Conservative Halakha - Difference in Methodology From Orthodoxy

Difference in Methodology From Orthodoxy

Conservative Judaism relies on a somewhat different Jewish legal methodology than is typical of Orthodoxy. The prominent Conservative rabbi Mordecai Waxman has written that "Reform Judaism has asserted the right of interpretation but it rejected the authority of legal tradition. Orthodoxy has clung fast to the principle of authority, but has rejected the right to significant reinterpretations. The Conservative view is that both are necessary for a living Judaism. Accordingly, Conservative Judaism holds itself bound by the Jewish legal tradition, but asserts the right of its rabbinical body, acting as a whole, to reinterpret and to apply Jewish law."

A key practical difference between Conservative and Orthodox approaches to halakhah is that Conservative Judaism holds that rabbis in our day and age are empowered to issue takkanot (decrees) modifying Biblical prohibitions, when perceived to be necessary.

The Talmud states that in exceptional cases rabbis have the right to uproot Biblical prohibitions for a variety of reasons; it gives examples of how this was done in practice, e.g. Talmud Bavli, tractate Yevamot 89a-90b, and tractate Nazir 43b.

1. B'shev va'al ta'aseh. Rabbis may rule that a Torah mitzvah should not be performed, e.g. blowing the shofar on Shabbat, or blessing the lulav and etrog on Shabbat. These are not done out of fear that one may carry these items from home to a synagogue, thus inadvertently violating a Shabbat melakha. (Yevamot)
2. B'kum va'she. When there is emergency measure that needs to be taken, one may violate a Torah mitzvah, in order to maintain the Jewish system as a whole. Arnold Goodman writes "The example cited is Elijah offering a sacrifice on Mt. Carmel in order to turn the people back from idolatry. (Yevamot)
3. B'davar she'b'mammon. The principle of Hefker Bet Din Hefker, a rabbinic court has the power to declare an object, or money, ownerless. (Yevamot)
4. A Kohen may violate the Torah mitzvah ordering Kohanim not to bury the dead. The example given in Nazir 43b is that a Kohen may bury his wife, as her own father is dead and cannot bury her. Arnold Goodman writes: "In a famous tosfot, Rabbi Yitzhak explains that by Biblical law, she is not a Met mitzvah because she has other family. Yet since her relatives and family may have abandoned her, the Rabbis regarded her as a Met mitzvah and even though a Bet Din does not have the authority to uproot a Biblical prohibition, in an instance where there is a panim v'taam l'davr, it is universally accepted that there is authority to uproot."

See the discussion by Rabbi Arnold Goodman in Solemnizing the Marriage Between a Kohen and a Divorcee p. 2 (bottom) p. 3 (top.) Goodman notes that "Later authorities were reluctant to assume such unilateral authority... Later authorities thus imposed severe limitations on the conditions and situations where it would be appropriate and necessary to uproot.." but then states on p. 3 that "Yet the right to uproot was never completely prohibited. There was often the need for an escape hatch, and the right of Rabbinic authorities to do so was articulated by the Rashba as follows: It was not a matter of the sages deciding on their own to uproot a matter of the Torah, but it is one of the mitzvot in the Torah to obey the 'judges in your day' and anything they see necessary to permit is permissible from the Torah." (Chidushai Rashba, Nedarim, p. 90a)

Conservative Jewish philosophy does not allow the use of popular will to overturn Biblical or rabbinic laws. Like Orthodoxy, Conservative Judaism requires responsa citing a full range of precedential authorities as part of any halakhic decision. Changes in halakhah must come about through the halakhic process. For examples of this view see Rabbi David Golinkin's essay "The Whys and Hows of Conservative Halakhah," Elliot N. Dorff's "The Unfolding Tradition" (esp. introduction and chapter 1), Joel Roth "The Halakhic Process" (Chapter 1, but throughout the entire book)

A significant difference with Orthodoxy is that Conservative rabbis have produced a body of research on the history of halakha which, in their view, concludes that rabbis in every age have always included ethical concerns as a major part of the halakhic process. They hold that rabbis in practice viewed both halakhah and aggadah as inter-related domains, and that one could not be used exclusively without the other. See Roth's "The Halakhic Process", Louis Jacobs "A Tree of Life", and Robert Gordis "The Dynamics of Judaism: A Study in Jewish Law" (stressed in introduction and chapters 8, 9)

The CJLS has on a number of occasions accepted teshuvot which include moral and aggadadic reasoning alongside and within a strict precedent-based halakhic framework. As such they sometimes come to conclusions that differ from their Orthodox peers.

The CJLS cites cases in the Talmud in which Biblical laws became inoperative, such as when the Sanhedrin stopped meeting at its seat in the Temple in Jerusalem where it was required to meet in order to administer capital punishment, and the abolition of such practices as the rite of Sotah (the ordeal of a suspected adulteress) and the breaking of the heifer's neck in a case of suspected murder as precedents for refusing to administer Biblically mandated procedures on moral grounds.