One of the most striking and important developments on the American Jewish scene in the twenty years immediately following World War II was the emergence of Conservative Judaism as the most popular religious movement among American Jews. As a social movement, Conservative Judaism provided the framework in which large numbers of upwardly mobile Jews, primarily of Eastern European background and themselves immigrants or children of immigrants, integrated themselves into middle-class urban or suburban American culture while at the same time maintaining ties with their traditional roots. As an ideology, it provided these Jews a middle ground between Reform and Orthodoxy: whereas the former seemed to have all but abandoned the dictates and practices of Jewish religious law, and the latter seemed frozen into rigidity, Conservative Judaism appeared to offer a delicate but fruitful balance between tradition and change that spoke to the situation and needs of most American Jews.

Yet today, at the very height of Conservatism’s phenomenal popular success, leading spokesmen of the movement appear to have become plagued by self-doubt, disquiet, and gloom. In fact, Conservative Judaism in recent years has been undergoing a crisis of confidence which is still far from being resolved. An examination of that crisis tells much about the current condition of belief among many American Jews.

In an essay a few years ago in Midstream, Marshall Sklare, the prominent sociologist of American Jewry and the author of a definitive study of the Conservative movement, isolated three contributing factors behind Conservatism’s newly worried mood. First was the sudden and unexpected emergence of Orthodoxy as a vital, aggressive, and self-confident movement in American Jewish life. The development of an Orthodox middle class and intelligentsia, Sklare wrote, challenged Conservatism’s faith in itself as the wave of the future, just as it gave the lie to the belief that Orthodoxy was a relic of the past. Second, the Conservative ideology of tradition-and-change seemed to be failing to achieve its announced goal, namely, greater observance of Jewish religious law. “There is not a single Conservative congregation,” wrote Sklare, “where the overwhelming majority of congregants practice the commandments according to the Conservative regimen.” Third, Sklare pointed out, despite the relative success of Conservative programs in training an elite corps of young Jews to become future rabbis and community leaders, many among the younger generation, no longer sustained by the memory of traditional Eastern European Jewish culture and often suspicious of the middle-class American culture into which Conservative Judaism has so well integrated itself, had become alienated from the Conservative movement, from Jewish religious practice, and from organized Judaism in general. Given all this, Sklare concluded, it was perhaps not so surprising that Conservative leaders should be beset by worries, even despite the fact that by objective criteria—numbers of adherents, size of congregations, and financial resources—Conservative Judaism continued to be more successful than either Reform or Orthodoxy.

_____________

There is yet another reason for the crisis of confidence in Conservative Judaism, one which Sklare in his Midstream article alluded to but did not discuss. This is that the particular Conservative ideology of tradition-and-change has not only proved a failure in winning over masses of Jews to religious observance, it has increasingly become a contested and divisive arena within the movement itself. Not only in practice but in theory too, Conservative Judaism had staked out for itself what it saw to be a middle ground, but this middle has come to seem fragile, ambiguous, and tenuous, and appears now to be in the process of dissolving. Conservative Judaism is splitting into two antagonistic ideological camps, one of which places ever greater emphasis on tradition and ever smaller emphasis on change, while the other does just the opposite.

According to classic Conservative doctrine, the very procedures by which Jewish religious law came to be formed, as exemplified in the Talmud and even more importantly in the post-talmudic medieval rabbinic literature, contain within themselves the necessary flexibility to function effectively in 20th-century America. The Conservative contention was that Orthodoxy had needlessly panicked in the face of modernity, with its twin threats of assimilation and secularization, and out of this sense of panic had turned the halakhah, Jewish religious law, into a rigid code of behavior and prescript. Conservative rabbis, on the other hand, saw themselves as the true successors of the old, pre-modern halakhic tradition, with its built-in flexibility and its ability to change with changing circumstances while still remaining within the bounds of its own norms.

What did Conservative rabbis mean when they spoke of change within the law? In large part, what they had in mind was liberalization. This seemed desirable for a number of reasons. New social and historical circumstances had made it difficult even for committed Jews to observe particular laws. In addition, many laws seemed unacceptable, objectionable, or offensive in the light of modern sentiments and values. There was also the strong conviction that liberalization would win’ over many uncommitted Jews to practice. And beyond this, when Conservative rabbis spoke of change they generally thought of it as a good per se, part of Judaism’s character as a living religion.

The specific halakhic model which Conservative scholars adopted for the purpose of effecting change while staying within the bounds of halakhah was the responsum. The responsum is a judicial opinion which draws upon the rich body of talmudic and medieval Jewish law to resolve new legal problems posed by changing social, cultural, economic, and historical conditions. In its very form it embodies the confrontation between the timeless, fixed, normative world of sacred law and the fluid, ever-changing, concrete social situation. While relying heavily on precedent and tradition the responsum is alert to circumstances which may in turn require new and different applications of the law, and in applying the law in these new circumstances it takes full advantage of the maneuverability provided by the complex, confusing, and sometimes contradictory views in which the accumulated body of Jewish legal doctrine abounds.

_____________

Now, what has happened over the last decades is that the classic genre of the responsum has proved an insufficient instrument for enabling Conservative Judaism to make the changes in the law it has felt to be necessary. Many of the major changes that the movement has instituted, indeed, could not be justified in a traditional halakhic manner, and have therefore been made de facto rather than de jure. A striking example is the mixed seating of men and women in the synagogue, perhaps the major feature distinguishing Conservative synagogue practice from Orthodox. No official responsum has ever been issued to justify this move—undoubtedly because the clear and universal consensus of all talmudic and post-talmudic sources requires separate seating. The result is that a significant change has been instituted in Jewish religious life by a procedure that contravenes the very tenet to which Conservatism had pledged the highest allegiance.

Even in cases where responsa have been issued to justify desired changes, they have often stretched the halakhic process to its breaking point, or beyond. Many Conservative responsa, despite the resemblance they bear to classical models, are characterized by a certain looseness of thought, resulting from a willingness to ignore the limits of halakhic flexibility, which can be illustrated by the two most hotly debated responsa issued by the Committee on Law and Standards of the Rabbinical Assembly, the Conservative rabbinical body. the responsum permitting driving an automobile to the synagogue on the Sabbath, and the responsum justifying the inclusion of women in a minyan (prayer quorum).

The primary reason for the responsum on driving was sociological: modern synagogues in suburban areas are often beyond reasonable walking distance for many members. But in order to justify riding to the synagogue halakhically, the Rabbinical Assembly had to show that the combustion of energy involved in driving an automobile was not a form of work prohibited on the Sabbath, specifically that of kindling. (In classical halakhah, abstention from work on the Sabbath takes precedence over attendance in the synagogue.) To establish this point, the responsum propounded a unique interpretation of a certain talmudic rabbi’s view concerning the nature of prohibited work on the Sabbath. Yet, as has been pointed out by the responsum’s critics within the Rabbinical Assembly, in the view of many authorities the law is not decided in accordance with the opinion of that rabbi; moreover, the interpretation of his opinion offered by the Conservative responsum is dubious in the extreme, and even if one were to follow it, driving an automobile would still be prohibited on the Sabbath. There is, finally, a deep irony embedded in this responsum, for in order to justify the sort of change in the law they wished to bring about, the rabbis drafting it had to rule out one of the prime modes of argumentation—the use of the principle of analogy—by which halakhah adjusts to new conditions.

If new living patterns lay behind the responsum on driving an automobile to synagogue on the Sabbath, the spirit of feminism lay behind the responsum justifying the inclusion of women in the minyan. Here, again, halakhic grounds were sought and supposedly found—in this case, in the view of a 13th-century rabbi that if nine men are present at a minyan, a woman may be counted to make up a quorum of ten. But even if the fact is ignored that the view of this rabbi is disputed by all subsequent authorities, it would be difficult, as Rabbi David Feldman wrote in his dissenting opinion, to extend that view to allow women to count on the same level as men. Here, too, the halakhic process was stretched beyond recognition in order to provide the desired result.

The classical halakhic process of interpretation and development, then, as exemplified in the responsa literature, has come to seem inadequate to achieving the goals of Conservative Judaism. It is out of the painful awareness of this state of affairs that the entire ideological enterprise of Conservatism has increasingly come under attack from within the movement. This attack is coming from two directions at once, from the “Right” and from the “Left.”

On the “Right,” many young and articulate rabbis of a strong traditionalist bent have both criticized specific changes in the halakhah set forth by the Rabbinical Assembly and argued generally that there is a limit to the liberalization which halakhic Judaism can undergo in order to be brought into consonance with contemporary values and sentiments. Two such men are Rabbi David Feldman and Rabbi David Novak.

Feldman is the author of Birth Control, Marital Relations, and Abortion in Jewish Law, a highly acclaimed historical study of a basic area of Jewish law which at the same time exemplifies the classic halakhic process of analysis. Though Feldman does arrive at a “liberal” position on the question of abortion—leaning toward the view that it is permitted if the pregnancy causes “grave pain,” physical or psychological, to the mother—he does so by way of a thorough study of all halakhic literature on this difficult and complex subject, and a careful use of liberal precedent. Moreover, Feldman makes his own point of view clear, which is that wherever there is a clash between halakhah and modern-day values, it is halakhah which must have the final say—as was mentioned above, it was he who wrote the minority opinion opposing the inclusion of women in the minyan.

David Novak’s Law and Theology in Judaism, a collection of responsa on a variety of subjects, offers perhaps the most extensive critique so far of the Conservative drive toward liberalization. In the essay, “Riding on the Sabbath,” for example, Novak not only objects on halakhic grounds to the Conservative decision in this matter, but goes beyond this to point out that the entire question only arose in the first place because people were not committed to the halakhah:

One chooses where to live on the basis of his or her life priorities. If Sabbath-observance is high on the list of those priorities, one will make it his business to live in the neighborhood of the synagogue. If Sabbath-observance is not high on one’s list of priorities, choice of a home will be determined by other considerations.

To Novak, the ideological error-committed by the Conservative rabbinate is that instead of seeking to resolve hardships caused by people’s adherence to the halakhah—the classical procedure—it has been seeking to resolve problems caused by people’s non-adherence to the halakhah. By contrast, Novak, in essay after essay, stakes out what he regards as the proper halakhic ground. Toward abortion, he adopts a stance even more restrictive than that of many Orthodox rabbis; elsewhere, he objects to any ideological change in the text of the prayer book, stating that this is not a task for one rabbi or a group of rabbis to undertake. When Novak does allow for innovations, they are generally minor, limited, carefully argued, and always based on scrupulous documentation and precedent.

The general premise underlying Novak’s work is worth citing at length, since it underlies as well the work of Feldman and of other rabbis in their camp:

Although Jewish law is interpreted by humans for human situations, its sources are given by God. Many human abuses have crept into Jewish . . . law and we are morally obligated to correct them. Nevertheless, all our efforts must be directed toward correcting human deviations; before the law of God we can only be corrected. Therefore, before we correct human error we must accept the perfect authority of God. Laws of the Torah may be restricted by interpretation but they can never be permanently uprooted without our being false to the Torah system as a whole. Jewish moral zeal to right legal wrongs is self-defeating if it eclipses the transcendent authority of the law itself.

In the light of a statement such as this, it would seem that there is really nothing substantive dividing this wing of Conservatism from modern Orthodoxy. And indeed, any of Feldman’s or Novak’s essays, perhaps with slight stylistic revisions, would be perfectly in place in Tradition, the journal of modern Orthodox Jewish thought.

_____________

If the Conservative right wing has sought to put limits on the possibilities of change and liberalization, the Conservative left wing, which forms the majority of the movement, has to the contrary become disillusioned with the whole halakhic process of the responsum, feeling that it is not adequate to the changes they believe are required (and perhaps feeling too that the genre has been overly abused in the service of liberalization). For change through interpretation, this wing of Conservatism wishes to substitute change through legislation. Rather than trying to seek, find, interpret, and apply legal precedents to new situations in order to justify innovation, the rabbis in this camp want the Conservative rabbinate to assume for itself the power to revise, change, and abrogate existing halakhah as it sees fit. In the technical terminology of Jewish law, the teshuvah, or responsum, is to be replaced by the takkanah, the ordinance. The rabbi will no longer act as a judge, but as a legislator; he will no longer interpret but proclaim.

A striking illustration of the difference between the old and the new methods is the treatment of the issue of feminism. Rabbi Phillip Sigal, the author of the official responsum justifying the inclusion of women in the minyan—a responsum that proceeds in classical style, attempting to find a precedent to justify the desired move—is also the author, under his own name, of an article that bears the revealing title, “Elements of Male Chauvinism in Classical Halakhah” (Judaism, Spring 1975). In that article Sigal asserts that the treatment of women in classical Jewish law was determined by the male chauvinism of the ancient rabbis. Since, however,

we live in a new age [and] possess a whole new mind-set toward the [question of] the equality of the sexes, it behooves us immediately to remove all obstacles to the full participation of women, publicly and privately, in all the rituals of Judaism.

Here plainly the call is for total revision based on proclamation, legislation, and abrogation of existing law, not just some slight changes brought about through interpretation.

The philosophy underlying Sigal’s approach and the approach of other Conservative rabbis who call for new legislation is spelled out in an article by a young Conservative scholar, Elliot Dorff, “Toward a Legal Theory of the Conservative Movement” (Conservative Judaism, Spring 1973). For Dorff, the move from interpretation to legislation represents an effort to recapture the pristine mode of rabbinic Judaism. Whereas the post-talmudic authorities of the Middle Ages developed the law primarily through interpretation of the Talmud, the talmudic masters themselves, writes Dorff, felt free to abrogate old law and create new law. This is the example Dorff urges on his fellow Conservative rabbis. Just as the talmudic masters did not consider themselves bound by past precedent, so we too, he argues, “should not feel ourselves bound by the specific decrees of the rabbis of any previous generation”; the past is to be accorded “a voice but not a veto.”

In its professed desire to return to the methods, approaches, and positions of the distant past as it imagines it, this version of Conservatism has tacitly abandoned the claim to be the legitimate heir of pre-modern Judaism and is acting as a typical reforming movement. Indeed, just as the right wing of Conservatism seems to be approaching modern Orthodoxy, so the left wing of Conservatism seems to be approaching Reform, which in its early stages sought in a similar fashion to justify radical changes in the present by an appeal to the pristine past. The irony is greater, however, in the latter case than in the former. For Conservative Judaism when it was begun as a movement at the end of the 19th century defined itself explicitly over against Reform, and in particular over against Reform’s disregard of halakhah—so much so that for a long time Conservatism was seen by many as an American variant of Orthodoxy. In fact, it has continually drifted away from Orthodoxy in the direction of Reform, and that drift has now begun to find ideological rationalization in the thought of spokesmen like Rabbis Sigal and Dorff.

Not that the reforming trend in Conservatism is without roots of other kinds. In part, it represents a reaction against the recent rise of Orthodox sectarianism, a phenomenon that is perceived as a threat by many Conservative leaders.¹ And in part too it reflects the desperate and rather naive belief that where partial liberalization of halakhah failed to win Jews over to observance, greater liberalization will succeed. In the greatest measure, however, the reforming tendency arises ineluctably out of the inner logic of the old Conservative theory of halakhah, which in its commitment to liberalization was bound, sooner or later, to move in the direction now being taken by a majority of its leading adherents.

_____________

The dispute between the two emerging wings and philosophies of Conservative Judaism can perhaps most succinctly be stated as a series of questions. Can halakhic Judaism thrive in an open, liberal, modern society if it is in dissonance with the values of that society? How close must the “fit” be between halakhic values and modern ones? Shall we judge halakhah in the light of our values, or our values in the light of halakhah? The left wing argues that if the discipline of a religious law is to survive in meaningful fashion, its particular forms must be adjusted so as to fit into modern life and culture. The right wing argues that it is possible, and necessary, to live with the dissonance and tension between halakhic values and modern ones, for if modern sentiments and values are to be the ultimate arbiters, then we will end by doing away with halakhah altogether—after all, the very idea of a binding, limiting, religious law is unpalatable to the modern liberal mind.

The questions raised by this dispute push far beyond legal and historical arguments over the nature of the halakhic process to the basic issue that has faced the religious Jewish community since the beginning of the modern era. How is Judaism to exist as part of that world and yet maintain its distinct identity? Can it be open to all that modern culture and civilization have to offer and yet continue to adhere to its own, often conflicting, set of values? How it chooses to answer these fundamental questions will in large measure determine the future course of Conservative Judaism.

¹ In his July 1974 COMMENTARY article, “Voices of Orthodoxy,” David Singer suggests that the “example of a vital Orthodox community” might “prod Conservative . . . Jews to a greater degree of traditionalism in their beliefs and practices.” It is at least equally possible, though, that Orthodox sectarianism, accompanied as it is by growing antagonism toward Conservatism, will serve to bring about greater Conservative sectarianism.