in other areas are to be found in the annual reports of the Chairman of the Committee published in the Proceedings of the Rabbinical Assembly (1927– ) and in the relevant articles published in Conservative Judaism (see Bibliography).

The author is indebted to Rabbi Mayer Rabinowitz, the Secretary of the Committee on Jewish Law and Standards of the Rabbinical Assembly, for making available the unpublished material quoted.

Notes

1. Published in the first issue of the journal he founded, Zeitschrift fuer die religiosen Interessen des Judenthums (1844).

2. W. G. Plaut, The Rise of Reform Judaism (1963), 23.

3. B. Rubinstein, Chapters Out of the Struggle for the Reform of Jewish Religion (Heb., 1957), 51–52.

4. For a condensed English version of the German original, first published in the journal referred to in note 1, see M. Waxman (ed.), Tradition and Change (1964), 43–50. The quotations in the text are taken from the latter version.

5. Megillat Ta'anit, ch. 4.

6. See B. Cohen, "Letter and Spirit in Jewish and Roman Law", in: Jewish and Roman Law, 1(1966), 31–57.

7. Av. Zar. 36a.

8. Maimonides, Yad, Hilkhot Mamrim, 2:2,3.

9. M. Davis, The Emergence of Conservative Judaism (1963), 223.

10. L. Ginzberg, Students, Scholars, Saints (1928), 205–6.

11. See his introductory essay, "The Palestinian Talmud", in: Commentary on the Palestinian Talmud, 1(1941) xiii; also his essay, "The Significance of the Halakhah for Jewish History", in: On Jewish Law and Lore (1962), 74–124.

12. H. Parzen, Architects of Conservative Judaism (1964), 150.

13. For an abridged English version of the responsum, originally written in Hebrew, see: AJYB, 25(1923), 401–25.

14. See: B. Cohen, "Towards a Philosophy of Interpretation of Jewish Law", in: Law and Tradition in Judaism (1959), 39–61; J. Agus, "Evaluating Jewish Law", in: Proceedings of the Rabbinical Assembly, 22(1958), 81–89 (henceforth referred to as PRA); R. Gordis, "A Modern Approach to a Living Halakhah", in: M. Waxman (ed.), Tradition and Change (1964), 375–91; I. Klein, "An Attitude to Halakhah", in: PRA, 22(1958), 102–7; J. J. Cohen, "Halakhah and the Life of Holiness", in: ibid., 90–101; S. Greenberg, "A Revealed Law", in: Conservative Judaism, 19, 1(1964), 36–50 (henceforth referred to as CJ); D. Aronson, "Faith and Halakhah", in: CJ, 21, 1(1966), 34–48; B. Z. Kreitman, in: CJ, 22, 1(1967), 34–41.

15. See: Gordis, op. cit., 377, footnote 14.

16. See: Cohen, op. cit., 23, footnote 14.

17. See: A. A. Cohen, "Revelation and Law", in: Judaism, 1(1952), 250–6. The author characterizes revelation as the "act of God whereby He discloses the way and destiny of Israel", a characterization congenial to the philosophy of Jewish law espoused by Conservative Judaism. Cf. also: M. Harris, "Halakhah and Charisma", in: ibid., 80–84; Z. E. Kurzweil, ibid. 9(1960), 291–8. Of the views analyzed by the author that of Franz Rosenzwieg comports most closely with that held by Conservative writers on the subject.

18. For takkanot enacted by the Committee on Jewish Law and Standards, see below.

19. TJ, Ned. 9:4, 41c.

20. Yev. 90b. Rashi ad. loc. explains that "Elijah intended thereby to save the people from idolatry"—a basic principle of Judaism. Cf. Tos., Yev. 89b, S.V. keivvan; Tos., Git. 55a, S.V. ve-al. The famous tosafist, R. Isaac, a great-grandson of Rashi writes: "Even though the Sages have no authority to annul a positive biblical commandment, where there is substantial reason for doing so, there is universal agreement that it—the positive commandment—may be suspended" (Tos., Naz. 43b, S.V. ve-hai). The latter discussion refers to the rabbinic obligation to bury an abandoned corpse even though one is a kohen (priest) and hence biblically forbidden to defile oneself by contact with a corpse. For additional examples of hora'at sha'ah see Hor. 6a; Yoma 69b; Yev. 35a. A decision by a tanna cited in the Mishnah (Ket. 15a) is justified by the Sages on the basis of the principle of hora'at sha'ah. Cf. Mish Ber. 9:1. Rashi ad, loc. comments: "At times, we set aside the words of the Torah in order to act on behalf of the Lord."

21. Yev. 79a.

21a. Ibid.

22. Mish. Ker. 1:7.

23. Pes. 30a. See: B. Cohen, "Law and Ethics in Light of Jewish Tradition", in: Jewish and Roman Law, 1(1966), 65–121; S. Siegel, "Halakhah and Ethics", in: CJ, 25, 3(1971), 33–40; S. Greenberg, "And He Writes Her A Bill of Divorcement", in: CJ, 24, 3(1970), 75–141.

24. RH 27a.

24a. Hul. 49b, 77a; cf. Men. 86b, 89a. The tosafists (BM70b, S.V. tashikh) seek to justify halakhically the practice common in their day to lend money to gentiles on interest, though this practice is rabbinically forbidden. They write: "We now live among gentiles and there is no other way of earning a livelihood except by conducting business with them." Cf. Sh. Ar., YD 159:1.

25. Sanh. 26a; cf. TJ, Shev. 4:1, 35a.

26. Sanh. 71a.

27. Yev. 87b. R. Solomon Luria ad. loc. comments: "The words of the Torah must be understood as commanding fairness and equity."

27a. See: I. Loew, "Ha-Iddana", in: HUCA, 11(1936), 193–206; D. Stossel, "Von den AbEnderungsm[glichkeiten im Rabbinischen Schrifttum", in: Festschrift Kroner (1917), 26–66. For employment of this principle by the amoraim, see: Shab. 10b, MK 27b, Hag. 22a, Hul. 136b. It is worth noting that the principle was applied to both biblical and rabbinic law. The lapse of a number of rabbinic laws is explained by the Talmud on the basis of this principle. See: Bezah 6a; Tos. ad. loc. S.V. ve-ha-iddana. Cf. also Beit Yosef on OH 526 in the name of R. Joseph ibn Migash.

28. M. Elon, Jewish Law: History, Sources, Principles 2(Heb., 1973), 302–10.

29. See: Sif. Deut., Ki Teze, par. 249; Yev. 76b, 77a.

30. Ber. 26b.

31. M. A. Bloch, Sha'arei Torat ha-Takkanot (1879), 1–106; H. Albeck, Mavo la-Mishnah (1959), 29–37; Elon, op. cit. 2, 450–712, footnote 28, where a thorough over-view of this type of rabbinic legislation from talmudic times down to the beginning of the modern period is given.

32. Ket. 82b; cf. TJ, Ket. 8:11, 32c; see also S. Lieberman, Tosefta ki-Feshuta, Order Nashim (1967), 369–70.

33. Dor, Dor ve-Doreshav 4(1924), 202–5; cf. Elon, op. cit., 2, 528ff; cf. Tos., Av. Zar. 57a, S.V. u-lafukei.

34. During recent times—the past thirty years—contemporary Orthodox halakhic scholars have deliberately refrained from enacting any takkanot even such as are aimed to give the woman a more equitable status in the area of domestic relations. See Elon, op. cit., 2, 676.

35. See: B. Cohen, Law and Tradition in Judaism (1959), 39–61. See also, "The Shulhan Arukh As a Guide for Religious Practice Today", in: ibid., 62–99.

36. See: PRA, 3(1928), 155–65. The responsum deals with various phases of tumat kohen in our time.

37. Li-She'elat ha-Agunah (1940).

38. See: PRA, 28(1964), 47.

39. Ibid., 224.

40. For the full Aramaic and English versions of the agreement, see: PRA, 18(1954), 66–68.

41. Ket. 3a; BB 48b; Yev. 90b, 110a; Git. 33a, 73a.

42. See: PRA, 34(1970), 196.

43. A somewhat different proposal for solving the agunah problem has recently been put forth by Z. M. Falk, The Divorce Action By The Wife in Jewish Law (Heb., 1973).

44. See: PRA, 34(1970), 196.

45. See: PRA, 32(1968), 219–23.

46. See: PRA, 22(1958), 44–58.

47. "A Summary of Decisions on Conversions", Committee on Jewish Law and Standards, in: PRA, 30(1966), 107.

48. See: PRA, 33(1969), 219–22.

49. Responsa Noda bi-Yhudah, Mahadurah Tinyana, YD 310.

50. See: PRA, 17(1953), 30.

51. See: PRA, 17(1953), 41–44. It is of interest to observe, since it is a general characteristic of a number of responsa written by members of the Committee that in his argument, the author invokes the aggadah as well as the pertinent halakhah. The aggadah in this instance is the talmudic statement that "being blind is tantamount to being dead" (Ned. 64b). Hence, to restore sight to a blind person is equivalent to saving a life, a supreme mitzvah which takes precedence over all but three prohibitions.

52. M. Feinstein, in: Ha-Pardes (March-April, 1969), 4.

53. "Judaism and Heart Transplantations", Files of Committee on Jewish Law and Standards, Rabbinical Assembly.

54. "Two Views of Sabbath Observance", in: M. Waxman (ed.), Tradition and Change (1964), 351–407.

55. Ibid., 361.

56. A rabbinic extension of the type of activity prohibited on the Sabbath.

57. Pes. 65a.

58. "The Halakhah on Travel on the Sabbath", in: ibid., 392–400.

59. "Yom Tov Sheni", in: CJ, 24, 2(1970), 21–47.

60. Ibid., 33.

61. Ibid., 47.

62. See: PRA, 19(1955), 168–90.

63. Rabbenu Simhah as cited by Mordekhai to Ber. 48a.

64. D. Feldman, "Woman's Role and Jewish Law", in: CJ, 26, 4(1972), 29–39, and his unpublished responsum on the subject, Files of Committee on Jewish Law and Standards.

[Theodore Friedman]

Year Book 1975–76 Feature

Various "Reform" Perspectives

Historical and intellectual accuracy requires that the title of this paper reflect the plurality of views and perspectives contained in the term Reform. In the U.S. the term has functioned as the name of a more or less general position that gradually centered on the Union of American Hebrew Congregations (founded 1873), the Hebrew Union College (1875), and the Central Conference of American Rabbis (1889). The "more or less" must be emphasized, for more than one tendency was represented in these institutions' beginnings and again in the contemporary situation. At most it is possible to write that a consensus emerged in the period that began early in the second decade of the twentieth century and ended with the outbreak of World War II. However, even such a statement must be qualified, and consensus within one institution was not necessarily that within another.

The term Reform is not an indigenous American usage but a borrowing from German; it was felt by some to be awkward when used as an adjective. Nevertheless, it flourished on the American scene, and (except as an historical reference) lost any widespread significance in its homeland. There the word Reform, which in the early nineteenth century had functioned as a general term describing in large measure a tendency or movement, and only to a very limited degree concrete institutions, finally became the designation of the small "left" wing of that tendency and its institutions; most participants in the movement were designated Liberal. Strangely enough in England the term Reform came to refer to those attitudes similar to Liberal in Germany, while Liberal was more akin to Reform in the United States. Finally, in the 1920s the term Progressive emerged as an international institutional designation covering all of these groupings, without suggesting either theoretical or practical uniformity.

These introductory paragraphs are necessary, lest the unwary fall into the trap of dealing with the subject by negation: what is not Orthodox (whatever that may be), is this, that, or the other. Rather, one must be aware that both practically—what is to be done—and theoretically—why it is to be done—Reform is a complex of attitudes and ideas that stand without any necessary reference to the putative norm from which they depart.

It is the scholarly consensus—and in great measure correctly so—that the beginnings of Reform are to be traced to the period of the political emancipation of the Jews of western Europe at the end of the eighteenth and the beginning of the nineteenth centuries. Yet it must be noted that there are antecedents to the breach in the halakhic, i.e., religio-legal, concept of Judaism. Gershom Scholem has suggested that the Shabbatean movement at the end of the seventeenth century, although underground, was instrumental in undermining the foundations of the halakhic structure. Certainly, a more direct connection is to be made with Moses Mendelssohn's analysis of Judaism, which was deeply influenced by the Enlightenment. The fateful distinction he made between the theological-philosophical content of Judaism and its legal structure introduced the possibility of a cleavage not previously capable of consideration. Although Mendelssohn opted for the understanding of Judaism as a revealed body of law, equating its theological-philosophical content with those ideas discoverable by reason, his distinction suggested to some that it was proper to raise such questions as "what is Judaism?" and "what is its significance as one facet, spiritual, of a more inclusive totality, in a western culture?"

When political emancipation appeared on the scene, the questions it put to the Jewish communities both directly and indirectly were answered, as the situation required, by manipulating one side or the other of the dichotomy. Thus Napoleon's commissioners who inquisited the Assembly of Notables and the Grand Sanhedrin in 1806–07 were clearly concerned not with the theological-philosophical side of Judaism, but with the religio-legal problems which integration of the Jews into the French national state would raise. Nevertheless, the replies took advantage, where possible, of the historical unity of the two and fended off what would be unacceptable if dealt with halakhically by recourse to theological and ethical exhortations. This procedure, whose success, in the light of Napoleon's subsequent treatment of Alsatian Jewry, seems to have been very partial, remained, however, in the arsenal of the Jewish communities in the following decades.

The real question, however, was not solved, as the developing political situation made evident. If Jews were to participate in western European society as political and social equals, it was necessary to clarify the status of the halakhah: that is, the religio-legal system that was most generally recognized, both within and without the community, to be the characteristic mode in, by and through which Jewish faith found its expression. Halakhah thus became a problem and became problematic. A part of the problem, civil law, was dealt with by the western communities by application of the amora Samuel's dictum dina de-malkuta dina (the civil law of the state is binding upon the Jewish community.) However, this left large areas of halakhah confronting a new style of life within a larger society which made demands, directly or indirectly, that conflicted with accepted patterns and structures. The problems these demands raised had to be dealt with both theoretically and practically.

Even before this question had become critical, Saul Ascher, a disciple of Mendelssohn, had turned his master's distinction around. Mendelssohn had stated that the revealed law served to preserve within the Jewish community the true spiritual religion that, although available to all men, had become corrupted among them. Ascher argued that the law served only to preserve religious truth, and that, in the new circumstance of modernity, only that part of it that served that end, remained valid and binding.

In the 1830s the problem became burning as many of the rising generation, desirous of participating in the cultural life of Europe, turned radically from Judaism when they could find no basis to affirm it in the face of historical and philosophical skepticism and were consequently unable to accept as binding its religio-legal structure. Even with the best intentions, most western European Jews did not know what to do with the inherited and, in large measure, still revered religio-legal structure. Some solved the problem by sloughing off, often with regret, the structure. Such a step was facilitated by the failure, already visible, of political emancipation to live up to its promise, or by its compromise, its imposition of obstacles on the road to equality. The sacrifice of Judaism in its totality was the "EntrMe billet" to the beguiling culture of the environment.

However large the hemorrhage, it was at most debilitating and certainly not fatal. The large majority sought in one way or another and on one ground or another to affirm a continued allegiance to halakhah, however it was now to be understood. This last requirement was primarily self-imposed upon the intellectual leadership of the communities. While many, perhaps most at the beginning, still viewed the Bible (the "Old Testament"), and particularly the Pentateuch, as possessing—however defined—a divine quality, the talmudic tradition was regarded as conditioned by historical experience and thus more malleable. Yet even here the problems raised by the interfacing of the religio-legal tradition and the environment were approached from various attitudes and by different methods. Some felt that historical conditioning provided a basis for reforming the halakhic structure from within. Examination of the past showed that the details of the structure were in fact responses to ever-changing situations. Now if such an analysis was permitted to those who viewed the entire system as a seamless web of divine commandment, how much more was it available to those who saw it otherwise, but who were yet prepared to affirm its worth and value for Jewish life? Further, perhaps much further down this path were those like Abraham Geiger, whose position was that the historical conditioning had theoretically undercut the entire system, although practical considerations made it necessary to hold on to the structure—in some parts at least—until such time as it was no longer needed. That time was understood to be not a distant but a foreseeable if not immediate future; it was not necessarily beyond the life-time of those who predicted the emergence of a universal society basking in reason's rays. A new rationale thus had to be offered for those aspects of the system that were to continue to function. Geiger, for example, was concerned to support continued observance of the Sabbath on religious—in a sense of internal subjective response—and social grounds. On the other hand, although he disapproved of, for example, circumcision as "a barbarous, bloody act" that could no longer be invested with sanctity, he kept his opinion private because he recognized that an attack on the rite would arouse antagonism. His attitude can be summarized thus: the Sabbath, which could be interpreted in universalistic terms, was theoretically defensible, although it was a problem for Jews within the larger society. Circumcision, which he rejected theoretically, was no such problem for most Jews and therefore no disclosure of his negative attitude was called for by the practical situation. At its deepest level Geiger's position reflected his theological perception that Judaism was in its essence an expression—indeed, intellectually the soundest expression—of the universal faith all men sought. The particular was not of that essence, and the religio-legal system partook of the particular. The ever accelerating expansion of that universal faith would eliminate the need for the particular. Historico-philological scholarship would prepare the way for the elimination by showing that the inalterable, universal essence of Judaism, which was rooted in the divine, would in no way be touched. The religio-legal structure, insofar as it reflected and expressed that essence, should and would be preserved. Much, perhaps most of it, would evaporate before the sun of essential religious faith.

The furtherest reaches of this path were trod by Samuel Holdheim and his followers. This is the ground to which, in Germany, the term Reform clung. For Holdheim the halakhic system had, and rightfully so, ceased to have any meaning in the new situation. This was not merely because historical scholarship had disclosed its conditioned nature; the reason was more radical. For him, the halakhic system had been a national-political form of a religious idea. In his day, the bearers of that idea were in the process of being absorbed into the communal structure and the political organization of the environment, and it was incumbent upon them to repudiate the structure that by its very nature was inferior to the idea and could and would interfere with that absorption. It is most interesting to observe the way in which Holdheim, who had been educated in a most rigorous traditional fashion and was a talmudic scholar of no mean repute, used the very structure he was repudiating as a tool to tear down that structure. He took the dictum dina de-malkuta dina as an eternally valid religious requirement. Thus observance of the laws of the national state was a religious obligation, even when it required the repudiation of what could be understood as "purely" religious, i.e., in no way involved in national political considerations. An examination of Holdheim's position—the most consistent, although not always so, of the Reformers—reveals that for him "symbolic religion" had no place. Thus, when dealing with the Sabbath, he distinguished between Sabbath rest—for him a negative idea—and Sanctification—the positive side. Sabbath rest is no longer a requirement; the ethical ideal which it symbolized, sanctification, is central. If rest contributes to sanctification, "it is commanded." "But where the conditioning element is inoperative, rest ceases to be commanded." Basically Holdheim's uncompromising rationalism—religious sentiment as it influenced Geiger was not part of his make-up—was not ready to allow symbolic religion any significant role.

The three rabbinical conferences, Brunswick (1844), Frankfort on Main (1845) and Breslau (1846) and the two Synods, Leipzig (1869), and Augsburg (1871) broke no new ground. Essentially they dealt with practical problems without exhibiting a common mind. Holdheim's radicalism had subsided and, for the rest, halakhah could be dealt with from a number of positions, all rooted in the acceptance of its historical conditioning and all responding to the practical needs of a community confronting a secular environment indifferent by its nature to those needs.

Intellectually the patterns of Reform were set in Germany, but since in its dynamic structure the life of the Jewish community is conditioned by its interfacing with the culture of the wider milieu (a quite typically "Reform" assertion), what emerged on the American scene—whatever its obligation to the initial impetus—did not merely rewalk the previous path. Practically, Reform in Western Europe was conditioned internally by its Milieufr[mmigkeit. Irrespective of the degree of radical intellectualization, in the deliberations that preceded a pesak din, the actual decision, the presence was felt of centuries of formal community structure and of the unexpressed but very real desire of the largest part of the community to continue to move in the time-honored direction; although there were modifications, the majority of the intellectuals could assure the community that divergencies were sanctioned by some tendency discoverable in the past. Perhaps Geiger was as ready as Holdheim to jettison "symbolic religion," i.e., the whole religio-legal system, but he was sensitively aware that what could be done intellectually was not possible practically. He had to be content to provide, as a scholar, the intellectual rationale for decisions that had not been made and would, when they were made, often be only partially related to the scholarly explanations that supported them. But this was by no means something new in the history of Judaism.

For the nascent and, during much of the 19th century, numerically insignificant Jewish community of the United States, the weight of that past was theoretically not actually present. The structures and institutions rooted in the halakhic system were only shadowy presences on the American scene. Those that were there had no commanding impact. Equally important was the absence in American society of a reverence for the past that could provide support for the parallel sentiment in the Jewish community. For much of the period there was no halakhic system, in any sense comparable to the European situation, on the American scene. David Hoffman, the intellectual leader of Neo-Orthodoxy in Germany toward the end of the period, wrote with insight that the Jews of America were to be thought of as tinokot she-nishbe'u ben ha-goyim, "those brought up through force majeure from their infancy among the gentiles." This being the case, it is remarkable that despite its absence, the halakhic system was, paradoxically, present. One reads with deep sympathy of the agony of a Jewish peddler from a small town in Bavaria as he confronts his own desecration of the Sabbath, amid the unsympathetic farmers of New England, and recognizes the existential presence of the religio-legal system.

As Geiger and Holdheim may be thought of as representing two Reform tendencies in Europe, so Isaac M. Wise and David Einhorn, mutatis mutandis, represent them on the American scene. Wise was aware of the existential presence of the halakhic structure on the American scene; hence his willingness at the Cleveland rabbinical conference to acknowledge that the Talmud would be the basis upon which any discussion of Reform would take place. He was ready to do so because of his unyielding belief in the power of the American environment to reform constructively the inherited structures of Jewish life. For him the changes would emerge organically out of the past; the clogged channels of Jewish creativity would be cleared, and what would flow forth would be at once new and at the same time a repristinization of the past.

Einhorn, whose hero was Holdheim, proclaimed from his pulpit—with covered head—that radical reform had made him persona non grata in Europe. He had little patience with the masses caught up in nostalgia; "klein aber rein" was his elitist motto. The absence of the countervailing presence noted above should have made it possible for radical reform with its emphasis upon rational and universal religion—of which Judaism purged of the symbolic was thought to be the most pure example—to sweep the day, but it did not. It was Wise—the protagonist of the Mosaic Pentateuch—who founded and built the institutions that, although they were not immune to Einhornian radicalism as embodied in his sons-in-law, Emil G. Hirsch and Kaufman Kohler, never fell away from Wise's recognition of the importance of the religio-legal system, however, it was to be transformed in the future.

It is important to realize that the struggle briefly sketched was not over the ultimate sanction of halakhah. Even Wise's insistence on the Mosaic authorship of the Pentateuch did not extend to the talmudic-rabbinic tradition. The attitudes and positions of the Wissenschaft des Judentums were, in general, accepted. The historically conditioned nature of halakhah was taken for granted. Yet, as Geiger had recognized, relativizing did not necessarily result in rejection. What it did was support the demands, growing out of the interfacing with the environment, for modifications of the religio-legal system based whenever and as far as possible on some foothold—however faint—within the system itself.

It was this tendency—quite similar to that which prevailed in Germany—that was widely adhered to in the American Reform rabbinate, but it was not an exclusive position. Part of the problem of measuring adherence is the simple fact that those who reject the halakhic structure out of hand do not write Responsa. The Year Books of the Central Conference of American Rabbis from 1889 onward do contain the reports of the Committee on Responsa dealing with a wide variety of halakhic questions, but provide no indication of the effectiveness of the religio-legal system in institutional Reform. For the most part the committee reports are accepted. When they contained conflicting views, attempts were seldom made to adjudicate between them. When a particular position was accepted—a relatively rare occurrence—its force was advisory, not binding. What is clear is that at no point has institutionalized Reform on the American scene completely washed its hands of the halakhic system. It has consciously sought to modify, to mitigate (lehakel), to ignore the more rigorous prevailing pattern, and, of course, given its acceptance of the historically conditioned nature of halakhah, to break with the traditional position when it has thought that necessary. What its thinkers have not been able to do—that is, those wishing to affirm the system in some fashion—is to supply a positive root for it to replace its lost divinity.

Sixty years ago, one of its leading halakhic scholars, Jacob Z. Lauterbach, whose responsa are models of the mitigating tendency, sought to provide a basis for what he wrote of as "the youngest Halakhah" by demonstrating its ethical sensitivity and value. That may have been persuasive to intellectuals influenced by Kant or neo-Kantianism, and it is certainly not peripheral nor unworthy of attention, but given the temper of our time it can but partially convince, and earnest attempts are still made to seek out a binding force that is more than the categorical imperative.

Before developing this point, however, it is important to recognize one area of influence that has underscored the significance of the halakhic system: first, Zionism; then, Israel. The rediscovery by Reform of particularity has suggested that the particular mode in which the faith of the Jew has been expressed—the religio-legal system—is not an excrescence on or distortion of that faith, but is its natural if not its supernatural form. If Ahad ha-Am was ready to discard the kernel and preserve the shell, as radical Reform was ready to cast off the shell for the sake of the kernel, contemporary Reform has wondered if shell and kernel do not in fact stand in indissoluble unity, each deserving of attention.

The most recent discussions of the religio-legal system have tended to avoid the term halakhah. The reason for this is not too difficult to search out. Halakhah seems to be the ground on which Orthodoxy has taken its stand. It has been preempted, and any attempt to repossess it will either lead to confusion—to talk about halakhah is to surrender to the "foe"—; or will be futile—"they have it, let them keep it." (The writer does not accept this. For him halakhah is morashah kehillat Yaakov ("the inheritance of the congregation of Jacob" [Deut. 33:4]) and, as the Midrash emphasizes, that includes the whole Jewish people. But that is not the point here.) In place of halakhah the more potent and more dangerous word mitzvah has been used. The word is more dangerous, because, as some discussion has indicated, mitzvah (commandment) requires metzavveh (commander), and this could quite easily suggest that religio-legal system is the verba ipsissima of God, so that we are once again in the divinely ordained, historically unconditioned system. This, however, is not what is intended. W. G. Plaut in a paper read at the Central Conference of American Rabbis in 1973, discussing the Tadrich le-Shabbat ("a Guide for the Sabbath"), published by that organization, says: "But the Tadrich says nothing about the Metzavveh that stands behind the Mitzvah." He then offers four possibilities that may reflect various positions:

a) The Metzavveh is God, whom we meet in an existential sense in the act of doing the Mitzvah.

b) Mitzvah arises out of the Sinaitic Covenant, which becomes the source of the commandment.

c) The Metzavveh is the Jewish people past and present.

d) The Metzavveh is Jewish tradition.

There is no consensus today in this matter, but the discussion suggests the seriousness with which it is being argued in some quarters—certainly not all—within the American Reform movement. The depth of that seriousness is to be found in a second paper at the same meeting read by Martin Rozenberg:

Halakhah does not mean an intellectual exercise, but rather a pragmatic approach to the performance of Mitzvot. To be a Jew means to be Mitzvah—observing and doing. Such observance and act not only serve to bind the individual and collective Jew closer to Kelal Yisrael, but they also help to elevate his personal character. Mitzvot help the Jew to subdue his animal instincts, recognize the divine spark within himself, and seek the noblest realization of his human potentialities. Any intention, therefore, on the part of the Reform Jew to deepen his commitment as a Jew insinuates an open willingness to observe and to practice his or her faith in order to allow the life of Mitzvah to exercise its full effect upon him. We must begin at the point where the Reform Jew finds himself now, at this moment, and then ask him to take the first steps on the road of Mitzvah."

Franz Rosenzweig's lips move from the grave.

[Lou H. Silberman]

Year Book 1975–76 Feature

Reconstructionist

The Reconstructionist approach to halakhah is best understood in the light of the definition of Judaism with which Reconstructionism operates. Mordecai M. Kaplan, the founding father, as it were, of the Reconstructionist movement, formulated this philosophy by referring to Judaism as an “evolving religious civilization.” Each word in this formula carries important implications not only for the approach to Judaism as a whole but also to halakhah in particular. The term civilization implies law. Every civilization reflecting a social organism and hence constituting a society must have rules and regulations to govern its life. Those rules and regulations sometimes embody existing mores and sometimes reflect long-term aspirations. But they cover the entire gamut of individual and group existence.

Traditional halakhah provides regulations for the individual from the moment he awakens in the morning until he goes to sleep at night and includes his responsibilities to the community and the community's responsibility to the individual. If Judaism is to continue in the future to function as a civilization it must provide the same range of rules and regulations for the Jew and for the Jewish community.

The first word of the phrase “evolving religious civilization” also carries with it a serious implication. The Jewish civilization has clearly developed and evolved throughout the centuries, responding to new needs and changing circumstances. The traditionalist is likely to identify these not as actual changes or innovations but as the process of rendering explicit what was implicit in the Torah. When, for example, the verse “an eye for an eye, a tooth for a tooth,” etc. was interpreted to mean money damages, the rabbis from their perspective believed that this was the original intended meaning of the verse. From a modern historical viewpoint, however, this represents a change in the value system. That is to say the biblical “eye for an eye” meant actually that, and only later did the notion of the literal payment of an eye become abhorrent to the rabbis.

Most of the changes were made in this way, i.e., unconsciously; to be sure on some occasions a deliberate change was made but a sanction was always found in the Torah for such a change. If in our day evolution is to proceed it must be done on a conscious level and this implies that each generation of the Jewish people has as its right and indeed its duty to modify the halakhah in such a way as to make it conform more closely to the highest moral and ethical standards of the time. This implies the radical idea that the halakhah is not perfect. To be sure no one who proposes changes in halakhah is arrogant enough to think that it can be made perfect by any one or any group of people; but the traditional idea that nothing may be done for which there is not a sanction in the past is no longer tenable.

Even the method by which such changes are to be effected must conform to new standards of what is appropriate. Certainly in democratic countries the principle that government may only be by the consent of the governed must apply to Jewish law as well. The ideal of democracy which has been growing during the past three centuries requires that changes should be made by the representatives of those who must live under the law. These representatives should be accountable to the people who select them; where a constitution regulates legislation that constitution must be of such a nature as to be amendable. The traditional idea that the Torah is the constitution of the Jewish people is certainly true, but a radical innovation must be introduced by which the Torah itself can be amended. This, of course, should not be done hastily and without due regard for the long and honored tradition of the Jewish people; but law cannot really evolve as it should unless the constitution is subject to amendment.

Traditional halakhah covers, as we have indicated, the entire range of human concerns. These are generally divided between matters “between God and man” and “between man and man.” Violations in the latter category were to be dealt with by the courts; God was to deal with violations in the first category. From the Reconstructionist point of view these two categories should be translated into the following equivalent terminology; namely, matters of ritual and ritual observance on the one hand, and interpersonal relations on the other.

With respect to the realm of ritual and ritual observance the Reconstructionist position has been to remove it from the category of law, recognizing the need for creativity and latitude in ritual observance. Reconstructionists believe that by excluding them from the category of halakhah due recognition is given to individual preferences and tastes, to differences in environment and upbringing. This principle has been followed in the publications of the Reconstructionist movement, beginning with the New Haggadah wich originally appeared in 1942 and in the series of liturgical texts beginning in 1946 which include the Shabbat Prayerbook, the High Holiday Prayerbook, the Festival Prayerbook and the Daily Prayerbook. Changes made in the Hebrew text, both by modifying the language or omitting certain passages altogether, or adding material not previously included in the traditional liturgical works, have been made possible by the freedom which is granted by the removal of liturgy and ritual from the realm of halakhah.

In 1962 the Jewish Reconstructionist Foundation published a Guide to Jewish Ritual. This was not intended to be a new Shulhan Arukh but rather a set of guidelines for observance under conditions of modern life. These guidelines were developed with the realization that Jews in the free countries, and particularly in the United States, are attempting to live in two civilizations. When Jews lived in a segregated environment they were able to determine their own standards and so fashioned their institutions that no other culture or civilization had to be taken into consideration.

With the emancipation of Jews and their integration into the larger non-Jewish environment, adjustments and modifications had to be made. Actually without guidance Jews were disregarding and discarding Jewish practices and making their own and often unsatisfactory and even destructive decisions. Jews who were seriously desirous of living a meaningful Jewish life in the Diaspora but who were not prepared for a resegregation from the cultural environment were asking for guidance; and this was intended to provide them with such guidance in the recital of prayers, in the observance of Shabbat and holidays. (Incidentally, there is good reason to believe that there are many Israelis seeking similar guidance.)

In general, in this category of ritual and liturgy, experimentation will go on so long as Jews feel that they are not desecrating the sancta of their tradition. Experimentation will surely lead to some unsatisfactory results but it is only through trial and error that the good will emerge. It is hoped that that which is of enduring value will endure and become part of the tradition in the making.

With respect now to the second category it should be pointed out that this would include such issues as the laws of family life, the question of marriage, divorce, abortion, and birth control. It would deal with who is a Jew, which in turn would affect the problem of conversion. Broadening out from the area of family life the halakhah should deal with the ethics of the economic and political life. This would include, for example, the questions of usury, monopolies, industrial relations, strikes, arbitration, mediation, civil liberties and, in general, all the aspects of a democratic government.

The major difference between the first category and the second is that in the first no one is affected by deviations from the traditional halakhah whereas in the second, which deals with relations of people to one another, the halakhah really enters fully into the category of law. It is for this reason that Reconstructionists have encouraged and even sponsored modifications in ritual observance and liturgical texts, but they have taken no action—with one major exception—in the area of interpersonal relations. That exception is the following, which was adopted at a convention of the Reconstructionist movement in which rabbis and laity participated equally:

In the case of a child whose mother is not Jewish or has been converted to Judaism after the birth of that child, the child shall be regarded as Jewish if the family belongs to a congregation, conducts a Jewish home, gives the child a Jewish education and the child becomes bar mitzvah or bat mitzvah. The ceremony of bar or bat mitzvah is regarded by Reconstructionists as the equivalent of formal conversion. Reconstructionist leaders are careful, however, to point out to the family that the recognition of such a child as a full-fledged Jew is confined to the ranks of the Reconstructionists; outside those ranks various denominations would have various opinions as to whether or not that child is actually a Jew. It is clear that if that aspect of halakhah which deals with interpersonal relations is to grow and evolve it will have to be the result of a worldwide collective effort on the part of the Jewish people, with the fullest participation of Jewish scholars and other leaders, and with the recognition of the fact that conscious evolution must be undertaken if Judaism is not to suffer a crisis of discontinuity in the 20th century.

Law is the function of a community. It requires the establishment of those mechanisms without which law cannot function. Unfortunately, from the point of view of halakhah, the Jewish community in the free nations virtually ceased to exist. It was liquidated when Jews as individuals were granted citizenship in the nations among whom they dwelled.

Whether it was the gemeinde, or the kehillah, or some variation thereof, Jews for centuries were organized in communities through which they could set standards of behavior, and indeed enforce them. It would be unrealistic to expect that the same kind of organic Jewish communities could be created in the free countries. However, Reconstructionists contend that without some social structure similar to, or the equivalent of, organic Jewish communities, there would be no point in attempting to make halakhah function again.

That is why the Reconstructionist approach to halakhah constitutes an integral part of its total philosophy of Judaism.

[Ira Eisenstein]

JEWISH STUDIES.

Judaica in American Universities

The significant expansion of Jewish studies in American universities is a recent phenomenon. Nevertheless there are antecedents to this development which should be noted. In the 17th and 18th centuries, the Hebrew language was included in the curriculum of several of the earliest colleges to be established on the North American continent. The subject was taught as part of a theologically oriented curriculum designed to assist potential Christian clergymen in understanding their Christian heritage. It cannot therefore be properly cited as evidence of the presence of "Judaic studies" in American higher education. The disappearance of the last vestiges of Hebrew from the curriculum in the early decades of the 19th century was the result of changing vogues in Protestant theology and in the dynamics of Christian denominationalism in the United States and was totally unrelated to any concern for Jews or Judaism.

More relevant was the growth of modern Jewish scholarship (as distinguished from traditional Jewish study of sacred texts) which emerged with the development of the Wissenschaft des Judentums movement in Central Europe in the 1820s and thereafter. The researches of the Wissenschaft scholars created a body of knowledge, a literature and a method of research which made it possible to conceive of a Jewish cultural tradition which was the ongoing expression of a people and which was subject to the same methods of academically disciplined study as that of other peoples. While most early Jewish scholars viewed this tradition as essentially religious, it was nontheless studied in its literary, philosophical and historical as well as its theological aspects.

This development of Jewish critical scholarship led to the hope that the study of Judaic culture would find a place in the developing world of the secular university. As early as 1838, Abraham Geiger proposed the establishment of a "Jewish theological faculty" in a German university. For a variety of reasons, social and political as well as academic, this proposal and subsequent suggestions which were broached never came to fruition. Jewish scholarship remained a solitary and unremunerative occupation pursued by dedicated individuals. When such scholarship succeeded in finding a place in an academic setting, it was consigned to the modern theological seminaries which emerged in Central Europe in the last third of the 19th century. Some scholars, like Moritz Steinschneider, denigrated the development of such seminaries as a "new ghetto of Jewish learning" which could not transcend "scholarly immaturity." However, nothing came of Steinschneider's hope that European governments could somehow be induced to "establish professorships," and the seminaries remained the only academic institutions in which at least some aspects of modern Jewish scholarship found a place.

In America the openness and diversity of the society and the participation of the Jews in the general culture generated more ambitious aspirations. The desirability of creating a faculty of Jewish studies was broached as early as 1818. Since higher education in 19th century America was almost exclusively sponsored by various religious denominations, Mordecai Manuel Noah proposed that American Jewry emulate other sects and establish its own college in which Jewish studies would constitute a central element of the curriculum. The proposal was never implemented, not for lack of opportunity, but rather for lack of interest and intellectual resources on the part of the numerically small American Jewish community of that time.

In the 1840s and 50s suggestions for Jewish sponsored colleges were revived by Isaac Leeser and Isaac Mayer Wise, both immigrants from Central Europe. A number of abortive efforts to organize such colleges were undertaken and in 1855 Wise actually announced the establishment of an institution known as Zion College in Cincinnati. This and subsequent efforts failed, again because of lack of support from the growing American Jewish community which was fragmented and was more concerned with integrating itself into the general culture than in fostering its own intellectual distinctiveness. When, in 1875, Wise finally succeeded in forming an academic institution, it was, like its European counterparts, a rabbinic seminary and not, as originally intended, a general college in which a Judaic faculty was a part of a larger academic enterprise. The original concept survived only in the name of the seminary which Wise called Hebrew Union College.

Toward the end of the 19th century, chairs in "Semitics" were established in a handful of American universities: Columbia, Johns Hopkins, the University of Pennsylvania, and the University of Chicago. These positions reflected the contemporary interest in "scientific" biblical studies as well as the attainment of financial prominence by some Jews and of modest scholarly credentials by others. The chairs were initially held by Jews whose teaching was primarily related to Semitic philology rather than to the broader aspects of Jewish culture. There is little evidence of academic concern with the total Jewish experience, especially with the content of Jewish culture and history in the centuries following the separation of Christianity from its Jewish source.

In 1896 William Rosenau, a Baltimore Reform rabbi who taught "Semitics" at Johns Hopkins, wrote an article extolling the desirability of "Semitic studies in American Universities." None of the benefits which he mentioned related to Jewish literature or Judaism. It is therefore a matter of judgment whether or not the inception of Jewish studies in American universities can properly be dated from the establishment of these academic posts. At best, the number of positions remained small and the treatment of the totality of the Jewish tradition as an area of study of intrinsic worth without regard to its relationship to the predominant culture was negligible.

In the following decades, the development of Jewish scholarship in the United States was primarily centered in the theological seminaries and in institutions which were under Jewish sponsorship and were devoted solely to Jewish studies, such as Dropsie College in Philadelphia and a handful of communal Hebrew teachers colleges. The rise of Hitler and the destruction of Jewish institutions in Central and Eastern Europe led to an influx of distinguished Jewish scholars to the United States. These men assumed leading positions in Jewish institutions of higher learning and greatly enhanced the cultural resources of American Jewry. Despite their credentials, few found places in secular universities.

Prior to 1940 a few chairs of Judaica had been established in major universities. Some of these were occupied by outstanding scholars, most notably Salo W. Baron in the department of history at Columbia and Harry A. Wolfson in the department of Near Eastern languages at Harvard. In the late 1930s modest programs in the teaching of modern Hebrew had been established in universities in New York City, primarily as a result of the introduction of Hebrew language instruction into the curriculum of New York City public high schools and the need to certify teachers for positions. However, as late as 1945, no more than 12 full-time positions in Jewish studies existed in ten American universities. When in 1943, Ismar Elbogen surveyed "American Jewish Scholarship," his review dealt with the work of individual scholars and made no mention of Judaic studies in universities. These circumstances led Alfred Jospe to conclude that "it was only after the end of World War II that we find a growing awareness and recognition that Jews and Judaism are legitimate subjects of academic study and inquiry."

Since that time the development of Judaic studies in American universities has been striking. By 1966, when Arnold Band of the University of California at Los Angeles completed his survey of "Jewish Studies in American Colleges and Universities" (AJYB, 1966), the number of institutions offering one or more aspects of Jewish studies had grown sevenfold. Band listed 61 full-time positions in the area of Jewish studies and estimated that approximately 40 accredited colleges and universities offered "fairly adequate training in undergraduate Judaic studies" and at least 25 others offered a "variety of courses, but no undergraduate major."

In addition, by 1966, the number of universities offering graduate programs had grown from six to more than 20. Important new concentrations of Judaic teaching and scholarships had emerged in such disparate institutions as Brandeis University—a Jewish sponsored non-sectarian private university–— and the state sponsored University of California in both its Los Angeles and Berkeley branches. The Jewish cultural heritage was on the agenda of the American academic enterprise.

Band's survey also revealed the growing maturity of American Jewry in providing its own intellectual leadership. Over one half of the faculty members engaged in the Jewish programs were either born in the United States or arrived as children. Even more significant, over 80% had received their graduate training in American universities. In almost every case, a period of study at a university in Israel provided essential supplementation; frequently the early doctoral graduates in Judaica relied heavily on training outside the university framework, especially in seminaries and yeshivot. Whatever the obstacles and lacunae, it was clear that by 1966, the dependence of American Jewry on scholars imported from abroad was waning. A generation of American-born and trained scholars and teachers was emerging; resources of American universities to provide Judaic training were growing.

This development cannot be described as a "movement" since it was neither anticipated nor actively fostered by the organized Jewish community or by any other group. Indeed, there are indications that American Jewry was hardly aware of the growth taking place in its midst. In The American Jew: A Reappraisal (1964), edited by Oscar Janowsky, only one brief paragraph in 568 pages is devoted to Jewish studies in universities. The initial expansion was generated by changing circumstances within both the Jewish and the academic communities and not by deliberate design.

Since 1966 proliferation of Jewish studies throughout the North American continent has accelerated and shows no signs of abating, despite the general retrenchment currently taking place in American universities. Growth has continued not only in the number of institutions offering courses, but in the number and variety of subjects taught and in the size of Judaic faculties within universities, in the quality of the programs and in the number of students enrolled and majoring on both the undergraduate and graduate levels. Important new concentrations have developed in such state universities as Ohio State and the State University of New York, in prestigious private institutions such as Brown University and in a number of Canadian universities. More recently, the major rabbinical seminaries have placed new emphasis on training scholars to teach in secular universities.

The growth has been so rapid that there are no accurate statistics on the precise number of institutions offering courses or on the number of full-time faculty members engaged in the teaching of Jewish studies. In September 1973 a survey by the Institute for Jewish Policy Analysis estimated that "over 350 institutions now offer one or more courses in Judaica" and observed that "Jewish studies programs have opened new teaching and research opportunities to Jewish scholars, increased the prestige and influence of professors in these areas, and encouraged graduate students to enter this field of study."

Four years earlier, in September 1969, 50 professors of Judaica met in a colloquium convened by the Lown Center for Contemporary Jewish Studies of Brandeis University to discuss the state of the field. An outcome of this assembly was the establishment of an academic organization called the Association for Jewish Studies which would provide for regular communication among scholars teaching in the field. By 1974, the membership of this Association numbered 600, of whom over 300 are regular members who hold full-time positions in colleges and universities in one of the areas of Jewish studies. An additional 150 are graduate students in Judaica, and the remainder are full-time faculty members in other disciplines who maintain an active interest in some aspect of research related to Jewish culture. Conservative estimates indicate that an additional 50 full-time teachers of Judaica remain unaffiliated with the Association. In 1973 the Association for Jewish Studies received a major grant from the National Endowment for the Humanities to foster the development of the field by conducting a three-year series of regular convocations bringing senior scholars from throughout the world into contact with faculty and graduate students in all regions of the North American continent. Two volumes containing papers delivered at these convocations are now being published, and the Association is preparing to inaugurate publication of a scholarly journal.

Additional developments testify to the growing vitality of Jewish academic interest on the American campus. A Jewish caucus within the American Sociological Association has formed an Association for the Sociological Study of Jewry, with a membership of 125 faculty and student members. The American Academy of Religion includes a growing number of Jewish scholars whose participation in the proceedings of the Academy has assumed major significance. Similarly, the role of American Jewish scholars in the assemblies of the World Congress for Jewish Culture in Jerusalem has increased dramatically. New programs to provide graduate training for Jewish educators and Jewish communal workers have been established in a number of universities. Perhaps the most significant portent for the continuing development of the field is the formation of an association of graduate students in the field of Jewish history which holds frequent meetings devoted to scholarly research. Clearly a major advance in the cultural endowment of American Jewry and a major change in the standing of Jewish culture in the world of the American university is in process.

Many factors have contributed to this development. Perhaps the most basic was the recognition which emerged only after the creation of the State of Israel: that the Jewish people was a living and developing nation whose rich past was related to a vital present and whose historic and continuing experience was worthy of study. In addition, the dynamic development of Jewish culture within Israel society and of Jewish scholarship within Israel universities, provided a focal point for serious study, a body of literature, and a cadre of distinguished teachers who provided a significant impetus for the awakening of both the Jewish and the university worlds to the dimensions of Jewish culture and history and the quality of serious Jewish scholarship. Since American universities in the post-World War II period were broadening their areas of study to accommodate a variety of cultures and experiences outside the framework of the classical humanistic curriculum, Jewish studies were readily accepted and frequently encouraged in departments of religion, of modern and ancient Near Eastern studies, of history, and of comparative literature. In a few instances—most notably Brandeis University, Rutgers, and the University of Wisconsin—separate departments of Jewish studies were established. In a variety of settings, the American university was open to the entry of the diverse elements of Jewish studies.

At the same time, the growing self-consciousness and self-confidence of American Jewry in recent decades created a demand for Jewish studies and a desire to take advantage of the opportunities for learning. American Jewry's awareness of itself was nourished by the reaction to the Holocaust and the rise of the State of Israel. The trauma of the Six Day War in 1967 and the Yom Kippur War of 1973 provided added incentives for study of the Jewish past and present, which frequently accompanied a desire for renewal of identity and identification.

Perhaps the final factor which contributed to the rapid growth of Jewish studies within recent years was the assertiveness of other groups on the American campus (particularly American Blacks) and the general disillusionment of students and intellectuals with the romantic pseudo-radicalism of the late 1960s. Large numbers of Jewish students and faculty rediscovered the richness of their own tradition. They requested, and occasionally even demanded, that universities provide them with the same opportunity to study this tradition with the high level of critical examination and seriousness of purpose as were applied to all other academic pursuits. For the first time in American Jewish history large numbers of mature Jewish students outside of the yeshivot and theological seminaries had the opportunity to devote themselves to serious Jewish study. Increasing numbers have taken advantage of this opportunity.

The problems of Judaica in American universities have by no means been resolved. There is an ongoing debate as to the proper departmental framework for such studies. In a few instances Jewish studies are taught in a separate department (as at Brandeis). More often they are concentrated in departments of history (as at Columbia), religion (as at Brown), Near Eastern Languages (as at Harvard), Comparative Literature (as at U.C.L.A.), Oriental Studies (as at University of Pennsylvania), or Philosophy (as at Washington University). Increasingly, interdepartmental concentration in Jewish studies is organized with various faculty members holding appointments in departments according to their scholarly disciplines (as in Ohio State University). It seems likely that no one setting or pattern will emerge which will be suitable to all circumstances, and that a variety of emphases in the teaching of Jewish studies will continue for the foreseeable future.

Additional difficulties result from the fact that few American universities possess adequate faculty and library resources to offer fully developed programs and that mastery of necessary languages and disciplines often remains dependent on Jewish studies outside the university. Frequently individual professors are required to teach courses which are barely related to their areas of specialization. Moreover, the rapid growth of the field has created a shortage in which the number of faculty positions available outstrips the number of qualified candidates. Inevitably, it has proven difficult to maintain high standards in responding to the demand.

Despite these problems, the field continues to develop and mature. Universities in Israel whose resources exceed those of any American university provide an essential supplement for both undergraduate and graduate training. The American Jewish community, through individual donors and local federations, is providing modest but increasing support both for the training of scholars and for the expansion of university teaching. Undergraduate enrollments continue to grow and the number, intellectual stature, and Judaic preparation of graduate students is on the increase everywhere. Many young men and women entering the field demonstrate serious commitment to both scholarship and teaching.

An increasing emphasis is being placed on all areas of modern Jewish studies, such as modern Hebrew literature, modern Jewish history, the Nazi Holocaust, Zionism and the rise of the State of Israel, and American Jewish history. Previously neglected subjects such as Yiddish language and literature and the history of East European Jewry have entered the curriculum. McGill University in Montreal and Queens College in New York City have established undergraduate majors in Yiddish and YIVO now offers a graduate program in Yiddish in conjunction with Columbia and other universities in the New York area. Medieval Jewish studies, long ignored in the world of the secular university, are receiving increased scholarly attention and student interest. As Jacob Neusner has written, even the Talmud can be and is being studied within the university "as a historical document, as a source of philological and cultural facts, as a testimony to the state of religion, economic life, sociology, politics in ancient times, and as a repository of values which in various ways have later on shaped the life of Jews." Clearly, the outlook for the future development in all facets of Judaic studies within the North American university complex is promising.

The teaching of Jewish subject matter in secular universities cannot be considered as "Jewish education" in the sense of indoctrination. As Alfred Jospe commented, "the purpose of Jewish studies in the university is the study of Judaism and the Jewish people and not the Judaization of young Jews, the stimulation of their Jewish commitment, or the strengthening of their Jewish identification." If Jewish studies are to retain a lasting and respected place in the university curriculum and are to sustain the interest of students, they must maintain high standards of academic seriousness and critical scholarly objectivity.

At the same time, Jewish studies programs do provide significant new "Jewish presences" on college campuses as well as new resources for familiarity with Jewish culture and history and a new respect for the quality of Jewish creativity in the past and in the present. The teaching of Judaica in universities is serving to dispel the pernicious myth that Jewish materials are worthy of study only by children in sub-standard, marginal, part-time schools.

Under the best of circumstances, the development of Jewish studies will not diminish the need for primary and secondary Jewish education of quality, or the importance of traditional modes of "Jewish learning" in yeshivot, seminaries and other institutions under Jewish sponsorship. At the same time, the Judaic intellectual presence in the world of the university creates a new potential: for developing a knowledgeable leadership cadre—lay and professional—for American Jewry; for nurturing a class of American Jewish scholars who will not only communicate the content of the Jewish heritage, but will contribute to it.

[Leon A. Jick]

Year Book 1975–76 Feature

Jewish Studies in American Colleges and Universities

INTRODUCTION

During the 19th century, the founders of Wissenschaft des Judentums dreamed of seeing this study incorporated into the curriculum of German universities. Given the high prestige and quasi-governmental status of the university, the introduction of Jewish learning in universities would have heralded the acceptability of both Jews and Judaism in German society and culture. But the hope of the founding fathers of modern Jewish learning was frustrated. German officials and rulers rejected all petitions. In the German context, the scientific study of Jewish history, texts and sources remained within the Jewish communal institutions.

The contrast with the current American situation is striking. It is estimated that by the late 1960s approximately one-third of all four-year liberal arts institutions offered one or more courses in some branch of Jewish learning. By 1970 enrollment in Hebrew language and literature courses reached 17,000 and enrollment in all Judaica courses was approximately 45–50,000. Within the college-age group, i.e., 17–21 years of age, far more are studying Judaica in liberal arts colleges and universities than in Jewish communal institutions (i.e., yeshivot, seminaries, Hebrew teachers' colleges). Founded in the early 1970s, the Association for Jewish Studies, the major professional organization in the field, has nearly one thousand members.

THE ORIGINS OF THE FIELD OF JEWISH LEARNING

Jewish learning found its first American home in institutions which modeled themselves on the great German universities of the 19th century. With the institutionalization of von Humboldt's reforms, Germany became the world's research center and German universities the model to be emulated by academic innovators and reformers. The German university ideal was brought to the United States by a few emigrM professors and more significantly by Americans who had studied in Germany. Initially, few American institutions accepted the German Wissenschaft ideal with its emphasis on graduate education and scientific scholarship. Most American colleges were committed in one way or another to genteel or pious indoctrination. The curriculum of the 19th-century American college was largely fixed, narrow and indifferent to science.

In 1876 the John Hopkins University was founded in Baltimore, Maryland, the first institution explicitly committed to the primacy of research and graduate education. Slowly a handful of other institutions were either established or transformed in accordance with Wissenschaft principles. The field of Semitics constituted one of the major curriculum innovations introduced by the Wissenschaft institutions.

While the study of the Hebrew Bible was an important element in the early American college curriculum, this study was confessional, not scientific. With the decline of Protestant (particularly Puritan) Hebraism in the middle of the 18th through the 19th century, the study of the Hebrew language declined in importance. In 1755 Harvard relegated Hebrew to elective status, leading to a significant drop in enrollment. Columbia University offered no instruction at all in Hebrew from the 1830s until the middle of the 1860s. Biblical criticism briefly flourished at Harvard and Andover in the early 19th century, but its influence waned after mid-century. John Hopkins appointed a Semitic scholar (Thomas C. Murray) to its first faculty in 1876. Murray died in 1879 and was succeeded by Professor Paul Haupt of G[ttingen in 1884. With Haupt's appointment, Semitic scholarship found a home in the United States. Largely within the context of departments of Semitics, Judaica began to emerge as a significant subfield. In 1886 Columbia University appointed Richard J. H. Gottheil, and the University of Pennsylvania appointed Morris Jastrow.

In a paper published in 1897, William Rosenau of Johns Hopkins identified 15 colleges and universities offering programs in Semitics. Of these, four—the University of Chicago, Columbia, John Hopkins and the University of Pennsylvania—offered instruction in specifically Jewish materials (rabbinic and medieval Jewish texts). Institutions offering Judaica had the largest numbers of students and faculty, the most favorable student-faculty ratios, the hightest rates of graduate enrollment, the largest libraries and the largest number of books per student.

The distinct character of Semitics and, even more, Judaica institutions were defined by several measures: these institutions were both far larger and far more research-oriented than the typical American college or university. In 1900 every one of the Judaica institutions was represented at the founding meeting of the Association of American Universities, the umbrella organization of research institutions. Harvard and the University of California (Berkeley), which began their scientific Judaica programs shortly after the Rosenau survey, were also among the major research institutions represented in the founding of the A.A.U.

Thus, Jewish learning entered American higher education during the period of the American academic revolution and was located precisely on those campuses which were in the vanguard of the revolution.

THE INTELLECTUAL AGENDA OF THE FIELD OF JEWISH LEARNING

The intellectual agenda of Jewish learning has been shaped by the state of the art of Semitics research generally, the place of the Jew both in American society and on campus, and the nature of the college or university at which it was located. William F. Albright, the biblical archaeologist, characterized the 19th century as "... the heroic age of philology." Perhaps the best-known and most dramatic philological event of the period was the deciphering of Egyptian hieroglyphics made possible by the discovery of the Rosetta Stone in 1799. A series of other discoveries and researchers made accessible a considerable library of source materials from the ancient, classic and medieval Near East.

The excitement generated by philology in America can be demonstrated by a letter Richard Gottheil wrote to Solomon Schechter (1899) in which he described himself as a "... full-fledged philological worm, who at best can creep from one root to another and nibble a little here and there." Gottheil's play on the word "root" suggested both flora and etymology.

Though trained in rabbinics and occupying a chair of rabbinics and philology, Gottheil expended most of his professional efforts on the latter field. He did so partly because the area of language per se witnessed some of the most exciting work and because here recognition was most likely to come from his professional colleagues. And he did so partly in self-protection. While a blatant anti-Jewish animus was not to arise in the American university until the emergence of the numerus clausus issue in the 1920s, Gottheil and other practitioners of Jewish learning knew well that their position in universities was tenuous. By 1898 Gottheil had reduced his offerings in Judaica at Columbia to two half-year courses in rabbinics. By 1906 he reported that he was devoting himself more and more to Arabic.

A parallel turn of events occurred at the University of California (Berkeley). William Popper, who succeeded Max Margolis at Berkeley in 1905, was trained by Gottheil as a Semitics scholar. His early published work was clearly in the area of Judaica scholarship. However, he shifted his focus of attention to medieval Arabic material and never fulfilled his early promise as a Judaica scholar. In Gottheil's and Popper's professional lives, there emerged a socially grounded ambivalent stance toward Judaica scholarship. These scholars wished to be seen as disengaged scientists, not apologists. The way to do so was either to shift one's focus of research to other areas of Semitics or to concentrate on technical problems of language and text. Either method would save the scholar from controversy with religious forces hostile to the critical examination, analysis and interpretation of texts. While in a letter to the Semitics scholar Robert Harper (1907), Gottheil asserted the centrality of history, as well as cultural history, and philology for the scholarly agenda, this assertion remained a prescription for others rather than a description of his own work. It fell to George Foot Moore, a gentile, to become the first important American university-based scholar to engage in interpretive analyses of Jewish historic religious materials. For a Jew, humanistic scholarship might prove far too dangerous and threatening.

Approximately one generation after Gottheil and Jastrow began their professional university careers, two new scholars arose who were to make very important contributions to Jewish cultural history. These were Isaac Husik of the University of Pennsylvania and Harry Wolfson of Harvard. The two men had much in common. Born in Eastern Europe, they migrated to the United States during their adolescence. They came from pious, traditional homes; they both concentrated on medieval Jewish philosophy and both had to labor many years in insecurity until they found their rightful place in their universities.

Perhaps most significantly, both faced the problem of legitimizing and explaining their choice of subject in the context of the humanities curriculum. In an essay published in 1921, Wolfson argued that, the Bible aside, "Medieval philosophy is the only branch of Jewish literature... which binds us to the rest of the literary world." While Wolfson acknowledged the greater significance of Talmud for the internal intellectual and spiritual life of the Jews, it was clear to him that it was too uniquely Jewish. The study of the Babylonian Talmud along with commentaries, supercommentaries, and novellae had been the core of the curriculum at the yeshiva, the traditional Jewish institutions of higher learning. For the practitioners of the new university-based Jewish learning, however, it was important that their field of study make sense to colleagues in cognate fields and that they not be perceived as rabbis. It was to take another 40 years, with the rise of a generation secure in its position in the American university, for traditional rabbinics to become a central element in the university Judaica curriculum.

Wolfson's somewhat older and less renowned contemporary, Issac Husik, faced much the same philosophers were accessible, beautifully printed, "... the choicest products of the printer's art...." By contrast, there were "... those shabby tomes which incarnate the spirit of Saadia, Halevi and Maimonides... those unpublished works of Gersonides, Narboni and the Shem-Tobs, scattered all over the world and rotting in the holds of libraries..." Given the passion of his expression and the security which ultimately was to be his as the Littauer professor at Harvard, one might have expected Wolfson to devote his entire career to the task of salvaging, editing and analyzing the texts to which he expressed devotion. While his contributions to the study of medieval Jewish philosophy were enormous, he diverted much of his attention to the study of the Christian Church fathers and the Muslim Kalaam as well, in an attempt to demonstrate the continuity of medieval thought.

Wolfson's somewhat older and less renowned contemporary, Isaac Husik, faced much the same set of problems. Early in his career he had established a reputation as a model scholar. His dissertation on a Hebrew supercommentary on Aristotle was well received and praised. Three years after he published a commissioned translation of a work in German legal philosophy, Husik entered the law school of the University of Pennsylvania. This was in 1916, the same year as the publication of his A History of Medieval Jewish Philosophy. While he continued his work on the medieval Jewish philosophic tradition, publishing his edition of Joseph Albo's Ikkarim in 1929–30, he devoted more and more of his time to legal philosophy.

Husik's scholarly career demonstrates a recurrent concern with the peculiarly Jewish elements in the Jewish philosophic and intellectual enterprise. He was committed to "philosophizing" as an existential as well as a scholarly or antiquarian enterprise. His work in legal philosophy was at least in part concerned with living issues in the law. Yet he denied the possibility of producing Jewish philosophy in the modern world, asserting that Albo (d. ca. 1430) was the last of the Judaic philosophers. Was the study of Jewish philosophy to be an antiquarian enterprise or an exercise in apologetics? Neither possibility would satisfy him. The scholarly pursuit of Jewish philosophy raised painful questions for Husik leading to an ambivalence not unlike that of Wolfson, and of Gottheil before them.

Withal, Husik and Wolfson extended the scope of Judaica in universities. However, their high-culture subject matter and approach continued to define the field in a way which restricted it to research institutions attracting an elite student body. During the 1920s a concerted attempt was made to initiate instruction of Jewish studies at the City College of New York. The supporters of this move wrote to well-known Jewish intellectuals soliciting their support. The response of Felix Frankfurter (1922), an alumnus of City College and then professor at the Harvard Law School, is of particular interest. Frankfurter opposed the move. He wrote, "A college, unlike a university like Harvard, can't teach everything and give courses in everything." Since Judaica was not part of the usual undergraduate liberal arts curriculum, City College had no business attempting to offer it. The field had grown very little from the time of its origin in the late 19th century through the 1920s. Further growth required access to mass institutions in addition to the elite few in which it was already found and required as well a curriculum appropriate to those institutions.

A model for Jewish learning outside of the Wissenschaft tradition still did not exist and the Wissenschaft model was found inappropriate for City College. An opportunity for an alternative model, however, developed at New York University in 1933. New York University sporadically offered some form of Jewish learning in its curriculum from 1839, but it had never been able to sustain a program (or even a single instructor) long enough, or with enough support, to develop a fully institutionalized effort. In 1933, Abraham Katsh, a graduate student, proposed the introduction of modern Hebrew into the curriculum of the non-credit division of General Education, an adult-education unit within the university. Soon after, the university, with the support of Dean George Payne, introduced a program of Jewish Studies (including modern Hebrew) into the School of Education.

The N.Y.U. innovation broke new ground in at least two ways. First, it offered a new curriculum. While the course of studies at the major research institutions examined the classical and medieval tradition, the N.Y.U. program gave greater emphasis to the modern period, with Hebrew as a living language. Second, at N.Y.U. the program was introduced initially in the adult education division and from there moved to the undergraduate program in education. In the research institutions, by contrast, the field was largely at the graduate level and was located in the arts and sciences faculty. The N.Y.U. curriculum model was adopted by Brooklyn College in 1938, Hunter College in 1940, and City College and Temple University in 1948.

During the 1950s and 1960s the curriculum of the field developed further. Social-scientific inquiries into Jewish life were conducted with greater frequency and sophistication. With the growing body of reading materials, and with the availability of interested scholars, it became possible to introduce undergraduate courses focused on the lives of ordinary Jews. The textual and intellectual-historic orientation of classical Wissenschaft began to share the field with social history, sociology and related disciplines. Concurrently, departments of religion became less confessional and apologetic and began allowing for the study of Judaism within the context of religious studies. While early university scholars in the field were obsessed with problems of language and texts, their intellectual successors became less concerned with data for data's sake and more concerned with the meaning of the data.

THE GROWTH OF JEWISH LEARNING FROM THE 1920S THROUGH THE 1960S

The growth of Jewish learning in American universities reflects several social facts. One is the growing acceptability of both Jews and Judaism in America. A second is the internal transformation of the field from one concerned with the esoterica of the ancient Near East to one dealing with the totality of the Jewish experience in all places and at all times. A third lies in the changing size and character of institutions of higher education in the United States.

Had the number and average size of American post-secondary institutions not changed over the past few generations the growth of Jewish learning would have been far more limited. The growth of Jewish learning at the college and university level must be understood in the context of the growth of American higher education in general. During the academic year 1919–20, American colleges and universities granted approximately 54,000 bachelor's, master's and doctoral degrees. By 1959–60 the number had grown to 476,000, a ninefold increase. However, it was not simply the growth in enrollment in American colleges and universities that accounted for the growth in Jewish learning. It was the way in which the growth was achieved. While the number of institutions doubled, the enrollment per institution grew by a factor of approximately 4.5. In 1919–20 there were about 52 degrees granted per institution while in 1959–60 there were 237 degrees per institution. The growth in enrollment per institution had several consequences which facilitated the growth of Judaic studies. The growth in average enrollment meant that many more institutions could go beyond a restricted curriculum. As noted above, Judaica institutions in the late 19th century were significantly larger than the typical American college or university, and the same holds true for the 1950s and 1960s. Large institutions have always had large libraries (facilitating research), high rates of graduate enrollment (supporting a research ethos) and a significantly more varied curriculum. Size per se allows for specialization and division of labor, making it possible for institutions to appoint faculty with a wide range of specialties and interests.

Since the end of the 19th century the intellectual agenda of Jewish learning changed markedly but the determinants of its distribution have remained remarkably stable. Even with the shift from elite to mass institutions Jewish learning is still more likely to be found in large institutions with graduate programs located in areas of high Jewish population density and enrolling large numbers of Jewish students.

By any measure—number of courses, number of students enrolled, number of Ph.D.s granted, number of professors—the growth of Jewish learning in the last half century far exceeded the growth of higher education in general. It is obvious that if this pattern were to continue, the entire university curriculum would ultimately consist of Judaica courses, an impossible turn of events. An examination of the growth in number of courses in Judaica shows an interesting pattern.

During the 1920s and 1930s growth was very slow, but from the 1940s to the mid-1950s growth accelerated very rapidly. From the late 1950s through the mid-1960s the rate of growth began to show a significant decline. During the latter part of the 1960s and into the early 1970s the rate of growth acclerated sharply. The pattern of growth of Judaica from 1923 to 1965 is familiar to students of endogenous growth within finite systems. It is the standard curve generated by tracing the growth of individual living organisms, populations of living beings, and a wide variety of human cultural and social products. It is a pattern of growth in which initially growth accelerates very slowly, then shifts to a stage of rapid growth and then slows down again. The early and late halves of the curve are mirror images of one another.

The shape of the curve suggests that from 1923 to 1965 the field grew without impact from events outside the academic world. Once the field was established, such events as the Holocaust in Europe or the establishment of the State of Israel may have influenced the content of courses, but not their number. The field spread from campus to campus, with new undergraduate programs emerging in response to the availability of faculty and new faculty being trained in response to demands generated by the growth in undergraduate programs.

The pattern of growth remained stable for 40-odd years. In the middle-to-late-1960s the boundary between higher education and the rest of American society became far more permeable while concurrently America experienced an ethnic revival. Both sets of circumstances working together pushed the curve upward radically and rapidly through at least the early 1970s.

The critical question for the immediate future is whether Jewish learning will maintain its position in the American university and college system. American higher educational institutions have been experiencing a relative decline in financial resources and student populations. Retrenchment is the order of the day at many institutions. Will this mean that fields which have only recently undergone rapid expansion will suffer disproportionately from the difficult conditions which now exist? Will the Jewish community which was historically largely indifferent to the development of Jewish learning in universities now attempt to support the field? Will ethnic self-consciousness and self-assertion decline, leading to a climate of opinion less (or perhaps more) favorable to serious Jewish learning in American universities? The answers to these questions will influence the fate of the field in the next generation or so.

[Paul Ritterband/Harold S. Wechsler]

Year Book 1977–78 Feature

In the U.S.S.R., 1950–1990

In the year 1950 Jewish studies in the Soviet Union reached a low point. Research under independent Jewish auspices had ended by fiat in 1930. Jewish departments at Soviet academic institutions, which published their studies in Yiddish—the official Jewish language—had been in decline even before World War II; the Office for the Study of Soviet Jewish Literature, Language, and Folklore at the Ukrainian Academy of Sciences was the only such body which still existed after the war, but it was closed early in 1949 as part of the secret Stalin purge of Jewish culture. Its head, the Yiddish linguist Elijah Spivak, perished in prison in 1950. It has been surmised that the closing at the time of the Chair of Assyriology-Hebrew Studies at Leningrad University was politically motivated. The low esteem in which the Jews and their culture were then held by the Soviet establishment can be seen in the short and prejudiced entry "Evrei" ("Jews") in the second edition of the Bol'shaia sovetskaia entsiklopediia ("Large Soviet Encyclopedia"), which went to press in 1952.

After Stalin's death in 1953 there were slow but perceptible changes. Translations from the Yiddish began to appear, followed in 1959 by the resumption of Yiddish publishing and from 1961 by the appearance of the still existing Yiddish journal Sovetish Heymland. But these concessions did not include a revival of the scholarship under academic auspices which had been a part of Soviet minority policy between the wars. For a considerable time the only outlet was the traditional one of Jewish studies under the broader aegis of Near Eastern studies. These themselves were then being reorganized, with the "Institut vostokovedeniia" (Institute of Oriental Studies) temporarily renamed "Institut narodov Azii" (Institute of the Peoples of Asia). The Institute of Oriental Studies, being attached to the Soviet Academy of Sciences, is in Moscow but maintains a Leningrad branch, at which Semitics have been more actively cultivated. At the same time Leningrad University has remained the instructional center for this branch of learning, continuing a tradition dating back to czarist times.

Around 1951 the "Russian Palestine Society," moribund since 1930, was revived as an affiliate of the Soviet Academy of Sciences. In czarist days this organization, known then as the "Pravoslavic Palestine Society," had been more missionary than scholarly. Its reappearance, and the revival in 1954 of its publication Palestinskii sbornik ("Palestine collection"), raised eyebrows and was seen by some as directed against the new State of Israel. It seems more likely that it was part of the wave of Russian patriotism then encouraged by Stalin and was intended to point out the continuing Russian interest in the Near East and its emerging states—while for political reasons avoiding all mention of the State of Israel and indeed the modern Jewish settlement in Palestine. However, this taboo was not extended to ancient Israel or medieval Jewry, so that, beginning with volume 2 (1956), Jewish studies have a modest place in Palestinskii sbornik alongside a plethora of articles on Arabic studies, Persian studies, Egyptology, and related fields. Circumspection demanded that studies on biblical and talmudic themes avoid the words "Bible" and "Talmud" in the title of the article; thus, in an article comparing the Samaritan Pentateuch with biblical citations in the Jerusalem Talmud, the latter is called a "Palestinian oral tradition" (v. 15, 1966). The author, Isaac Vinnikov (1897–1973), a veteran Arabist, Aramist, and talmudist, had been the last incumbent of the Chair of Assyriology-Hebrew Studies at Leningrad University, and contributed regularly to Palestinskii sbornik until his death. His major contribution is a dictionary of Aramaic inscriptions extending over a number of issues. Vinnikov called on the Judaic scholars of the world to produce dictionaries and concordances of talmudic and targumic literature which would lake into account recent research; and as a sample published his material on the letter g (v. 5, 1960).

Another talmudist who wrote in our period but did his most important work earlier was Judah Solodukho (1877–1963), whose studies of the social history of "Iraq" in the first centuries of the Christian era were actually studies of the Babylonian Talmud.

A contributor to Palestinskii sbornik, who—as far as we know—is still teaching in the Soviet Union today, is Joel Weinberg, or Veinberg in his Russian-language articles. Weinberg, born 1922 in what was then independent Latvia, is a professor of ancient history at the University of Daugavpils (Dvinsk), and his interests include the biblical period. In the 1960s he published two books in Latvian on the Bible and its setting. Like many other scholars in this era of more open communication he writes frequently for academic journals in the West. Contributors to Palestinskii sbornik also include the Hebrew linguist Anatolii Gazov-Ginzberg, the Qumran (Dead Sea community) scholar Klavdiia Starkova, and the versatile Semitist Elijah Shifman. Gazov-Ginzberg (b. 1929) has changed his name to Amnon Ginzay and is today a translator and editor in Israel. Starkova (b. 1915) had a book on the Qumran scrolls accepted in the journal's monograph series (v. 24, 1973). She is also one of the Soviet Union's few experts on medieval Hebrew literature and has written on the poetry of Judah Halevi. Among the many writings of Shifman (1930–1990), a specialist on Phoenician civilization, is Vetkhii Zavet i ego mira ("Tile Old Testament and its World," 1987)—published at a time when the Bible had again become a legitimate part of world literature for the Soviet reader.

Palestinskii sbornik, which over the years has become more hospitable to Jewish studies, began to include reviews of recent Judaica in its book review section in the 1970s. In the 1980s, however, the journal became more overtly political and published articles on the Palestine problem which depict Israel as the main obstacle to peace in the area. Today Palestinskii sbornik appears so irregularly that its continued existence is in doubt.

The Soviet reorganization of Semitic and Near Eastern studies at the beginning of the 1950s left the journal Vestnik drevnei istorii ("Bulletin of Ancient History") untouched. Among its regular contributors was Joseph Amusin (1910–1984), a Bible scholar whom Soviet writers and intellectuals used to consult on the subject. Amusin became the Soviet Union's leading expert on the Dead Sea scrolls after these were discovered and wrote both popular and scholarly books on the topic, including shortly before his death, Kumranskaia obshchina ("The Qumran Community," 1983). In 1971 a translation of the scrolls into Russian under his editorship produced its first volume. A second volume is known to be ready for publication but is believed to have been held up for political reasons.

In general, however, book-length studies on Judaic topics in the period covered by this survey are few. Some relatively early examples are: Nikita Meshcherskii's edition of the Slavonic Josephus (1958): and Mikhail Artamonov, Istoriia khazar ("The History of the Khazars," 1962). The latter book, by a non-specialist, was considered anti-Semitic by the Israeli historian Shemuel Ettinger, since Artamonov not only rejected the idea of a Khazar heritage in Russian history—an idea generally accepted—but even considered the conversion of the Khazar royal court to Judaism as a negative factor in and of itself (see Ettinger's review in Kiryat Sefer, v. 39, pp. 501–504).

Starkova and Meshcherskii (b. 1906, an expert on translations of old Hebrew classics into Slavic) belong to the small group of Russians with an interest in classical Hebrew. So does Igor Diakonov (b. 1915), today the elder of Soviet Near Eastern studies, whose works on the languages of the ancient East include Hebrew and who has translated biblical poetry into Russian. In this connection we also take note of an outstanding Russian Semitist from an earlier generation, Pavel Kokovtsov (1861–1942), who taught Meshcherskii, Vinnikov, and many others in the interwar period; in Hebraic studies ("gebraistika" in Russian) he is best known for his edition of the correspondence between the Spanish Jewish courtier Hasdai ibn Shaprut and the king of the Khazars (Evereisko-khazarskaia perepiska v X veke, 1932).

In the "First Conference on Semitic Languages" held in Tbilisi (Tiflis), Georgia, in 1964, Hebrew had a prominent place, and even modern Hebrew entered the discussions. The editor of the conference proceedings—published in 1965 as volume 2 of Semitskie iazyki ("Semitic Languages")—noted in the introduction that "Hebraistics were one of the most important and oldest areas of Semitology," and singled out the then new Hebrew-Russian dictionary (Ivrit-russkii slovar') by Feliks (Faitl) Shapiro (1876–1961), edited by Benzion Grande (1891–1974) and published in 1963. The Iranist Michael Zand (b. 1927), now a professor at the Hebrew University, dealt with Yiddish as a substratum of Hebrew, and the Semitist Meir Zislin (b. 1916) wrote on some medieval Hebrew grammars. The participants also included the leading Georgian Aramaist Konstantin Tsereteli (b. 1921), who helped make the University of Tbilisi a center of Semitic studies alongside the better known institutions in Leningrad and Moscow.

As usual the atmosphere in Georgia was freer than the one found in the north, and Hebrew has not been neglected in the work being carried on in Tbilisi. In 1975 Tbilisi University published a Karaite Hebrew grammar. Ma'or Ayin, edited by Zislin; while under the patronage of the Georgian Academy of Sciences Nisan Babalikashvili edited a collection of local Hebrew inscriptions, largely from tombstones: Evreiskie nadpisi v Gruzii, XVIII–XIX vv. ("Hebrew Inscriptions in Georgia, 18th to 19th Centuries," 1971). Babalikashvili (1938–1986), the son of the rabbi of Tbilisi, unfortunately died at a young age. So did the talented young Georgian Jewish Hebraist Boris (Dov) Gaponov (1934–1972), whose translation of the Georgian national epic, Shota Rostaveli's "The Man in the Panther's Skin," was published in Israel with the collaboration of the Georgian Academy of Sciences (Oteh or ha-namer, 1969). Gaponov's first-rate translation, which made a strong impression, became the subject of a dissertation submitted in 1985 to the University of Tbilisi by a young Hebraist Manana Gotsiridze. Earlier, in 1982, Yurii Kornienko had defended his dissertation at the same university on the morphology of word formation and word change in contemporary Hebrew.

At the 1964 conference we see the use of the word "Ivrit" in Russian to designate Hebrew in place of the earlier "drevneevreiskii iazyk" ("Old Jewish language"). By the time the third edition of the Large Soviet Encyclopedia appeared in the 1970s "Ivrit", had become the standard term for the language; the entry "Ivrit" was written by the Soviet Semitist-Hamitist Aaron Dolgoposkii (b. 1930), now teaching at the University of Haifa. In this connection we note that the abovementioned Hebrew-Russian dictionary, the life work of the educational specialist Feliks Shapiro, was scheduled for publication in the 1950s but was withdrawn—whereupon the author turned to the highest party circles in an attempt to prove the work's importance for Soviet Semitology (see the Russian commemorative volume Feliks L'vovich Shapiro, edited in Israel by his daughter Leah Prestin, 1983). The dictionary, which finally appeared after its author's death, has since served Soviet academic institutions as well as the young Jews studying their ancestral tongue more or less surreptitiously.

However, the official language of Soviet Jewry remained Yiddish, and the veteran Yiddish grammarian Emanuel Falkovich (1898?–1982?), who also wrote the entry "Yiddish" for the above-mentioned encyclopedia, contributed a chapter on the language to the linguistic collection Iazyki narodov SSSR, v. 1 ("Languages of the People of the USSR", 1966). Dolgopolskii and Falkovich together produced the article on Hebrew scripts ("Evreiskoe pis'mo") for the encyclopedia. Falkovich also took an active part in the efforts of the journal Sovetish Heymland to teach Yiddish to Soviet Jews, although his silence on the future prospects of the language in the 1966 article makes it seem likely that he was pessimistic on the subject.

This brings us to Jewish studies in Yiddish. As noted, the Soviet authorities did not revive the interwar institutional structure to which we owe a number of studies in Yiddish on Jewish history, demography, Yiddish linguistics, Yiddish literary research, and bibliography. The older generation of scholars who had carried on this work was passing on in any case, and the absence of Yiddish schools made the problem of succession insoluble. In addition, the rapid linguistic assimilation of Soviet Jewry made the audience for what was left of Yiddish-language scholarship very small.

Yet even now some work was done. A number of scholars who had been associated with the Jewish subdivisions of the Ukrainian Academy during the 1928–1949 period were released from prisons and camps in the mid-1950s. Among them was the outstanding music folklorist Moses Beregovskii (1892–1961), who was, exceptionally, able to put together a book, posthumously published as Evreiskii narodnye pesni ("Yiddish Folk Songs", 1962). Many of Beregovskii's writings are now available in Mark Slobin's English edition (Old Jewish Folk Music, 1982).

The main outlet for Yiddish-language studies was naturally the standard-bearing monthly Sovetish Heymland. Because of its nature as a literary journal it tended to restrict research to the history of Yiddish literature and related topics. Among the more important literary scholars was Hersh Remenik (1905–1981). Two surviving Soviet Jewish historians, Hillel Aleksandrov (1891?–1972) and Asher Margolis (1891–1976)—the former after 20 years of imprisonment for "Trotskyism"—contributed occasional articles on the borderline of history and literature. Oldtime linguists writing in the journal included Reuben Lerner (1902?–1972), Khaim Loytsker (1898–1970), Moses Maydanski (1900?–1973), and Moses Shapiro (d. 1974). Shapiro, together with the Stalin victim Elijah Spivak (mentioned above), had been working for many years on a Russian-Yiddish dictionary, which finally appeared long after their deaths (Russko-evreiskii (idish) slovar', 1984).

Two other veteran scholars, the historian Israel Sosis (1878–1967?) and the demographer Jacob Kantor (1886–1964) found no outlet in Russia during this period and published occasionally in the Warsaw Yiddish newspaper Folksshtime, where Kantor took on the then taboo topic of Jewish participation in the Red Army. Kantor also published his last demographic study, in which he analyzed Jewish data from the 1959 census, in the Warsaw Jewish historical journal Bleter far geshikhte (v. 15, 1962/63, translated and annotated by the present writer in Studies... in Honor of 1. Edward Kiev, 1971). Sosis' unpublished "History of the Jews in Russia" is said to be in the possession of Sovetish Heymland.

As time went on Sovetish Heymland became more hospitable to studies not connected with Yiddish literature. Especially noteworthy among these are the articles by Leyb Vilsker (1919–1988), for a number of years head of the Jewish Department of the Leningrad Public Library. Vilsker was inter alia an expert on the Samaritan language and literature, and published Samaritianskii iazyk ("The Samaritan Language") in 1974. His most important contributions to the Yiddish monthly are previously unpublished Hebrew texts, such as poems of the famous medieval poet Judah Halevi (Sovetish Heymland, 1982, no. 2). Vilsker and his wife, Gita Gluskina (b. 1922)—a Hebraist in her own right—also contributed to Palestinskii sbornik. Gluskina, daughter of the Leningrad rabbi Mendel Gluskin, worked on medieval Hebrew texts and is best known for her edition of the mathematical treatise Meyasher Akov ("Straightening the Crooked." 1983) by Abner of Burgos. Today she lives in Jerusalem.

In the period we are dealing with, the absence of formal Jewish institutions other than synagogues did not stop young Jews from searching for their roots, and this became especially marked after the Six-Day War in 1967. The growing Soviet phenomenon of "samizdat" (private, unauthorized publishing) had a Jewish counterpart, where attempts were made to provide anthologies of Jewish literature in Russian. In 1976 the physicist Benjamin Fain (b. 1930), who later emigrated to Israel, decided to conduct a sociological survey of Jewish self-identification under "samizdat" conditions. About 1,500 Soviet Jews served as his sample, and the results are now available in English in an Israeli publication (Jewishness in the Soviet Union, 1984). Fain also organized cultural symposium in Moscow at the end of 1976, to which the police put a quick end.

In the 1980s growing interest in Russian Jewish history made itself felt both inside and outside "samizdat" circles. In one of the major publications of Jewish "samizdat", Leningradskii evreiskii al'manakh ("Leningrad Jewish almanac," 1982–1989) Michael Beizer (b. 1950) published articles on the Jews of St. Petersburg, as the old capital used to be called. These resulted in 1986 in the "samizdat" book Evrei v Peterburge (published in 1990 in English translation as The Jews of St. Petersburg after Beizer emigrated to Israel). In the past decade the official Sovetish Heymland became more receptive to articles on Jewish historical topics; the editors made a concerted effort in 1986 to print young writers and rejuvenate the journal, even if it meant translating from Russian writers who knew no Yiddish. One such, and probably the most talented of the younger historians, is Mark Kupovetskii (b. 1955), who is engaged in what in the Soviet Union is called "ethnography." Kupovetskii has published in Sovetish Heymland short but up-to-date demographic studies on the Jews of Moscow, the Ukraine, and the Baltic republics; a longer version of his article on the Jews of Moscow appeared in Etnodispersnye gruppy v gorodakh evropeiskoi chasti SSSR, 1987. Kupovetskii's colleague and fellow Muscovite, Igor Krupnik (b. 1951), contributed a survey of recent accomplishments in Jewish studies to the journal (1986, no. 11—for an annotated English translation see the bibliography). The author emphasized the youth of many scholars, and the fact that they had no "firm academic tradition" to rely upon and had to prepare themselves through their own efforts. Krupnik devotes much attention to the work being done in Georgia; in the Russian Republic he notes among others the Moscow linguist Aleksandra Eikhenvald (b. 1957), who herself published an article on the formation of modern Hebrew in Sovetish Heymland (1986, no. 7—strongly criticized by Vilsker in issue no. 11 of that year). A Leningrad scholar and bibliographer mentioned by Krupnik is Simon Yakerson (b. 1956), who also contributes to the journal on occasion. Yakerson has made a name for himself by his descriptive catalogues of Hebrew incunabula found in Leningrad and Moscow libraries; these catalogues appeared in 1985 and 1988 after Soviet bibliography had neglected Hebraica for almost 50 years.

In 1987, and even more in 1988, the effects of "perestroika" made themselves felt in the field of Jewish culture and scholarship. The very conservative Yiddish monthly now turned course and began to explore a long taboo topic: the fate of Jewish writers and cultural activities in the "black years" of 1948–1952. For the first time survivors of Stalin camps published memoirs of those days in Sovetish Heymland. "Samizdat" now became private rather than underground publishing, but tolerance did not mean support, and the contrast between official and unofficial publications remains striking. Scholarship has played a relatively minor part in the plethora of Jewish cultural associations which sprang up in the Soviet Union, but efforts have been and are being made, often imitating earlier models. In Moscow a Jewish Historical Society now exists, and it was instrumental in convening there an unprecedented international conference on Jewish studies (December, 1989) and plans to publish the proceedings. In Leningrad there is a "Jewish People's University" in apparent imitation of the one which existed in the early Soviet regime. This institution organizes expeditions to places of Jewish interest and tries to document the Jewish past in Russia while there is still time. The chairman of the Historical Society is Valerii Engel, while the People's University is led by Elijah Dvorkin—both men in their thirties.

Yet it must be said that the massive emigration of Jews from the country, which has assumed the proportions of flight, works against the cultural and scholarly revival. Thus, the continued existence of Moscow's Evreiskii istoricheskii al'manakh ("Jewish Historical Almanac," 1987–1988), a "samizdat" publication, is in doubt because both of its editors, Aleksandr Razgon (b. 1949) and Vladimir (Velvl) Chernin (b. 1958), are now in Israel. Chernin, a Yiddish poet and folklorist, also wrote for official publications and tried to bridge the gap between the two spheres.

On the more hopeful side we see that modern Jewish topics, spurned for such a long time by Soviet academic editors and university administrators, are now acceptable for articles and dissertations. This is particularly true in the field of ethnography, for example, a joint article by Kupovetskii and Krupnik on the Kurdish Jews of the U.S.S.R. appeared in Sovetskaia etnografiia (1988, no. 2) after being reportedly rejected some years previously. Michael Chlenov (b. 1940), who has emerged as the leader of the Vaad (Board of Deputies) of the organized Jewish communities, is himself an ethnographer. Much help has been given to younger scholars by the veteran Leningrad ethnographer Natalia Yukhneva, who, although not Jewish, has supported Jewish ethnographic work and is actively engaged in the battle against Soviet anti-Semitism. Yukhneva and others mentioned here have been able to visit Israel and are in contact with Israeli academic institutions.

[Av.Gr.]

Year Book 1990–91 Feature

University Teaching of Jewish Civilization

Although Jewish subjects have been taught in a number of the world's distinguished universities for centuries, in most cases instruction was limited to Hebrew and Bible. Recent years have seen a dramatic growth both in the number of institutions in which Jewish subjects are taught and in the range of the subjects in which instruction is given. Moreover, Jewish subjects have in many places moved from the periphery of the curriculum to become one of its established subjects.

The recent growth in the teaching of Jewish civilization has been the result of several factors whose relative importance is hard to determine. The chairs in Jewish Studies that were established during the early part of the century in some of the major universities were generally filled by distinguished scholars whose reputation for academic achievement was widely respected. The growth of Jewish Studies was also encouraged by a general cultural change. In the early part of the 20th century, the kind of "universalism" that was an important value of intellectual life disdained the academic study of one's own minority culture. In more recent decades, a focus on specific cultures, or "ethnicity," has gained acceptance, with the result that the university study of specific ethnic cultures gained legitimacy in the curricula. What is more, the Jewish community in many places came to understand the significance of the impact that the university study of Jewish civilization could have, not only on the large numbers of young Jews attending universities, but also on the way in which Jewish civilization was defined as an element of world culture. Accordingly, many Jewish leaders lent their support to the establishment of courses in Jewish civilization in universities, and as those courses developed and the faculty gained in reputation, the programs in the teaching of Jewish civilization became more fully established.

By now most major universities teach Jewish civilization in one way or another. There is, of course, great variety in the ways in which Jewish civilization is taught at the university level. The offerings range in number from a single course to fully developed degree programs at all levels. The scope of the teaching also ranges from an emphasis on one specific area—for example, language, history, or religious thought—to an integrated program drawing on the various dimensions and aspects of Jewish life and thought. Not only does the content vary; the organization of Jewish Studies also varies from university to university and from country to country. In some places Jewish civilization is taught in a specific department established for that purpose. In other universities, an interdisciplinary program supervises the offerings. In still other universities, Jewish civilization is taught by members of one or another of several departments. The most frequent departments which house instruction in Jewish civilization are history, philosophy, religion, sociology, political science, anthropology and, of course, language and literature. In some places a student can major in Jewish civilization; in others Jewish civilization can constitute one major along with an additional disciplinary major. In some countries Jewish civilization is only now beginning to enter into the university system. In others it is a fully accepted course of study which one expects to find in the curriculum.

One indication of the growth of the teaching of Jewish civilization is the establishment of the International Center for the University Teaching of Jewish Civilization. The International Center is the result of a study that was set in motion under the auspices of the Presidency of Israel: successive former presidents, Prof. Ephraim Katzir and Itzhak Navon and President Chaim Herzog. Such Jewish and Zionist world leaders as Arye L. Dulzin, then chairman of the World Zionist Organization, and Philip M. Klutznik, then president of the Executive of the World Jewish Congress, were among the founders of the Center, along with Prof. Moshe Davis of the Hebrew University of Jerusalem who was invited to undertake the study of the ways in which Jewish civilization was taught in universities around the world, and to head the International Center.

The purpose of the International Center is to enhance the teaching of Jewish civilization at the university level. Its work is carried out through a number of projects whose purpose is to help enrich the backgrounds and perspectives of people teaching in the field, as well as to prepare and disseminate curricular and teaching materials which can enhance the teaching of the various fields within Jewish civilization. One of those projects is the World Register of University Studies in Jewish Civilization, a collection of available information on the subject. It has data concerning the institutions in which Jewish civilization is taught, the nature of the programs in those institutions, a list of faculty, and a large collection of syllabi actually used in teaching the field.

With the growing recognition of the study of Jewish civilization as a valid university discipline and interdisciplinary program, a concomitant need has arisen for the publication of appropriate pedagogic materials. The Center conducts workshops in various areas of university teaching, focusing primarily on areas such as Hebrew language, modern Hebrew literature in translation, Sephardi and Oriental studies, Jewish philosophy, Jewish political studies, and contemporary Jewish civilization. The purpose of these workshops is to enable university teachers from countries throughout the world to meet, identify the issues which must be confronted in teaching those fields, and to provide materials needed to enhance instruction. The Selected Syllabi in University Teaching of Jewish Civilization series is a result of these workshops. Among its other ongoing publications is the BINAH series—Studies in Jewish History, Thought, and Culture—basic articles in these fields, previously available only in Hebrew, which have been translated and adapted for use in undergraduate courses.

In the summer of 1989, in conjunction with the Tenth World Congress of Jewish Studies, the International Center conducted evaluation sessions in the above-mentioned fields. In addition, a number of new fields in university teaching were explored, including Jewish art, Jewish mysticism, and Jewish Biblical interpretation.

[Mervin F. Verbit]

Year Book 1988–89 Feature