Originally published in the Journal of Law and Religion, 17:1/2 (2002), pp. 133-5.
A Tree of Life. Diversity, Flexibility, and Creativity in Jewish Law. By Louis Jacobs. London: The Littman Library of Jewish Civilization 2000. Pp. xxxii, 311. $27.95. ISBN: 1-874-77448-X.
This book is one of the few works on the nature and development of Jewish law written from a Conservative point of view, and it can be seen as a “classic” besides Joel Roth’s The Halakhic Process in this regard. The Conservative approach considers traditional Jewish law (halakhah) important and binding but stresses the historical development and flexibility of halakhah from rabbinic to modern times. Against the traditional Orthodox approach which believes in the Divine nature and unchangeability of Jewish law, Jacobs presents an approach to halakhah which is based on non-fundamentalist premises but nevertheless faithful to the halakhic tradition of the past. He tries to show that the traditional halakhists were flexible in their decisions and creative in their adaptation of halakhah to present circumstances. They were not objective scientists but people of their times, consciously or subconsciously guided by extra-halakhic principles, values, and beliefs.
Already in rabbinic times, halakhah never existed in separation from aggadah. The legal tradition was rather
influenced by the attitudes, conscious or unconscious, of its practitioners towards the wider demands and ideals of Judaism and by the social, economic, theological, and political conditions that occur when the ostensibly purely legal norms and methodology are developed. (3)
The “aggadic” context of rabbinic legal traditions is given a very broad meaning here: it stands for the halakhah’s embeddedness in the larger social, political, ideological context of its time. This broad scope is continued throughout the book, whose task is “to show how considerations other than purely halakhic ones have been determinative both in the original formulation of many of the laws and in their subsequent development; that, in other words, there is a history of the halakhah.” (3)
Another major aspect to be taken into consideration besides the historical nature of the legal traditions is their diversity, which is the result of debate and controversy evident on every page of the Talmud. Traditionalists, for whom the Talmud has always been the last court of appeal, usually fail to understand that the written fixation of halakhah is the “end product of a very lengthy process” of dynamic adaptation and creation: “The notion of development is built in, as it were, to the system . . . .” (14) Much of the legal material found in the Talmud was formulated for theoretical purposes and intellectual speculation only and not destined to become an unerring guide for practical application. In addition, the literary nature of the Talmud has to be taken into account: nobody would try to extract English law from English literature, but with the Talmud this has often been the case.
Jacobs goes on to show that even in post-Talmudic times until the time of the Enlightenment halakhic scholars often did not stick to the letter of the Talmud but adapted its rulings in a creative and flexible way, guided by their own values and assumptions and the specific needs of their time. An example for this flexibility are the many exemptions and extensions already found in rabbinic literature and continued in the Middle Ages. Halakhic scholars did not function in a vacuum but were always to some extent influenced by particular values and beliefs. Just as the rabbis of the first centuries C.E. had to come to terms with Graeco-Roman culture, Maimonides’ work bears the marks of his philosophical stance. Many of the most influential halakhists were as much interested in halakhah as a philosophical discipline as they were in its practical application and their methodology would “derive ultimately from the philosophical rather than the legal tradition.” (58)
The German mystics of the twelfth and thirteenth century (hasidei ashkenaz) would blend mysticism and law, and the later Hasidim developed a halakhic system strongly influenced by the Kabbalah. Both the necessity of maintaining relations with Gentiles and the need to combat sectarianism and idolatry led to rules and regulations based on compromises with the surrounding culture. Especially in modem times social changes, new inventions and discoveries, as well as ethical considerations necessitates halakhists to reexamine earlier sources and to apply them to new situations in a creative way. From rabbinic times onwards, local custom and actual practice (minhag) have been taken into account. They were considered as decisive or even more decisive than theoretical legal traditions which they would often override.
The examination of the various extra-legal concerns which guided traditional halakhists’ decisions is meant to emphasize the flexibility in Jewish law of the past and to point towards the non-fundamentalist dynamic approach to halakhah which Jacobs advocates. He is aware of the fundamental difference between traditional halakhists and modernist thinkers such as himself, namely, whether the Torah and Talmud literally represent the word of God and are therefore infallible or whether they are the result of a historical process in which human beings played a role as well. Jacobs suggests to understand revelation as “a complicated and complex process of divine-human encounter and interaction” (224) which accounts for the human impact on the formulation and interpretation of God’s will in the literary sources available to us. Accordingly, the halakhah must be understood as a “living corpus” (231) which requires the creative thinking of future generations able to respond “both intellectually and emotionally to the challenges and needs of the age.” (231)
The questions which arise out of reading Jacobs’ book are questions which concern Conservative legal thinking in general: If the fundamentalist premises of Orthodox halakhists are abandoned, on the basis of which authority are changes made? Jacobs himself is aware of the problem that if communal practice or scientific developments are taken as the main criteria for change, halakhah may become entirely subservient to changes within secular society. The relationship between the authority of the traditional legal sources and the authority of the various aspects of modem life needs to be determined in a more precise way.
Connected with the question of authority is the question of the limits of flexibility. The traditional post-Talmudic halakhists’ flexibility was limited by their belief in the ultimate correctness and bindingness of the prior biblical and rabbinic sources. They were creative in their adaptation of halakhah but remained within the parameters set by the tradition. If the ultimate authority of the tradition is given up and other broad and undefined criteria such as general values, habits, and social conventions are considered relevant as well, the flexibility of legal decisions may become interminable.
Despite these open questions Jacobs succeeds in an admirable way in his self-imposed task of developing “a theory of halakhic change for those who are loyal to the halakhic tradition and yet accept modem values,” (xxxii) a task which will probably continue to occupy Conservative and Modem Orthodox thinkers for generations to come.
Al and Felice Lippert Professor of Jewish Studies, Trinity College, Dublin, Ireland.