We want to use our first Substack post to open an occasional series devoted to the theory that guides our work. How do we define “progressive halakhah”? What are the intellectual boundaries of our practice (e.g., are there “red lines” that we refuse to transgress)? What are the rules and methods that ought to govern our discourse, the way we speak to each other and argue our way toward conclusions? Questions like that. To put this another way, if progressive halakhah is our thing, this series will explore the meta-thing.
Which, as it turns out, is no easy task. The big problem is that we’re a big tent. Take a look at the section “What Is Progressive Halakhah?” on the Learning page of our website. You’ll find links to numerous books and articles by (mostly) Reform and Conservative rabbis engaged in the sort of theory writing to which this series is devoted. But those words “numerous,” “Reform,” and “Conservative” indicate that these essays and studies represent multiple points of view and locate themselves all over the denominational and ideological map. Reform halakhic thinking differs quite noticeably from the Conservative variety, and there’s substantial maḥloket within each of those camps over how to think and argue about halakhah. Plus, there are other halakhic scholars and writers whom we claim as our own who don’t easily fit into those denominational boxes. These differences testify to the existence of a great deal of intellectual creativity, a virtue to be sure - let a thousand flowers bloom, and all that - but they also make it difficult to identify a single predominant theory that explains what progressive halakhah is. This doesn’t mean that we can’t say anything about the nature of our practice but simply that, in view of the plurality of approaches that make their home within it, we have to show some humility when we speak in its name.
With that caution in mind, let’s offer the following brief description that - we hope - meets the challenge:
Progressive halakhah interprets and derives meaning from the sources of the Jewish legal tradition through the prism of its commitment to the values and culture of liberal modernity. We view the halakhah as dynamic, a normative discourse that is characterized by development, open to change, and consistent with the intellectual, moral, and aesthetic commitments that govern our Jewish religious lives.
This language is open-ended - almost every word requires further definition - but we think it strikes the right note, expansive enough to include all who work in our field without enforcing an artificial uniformity that would obscure the real differences among us.
It also highlights why critics of our enterprise, to both our theological right and left, object so strongly to what we do. For despite their differences, they are united in the conviction that the phrase “progressive halakhah” is a self-evident contradiction: “halakhah” and “the values and culture of liberal modernity” signify two separate and mutually exclusive normative discourses, each operating according to its own distinctive thought processes and decision-making criteria. To mix or conjoin these discourses in any way is to create a form of intellectual shaatnez1 or kilayim2 that violates their intellectual integrity.
The Orthodox version of this critique goes something like this: the correct interpretation of halakhah is the outcome of the intellectual process known as halakhic reasoning, which reaches its conclusions exclusively on the basis of factors internal to the halakhah. When one admits into that process any factors external to it, whatever one comes up with is not halakhah. “The values and culture of liberal modernity” clearly count as an external factor. Moreover, the line separating internal from external factors is determined by reference to the m’sorah, the tradition of Jewish legal scholarship maintained by the recognized chain of “great” authorities (g’dolim) stretching from Talmudic times until today. Since the g’dolim of the past two centuries are identified exclusively as Orthodox rabbis and poskim (halakhic decisionmakers), non-Orthodox halakhic thinking and writing by definition falls outside the m’sorah. Little wonder, then, that it tends to be ignored, disqualified - and dissed - from the get-go. A classic example of this dissing is the comment of the eminent Orthodox scholar Rabbi J. David Bleich concerning a discussion by the (Conservative) Committee on Jewish Law and Standards (CJLS):
The deliberations and publications of the Rabbinical Assembly do not, in the ordinary course of events, properly come within the purview of a work devoted to Halakhah. Much is to be said in favor of simply ignoring pronouncements with regard to Jewish law issued by those who have placed themselves outside the pale of normative Judaism.3
The liberal (and especially Reform) version of the critique4 proceeds from what it sees as the irreconcilable conflict between the authority of the tradition and the autonomy of the individual. Halakhah is a system of religious law and discipline that obligates us to do what the accepted authoritative texts, as interpreted through history by a recognized body of religious jurists, tell us to do. This sort of discipline is anathema to progressive or liberal thought, which privileges individual conscience and choice over obedience to traditional authority. Liberal Judaism sides with choice over obedience. We are the ones who decide what to do; we are the ones who define what Torah says to us, and we do not abandon that task to some corpus of dusty writings composed and interpreted by a scholarly elite who did not and do not share our modern worldview. Since the element of discipline by authority is essential to the Jewish legal system, the effort to identify a halakhah that is democratic and pluralistic or “liberal” is doomed from the start. A simultaneous commitment to both halakhah and progressive values is therefore intellectually and religiously incoherent.
Thus, critics to the right and left agree: “progressive halakhah” makes no sense. We, obviously, don’t agree, and we hope to use this series to mount an extended argument for our position. For now, suffice it to say that we respond to these critiques with the determination that, in matters theoretical, theological, and halakhic, we start from where we are.
That last phrase is not as banal as it sounds. We take it from the philosopher Hilary Putnam in his discussion of the pragmatism of John Dewey.5 The phrase underlines Putnam’s point that the process of inquiry is always situated, that it begins not from some objectively certain and value-neutral foundations but from the place that an individual or a community actually occupies in life.6 In our case, “to start from where we are” means that we progressive halakhists begin our thinking with the simultaneous commitment to halakhah and progressive values because that is our reality, our religious and intellectual situation.
Our critics say that we can’t start from where we are, because halakhah and liberal modernity are hopelessly contradictory. In other words, pick one and dump the other. We reject that binary opposition for two reasons: first, the assertion of a fatal “contradiction” between halakhah and liberal modernity is an abstract starting-point for thinking and is no more compelling than any other abstract starting-point,7 and second, because the Jewish world in which we live demands both halakhah and liberal modernity. There is no such thing as Judaism - including liberal Judaism - without halakhah, and halakhah cannot speak to us if it conflicts with our deepest moral, intellectual, and aesthetic commitments. It’s a case of both-and, not either-or. We can’t make sense of our Judaism without both, we don’t want to, and - more to the point - we don’t have to: the foundational assumption of our work - our abstract starting-point - is that these two sources of meaning can coexist. If this inclusive commitment means that we will occasionally (or more than occasionally) have to wrestle with tensions between forces that pull us in different directions, so be it. All of life involves wrestling with such tensions. This is where we are, and from here is where we start.
We’ve just made some broad claims, in general language; we’ll try to work out some specifics in upcoming posts. But we hope it establishes that for us, “progressive halakhah” is not an oxymoron. It is a discourse of meaning-making for all liberal and progressive Jews who acknowledge the centrality of halakhah to their Judaism. That describes us at the Freehof Institute, and our writing is dedicated to forging an understanding of halakhah that speaks too all Jews who share our affirmation of “the values of liberal modernity.”
1 Deuteronomy 22:11.
2 Leviticus 19:19; Deuteronomy 22:9.
3 J. David Bleich, Contemporary Halakhic Problems (New York: Ktav/Yeshiva, 1077), p. 78. Bleich, to be sure, goes on to refute the halakhic reasoning advanced by the members of the CJLS, but this gratuitous swipe demonstrates just what he thinks of non-Orthodox Jews who dare meddle in the halakhah.
4 See Rabbi Eugene B. Borowitz, Renewing the Covenant: A Theology for the Postmodern Jew (Philadelphia: The Jewish Publication Society, 1991), pp. 281-282.
5 Hilary Putnam, Words and Life, James Conant, ed. (Cambridge, MA: Harvard University Press, 1995), p. 201.
6 For the application of this idea to the realm of law and judicial decision see Catharine Wells, “Situated Decisionmaking,” Souther California Law Review 63 (1990), pp. 1727-1746.
7 The “contradiction” between halakhah and progressive values is an abstract starting-point for thinking because it is not self-evident; it must be stipulated and argued, in the same way that our own starting-point, that halakhah and progressive values can coexist, must be stipulated and argued. There is no overarching principle of reason or logic that demonstrates that either starting-point is obviously correct. One’s starting-point will necessarily be based upon considerations other that pure reason or logic. That’s what “situated thinking” means.