A useful mistake

The Conservative movement, or at least one of its leading figures, has characterized its most controversial psak (Jewish legal judgment) as a mistake. This is a classic case (beloved by the Jewish legal tradition) of lekhatkhilah (a priori) and bedieved (ex post facto). Given today's circumstances I would not have made such a decision, because I know how things turned out. Given the circumstances of the time, however, the decision was not unjustified. Can we call it a mistake, then? Yes, if we can do so without an air of superiority -- because it's a helpful and even an admirable mistake. The circumstances of that mistake, both at its commission and today, after the admission, can shed light on the positive and negative aspects of the Conservative movement. Perhaps if more mistakes like it were to be made, the direction of the Conservative movement could be changed for the better.

Conservative psakim are issued through the Committee on Jewish Law and Standards of the Rabbinical Assembly, and it was this Committee (known to the "inside-baseball" crowd as the Law Committee, or the CJLS) which issues rulings -- and issued them in the 1950s, when the question of driving on Shabbat came up for judgment.

Only an excerpt of the psak is available on-line. (Isn't it ridiculous that the very movement which strives for a modern, open approach to halachah doesn't have the psakim of its Law Committee available on-line, in full and for free? One most console oneself with the Masorti movement's David Golinkin, whose sensible, well-researched teshuvot are worth destroying one's eyesight with PDFs that are not of the highest quality.) However, one can summarize as follows. The authors took into account the near-complete erosion of traditional Jewish religious life in considerable sections of the U.S., and in an attempt to make possible some modicum of Sabbath observance for those who would otherwise (through ignorance) be unable to observe individually, permitted them to drive to the synagogue, and there only, on the Sabbath.

From a halachic perspective, that is, if we focus our gaze only on a narrowly specified list of Shabbat prohibitions, it was a mistaken decision. (Those prohibitions are enumerated in detail in a recent Masorti responsum that comes to a different conclusion, unsurprisingly, based on the different conditions prevalent today in Israel.) But from a public-policy decision it was perfectly justified. Indeed, rare is the teshuvah (responsum) which does not have to balance Jewish laws of a smaller scale -- which is not to say minor -- against those which apply to greater numbers of people, or to entire communities. Many have said that the responsum made the mistake which Jewish law terms halakhah ve-eyn morin keyn: it is the law, but one does not rule that way. (Or as the limerick has it: "Don't shout / And wave it about / Or the rest will be wanting one too.") That is, the decision itself was justified -- it is, after all, better to drive to shul on Shabbos than to stay home and crank the stereo -- but one musn't disclose this permissibility in a public psak. This argument is unconvincing. While there was a danger -- presumably realized by the CJLS members of the time -- that the Conservative majority would interpret the ruling as permission to drive on the Sabbath, there was an equally clear and present countervailing danger: i.e. that thousands of Jews would languish in spiritual isolation for lack of means or ability to pray. The CJLS took both these sides into account, and ruled, quite reasonably, in favor of the latter consideration.

This is what happens in psak -- the delicate, tangible art of adjudication. Sometimes you get it wrong. Why is this mistake valuable? Because the Conservative movement is, I believe, the only institution which characterizes itself as halachic that can admit its mistakes. Though Orthodox rabbinical groups are wide-ranging, they are united in at least one particular: neither the adherents of Rabbi J.B. Soloveitchik (the "Rav"), nor those of the Agudah, nor anyone in between would be able to say of a given psak: This is mistaken. Of course, one is allowed to follow one psak rather than other, but according to Orthodox theology (by and large) the posek (decisor) is guided by the hand of God in making his halachic decisions. That hand cannot err.

I don't know what metaphor to use for Conservative responsa -- perhaps God is the mentor rather than the guide, the parent whom the child must respect but part from in order to achieve full intellectual and spiritual development. In any case, however, Conservative rabbis are, or at least should be, more honest about the dangerous fallibility of the path they tread. The decision about driving on the Sabbath is one example. The mistake shows us what could have been achieved over the past fifty-some years, and what we should aim at in the future: self-sustaining, Sabbath-observant communities following an egalitarian, religiously open, culturally rich model, drawing from the experience of Jews from every place on the spectrum but not beholden to them. Perhaps there is still time for this in what is left of the millennium . . .

This is not to say, though, that the Conservative rabbinate is always quick to admit its mistakes. (One could of course argue that Rabbi Schorsch's speech cannot even be characterized as an institutional mea culpa, and that the CJLS, like Agudah, will never admit its own error.) But I hope that the Sabbath-driving example will be an influence on Conservative institutions to acknowledge their own fallibility. I am thinking in particular of the issue of homosexuality, which the Rabbinical Assembly and JTS have been woefully timid in addressing, for fear of offending their right wing. (Where is the halakhah that "carves through the mountain" without fear or favor?) But more on that another time.

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