“I would like to have an answer. . . . If someone will be good enough to provide the answer I will gladly take his change of garments to the bathhouse for him.” The bit about the change of garments and the bathhouse is talmudic phraseology from tractate Eruvin (27b), indicating a matter urgently in need of clarification. And that, most certainly, is what Rabbi Louis Jacobs, whom I have quoted, seeks to convey in discussing the implications of modern consciousness for an understanding of the halakhah. As a “non-fundamentalist . . . totally committed to the halakhic way,” Jacobs finds himself caught in a terrible bind. He wishes to be modern, yet he is aware that any modern understanding of the halakhah sharply conflicts with “fifteen hundred years of [prior] halakhic activity.” This fact, he sadly observes, “cannot easily be swept aside in an approach which purports to follow the normative processes of traditional Judaism.”
Jacobs’ brooding ruminations on modern consciousness and the halakhah appear in a Judaism magazine symposium (Winter 1980) devoted to a discussion of Robert Gordis’ essay, “A Dynamic Halakhah: Principles and Procedures of Jewish Law.” In this piece, Gordis, a leading Conservative rabbi and advocate of halakhic renewal, seeks to rebut the view that the “halakhah is . . . locked in mortal combat with the contemporary age, the demands of which are, therefore, to be resisted with every means at its disposal.” It is simply not true, Gordis insists, that Jewish law was “monolithic and unchanged in the past.” Thus, there are “no grounds for decreeing that it must be motionless in the present and immovable in the future.” When the “tradition is healthy,” he asserts, the halakhah will be “sensitive to the age and respond to it.” This, indeed, is the “secret of [Judaism’s] capacity to survive.”
Gordis rests his case for a dynamic halakhah on the findings of modern critical scholarship, the “past two centuries of brilliant and dedicated research in Jewish law, literature, and life.” What this body of scholarship makes clear, he emphasizes, is that “the halakhah has a history that reveals the dialectic of continuity and change at every point.” The halakhah comprises two elements—“continuity with the past and growth induced by the present.” Gordis states: “Past tradition constitutes the thesis, contemporary life the antithesis, and the resultant of these two factors becomes the new synthesis. The synthesis of one age then becomes the thesis of the next; the newly formulated content of tradition becomes the point of departure for the next stage.” The driving force behind this process—i.e., the “factors making for growth in the halakhah”—is, first, the “necessity to respond to new external conditions—social, economic, political, or cultural—that pose a challenge or even a threat to accepted religious and ethical values,” and, second, the “need to give recognition to new ethical insights and attitudes and to embody them in the life of the people, even if there [is] no change in objective conditions.” These two factors, Gordis concludes, “functioned actively in every period of Jewish history—ancient, medieval, and modern.”
In responding to Gordis’ essay, Jacobs found himself in the awkward position of endorsing his scholarly arguments, yet rejecting his halakhic conclusions. Gordis’ presentation, Jacobs declared, was a “brilliant” exercise in modern scholarship, but one that could have no meaning at all for traditional decisors—interpreters of Jewish law—who viewed the halakhah in “completely static terms.” Jacobs observes:
Gordis’ argument (cogent and entirely acceptable in its main thrust) is based . . . on the findings of modern scholarship. But the picture which emerges from the massive researches of modern scholars is quite different from that painted by the fundamentalists who categorically reject the whole notion of development. But, and there’s the rub, the traditional halakhah is based on fundamentalism, if not of the Bible certainly of the Talmud.
Jacobs elaborates on this point as follows:
Modern scholarship has indeed uncovered the dynamics of the halakhah, but, by the same token of scholarly integrity, we are forced to acknowledge that the halakhic process, from the close of the Talmud down to the present day, is, paradoxically, one in which change takes place in a theoretically unchanging system. The reality of change is ever denied by the brave assertion that nothing has changed or can ever be changed. It is true that this is the method adopted in every legal system in order to reconcile the two conflicting ideals of legal flexibility and legal continuity. But with regard to halakhah, resistance to change is not only due to the need for legal stability, but is also based on a most powerful religious dogma, that the Word of God is unchanging and His Law immutable, this Word and this Law being mediated through the Talmudic Sages and through no others.
I have dwelt at length on Jacobs’ reflections because they point up in a clear, forthright manner the dilemma faced by those who seek to reconcile modern consciousness and the halakhah. This is an area in which there has been a good deal of wishful thinking, rooted in part in the broader aspiration of modern Jews to maintain some link with Jewish tradition, while not stinting in any way on their modernity. On the halakhic issue at least, the Reform movement has cut the Gordian knot by declaring the traditional procedures of Jewish law to be inoperative. At the other end of the spectrum are the ultra-Orthodox, who comfortably inhabit an intellectual world untouched by the acids of modernity. For those in the middle, however—most especially Conservative spokesmen and the modern Orthodox—the issue is not so simple. They cannot close their eyes to the truths that modern knowledge makes available. At the same time, they seek, as a matter of religious conviction, to maintain the halakhah in a form continuous with the past. Which leads, inevitably, to Jacobs’ worried question whether any accommodation between the two is really possible. There is no shortage of those who have a vested interest in convincing themselves that the answer is yes. The available evidence, however—and Jacobs’ bathhouse plea is a clear sign here—suggests something quite different.
One thinker who is absolutely convinced that the answer is no and is prepared to act on the consequences—to his own satisfaction, at least—is Rabbi J. David Bleich, a key figure on the American Orthodox scene. Bleich is a formidable talent, a man with an astonishing mastery of the full range of traditional halakhic sources, who is also a Ph.D. in philosophy. A prolific writer, he has published more than a half-dozen books, the most important of which are the three-volume collection, Contemporary Halakhic Problems. Bleich holds not one but two prestigious academic appointments—he is rosh kollel (senior professor of Talmud) at Yeshiva University’s Rabbi Isaac Elchanon Theological Seminary, and Herbert and Florence Tenzer Professor of Jewish Law and Ethics at Yeshiva’s Benjamin Cardozo School of Law—and is a leading Orthodox spokesman on issues of both Jewish and general concern. While Bleich has developed a special competence in the area of medical ethics, his work runs the gamut from the kashrut of tuna fish to the permissibility of nuclear war.
Bleich’s mode of response to the problem of modern consciousness and the halakhah is a textbook example of what sociologist Peter Berger labels “cognitive retrenchment.” As Berger indicates, the religious thinker has basically three options in dealing with the challenges that modernity poses. The first is “cognitive surrender,” in which, as Berger puts it, “one simply accepts the fact that the majority is right, then adapts oneself to that point of view.” In our context, the position of the Reform movement is an apt illustration of this. The second option is “cognitive bargaining,” in which, Berger observes, “there are two conflicting views of the world and they start to negotiate with each other”; an “attempt is made to arrive at a cognitive compromise.” Again, in our context, Gordis’ halakhic program and Jacobs’ halakhic dream speak directly to this. Finally, there is cognitive retrenchment, in which the religious thinker rejects out of hand the basic assumptions of the modernist position. The individual taking this tack in effect states, as Berger vividly expresses it: “The rest of you go climb a tree; we believe this, we know this, and we are going to stick to it. And if this is irrelevant to the rest of you, well, that is just too bad.”
Anyone doubting that Bleich is prepared to have the proponents of a modern understanding of the halakhah go climb a tree need only consult his response to Gordis’ essay in the same symposium in which Jacobs’ reflections appear. Bleich’s piece carries the title “Halakhah as an Absolute,” and it is indeed absolutely unrelenting in its hostility to the position that Gordis advances. Bleich’s opening words tell much of the story: “There is very little in Robert Gordis’ essay with which I can agree. The Judaism which he describes is not my Judaism; the halakhah to which he subscribes is not my halakhah. Most fundamentally, I suspect that the Deity he recognizes is not the God who revealed Himself at Sinai.” Given the absence of a “common frame of reference,” Bleich sees no possibility of entering into a dialogue with Gordis. His participation in the symposium is due only to a concern that “silence be not misconstrued” as agreement in any form.
In response to Gordis’ key (italicized) claim that “the halakhah has a history,”i.e., that it has changed over time, Bleich states categorically (in italics), “Jewish law does not change.” “The application of normative, unchanging legal canons to multifarious situations,” Bleich asserts, “is not at all a process of change.” The changes cited by modern scholars, he maintains, “represent nothing other than the self-same ancient halakhah applied in changed circumstances.” Bleich expands on this point as follows:
All of halakhah is inherent in the original revelation at Mt. Sinai. Some portions of the halakhah were fully formulated; others remain latent, awaiting investigation and analysis. Often it is the need of the hour, a specific query or problem which serves as the impetus to discover what has been inherent in the halakhah from the moment of its inception. The result is not a change or a new construct. It is a priori in the sense that it was always present in Torah; it is synthetic only in the sense that it requires a stimulus to prompt the investigation which serves to reveal that which had already been available to the human mind at any time in any age.
Any other view of the matter, Bleich insists, carries with it the implication that the talmudic sages were “frauds and charlatans,” since “they taught that halakhah does not change.” Bleich concludes: “I must either accept this principle or reject the halakhic process in its entirety.”
Bleich’s denial of change in the halakhah is matched by a denial of subjectivity on the part of the halakhic decisor. David Novak has aptly characterized Bleich’s position on the latter point as “halakhic positivism,” in that the halakhah is seen as a “wholly self-contained object, a body of normative content uninfluenced by any subjective considerations.” Bleich develops this theme at length in the introduction to Contemporary Halakhic Problems, an introduction that carries the title “The Methodology of Halakhah.” He states unequivocally that
subjective considerations or volitional inclinations may never be allowed consciously to influence scholarly opinion. Torah study requires, first and foremost, intellectual honesty . . . . It is a travesty of the halakhic process to begin with a preconceived conclusion and then attempt to justify it by means of halakhic dialectic. Neither Hillel nor Shammai nor any of their spiritual heirs engaged in sophistry in order to justify previously held viewpoints. The dialectic of halakhic reasoning has always been conducted in the spirit of “yikov ha-din et hahar—let the law bore through the mountain.” The law must be determined on its own merits and let the chips fall where they may.
The halakhic decisor, Bleich declares, is “bound by rules of procedure,” by “canons of interpretation, which are themselves an integral part of the Torah.” Thus the decisor “may not arbitrarily seize upon an individual opinion or a solitary source to the negation of the weight of halakhic precedent or consensus. He most certainly may not be swayed by the consideration that the resultant decision be popular or expedient or simply by the fact that it appeals to his own personal predilection.”
Bleich’s negation of change and subjectivity as elements in the halakhic process—the twin pillars of his cognitive retrenchment—comes across loud and clear. What needs to be emphasized, however, is that Bleich puts forward his position as an Orthodox modernist and not as an Orthodox traditionalist. The traditionalist, being happily free of the burden of modern consciousness, is unconcerned with issues of historical change and psychological subjectivism; they simply do not exist for him. Bleich, however, is in a very different category. He is aware—all too aware—of the challenge that these issues pose for a traditional understanding of the halakhah. Bleich’s rejection of change and subjectivity, therefore, is fully ideological in character: it is a willed, conscious act, a No in thunder to the premises of the modernist position.
At this point a delicious irony enters the picture. Bleich, having declared change and subjectivity to be nonexistent, is free to put them on display in his halakhic writings. I mean this in two ways. First, change and subjectivity are clearly evident in the halakhic sources that Bleich cites in his various essays. Second, Bleich himself shows a marked propensity for subjectivity and halakhic change in establishing the psak, the final halakhic ruling.
This has nothing to do with cynicism or naiveté on Bleich’s part. Rather, it reflects his act of cognitive retrenchment, which moves him beyond any concern with change and subjectivity. Precisely because Bleich declares these elements to be nonexistent, he can permit them to enter not only through the back door, but through the front door as well. In this sense Bleich is a truly liberated thinker. His job is to focus on the task at hand, whether exploring “Abortion in Halakhic Literature,” “The Sanctity of the Liberated Territories,” “Teaching Torah to Non-Jews,” “Animal Experimentation,” or “Mental Incompetence and Its Implications in Jewish Law”—sample titles from the three volumes of Contemporary Halakhic Problems. It is left to Bleich’s readers—and Bleich’s readers alone—to take note of change and subjectivity as they manifest themselves in his halakhic writings.
While the process I am describing can be seen to good effect in nearly all of Bleich’s major essays, I will limit myself to two examples. The first, underscoring the element of subjectivity, is “The Conversion Crisis,” which originally appeared in Tradition in Spring 1971 and is reprinted in Contemporary Halakhic Problems (1977). Bleich’s thesis is that “conversions of convenience are not sanctioned by halakhah and cannot be countenanced as a panacea designed to minimize the exacerbating problems posed by intermarriage.” Bleich treats this position as beyond dispute, framing his argument in the language of absolutes—“uncompromising,” “unyielding,” “sine qua non,” “null and void.” “As the guardians of a divine mandate,” he declares, “Jews must perforce refuse to recognize any conversion not performed in accordance with the norms of halakhah.” Bleich states: “Commitment must be total. To be accepted as a member of the community of Israel, the convert must not only subscribe to the beliefs of Judaism, but must willingly agree to observe its precepts. Should the candidate refuse to accept any detail of this code, his conversion is ipso facto invalid.” Bleich labels as a “meaningless charade” any conversion “prompted by motives other than sincere religious conviction.” He concludes with the words, “Only he who comes for no motive other than ‘the sake of heaven’ may be permitted to become part of the Jewish people.”
Bleich cites numerous contemporary halakhic authorities who support the hard-line position on conversion that he espouses. At the same time his exhaustive treatment of the issue—and Bleich’s treatment of every issue is exhaustive—brings to the fore some rather eye-opening things:
1. There are “several” instances in the Talmud of converts being “accepted despite self-avowed ulterior motivation.”
2. The “definitive” ruling of the Talmud is that “conversions, once performed, are valid even if entered into for reasons other than religious conviction.”
3. The Talmud indicates that “ignorance of even the most fundamental observance of Judaism does not invalidate conversion if the candidate, on the basis of his or her limited knowledge, has, in fact, accepted the tenets of Judaism.”
4. Some halakhic authorities “grant considerable leeway in determining sincerity of purpose.” In this context, Bleich mentions that Rabbi Shiomo Kluger acceded to the wishes of a young man who “threatened to become an apostate if his non-Jewish mistress would not be accepted as a proselyte.”
5. Rabbi David Hoffmann put forward the “radical contention” that in situations “where the conversion is to the advantage of individuals other than the convert himself, the candidate may be accepted despite expressed reservations with regard to the observance of a particular commandment.” On this basis, Hoffmann permitted the conversion of the gentile wife of a Jewish man who wanted his children to be Jewish.
6. Rabbi Isaac Unterman adopted a “permissive stance” with regard to the conversion of spouses of Russian immigrants to Israel, arguing that if there is “danger that the Jewish members of such families may be lost to Judaism . . . regulations against accepting insincere converts may be suspended.”
Bleich, to state the obvious, is fully aware of all this, yet it has no impact at all on his formulation of the halakhic issue. The point here is not that Bleich’s hard-line position is in any way inappropriate, but rather that it is the result of a selective—i.e., subjective—weighing of the halakhic sources. (The same point, of course, applies to the views contained within the sources themselves.) Bleich, despite his brave talk about pure objectivity, is not an IBM computer spitting out information. He is a flesh and blood human, who chooses and weighs among various alternatives. There is no need here to speculate why Bleich opts for the hard-line position on conversion. It is sufficient to note that Bleich’s personal predilections play no small role in determining where the halakhic chips fall in this case.
A second example, underscoring the element of change, is “Status of the Deaf-Mute in Jewish Law,” an essay originally published in Tradition in Fall 1977 and found now in Contemporary Halakhic Problems, Volume II (1983). In this instance, Bleich adopts an extremely lenient position, setting aside the weight of prior halakhic opinion. Bleich is clearly disturbed by the serious disabilities that the deaf-mute suffers in Jewish law and sets out to do something about it. That something involves nothing less than a wholesale transformation of the halakhic status of the deaf-mute.
In the talmudic sources, the deaf-mute is considered to be mentally incompetent and thus in the category of persons who, as Bleich puts it, “cannot be held responsible for their actions and who lack the requisite intelligence for the performance of various ritual and civil acts.” Among other things, the deaf-mute cannot serve as a witness, enter into a contract, or be counted toward a minyan. Greatly complicating matters here is the fact, as Bleich observes, that “in rabbinic literature restrictions applying to deaf-mutes are stated categorically without provision for exception.” The halakhah makes “no distinction between various deaf-mutes”; indeed, “most later authorities . . . reject any distinction between a congenital deaf-mute and one who becomes a deaf-mute as a result of injury or illness.”
How does Bleich respond to all this? Basically, by dismissing it as so much ancient history. The “restrictive statements regarding deaf-mutes,” he argues, “must be understood in terms of the context in which they apply.” The traditional halakhic sources assume that the deaf-mute is “uneducable,” whereas at present “this is manifestly not so.” Bleich, bucking the trend of halakhic opinion, does not hesitate to declare that the “halakhic categorization of deaf-mutes as mentally deficient is ad hoc in nature and hence does not apply to deaf-mutes who have overcome their handicap and manifest normal intelligence.” On this ground he reaches the general conclusion that
those who possess even minimal hearing or have acquired intelligible speech are certainly not subject to any of the halakhic restrictions which apply to deaf-mutes. . . . Moreover in the light of the degree of education attained even by true deaf-mutes in contemporary society, it is doubtful that they are to be considered examples of the heresh described in rabbinic references. Hence, they should be encouraged, and indeed required, to participate fully in Jewish religious life, including performance of all ritual obligations as well as in Torah study.
This from the man who tells us—in italics no less—that Jewish law does not change.
By now the reader’s patience may well be wearing thin. What, after all, is the point of these reflections? And what kind of a model is J. David Bleich? Are we to take seriously a thinker who denies something as obvious as change and subjectivity in the halakhah, and who, moreover, then proceeds to parade them in his own halakhic writings? Does Bleich’s act of cognitive retrenchment speak to anything beyond personal idiosyncrasy? Does it illuminate any larger truth about the relationship between traditional and modern understandings of the halakhah?
The answer to all of these questions, I firmly believe, is yes. Bleich’s stance demands attention and respect because it constitutes a bold countermove to modern consciousness’ challenge to the halakhah. Unlike other prominent figures—Joel Roth and David Novak in the Conservative movement and David Hartman and Irving Greenberg in the Orthodox camp—Bleich holds out no hope of reconciling traditional and modern approaches to Jewish law. His operative assumption—a realistic assumption, indeed—is that the two are incompatible and that it is necessary to choose between them. When Bleich states, “I must either accept the principle [that halakhah does not change] or reject the halakhic process in its entirety,” he does not exaggerate in the least. By choosing as he does—negating change and subjectivity—Bleich can continue to function within a traditional halakhic framework. The fact that this framework allows ample room for the very elements which he denies—as his own writings testify—is simply an added bonus.
Bleich’s act of cognitive retrenchment does more than cut through an intellectual dilemma: it also liberates him psychologically. While the proponents of cognitive bargaining, let alone cognitive surrender, are held in thrall by modern consciousness, Bleich goes about his intellectual labors unencumbered by this. As a thinker, he is fully in control, pursuing an intellectual agenda wholly his own—Bleich, not modern consciousness, is in the driver’s seat. The proof of this is the complete absence of an apologetic strain in Bleich’s halakhic writings. Bleich pays no heed at all to the advocates of a modern conception of the halakhah; their point of view never once surfaces in his essays. It is just this element—Bleich’s stance beyond modern consciousness—that enables him to exhibit change and subjectivity in his own writings without showing the slightest hint of self-consciousness. For Bleich this has taken on the character of a non-issue: change and subjectivity in the halakhah just cannot be.
But what about those Jews of a traditionalist bent for whom change and subjectivity remain an issue, indeed a patent fact? They, to mangle the talmudic phrase that I cited at the beginning of this essay, have their backs up against the bathhouse wall. They can opt for cognitive surrender, but then they must give up on the halakhah in its traditional mode. They can opt for cognitive bargaining, but then they must go on bargaining forever, with no hope of a breakthrough. The only reasonable—rational—alternative is cognitive retrenchment a la J. David Bleich. Short of that, they will have to adopt a variant of the “tradition of esotericism” identified by Leo Strauss, speaking the truth “not plainly but secretly.” In any case, it needs to be understood that nothing short of a willed rejection of what modern consciousness makes known about Jewish law can save the traditional halakhic process. Call it compartmentalization, myth-making, false consciousness, bad faith, or whatever, it is the only way to sustain the halakhah in the context of modernity.
David Singer is Director of Research for the American Jewish Committee and Editor of the American Jewish Year Book. This essay had its origin in a lecture delivered at the Harvard Divinity School.