Halacha and Autonomous Religiosity: What’s the Problem? by Gidon Rothstein
May 26, 2010 by Gidon Rothstein
Filed under Halakha, New Posts, Philosophy
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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Could you elaborate on “most rishonim (and R. Moshe Feinstein, in his introduction to Iggerot Moshe) understand the phrase as allowing us to tolerate a wrong opinion”? Who thinks that and who disagrees?
Marc,
It would take way too long! Avi Sagi has a book called Elu va-Elu, and the first several chapters summarize the positions wonderfully. I think the end of the book goes in a direction I find uncomfortable (it seems to me that Elu Va-Elu was taken in a completely different direction from about the 15th century on, a guess that ties in to my PhD dissertation and my feelings about detours of Jewish thought, but that’s not for here), but the first part is highly valuable. Rambam, Ramban, and Ran, e.g., all understood Elu va-Elu to mean that we could live with the fact that we had adopted the wrong position, as long as we had gotten there the right way.
Cardozo’s article may have been designed to open our eyes to how we have let codification lead us in a particular direction that is too conformist and monochrome. His suggestions may be too radical, but I think there is value in a rude awakening. I think his approach generates a more visceral and energetic response because of its radical nature, and perhaps considering an overcorrection of course will lead us back to a golden mean.
That’s an excellent point, and an old question– is it worth doing something problematic in the hope or expectation that it will result in something good or better? If his suggestions are too radical, I think he should not have made them, even if they would wake us up better than just decrying the present reality. Some might be awakened, but some, perhaps many more, might decide his solutions are the right ones as well.
What a lovely discussion. Of course, Reform thinkers have blazed the path on questions of autonomy, pluralism, and tradition. We welcome Orthodoxy to the conversation. May I sugges Eugene Borowitz’s Choices in Modern Jweish Thought, especially his summary essay?
To my knowledge the Rambam never cites eilu ve-eilu. Am I wrong?
Having read the entire “Mission of Orthodoxy” series with great interest and now Rabbi Cardozo’s article I think I fairly and succinctly contrast the two as as bookends; too careful in the former and perhaps too reckless in the latter. The Mission of Orthodoxy makes some extremely interesting points but its desire not to offend the Orthodox establishment seemed to me to be evident throughout. I am very much in favor of precision in writing but articles written in this vein by Modern Orthodox Rabbi’s almost always seem to be marred by preambles and footnotes designed to protect the writer from being attacked by a growing number of unauthorized members of the Jewish Inquisition. The “Mission” was obscured by altogether too much throat clearing and pussyfooting around issues that could have been written clearly and briefly. If asked to explain why that is, I would reply that it is because an iron curtain is descending over Orthodox Judaism where lack of conformity is punishable by real consequences. This leaves the writer with three choices; 1) Write carefully for fear of offending; 2) Write nothing; 3) Write what you believe with the understanding that to make an omelette you need to break some eggs. While Rabbi Rothstein clearly chose strategy 1 for his Mission of Orthodoxy, Rabbi Cardozo decided to go with strategy 3, almost to a fault. His article was written without the kind of care that might have been helpful when explaining a somewhat radical departure (however necessary) from traditional approaches. I am sympathetic to his cause and believe that he is right on the mark, but I strongly think that His article would have benefited from a step by step explanation along with specific examples and careful notation of sources. I hope that he makes the effort to expand upon his thin work here and write a detailed manifesto.
First of all, it seems to me that Rabbi Cardozo is attempting to come up with a prescriptive solution to the situation outlined in Rabbi Haym Soloveitchik’s classic “Rupture and Reconstruction.” I agree that it’s not satisfying, but I’d like to suggest that a slightly different framework might help us understand both Rabbi Rothstein’s and Rabbi Cardozo’s points.
To that end, I’d like to make use of James Surowiecki’s ideas in “Wisdom of Crowds.” He outlines several conditions which must be in place for a group’s actions to have a wisdom of its own. (This outline is taken from http://en.wikipedia.org/wiki/The_Wisdom_of_Crowds)
Diversity of opinion: Each person should have private information even if it’s just an eccentric interpretation of the known facts.
Independence: People’s opinions aren’t determined by the opinions of those around them.
Decentralization: People are able to specialize and draw on local knowledge.
Aggregation: Some mechanism exists for turning private judgments into a collective decision.
I don’t presume to say “this is what Rabbi Cardozo really means,” but Surowiecki’s ideas seem to me to resonate with Rabbi Cardozo’s.
So, perhaps what is going on is that independence, and decentralization, and one could argue diversity of opinion, too, are fading in Orthodoxy.
Perhaps poor group decision making due to loss of diversity of opinion, independence and decentralization is the real problem in the religious world; but, as Rabbi Rothstein says, codification isn’t the problem itself.
Shabbat shalom
I was brought up in a nominally Orthodox home, but am now a very enthusiastic Conservative Jew. I am so heartened to read of Rabbi Lopes Cardozo’s exhortation, for the same reason that I find Conservative Judaism both intellectually harmonious and spiritually meaningful. Religious autonomy is contingent with a far more critical and intimate engagement with the text – if you don’t know at least your Gemara, Tosefta and Rishonim, you simply aren’t in a position to defend a personal decision on observance. It’s this orientation that has renewed my love and enthusiasm for limmud. Also, it compels me to draw the distinction between minhag and halachah, a process that leads to discussion of how rather than why, and in turn being more aware of the purpose of observance. Making an active decision on observance reinforces the meaning of the act.
On a separate note, autonomous religiosity is intertwined with ahavat yisrael, which seems to be in need of some reinforcement.
Geoff,
It’s true that Reform has dealt with many of these issues- as has Orthodoxy, but in different contexts– but the answers come from a completely different set of assumptions. Prof. Kaplan, I don’t know of any place that Rambam cites Elu va-Elu, that’s true, although arguments from silence are always difficult to make.
David S., thank you for reading and thinking about my ideas. I agree that I got started too slowly, for reasons that you suggest and many others, but I don’t think, after the first few posts that I went overly slowly. Part of my point, there and in responding to R. Cardozo, is that care is necessary to reach unequivocally true answers. And the power of unequivocal is that it should help us define the ground– in contrast to Reform or Conservative or post-denominational Judaism– that is absolutely necessary to moving forward. To be that unequivocal takes time, and does, I grant you, leave much unsaid. But it wasn’t out of fear, it was out of a desire to say things, things that are often lost, that are really unarguable.
Yoel, I, too, found Surowiecki’s ideas fascinating, but in Orthodoxy, you have the additional problem that not all members of the crowd are deserving of standing in the discussion, nor are all ideas relevant. The simple example would be ideas that start off with rejected assumptions, such as not believing in God. So the question is– and where I disagree, respectfully, with R. Cardozo– whether there’s fading diversity of opinion in Orthodoxy, or whether we’re focusing too narrowly within the existing wealth of opinion.
And, finally, Steve, we get back to the question of ground rules for discussion. There is much in the Conservative movement, and its thoughtfulness, to admire, but there are basic, fundamental building blocks that are missing, one big one being the nature of halachic process, as I discussed in my Mission of Orthodoxy posts.
R Rothstein deserves a major kudos for respectfully reviewing and critiquing R Cardozo’s essay,and illustrating why the questions presented therein are far better than the proposed resolutions and approaches to the same.
I wonder if Rabbi Cardozo would agree with Rabbi David Hartman who feels that a moral God could not possibly condone the Halachic rulings which, in His name, have put human beings in immoral situations. (e.g. agunot, converts)
Rabbi Rothstein: My implicit point was that the reason the Rambam does not cite eilu ve-eilu may be because he doe not believe in it. At least in the Hakdamah le-Peirush ha-Mishnah he appears to believ that there is, in principle, one correct answer to almost every mahloket. But this is a long story. Note too that for the Rambam you can publicly declare from today to tomorrow that the Beir din ha-Gadol got it wrong and you are not a zaken mamreh, unless you tell the people to act on your view. This is NOT the Ramban’s view.
Look as well in Sefer ha-Mitzvot where he just dismisses the Bahag etc. as plain wrong, and the very different attitude of the Ramban.
Prof. Kaplan, I agree about the Rambam’s view of Eilu va-eilu; I think almost all the rishonim saw it that way. I also think that the Ramban would allow saying the Beit Din haGadol was wrong until such time as the zaken had had a chance to argue the case in front of them, and, yes, Rambam is much more dismissive of Behag than is Ramban (I think, personally, that’s an understudied aspect of Ramban’s work– the effort he put into defending earlier scholars; think of his Milhamot on the Baal haMaor, his work on the Sefer haMitsvot, his responses to Rabad on the Rif, and, to some extent, his discussion of Rambam’s philosophical approaches within his commentary on the Torah. An important theme in his writings, I think, is to weigh newer writers against older ones, and show where the newer ideas might be plausible but don’t wipe away the older ones. (Which might stem from his straddling two traditions, but I don’t know, I stopped being a Jewish historian a long time ago).
anonymous: The Ramban would indeed allow, rather require, an elder to say that the court was wrong if he thought so, until he presented his reasons to the Court and the court rejected them after gving him a hearing. See his hassagot on Shoresh 1. This is one way of reconciling the Sifre and Yerushalmi on Yamin u-Semol. I discuss this in my article on Daas Torah.
Re the Ramban’s attitude toward earlier generations, see the incisive discussion in Habertal’s book on the Ramban.
Just to note: I was the most recent Anonymous– I just forgot to put in my name. Gidon Rothstein
Rabbi Rothstein, perhaps you don’t see loss of diversity of opinion, but in Surowiecki’s thinking each of his four criteria is sine qua non so I’m still wondering if my impression – loss of independence and of decentralization – seems correct to you. Also, isn’t that an assessment that is properly made before any screening for validity is applied?
Yoel,
I agree with the need for diversity of opinion, although I’m not sure that Surowiecki insists on decentralization– a market is centralized, in that all come together to buy there; I think he just means that people don’t just follow the pack at some point, lose their independence. In any case, Surowiecki does seem to agree that there are standards for who the crowd is– in his example of the lost nuclear sub, e.g., the person who got the wisdom of the crowd picked people who had some relevant knowledge, not just a million people off the street. So, in halachah, we would want diversity of opinion (although, as in that case, we’d also want a mechanism that puts it all together to a conclusion as well), but only diversity of opinion from those with some kind of relevance and expertise that qualifies them to be part of the conversation.
I’m not disputing the concept of being qualified for admission to the decision making. And obviously the submarine search lent itself perfectly to a comparing two approaches that were empirically evauatable (“let’s reach a consensus” vs “plot each opinion on the map and geographically average them.”) The latter found the sub without any one opinion having been correct. That is not really analogous to any halachic process I know of. But among those asked to contribute, there was a wide range of backgrounds. My impression is that diversity and independence of opinion are declining (when I think of loss of diversity, “Nusach ArtScroll is emblematic.) My point is not to prescribe a solution (WAY above my pay grade) but rather to ask whether the process is skewing in a direction more likely to produce bad decisions; the drive to chumra seems to be an example of the loss of diversity and independence of opinion: sometimes, “what the neighbors might think” shouldn’t be a factor — unless it’s out of real respect for the neighbors and not out of a herd mentality.
Two questions:
You wrote: “…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.”
On the one hand you are trying to say that pluralism exists in halacha, on the other hand, you gave examples for the first two types of practices but not for the third which is the most pluralistic type. I’m curious, do you have examples for the third? I admit that the lack of examples made me wonder if there are any!
Second question:
You wrote: “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.
You seem to mention legislation as a negative thing (it is a concession to human weakness) and codification as a good thing (it leaves ample room for personalized religious practice). What is the difference between these two words?
Thanks for the article! I greatly struggle with some of the halacha so I am very interested in this topic.
Oops, forgot to write my name and email so I’m adding them in this comment so that I’ll be made aware of follow-up comments.
I think there is a major failing in not clearly distinguishing between codification and the need for codification. When we say that Rebbe’s decision to codify the mishnah was an instance of overturning a specific law for the sake of the whole, we’re clearly saying the situation was a step down. BUT, that doesn’t mean that codifying — whether the Mesrashei Halakhah, the Bishnah, the Tosefta, the Talmuds, the Beha”g, the Rif, the Rambam, the Tur, the Shulchan Arukh, the Levush, the Rama, the Shulchan Arukh haRav, the Chayei Adam, the Qitzur, the Arukh haShulchan, the Mishnah Berurah, the Ben Ish Hai, etc, etc, etc.. were themselves a bad idea. It is sad when we reach an impasse that requires a new round of codification. But when we do need it, producing a code is the right response.
The formula the Rambam uses to describe the what gave the Talmud Bavli its binding nature is that it was accepted by “all of Israel”. Not in every one of its rulings, but as the point of origin for further study. And today, across the gamut, semichah studies center around the Shulchan Arukh (with the exception of Bal’adi Teimanim who center their pisqa on the Rambam). The same concept which gives the gemara the authority R’ Angel attributes to it gives the Shulchan Arukh its authority.
I also find an interesting point of commonality between the two positions. R’ Marc Angel questions the binding nature of evolution to halakhah since the gemara. R’ Gidon Rothstein questions the significance of the evolution of aggadita since the rishonim. Both are therefore
calling for some sort of roll back to an earlier state that was more to their likely.
All this said, I am afraid that R’ Angel, by going further than most of his audience would be willing to, loses that audience with respect to the primary problem. Orthodox Jews today are under the impression that the job of religion is to provide answers; and moreso, easy-to-understand answers that can resolve life’s dilemmas in one sitting — all tied up with a nice bow.
In reality, life’s problems are hard. Let me give a story from personal experience. Someone close to me is a baalas teshuvah. The only one in her family in a few generations to embrace observance. And she, like most baalei teshuvah, was presented a worldview in which, if you just believe enough, the only airplane one would miss is the one that was going to crash. (Many of you are familiar with this genre of story that I’m trying to portray.) But she, alone among all her siblings and cousins, went through the crashing pain of losing a daughter. So, where is the “better life” the kiruv professionals led her to expect? Life is not simple, and we do ourselves a disservice pretending it is.
Religion’s job isn’t to resolve life’s struggles, but to give us a meaningful way to grapple with them. Whether we’re talking about our perspective on life, or about pesaq halakhah.
Quick and cut-and-dry one-size-fits-all rulings isn’t how halakhah is supposed to work. While I’m arguing that a ruling that “all of Israel” accepts is binding, we have gone well beyond that with the current proliferation of English halachic guides. There is a feel to the give-and-take of halakhah, to its responses to the costs to the individual, to their personal talents and emotional proclivities, where they stand spiritually and how they view life, that one really not only needs a human halachic decisor, but preferably one who knows the asker and can help them coordinate a spiritual journey through life.
-micha