Open orthodoxy! A modern Orthodox rabbi's creed

Judaism, Fall, 1997 by Avraham Weiss

Halakhic Principles

As a modern orthodox rabbi, I profess an unequivocal commitment to the truth, validity and eternal applicability of the Halakhic system.(1) No less than my brethren of the Orthodox Right, I believe in Torah mi-Sinai, the law given by God at Sinai, to which the Jewish people committed itself.(2) Torah mi-Sinai is a form of heteronomous law, a structure of law that operates independent of any individual, imposing its standards and guidelines.

Torah mi-Sinai reflects a system of God-ethics, that is, a system of ethics that comes from God. Halakha (from the root halokh, "to go,") is not blind; it rather guides us and is the mechanism through which individuals and society can reach an ideal ethical plateau - "Its ways are ways of pleasantness, and all its paths are peace" (Proverbs 3:17).(3) One of the challenges of halakha is to understand its ethical message, i.e., how does the law contribute to the repairing of the world (tikkun olam).

The system of God-ethics differs from ethical humanism, which is solely based on what human beings consider to be proper conduct. Human thinking tends to be relative. What is unethical to one person is ethical to another. If, however, the law at its foundation comes from God, it becomes inviolate. No human being can declare it null and void. Heteronomous law assures that one does not succumb to one's subjective notions.(4) Therefore, the law must be kept even when its ethical underpinnings are not understood.

Aside from Sinaitic law, there are laws that are non-Sinaitic. Halakha is a partnership between God-given law and laws based on the biblical mandate: "And you shall rise and go to the judge of your day" (Deuteronomy 17:10).

This verse in part refers to laws that are logically deduced by the rabbis from the Torah or from the thirteen hermeneutic principles given at Sinai. These laws are interpretive in nature (ha-dinin she-hoziu al darkhei ha-sevara). While they were set down by the rabbis, they have biblical status (de-Oraita), since they emerge from the Torah.(5)

The fundamental difference between Sinaitic law and non-Sinaitic law, according to Maimonides, is that laws from Sinai, coming as they do directly from God, are free from controversy. There is only one view on every issue. Non-Sinaitic law, on the other hand, which is the result of rabbinic interpretation, is subject to controversy.(6) After all, two rabbis of equal piety, intellectual ability, or stature may disagree - and both may be correct.

Thus, Halakha has a degree of flexibility. While bordered by a system that is external to humankind - the God-given law, Torah mi-Sinai, to which Jews are subservient - it also includes laws derived by the rabbis, concerning which there may be more than one view. It follows, therefore, that Halakha is a living structure that operates within absolute guidelines, yet one which is broad enough to allow significant latitude for the posek (decisor) to take into account the individual and his or her circumstances. Simply put, within airtight parameters, Halakha is flexible.

In the same framework, all those who hold to Orthodoxy contend that "new Halakha," which emerges constantly from the wellspring of the halakhic process, must always be based on the highest caliber of religio-legal authority. There must be an exceptional halakhic personality who affirms the new ruling on the grounds of sound halakhic reasoning.

Rabbinic laws legislated by the Rabbis form a third area of Halakha. They include: decrees (gezeirot), ordinances (takanot), and customs (minhagim), which are "made" by the rabbis and are deemed rabbinic in nature. It must be clear, however, that decrees and ordinances, and for that matter "permissive customs," even if they have the imprimatur of leading poskim, can only be viewed as binding if they are accepted by the religiously observant community; they cannot be viewed as binding if they are only accepted by those who are, in any case, not committed to observing the law.(7)

To be sure, I readily acknowledge that there exist differences in approach within the Halakhic system among the Modern Orthodox rabbis like myself and my Orthodox Right counterparts. For example, Modern Orthodoxy more readily sees Halakha as flexible within rigid parameters than the Orthodox Right. Additionally, in halakhic observance the Modern Orthodox community is more open to halakhically-grounded innovation - like the institution of Yom Hashoah as a day commemorating the Holocaust - while the Orthodox Right is wary of virtually all innovation, fearful that it will lead to a breakdown of halakhic norms. Moreover, Modern Orthodoxy distinguishes between humra - stringency - and Halakha, recognizing that when humra becomes Halakha, it blurs the Halakha by redefining the line of the permissible and the prohibited. Still, despite variations in style and approach, the system that we hold as holy sets us fundamentally apart from our Conservative co-religionists whose vision of the Jewish legal process is so very different in each of these three fundamental areas of Halakha: Torah mi-Sinai, rabbinic interpretation, and rabbinic legislation.