Formulating Jewish Law for Our Time

by Dr. Elliot N. Dorff

From The United Synagogue Review, Spring 1998

Many members of the Committee on Jewish Law and Standards have written rabbinic rulings, or teshuvot, for the Committee, each with his or her own specific approach to Jewish law. So that you may better understand the work of the Committee, I have been asked to describe how one member understands what he is doing when writing rulings for the Committee, and thus for the Movement.

What, then, makes Elliot run? That is, what prompts me to be a practicing, Conservative Jew in the first place, and what do I think I am doing when I write a ruling for consideration by the Committee and participate in the discussion of rulings written by others? In essence, these are the questions I must address.

Motivations to Observe Jewish Law

Writing a teshuvah to explain to people how they should observe Jewish law assumes that it is clear why we should observe Jewish law in the first place. Why should Jews -- and, in this case, why do I -- do that? Most Jews would immediately say that the ultimate reason is that God will punish you if you disobey and reward you if you obey. That, indeed, is one rationale given in the Torah, the one enshrined in the verses we use as the second paragraph of the Shema.

The Torah, though, knew that that alone would not suffice. After all, a short forty days after the revelation at Mount Sinai, with its accompanying lightning, thunder, and earthquakes, the Israelites were already worshipping the Golden Calf. If even those who had witnessed the revelation were not deterred by the manifestation of God's might in the Exodus and at Sinai, surely later generations would not be. As a result, the Hebrew Bible delineates a number of other rationales for obeying Jewish law. That is tremendously important for me, for I, too, abide by Jewish law at any given time for one or more of a variety of reasons, and I am comforted in knowing that my tradition, from the Torah on, was aware that people might have many different reasons to live in accordance with Jewish law.

The Bible actually delineated nine different motivations to obey Jewish law, and the Rabbis add three more, all of which I describe in some detail in the book I wrote eight years ago for United Synagogue Youth, entitled Mitzvah Means Commandment. For our purposes here, I will just list them and trust that you will consult that book for more detail.

The Bible, then, says that you should obey Jewish law because of

Divine enforcement - God will reward you if you do and punish you if you do not.
Human enforcement - Human courts will enforce the demands of Jewish law, a fact that was true of most Jewish communities in the world until 1945.
Wisdom - The commandments are inherently wise, tested and proved by experience, such that any intelligent person should want to live his or her life by them.
Morality - The commandments define moral values, and so you should obey them if you aspire to do the right and the good.
The Covenant - You were at Sinai, and, along with your ancestors (or your new ancestors, if you are a convert to Judaism), you made a promise to uphold the Covenant. The morality of promise keeping, and the covenantal relationship that you want to sustain with God, should therefore motivate you to obey Jewish law.
Owing God - You should obey God's commandments because you owe Him for all the good He has done for your ancestors and for you -- indeed, as the liturgy says, for "Your miracles that are daily with us."
The reputation of God and Israel - You should obey the commandments in order to preserve the good name of God and Israel among non-Jews (kiddush ha-shem).
Holiness - You should obey Jewish law because it is your mission to do so, the way you become "a kingdom of priests and a holy nation." (Exodus 19:6)
Love of God - You should obey the commandments out of love of God.

In addition, the Rabbis add the following motivations for observing Jewish law:

Maintaining the world - The Rabbis were convinced that if we fail to follow the commandments, human society, and indeed the world itself, would disintegrate.
National identity - The commandments distinguish Jews from non-Jews and thus define the Jewish people. Kashrut, for example, is, among other things, a way of identifying with the Jews worldwide in the past, present, and future.
Aesthetic value - Friday night around the table, or eating together in the sukkah, is, apart from all else, simply beautiful.

Two things must be said about this list. First, as the Rabbis themselves say, even if none of these motivations prompt you to obey, the law nevertheless remains binding. The tradition knew that no legal system can depend on blind obedience alone, but ultimately we must obey God's law.

Secondly, none of these motivations can rightfully be understood simply and straightforwardly. I firmly believe, for example, that abiding by Jewish law contributes to moral knowledge and motivation, but we all know seemingly religious people and institutions that do immoral things and, conversely, non-religious people who live by high moral standards. Nevertheless, even if this list must be nuanced and balanced, it does describe for me why I should and do live my life according to Jewish law.

Factors that Determine the Substance of Jewish Law

What, though, does fulfilling the demands of Jewish law entail? For better or worse -- I think distinctly for better -- the Jewish tradition is not fundamentalist. That means that I cannot simply look at the Torah and define Jewish law that way. The Judaism that we have inherited, after all, is not the religion of the Bible; it is the religion of the Bible as defined and interpreted by the rabbis of each generation.

In making decisions, then, I must recognize, as the Conservative Movement has asserted since its inception, that Jewish law has developed over time and that the law that has come down to us is not necessarily what the law should be today. At the same time, I must also remember that if what we do today is to be recognizable as Judaism, we must retain at least most of the tradition that we have inherited. To use the term of the founders of our Movement, we must "conserve" the tradition -- and hence we are the "Conservative Movement." Together, these convictions require that we always place the burden of proof on the person who wants to change the received tradition, but it also means that we acknowledge that sometimes that burden can be borne.

Deciding matters in Jewish law, then, requires a honed sense of judgment about when to retain the law as is and when and how to change it --always with a much greater respect for what is already on the books than is common among secular lawmakers. In this regard, the position of rabbis is much closer to secular judges, whose job is to interpret the law as received rather than make new law -- and it is no accident that the Jewish tradition understands the role of rabbis not as lawmakers but as judges. Rabbis make decisions in Jewish law as part of their judging and teaching functions.

The Jewish tradition emerges from the interaction between what the Rabbis say and what the people do. In Jewish terms, halakhah -- the way we should go -- is the product of law and custom, of din and minhag. This means that in deciding what Jewish law should be today, I must, as Solomon Schechter noted long ago, take note not only of what the legal texts say, but of how they have been put into practice by "catholic Israel," by the observant community in the past and present. I must also, as the Rabbis clearly understood, be concerned by the effect of any given ruling on that community. Thus, even if a given way of deciding a matter seems clearly demanded by the texts and precedents of the tradition, I must not rule that way if such a decision will inflict undue economic hardship on the community or if it will simply be ignored by those who otherwise obey Jewish law.

I must also take care to ensure that the law embodies the highest of moral standards, for it would be a desecration of God's name, a hillul ha-shem, to decide otherwise. That is easier said than done, for "high moral standards" is not automatically equivalent either to what was interpreted as such in the past or to what are seemingly the most stringent demands. The content of "high moral standards" must rather be continually determined by difficult, but absolutely critical, acts of judgment.

Discerning and Living by God's Will

I must mention one other matter. After all is said and done, we are engaged in this process of interpreting and applying Jewish law primarily because we want to do what God wants of us. To do that, though, we must discern God's will. Catholics do that by following the Pope; Protestants do that by following their individual consciences; and Jews do that by interpreting and applying Jewish law. Moreover, while any Jew may, and indeed should, engage in the process of learning and interpreting the tradition, it is the Jewish community -- or, historically, sections of it -- that determined which interpretations would be accepted as our understanding of God's will and which would not be.

Thus, when I write a ruling, I am acutely aware that my task is not only to describe what I personally would like the law to be, but what I think that God would want of us. I am also keenly aware that I am not God and dare not speak for Him. My ancestors, though, have interpreted the Torah to put that privilege and responsibility in the hands of the rabbis of each generation. I therefore take on the task of writing a ruling with a real sense of responsibility to God and to my people. I am comforted that my own mistakes in discernment can and will be corrected by my colleagues on the Committee on Jewish Law and Standards -- and, ultimately, by the practices and customs of all Jews serious about making Jewish law part of their lives.

We may all, of course, be mistaken, but Jewish faith is precisely that the Torah and its ongoing interpretation and application by rabbis and by serious Jews articulates the will of God. As one who shares that faith, the approach that I use in writing a ruling is one that attempts to combine honesty about the past and present, humility about what we can know of God's will, and passionate commitment to making God's will real in our world.

Dr. Elliot Dorff, Provost and Professor of Philosophy at the University of Judaism in Los Angeles, was appointed to the Committee on Jewish Law and Standards in December 1984 and has written ten rabbinic rulings that have been adopted by the Committee. With and for the Commission on the Philosophy of Conservative Judaism, he also wrote several sections of Emet Ve'Emunah, our joint document on the philosophy of Conservative Judaism.