Jewish Law Was Never Meant to Be Set in Stone

Jewish leaders have forgotten that halakha was meant to evolve over time to reflect modern values.

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FILE PHOTO Rabbi Stephanie Aaron leads a healing service at Congregation Chaverim. January 9, 2011.
FILE PHOTO Rabbi Stephanie Aaron leads a healing service at Congregation Chaverim. January 9, 2011. Credit: Reuters
Ayalon Eliach
Ayalon Eliach

Modern discourse on Judaism is stuck in the past. For too long, prominent Jewish factions have asserted that Jewish law demands repressive and backward positions – like prohibiting homosexuality, relegating women to second-class status, and imposing oppressive standards on converts to Judaism. This view – that Jewish laws are set in stone – is deeply misguided.

Although "halakha" is often translated as “Jewish law,” a better explanation of the word, which derives from the Hebrew word “to walk,” is the Jewish “way of life” – the dos and don'ts of daily behavior. The animating principle for having prescribed behavior is that values must be translated into practice. As the ancient rabbis taught: It is action that is essential, not mere words (Pirkei Avot 1:17). Anyone who turns to Judaism for guidance on how to live believes in the halakhic system, whether or not they use the formal term.

Unfortunately, those who currently speak loudest in the name of halakha – namely ultra-Orthodox rabbinic authorities – have attempted to trap its development in a historic past that no longer makes sense in the modern world. This is not only a recipe for immoral and anachronistic rules; it also flies in the face of the evolving Jewish tradition.

When the early rabbis encountered Biblical verses that they considered morally problematic, they reinterpreted them so that the halakha would reflect their deeper Jewish values.  For example, instead of simply accepting that the halakha would be to perform the barbaric act of physically taking “an eye for an eye” because the Torah said so (Leviticus 24:19-21), the rabbis interpreted the verse to mean that the perpetrator would have to pay the monetary value of the maimed limb (Babylonian Talmud, Bava Kamma 83b). As Maimonides noted over 800 years ago, this rabbinic stance was not the original intent of the Torah (Guide of the Perplexed 3:41).  Rather, it reflected the important decision of the rabbis to reinterpret the Torah so that halakha would evolve with changing standards of morality.

Such evolutionary halakhic decision making has, at times, moved beyond reinterpretation to directly contradicting existing prohibitions, when those prohibitions were no longer relevant or palatable. For example, rabbis have nullified explicit prohibitions on writing down the Jewish oral tradition (Babylonian Talmud, Tmurah 14b), women singing (Responsa of Rabbi Yechiel Yaakov Weinberg), and women studying Talmud (Responsa of Rabbi Yehuda Henkin) because they believed that the changing times demanded new codes of behavior.

The foundational document for halakha, the Talmud, makes clear that this process of evolutionary rulemaking is appropriate because it is not about ascertaining some unchanging, eternal set of guidelines but rather about having a framework that can be adapted through time.  To emphasize this point, the Talmud tells a story in which two groups of rabbis are having a halakhic dispute. Miraculously, God intervenes and tells them that the minority’s position is correct.  In a shocking twist, however, they decide that the right halakhic decision is to follow the majority because the Torah is “not in heaven” and has been given to people for interpretation in each generation (Babylonian Talmud, Bava Metzia 59b).

Today's rabbinic authorities must continue the age-old practice of allowing halakha to evolve by actively adjusting the Jewish “way of life” to align with modern values. There are two sides to this project. On the one hand, it involves stating unequivocally that there is nothing halakhic about homophobia or sexism because the Torah’s principle that all people are created in the image of the divine (Genesis 1:27) trumps supposed rules that blatantly contradict it. On the other hand, this project demands applying the wisdom of Judaism to the unique circumstances of today’s world.

There are some rabbis, like those at The Freehof Institute, who have already begun to apply such halakhic analysis to important issues. For example, by imposing Jewish obligations on resettling refugees, calling for a reform to mandatory prison sentencing, and establishing less repressive standards for conversion to Judaism.

This is a good start, but other prominent rabbis and Jewish thinkers need to determine what the halakha should say about how to live ethically and meaningfully in all areas of modern life. From what it means for food to be kosher to the parameters of contemporary Shabbat practice (that, like Rabbi Arthur Green's "Ten Pathways Toward a New Shabbat," limits consumption and the use of technology, while not being overly burdensome) to an emphasis on the importance of new forms of Jewish spiritual expression, like body movement, meditation and art (which were not part of the prayer-centric model of the past).

Will a truly modern halakha look very different than the out-of-date halakha preserved from hundreds and thousands of years ago? Absolutely. The ancient rabbis were aware that this would inevitably be the case. To emphasize this point, the Talmud tells a fanciful story that Moses travels over a thousand years through time to visit the classroom of Rabbi Akiva, the greatest rabbi of his generation. Although Rabbi Akiva is teaching the Torah that Moses himself had received at Mount Sinai, Moses cannot understand a word, but is comforted when he hears that it is a continuation of the same tradition (Babylonian Talmud, Menahot 29b).

The moral of the story is clear: When Judaism evolves appropriately, it is bound to look very different than it did in the past. Now, as always, halakha must adapt to adequately reflect modern values so that Judaism can once again provide meaningful and ethical guidance in today’s world.

Ayalon Eliach is a lawyer and a rabbinical student at Hebrew College. He holds a BA in Religious Studies from Yale University and a JD from Harvard Law School. He is passionate about using religion as a source of connection rather than separation in the world. He tweets at @AyalonEliach.