Law & Linguistics (which even though it sounds so, is not the title of a University course)

Progressive Jews refer to Jewish law/Halacha relatively frequently. For a quick and imminent example, check out today’s Mishnah Day email from the URJ’s Ten Minutes of Torah series.

For those playing the home game, progressive/Reform Judaism (at least institutionally) does not accept Halacha as theologically binding. As Rabbi Mark Washofsky, one of the foremost scholars on Judaism and Jewish Law notes, “we do not regard halakhah as a process which yields mandatory conclusions.

I don’t want to debate whether or not Jewish Law/Halacha has merit as an institution. I happen to think it does. But I was struck today with what I think is an odd realization…

Question: Is it contradictory – or at the very least, confusing – for progressive Jews to acknowledge that there is an institution called “Jewish Law,” while simultaneously stating that it is not mandatory?

When we call something a law, we implicitly indicate that it is mandatory. Yet Washofsky writes that Reform Jews have their own “unique approach to halakhah.” Hmmm.

I can think of no other example of a group of people that has a body of optional laws, or laws that can obeyed or not obeyed depending on the unique approach to them by individuals. If such a group exists, they certainly don’t wouldn’t call such an institution “laws”.

Of course, civil courts have laws which can be challenged, updated, appealed, repealed, and interpreted in different ways by judges so as to set legal precedent. But in any given moment, for example, Canadian Law as a body isn’t open for individual interpretation. That’s why it’s called “The Law” and not “The Suggestion”. A citizen can’t decide for themselves (without legal ramifications) that theft is justified, even if they’ve studied criminal law ad nauseum.

This is not all to say that Reform/progressive Jews should follow Jewish law in its entirety. That’s not my place to suggest. This is also not to say that Halacha – as a humanly created system – shouldn’t be open to interpretation by humans. I think it should. I also think that any humanly created legal system that is held to the immutable standards that halachah is by Orthodox Jews borders on idolatry and more often than not misses the point of having the legal system in the first place.

What I am suggesting is that there is a linguistic difficulty in calling something that is not binding “The Law”. If, as Washofsky suggest, Jewish Law is “a discourse, an ongoing conversation through which we arrive at an understanding,” then perhaps we shouldn’t be calling it “Law” (at least in English). Perhaps we need another term.

In Hebrew, “Halachah” means “The Way” or “The Path.” Even these translations imply a singular reality, and not the pluralistic approach Washofsky suggests.

If we agree that Jewish Law has a role within progressive and Reform Judaism, it’s time to give it an appropriate name that reflects its role. I’m not a legal scholar or a linguist, so I’m not sure yet sure what is the right word/phrase to use, but I am certain that the language we’re using now doesn’t reflect the praxis that exists on the ground by the majority of progressive/Reform Jews.

An additional thought – a new term may even encourage more people to study and engage with what we call Halacha. Jewish Law as a term is heavy and can be scary unless you’re open to accepting that Law = a binding system.

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3 thoughts on “Law & Linguistics (which even though it sounds so, is not the title of a University course)

  1. Jordan Helfman says:

    Just because one refers to something as a ‘Code of Law’ doesn’t meant that one has to follow those laws. For instance, you made reference to Canadian Law. I can still refer to Canadian Law as ‘Law’ but feel no compunction to follow it.

    But what if I am a Canadian? After all, it is Jewish Law we’re referring to, and we are Jews.

    The way I currently think about Halacha is as if I am a Canadian living in the United States… (hypothetically, because I would could never claim the honour which comes with Canadian-ness) I know Canadian Law, and can refer to it as a reference as to how I live my life, but I am not bound by it.

    Similarly, I am a Jew living in modernity. I (study to) know Jewish Law, but am not longer living in the Medieval Jewish community it was meant to apply to.

    In modernity I reference Jewish Law and it can be a guide as to how to live my life… but I don’t feel bound by it, even though I do recognize it as ‘Law.’

    • Jordan,

      Your analogy of Halacha being similar to Canadian Law to a Canadian living in the US is interesting, but it assumes that the problem is two competing legal systems that may apply at different times, and not the fact that at least one of them is legally binding as the “Law”.

      Bottom line – we’re Jews and we have something called “Jewish Law”. If we agree that it has the characteristics of a legal system but we don’t consider it binding upon us, we shouldn’t call it “Law”.

      Your point about Jewish law only being binding in antiquity is much more convincing, yet it doesn’t seem to reflect how many progressive/Reform Jews relate to halacha these days, and Washofsky certainly doesn’t seem to agree with it. He argues that Jewish Law has an ongoing relationship with our daily lives even in modernity.

      If – for us – Halacha was the Law and is no longer applicable at all, then I’m ok calling it Jewish Law. Perhaps we should then call it “Ancient Jewish Law”.

      But if Halacha is still applicable to the modern progressive Jew and can still guide us in our daily life – which you too suggest – even in a non-binding way, then it exists in some grey area. If this is the case – which I think it is – then, I don’t think “Law” is the right word to use.

  2. Question: Is it contradictory – or at the very least, confusing – for progressive Jews to acknowledge that there is an institution called “Jewish Law,” while simultaneously stating that it is not mandatory?

    Contradictory? No. A progressive Jew might designate a certain practice or system as “Jewish law” while having no part of it, by the same right as he or she might use the term “canon law” with reference to the legal system of the Catholic church while regarding the latter as having no application to himself or herself.

    Confusing? Yes, because anyone who professes Judaism must acknowledge this practice or system to be in some respect “ours,” as canon law can never be. (I say “anyone who professes Judaism” to distinguish those Jews who adhere in some fashion, however tenuous, to Judaism from those for whom being Jewish is purely a matter of descent and ethnicity. I have seen the technical term “Judaist” used for this purpose, but it is a rather unattractive word and is not, I think, widely used. Hereafter, I will simply use the word “Jew” with this qualification to be understood.)

    For my part, when writing for Jewish readers or speaking to Jewish interlocutors, I prefer to use the term “halacha,” not so much as a technical or idiomatic term (I am not competent to explain the nuances of its meaning in Hebrew), as rather a kind of proper noun, or in other words a mere label. It is the name of a certain body of texts, rules, arguments, and traditions, which (as you say) has the character of a legal system, and which plays an essential part in what it means to be a Jew, but what part it plays is not the same for all Jews.

    At one extreme are Jews for whom it is quite simply and literally a body of law, with the force of law: those would be Orthodox Jews, and perhaps some (though, I think, not many) Conservative Jews. At the other extreme would be those who regard it as a dead letter, without any implications for how a Jew should act; but even for them, it must be essential to Jewish identity at least in the respect that it has played a certain historical role in the constitution of the Jews as a people.

    I take it that the position prevalent in the Reform rabbinate today is somewhere between those two extremes, regarding halacha as having implications for present conduct, but as something like a model or a suggestion rather than a dictate. For my part, I have never understood what this position is! I suspect that the reason why you can’t find a descriptive noun that exactly fits halacha as it is understood in Reform Judaism, Jesse, is that Reform Judaism has no coherent conception of what halacha is supposed to be.

    Now, of course, that could be just my ignorance. Heaven knows, I am no scholar of these things. But I am fairly confident that the verbal difficulty here is merely the superficial manifestation of some kind of deeper conceptual difficulty.

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