Halacha and Autonomous Religiosity: What’s the Problem? by Gidon Rothstein

I first heard of Rabbi Nathan Lopes Cardozo over twenty years ago, when I was a semicha student and he was already a well-known teacher of Torah in Yerushalayim.  I mention that because as I come to comment on his recent cri de coeur– “The Future and the Spirit of Halacha: Unconventional Thoughts in Relation to Autonomous Religiosity,” published in the recent issue of Conversations, the journal of the Institute for Jewish Ideas and Ideals– I am fully aware that I am responding to someone significantly more experienced and accomplished than myself, and I continue to maintain respect for him and his work .  In addition, Rabbi Cardozo has been personally gracious to me many times, most publicly when the David Cardozo Academy arranged for me to speak about my book Murderer in the Mikdash, a mystery set in the time of a Third Temple in Jerusalem.

Complicating my response further, I am in sympathy with much that bothers him.  Rabbi Cardozo is concerned that too many Jews today, particularly young ones, find the religion overly dry, overly focused on specific halachot, and leaving too little room for them to find their way to a productive and personal avodat Hashem, service of God.

To alleviate this problem, he argues in favor of adjusting our experience of halacha, which he suggests we do by recognizing that the codifications of Rambam and Shulchan Aruch were not in line with the spirit of Talmudic Judaism.  Leaning on well-known rabbinic critics of both works, such as Maharshal, Maharal, and R. Hayyim b. Betsalel, R. Cardozo argues that the spirit of elu va-elu, these and these are the words of the living God, should once again infuse our application of halacha. 

He seems to suggest that we should return to the Talmudic sources for our halachic conclusions rather than being bound by the conclusions of hundreds of years of writing that have followed the Talmud.  He seems to suggest that even on as well-settled a question as whether to follow Beit Hillel or Beit Shammai, we should be open to the option of following Beit Shammai if that is more meaningful to us.  He also calls for greater freedom to personalize our religiosity, both in terms of which halachic views we follow and also in formulating prayers and blessings of our own.

As R. Cardozo notes many times, he shares these ideas out of deep concern for the future of the religion, and there is no doubt of his sincerity and his honest intention to find the most productive way forward towards a meaningful and attractive avodat Hashem and yirat Shamayim.  And yet, I think that there are less radical and more systemically authentic ways to accomplish his goals.

I say this because the issues he raises are ones I have been and am grappling with in writing.  In my now-completed Mission of Orthodoxy project, which the Webyeshiva is kind enough to host, I too wondered whether halacha as practiced today effectively leads Jews in the most productive religious direction, but I came at it from almost the opposite approach to that taken by Rabbi Cardozo.

Universal Agreement, Codified or Not

While Rabbi Cardozo blames halacha’s “wrong” turn on codifications—singling out Rambam’s Mishneh Torah and R. Yosef Caro’s Shulchan Aruch— I showed that Judaism has always placed some parts of the religion closer to the essence of its goals than others.  These beliefs and practices have always and unequivocally been seen as the center of what the religion is about, have been implicitly or explicitly codified as the religion’s essence. 

I stress the unequivocal aspect of this precisely because R. Cardozo (and he is not the first) assumes that Judaism records so many alternate approaches as to preclude any such well-accepted core.  In this view, if we only shed the shackles of the attempt to impose codification the Talmud never intended, people could find their way to a more productive and more personal experience of the religion.  One of the points of my posts was that, with all the debate in the Talmud and beyond—R. Cardozo, to my mind, grossly exaggerates the extent to which works of codification have stifled multiple voices, the concerns of Maharshal notwithstanding— there is an unarguable set of ideas and practices that are not only obligatory on all Jews, but that necessarily and centrally shape any Jewishness worthy of the name.

Truth is, R. Cardozo should have been forced to realize this, to some extent, simply as a result of his casual assumption that the religion focuses on worship of God.  Both the words ‘worship’ and ‘God’ need some sort of definition, no matter how broad, and going outside of that definition will be the same as going outside the acceptable parameters of Judaism.  My Mission posts show that Scriptural, Talmudic, and post-Talmudic sources evince broader agreement than his article recognizes.

What he is noticing, I believe, is not the results of codification per se, but of a more recent phenomenon, in which our community focuses only on certain sections of those works, warping the picture those works themselves presented.  That we can confuse the entirety of the religion with observing Shabbat and kashrut, or with wearing certain clothing to the exclusion of other clothing, or with whatever subset we have turned into “real Judaism” is distressing, but not a development we can or should blame on Rambam or R. Yosef Caro.

A Problem and Its Solution

Diagnosing the problem correctly affects the solution we will pursue.  R. Cardozo argues for a return to a Talmudic era in which Judaism let a thousand flowers bloom, in which the ethos of elu va-elu, these and these are the words of the Living God, offered a broader range of religious options to those seeking God.  I think he misrepresents the Talmudic era itself, but more than that he reaches unnecessarily far for his remedy.

As to Talmudic times, the Tosefta in Sotah 14;9, cited in Sanhedrin 98b, blames the multiplicity of debates on students’ failure to study properly, hardly an encomium for diversity of opinion in the halachic world; turning to elu va-elu itself, while Kabbalists did, indeed, find an interpretation in which it meant that all those opinions were right, most rishonim (and R. Moshe Feinstein, in his introduction to Iggerot Moshe) understand the phrase as allowing us to tolerate a wrong opinion as long as it was reached through valid process.  Indeed, the general understanding of the mitzvah to follow majority rule—and the largely-ignored obligation of lo titgodedu, not to have Jewish communities be split by multiple forms of practice– seems to prefer avoiding precisely the kinds of splits R. Cardozo wants to uphold as an ideal.

In my Mission posts, I argued that the problem lies not in the system or how it has been recorded in the various masterpieces of our religious literary history, but in our selective reading of those sources—and a poorly selective reading at that.  If we are going to pick and choose, I showed, the sources themselves tell us, repeatedly and in extraordinarily explicit terms, what we should be choosing.

I also noted that there is more room for tolerance and even pluralism within Orthodoxy than some people realize, yet less than others assert.  In articulating the unequivocal parts of the religion, we see where reputable disagreement about other issues points to more ways of being faithfully Jewish than we usually assume.

But, and in direct contradiction to R. Cardozo’s claims, there is no need to bypass almost two thousand years to do so.  The rich literature of commentary on Scripture, on the Talmud, on Rif’s codification of the Talmud, on Rambam’s Mishneh Torah, on the Shulchan Aruch, and in the voluminous Responsa literature produced by hundreds of giants of Torah over the generations, offers more than a few options for finding an appropriate, traditional, and yet not rigidly imposed religiosity.

Those who find halacha confining mean, at best, the halacha they see practiced in their sociological circles. Reminding ourselves that there may be valid other options than the one we currently practice is an important task, but not one for which we need to try to go back to some supposedly more authentic time.

 The first step of my response to R. Cardozo, then, lies in noting that he may have accurately noted a problem in how we experience halacha, but that the solution lies elsewhere than he points.  Rather than dispense with sources, we need to study them more deeply, to find which beliefs and practices are absolutely necessary according to all opinions (such as the belief in God), which leave room for tolerating other opinions we see as wrong (such as when Sephardim and Ashkenazim follow different readings of a Talmudic discussion), and some that leave room for true pluralism, where each of the choices is recognized by all as fully plausible and equally correct. 

Religious Autonomy:  No Need to Abandon Ordinary Halachic Process

Another aspect of R. Cardozo’s concern, no less important and yet, to my mind, rooted in a completely different cause, is the question of religious autonomy.  He feels that the dogmatism of Judaism—caused, in his view, by the move to codification—leads to frustration on the part of those seeking a meaningful personal religiosity.

I again sympathize with the concern, and yet again find myself disappointed at the solution he proffers.  I hope this week—if there are coincidences in life, this is a remarkable one—to begin another project at the Webyeshiva’s blog, the Religious Autonomy Project.  The Project, an outgrowth of my Mission of Orthodoxy posts, will show that the religion cries out for each of us to shape our personal religiosity, for each of us to make autonomous decisions about how best to relate to God.  And, I hasten to add, this is not by circumventing or ignoring any of halacha as it is codified today.

Where and how this autonomy works will take me some time to lay out, but the upshot is that I believe the sources of tradition show that the move to legislation was always a concession to human weakness, not a function of God’s interest in being specific about how we are supposed to worship.  While we cannot turn back the clock, I believe the sources of tradition show us that Judaism as codified today still leaves ample if not voluminous room for personal input into the shape of one’s relationship with God.  Demonstrating that convincingly takes more space than I have here, and I invite readers to join me weekly at the Webyeshiva blog for this journey. 

For now, I say only that I find R. Cardozo’s diagnosis and prescription overly alarmist.  Halacha can be misrepresented and misapplied, producing an erroneous picture of what God wants of us, and that wrong picture can lead us to lose sight of the freedom the religion gives us.  Instead of trying to change the system, though, I urge us to realize that the flaw lies in our partial and incomplete understanding of what God, the Torah, and Hazal have been telling us for thousands of years.  Recovering a truer picture of what halacha is about and where that leads us, as I aim to do, seems to me a more productive way of finding our way back to a full-hearted and heart-fulfilling relationship with God.

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