And you shall bind them (2)

A few days ago I talked about Rabbi Michael Broyde's prediction of the Conservative movement's imminent demise. What interested me were two throwaway statements: (1) "halachah is binding" (implying that this statement is unquestionably true for everyone, in the same way, at all times), and (2) American Jews can be divided into those who believe (1) is true and those who don't.

Comes a recent post by Jonathan Woocher on the Conservative e-mail list Shefa which nicely addresses point 2. So I'll quote it here in its entirety. Two points: although Broyde was trying to classify the whole of the Jewish community, Woocher talks here about the difficulty of defining the Conservative movement. I think the same difficulties apply to either, which is why I'm citing this. Second, the poster thinks it would be problematic for the Conservative movement to define itself based on behavioral criteria. I agree with this, probably for same reason as the poster. Indeed, it would be curious if behavioral criteria were not part of the C. movement's self-definition (such criteria being an essential part of halachah) - but only a part, since if it were the whole definition we would be a movement dedicated to self-policing and ruling people out rather than in.

I believe that part of the difficulty in addressing questions of denominational identity, boundaries, etc., is that there are multiple dimensions of what we might mean by, say, “the Conservative movement.” We might be talking about the movement’s 1) ideology (and, of course, none of the movements has a single, coherent ideology, but rather at best a set of ideologies with certain common elements); 2) program (different than an ideology; this is what it actually focuses its collective energies on at any given point in time); 3) institutions (synagogues, seminaries, USCJ, RA, etc.); 4) people (not just the public figures, but the people one encounters or encountered in the past in shul, school, camp, etc.; and/or 5) style (as with ideologies, movements do have multiple styles, but the “styles” of Conservative and Reform Judaism are generally fairly distinct). My observation is that what attracts individuals to a particular movement may be any of these (singly or in combination). So, one may well be ideologically “Reform,” but have a social network largely made up of Conservative Jews and prefer a service with more Hebrew.

There is a natural and understandable inclination to believe that ideology should be the trump card in this deck. This would lead to saying, e.g., that if you don’t believe in the normative authority of Halakha (leaving aside for the moment what we understand Halakha and its normative authority to be), you really don’t belong in the Conservative movement. However, it’s not clear to me that we should privilege ideology in this fashion, especially since it is an arena in which multiple positions coexist. So, unless one is prepared to set either strict ideological boundaries (how would we enforce these?) or – even more problematic – behavioral boundaries (which is where this thread began: questioning whether those who do not follow “normative Conservative practice,” e.g., not eating non-Kosher food outside the home, should have their opinions counted on an issue like gay ordination), I’m afraid we are stuck with an ambiguous movement in an ambiguous world.

I, for one, am comfortable with this, since the alternative would in my view be far worse, namely a movement constantly checking its tzitzes. I would not find this a very appealing landscape on which to take my Jewish journey.

And you shall bind them

Rabbi Michael Broyde wrote in the Jewish Week that Conservative Judaism is dying. Sad, don't you know, to see pure Jewish souls lost to the likes of Ramah and JTS. And it's all because we embraced the homosexuals and uprooted a clear "Sinaitic prohibition". (If, on the other hand, we had created a "Sinaitic prohibition" where none existed before, that would be okay. But I digress.)

Now, the bulk of the article is founded on the same mistaken premise beloved by Orthodox demagogues everywhere: that "Jewish law" is by definition what Orthodox rabbis say is Jewish law. Thus Conservatism does not follow Jewish law because (wait for it) Conservative Judaism is not Orthodox.

The author, I remind you, is a professor of law at Emory.

But even apart from this intellectual heavy lifting he does say something interesting:

The truth is that there is a grand divide in the Jewish community worldwide between two groups: those who think that Jewish law (halacha) is really, truly, binding and those who do not.

There are two implied propositions here:
1. Jewish law is binding.
2. Jews can be divided into two groups: those who think 1. is true and those who think 1. is not true.

What does it mean for halachah to be "binding"?

With "binding" in English we generally refer to a legal decision or agreement which the party or parties have agreed to follow beforehand, as in the phrases "binding contract" or "binding arbitration." An individual or body issues a decision on a contested point of law or procedure; the party must act according to that decision on pain of negative consequences.

Halachah is different. In some cases, a person presents a question to a rabbi on a certain matter, the rabbi renders a decision, and the person then acts according to that decision. This happens in a minority of occasions, even in Orthodox communities - thus I don't think that this what Rabbi Broyde is referring to in his characterization of halachah as binding. Rather, he is more plausibly referring to the body of halachah as binding.

Leave aside for a moment how we should define the body of halachah, because this is where R. Broyde and his Conservative colleagues differ. The problem is, for understanding "bindingness," that the situation of the Jew following halachah is different from the legal subject obeying a legal decision. For one thing, the source is not clear. Theologically speaking, the Source is clear, but halachah is many-layered, many-authored, and oftentimes internally contradictory. Thus, unless one asks a particular rabbi for a particular decision at that particular second, there are many particular elements of "Jewish law" one could hew to, or not. Even a given halachic question can be differently framed depending on how the "body of halachah" is understood.

The above is not to say that Jewish law is not binding. Of course I think it is! Merely that it is not enough, true, or convincing to say that "Jewish law is binding" means "I look in the Shulchan Aruch and I do what it says." The fact that I can disagree with one halachic source and agree with another makes any such characterization difficult.

In fact, given that halachah is so multi-faceted and non-unitary, it is no wonder that minds much greater than I have defined the bindingness of halachah as contingent on the existence of a community which sees halachah as binding! Thus we're right back to where we started, unless R. Broyde is of the opinion that "halachah is binding" means "Orthodox Jewish practice is binding."

Why all this throwing words around? Because if we are to divide American Jews into groups based on who thinks Jewish law is binding, it would help to get a handle on what this proposition actually means. Let's imagine we've done that (though we haven't), and return later to the issue of what American Jews think - even more complicated than the definition of "binding"!