What Is Modern Orthodoxy? Between Authority and Essence (Column 477)

Contents of the Article

With God’s help

What Is Modern Orthodoxy? Between Authority and Essence

In the previous two columns I presented a fairly detailed map of situations and mechanisms of legal change within Jewish law. From that map you could already infer something about my view, at least regarding the legitimacy of those mechanisms, even if not regarding their correctness or full agreement with them. I would now like to move toward a characterization of Modern Orthodoxy in light of everything we have seen. But before that I must complete one additional point: the question of authority.

Until now I have dealt mainly with the question whether, conceptually, conservative change is possible at all, which is seemingly an oxymoron. The discussion was conducted against the principle of the Torah’s eternity, and I tried to show that such change is possible and does not necessarily undermine the Torah’s enduring validity, so long as the underlying principle is preserved. But there is another question I have not yet addressed, namely the question of our commitment to the Talmud, not merely to the eternity of the Torah. What is at stake here is not the conceptual question of conservative change, but a formal legal question: how, and whether, one may disagree with the Talmud. In the previous column I explained that the values of the Sages are not necessarily the values of the Torah, and that they incorporated their own values, drawn from various sources, into their interpretation of the Torah; therefore there is no reason that we may not do the same. Our commitment is to the Holy One, blessed be He, not to the Sages, except insofar as they interpret His will. But here the question of authority arises. Even if, conceptually, one can disagree with them and still remain faithful to the Torah and its Giver, there is a legal rule that obligates us to heed them themselves.

I also touched on that question when I distinguished between commitment to the bottom-line legal ruling and commitment to the value foundation beneath it. But the issue of authority still requires clarification in order to complete the picture.

Between Value Change and Factual Change: The Angle of Authority

In the previous columns I distinguished between two kinds of change: 1. legal change on the basis of changed factual circumstances; 2. legal change on the basis of changed values. I explained that when we are dealing with factual change, ostensibly we are not disputing the sages of the Talmud but only applying their rulings differently. By contrast, when the change is value-based, then we are seemingly in direct disagreement with them; and even if that is possible in principle, the question remains whether this does not create a problem of authority. But a problem of authority exists with respect to fact-based change as well. To clarify this, I will give a very brief introduction to the issue of authority.

There are two Talmudic discussions that deal with the question of authority and the possibility of changing Jewish law. One of them, in Beitzah 5a, states that ‘a matter established by formal vote requires another formal vote to permit it.’ That is, if some law was established by the Sanhedrin, then in order to change it one needs a decision of a Sanhedrin as well, and nothing less. By contrast, the Gemara in Avodah Zarah 36a, and in many parallel passages, states that ‘a court cannot nullify the ruling of another court unless it is greater than it in wisdom and number.’ From Maimonides, at the beginning of chapter 2 of Hilkhot Mamrim, it emerges that he distinguishes between biblical laws, to which the first rule applies, and rabbinic laws, to which the second rule applies. In other words, biblical laws established by the Sanhedrin can be changed by a later Sanhedrin, but there is no requirement that it be greater than the first in wisdom and number; whereas rabbinic laws established by the Sanhedrin can be changed only by a Sanhedrin greater than the first in wisdom and number.

Moreover, at least regarding rabbinic law, it appears that the rules limiting change were stated even when the rationale of the enactment or decree has lapsed. According to Maimonides, even then a court greater in wisdom and number is required. According to the Ra’avad there, however, apparently not. In his view it is enough that the repeal be done by formal vote, that is, by a Sanhedrin. One should note that changed factual circumstances are nothing but the lapse of the reason for the decree or enactment. The reason lapses when the circumstances have changed and in the new situation the rule in question no longer has a purpose. Seemingly, then, even legal change resulting from changed circumstances requires at least a formal vote, and perhaps even a forum greater in wisdom and number than its predecessor.

How does all of this fit with the picture I have described until now? At first glance it seems that even if conservative change is conceptually possible, legally it has no place, at least regarding laws established by the Sanhedrin. Today we have no Sanhedrin, so seemingly we cannot change or repeal laws, even when the circumstances have changed. And when what is at issue is a value-based change, the problem appears even more severe. There we are legally disputing the sages of earlier generations, and not merely applying their words in accordance with new circumstances. Again, in the previous column I argued that conceptually this is possible, but here I am wondering about the question of authority: can this be done without a Sanhedrin?

I will divide the discussion into several sections, each of which will address a different angle of the matter.

Between Repeal and Changing the Mode of Application

Before I continue, one more important remark. There is no complete overlap between changed circumstances and the lapse of the reason for an enactment or decree. When the reason lapses, that leads to repeal of the decree, and that indeed is subject to legal limitations of authority: a court greater in wisdom according to Maimonides, or at least a court according to the Ra’avad. But in the previous columns I dealt with various situations in which the reason for the enactment or decree does not lapse; rather, the application changes in light of changed circumstances.

The example the Talmud itself gives of the lapse of the reason for an enactment is decorating the markets of Jerusalem with fruit; see Beitzah 5a. That is a discussion of repealing an enactment when its reason no longer exists. After the destruction of the Temple, people no longer made pilgrimage and no longer brought first fruits, so there was no point in adorning the markets of Jerusalem with fruit. Notice that the swimsuit example does not require repealing the rule but applying it correctly in light of the new circumstances. And if we move to the legal analogue, the change the Meiri instructed with respect to attitudes toward non-Jews is a change in both rabbinic and biblical law in light of changed circumstances. That change was made by him in the fourteenth century, and it is obvious that he was not troubled by the absence of a Sanhedrin.

The same is true of the prohibition of ‘do not form factions,’ as the Sages interpreted it, forbidding two courts or two synagogues in one city. Today no one observes that rule. The explanation is that the factual circumstances have changed, and today what defines the matter is not the geographical city but the community, which is usually determined by origin, though not necessarily. The rule still exists, but its mode of application has changed in accordance with changed circumstances. The same applies to local custom. In the Talmudic period, what determined the force of a custom was the place, whereas today we are dealing mainly with ancestral custom, generally according to origin. The reason is that the world has changed and become mobile; people move from place to place. In the past, my descendants would generally live and die in the same village in which I lived. Therefore geographical place no longer has the significance it once had. It is no longer the fixed parameter that can preserve the customs of communities.

Similarly, I have written here more than once, see here, and in column 350 about lighting candles on the internet, and in column 446 and elsewhere, about joining a prayer quorum via Zoom, and I argued that the relevant place for this purpose is the ‘site’ on the internet rather than a geographical place. All these are examples of changing the mode of application of an enactment or some law, not of repealing it because its reason has lapsed. It seems to me that when we are dealing with a change in application, everything I said remains intact. I do not think anyone would object to forbidding the use of electricity on the Sabbath merely because electrical devices are a new phenomenon. We apply to electricity the legal categories established in the Talmud: kindling, building, creating something new, giving the finishing blow, and so forth. That is a change in application, not the repeal of a rule; therefore it is incorrect to apply here the rules governing the alteration of enactments, whether in biblical or rabbinic law.

Repealing Enactments Despite the Formal Rule

In chapter eighteen of my book Mahalakim Bein Ha-Omdim I collected dozens upon dozens of examples of decisors who repealed, and not merely changed the mode of application of, enactments and decrees when their rationale lapsed. Ostensibly this stands in direct contradiction to the Talmudic rule requiring a formal vote, or even a forum greater in wisdom and number. I explained there that the sages of the generations used a variety of tools in order to allow themselves these changes. For example, the Rosh writes in a responsum that if the reason is clear, the enactment may be repealed when the reason lapses; in Tosafot Ha-Rosh to Bava Metzia 90 he says this with respect to the rationale of the verse in biblical law. Others wrote that where continued application of the rule in the new circumstances causes significant harm, it may be repealed. Others spoke of a case in which the rationale of the rule is stated explicitly, rather than being merely our interpretation, in which case a purposive interpretation is possible. And so on. In many such distinctions, decisors wrote that laws can be changed even today, when there is no Sanhedrin. I also added the mechanism of freezing laws, and I proved from Maimonides that this power is entrusted to any court at any time, and so on.

In the two preceding chapters there, chapters sixteen and seventeen, I explained the background to these matters. My claim was that because ordination and the Sanhedrin were abolished, we have been living through a historical accident lasting thousands of years; see column 164 and elsewhere. A normative system like Jewish law cannot permit itself total ossification in the absence of an authoritative institution. Over time, situations arise that require masses of legal changes at the substantive level, and their number grows at an accelerating pace as the generations pass, and all of them get stuck because of the question of authority. That is unreasonable, since everyone understands that the changes are necessary and that the harms created are terrible. This compels sages throughout the generations, including today, to find and formulate workarounds by means of which they circumvent the Talmudic limitations on changing laws.

But all of this can be said about changes in factual circumstances. There we are speaking about a change in mode of application, about changes in reality that force us to find ways to change the law and perhaps even to repeal laws. But what about changes in values? That is already a frontal disagreement with the Talmud and earlier law. It is not a change in application, nor even repeal due to new circumstances, but simply disagreement with the existing law. I have already dealt with the question whether this is conceptually possible within a conservative framework. But in such situations the question of authority arises in full force: can one disagree with binding laws when we have no authorized institution to do so, namely a Sanhedrin?

Between the Talmud and the Sanhedrin

I have written more than once about the authority of the Talmud, and explained that it does not possess authority in the way the Sanhedrin does, since the sages of the Talmud were not ordained and did not sit in the Chamber of Hewn Stone or in the seat of the Sanhedrin; the sages of the Babylonian Talmud lived and worked in Babylonia. Moreover, I have also argued that their authority does not stem from their greatness or from any supposed impossibility of error, but because we accepted them upon ourselves; see the Kesef Mishneh at the beginning of Hilkhot Mamrim, on the very laws I mentioned above. The question that now arises is: what is the nature of that acceptance? Does the commandment of ‘do not deviate’ now apply with respect to Talmudic determinations? It is very hard to claim that, since ‘do not deviate’ applies only to an ordained Sanhedrin in the Land of Israel; see Deut. 17:11, apart from the puzzling and unique view of Sefer Ha-Chinukh in commandment 496.

It seems that we have here a different kind of obligation, one not anchored in ‘do not deviate.’ One can say that ‘do not deviate’ is an authority imposed upon us from above. We do not appoint the Sanhedrin; the Holy One does, through the chain of ordination. Hence its authority over us does not derive from our accepting it or choosing it, but from the Torah’s legal command. By contrast, commitment to the Talmud is bottom-up, that is, by force of public acceptance, like the authority of a local rabbinic authority or a community rabbi. It is therefore hard to derive the boundaries of commitment to the Talmud from the boundaries of ‘do not deviate.’ But if so, then the authority that imposed it is also the authority that can release it. Where the public is the basis for the authority of some institution, the public is also what can change the matter.

Implications for Value-Based Change

Here we can bring in what I wrote in the previous column: that our commitment to the Talmud is a commitment to the bottom-line legal ruling, not to the value basis and rationale underlying it. If it is we who accepted the authority of the Talmud upon ourselves, we must examine the scope of that acceptance and its boundaries. And indeed, the examples I brought there, and in the column to which I linked, all dealt with the Talmudic sages’ attitude toward the Mishnah and the medieval and later authorities’ attitudes toward the sages of the Talmud. From this it follows that commitment to the Talmud does not necessarily hold when the circumstances have changed and the rationale no longer exists. And certainly we can set limiting rules regarding the authority of the Talmud, just as sages have set rules for changing laws throughout the generations.

Beyond that, the background I have described here briefly, namely that as the generations pass the inability to disagree with the Talmud blocks changes that everyone agrees are necessary, may lead to the conclusion that even if there is commitment to the value infrastructure as well, that commitment is limited in situations where harms are created and changes are required in the judgment of the sages of the current generation. It is not reasonable to leave Jewish law resting on the foundations of a value system that prevailed in Babylonia fifteen hundred years ago, at least in cases where the values prevalent today stand in direct contradiction to it and conduct in accordance with it appears, not only to outsiders but also, and perhaps especially, to insiders, bizarre and detached. Again, let me note that I am not speaking only about the desecration of God’s name involved in such matters, or about the verse ‘for that is your wisdom and your understanding’ (Deut. 4:6), but about a substantive consideration.

In the previous column I explained that a consideration of value change can operate in two ways: 1. a new interpretation of earlier law on the basis of contemporary values; 2. a conflict between law and morality. I noted there that the law does not always prevail in such a case. The assumption here is that the law itself cannot simply be changed, especially if one holds, as I do, that Jewish law is not built upon a moral foundation; but the commitment to morality stands in conflict with the law, and now we must decide that conflict, a decision that on the theoretical-conceptual plane lies outside the law. The difference between these two modes depends on whether moral values or religious values, or perhaps both, truly underlie the law. As noted, I advocate the second conception, which disconnects morality from Jewish law. Even so, on my view as well, when there are two possible ways to interpret the law, there is no obstacle, and indeed it is almost demanded, to interpret it in accordance with moral principles. Where it is clear that there is no such path, mode 2 remains open to us, that is, to view the situation as one of conflict between law and morality and to decide accordingly. Let me add that, as I explained in the previous column, we are not committed to the moral values of the Sages; even if those values underlie the legal determinations to which we are committed, that certainly does not obligate us to adopt them as moral directives. In short, the fact that my values differ from the values of the Sages does not mean that I must bend. Legally I will bend, but morally I will still stand by my position, and the resulting situation is a conflict between law and morality. In addition, in the comments I distinguished between commitment to the legal category itself, which does exist, and commitment to its value rationale, which does not. True, the boundary is not sharp, but it exists. This description creates a continuum of situations for which it is difficult to provide clear criteria, but anyone who does not ignore reality and its complexities will have to admit that this is indeed the case.

In addition, in the previous column I pointed out that there are situations in which the original law was not based on a Torah value at all, but simply adopted a prevailing value, and therefore that value cannot be seen as a legal value. I gave as an example an argument in favor of qualifying women as witnesses on the grounds that today the value of equality is very important in the world. Suppose the claim is that, in the eyes of the Sages, inequality as such was not a value; rather, they simply did not possess the value of equality, and therefore preferred to leave women in the home. If that is indeed the case, then this can be changed in a world in which equality is an important value, not only in the eyes of non-Jews but also in our own eyes as Jews.

Returning to the Question of Authority

In the final analysis, the question of authority certainly does impede the possibility of changing laws, especially when what is at issue is value-based change. One cannot entirely ignore the Talmudic limiting rules. Therefore, sometimes we will have to refrain from making a change even though in our view it is necessary, because of questions of authority. But it is unreasonable to see this as an absolute barrier, for that leads to an intolerable situation for those committed to Jewish law, and that is indeed how decisors have acted throughout the generations. It does mean, however, that even if we do not require an actual Sanhedrin, in order to make such a change one needs a significant consensus among the sages of the present generation. Changing law on a value basis is a delicate and dangerous step, and it is entirely reasonable to expect that it not be done on the basis of the judgment of this or that individual, however important he may be.

In addition, and perhaps as a supplement, the value change must be something obvious. In other words, it should not be a matter of one person’s or another’s private interpretation of morality. If it is clear that some mode of conduct today is simply not done, then that is a value change that justifies legal change. That is precisely the meaning of the expression ‘simply not done.’ The point is not something unreasonable or probably incorrect, but something inconceivable, something about which it is obvious that today one cannot behave that way. Again, I am not speaking only about desecration of God’s name, but about a substantive consideration, somewhat akin to ‘ways of peace’ in Rabbi Unterman’s sense. If indeed the value change is so unequivocal, then the category I cited in the name of the Rosh applies here, namely that the limiting rules do not apply, such as the need for a court greater in wisdom and number in his responsa, or the demand for the scriptural rationale in his Tosafot to Bava Metzia. One can say that in such a case the change in values is a kind of change in factual circumstances. At least in this respect, the contemporary world is substantially different from that of the Sages, and this should be seen as a factual change that justifies legal change. Here it is not I who disagree with the Sages; rather, it is clear to me that if they themselves were living today, they too would say the same. In such a situation, one may say that this change should not be seen as disagreement with the Sages, but as a change in application under new circumstances. If the change is not that unequivocal, then it would require a Sanhedrin and compliance with all the limiting rules, and it is therefore impossible in our time.

This complex picture brings us to the second part of the column: how can it be applied in reality? How will we know which changes fall within the category of legitimate conservative interpretation, and which exceed it? Are there proposals that can be rejected as illegitimate even within so flexible and complex a picture? My claim is that there are. But before that, I will try to characterize Modern Orthodoxy. That characterization must be made over against non-modern Orthodoxy on the one hand, asking which considerations of conservative interpretation will not be accepted by all of Orthodoxy, and over against Reform on the other hand, asking which considerations are not included in conservative interpretation at all. For that purpose I will need to use everything I have presented עד now.

Defining Modern Orthodoxy

The fundamental problem that emerges from the map I have drawn is that under the heading ‘conservative interpretation’ one can include all the legal streams, from the Haredim through Modern Orthodoxy and on to the Conservatives. There are differences of degree and ethos, but in practice all of them are interpretive conservatives. Only the Reform movement remains outside conservatism.

That leaves us with a theoretical puzzle: what, then, are the differences between these three streams or these three kinds of conservative argument? Of course one could say that it is only a matter of degree, how many conservative interpretive moves you make and how far you take them. But that would return us to group characterization, that is, to sociology, whereas, as I explained, I am interested in a substantive characterization of arguments rather than sociology. In other words, I am looking for a single argument that can be seen as a modern argument, meaning one that a non-modern Orthodox thinker would not accept, and from that perspective the question of degree is irrelevant. Incidentally, in my view Conservative Judaism really does not have a substantive definition. In principle, Conservative arguments are identical to those of Modern Orthodoxy, apart from questions of degree and sociology. What I will try to sketch here is the difference between those two, which I shall call here Orthodoxy or modern conservatism, and Haredi interpretive conservatism, which I shall call here Orthodoxy or non-modern conservatism, and this without regard to the plain-sense conservative ethos of Haredism. I am looking for differences in practice, not in ethos.

Modern Orthodoxy: A Basic Definition

Our aim here is to distinguish between two types of interpretive conservatism: modern and non-modern. We have seen that both accept the possibility of conservative interpretation that adapts the law and applies it differently under new circumstances. It seems to me that the difference between them lies in the word ‘modern,’ that is, in the combination of two points: 1. modern conservatism is willing to use conservative interpretation that also takes changes in values into account, and not only changes in facts. We saw examples of this in the previous column, and we also saw the limitations in the first half of this column; without those limitations this would not be conservatism at all. I will not return later to the question of authority and limits, and I will assume that when we are speaking about value-based change within Modern Orthodoxy it is done within those limits. 2. On this view, the new values that inform this interpretation may consciously come from outside, from the values of the modern world.

Non-modern conservatism views the values of the modern world negatively, at least insofar as they do not fit traditional values. Therefore, from its point of view, change on a value basis does not even arise for discussion, since it has no aspiration to adapt the law to such ‘corrupt’ values. Opposition to these two characteristics joins together and produces non-modern conservatism. From its perspective, the world is in principle in regression, moving away from the correct values, except for those points at which it advances, or retreats, toward traditional values. No wonder, then, that from their perspective there is no place for change in the law on the basis of values.

In principle there is another type of non-modern conservatism. One can imagine an approach that rejects the possibility of value-based changes not because it rejects modern values, but because of authority considerations. Those who hold this view do not accept the picture I have sketched above, and in their opinion, even if modern values are positive in themselves and it would even be appropriate to implement them in Jewish law, we have no way to implement them within the framework of the law because of the limiting rules and authority constraints. This approach endorses modern interpretive conservatism at the theoretical level, but because of the rules of authority and the legal limits on change it does not realize that view in actual practice. My sense is that claims about authority are usually auxiliary rather than primary. Someone who truly believes in the need for change finds ways to make it happen, at least in most cases. It is no wonder that most non-modern conservatives also explain why this is the correct way to act and point to the defects of contemporary culture.

Several Necessary Remarks and Distinctions

We have seen interpretive moves based on value change that causes factual change, but such interpretive moves also occur within non-modern conservatism. For example, the Meiri’s claim that attitudes toward non-Jews should change because of improvement in their moral conduct is a factual change, not a value change, although it is based on a different relation to the ‘correct’ values that were supposedly always correct, rather than to new values. Therefore, the Meiri’s proposal דווקא demonstrates a mechanism of non-modern conservatism, though perhaps an enlightened one, as opposed to the ossified conservatism to be defined below, that is, a conservatism aware of changes taking place in the world. By contrast, the claim that attitudes toward non-Jews should change because of the value of equality is a modern interpretive move, since it is based on the value change itself and not merely on the changed circumstances it has created.

If we look at the opposition to the change proposed by the Meiri, which usually also includes denying that he proposed such a thing at all, and which seemingly rejects change of any kind, even fact-based change, we find that it arises from intellectual ossification, that is, from the strange assumption that the reality described by the Sages cannot change, or perhaps, alternatively, from a claim of lack of authority, as above. It assumes that the Sages certainly did not err, even about facts. In addition, it assumes that the nature of non-Jews necessarily remains what it once was, because every diagnosis of the Sages is eternal and essentialist. The same goes for women, and every other creature. The positions reflected in these objections I would call ‘ossified conservatism,’ as opposed to the Meiri’s enlightened conservatism. Thus non-modern interpretive conservatism is divided into enlightened and ossified forms, and both stand over against modern conservatism. Let me only remind you that all three are shades of interpretive conservatism.

There is also a possibility of ossified conservatism that sees all laws as scriptural decrees whose rationale is hidden from us, or perhaps does not exist, and in that way rejects every possibility of change in the law. These are bizarre approaches in my view, even if they are fairly widespread today, because even if I were to accept this regarding laws written in the Torah, and even there it is of course very strange; see Maimonides, Guide for the Perplexed, part 3, chapter 15, there is no doubt that at least a significant portion of the laws were created by the sages, and therefore it is obvious that a rationale stood behind them. Notice that here the opposition is not to modernity but to change as such, and therefore this approach does not really belong to our discussion. At first glance one might classify these approaches as ossified non-modern conservatism, but on second thought it is clear that this is precisely the foundation underlying plain-sense conservatism.

Notice that most appeals to what is simply not done are also tied to modern thinking. The argument that it is impossible nowadays to destroy objects or writings used for idol worship, because in today’s world respect for religious worship, except of course for Jews in Israel, is a supreme value. I mean here an objection based on values, like the consideration of ‘ways of peace’ in Rabbi Unterman’s sense from the previous column, and not on fear of how non-Jews will react. By contrast, there are also ‘simply not done’ considerations that are not modern, namely those grounded in internal Torah values rather than contemporary modern ones. For example, most decisors reject the proposal to deliberately invalidate the marriages of secular Jews, for example by arranging for disqualified witnesses to the marriage, because it is simply not done. But these are considerations based on the proper form of the Jewish home: it is simply not done for Jews to establish a home not according to the law of Moses and Israel. These are of course ‘simply not done’ considerations that are not modern, because the value that generates the sense that something is simply not done is a classic Torah value.

Another remark. There are cases in which even non-modern conservatives rely on a value-based sense that something is simply not done, but they are not aware, or at least do not admit, that the values underlying their considerations are influenced by the external world. They always attribute them to the Torah and its values, proving the value of equality from Torah sources and the like. This, of course, greatly blurs the differences, but in my view the differences nevertheless exist and are recognizable.

Interim Summary: A General Map

We can summarize the picture we have reached graphically:

Reform here expresses lack of conservatism, meaning a refusal to be bound by the rules, and for my purposes that includes the unbeliever as well, who is not bound at all. Let me only note that this is a classification of arguments, not of arguers, meaning that these should not be seen as sociological characterizations of groups.

Before I continue, I will add three general remarks.

A. Does Modern Orthodoxy in the United States fit my definition here?

In my article on the prohibition of civil courts and Modern Orthodoxy, I described this approach through the example of the prohibition on turning to civil courts. These remarks were delivered before the Orthodox Forum, which was founded, or attempted to be founded, by graduates of Modern Orthodoxy in the United States around Yeshiva University. The responses I received from part of the audience were, as expected, very negative. Several listeners told me that legal change should be backed by analysis of legal sources and grounded in them. They were unwilling to accept my claim that although there is indeed a prohibition on appearing before and turning to civil courts, there is no real alternative and anything else is simply not done. This is a conservative conception that, already at the beginning of the first column, I noted as very characteristic of Modern Orthodoxy in the United States; Yeshiva University and the faculty who teach there shaped it in their own image. They objected to the very pattern of the argument from what is simply not done, because, in their view, legal conduct is bound up with adherence to and reliance upon sources. Note that here we are speaking about a sense that something is simply not done that is based on internal Torah values, namely the existence of an effective legal system; see the discussion of courts in Syria, and column 448.

In a certain sense, this is interpretive conservatism of the enlightened type, but not Modern Orthodoxy as I have described it here. I think the resemblance between them and what I have described here rests on the fact that they too try to adapt the law to contemporary values, and do not disparage those values, but they do so through interpretation of the law itself, conservative interpretation on the basis of facts, not through interpretive arguments on the basis of values. They find modern values within the sources of the law or the Torah, and as is well known, in matters of values one can make the Torah say almost anything one wants, and usually the interpretive paths they propose are only a rather thin cover for conservative interpretation. Thus, from their perspective, modern values coincide with the law, not only with the Torah. I have the impression that these circles also tend to identify law with morality.

One may wonder how I can take the term ‘Modern Orthodoxy,’ which arose in the United States around Yeshiva University and is used there in a certain sense, and convert it into a different sense. That is, of course, a semantic question, and from my point of view you may call it by another name. What matters is the definition of this option, not its name. But I would add that in my opinion those circles also hold a modern-Orthodox outlook as I have defined it here; they simply refuse to admit it, even to themselves. In any case, from my perspective you may use a different term. The map is what matters, not the labels. Either way, they too have a place on the map.

B. Is Religious Zionism Modern Orthodoxy?

At the beginning of the first column I distinguished between these two positions, and argued that there is no substantive connection between them, apart from the fact that both oppose Haredism, each to a different component within it. We can now move further and understand the difference more clearly. The usual justification for the Religious-Zionist position is based on Torah values. The claim is that, legally, there is an obligation to settle the Land of Israel even in a sovereign state framework, and so forth. On the level of thought, the claim is that this also advances redemption, and so on. These are arguments that do not rest on conservative interpretation but on plain-sense reading of the sources; most Haredim agree with them as well, except that in their view one may not cooperate with secular Jews. Others argue that redemption must come from above, but they do not deny the commandment of settling and conquering the land. Thus the arguments here do not require value change, or even changed factual circumstances. This is simply the implementation of the sources of Jewish law as they stand. Therefore there is no real connection between Religious Zionism and Modern Orthodoxy. Of course, there may be people who are both Religious Zionists and Modern Orthodox, but that is an accidental rather than essential combination. Had someone argued that a state should be established because of the values expressed in the Spring of Nations, according to which every people demands and deserves sovereignty and independence of its own on some piece of land, that would have been a distinctly modern argument. But that is not the argument of Religious Zionism; it is the argument of secular Zionism.

I have written several times that I forgo the hyphen between Zionism and religiosity, and define myself as a secular Zionist and a religious person. Notice that it is precisely this position that can be connected to Modern Orthodoxy. I certainly see value in Zionism, but it is a national, not a religious, value. For me it is indeed part of the Spring of Nations, that is, part of a modern value system external to Jewish law, exactly as Ben-Gurion saw it, as in the well-known quip of the rabbi of Ponovezh cited at the beginning of the article cited above. That is exactly the defining feature of Modern Orthodoxy as presented here. So my argument against Religious Zionism is connected to my argument about Modern Orthodoxy. Although there is no connection between the two positions I am criticizing, Religious Zionism and non-modern Orthodoxy, my attack on both rests on the same underlying worldview.

Several times in the past, see for example my article here, and a little in columns 98 and 382, I wrote that for more than a hundred years the watershed line in Israel’s religious society has run between Haredism and Religious Zionism. I argued that this is an anachronism, because the state has been here for more than seventy years, and opposition to Zionism has no significance any longer. I do not see, in any substantive sense, anything non-Zionist in mainstream Haredism. The real watershed ought to run between conservatives and liberals, that is, between Haredim and Modern Orthodox, not between Haredim and Religious Zionists. Along that line, for example, the Hardal camp stands entirely on the Haredi side. See the articles above for the confusions this creates. The only connection between them and most modern religious Jews is one blessing once a year and a few chapters of Psalms, and even that only because of those modern conservatives’ Zionist label, not because they are modern conservatives as such.

My impression is that a large majority of the Religious-Zionist public, and also a considerable portion of the Haredi public, hold a modern-Orthodox view, but their ethos does not make this present and they are not aware of it. The reason is that this camp has no rabbinic leadership and no orderly, systematic doctrine, and therefore among the broad public there arises the sense that a religious person ought to be Haredi, meaning a non-modern conservative. Whoever is not that is merely ‘light,’ someone chasing the spirit of the times and yielding to it, Heaven forbid. The result is that even one who does not in practice behave in a non-modern way still has that as his religious ethos, and therefore recoils from arguments like those I have presented here, although in actual life he of course behaves this way, and often even less conservatively than that. But this is a conceptual confusion, one that is naturally encouraged by both the Haredi and the Religious-Zionist rabbinic leadership, much of which is itself Haredi in outlook, that is, non-modernly conservative. It is time to shake the dust off these anachronistic definitions and regroup around an updated watershed line on the political-ideological plane. My remarks here, and in the trilogy as a whole, are meant, among other things, to create such a systematic doctrine, one that can serve as a nucleus around which this otherwise unidentified public can coalesce.

C. A Remark About Conservatism in General

So far I have sketched a map of the various shades of conservatism, and within them I have tried to locate Modern Orthodoxy, or modern conservatism. It is important to me to address here the idea of conservatism in general. In columns 217, 249, and elsewhere, I wrote that I oppose both conservatism and innovation as such, because such approaches mean accepting or rejecting arguments for reasons that are not relevant to their substance. The reasons offered are that such views deviate from what is accepted or conform to it, and therefore they should be rejected or adopted. To the best of my judgment, arguments should be examined on their own merits, irrespective of whether they conform to what is accepted or deviate from it. Characterizing a position as conservative or innovative is the business of the scholar, but that characterization should not play a role in legal decision-making.

Here, however, the discussion is somewhat different. Conservatism in the context of these columns does not mean preserving what once was, but preserving what the Holy One commanded. The conservative rationale here is entirely substantive, because within a religious conception it is obvious that what the Holy One commanded is correct and binding. In the context of Jewish law, there is indeed substantive logic to accepting or rejecting an argument because of conservatism, meaning conformity to tradition, or more accurately, to God’s will as transmitted through tradition. Therefore the discussion here differs from the general discussion of conservatism. Here my assumption is that there is an obligation to preserve what God commanded, and that it is important to be conservative; my concern is only to map the various shades of such preservation and such conservatism.

Here I dealt mainly with the attempt to characterize modern conservatism as against types of non-modern conservatism. We are still left with the opposite question: what distinguishes these from Reform? Is it really possible to distinguish clearly between them, or am I simply presenting a Reform doctrine here?

In order to put some flesh on the rather abstract characterizations I have presented here, and to distinguish them from Reform, in the next column I will try to examine critically the claims of the Reform rabbi Moshe Zemer in favor of Reform changes in Jewish law. There I will try to identify the differences and show that the picture I have described here is still conservative.