Is There a Modern Orthodox Way to Decide Halakhah?

by Rabbi Aryeh Klapper

Any viable Orthodox ideology must at some point find expression through Halakhah.  But it would be unwise to create a hermetically sealed off Modern Orthodox Halakhic space.  When your community no longer communicates with other Halakhic communities, you have sectarianism rather than healthy diversity.  So while some aspects of Halachic decision-making are properly distinctive to Modern Orthodoxy, this doesn’t mean that every aspect of Halachic decision-making should be distinctive to Modern Orthodoxy.   

I see the primary Halakhic conversation partner of Modern Orthodoxy being to its right, rather than to its left, meaning that I’m more interested in the distinction from what we’ll “Charedi Halakhic decision-making” than from what we’ll call “Conservative Halakhic decision-making”.  But since in conversations with the right we are constantly asked to explain how we’re different than the left, there’s always a need to distinguish ourselves at both ends.

Here’s how Wikipedia formulates these differences:

Charedi Orthodoxy, Modern Orthodoxy, Conservative Judaism.

Orthodox Judaism has a range of opinions on the circumstances and extent to which change is permissible.

Chareidi Jews generally hold that even minhagim, customs, must be retained, and that existing precedents cannot be reconsidered.

Modern Orthodox authorities are generally more inclined to permit limited changes in customs and some reconsideration of precedents.

Conservative Judaism holds that its rabbinical body’s powers are not limited to reconsidering precedents based on earlier sources, but that the Committee on Jewish Laws and Standards is empowered to override Biblical and Tannaitic prohibitions by takanah when perceived to be inconsistent with modern requirements and our views of ethics.

The Wikipedian distinction between Chareidi and Modern Orthodoxy makes everything a matter of degree, which is unsatisfying.  Furthermore, I think it’s not very true.  Let me explain why via a joke:

There are two complaints that people always make about the way Halakhah (not Modern Orthodox Halakhah) exists in the world today.

The first is that it’s absolutely frozen, and nobody’s willing to introduce any changes. Even minhagim, customs, must be retained. Existing precedents cannot be reconsidered.

The second thing we can’t stand are all the new chumrot. Where do all these stringencies come from?

But you realize, of course, that these complaints contradict one another!  You can’t be upset both about the freezing of Halakhah and about all the new chumrot, because all the new chumrot are changes.  Both in reality and perception, the Charedi community is not unchanging; rather, the Charedi community makes many changes, and I don’t think that we want to characterize the unique Modern Orthodox approach to Halakhah as “we’re willing to make a few more changes, as long as they’re l’kula (towards leniency), but we’re not willing to consider anything that creates a stringency.” That doesn’t seem to me to be a viable, self-respecting approach.   And if Chareidi Halakhah has changed dramatically, then change per se cannot be the basis of a uniquely Modern Orthodox approach.

Furthermore, the whole notion of a Halakhah which is an inflexible continuation of the past is a fiction. There are two simple ways of demonstrating that.

1) The Halakhah which is a direct continuation of the past regarding electricity. It can’t be! There wasn’t any such Halakhah.

2)  Customs – how many of the people supposedly following “inflexible customs” are following the customs their parents did?  Customs/minhagim are local and geographic, and relate to specific people and communities.  But geographic minhagim were already breaking down in the aftermath of World War I, and by the aftermath of World War II everyone had moved. Furthermore, many if not most currently observant American Jews grew up in homes that were not fully observant, and therefore are properly unwilling to treat their parents’ behavior as precedent.  Rather, these baalei teshuvah belong to constructed communities of practice that often adopt practices en masse that were previously limited to books or pietists, or combine practices in unprecedented ways.

Here is one more illustration. The Artscroll Talmud is often depicted as if it were a bastion of traditionalism.  Specifically, what purportedly made the Artscroll Talmud the bastion of traditionalism, as opposed to the Steinsaltz Talmud, is that Artscroll maintains the sacred tzurat hadaf (form of the page) of the Vilna Talmud, the classic traditional Yeshiva page of the Talmud.  Indeed, the new Koren edition of Steinsaltz reverts to the Vilna tzurat hadaf.

But ArtScroll in fact represents radical change.   The popularization of Talmud, to the point where people with no Yeshiva education, no access, no direct tradition from teachers – where, let’s say, a very bright 12-year-old girl can start learning Talmud on her own, and can become highly competent learning Talmud – that is a direct result of Artscroll. That could not have happened before, and it revolutionizes the community.

Furthermore, Artscroll doesn’t actually maintain the Vilna Shas.  It actually uses a very fine contemporary reprinting of the Talmud called “Oz v’Hadar” that graphically is very much like the Vilna Shas, but includes all sort of commentaries that were never there in the Vilna, and actually emends the Vilna text to correct obvious scribal errors. It’s a wonderful, beautiful modern update.  This makes it an excellent symbolic refutation of the notion that the distinction between Modern Orthodoxy and Charedi Judaism is one of change as opposed to non-change. It might be about different kinds of change, it might be about the way in which change is presented, but it’s not about change, per se.

We also should not limit the differences between Modern Orthodoxy and Conservative Judaism to extreme cases of takkanot.  (Takkanot are rabbinic decrees that explicitly make law, as opposed to interpreting law.)   First of all, it’s not clear that Modern Orthodoxy should be opposed in principle to contemporary takkanot.  Rav Yitchak Herzog, the first chief Rabbi of Israel, wrote a hypothetical Halachic constitution for the state of Israel, and it began with a list of the takkanot you would have to make about inheritance and testimony and minority rights and all sorts of similar things.  Modern Orthodox should follow the commonsense halakhic rule that one cannot legislate for communities that have not accepted one’s authority to do so,  But It is both untrue and unwise to say that Modern Orthodoxy should be opposed in principle to takkanot, let alone that we should define ourselves on the basis of that opposition.

More broadly, I don’t want willingness to overrule precedent to be the primary axis that differentiates us from Conservative Judaism.  Explicit change is always radical and rare, and the heart of halakhah is how it continues and grows naturally.  We should be able to define ourselves in ways that relate to ordinary halakhic process, and not just to extreme cases where some people feel that halakhah is in crisis and must be changed.  Ideally, in the extreme cases you’re just continuing a standard process, as opposed to abrogating your normal procedures and using emergency methods.  My sense is that emergency methods rarely work.

Another possible approach is to define a halachic process by who gets quoted how often.  So you might say that what defines Modern Orthodox halakhah is that it quotes the Rav a lot, and to not be Modern Orthodox is to never quote the Rav, and there’s an in-between status, like the Artscroll chumash, which involves quoting the Rav once, and for something completely conventional. I don’t know of psak emerging from the Chareidi community that makes any reference to the Rav’s halachic positions (which largely survived only through oral transmission, although a variety of posthumous compilations have appeared.  My sense is that these works are read exclusively in the Modern Orthodox community).

On the converse side, perhaps the primary distinction between Modern Orthodox and Conservative halakhah is whether once cites the positions of past Conservative halakhists as precedent.  There are occasional citations of Professor Shaul Lieberman, but on the whole, it’s fair to say that a responsum citing a position of the Committee of Jewish Law and Standards as meaningful precedent would per se be excluded from Orthodoxy.

But this doesn’t seem to me a sufficient or desirable description, even though it is often accurate. When you have a clear vision, and you’re identified with something, over time you tend to become much more attached to the accidental positions of the poskim who support that vision. You develop a tradition which favors the poskim who believe x or work in the following way, and it happens that all those poskim for some entirely incidental reason take one side of a technical dispute regarding Shabbat – perhaps they believe that you can’t brush your teeth with toothpaste on Shabbat.  So you stop using toothpaste on Shabbat.  

That’s how I understand Beit Hillel and Beit Shammai.   There are many expansive explanations that account for every detail of every disputes between Beit Hillel and Beit Shammai, because how else to explain why all the people in Beit Hillel always agree, and all the people in Beit Shammai always agree? I suggest there was at some point an ideological dispute which we can’t recover, and over time they started quoting only members of their own school.  Positions gradually hardened on accidental issues; Beit Hillel and Beit Shammai started arguing about toothpaste, which had nothing whatsoever to do with their ideologies.

I don’t want to define Modern Orthodoxy as a post-ideological community, which no longer has ideas, but just follows precedent.  So there must be a better and deeper defining feature of our halakhah than who we quote.

Another possible approach is result-based.  Only a posek within Modern Orthodoxy would reach conclusions TYPE A, and only a posek within the Charedi or Conservative community would reach conclusion TYPE B, and/or no posek who reaches conclusion TYPE X is Modern Orthodox, and no posek who reaches conclusion TYPE Y is Charedi or Conservative.  For example, perhaps Modern Orthodox psak is consistently more liberal than Chareidi psak about issues such as what amount of their hair married women must cover, and on the other hand, in contrast to Conservative psak, a Modern Orthodox teshuvah works on the presumption that all forms of homosexual contact are forbidden.

This approach also fails to satisfy me.  Leaving aside the question of whether there are enough specific grounds of this sort to generate a useful definition, it describes the past but doesn’t provide guidance for the future. Modern Orthodoxy psak is anything which accepts these past outcomes, and Chareidi or Conservative psak is one which accepts those past outcomes.  Without underlying ideas, this leads nowhere.

What underlying ideas might distinguish Modern Orthodox psak?

Many people think that Modern Orthodox psak should be more inclined to be “science-friendly”.  But I think that Modern Orthodox psak should be more skeptical than Chareidi psak of whatever the “official” scientific consensus is right now.  

Why?  Charedi psak generally (Rav Shlomo Zalman Auerbach zt”l of course was a shining exception) approaches science as a foreign body of knowledge which must be accepted when it impinges on halakhah. Scientists get to determine what the truths of science are.  Science may be rejected if specific Jewish traditions seem inconsistent with those truths (which occurs much more often in the realm of theology than in the realm of halakhah), but otherwise, experts from the world of religion should not presume to evaluate science.  

Modern Orthodox psak should not accept this approach.  Rather, our poskim should relate to the physical sciences as part and parcel of the knowledge they need to decide halakhah, and to achieve love and fear of G-d.  They should either be at home in both worlds, or preferably believe that there is only one intellectual world.  As a result, they will be less likely to take scientific claims on faith, and more inclined to do their own research.  (This will also make them less susceptible to relying on a single, perhaps mistakenly, trusted scientist’s reports, an issue which has dogged even great poskim.)

Another possible underlying framework is attitude towards manuscript, historical, or archeological evidence.  One might reasonably expect Modern Orthodoxy to be much open than Charedism to reconstructing texts, or to understanding legal texts in historical context, or to archeological evidence.  

Here the personality of Rabbi Soloveitchik was a confounding factor.  At least in his ideological statements about Halakhah (possibly as opposed to in his actual psak), the Rav strongly rejected such methods and evidence, because they suggested that halakhah was historically contingent.  A number of poskim in the Modern Orthodox community have begun changing that, including Rav Nachum Rabinovitch, Rav Yehudah Herzl Henkin, and in principle Rav Herschel Schachter.  But certainly that’s not how poskim are trained in YU.

Rather, because of the legacy of the Rav, Modern Orthodox halakhists in the late 20th century were Briskers, which is to say that they adopted a conceptual model of Halakhah which was otherwise associated with a fairly extreme form of Lithuanian Chareidi Judaism.   This conceptual method had no necessary connection to Modern Orthodoxy; it was a historical accident generated by the Rav’s intellectual charisma.   So methodology of learning is not currently a useful definition or description of Modern Orthodox halakhah.

This raises a critical issue.  Are we trying to describe what Modern Orthodox psak is, or rather to prescribe what Modern Orthodox psak should be?

A descriptive definition is problematic because there is no clear picture of what Modern Orthodoxy is.  For example: Sociological Modern Orthodoxy can be defined by its lesser and weaker commitment to halakhah, particularly on issues of sexuality, whereas ideological Modern Orthodoxy may be defined by visions of women’s rights, treatment of non-Jews, and similar issues.     

Meanwhile, who are the Modern Orthodox poskim in America?  Descriptively, I think the obvious candidateds are YU roshei yeshiva such as my teacher Rav Mordechai Willig, Rav Herschel Schachter and Rav Tzvi Sobolovsky.  They cannot be considered Chareidi.  First of all, they quote the Rav all the time! And on many other issues their sensibilities are clearly not Chareidi: they presume that their students will pursue degrees, for instance.  Yet, I would be very hesitant to view them as methodological models.

On the other hand, choosing Rabbi Daniel Sperber or Rabbi Mendel Shapiro as models seems to be disingenuous. People know only the teshuvot that implement changes or allow practices they very much want permitted; no one knows what they think about using preset dishwashers on Shabbat or other less fraught issues.  One cannot extrapolate a method from a small set of extraordinary cases.

Here is another example of the fine boundary between prescriptive and descriptive, from my own work:

Let me emphasize again in closing that the halakhic arguments above show that torture can be forbidden halakhically, not that it must be. Technical counterclaims can easily be made; for example, one might suggest that the blanket prohibition I describe could only be rabbinic, and that there is no capacity to legislate rabbinically in our day. Halakhic decisors and halakhic communities must take responsibility for the way Torah responds to moral challenges. I describe halakhah as I believe it ought to be, and as it can be if we acknowledge that ethical principles have a critical role to play in both physical war and in milhamtah shel Torah.

This is a clear statement of prescriptive Modern Orthodox halakhah. which believes that ethical principles have a critical role to play in both the physical world and milchamtah shel Torah. What’s interesting about it for our purposes is that I wrote it in response to an article by Rabbi Michael Broyde, who by that time was unquestionably a substantively and sociologically important Modern Orthodox posek.   For several years thereafter, the admissions interview for Yeshivat Chovevei Torah required applicants to read our two articles and explain which of us appealed to them methodologically. So I identified as a Modern Orthodox posek, and everyone identified Rabbi Broyde as a Modern Orthodox posek, and yet it seems on critical methodological issues we differed quite dramatically. Similarly, Rabbi Chaim Jachter is certainly an important Modern Orthodox posek. whom I bring in each year to speak to the Summer Beit Midrash, and yet we disagree on some central methodological issues.

It may be that the attempt to define a whole set of unifying characteristics and expect everyone to agree with all of them is excessive. Possibly we should should instead identify a cluster of methods and attitudes, and say that to be Modern Orthodox, psak must adopt some but not all of them.

But I think that at some level the issue will boil down to the values that are implemented in halakhic decisionmaking  This is true even though some Modern Orthodox poskim have denied that values legitimately play a role in psak.  At the same time, we cannot say that poskim must always confirm the values of their communities.  Halakhah has no dignity if it cannot critique as well as support, and poskim must be allowed to lead and even be countercultural.

What values must play major roles in a body of halakhic work for it to be Modern Orthodox?  We can probably find consensus on religious Zionism, the right of women to full religious experience, and the obligation to treat all human beings Jewish or non-Jewish as tzalmei Elokim as values that define halakhic outcomes as Modern Orthodox.

But it isn’t sufficient to define values that are reflected in outcomes of the halakhic process.  It is at least as important for the nature of the process to reflect Modern Orthodox commitments.  I contend that the fundamental value that should distinguish Modern Orthodox halakhah process is autonomy.

Autonomy means the ability to live by rules of one’s own choice, and ideally of one’s own devising.   It is often framed as a right.  But in the context of halakhah, rights always come linked to responsibilities.

We live in a post-Nuremburg culture, in which the excuse “I was just following orders” carries the worst possible connotations.  Modern Orthodox Jews can’t want people to excuse or justify immoral actions on the ground that they were obeying the command of a religious authority.  

Nonetheless, there are several obvious objections to incorporating the value of autonomy into halakhic process.

1)  Rav Aharon Lichtenstein said that “The essence of Judaism is the metzaveh/metzuveh (commander/commanded) relationship.  Even if one does not go so far as “essence”, there is no denying the centrality of “tzivui” which seems antonymic to autonomy.

2) Halakhah is (partially) a system of law, and law by definition requires authority.  Legal authority is also socially necessary, because the alternative is anarchy, and in anarchy the weak always suffer.   

3)  If having a better Torah education doesn’t privilege you in the values discourse of Judaism, what’s the point of learning Torah?

Each of these objections is overdrawn.  Autonomy can be balanced with authority; it’s not a zero-sum game.

A Modern Orthodox halachic process will not presume that the person with the highest level of Torah scholarship automatically gets all values-decisions correct.   Psak Halakhah is not like playing Stratego.  Moreover, it will recognize that elite Talmudists and halakhic scholars, even those with earned reputations for righteousness, are susceptible to moral error.  But it will endorse significant deference to such scholars, and mandate accountability – not unquestioning submission, but accountability – to one’s peers and superiors in Torah knowledge.

At the same time, Torah scholars who value autonomy will seek to avoid imposing their authority on others, and within the limits of halakhah will try to leave maximal space for people to live by their own conceptions of the right, the good, and the holy.  

This vision emerges from the dispute between Moshe and Yehoshua about Eldad and Meidad.   Should the presence of multiple prophets be seen as a threat to central authority, or rather “וּמִי יִתֵּן כָּל-עַם ה, נְבִיאִים”, “May it be that all the nation of G-d are prophets”?  Modern Orthodoxy adopts Mosheh’s position, and ideally wants every Jew to have reliable independent religious intuition.  But we recognize the fallibility of even the most educated intuition, and the danger of overestimating our education.  

The goal of empowering people to make autonomous decisions obligates us to understand what constitutes a sufficient education on what kind of halakhic issues.  Even the most autonomy-affirming halakhist must sometimes say: “You raised this question, let’s look at the sources together and read the following articles,  But – after all that, this is an issue that requires trained intuition and experience. and therefore ultimately I think you should formally ask a shaylah”.  It will take a lot of work to figure out the boundaries of autonomy, and the nature and boundaries of authority, particularly as we have unprecedented forms of knowledgeability.  We have laypeople who never studied formally but know Shas by heart because they’ve been to daf yomi shiur and read through the Artscroll Talmud, and people with good web-searching skills can know more than most of their rabbis on any subject within 10 minutes, because they read 3 articles which clearly explain in English what all the sources say.

One possible approach would be to separate the jobs of moral and halakhic analysis.  When technical and authority grounds lead to halakhic stalemate, but one side is morally preferable, non-poskim can make their own decision on other grounds, such as morality.  At the extreme version of this model, any time you have a dispute amongst poskim which makes it legitimate to adopt either position, private individuals can choose on moral grounds.

The problem with this model is that it reduces halakhah to expert knowledge, and sees Torah knowledge as conferring no authority in nontechnical discourse.  In a world where anyone with internet skills can find a formal halakhic argument for almost any practice, this would turn halakhic discourse and Torah knowledge into trivialities.  

I contend that halakhic Jews who see autonomy as conferring responsibility will reject this model because they seek accountability to Torah.  Seeking accountability means deference without total submission, and a bias toward learning more and toward becoming more and more able to make more and more decisions, without ever desiring to achieve a state in which there are no heteronomous constraints on one’s will or intuition.  It means that we seek out teachers and poskim with whom we share our deepest Torah convictions but who are willing to say things to us that we really don’t want to hear.

In short: Modern Orthodoxy halakhic process should be distinguished by the moral responsibility assigned to the laity. The challenge is – can we build a morally responsible laity which nonetheless genuinely accepts halachic authority? I like to think we can.

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