## One People? Tradition, Modernity, and Jewish Unity, Chapter 8; Schism?

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**Maggid Books, 2024:**
***Schism?***


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**Maggid Books, 2024:**
I have described what seems to be the inexorable unfolding of tragedy. It is not merely that Orthodoxy and Reform are drifting further apart as the one rejects, the other adapts to, an increasingly secular and individualist culture. It is that the desire for unity is itself inherently and paradoxically divisive. The reason is that each side holds a different concept of unity: one inclusivist, the other pluralist. These two ideas are incompatible. They systematically exclude one another. The result is that the more vigorously unity is pursued, the further it recedes. An apparently shared wish that Jewry be “one people” is, it seems, destined to be frustrated by conceptual impasse and mutual incomprehension.


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**Maggid Books, 2024:**
Was and is this inevitable? It is the result, let us recall, of the impact of enlightenment, emancipation, and secularization on a people that had hitherto been defined by halakhah, the constitution of Jewish law. This gave rise, initially in Germany and Austria and subsequently in America, to a series of religious denominations – Reform, Liberal, Conservative, and Reconstructionist – each of which involved a reinterpretation of the key terms of Jewish existence, especially of halakhah. Judaism had previously known differences and disputes: between Ashkenazim and Sephardim, rationalists and mystics, followers and critics of Maimonides, Hasidim and their opponents. But however acrimonious the arguments, the commitment of both sides to halakhah had prevented their deterioration to the point of schism.


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**Maggid Books, 2024:**
Differences of a larger order, between Jews and early Christians, Rabbanites and Karaites, the rabbinic mainstream and the seventeenth- and eighteenth-century messianic movements of Shabbatai Zvi and Jacob Frank, had eventuated in fundamental splits that could not be contained within a single religious order. There is no precedent since Second Temple times for the coexistence of denominations, rival systems, fundamentally differing interpretations of Judaism. Nor does the Second Temple period, with its internecine rivalries and wars, provide a reliable model on which to predicate the present. Is there, then, a different route by which the collision between tradition and modernity might be negotiated, one that does not involve the fragmentation of Jewry into denominations? If so, might it yet be taken? If not, what are the implications?


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**Maggid Books, 2024:**
**ROSENZWEIG AND FACKENHEIM**
One possibility of what one might call a non-denominational non-Orthodoxy is suggested by the thought of one of the most profound twentieth-century Jewish thinkers, Franz Rosenzweig (1886–1929). Born to highly assimilated parents in Kassel, Germany, Rosenzweig came to the brink of conversion to Christianity. What diverted him from this course was an experience of Orthodoxy in Berlin, and he was led further back towards tradition by his encounter, during the First World War, with Eastern European Jewry.¹ [1921], trans. William Hallo (London: Routledge and Kegan Paul for the Littman Library, 1971). The best introduction to his life and work is N. N. Glatzer, *Franz Rosenzweig: His Life and Thought* (New York: Schocken, 1961). A book of essays has recently been published: Paul Mendes-Flohr (ed.), *The Philosophy of Franz Rosenzweig* (Hanover, NH: University Press of New England, 1988). See esp. the essay by Ernst Simon, “Rosenzweig: Recollections of a Disciple,” ibid. 202–13.

footnotes:
¹ Franz Rosenzweig’s major work is The Star of Redemption


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**Maggid Books, 2024:**
Rosenzweig died young and never completed his full “return” to tradition. Nor was this his exact intention. The twentieth-century European Jew was, he argued, a child of his time and could not escape his cultural situation as heir to post-Enlightenment thought. As he put it in his speech at the opening of his new house of learning, the Frankfurt *Freies Jüdisches Lehrhaus*, the Jew returning to tradition “must not give up anything, renounce anything,” but should instead “lead everything back to Judaism.”², 231. He must find his way back without ceasing to be a “modern” Jew. Part of this was relatively straight-forward, though revolutionary enough for someone of Rosenzweig’s background and time. The texts of the Jewish heritage were no longer to be considered part of a discarded past. They were to be studied as the resources through which the Jew defines his present. But learning was one thing, doing was another. It was here that Rosenzweig confronted the central problem of Jewish modernity. Was it possible to find room for the idea of halakhah? The past might be studied, even experienced, but did it still have the power to command?

footnotes:
² Glatzer, Franz Rosenzweig


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**Maggid Books, 2024:**
Rosenzweig’s colleague, Martin Buber, thought not. Revelation, for Buber, did not have propositional content. It did not yield *law.* Law was universal. Revelation was immediate and specific. It was, in the phrase he coined, an “I-Thou” encounter. Rosenzweig challenged Buber in an open letter, published as *The Builders: Concerning Jewish Law*.³, ed. N. N. Glatzer (New York: Schocken, 1955), 72–92. Law, he argued, lay at the heart of Judaism. One could not translate it out and still be faithful to Judaism’s historic character. It was no longer possible to treat the law as if it were given and self- evident, but it was still possible to experience it in its inwardness, to have an I-Thou experience of halakhah. But this could only come about by trying to keep it. The law “cannot be known like knowledge, but can only be done.”⁴

footnotes:
³ Franz Rosenzweig, On Jewish Learning
⁴ Ibid., 82.


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**Maggid Books, 2024:**
Rosenzweig, as a characteristically modern thinker, places the self – not community or law – at the heart of his system. But the individual can still turn “law” (*Geselz*) into “commandment” (*Gebot*) by experiencing it not as a cold, external rule but as a living imperative addressed to the self. This is not the “autonomous” self of modern Reform Judaism, self-legislating and choosing which laws to keep and which not. Rosenzweig’s self does not make its own laws. Instead it attempts to listen to the law of Torah as a commandment “which he must fulfil, simply because he cannot allow it to remain unfulfilled.”⁵

footnotes:
⁵ Ibid., 86.


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**Maggid Books, 2024:**
Not everyone will be able to keep all the laws this way. Each person will come to his own discovery, necessarily unique and private, of what he can keep and what not. But (and this is the crux) it will not be a matter of what he *chooses* to do, but a matter of what he *can* do. The “selection does not depend on the will but on our ability.” Rosenzweig’s philosophy of law is an attempt to break away from autonomy towards theonomy, the recognition that the command comes from outside the self even as it is appropriated and internalized by the self. “The deed is created at the boundary of the merely do-able, where the voice of the commandment causes the spark to leap from ‘I must’ to ‘I can.’”⁶ This sentence is a kind of modern midrash on the biblical phrase in which the Israelites at Sinai accepted the commands: “We will do and we will listen.” For Rosenzweig, “doing” becomes a form of “listening.”

footnotes:
⁶ Ibid.


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**Maggid Books, 2024:**
A very similar position, philosophically more explicit, was advanced by Emil Fackenheim in an essay written in 1938, though published only recently. Fackenheim is the most impressive of the post-Holocaust liberal theologians. His thought, as we saw in an earlier chapter, is consciously incompatible with tradition in its insistence that the Holocaust represents a “hermeneutic rupture,” an unbridgeable abyss, between the Jewish past and the Jewish present. But shortly before leaving Nazi Germany, Fackenheim addressed himself to the question posed by Rosenzweig. Can the contemporary Jew, without sacrificing his contemporariness, confront Jewish law? His paper “Our Position toward Halakhah” gives an answer in the affirmative.⁷, ed. Michael Morgan (Detroit: Wayne State University Press, 1987), 21–25. See Fackenheim’s own comments on the article, ibid. 8. Fackenheim’s most recent statement still adheres to this position. See his *What Is Judaism?* (New York: Collier, 1987), 145–46.

footnotes:
⁷ In The Jewish Thought of Emil Fackenheim: A Reader


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**Maggid Books, 2024:**
Fackenheim begins by recognizing the form of the problem. The twentieth-century man of faith approaches religion from the outside. He judges it “in terms of standards he already brings to it.” The result is that “religion is measured by the nature of the one who does the judging.” Halakhah fares badly in this process, but Fackenheim identifies two ways of salvaging it for the modern mind. He calls them, respectively, the “religious” and the “national.” The “religious” way is to see Jewish law as arousing religious feelings or satisfying religious needs. This is the classic liberal strategy, one that results when religion is privatized and translated from external truth to internal experience. The “national” way is to see Jewish law as the creation and binding force of the Jewish people as a whole. It is an expression of peoplehood. Fackenheim does not identify these two approaches further, but we recognize them as the broad strategies, respectively, of Reform Judaism on the one hand, and Mordecai Kaplan’s Reconstructionism on the other.


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**Maggid Books, 2024:**
Both salvage elements of traditional halakhic behaviour, but not the idea of halakhah itself. For Jewish law, on either version, “is viewed as a spiritual creation of earlier Jewish generations, and nothing more.” Revelation and command are left out of the equation. Traditional conduct becomes no more than “custom and ceremony.” It ceases to be halakhic, for halakhah “confronts us as *Commandment*, Commandment therefore *given by the other*.” It demands to be actualized in daily life, not just as an aesthetic means to religious experience or as a sociological instrument of group survival. For halakhah to be possible, one must be willing and able to let oneself be addressed by the Other. The self must break out of its autism. Here, then, Fackenheim faces the problem Rosenzweig confronted. Can the modern Jew transcend the autonomous self and hear the commanding voice of Sinai?


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**Maggid Books, 2024:**
Jews in the past did just this. The Jewish people “has always attempted *not to say it* [the command] *to itself but to let itself be addressed*.” The contemporary Jew does not have the same faith as his predecessors. All he has is a “readiness to faith.” Yet he desires to hear the same “Word” as his ancestors, spoken at Sinai, explicated by unbroken centuries of rabbinic interpretation. In seeking to recover the bond with the past he must therefore be ready to admit the idea of “the Other as Demanding.” The present generation “must seek to recover a bond with its ancestors, in order thus to be able, as it were, to stand at Sinai itself, i.e., in order thus genuinely to become *Klal Yisrael* not only horizontally but vertically as well.” In order to do this, Jews must begin with deeds, with “some of the doing of our ancestors.” As Rosenzweig, too, had warned, not all of tradition will be “do-able.” But it is in the leap of action that the contemporary Jew transcends his doubts. “Whether or not our doing will answer to the Demanding we cannot know. All we can do is be ready, and in this readiness *attempt to do even as we remain questioners*.”


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**Maggid Books, 2024:**
How then does the thought of Rosenzweig and Fackenheim bear on the subject at hand, the division of Jewry into denominations? Each recognized the gap between modernity and tradition, especially as it affected the understanding of revelation and halakhah. But neither sought to bridge it by a synthesis of two essentially opposed cultures. Neither, in other words, sought a solution in terms of a religious movement, a denomination. Instead they acknowledged that halakhah exists: not a new Reform or Conservative halakhah, but the halakhah of tradition, the written and oral laws of Sinai. To be sure, the contemporary non-Orthodox Jew is alienated from it. Only by great striving can he or she confront it at all. But halakhah is Jewishly unavoidable. Around it and its concepts – revelation, covenant, the oral law – the Jewish people had constituted itself in the past. Only by accepting the givenness and otherness of halakhah can the abyss between present and past be overcome so that the Jew can once again be in dialogue with Hillel and Rabbi Akiva, Rashi and Maimonides. Without halakhah there can be no Judaic continuity.


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**Maggid Books, 2024:**
Their solution to the contradiction between divine command and human autonomy is philosophically close to the position taken by many Orthodox thinkers, among them Rabbi Soloveitchik in *Halakhic Man*. In hearing the command, the Jew “does not experience any consciousness of compulsion accompanying the norm. Rather, it seems to him as though he discovered the norm in his innermost self, as though it was not just a commandment that had been imposed upon him, but an existential law of his very being.”⁸, 64–65. Two things, however, differentiate Rosenzweig and Fackenheim from Soloveitchik. The first is that what for Soloveitchik is already a state of mind is for them an aspiration, an end-point to be reached. Soloveitchik speaks from within a traditional consciousness. Rosenzweig and Fackenheim see that frame of mind as not yet theirs, though they wish as far as possible to make it so.

footnotes:
⁸ Soloveitchik, Halakhic Man


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**Maggid Books, 2024:**
The second, and more obviously significant, is that Rosenzweig and Fackenheim both predict that, for the modern Jew, not everything will be “do-able.” Neither thinker is willing to lay down criteria in advance of what commands can be done and what left undone. That would have been wholly at odds with their philosophical purpose. They believed this question could only be answered by the individual. Even the same individual would give different answers at different stages of his or her religious development. It is this, though, that separates them from Orthodoxy. The Orthodox thinker takes as a paradigm Abraham at the binding of Isaac. When faced with a conflict between command and conscience, command takes precedence. Rosenzweig’s point is that we are not Abraham. There are times when we cannot “hear” the command, even though we know it.


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**Maggid Books, 2024:**
So Rosenzweig and Fackenheim did not restate Orthodoxy. They did something conceptually more interesting. They reformulated liberal Judaism into a not-yet-Orthodoxy. Taking as their contemporary starting-point the detraditionalized self, they outlined a way in which such a self might attempt the road back to revelation and halakhah. They gave an account of what it would be for modern consciousness to, as it were, stand in the presence of tradition. This is a project whose religious integrity Orthodoxy should not find impossible, or even difficult, to recognize.⁹, 127; Eliezer Berkovits, *Major Themes in Modern Philosophies of Judaism* (New York: Ktav, 1974), 37–38; David Miller, “Traditionalism and Estrangement,” in Phillip Longworth (ed.), *Confrontations with Judaism* (London: Blond, 1967), 209–11. For it addresses the very issue which Orthodoxy itself must address, albeit from the opposite perspective.

footnotes:
⁹ See, e.g., the tributes paid to Rosenzweig by Orthodox writers: Schwab, The History of Orthodox Jewry in Germany


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**Maggid Books, 2024:**
The alienation of the majority of contemporary Jews from tradition is a fact with which Orthodoxy has had to reckon. Though the covenant is not “voluntary,” any contemporary Jewish thinker must find room for the fact that halakhic observance, even Jewish identification, in open societies is experienced as voluntary to a degree unknown in the pre-modern *kehillah.* “It is much more probable today than ever before that a Jew who remains faithful to the covenant...is acting out of conscience instead of social conformity.”¹⁰ The gap between the real and the ideal, the contemporary Jew and traditional Judaism, has been bridged in twentieth-century Orthodox thought in essentially the same way as Rosenzweig and Fackenheim proposed, namely by invoking the idea of *teshuvah* or “return.” *Teshuvah* occupies a central place in the thought of both Rabbi Soloveitchik¹¹. and Rabbi Kook,¹². and in both it carries a wider, more biblical resonance than it had in rabbinic thought. *Teshuvah* is not simply or even primarily repentance for transgression. It is a return of the alienated self to tradition.

footnotes:
¹⁰ Wyschogrod, “Judaism and Conscience,” 326.
¹¹ Soloveitchik, Al Hateshuvah
¹² Kook, Orot Hateshuvah


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**Maggid Books, 2024:**
Rosenzweig and Fackenheim provide the basis for a not-yet-Orthodoxy which does not seek to *legitimate* deviations from halakhah and thus in effect create alternative communal norms. One could imagine both Reform and Conservative practice reconceived along these lines. Rather than taking the autonomous self or the ethics of the age as their central values, they would instead ask the question: How much of tradition can be actualized by this individual, or this congregation, at this moment? The fact that some of it could not, would not be justified *de jure,* but conceded *de facto.* Halakhah would exist as an absolute and an ideal, but the existential situation of contemporary Jewry would, at the same time, be granted its own integrity. Not all of the tradition can be appropriated by today’s Jews, but neither it nor its authority is to be rejected. Instead, Judaically, the times are out of joint. The commanding voice of Sinai is only imperfectly heard in the distorting atmosphere of an individualistic culture. The modern Jew lives in the relativities of his time, but through them he can occasionally respond to the absolute. He observes as much of Judaism as he can, and aspires to do more. The rest is “not yet” rather than “not ever.”


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**Maggid Books, 2024:**
Such a philosophy, if adopted, would not alter the *fact* of the widespread abandonment of halakhah, but would prevent its *institutionalization* into separate movements and denominations. Why, then, has this route not been taken?¹³ (New York: Simon and Schuster, 1981), 159–61. Clearly, it has not answered to the ideological commitments of many Reform and Conservative leaders. For them, the encounter with post-Enlightenment philosophical, political, and historical thought has been decisive.¹⁴, 243–72. In their view, Judaism is not an absolute, presently experienced in the midst of a relativizing culture. Rather, contemporary culture yields its own absolutes (the autonomous self, or the ethics of the age), against which tradition must be seen as relative.

footnotes:
¹³ It is, however, advocated in Dennis Prager and Joseph Telushkin’s popular work, The Nine Questions People Ask about Judaism
¹⁴ See, e.g., Borowitz, Choices in Modern Jewish Thought


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**Maggid Books, 2024:**
Inexorably, too, the pressures of social integration in the West seemed to call for institutional rather than merely individual accommodation. In the nineteenth century this involved, for radical Reform, massive changes, including the abolition of circumcision, the permission of work on the Sabbath, the abandonment of Jewish laws of divorce, and substantial liturgical innovations. Today, for American Reform and British Liberal Judaism, they include acceptance of intermarriage, legitimation of homosexuality, and a rejection of all laws differentiating men and women. If the realities of acculturated Jewish life were to be given religious expression, it would have to be *de jure* rather than merely *de facto.* The tensions between halakhic ideal and the real lives of Jews were too great to be held in balance. They called for justification that would allow Jews a sense of consistency. The varieties of liberal Judaism provided it. In their different ways they validated the actual transformations of Jewish life by proposing new criteria of religious behaviour. The path made available by Rosenzweig and Fackenheim was not taken. One does not need to doubt the integrity of those concerned to see that this was a fateful development. Alternative norms of Jewish conduct were proposed. Rivals were established to the halakhic system. One possibility of a non-denominational modern Jewry was declined.


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**Maggid Books, 2024:**
**HIRSCHENSOHN AND KOOK**
So was another, this time from the opposite direction – from that of the halakhic community itself. Jewish law could and can be seen from two perspectives, each of which has ample representation in the early and medieval rabbinic literature. It could be understood as the divine will, through obedience to which an *individual* achieves perfection. Or it could be understood as the divine constitution of a covenantal people, through which a *nation* achieves sanctification. For a prolonged period, between the first and nineteenth centuries CE, the differences between these two conceptions was neither pronounced nor critical. Both motifs, for example, are present in the philosophical writings of Moses Maimonides. On the one hand, for Maimonides, the commandments are social and political in intent. They shape, directly or obliquely and through the course of time, a society built on virtue and truth.¹⁵, ii. 40, iii. 27–49. On the other hand, their performance, if accompanied by intense meditative concentration, brings about a wholly personal union between the human mind and God.¹⁶ Halakhah, then, was both private and public. At Sinai, said the sages, a covenant was enacted with the people as a whole and with each individual separately.¹⁷, Sotah 8:10–11.

footnotes:
¹⁵ Guide of the Perplexed
¹⁶ Ibid., iii. 51.
¹⁷ See Tosafot


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**Maggid Books, 2024:**
So long as Jewish law retained its primacy over Jewish life, these two ideas were not in conflict. But with modernity, they split asunder. Halakhah now became the code not of a people but of a section of it, namely those who adhered to Orthodoxy. What then became of the idea of halakhah as the constitution of a nation? As we saw in the chapters on Orthodoxy, a marked divergence of views was possible. There were those, spanning the spectrum from Samson Raphael Hirsch to the disciples of Rabbi Moses Sofer, who emphasized the priority of Torah over peoplehood and who were willing, as a result, to secede from the wider Jewish community. But there were others who attached greater weight to the Jewish people as an indivisible nation,¹⁸, 14: “My son, most people think that the Torah comes first, but I tell you that Israel comes first”: *Tana Devei Eliyahu*, ed. M. Friedmann (Jerusalem: Bonberger and Wahrman, 1960, 71). and as a result saw Torah and halakhah as inseparable from the collective life of Jews.

footnotes:
¹⁸ See Tana Devei Eliyahu


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**Maggid Books, 2024:**
The natural focus of their thoughts was the land of Israel. In the diaspora, as a result of emancipation, Judaism had been made private. It could no longer represent a total culture. The return of Jews to Israel, though, offered the hope of covenantal renewal. Torah might once again become the constitution of a nation, through the instrumentality of a Jewish state. Admittedly, the Zionist movement itself and those moved by it to join the early waves of immigration were predominantly secular. But here lay the challenge: to reinterpret Jewish law in such a way as to make it viable as the code of a modern society.


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**Maggid Books, 2024:**
In the early decades of the twentieth century this line of thought was explored by Rabbi Chaim Hirschensohn.¹⁹. Torah, for him, was essentially covenantal: the agreement of the Israelites, binding on their descendants, to be governed by divine law. It was this that constituted Jewry as a nation. Other nations had been forged through race or territory. Jewry had not, for it accepted converts from other races and had lived out most of its history in dispersion. The connection between Torah and peoplehood was axiomatic. An emergent Jewish state must necessarily, then, have a distinctive constitution. Other states were governed by a social contract, an agreement between their members. Israel was governed by a divine covenant, an agreement between the people and God. But this in turn demanded that the covenant be viable. It must be a code by which most of its members could live. The restrictive legislation by which the sages had protected biblical law was now counter-productive. It was effective for a people suffering the onslaught of Greek and Roman power. But it was ill-suited to a population celebrating, after eighteen hundred years, a return to free national life. Hirschensohn was a committed halakhist, deeply opposed to Reform Judaism. But he believed that the halakhic system itself contained both the mandate and the flexibility to adapt to modernity. In particular, he defended democracy and the participation of women in elective government on halakhic grounds.

footnotes:
¹⁹ Hirschensohn’s thought is well summarized in Schweid, Demokratiah Vehalakhah


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**Maggid Books, 2024:**
A similar approach has more recently been argued by Yeshayahu Leibowitz and Eliezer Berkovits. Leibowitz, while convinced of the immutability of halakhah in relationships between man and God and man and man, believes that development is possible and necessary in the case of relationships between man and state. There is, he maintains, a distinction between laws which bring institutions into existence and those which merely regulate pre-existing practices. The Jewish laws of prayer created the possibility of prayer, but the Jewish laws of slavery did not create slavery. Halakhah in its social and political dimension took institutions already extant and proceeded to regulate and transform them. It must do so now in the context of a Jewish state. Halakhic innovation was necessary because rabbinic Judaism, which gave Torah law its systematic exposition, reached its full flowering after the demise of Jewish sovereignty with the destruction of the Second Temple. Rabbinic law takes for granted the absence of Jewish responsibility for an economy and a defence force. Even the code of government contained in Maimonides’ “Laws of Kings” is a theoretical construction, never tested against the exigencies of political power. The observance of Jewish law in the State of Israel is, Leibowitz argued, currently predicated on the fact that many of its essential services will be performed by non-observant or secular Jews, who are thus cast into the role of gentiles. But this means that halakhah currently fails its own test of universalizability, namely that it should be capable of being fulfilled by all Jews simultaneously.²⁰, *Umedinat Yisrael* (Jerusalem: Schocken, 1979); id., *Emunah*, *Historiah, Ve’arakhim* (Jerusalem: Academon, 1982).

footnotes:
²⁰ Yeshayahu Leibowitz, Yahadut, Am Yehudi


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**Maggid Books, 2024:**
Eliezer Berkovits draws a somewhat different distinction. For him the central feature of Jewish law is its conception of a dual Torah. The written law, recorded in the Pentateuch, is timeless and universal. The oral law is time-specific and particular. Its task is to translate Torah into the immediacies of a given situation. The essence of the oral law is that it is not written down. It could not be, because the rulings appropriate to one generation may not be relevant to the next. In exile, both Jewish law and Jewish life had been frozen into stasis. One of the symptoms of this was that the oral law had been written down, codified, and thus deprived of its essential responsiveness to change. Jews had now returned to Israel, but halakhah remained in exile. Berkovits argued the case for a recovery of the flexibility that oral law had once had in the hands of its early practitioners. In particular, he emphasized the role of reason and ethics in the judicial process. Considerations of justice and Jewish unity, he argued, should now lead halakhists to reconsider the role of women in religious life, to adjust the laws of marriage so that a woman could not be held captive by a husband who refused to grant her a divorce, and to liberalize the laws of conversion.²¹ (New York: Sanhedrin, 1976); id., *Hahalakhah, Kochah Vetafkidah* (Jerusalem: Mosad Harav Kook, 1981); id., *Not in Heaven*; id., *Jewish Women in Time and Torah* (Hoboken, NJ: Ktav, 1990).

footnotes:
²¹ Eliezer Berkovits, Crisis and Faith


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**Maggid Books, 2024:**
Each of these approaches was, in effect, an attempt to move beyond “Orthodoxy,” as the religion of a minority, to Torah, as the effective law of an entire nation. In a very different way from Rosenzweig and Fackenheim’s, these thinkers were likewise engaged in a battle against the *de facto* denominalization of Jewish life. They too failed. In part, doubtless, this was because their proposals were too radical. They involved stretching halakhah to its limits and beyond. The weight of precedent was against them. With the end of the Sanhedrin, the compilation of the Mishnah, the closure of the Talmud, and the absence of a body with formal and global legal authority, Jewish law had evolved in an increasingly conservative direction. New legislation or reinterpretation of the scope envisaged by Hirschensohn, Leibowitz, and Berkovits was almost certainly fated to be deemed *ultra vires.* Some thinkers, most notably Rabbi Judah Leib Maimon, vested their hopes in a reconstitution of the Sanhedrin in the new state, a project which Maimonides had intimated was possible.²² (Jerusalem: Mosad Harav Kook, 1951). But this would have required wide-spread consensus, and it was not forthcoming.

footnotes:
²² J. L. Maimon, Chidush Sanhedrin Bimedinatenu Hamechudeshet


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**Maggid Books, 2024:**
But in part, the failure of Hirschensohn and others to secure support for their proposals was due to the same fragmenting forces that left Rosenzweig, too, a lonely figure. Secularization has divided Jews in Israel no less than in the diaspora, perhaps more so. So long as halakhah was the lived, enforced code of the Jewish people, there were considerations, recognized by the halakhah itself, rendering it responsive to crises in Jewish life. There were rulings based on the principle of the economic viability of Judaism, “the Torah treats protectively the money of Israel.”²³, xi, s.v. *Hatorah chasah al mammonam shel Yisrael*, 240–45. There were others based on the need to maintain peaceful relations with the majority population: the halakhic principles of “the ways of peace” and “the avoidance of animosity.”²⁴, vol. i, s.v. *Eivah*, 228–30, and vol. vii, s.v. *Darkhei shalom*, 716–24. There were limits imposed on martyrdom at times when it seemed as if the leadership of the Jewish community might choose on religious grounds to die rather than to live.²⁵ (Oxford: Oxford University Press, 1965). There were limits to the divisive impact of religious teachings and sanctions in the face of non-observance of Jewish law. The Talmud had established rules of tactical silence. “Just as it is a command to say that which will be heeded, so it is a command not to say that which will not be heeded” was one.²⁶ “Let Israel go their way: better that they sin unwittingly than knowingly” was another.²⁷ Halakhic authorities had to consider carefully the effects of the imposition of punishments such as excommunication. Should they still be implemented if they might have the effect of driving the offender to apostasy, or, as the rabbis called it, *tarbut ra’ah*, “bad ways”? Rabbi Moses Isserles ruled that they should;²⁸, *Yoreh De’ah* 334:1. others disagreed;²⁹ on *Yoreh De’ah* 334:1; *Chatam Sofer* on *Yoreh De’ah*, 322; *Pachad Yitzchak*, s.v. “Gilui Arayot”; Zvi Hirsch Chajes, *Darkhei Hora’ah*, ch. 6, in his *Kol Sifrei*, 269–80, and *Minchat Kenaot*, ibid. 1021–27. Rabbi David ibn Abi Zimra (Radbaz) concluded that the court had to weigh the consequences in each instance.³⁰, i. 187.

footnotes:
²³ See Entziklopediah Talmudit
²⁴ For a survey of these principles and their application see Entziklopediah Talmudit
²⁵ Sanhedrin 74a. See also David Daube, Collaboration with Tyranny in Rabbinic Law
²⁶ Yevamot 65b.
²⁷ Beitzah 30a, Shabbat 148b.
²⁸ Shulchan Arukh
²⁹ See Turei Zahav
³⁰ Radbaz


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**Maggid Books, 2024:**
Each of these principles had the effect of moderating halakhic rulings to preempt a possible divorce between Jewish law and the realities of Jewish life. They operated within defined limits: they could be invoked only when the halakhah itself granted its exponents discretionary power. But they operated, too, within a specific environment, namely the adherence of Jews to Jewish law. Once that ceased, a fundamental change took place in the *Sitz im Leben,* the life-setting, of halakhah. Jewish law became, in effect if not in principle, the voluntary code of a self-selecting elite. Those who remain within Orthodoxy can *ipso facto* live by its standards. Those who abandon it, do not turn to it for solutions which can be found, with less difficulty, in Conservative, Reform, or secular Israeli versions of Jewish life. The delicate interplay between Jewish law and the Jewish people – the collective, covenantal dimension of the halakhah – has been disrupted by the seismic effects of modernity. The result has been that there have been few left to support the proposals advocated by Hirschensohn and others. Their programme lacks a constituency. The bifurcation they sought to avoid, between those within and those outside the halakhic system, has occurred, and its divisive potential grows with time.


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**Maggid Books, 2024:**
What has emerged in Israel in recent years is not a convergence but a confrontation between secular and religious publics.³¹; Charles Liebman (ed.), *Religious and Secular: Conflict and Accommodation between Jews in Israel* (Jerusalem: Keter, 1990). For a secular reaction see Uri Huppert, *Back to the Ghetto* (New York: Prometheus, 1988). The Orthodox voice that has gained most power has not been that of religious Zionism with its vision of societal harmony under the sovereignty of Jewish law. Instead it has been that of groups who explicitly see Orthodoxy as one sectional interest among others. Orthodoxy as a whole has moved towards more sectarian forms of organization and thought, and to adversarial stances towards secular culture and non-Orthodox Jewry. The dynamic of division and denomination, once introduced into Jewish life, is tenacious and self-reinforcing. Orthodoxy is driven to define itself increasingly as a movement of resistance, while those outside are progressively convinced that halakhah does not speak to their situation.

footnotes:
³¹ See Liebman and Don-Yehiya, Religion and Politics in Israel


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**Maggid Books, 2024:**
The most complex, haunting response to the crisis of halakhah and modernity was given by Rabbi Abraham Kook, himself an exotic combination of radical mystic and traditional halakhist. He wrote:


###### One People? Tradition, Modernity, and Jewish Unity, Chapter 8; Schism? 33
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**Maggid Books, 2024:**
Sometimes, when there is a need for a [temporary] transgression of the words of Torah and the generation lacks a figure who can show the [halakhic] way, the result comes about instead by rebellion [*hitpartzut*]. It is none the less preferable that it should happen by unwitting transgression. This is the basis for the principle “Better that they sin unwittingly than that they sin knowingly.” Only when prophecy exists in Israel is it possible to remedy the situation by a temporary ruling [*hora’at sha’ah*], so that the result occurs through permission and the open fulfilment of a religious command [*bederekh heter umitzvah begalui*]. When the light of prophecy is screened, the remedy [*tikun*] comes about through rebellion, which grieves the heart in itself, but gladdens it by its ultimate result.³², 15.

footnotes:
³² Kook, Arpelei Tohar


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**Maggid Books, 2024:**
These are remarkable sentiments; indeed, for an Orthodox thinker, they are unique.³³, but gladdens it *because of its inner essence*.” On this version, rebellion against halakhah might possess an inner sanctity. The antinomian potential of this remark is obvious, and the text was amended by the editors when the work was republished. See Binyamin Ish-Shalom, *Harav Kook: Bein Ratzionalizm Lemistikah* (Tel Aviv: Am Oved, 1990), 190–91 and 321, n. 115. On antinomian Jewish mysticism see Scholem, *The Messianic Idea in Judaism*, 78–141. They embody Kook’s conviction that Divine providence was at work in the changes being brought about by secularists; above all, the Jewish rebirth in the land of Israel. Yet they precisely pose the alternatives. How are halakhists to respond to a situation where Jewish law and life have drifted apart?

footnotes:
³³ In fact, in their original version they were more radical still. The last sentence in the quotation, for example, originally read: “When the light of prophecy is screened, the remedy comes about through rebellion, which grieves the heart because of its external form


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**Maggid Books, 2024:**
There are, as Kook notes, three possibilities. The first is temporary halakhic accommodation, *hora’at sha’ah.* The second is tactical silence, letting transgressors sin unwittingly. The third is active denunciation, which creates rebellion. One who fully believes in providence will have the faith that the results of all three strategies will be the same. That which Heaven wishes to happen will happen. But Kook leaves us in no doubt as to his preferred alternative, *hora’at sha’ah*, a temporary, emergency adjustment of the law to the times. He is equally clear as to why it is the route not taken. The generation is unworthy. The prophetic spirit is in eclipse. Halakhic leadership of that transcending order, he profoundly believed, lay in the future, not the present. Jewish law, in other words, cannot function with the full flexibility of tradition until it recovers its traditional constituency; until Jews once again become a people of halakhah.


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**Maggid Books, 2024:**
**TWO JEWRIES?**
Rabbi Kook leaves us with short-term pessimism and long-term optimism. The two ways in which a rift between Orthodoxy and others might conceivably have been avoided were routes not taken. Liberal Judaism did not adopt the approach of Rosenzweig. Orthodoxy did not take the path of Rabbi Hirschensohn. Kook’s pessimism has been vindicated. Has his optimism? Given the schismatic tendencies in contemporary Jewish religious life, what is the likely outcome?


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**Maggid Books, 2024:**
Two problems dominate all others: divorce and conversion. In Jewish law the requirements of *get*, a bill of divorce, are highly exacting, demanding great halakhic expertise. Already in the 1840s, however, German Reform was beginning to abandon the religious procedure of *get* altogether in favour of accepting a civil divorce as sufficient. Samuel Holdheim had argued that, with emancipation, “whatever has reference to interhuman relationships of a political, legal and civil character” was no longer the province of biblical or rabbinic law. Instead the rabbinic principle that “the law of the land is law” was to be applied.³⁴, 121–23. The entire structure of Jewish family law was to be dismantled. This became accepted practice in the American Reform movement.

footnotes:
³⁴ Graff, Separation of Church and State


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**Maggid Books, 2024:**
The problem that arises is this. If a woman remarries without obtaining a valid divorce from her first husband, her children by her second marriage are illegitimate, *mamzerim*, in Jewish law. Jewish law has a narrower definition of illegitimacy than most forms of secular law. A child is not illegitimate by being born out of wedlock. It is a *mamzer* only if born as the result of an incestuous or adulterous union. In the present instance, the woman is regarded as still married to her first husband until validly divorced. A new relationship is therefore adulterous, and children born from it are *mamzerim.* As such they carry a stigma with tragic consequences: they may not marry a legitimate Jew.


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**Maggid Books, 2024:**
The Reform abandonment of halakhic divorce thus creates a halakhic fact of illegitimacy which excludes children of remarriages from themselves marrying any but a minority of Jews. The potential for human grief is enormous. Why, though, if the problem has existed since the 1840s, has it only recently become critical? For two reasons. First is the unexpected persistence of both Orthodoxy and Reform. Within each group the problem does not arise. Within Orthodoxy, the requirement of *get* remains in place. Within Reform, the law of the *mamzer* was abandoned along with religious divorce. The problem arises at the boundaries: when a Reform Jew wishes to marry an Orthodox Jew. Neither group seriously contemplated this possibility. Orthodoxy saw Reform as destined for extinction by its rapid assimilation. Reform saw Orthodoxy as scheduled for eclipse by the inevitable tide of modernity. Each now realizes that the other has survived. The question of marriage across the boundaries is real.


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**Maggid Books, 2024:**
The second reason is the rising incidence of divorce itself. The Jewish community had traditionally been known for the stability of its marriages. In recent decades, however, the national divorce rate in America and other Western countries has risen sharply, and the Jewish pattern has more closely approximated the national norm (though still below it). By 1971, for example, the National Jewish Population Survey discovered that among the 25- to 29-year-old group, 15 per cent of all households were separated or divorced.³⁵ (London: Jews’ College Publications, 1986), 197. This, combined with the fact that non-Orthodox groups constitute a majority of American Jews, has led Irving Greenberg to estimate that there will be 100,000–200,000 *mamzerim* in America by the year 2000.³⁶ The figure has been challenged by the sociologist Steven M. Cohen as an overestimate,³⁷, 12:1 (1987), 11–17. but even he projects two thousand cases a year. The problem is qualitative as well as quantitative. Each case represents a potential tragedy. Each, too, adds to the likelihood of a complete schism between Orthodoxy and Reform, for it brings nearer the point at which, formally or informally, marriage across the divide will become precarious.

footnotes:
³⁵ Samuel C. Heilman, “The Jewish Family Today: An Overview,” in Jonathan Sacks (ed.), Tradition and Transition
³⁶ Greenberg, One Jewish People?
³⁷ Steven M. Cohen, “The One in 2000 Controversy,” Moment


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**Maggid Books, 2024:**
The second problem – that of conversion, or more generally “Who is a Jew?” – arises thus. According to Jewish law, to be a Jew is to be born of a Jewish mother. A halakhic procedure is necessary only for one who *becomes* a Jew, namely, a convert. The halakhic criteria of conversion are straightforward: immersion in a *mikveh,* circumcision for males, and *kabalat hamitzvot*, acceptance of the commands.³⁸ 13–14; *Shulchan Arukh*, *Yoreh De’ah* 268. The problem, however, arises with non-Orthodox conversions. In American Reform, for example, these often involve neither immersion nor circumcision. Even when both are undertaken, there is the question of acceptance of the commands. Since Reform denies the binding character of Jewish law, and even Conservative Judaism rejects some of its tenets, this will be questionable in most cases.³⁹, 3:26; *Igerot Mosheh*, *Yoreh De’ah*, i. 157, 160. In addition, the conversion procedures must be undergone in the presence of a court of law. One composed of non-Orthodox rabbis who dissent from fundamental principles of Jewish faith would not be halakhically recognized.⁴⁰ for Non-Orthodox Conversion,” *Tradition*, 23:2 (1988), 88–95. Finally, conversion must represent the acceptance of Judaism for its own sake, not for ulterior motive.⁴¹, *Yoreh De’ah* 268:12. Since many conversions outside Orthodoxy are prompted by prospective marriage to a Jewish partner, this too constitutes an obstacle to their recognition.

footnotes:
³⁸ Yad, Isurei Bi’ah
³⁹ See Achi’ezer
⁴⁰ See J. David Bleich, “Permitting Use of a Mikveh
⁴¹ Shulchan Arukh


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**Maggid Books, 2024:**
As with divorce, the problem is of long standing, but its impact is relatively recent. The key factor here is intermarriage between Jews and non-Jews. Intermarriage rates in American Jewry had been estimated as no more than 1 per cent in the 1920s. By the 1980s they had risen sharply. Rates varied from city to city, and according to age-group and educational background, but they converged on the figure of one in three. By 1991 a survey revealed that half of those married below the age of 30 had outmarried. Attitudes to intermarriage were also changing. The 1975 Boston survey revealed that acceptance of the phenomenon was growing rapidly; it had lost its taboo for the young. Those who married out were no longer inclined to see this as their exit from Judaism. They wished still to be identified as Jews.⁴², 23 (1987), 23–27. This posed a formidable problem for Reform, who were suffering most from the attrition.

footnotes:
⁴² The statistical evidence is surveyed in Jonathan Sacks, “Towards 2000: The American Experience,” L’Eylah


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**Maggid Books, 2024:**
A series of radical policies emerged. The requirements for conversion of the non-Jewish spouse were scaled down. An active outreach policy was developed towards the outmarried. What, though, of the cases where the non-Jewish partner is unwilling to convert? Although officially discouraged, some 40 per cent of Reform rabbis will officiate at mixed marriages where there has been no conversion of the non-Jewish partner. A further 30 per cent will not do so themselves, but will refer the couple to a rabbi who will.⁴³, 44.

footnotes:
⁴³ Bulka, The Coming Cataclysm


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**Maggid Books, 2024:**
The problem then arose as to the status of the children of such marriages. In 1983, the Reform rabbinate ratified its commitment to the principle of patrilineal Jewish identity, whereby a child is presumed Jewish if either of its parents is Jewish, the presumption being established by “timely and appropriate acts of identification with the Jewish faith and people.” This came close to an official acceptance of intermarriage, for even where the non-Jewish mother did not convert, the children could still be considered Jewish if they so chose. More even than in the case of divorce, the numerical impact of these policies is vast. Their tragic potential, too, is immense, for it means that by now some hundreds of thousands of individuals who have received Reform conversions or patrilineal Jewish identity, or are the children of women who have, consider themselves Jewish and halakhically are not.⁴⁴, 23:3 (1988), 60–74; and see below in the text.

footnotes:
⁴⁴ To be sure, Jewish status is not quite as sharply either-or as the argument in the text suggests. See Lichtenstein, “Brother Daniel and the Jewish Fraternity”; Moshe Yeres, “Burial of Non-Halakhic Converts,” Tradition


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**Maggid Books, 2024:**
It is over Reform policies on personal status more than any other issue that religious schism threatens Jewry. Jewish history records two precedents illustrative of the course of conflict. One is the tension between the schools of Hillel and Shammai, during which, according to the Talmud, “disputes multiplied and the Torah became like two Torahs.”⁴⁵ The Mishnah none the less records that “though one school prohibited and the other permitted, the schools of Hillel and Shammai did not refrain from marrying one another.”⁴⁶ on Yevamot 1:10. See, however, Yevamot 14a–b, Y. Yevamot 1:6, where several different explanations are given as to why the two schools intermarried despite the fact that they upheld different laws in relation to mamzerut. They are (1) that both schools in practice followed the ruling of the school of Hillel; (2) that divine intervention brought it about that neither school married individuals forbidden to them by their own rules; (3) that the two schools kept one another informed about disputed cases. A final breach was avoided.

footnotes:
⁴⁵ Sanhedrin 88b.
⁴⁶ Mish. Eduyot 4:8; Yevamot 1:4; Tosafot


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**Maggid Books, 2024:**
The other is the separation of Judaism and Christianity. In a recent scholarly study, Professor Lawrence Schiffman has shown that the earliest Christians were regarded by the rabbis as apostates but still Jews. “The ultimate parting of the ways for Judaism and Christianity took place when the adherents to Christianity no longer conformed to the halakhic definitions of a Jew.”⁴⁷ (Hoboken, NJ: Ktav, 1985), 77. When gentiles could become Christians without the halakhic requirements for conversion, the rabbis stopped seeing the members of the new sect as deviant Jews and started seeing them as members of a different and alien religious community. The rift was complete and final.

footnotes:
⁴⁷ Lawrence H. Schiffman, Who Was a Jew? Rabbinic and Halakhic Perspectives on the Jewish-Christian Schism


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**Maggid Books, 2024:**
The outcome of these two conflicts turned on issues of Jewish status and eligibility for marriage. The prospect is that the relationship between Orthodoxy and Reform in America is unlikely to follow the model of Hillel and Shammai. It is already advanced along the path taken by Jews and early Christianity.


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**Maggid Books, 2024:**
The problem exists primarily in America. Ironically, though, schism is likely to be precipitated by Israel, where there is no significant Reform presence. The reason is this. In American Jewry, as in other diasporas, there is no central Jewish authority recognized by all sides as having the competence to rule on matters of collective concern. Reform and Orthodoxy continue to drift apart, but there is no arena of confrontation. Instead, each operates within its own parameters. Orthodoxy, by definition, follows the rules of halakhah in both conversion and divorce. American Reform recognizes its own converts, and has abandoned the law of *mamzerut.* The problem, as we noted, arises only at the borders, when a Reform Jew and an Orthodox Jew wish to marry in a ceremony conducted according to halakhah. As the two communities continue on their separate, divergent orbits, these occasions grow rarer. Jewry can separate into two peoples slowly, gradually, and without a dramatic moment of denouement.


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**Maggid Books, 2024:**
The State of Israel, however, brings the problem into sharply delineated crisis. Central to its self-definition as the state of the entire Jewish people is the Law of Return. By this, any Jew who decides to live in Israel can become a citizen immediately without undergoing a naturalization procedure. As amended in 1970, the law defines as a Jew one born to a Jewish mother or one who has been converted to Judaism, but does not itself clarify what constitutes conversion. Since then there have been periodic attempts by religious parties to have the clause amended to read “converted according to halakhah.” Though this would affect only a handful of cases each year – Reform converts seeking Israeli citizenship – it would, by implication, constitute a declaration by the State of Israel of non-recognition of the American Reform and Conservative rabbinate, the largest denominations in the largest diaspora Jewish community. The most recent attempt to amend the law, following Israel’s 1988 general election, sent shock waves throughout the Jewish world. The attempt was abandoned, but not without exposing deep tensions between Orthodoxy and others and between Israel and the diaspora, normally quiescent but capable of sudden volcanic eruption. The moment revealed how tenuous and fragile Jewish unity is.


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**Maggid Books, 2024:**
**RESOLUTIONS**
How, then, are these crises likely to be resolved? The problem of divorce and illegitimacy is potentially the more intractable, for the disability of *mamzerut*, once acquired, cannot be removed and is transmitted to future generations. None the less, a solution exists within halakhah. It is the *character of* the solution, though, which deserves careful analysis. It is a classic example of what I have called halakhic inclusivism. For this reason it collides headlong with pluralist sensibilities.


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**Maggid Books, 2024:**
The late Rabbi Moses Feinstein, the leading halakhic authority of his generation, delivered a ruling in 1956 which at a stroke dissolved the problem of the status of children of Reform second marriages.⁴⁸, vol. i, no. 76. See also nos. 75, 77. Reform marriages, he ruled, were not halakhically valid. Therefore they needed no valid divorce. It followed that children from remarriages were not *mamzerim.*

footnotes:
⁴⁸ Igerot Mosheh


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**Maggid Books, 2024:**
It was a bold piece of reasoning. The marriage ceremony itself could be invalidated if it was not observed by two witnesses qualified to testify in a Jewish court. Since those present were likely to be Reform Jews themselves, it was probable that they transgressed Jewish law in ways that disqualified them as witnesses. Rabbi Feinstein’s innovative reasoning, though, was that even the subsequent cohabitation did not establish marriage. Previous authorities had held that regardless of the validity of the ceremony, the fact that the couple openly proceeded to live together established marriage by cohabitation. Rabbi Feinstein’s reasoning was that this was so only where there was intent. Here, however, cohabitation cannot have been intended to establish the marriage, since everyone assumed that the marriage had already been established by the synagogue ceremony. This ruling, if generally adopted, had the consequence of solving the entire problem of divorce and halakhic illegitimacy arising from Reform marriages.


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**Maggid Books, 2024:**
Its formal structure is typical of the inclusivist strategy. It includes individuals by delegitimating ideologies. By, in effect, annulling all Reform marriages, it vitiated the need for divorce. It freed the Reform divorcée to marry an Orthodox man in an Orthodox synagogue, and it removed illegitimacy from the children of remarriages where the first marriage had been conducted under the auspices of Reform. Its reasoning, too, was consistent. By abolishing the need for halakhic divorce, the Reform rabbinate had established that their ceremonies were not intended to create halakhic marriage. They formalized a union of a kind, but not a union “according to the laws of Moses and Israel.” Rabbi Feinstein’s ruling utilized the Reform abandonment of halakhah to establish a stunningly inclusivist conclusion. If a Reform marriage did not create a positive halakhic fact, neither could it create a negative one.


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**Maggid Books, 2024:**
The ruling scandalized many, though not all, of the non-Orthodox rabbinate. Some, like Eugene Borowitz, recognized its beneficial consequence in removing one of the major barriers across the religious divide. Others, however, were affronted, for it proposed to view Reform marriages as halakhically non-existent. One leading Conservative theologian described the responsum as “politics masquerading as religion.” Another declared that the cure was more harmful than the malady.⁴⁹, 8 (1989), 289–99. The ruling met the fate of all inclusivist strategies when they encounter pluralist consciousness. It was held to be a denial of Reform’s authenticity and self-evaluation. Indeed it was, for this is how the inclusivist avoids schism.

footnotes:
⁴⁹ David Novak, “A Response to the Recent Proposal of Rabbi Dr. Sidney Brichto,” Jewish Law Annual


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**Maggid Books, 2024:**
The responsum and the reactions it arouses are a test case of the fraught encounter between inclusivism and pluralism. What is at stake? Traditional and modern consciousness at their point of deepest difference, namely objectivity, self, and the description of action. Traditional consciousness, of which halakhah is a supreme example, takes the historic community and its norms as definitive. In the case of Judaism, an act has religious significance if and only if it meets the objective requirements of religious law. No subjective consideration can endow an act with religious properties if it lacks the necessary halakhic requirements. Thus Rabbi Feinstein was able to rule that Reform marriages fail to meet the criteria of a union terminable only by a halakhic divorce. Modern consciousness, however, grants the self authority over the description of its acts. The couple have married since that was their intention and since they and the officiant believed that the ceremony would have this effect.


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**Maggid Books, 2024:**
How then should one proceed when two incommensurate worlds conflict? The answer, I suggest, is that *decisions should be judged by their consequences, not by the construction placed upon them.* It is not the formal strategy of Rabbi Feinstein’s ruling that should be considered, but its effects. On the internal workings of Reform, it had no effect whatsoever. Those who married and divorced within the movement looked for their legitimation not to halakhic authorities but to the Reform rabbinate. The validity of their marriages, within their own terms of reference, was unaffected. On the internal workings of Orthodoxy, likewise, Rabbi Feinstein’s ruling had no effect. It related to Reform marriages, not Orthodox ones. Its impact was solely at the boundary: where a Reform Jew and an Orthodox Jew sought to marry. There its consequence was unequivocally benign. It enabled the marriage to take place without halakhic obstacle. It achieved what all parties sought.


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**Maggid Books, 2024:**
To be sure, it implied Orthodox non-recognition of the Reform rabbinate. But the Reform rabbinate does not seek to derive its legitimacy from Orthodox recognition. Its self-definition is unaffected, and on its own principles, self-definition is pluralism’s supreme value and human right. Reform protests against the ruling are therefore misconceived. Judging decisions by their consequences, not by their intent or inner logic, would remove much of the pain of confrontation. This is not to say that the end justifies or legitimates the means. It does not. The Jewish tradition is concerned with consequences,⁵⁰ 2:4). The positive consequences outweigh the negative. but not to the point of making them the sole criterion of action. None the less, the recognition that even approaches with which one fundamentally disagrees may have results that one can welcome is a route to partial reconciliation. When total reconciliation is impossible, this is not an insignificant achievement.

footnotes:
⁵⁰ The most famous example is the logic behind the rule that saving a life overrides the laws of the Sabbath: “Let one Sabbath be broken in order that many be kept in the future” (Yoma 85b). Consequentialism also underlies Maimonides’ explanation of the rule that the court may order the temporary suspension of a biblical law in order to restore the rule of biblical law generally. It is, he writes, like amputating a limb in order to save a life (Yad, Mamrim


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**Maggid Books, 2024:**
The problem of conversion and patrilineal status is less easily resolved. There have been calls by Reform, Conservative, and Orthodox religious leaders for a reversal of the American Reform rabbinate’s decision on patrilineal descent and for a unified conversion procedure and court.⁵¹, 11:5 (1986), 58–61; Bulka, *The Coming Cataclysm*; Norman Lamm, “Seventy Faces,” *Moment*, 11:6 (1986), 23–28; Haskel Lookstein, “Mending the Rift: A Proposal,” *Moment*, 11:3 (1986), 58–61. A similar proposal was made in England by the Liberal Rabbi Sidney Brichto, “Halakhah with Humility,” *Jewish Chronicle*, Oct. 2, 1987, 29. For responses to Brichto’s proposal see the articles by Louis Jacobs, Moshe Zemer, Berel Berkovits, and David Novak in *Jewish Law Annual*, 8 (1989), 253–99. It is hard to see how either will become possible. Compelling institutional logic led American Reform to its policy of accommodation towards mixed marriages. Now that these comprise one in two marriages involving young American Jews, a more stringent policy would cause massive depletions in Reform’s numbers.

footnotes:
⁵¹ See Petuchowski, “Plural Models within the Halakhah”; Robert Gordis, “To Move Forward, Take One Step Back,” Moment


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**Maggid Books, 2024:**
A unified conversion procedure, quite apart from the problems it would raise as to the composition of the rabbinical court, would be shipwrecked on the rock of the requirement, on the part of the convert, for “acceptance of the commands.” It is difficult, perhaps impossible, to envisage a criterion that would simultaneously satisfy Reform and Orthodox interpretations of that phrase. Admittedly there have been thinkers, notably Eliezer Berkovits, who have advocated extreme leniency.⁵², 106–12. The condition itself is left vague in the halakhic literature. Historically and currently, different rabbinic courts have adopted different policies.⁵³, vol. i, no. 23; and see also the fuller exposition, ibid., vol. iii, no. 29. On the general history of conversion policies in Judaism see William G. Braude, *Jewish Proselytizing* (Providence, RI: Brown University, 1941); Bernard Bamberger, *Proselytism in the Talmud* (New York, 1968); Joseph R. Rosenbloom, *Conversion to Judaism* (Cincinnati: Hebrew Union College Press, 1978). Some, most notably the Israeli rabbinate, have been less demanding than others,⁵⁴ (Israel, 1989) (no publisher or author’s name given). while some, the Sephardi Syrian community, for example, have at times refused to accept converts at all.⁵⁵, 23:2 (1988), 22–25. The Talmud, in a famous passage, records a series of instances in which Hillel accepted as converts individuals whom Shammai had driven away.⁵⁶ Hillel, according to Rashi and the Tosafists,⁵⁷; *Tosafot* on Yevamot 109b, s.v. ra’ah. relied on his own judgement that they would eventually accept the whole of Jewish law even if they did not do so now. On this basis Rabbi Joseph Caro ruled that conversion, in such doubtful cases, was left to the discretion of the court.⁵⁸ on *Tur*, *Yoreh De’ah* 268, and see *Aseh Lekha Rav*, vol. i, no. 23. In theory, then, grounds for leniency exist.

footnotes:
⁵² Berkovits, Not in Heaven
⁵³ See Aseh Lekha Rav
⁵⁴ This, though, has not been without controversy. See Sha’arurit Hagiyurim Hamezuyafim
⁵⁵ See S. Zevulun Lieberman, “A Sephardic Ban on Converts,” Tradition
⁵⁶ Shabbat 31a.
⁵⁷ Rashi on Shabbat 31a, s.v. gayereih
⁵⁸ Beit Yosef


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**Maggid Books, 2024:**
But this discretion accorded to rabbinic courts requires that each case be treated in its context. Is there a sincere desire to accept Judaism for its own sake? Are there grounds for the belief that the convert will ultimately accept its religious obligations? If not, conversion is not a benefit conferred by the court but a liability. As the Talmud puts it, joining the Jewish people involves heavy duties and participation in what has often been a tragic fate, neither of which can be lightly undertaken. For the sake of the individual concerned, the court must act responsibly and with integrity, unmoved by demographic or institutional policy. Courts in Israel have taken into account the fact that a convert who lives there will be surrounded by a Jewish culture and society in which halakhic norms govern major sectors of public life. Precisely this is absent in the diaspora situation where the problem of Reform conversions arises. There neither the public secular culture nor the values of liberal Judaism are supportive of halakhic practice. The same argument – defining “acceptance of the commands” in terms of an anticipated future – militates in favour of a more open policy in Israel and a more restrictive one in the diaspora. Grounds for leniency cannot be transferred from one context to another.⁵⁹, 8 (1989), 269–88.

footnotes:
⁵⁹ See, e.g., Berel Berkovits, “Comments on Rabbi Dr. Brichto and Rabbi Dr. Jacobs,” Jewish Law Annual


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**Maggid Books, 2024:**
The most important single step to avoid schismatic confrontation would be, instead, to remove the question of “Who is a Jew?” from Israel’s political agenda. This has been advocated by, among others, Lord Jakobovits and Rabbis J. David Bleich and Nachum Rabinovitch.⁶⁰ (London: Vallentine, Mitchell, 1977), 215–17; Nachum Rabinovitch, “On Religion and Politics in Israel,” in Jonathan Sacks (ed.), *Orthodoxy Confronts Modernity* (New York: Ktav, 1991), 123–35; Bleich, “Parameters and Limits of Communal Unity.” Jewish status, as a halakhic issue, is beyond the competence of Israel’s secular parliament and agencies to determine. It is to be decided by rabbinic courts alone. The Law of Return could then be amended to apply to born Jews only, with the further stipulation that “state officials, without in any way passing judgement on matters of halakhah,” might consider “even technically invalid conversions as evidence of a convert’s sincere desire to identify with the aspirations and common destiny of the citizens of the State of Israel.”⁶¹

footnotes:
⁶⁰ See Immanuel Jakobovits, The Timely and the Timeless
⁶¹ Bleich, “Parameters and Limits of Communal Unity,” 36.


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**Maggid Books, 2024:**
This would not amount to a solution of the problem, but to a decision to let it remain unresolved. Perhaps at present it is insoluble. It may be that contemporary Jewry is in the not unprecedented situation whereby the Jewish status of particular groups is for a time in doubt, as occurred in the case of the Samaritans, Idumeans, early Jewish Christians, and Karaites. At times there were half-converts, variously described as “God-fearers,” “devout ones,” or “worshippers of God,” who appear to have accepted some of Judaism’s laws and tenets but not others.⁶², 42–43, 51 and the literature cited there. Josephus speaks of Greeks who accepted Judaism but who, “lacking the necessary endurance, have again seceded.”⁶³, 2:123, quoted ibid. 48. At such times there is no single answer, agreeable to all sides, to the question “Who is a Jew?”

footnotes:
⁶² See Rosenbloom, Conversion to Judaism
⁶³ Josephus, Against Apion


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**Maggid Books, 2024:**
In the context of a legal exposition,⁶⁴ 13:14–16. Maimonides writes that during the reign of David and Solomon no converts were officially accepted, the presumption being that applicants were driven by ulterior motives. None the less, many were unofficially converted by *hedyotot*, “laymen.” The supreme court held open the possibility that these conversions might be valid, “neither driving them [the converts] away since they had immersed themselves, nor drawing them close,” until the course of time proved their sincerity or lack of it. Here then was an instance where the Jewish status of certain individuals was indeterminate and only became clarified by their subsequent behaviour.

footnotes:
⁶⁴ Yad, Isurei Bi’ah


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**Maggid Books, 2024:**
For the foreseeable future, therefore, it may be that the problem of patrilineal Jews and non-Orthodox converts will simply be dealt with on a case-by-case basis when such individuals seek Orthodox recognition.⁶⁵ (Hoboken, NJ: Ktav, 1987); Nachum Rabinovitch, “Kol Yisrael Arevin Zeh Bazeh,” *Techumin*, II (1991), 41–72. Nor is it necessarily the case that a non-Orthodox conversion has no Jewish significance even though it lacks halakhic validity. I noted Rabbi Bleich’s suggestion that such conversions might be taken, by the Law of Return, as prima-facie evidence of identification with the State of Israel and its citizens. In respect of the laws of burial, some halakhists have suggested that a non-Orthodox convert is not to be classed as a non-Jew.⁶⁶ One writer has suggested a distinction between *shem Yisrael* and *kedushat Yisrael*, roughly speaking, between “intermediate Jewish identity” and full halakhic status.⁶⁷

footnotes:
⁶⁵ One option recently explored by halakhists is the conversion of children, while still minors, born to mothers whose Jewish status is not halakhically recognized. See Jack Simcha Cohen, Intermarriage and Conversion: A Halakhic Solution
⁶⁶ The literature is surveyed in Yeres, “Burial of Non-Halakhic Converts.”
⁶⁷ See ibid., 73 n. 44.


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**Maggid Books, 2024:**
Indeed, Rabbi Joseph Soloveitchik has related conversion to the broader issue of Jewish identity in modern times.⁶⁸, 9–56. The process of conversion has two elements, best summarized in the words of Ruth to Naomi, “Your people shall be my people and your God my God.” Jewry is a people defined by a religion. Therefore to become a Jew involves both an acceptance of the commandments and an identification with a people. According to the Talmud, a prospective convert is instructed on both counts. He or she is told of Israel’s history (“persecuted and oppressed, despised, harassed, and overcome by afflictions”) and informed of its commands. These represent the two covenants, of Exodus and Sinai, or fate and destiny, which together constitute Jewish existence. The two elements of the conversion process themselves reflect this duality. The act of circumcision symbolizes entry into a people (the covenant of fate) while immersion signifies acceptance of the commands (the covenant of destiny). Rabbi Soloveitchik argues that today Jewry is united by a sense of shared fate, but not yet by a collective religious destiny. Following his analysis through to its conclusion, one might say that the gesture implicit in a non-Orthodox conversion – a desire formally to be included within the Jewish people – is not without its positive significance even though it may possess no halakhic validity.

footnotes:
⁶⁸ Soloveitchik, Divrei Hagut Veha’arakhah


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**Maggid Books, 2024:**
Nor is this an academic speculation only. No clearer demonstration could have been provided than this: that there were few Jews worldwide who were not moved and enthralled by the recent immigration to Israel of the Jews of Russia and Ethiopia, despite the fact that in both cases, for different reasons, there were considerable doubts about their halakhic status as Jews. The sense of Jewish peoplehood is sometimes wider, deeper, and stronger than the parameters of halakhah would suggest.⁶⁹, 12 (1992), 98. Rabbi Feinstein writes: “Even if according to law [the Jews of Ethiopia] are not Jews, none the less *since they regard themselves as Jews and are willing to make self-sacrifices for their Judaism*,” they are to be saved as Jews even though they require conversion.

footnotes:
⁶⁹ See esp. the responsum of Moshe Feinstein published in Techumin


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**Maggid Books, 2024:**
**A DIVIDED UNITY**
What emerges from the developments surveyed in this chapter is a not unremarkable paradox. The most significant propositions about modern Jewry concern not what has happened but what has not happened. On the one hand Jews did *not* take the two available paths that might have pre-empted religious schism. Liberal Judaism did not adopt Rosenzweig’s “not yet” approach to halakhah. Orthodoxy did not take Rabbi Hirschensohn’s path to halakhic innovation. These facts testify to the unabated divisions of contemporary Jewry and to a fragmentation too deep to be contained within the boundaries of tradition, however conceived.


###### One People? Tradition, Modernity, and Jewish Unity, Chapter 8; Schism? 68
[One People? Tradition, Modernity, and Jewish Unity, Chapter 8; Schism? 68](https://torahapp.org/share/book/One%20People%3F%20Tradition%2C%20Modernity%2C%20and%20Jewish%20Unity/s/Chapter%208%3B%20Schism%3F/r/68)

**Maggid Books, 2024:**
On the other hand, on the edge of the abyss, Jews did *not* proceed to schism. Rabbi Feinstein might, on grounds of halakhic principle or policy, have ruled that the children of Reform second marriages were *mamzerim.* Orthodox parties in Israel might have pressed to its conclusion their claim for an amendment to the Law of Return. Above all, Orthodoxy might have taken the route contemplated by Rabbis Moses Sofer⁷⁰, vi. 39. and Zvi Hirsch Chajes,⁷¹, 975–1031. that of declaring Reform Jews to be non-Jews with whom it was forbidden to marry or mix. That none of these occurred testifies to the continuing power over the Jewish imagination of the idea of “one people.”

footnotes:
⁷⁰ See Chatam Sofer
⁷¹ Chajes, Kol Sifrei


###### One People? Tradition, Modernity, and Jewish Unity, Chapter 8; Schism? 69
[One People? Tradition, Modernity, and Jewish Unity, Chapter 8; Schism? 69](https://torahapp.org/share/book/One%20People%3F%20Tradition%2C%20Modernity%2C%20and%20Jewish%20Unity/s/Chapter%208%3B%20Schism%3F/r/69)

**Maggid Books, 2024:**
Rabbi Kook, playing on the talmudic saying that the messiah would come to a generation that was either wholly righteous or wholly wicked, once asked what could be said of his own unique generation, which was *both* wholly righteous *and* wholly wicked.⁷² (Jerusalem: Mosad Harav Kook, 1967), 108. Today’s Jewry is both uncompromisingly divided and unprecedentedly united: divided by religious difference, but united by a powerful sense – reinforced by the Holocaust and the State of Israel – of a shared history, fate, and responsibility. In this tense equilibrium between opposing forces, Jewry faces its as yet uncertain future.

footnotes:
⁷² Abraham Isaac Kook, Eder Hayakar Ve’ikvei Hatzon