What Is Modern Orthodoxy: How Does It Differ from Reform? (Column 478)

In the previous three columns I presented a fairly detailed map of situations and mechanisms of halakhic change and categorized arguments for and against change by type. In the last column I suggested defining features of Modern Orthodoxy and contrasted it mainly with non-modern conservatism. At the end I noted the natural next question: is this in fact a conservative method, or did I merely rephrase the principles of Reform? To address this, I will critically examine several of the arguments of the Reform rabbi Moshe Zemer in his book Sane Halakhah, and try to indicate similarities and differences from the picture I drew in these columns.

Reform and Conservative Halakhic Literature

Already at the start of this series I noted that I deal with typifying kinds of arguments, not with the arguers (sociological groupings). In discussing Zemer’s arguments we will again see how confusing sociology can be (that the arguer defines himself as a Reform rabbi does not necessarily mean his arguments are such). I note that the Conservative halakhic literature (they have quite a few responsa collections)[1] is of course richer and more halakhic, and there one can find not a few arguments of a Modern-Conservative character. In the first column in the series I already stated that, in my view, there is no essential difference between them and Modern Orthodoxy, aside from questions of degree. The tenor of their arguments is generally entirely Modern-Orthodox, and precisely for that reason I will not deal here with their arguments. Such examples were already brought and discussed in previous columns.

I’ll remark that the label “Conservative” is nowadays perceived in the Orthodox world and especially among rabbis as a pejorative—a warning tag for someone outside the legitimate bounds of halakhah. People don’t really distinguish between Reform and Conservative (again, I’m not dealing with people but with outlooks and arguments). In my opinion this is a mistake. The label “Reform” truly denotes arguments outside the bounds of halakhah (that is, of halakhic conservatism in its varieties), but “Conservative” is a tag without real content. If someone decides that I am Conservative (an optimistic assessment compared to a few other characterizations I’ve already received), I have no problem with that. There is indeed something to it, and there’s no need to get excited about labels and tagging. The important question is whether I am right, not what label should be stuck on me. Labeling is the tool of the weak, serving those who lack substantive, relevant arguments. This is especially so with labels that carry nothing negative other than a poor public image. And still, there is value in examining such labels and tags on the substantive plane (and not the sociological one).

I note that Zemer’s book is constructed very similarly to Conservative literature. It opens with a foundational section in which he describes the principles of his halakhic doctrine. The very fact that he bothers to anchor his proposals in interpretations of halakhic sources characterizes Reformers of past generations. It seems that today they hardly do this. Reform no longer truly pays tribute to halakhah—except at a folkloric level—and certainly does not formulate a halakhic stance in light of sources and scholastic discussion. This fact indicates that Zemer is not indifferent to halakhah and that he is committed to it in some sense, despite being Reform. And yet, one can see in several arguments of the book his Reformism, and in some points it is clear that he does not meet the criteria of Modern Orthodoxy (that is, of conservatism) as I outlined them here. I will of course not go through the entire book, but will select a few representative points to illustrate my principled claims.

As an aside I note that when the book first came to my hands many years ago, I had not yet adopted my current “heretical” views, and therefore I read it with great hostility (“some Reform type who understands nothing and can’t learn”). But while reading I decided to try to maintain intellectual honesty, and then suddenly I began to wonder what exactly is wrong with his arguments. In what way are they different from accepted arguments within Orthodox halakhah? My sense was that the difference is at most in degree but not in substance. That somewhat surprised and shook me, and led me to begin examining more systematically the theory of halakhic change and the concepts of conservatism and commitment to tradition. A few decades passed, and in the end this calf was born… (for those who needed evidence of what comes out of reading heretical books and violating “do not stray”).

Halakhah and Morality

As noted, the first section of Zemer’s book surveys the tools that halakhah itself places at our disposal to carry out the necessary changes and adaptations. This is a discussion of halakhic tools; it does not address specific laws and their change in our times. Even so, it seems that already here one can see from time to time that we are not dealing with a conservative approach (including midrashic conservatism) but a Reform one.

The first chapter there is entitled “Halakhah as an Evolving Moral System.” Already the title, and then its content, attest to an approach that, at least in my eyes, is problematic. For Zemer, halakhah is a purely moral system. In his view, halakhah is directed solely to achieving moral goals, for the individual and for society. It is important to note that in this respect he is no different from R. A. I. Kook (and many others) who in several places speaks this way about halakhah. But for Zemer this is a sufficient foundation to demand changing halakhah whenever there is a contradiction between it and morality (or even where the halakhah in question lacks a moral basis, even if it is not anti-moral). If the purpose of halakhah is moral, then it naturally follows that where it does not align with moral values—or even does not realize them (is indifferent to them)—it should be changed.[2]

His Orthodox counterparts, those who also identify halakhah with morality, accept the same (problematic—and in my view actually refuted) premise, but nevertheless refrain from changing halakhah with various pretexts. They explain that we lack authority, or alternatively that at the foundation of halakhah lies a morality deeper than we understand (not eating pork, redeeming a firstborn donkey, or wearing tzitzit, in their opinion, apparently elevate the world to sublime moral heights, and slaying Amalek or not saving a gentile on Shabbat are the ultimate moral mandates), and the meticulous add that contemporary morality is ephemeral fashion, and the like.

All these are, of course, very unconvincing arguments. In that sense, the approach that identifies halakhah as the framework of Jewish morality is indeed inherently Reform, despite Orthodox attempts to evade this conclusion. By contrast, yours truly has written more than once that he adopts an approach that disconnects halakhah from morality and does not recognize a “Jewish morality.” There is one morality for Jew and non-Jew alike; what is moral is moral and what is not is not—regardless of what halakhah says about it and regardless of whether you are a Jew or a non-Jew. Therefore, I also do not see clashes between morality and halakhah as contradictions but at most as situations of conflict. For me, there is no principled theoretical problem with a halakhic directive that is not moral (or a-moral—such laws also contradict the approach that identifies halakhah with morality). But indeed in such cases a practical conflict arises about how to act. I will recall what I have explained more than once: despite the above, where there are two possible paths within halakhah, it is legitimate and desirable to choose the one that accords with moral values (at least as a practical criterion for how to act, even if it is not necessarily the correct halakhic interpretation). Still, in my opinion, there is a disconnect—or at least non-dependence—between these two systems.[3]

It is important to understand that if one conceives the aims of halakhah as purely moral, then there is no principled difference between Jew and non-Jew regarding their tasks in the world. The non-Jew too must be moral, and, as noted, there is no real difference between “Jewish morality” and non-Jewish morality. According to such approaches, it is altogether unclear what the meaning of religion and halakhah is beyond simply being a decent human being. Such a conception empties faith and halakhic commitment of content.[4] I have not even raised the question of efficacy—namely whether halakhic commitment in fact creates more moral people and societies. In my opinion, it does not. What does that say about the justification for adhering to halakhah in such a case?

Zemer argues there that halakhic authorities often tried to align halakhah with morality and even employed creative interpretations to that end, and from this he finds justification for his Reform path. I would say that there is no doubt there is truth in these claims, but in my opinion they do not prove his principled conclusion. Such phenomena do not show that the aims of halakhah are only moral values, but rather that, as far as possible, halakhic authorities try to resolve practical conflicts between halakhah and morality. The implication of the difference between his view and mine is in cases where this cannot be done. In other words: is it justified to bend or nullify halakhah solely because it is immoral (at least by contemporary morality), as Zemer—consistently with his view—proposes? (So too R. Kook and his like ought to have conceded.) Despite my midrashic conservatism, my answer is: absolutely not. Halakhah aims at religious goals and not moral ones (certainly not only moral goals). Therefore, when it conflicts with morality, that alone is not sufficient ground to change it. This point recurs in almost all the arguments in Zemer’s book.

At the beginning of my book Mahalkhim Bein Ha-Omdim (“Walking Among the Standing”) I pointed out that this is certainly true where halakhic principles are written in the Torah itself and the contradiction with morality is inherent (not incidental). A few examples of such situations are killing an Amalekite infant, forcing separation between a priest and his wife if she was raped, or declaring children from prohibited unions mamzerim barred from marriage. My presumption is that the Torah itself, in its command, expresses a decision in favor of halakhah and against morality. In such cases the conflict is resolved by the Torah itself, for it surely took the moral aspect into account and nevertheless gave the halakhic directive (if in such cases morality were to override halakhah, that halakhah would be emptied of content and the biblical command would be inapplicable and unclear). It is therefore implausible to nullify such laws on moral grounds, though they can certainly be limited (“you have only what is novel,” and “do not add upon it”). As we shall see, for Zemer this is sufficient to change or nullify the halakhah (and, as noted, this ought also to be the case for his Orthodox partners in the view on halakhah-morality relations).

Between Motivation and Justification

Later in that section, Zemer brings several tools from the halakhic toolbox—most of which, it seems to me, do not assist his aims. In this section I will sharpen another substantive point that recurs in almost all his examples.

Take as an example the first sugya he treats: derishat lashon hedyot (Bava Metzia 104a and elsewhere). The Gemara reports that Hillel wished to permit mamzerim, and therefore expounded the contract language used in ketubot in Alexandria: “When you enter the bridal canopy, be my wife,” meaning that the betrothal takes effect only when she enters the huppah.[5] Hillel the Elder thus voided the kiddushin of women who married others before entering the huppah with the first man. But this sugya does not actually prove what Zemer wants from it. Hillel interpreted the text of the ketubah and took it seriously, thereby voiding kiddushin. But the ketubah is truly a contractual commitment between the parties, and halakhah sees it that way. Therefore, if it contains a condition that cancels the kiddushin, there is room to void them if the condition was not fulfilled. The fact that Hillel’s motivation was to purify mamzerim is unrelated to the justification for voiding the kiddushin.

The conflation of motivation with the halakhic tools for implementing it is a common error in discussions like this. Even if a decisor has moral and value-based motivations to change halakhah, if he is conservative rather than Reform he is supposed to use tools that hold water to do so—and not play games and knead the halakhah as he pleases without real halakhic justification. The value motivation by itself is not sufficient justification on the halakhic plane. This is one of the salient differences between a Reform approach and midrashic conservatism. We may pose it thus: would Hillel have voided kiddushin in order to abolish mamzerut altogether from Israel? If the ketubah had not been worded in a way that could be expounded thus, I am convinced Hillel would not have done so—despite the motivation, which would of course have existed then as well. The Gemara there implies this clearly. The Reform proponent hangs his case on motivation; for him it suffices to justify halakhic change. He does not seek a conservative midrash that would justify it with halakhic tools.

Apropos this sugya, Zemer often leans on Prof. Yitzhak Gilat’s book Perakim Be-Hishtalshelut Ha-Halakhah (“Studies in the Development of Halakhah”), both on the matter of derishat lashon hedyot and throughout the book. When Gilat’s book was published it made a great splash (or, as R. Nahman would put it: “a great noise in Heaven”), for he—a Hebron Yeshiva alumnus in his “criminal” past—put squarely on the table the claim that halakhah develops and changes across the generations, and he demonstrated this from the halakhic sources themselves through scholarly (academic) analysis. I recall the reviews and commotion that the book aroused across the rabbinic world, which of course immediately prompted me to go and buy it (and this was before I became a certified and licensed heretic). When I read the book—something most reviewers obviously did not do—I discovered a nuance that the critics usually missed. As far as I saw, Gilat throughout his book does not argue that moral motivation was the basis for halakhic change. He is careful, more than once, to say that such motivation was what spurred the Sages to seek halakhic mechanisms (a conservative midrash, in my parlance) to effect the change.

For example (also discussed by Zemer), Gilat treats the rule “the Sabbatical year in our time is rabbinic,” and shows that this conception crystallized only in later sugyot—those formed after the destruction. He thus hypothesizes that the motivation was various hardships of farmers and the public after the destruction. But I saw that he indeed writes that this determination came to resolve economic and social distress, yet he carefully avoids writing that the distress was its justification. It was the trigger to seek and interpret the Torah and to reach the conclusion that the Sabbatical year today is rabbinic and thus there is room to be lenient. Were it not for the distress, the Sages would not have sat over the matter and would not have discovered that the Sabbatical year today is rabbinic; but the distress by itself is not sufficient ground for that determination.

This fundamental distinction between motivation and the halakhic tool on which the change is based escaped most of Gilat’s reviewers, and it is also what lies at the root of my dispute with Zemer and Reform generally. Zemer interpreted Gilat exactly like his Orthodox critics did—as though motivation were the basis for the change. Only the critics concluded that this makes Gilat Reform and thus heretical and untouchable, while Zemer concluded that he is Reform and thus one may rely on him. Note that—as in many other cases—both sides err, even in the same error. Gilat was not Reform (whether one likes Reform or not), because for him change requires a halakhic tool that holds water (a conservative midrash), and without it one cannot implement it. Distress may at most be a motivation to search for and deploy such tools.

This is precisely the watershed between Reform and midrashic conservatism, and it threads through all the critiques of Gilat’s book as well as all the arguments in Zemer’s. Arguments for change in halakhah without a conservative midrash are Reform. Arguments grounded in a conservative midrash are conservative. Of course one may debate the legitimacy of conservative midrash as such, or the validity of a specific conservative midrash, but that is not my concern here. My discussion is whether it is legitimate (conservative), not whether it is correct and should be accepted.

This important distinction resembles the distinction between the context of discovery and the context of justification in philosophy of science. There is a big difference between the motivation to search for a theory, or even to believe in it, and the empirical-scientific justification for it. I may believe a theory for various reasons, and perhaps it is convenient for me to believe it, but as long as it lacks justification in scientific-empirical terms, it cannot be accepted at the scientific level. No one will accept a justification for a scientific theory X on the basis that so-and-so’s intuition says it is true, or because it benefits us in some way—even if that benefit is value-laden and worthy.

Rabbinic Enactments (Takkanot Ḥakhamim)

His next example is the “penitents’ enactments.” As is known, the Sages enacted several measures to ease the path of those returning a stolen item and doing repentance. One is the “beam” enactment (Gittin 55a), which concerns a person who stole a beam and built a house and integrated it into the structure. If we require him to return the very beam as halakhah demands (as Bet Shammai rule), that will deter him from repenting. Therefore, the Sages (Bet Hillel) enacted that the beam remains his and he may compensate the victim monetarily. Zemer uses such enactments as a basis to say that one may change laws for moral, value, and social reasons.

Here the problem differs from that of the previous section. Indeed, the Sages can enact takkanot for reasons that seem correct to them, and for this they do not even need to perform a conservative midrash. A conservative midrash is intended to justify changing a biblical law (or a different application in new circumstances). A rabbinic decree or enactment operates via a different mechanism. The Sages are not changing biblical law but adding a rabbinic layer and displacing the biblical law (by instructing passivity, and sometimes even actively). This is an authority granted to them by the Torah, and it does not require a conservative midrash. It suffices that the Sages have a motivation (such as easing repentance, preventing prohibitions, or some value consideration). There are several sources for the authority given to the Sages to enact takkanot (based solely on motivation), such as “make a fence for My fence,” or “you shall not turn aside,” and the like. Moreover, the Rambam at the start of Hilkhot Mamrim also explains that the Sages must state that this is a rabbinic addition and not a biblical law, so that we not be confused.

Why is this important? Because although the Sages indeed have such authority, and takkanot do not require conservative midrash but only motivation (like a value justification), that authority is vested only in the forum or institution to which “you shall not turn aside” applies—namely, the Great Court (Sanhedrin). Note that what Zemer proposes is not the addition of takkanot but the change of biblical laws without backing of a conservative midrash. He explains that such-and-such a law is not relevant today and therefore is null—and he is not proposing an enactment that circumscribes it. This touches on our basic commitment to halakhah itself, not to time-bound additions. Therefore, rabbinic enactments cannot support his practical proposals. One may ask, of course, what I would say if Zemer were proposing this as takkanot and not as halakhic change. In that hypothetical case, indeed, motivation would suffice and no conservative midrash would be needed—but then the crux would be questions of authority, not substance: whether today one may dispute the Talmud or add takkanot without a Great Court and without broad public consensus (like that which created commitment to the Talmud’s authority). In any case, this does not seem to be Zemer’s claim, since he speaks about the original halakhah, not about adding later enactments and decrees.

This is another point distinguishing Reformism from midrashic conservatism. For the midrashic conservative, to implement change requires a conservative midrash (for biblical laws) or a duly authorized institution that can enact takkanot (for rabbinic laws, where one does not need a conservative midrash but only motivation). For the Reform approach, our own consideration suffices (as we saw in the previous section, motivation replaces halakhic justification). From a conservative perspective, precedents based on takkanot and decrees of the Sages are irrelevant for changing biblical laws at all, and for enacting new rabbinic measures in our day. And these are, after all, the matters at issue in the debate with Reform.

“It Is a Time to Act for the Lord”

His next discussion is the rule of “It is a time to act for the Lord” (Berakhot 63a and elsewhere), by virtue of which Rabbi [Judah the Prince] permitted writing down the Oral Torah (for fear it would be forgotten).

Rashi (Yoma 69a) explains it thus:

When the time comes to do something for the sake of the Holy One, blessed be He, it is permitted to override the Torah.

This is already seemingly closer to our topic. True, here too it concerns a Sanhedrin enactment (Rabbi), and in that sense this path is not open to us, for the reasons explained in the previous section. But if it were a simple enactment, there would be no need to invoke this verse and fashion from it a special rule. Every rabbinic decree and enactment is, in this sense, a “time to act for the Lord” (departing from the law for God’s sake). It appears this is not a rule that grounds enactments but a directive open to sages in every generation, even where there is no authorized institution and no ordained sages. Perhaps it concerns a kind of “transgression for the sake of heaven,” or freezing laws temporarily (which can, of course, be prolonged—indeed in my book Mahalkhim Bein Ha-Omdim I proved that this possibility is not conditioned on ordination and a Sanhedrin[6]), and perhaps even past nicht (procedural inappropriateness) considerations. Such a mechanism indeed exists within the midrashic-conservative framework I described here, but its application is limited to heavy, clear moral problems and to significant consensus among the sages of the generation. Uprooting wide swaths of halakhah by this mechanism seems highly problematic—though this is indeed a question of degree, not essence.

To this family of principles one may also attach the rules “Better that Israel eat meat of animals that died [but were] ritually slaughtered, than that they eat meat of animals that died as carrion” (Kiddushin 21b–22a)—that is, better to minimize transgression. This is a problematic rule and I shall not enter it here. It is unclear whether it is a halakhic rule or an extra-halakhic directive for the decisor (see on this in my essay for Parashat Ḥayyei Sarah, Midah Tovah, 5767). On the face of it, it seems to be guidance for deciding in a conflict between halakhah and morality or between halakhah and extra-halakhic considerations; accordingly, it does not change halakhah itself but instructs practical behavior in a specific situation. In any case, it is capitulation to weakness, not changing halakhah for extra-halakhic value principles.

So too the dispensations for exigent circumstances that he cites belong to a similar category. Halakhah is full of leniencies in cases of duress, but this is not a directive to change the law; it is a dispensation born of capitulation to hardship. The same applies to the dignity of creatures, to leniencies “on account of suffering,” “on account of enmity,” and the like. None of these is a rule for changing halakhah, but for specific applications in times of hardship. Moreover, these rules too have halakhic definitions (albeit not unequivocal) of when they apply and when not; thus, it is hard to see in them a basis for sweeping Reform change.

This sort of rule is, of course, legitimate also within the midrashic-conservative picture—but with different degrees and scopes. Therefore, here there is indeed no substantive logical difference between Reform and midrashic conservatism. According to both approaches, such arguments can be accepted, though there will likely be differences in degree and extent.

The Examples in the Body of the Book

The principles discussed in his opening section form the basis of the book’s claims, and having dealt with them I am exempt from discussing the specific proposals. Still, I will bring a few examples to illustrate the points.

Chapter 3 deals with yibbum and ḥalitzah. He opens with a heart-rending depiction of the woman’s status and morally and ethically troubling situations that these principles create (agunah, extortion by the ḥalitzah-performers, and more). After that he gives a general introduction to the topic, and then leaps to the sweeping claim that was adopted as a resolution of the Reform rabbis’ conference in Augsburg (1871):

The commandment of ḥalitzah has lost its importance, since the circumstances that obligate yibbum and ḥalitzah no longer exist. The idea underlying this law is foreign to our religious and social outlook. Not performing ḥalitzah is no obstacle to the widow’s remarriage.

He brings this without really explaining what that underlying idea is and why today it is not relevant to their religious and social outlook (and whence that outlook derives). The feeling is that for them it suffices to say “this does not speak to us” or “it seems foreign,” in order to nullify severe laws of matters of marital relations. You will not find there a conservative midrash—not even a modern one (that builds on changed values). A sense of rejection and alienation suffices as a substitute for conservative midrash. The law is void because it doesn’t sit well with them, period.

Finally, he brings a few highly questionable attempts at explanation—but they at least purport to present a conservative midrash. For example, that the laws of ḥalitzah and yibbum presume that the woman is her husband’s property (his chattel), which is not relevant today. Where is this seen? I did not grasp (and I do not agree in any case). It is evident that the “conservative midrash” need not be particularly cogent in order to cancel a law. And it is no wonder that, beyond several Reform rabbis he cites there, most do not resort to rationales and conservative midrash at all, for even those who bring them do so as a façade. There is an apparent similarity to midrashic conservatism, but the poor quality and thin grounding of the “midrash” indicates an essential difference (a tactical use of what appears to be a conservative midrash).

In the following chapter he turns to the prohibition on a priest marrying a divorcée. Here the situation is different, for there is a fairly reasonable conservative midrash according to which this prohibition is connected to Temple service, which does not exist in our time; and the status of the divorcée today is not what it was in the biblical and Talmudic eras. Beyond this he raises the question of priestly lineage today, which also casts doubt on these prohibitions. In principle this is a legitimate and even fairly plausible conservative midrash, and thus it deserves serious discussion. I will not do so here, since my aim is only to show that even if proposals are raised by a Reform rabbi, that does not necessarily mean the proposals are Reform.[7] This is the distinction between substance and sociology that has accompanied us in these columns. Clearly for Zemer this does not take him out of the Reform camp, for in his view one can change laws even where there is no reasonable conservative midrash (merely because they are immoral, for example). But the argument itself is certainly worth discussion.

The last example I’ll bring here is the question of mamzerut (Chapter 5). Here too he opens with heart-rending descriptions of difficult situations caused by the laws of mamzerut. After an introduction to those laws, he turns to discussing changing them. In the bottom line he proposes change solely on the basis of the moral difficulty (children suffering a very severe penalty for their parents’ sin). The precedents he cites permitted cases of mamzerut by halakhic arguments that held water (even if disputed and debatable). But he proposes to abolish mamzerut entirely. Again we see that moral motivation suffices, in his view, to change halakhah with no need for a conservative midrash. For if we seek to build a suitable conservative midrash, we would have to explain why in the time of the Torah and the Sages marriage restrictions on mamzerim were imposed, and what has changed today that makes the prohibition irrelevant. But you will not find this in his words. At most he points to greater need (for example, his claim that in the USSR there was no way to separate in accordance with “Moses and Israel,” which created a widespread problem of mamzerut). All these are considerations of need—that is, pointing to motivations to seek a heter. But conservatism demands justification by halakhic tools. Motivations, however worthy, are not conservative midrashim.

I note that if one conceives the goal of halakhah as the realization of moral values, then one can understand why such a profoundly immoral outcome is unacceptable. But that proves the point: that was the case in the past as well, and yet the Torah and the Sages prohibited mamzerim from entering the assembly. The upshot is that halakhah likely has aims beyond morality; therefore, pointing to a moral problem does not suffice to ground halakhic change. Beyond that—or perhaps as a result—the moral motivation, understandable and legitimate though it is, cannot be the tool on which to base the proposed change. This is a quintessentially Reform argument, and it differs sharply and clearly from midrashic conservatism.

Conclusion

I will not continue, like a peddler, to deal with all of Zemer’s examples, for the ones discussed suffice to clarify the principle. His motivations are desirable and, in most cases, acceptable to me as well. But for me, motivations are not enough, and one who is committed to halakhah cannot suffice with them as the sole basis for change. Implementing changes in this way means there is no commitment to halakhah: you do what seems morally right to you and then call it “halakhah.” Commitment entails dilemmas and paying prices. In the end, the feeling is that a Reform rabbi is never truly in a dilemma or conflict. If the halakhah is not moral, then in his view it simply does not exist. In this he differs essentially from all the rabbinic precedents on which he himself relies, for they all acted within a framework of conflict—that is, out of distress and tension between halakhah and morality and social reality—and they sought ways to address that tension. I have written more than once that a conflict between halakhah and morality can exist only for one who is independently committed to both components, halakhah and morality. One who is not committed to one of them will not experience conflict, even if he for some reason chooses to present it that way. The Reform framework does not include commitment to halakhah—that is, conservatism—of any kind. Halakhah is a kind of discourse, folklore, but not truly binding. This differs from the Conservatives, as I have noted more than once in these columns.

I will conclude by stressing that it is very important to me that the motivations of Zemer and his colleagues be important also to halakhically conservative (Orthodox) figures. Even where there is no solution, it remains important that we possess moral and value sensitivity. And at times when there is such awareness and sensitivity—that is, when there is motivation—we succeed more in finding halakhic tools that justify and enable change. Of course, unlike the Reformers, this will not always be the case. Within a conservative framework (that is, one committed to halakhah), there will be situations in which the motivation indeed exists, but we will not find tools that allow us to implement a change in practice.

And to the listener, may it be pleasing…

[1] My impression is that very few of them truly know how to learn (and those who do are usually alumni of Orthodox yeshiva education). In the responsa I have read, for some reason they all end by thanking Prof. David Golinkin, and to my impression he is the one who anchored all those responsa in halakhic sources. In short, it seemed to me he was the only one there who knows how to learn.

[2] Here a conservative midrash is called for as a result of a change in values.

[3] There can be a practical difference between the two conceptions. If I see morality as an interpretation of the intention of halakhah itself, then when the moral interpretation is less plausible in terms of the halakhic source, there is no justification to choose it. But if morality is a way to decide practical action between two interpretations (and not a decision as to which is halakhically correct), then there is room to choose it even if that interpretation is inferior to its competitor. To take a non-moral step requires high certainty that this is indeed the halakhic directive. This of course requires further elaboration.

[4] To complete the picture, I note that in my book Ha-Matzui Ha-Rishon (“The First Existent”) I argued that it is implausible that morality is the goal of creation and Torah, for morality is an instrument for creating a functioning society and refined persons; were that the goal, God could simply not have created humankind and there would be no need to refine them. I therefore concluded there must be values outside creation that are its goal, and morality is a means to a functioning society capable of acting for those values. I called them there “religious values,” and argued that halakhah directs us toward them (and not toward morality).

[5] Incidentally, this is a wonderful precedent for voiding kiddushin by means of a condition—something that today is rejected by all decisors, even when one makes an explicit condition and not merely expounds “layman’s wording.” One should connect this to Zemer’s discussions at the end of the chapter on hafqa‘at kiddushin (annulment) and conditions in kiddushin, which likewise cannot ground his proposals for the reasons I explain above.

[6] See also here, here, and here; a reminder in column 275, and more.

[7] For a similar proposal of mine, see my article on the status of a convert regarding marriage and public office. There I argued that the foundation of the prohibition lies in the convert’s low social standing—that is, a concession to an unworthy state. Accordingly, when the situation returns to being worthy, there is room to change those laws (including biblical ones). I even brought proofs from the sources.