Back in Part 1 of this series, we began our exploration of the nature of progressive halakhah with what amounts to our founding principle: “the determination that, in matters theoretical, theological, and halakhic, we start from where we are.” By this we mean that we begin our thinking about halakhah not from some objective, detached starting point but from our own situation in life, our unshakable simultaneous commitment to the halakhic tradition as well as the tradition known as modern liberalism. To “start from where we are” means that we accept both sides of this commitment as legitimate. We acknowledge the tensions between halakhah and liberalism, but we don’t regard them as a contradiction, let alone a fatal one. We seek to reconcile or accommodate those tensions but not at the cost of rejecting one tradition in favor of the other, because our Judaism requires both. Our task is to facilitate a conversation between these simultaneous commitments, in which each tradition informs, modifies, and critiques the other.
Since then, we’ve looked at some examples of one side of this dialogue, how our liberal and progressive value affirmations critique - that is, transform our understanding of - the halakhah. We’ve considered how the halakhic sources, read through the eyes of liberal/progressives who refuse to justify the unjustifiable, can overcome embarrassing p’sakim (decisions) rendered by past generations. Now it’s time to reflect upon the other side of the conversation, in which the halakhic tradition critiques our understanding of liberal Judaism - specifically, how halakhah places some much-needed limits upon our liberalism.
That last sentence should not be read to mean that we have abandoned liberalism or that we share the critique of Western liberal thought that has lately become fashionable among a coterie of right-wing intellectuals.1 Whatever its faults,2 liberalism is to our mind a good thing. We mean simply that even in liberal-progressive Judaism, liberalism is not the only value; personal autonomy and freedom of choice are not the only principles we consider in fashioning our religious observance. We liberal Jews participate as well in the halakhic tradition, which serves to give substance and provide direction to our freedom.
How do liberal (i.e., non-Orthodox) Jews “participate in the halakhic tradition”? That, of course, depends on the type of liberal Judaism you’re talking about. The Conservative movement in North America, with its Masorti allies in Israel and elsewhere, has long described itself as “halakhic,”3 which means that questions of religious observance are officially4 decided through a halakhic process that unites traditional Jewish legal reasoning with Conservative Judaism’s value affirmations.5 But other movements - Reform Reconstruction/Reconstructing, and other communities that place closer to the left end of the Jewish religious spectrum - ignore or renounce large portions of traditional Jewish ritual observance, and they reject any notion of legal discipline. Accordingly, they are often described as “non-halakhic” or even “anti-halakhic” forms of Judaism. How then can one say that they “participate” in any meaningful way in halakhah?
Rabbi Solomon B. Freehof (1892-1990), the greatest Reform posek and the namesake of our institute, is best known for his lifetime of work in the field of Reform halakhah and the creation of a substantial Reform halakhic literature. Through decades of activity, particularly as chair of the Responsa Committee of the Reform movement’s Central Conference of American Rabbis (CCAR) from 1955 to 1976, Freehof published hundreds of responsa - halakhic responsa, mind you - to questions submitted to him and to his committee, far outstripping the combined total production of his predecessors on the committee.6 He is less known, however, as a theorist of Reform halakhah who forged an argument that Reform Jews do participate in the halakhic tradition, that halakhah is relevant, even vital, to any serious conception of Reform Judaism. Although we won’t attempt here anything like a comprehensive analysis of his life and writing - Joan S. Friedman’s fine monograph is the go-to source for that - we want to focus upon that argument.
We shouldn’t minimize the difficulties that stood in Freehof’s way. The very idea of “Reform halakhah” was a hard sell to Freehof’s colleagues and fellow Reform Jews. The movement was famously on record as having rejected the binding nature of halakhah,7 so what was the point of a “Reform halakhic literature” anyway? The difficulty increased during the 20th century, when leading Reform thinkers developed a theology that centered upon the autonomy of the individual Jew in matters of religious practice. This created what we might call the “authority/autonomy dilemma”: if I and my community are free to make our own religious choices, what gives any rabbi or committee of rabbis the authority to issue p’sak for us? As governing principles of religious behavior, authority and autonomy cannot be reconciled. (That’s why we call it a dilemma!) One has to choose between them, and since Reform Judaism has made its stand upon the principle of autonomy, there is no room in the movement for anything resembling the traditional halakhah or, for that matter, any discourse that speaks in its language.8
Freehof’s rationale for Reform halakhic writing does not resolve this dilemma. One might say that he side-steps it, though we would prefer to say that he transcends it. There is no question, he says, that Reform Jews demand freedom of religious decision.9 But freedom of religious decision does not obviate the search for religious authenticity: to the extent that Reform Jews seek an authentically Jewish religious expression, they have no choice but to place themselves within the halakhic tradition.
Freehof develops this rationale in several of his writings. We begin with the introduction to the first published volume of his t’shuvot, where he describes the 19th-century Reformers’ rejection of rabbinical authority:
[it] became evident that no adjustment in Jewish services or ceremonies could be made as long as the authority of the Orthodox rabbinate remained unchallenged… The Reform movement was therefore from the beginning anti-rabbinical and hence averse to the rabbinical literature, the Talmud and the codes, which were the source of rabbinical authority. The early Reform movement became essentially Biblical. Its leaders held proudly to the inspiration of Scripture - or at least of the Ten Commandments revealed on Sinai - and of the inspired prophets. (Freehof, Reform Responsa [Cincinnati: HUC Press, 1960], p. 15)10
Thus, the rhetoric of “prophetic Judaism,” which classical Reform so clearly preferred to that of halakhah. “The Bible… was idealistic and inspiring, while the rabbinical literature could be easily envisaged as merely legalistic pettifogging” (pp. 15-16).
The Reformers quickly discovered, though, that the Bible cannot function as the sole basis of Judaism, even Reform Judaism.
The weakness of the position was primarily that the self-description of Reform as being solely Biblical was simply not true. All of reform Jewish life in all its observances was actually post-Biblical in origin. None of the arrangements of worship, the hours of service, the text of the prayers, no matter how rewritten, was primarily Biblical. The whole of Jewish liturgy is an achievement of post-Biblical times. The religious calendar, based indeed on Scripture, was elaborated and defined in post-Biblical times. Marriage ceremonies and burial rites were all post-Biblical. The Bible, of course, was the source of ethical ideas, but the actual religious life was rabbinic. Early Reform may have rejected contemporary rabbinic authority, but it could not avoid the historic rabbinic constructs that lived in the pageantry of the Jewish mode of life (p. 16).
Substitute the word “halakhic” for “rabbinic” and “post-Biblical” in the above paragraph and you get the idea. To deny halakhah, Freehof tells his Reform compatriots, is to deny ourselves, for the entire structure and content of our own Reform Jewish observance is founded upon and defined by the rabbinic and halakhic literature. Thus, we might as well admit that we are, indeed, a “halakhic” movement.
That conclusion applies as well to our discourse, our religious language, the ways in which we create Jewish meaning for ourselves.
[E]ven though by prior preference we might wish to undervalue the rabbinic legal literature, in practice we are unable to do so. In fact, we have never been able to do so since the beginning of the Reform movement. Since the religious observances were all rabbinical in source, the various questions that from time to time needed to be answered all involved the Halachic literature. If questions were asked about calling women up to the Torah, or whether a funeral may be conducted at night, these problems, being rabbinical in source, could not be properly answered without thorough use of Talmud, responsa, and codes (p. 18).
This, Freehof continues, explains the existence of the CCAR Responsa Committee, whose answers “are all rooted in the Halacha” (p.18).
The critic might retort that Freehof’s argument, as it stands here, is based solely in considerations of fact: Reform has in fact retained much of the structure and content of halakhic Judaism, and it has in fact nurtured a literature that deals with rabbinic and halakhic sources. Yet it does not follow that it must be so, that questions about observance cannot “be properly answered” except by way of halakhic argument and sources. One can easily imagine a different discourse of Jewish practice, one that relies upon aesthetic or ethical, rather than halakhic argument.11 Such a language might seem more fitting for a movement that privileges personal autonomy and rejects the notion of legal discipline. Why must Reform discourse concerning practice involve halakhah?
Freehof replies that there is no other discourse. The halakhah is the authentically Jewish language of religious observance, through which Jews have historically analyzed, argued, and worked out their understanding of what their practice ought to be. We find a good exposition of this idea in a lecture Freehof delivered in 1967 at Hebrew Union College-Jewish Institute of Religion in Cincinnati,12 in which he stresses the centrality of the study of halakhah to Jewish intellectual life. Precisely because the study of the halakhah was considered a religious duty, “Jewish life became essentially a vast educational system in which the essential part of the universal curriculum was the study of the law.” For many centuries, the study of the Talmud and halakhah has been the focal point of Jewish intellectual activity; the Jewish mind was shaped and educated in the yeshivot, the law schools of our tradition. This study, carried on by generation after generation of Jews, both laypersons and scholars, produced a tremendous outpouring of literature – commentaries, codes, responsa – that in turn became the subject of study for future generations. Freehof spares no superlatives in describing this accomplishment: Jewish law studies are “the essence and the climax of Jewish culture,” an intellectual activity “widespread to an extent never before achieved or since paralleled in any historic social group”; “we must conclude,” he says, “that the Jewish study of the law was the greatest suffusion of intellectual activity that the world has seen.” The study of the law, he concedes, is not necessarily the deepest kind of study nor the most important subject with which to preoccupy the mind.13 But for two thousand years it has been the central preoccupation of the Jewish mind. Therefore, if we want our Reform religious culture to be an authentically Jewish one, it must participate in the ongoing discourse of the halakhah. We Reform Jews, says Freehof, must become students of and participants in the authentic language of Jewish practice, the literature produced by our people in their ongoing effort to understand God’s will for their lives.
It is Freehof’s argument that freedom can coexist with Jewish authenticity, that even the most liberal of Jewish religious collectives can participate in the halakhic tradition and produce a halakhic literature of its own. Reform Judaism, in his view affirms both autonomy and its place in the Jewish legal tradition.
There is much more to say about his contributions to progressive halakhic writing and thought. Our next post, in particular, will consider some of the ways in which his writing is simultaneously “halakhic” and “Reform.” In the meantime, we hope that we’ve made here the beginning of the case for why we progressive halakhists look upon Solomon B. Freehof as out teacher par excellence.
We’re thinking of Patrick Deneen and Adrian Vermeule (and their political acolytes, like Viktor Orban and J. D. Vance), who argue that liberalism’s exaltation of the freedom of the individual is destructive of traditions and community. (For a good response to them see Andrew Koppelman, “‘It is Tash Whom He Serves’: Deneen and Vermeule on Liberalism,” Notre Dame Law Review 98 [2023], pp. 1525-1558.)
Well, nothing’s perfect! One can be an enthusiastic adherent of liberalism and yet recognize that its tenets are problematic when taken to extremes. For example, overemphasis upon individual rights and personal freedom can be productive of the selfishness and erosion of fellow-feeling that the Rabbis associated with Sodom (M. Avot 5:10: האומר שלי שלי ושלך שלך… ויש אומרים זו מדת סדום). For the record, we’re happy to state that though we are liberals, we are not libertarians.
Although this may be changing. On the page describing Conservative Judaism - aka “Authentic and Dynamic Judaism” - at the website of the United Synagogue of Conservative Judaism, the words “halakhah” and “halakhic” (in their various spellings) are conspicuous by their absence. By contrast, the World Council of Synagogues/Masorti Olami website still declares that "Masorti/Conservative Judaism is authentic Judaism offering a Jewish way of life guided by Halacha and by the values laid out by our sources."
That word “officially” is doing an awful lot of work here. It underlines the fact, long observed by many and repeated not so long ago by Daniel Gordis, that halakhah is of interest to only the “small intellectual elite” of the Conservative movement while the vast majority of its membership, who “were not in shul, for the most part, out of a sense of legally binding obligation,” are indifferent to it. We agree, though we take partial issue with Gordis’s indictment of the Conservative movement: while he adequately captures the forest, he misses some of its most important trees. We’ll explain in a subsequent post.
The halakhic responsa issued by the rabbinical arms of the movement, in North America and in Israel, are evidence that it takes halakhah seriously, even if these documents speak primarily to the “small intellectual elite” that Gordis mentions (see note 4).
“Hundreds” relates to his published responsa, collected in eight volumes that appeared through the HUC Press from 1960-1990. It doesn’t include the many answers he wrote to private inquiries.
Consider the following paragraphs of the preeminent doctrinal statement of “classical Reform,” the 1885 “Pittsburgh Platform”:
“We recognize in the Mosaic legislation a system of training the Jewish people for its mission during its national life in Palestine, and today we accept as binding only its moral laws, and maintain only such ceremonies as elevate and sanctify our lives, but reject all such as are not adapted to the views and habits of modern civilization.
We hold that all such Mosaic and rabbinical laws as regulate diet, priestly purity, and dress originated in ages and under the influence of ideas entirely foreign to our present mental and spiritual state. They fail to impress the modern Jew with a spirit of priestly holiness; their observance in our days is apt rather to obstruct than to further modern spiritual elevation.
No mention here of Torah, halakhah, or Jewish laws as indices of what Reform ritual practice ought to be. The enlightened spirit of the age performs that function, replacing the textual tradition. It really is an extraordinary (even revolutionary) statement for a group of rabbis to make. By the time Freehof rose to leadership in the Reform movement, this dominant thought pattern had begun to change. For reasons we can’t go into here - again, Joan Friedman (p. 24ff, “The Revaluation of Ritual in Interwar Reform Judaism”) describes the phenomenon in detail - the Reform rabbinate and a significant segment of the laity were becoming receptive to ritual observance and to restoring many of the practices that previous generations had swept aside. This change in attitude does much to account for the CCAR’s 1937 “Columbus Platform,” a much different document that its 1885 predecessor.
This is the argument developed (in much more detail and with much more sophistication than we can replicate here) by the eminent contemporary Reform theologian, Rabbi Eugene Borowitz, in his various writings. See especially his Renewing the Covenant: A Theology for the Postmodern Jew (Philadelphia: Jewish Publication Society, 1991), pp. 280-283.
Freehof does not explicitly address the authority/autonomy dilemma in Reform theology, but he does recognize the futility of any attempt to impose religious discipline upon Reform Jews. See Friedman, pp. 39-41 and 47-68, recounting Freehof’s opposition to any attempt to produce a code of Reform religious practice. Such a code, he insisted, would be contrary to the “mood” of the people.
Freehof’s history abbreviates a more complex reality. The earliest Reformers in Europe did produce a halakhic literature, essays and responsa that cited Talmud and codes in support of their adjustments to “Jewish services or ceremonies.” The “Orthodox” rabbinate (the label signifies their opposition to the movement for reform) refused to accept the halakhic argumentation advanced by the reformers. It’s a long story, too long to recount here. The point is that the reformers began by writing halakhic literature, a practice which they only abandoned once their arguments had been rejected by the Orthodox rabbinate.
Take, for example, the old question about whether to remain seated or to rise for k’ri’at Sh’ma, the recitation of the Sh’ma. A Reform discussion of that question might center upon the values of decorum, dignity, and propriety - what sort of posture is appropriate, given our contemporary sense of “propriety,” when pronouncing “the watchword of our faith”? - rather than upon the debate between Beit Shamai and Beit Hillel in M. B’rakhot 1:3 and the subsequent rabbinic literature.
“Reform Judaism and the Law.” Copies available at the HUC Library.
A sentiment expressed by the Rabbis as well. See B. Sukkah 28a and Rambam, Hil. Y’sodei HaTorah 3:14.