Rechtsgeschichte

Jewish Religious Law in the Modern (and Postmodern) World

by Ze'ev W. Falk

Table of Contents

1. Concepts

2. Modernity of Law

3. Modernity of Jewish Law

4. Postmodernity

5. Postmodernity and Law

6. Postmodernity and Judaism

7. Conclusion

1. Concepts

1.1.Jewish Religious Law (halakhah) is that part of Jewish tradition, defining a Jew's duties towards God and fellow human beings. Orthodox Jews tend to define themselves by their submission to halakhah; Conservative and some Progressive Jews also recognize its validity, though reserving the right of subjecting it to their conscience.

1.2.Modernity is a concept of the 19th century, expressing the aim of incorporating the experience of the recent past into artistic and other creation. Jewish enlightenment, starting with Moses Mendelssohn in the 1780s, though a "latecomer to modernity", became the avant-garde of modernity, rationalism and universalism.

1.3.Modernism is the attempt to reach a synthesis between traditional systems and the insights of modernity. Originally, the term had a pejorative meaning, describing the attempt to bend religion so as to be compatible with science and critical scholarship (1907). After a number of Catholic theologians and Bible scholars had adopted the historical and critical method and used ideas of psychology and subjectivism, they were accused of modernism, i.e. of having undermined the foundations of Christianity. The aggiornamento of John xxiii and the Second Vatican Council adopted some of the theses of the modernists.

The Protestant equivalent to the rejection of modernism and biblical criticism is called fundamentalism, named after a series of theological pamphlets "The Fundamentals" (1910-15). The counterpoint to this attitude is ecumenism and dialogue.

The Jewish analogies are the concepts orthodoxy, which is used to describe the rejection of any deviation from traditional belief or practice, and Gush 'Emunim (Faithful Settlers), describing Messianic-Activist Zionism. Non-orthodox and humanist Judaism oppose these interpretations.

1.4.Postmodernism, a result of individualism, realism and pragmatism, describes certain extreme results of modernity in culture, law and society.

2. Modernity and Law

The academic study of law was modernized during the l9th century by the formation of a number of legal theories. First came the call in England for radical utilitarian law reform. About the same time, the study of contemporary law was replaced in Germany by historical jurisprudence, dealing with the ancient sources of Roman law. Another method was sociological jurisprudence, i.e. the study of law as relating to social reality and as a means to an end. At the same time, the study of law was universalized and formalized by analytical jurisprudence and positivism. Kantian and Hegelian philosophy was used for the study of law and ethics, which meant a legal philosophy of idealism and natural law. During the 20th century, academic studies of law, in Scandinavia and America, used the methods known as realism, judicial behavior and policy studies.

3. Modernity and Jewish Law

3.1. Pre-modern Jewish law reflects many rabbinical reactions to the arguments of critics, such as Samaritans, Sadducees, Dead Sea Community, Christians and Qara'ites. Hence developed also the idea of the oral law as well as of the infallibility and immutability of both scripture and oral law.

Nevertheless, the rabbis remained aware of the Torah's dynamic potential: "God knew that the laws of this Torah needed extension or contraction, whenever place, event and circumstances so required, ... he therefore empowered the sages of every generation, ... to repeal some of the positive commandments of the Torah and some of its prohibitions, whenever the special situation and event so required. However, such a repeal should not be made for ever ... By this arrangement, the Torah preserved its identity, but allowed proper treatment for each time and event".

3.2.The first conflict between modernity and Judaism was expressed by Spinoza. His interpretation of the Torah of Moses was critical, and in his view, Jewish law and rabbinical jurisdiction had lapsed with the destruction of the Jewish state in 70 C.E. Thus, according to his theory, contemporary Jewish courts should no longer enforce obedience to Jewish law against the members of their community.

3.3. As a result of Jewish enlightenment, the Science of Judaism and the political emancipation of the Jews, gradually the commitment of educated Jews was weakened and their observance of Jewish law faded.

The division of Judaism into the so called Orthodox, Reform (or "Liberal"), Conservative (or "Traditional") and Reconstructionist camps, broke the shared tradition and discontinued the consensus needed for a meaningful legal and theological discourse.

As a result, the ultra-orthodox, chose to separate as much as possible from the non-Jewish environment, and from non-observant Jews, to prevent acculturation, while the so-called modern orthodox (more recently also centrist orthodox) sought a synthesis between Jewish and Western culture.

3.4. The modernism of Reform Judaism meant their reinterpreting tradition according to the spirit of time and according to the culture of the environment. This system was based on idealist philosophy and on evolutionism, i.e. on 19th century belief in progress. It has meanwhile incorporated the values of equality, democracy and pluralism, as well as individual freedom and autonomy.

Zechariah Frankel, the founder of Conservative Judaism, followed the school of historical jurisprudence, stressing the part of tradition and custom as well as of the laity in Jewish law.

Hermann Cohen and Leo Baeck, both relying on Kant's ethics, interpreted the Jewish sources according to reason and the autonomy of individuals.

Instead of this objective authority of reason and ideas, Buber and Rosenzweig based their philosophies on the subjective experience and consciousness. According to their system, the unchanging core of Judaism was not national tradition, but the relationship of the individual with God. For both, authority resided in one's self, i.e. both recognized personal autonomy, though Rosenzweig also recognized the objective validity of Jewish law.

Following the functional and sociological approach to religion, as suggested by Emile Durkheim, Asher Ginzburg (Ahad Ha`am) and Mordecai Kaplan rejected the metaphysical grounds of Jewish theology. Instead, the latter developed a naturalist system and used sociology for the Reconstruction of Judaism. Shifting from individualism towards ethnicity and culture, he justified his demand for Jewish identity without having to rely on metaphysics and Halakhah.

The existential problem of Judaism has been its sociological transformation. During the 20th century, through migration, urbanization and education, Jewish society has totally changed, and has become more and more secularized. Thus, the Jewish identity of the majority has become problematic.

3.5. Orthodox Judaism is both pre- and postmodern. While it has adapted to modern economics, medicine and natural sciences, its perception of religion, history and the humanities has remained unaware of modern scholarship. Hence, it closes its eyes vis-a vis biblical and other historical criticism of Judaism and opposes any reform of Jewish law. On the other hand, its stand even against the established results of modern thought and scholarship parallels postmodern skepticism.

One of the few Orthodox thinkers during the second half of the 20th century, to write a systematic defence of the faith vis-a-vis science and philosophy, was Isidore Epstein, Principal of Jews College, London. He did not, however, pay attention to problems of the historical method and to Bible Criticism. A more comprehensive apologetics of orthodox Judaism, though in a popular form, was written by Aaron Barth, a banker, who took issue also with bible criticism.

Tantalizing was the approach of R. Joseph B. Soloveitchik, the leader of modern orthodoxy. Coming from Europe to the United States, he had felt the existential need to justify his stand vis-a-vis that of technological secular society, which left no space for God and religion.

On the other hand, he added: "I have not been perplexed by the impossibility of fitting the mystery of revelation into the framework of historical empiricism. Moreover, I have not even been troubled by the theories of Biblical criticism, which contradict the very foundations upon which the sanctity and integrity of the Scriptures rest".

While he himself gave no reason for this omission of themes, which belong in any systematic theology, Rabbi Jonathan Sacks, Chief Rabbi of the United Kingdom, attempts to answer on his behalf: "Soloveitchik's axiom is epistemological pluralism", which means that "revelation, both at Sinai and in the heart of each believer, resists explanation in terms of prior causes and can therefore not be the subject of scientific or historical research ... The fact that the biblical text, for example, contains apparent contradictions is not the result of its having been written by many hands, but rather evidence that it reflects and endorses conflicting dimensions of the human condition, with which the religious personality has to struggle in ceaseless dialectic".

In our view, the term epistemological should not be used with regard to any belief which "resists explanation in terms of prior causes", since this explanation is of the essence of knowledge. "Revelation, both at Sinai and in the heart of each believer" is part of doxa, hence orthodoxy, and should not be used in literary analysis. Whether "apparent contradictions" in the biblical text "result of its having been written by many hands", or is "evidence that it reflects ... conflicting dimensions of the human condition", is not only a question of belief in revelation but also one of hermeneutics.

3.6. Orthodox Judaism will have to update its system and put the following points on its agenda -

3.6.1.Three and a half century after Descartes (1596-1650), speakers on Judaism, and Jewish law in particular, need to recognize the value of universal doubt as a corollary of knowledge and truth.

Although, a Jew's faith in God and in his Torah should be strong, the experience of doubt is necessary as a preparation of faith. Freedom of will, being itself a principle of faith, depends on alternatives and therefore on doubt.

Moreover, Jewish thinkers, orthodox as well as non-orthodox, have difficulties explaining the meaning of the Sho'ah, and must admit the existence, perhaps necessity, of doubt for post-Sho'ah historiosophy and theology.

Indeed, the working of halakhah is possible only upon the assumption of universal doubt. A special blessing was to be recited regarding the varieties of opinions about the Sinaitic revelation, which means that the divine Torah was open-ended.

The qualification of judges included their ability to declare Dure what was actually impure and vice versa, and the majority decision was seen only as a practical solution to prevent unlimited argument. Even what was seen as straight, lent itself to conflicting ramifications, so that Hebrew mesharim was always in the plural.

Hence, the proper mode of theological conversation is low-key and non-triumphalist, the opposite being, actually, a sign of weakness.

3.6.2. Likewise, after Max Weber (1864-1920), Jewish law needs to be rationalized, especially if it wishes to appeal to secularized as well as to traditional society.

Was not the rejection of prophecy and miracle in legal discourse such a step of rationalization? Likewise, the use of logic in diney mammonot (private law) represents rabbinical rationalism. True, among contemporary orthodox authorities, emphasis is put upon the supra-rational character of Jewish law, as a system demanding obedience rather than understanding. According to their view, the ratio legis cannot be used for interpretation, and every provision of halakhah is, so to speak, gezerat hakatuv (ethical voluntarism).

However, rationalization is implied in legal categories calling for disregard of strict law "in the interest of harmony", "to promote peace", "in order to act for God", "to mend the world", or "as a rule for the particular hour". Having no precedent for such a decision, the court, or the individual, is referred to reason and conscience.

Recent decisions by orthodox authorities have been based less on halakhic reasoning than on what has been called da'at torah (spirit of the law), which is a way of justifying innovative steps. Such decisions are therefore according to ratio legis rather than according to verba legis, and they could, perhaps, be used as precedents for further rationalization of Jewish law.

3.6.3.Likewise, Jewish law, if it is to be meaningful to modern society, must incorporate the values of democracy. Even this would not be unprecedented. It was already done by the Maccabees, who probably learnt it from Hellenist political culture. Judah Maccabee had the annual Chanukkah festival voted upon by acclamation, his brother Simon was likewise appointed to the high priesthood and popular leadership. Later, the Great Synedrion, consisting of Priests, Levites and lay Israelites, drew its legitimacy from its representation of the people.

3.7. Non-orthodox Judaism will have to ask itself how to ensure the future of Judaism.

3.7.1.The most urgent question is, how, without reliance on orthodox pre-modern metaphysics, to ensure personal commitment to Judaism, Jewish law and Jewish education. The question is all the more crucial, as non-orthodox Jews insist on their personal autonomy, which somehow prevents them from submitting to any heteronomous discipline.

Therefore, Mordecai Kaplan, following Achad Ha'am, based Jewish particularism on universal grounds, and provided a sociological and democratic foundation for Jewish law in modern (and postmodern) society. While accepting the idea of individual autonomy, he demonstrated the need for a social setting to which the individual belongs. Hence, the future of Judaism, according to his system, demanded the reconstruction of Jewish law and faith in the light of modernity and by the democratic legislation of the community.

Eugene Borowitz's Theology of the Covenant, is in the line of Buber and Rosenzweig, building on personal experience with the divine. He advises Reform Judaism to observe additional parts of

Jewish law, which are acceptable by modern and postmodern minds.

The problem is of course, that the subjectivity leading him back to halakhah, prevents others from doing the same. A priori, it seems, commitment to Jewish law can only be the result of some form of objective religion, e.g. of the belief in Torah min haShamayim (divinity of Torah) or for sociological reasons. Since modern and postmodern Jews have difficulties with the former, and the is of sociology cannot become a spiritual ought, only sensitive people, like Borowitz, will find a positive relationship with halakhah.

3.7.2.Reform and Conservative Judaism must therefore look for objective criteria for the validity and function of Jewish law in the modern age.

Unlike former beliefs of Judaism, theirs has to be a more sophisticated version, which should be able to exist beside modern science and scholarship. Only a de-mythologized understanding of the Bible, based on human autonomy and responsibility, has a chance to attract the attention of modern man and woman.

This refers, first, to the traditional concepts God, Torah, and Jewish people, and second, to the modern concept of individuality.

A non-orthodox view of Jewish law would have to stress function rather than authority. The function of its rules is to lead us into a covenant-relationship with God, with Torah and with peoplehood. By the daily recital of the shema`, for instance, each individual decides whether to submit to the kingdom and to the commandments, and whether to participate in the covenant between God and Israel. Obviously, the covenant requires peoplehood, and the latter, in turn, requires law.

Jewish law is moreover a form of thanksgiving for the redemption from the Egyptian exile (and subsequent calamities), a recognition of Israel's meaning as a people under God, and a catalogue of opportunities for communication with the divine.

Hence, the validity and function of Jewish law depend on the consciousness of committed Jews and on their ability to constitute a qahala qadisha (holy community).

3.7.3.The success of non-orthodox Judaism depends on its ability to set limits to the autonomy of groups and individuals, in order to preserve the unity and future of the Jewish people.

Kant's Categorical Imperative has been criticized by Marx, Nietzsche and Freud, for having disregarded the limitations imposed upon individual will by the human condition. In Western civilization autonomy is shrinking, especially by the overwhelming influence of the media of mass communication, and by their manipulation of the so-called free choice.

Theonomy, therefore, although somewhat limiting human autonomy, is actually a prerequisite of this autonomy, providing, as it is, a ready-made model for self-guidance, as well as checks and balances vis-a-vis the culture industry and the media.

The unity and future of the Jewish people is acceptable as common goal by all Jews who care for what lies beyond their personal interest. Hence, it is acceptable even within the framework of the Categorical Imperative.

Non-Orthodox Jews should, therefore, adopt as much of Jewish law and custom as is necessary to ensure the unity and future of the Jewish people in general, as well as the Jewish future of their own offspring.

4. Postmodernity

4.1. For Jews, the Sho'ah meant the end of the belief in modernity, teaching them the weakness und unreliability of rationalism, universalism and secularism. As Heschel called in 1955 for a new awareness of God, he described the prevalent mood: "We are afraid of man. We are afraid at our own power. Our proud Western civilization has not withstood the stream of cruelty and crime that burst forth out of the undercurrents of evil in the human soul".

Likewise, the isolation of the State of Israel prior to the Six-Day War, and the continuing threat of genocide, was reason for a rising Jewish particularism. Emil L. Fackenheim, felt "with religious and theological guilt and repentance". In 1968, he spoke of the dilemma: "Either the whole, long history of Jewish faith - one of no mere theoretical affirmations but of untold devotion, sacrifice, and martyrdom - rests, in the end, on a fundamental and tragic mistake, or else there is need for a radical turning - a turning to the ancient God in the very midst of modernity". Other non-Orthodox spokesmen expressed this consciousness by a tendency to return to Jewish ritual, to the Hebrew language and to Jewish education.

The same tendency may explain the renaissance of Orthodox Judaism after the Sho'ah, and its renewed rejection of modernism.

4.2. For Western society, postmodernism is the result of extreme individualism and multi-cultural society, leading to the collapse of the consensus of modernity. This absence of consensus has led in art and in religion to subjectivism, in philosophy to nominalism, and in politics to pluralism and anarchism, or - by way of dialectics - to authoritarianism and totalitarianism. Other results of extreme individualism and skepticism are drugs, violence, terrorism and pollution.

Since neither biblical religion nor capitalist utilitarian individualism and scientific materialism could continue providing a meaningful pattern of personal and social existence, the legitimacy of all systems is now questioned and rejected.

A spiritual father of postmodernism was, perhaps, Emmanuel Levinas, who revolted against both ontological philosophy and historicism. Instead of following these repressive methods, forcing all phenomena into their systems, he built his philosophy on the ethics of pluralism and on the concern for the other. Another spiritual father of postmodernism was Karl R. Popper, who rejected all ideologies and philosophical systems as far back as Plato's and Aristotle's, and as prevalent as Marxism and historicism.

According to Richard Rorty, the critical school of postmodernism follows William James, Nietzsche, Wittgenstein, and its spokesmen are Foucault and Derrida, who may be described as extreme anti-foundationalist in philosophy.

Instead of providing a foundation, say of democracy, we should be satisfied with giving good responses to objections from communists or fascists. There is really no single audience called "human reason" or "the judgment of mankind". The public sphere should be characterized by open-ended conversation rather than by argument between competing truths.

Jean-Francois Lyotard shows that in premodern times the question of legitimation took either the form of a logico metaphysical discourse, seeking to prove the first principles of logic and ontology, or of a politico-religious discourse, seeking to identify a transcendent authority.

At present, the rules for scientific discourse can only be established by scientific debate, and there is no proof that they are valid but the consensus of scientific experts. The postmodern legitimation discourse is no longer logico-metaphysical or authoritative (traditional or religious) but narrative.

4.3.Oddly enough, although postmodernists no longer argue in the name of truth, but merely engage in a language game, they claim that their own game is more useful than that of their adversaries. The view of liberal democracy, for instance, though only a language game like that of totalitarianism, should swallow up other language games - to clear away dictatorship, tribalism and religious fundamentalism.

They believe that democratic theorists, like Rawls and Habermas, do not represent the truth but keep our political rhetoric up to date. Religious toleration, according to their system, allows religious groups to take part in discussions, without dragging religion itself into it.

4.4. Postmodernism has mainly engaged in deconstruction, but it has also developed constructive values, such as harmony with nature, care for interpersonal relations, promotion of pluralism and cultivation of feelings. These duties and responsibilities became accepted as alternative goals and patterns of life.

4.5. Postmodern Christianity has opened up to Asian religion (Paul Tillich, Thomas Merton). Similar phenomena in Judaism are Zalman Schechter-Shalomi and others involved in Eastern spirituality, and secular humanism.

Another outcome of postmodernism is radical theology. Bishop John A.T. Robinson, for instance, questioned a number of traditional beliefs, Paul van Buren argued for a secular interpretation of Jesus and the New Testament, while Harvey Cox, following Dietrich Bonhoeffer, demanded secularization of the Church and involvement with political questions. In the line of Christian "God is Dead" theology, Richard Rubenstein concluded from the Sho'ah that there is no God of history, after Mordecai Kaplan (and Harold S.Kushner) had concluded from individual suffering the impossibility of divine miracles.

5.Postmodernity and Law

The so-called critical legal studies apply the ideas of postmodernism to law. Legal postmodernism, has challenged the objectivity of law and expressed skepticism regarding the meaning of legal texts and the legitimacy of the legal process. So-called objective notions, such as industrialization and efficiency gains, were actually found to reflect normative Victorian optimism rather than objective truths.

In addition to their leanings towards the political left and pluralism, the scholars of this school were mainly influenced by the development in literary theory. The technique of deconstruction and inversion of hierarchies, for instance, could be applied to a legal text, and modern art could be used as a model for legal criticism.

Legal thinkers have criticized the customary classification and categorization of legal phenomena. In the line of postmodern theories of art and science, postmodern jurisprudence denies that law is a mirror of nature, and that there exist natural classes. The process of categorization and classification is perceived as a social creation, not as reflecting some prior organization of nature.

Arguments purporting to follow the logic of concepts could lead in diametrically opposed directions. Legal texts are infinitely interpretable; all depends on the political context in which the interpretation is being offered.

Instead of the idea of contract, say under the law of nature or under English law, we have, in fact, only temporary and local contracts, limited in time, and a-priori subject to cancellation. Each of these local and provisional bondings raises the question of its own legitimacy. Each elaborates a narrative - about what is justice in a marriage contract, what is justice in the matter of abortion, what is justice when Israel and the Palestinians enter into negotiations for a peace treaty.

The assault by the spirit of modernity on the static conceptualism of traditional theories of law has, of course, had a destabilizing effect. As law in the modern world has increasingly cut itself loose from its once powerful grounding in religious sources of authority, it has been challenged to acknowledge, along with every other secular field of knowledge, the implications not only of historical change, but also of changes in historical consciousness. Hence its authority and legitimacy is open for discussion.

6. Post-Modernity and Judaism

6.1.1.Jewish law has recently become a topic in American public conversation, by serving as a counter-model against the current Western legal system. As a reaction to Kelsen's overemphasis of legal hierarchy and of centralism, as well as to the identification of law and state, Jewish law is perceived as non-repressive system, independent of state authority and based merely on the commitment of legal communities and individuals. Attention is being drawn to the pluralism of midrash (rabbinical hermeneutics), recognizing the various truths in legal interpretation.

However, only the close relation between God and man allowed the creation of this both utopian and realist order. Jewish law, being a religious system, cannot be used as a model for secular society, lacking the commitment and consensus which made Jewish law possible. A secular theory of justice could not, probably, unite communities and individuals voluntarily, so as to replace the compulsory legal system relying on state force.

Moreover, a system based on commitment and not on state power could exist only in traditional society with its strong social sanction. Modern human beings, having the possibility to move out and into another society, will not abide by the rules of a voluntary system.

In fact, the description of Jewish law as based on voluntarismm and pluralism disregards the whole concept of halakhah, which can be as repressive as any other legal system.

6.1.2. In the postmodern age, Western non-orthodox Judaism, like Western religion in general, has become exclusively a matter of individual and subjective choice, both regarding religious identity and regarding the form of one's observance of religion.

Among Jews, as among Americans in general, for a while postmodern skepticism was followed by a turn inward, to find the answer inside the self. But how can one rationalize limits to personal impulses? Meditation and mysticism, moreover, are no options for the majority. Fundamentalism and group discipline are therefore on the rise.

6.1.3. As already mentioned, the main spokesman of Reform Judaism, Eugene Borowitz, felt also closer to Jewish law. People, institutions and ideologies left him disappointed, the prevalent mood in the West became disillusion, and self-determination became a pretext for self-interest and egoism. Rationalism and science lost their mythic authority, and all reasoning transformed into mere word-play. In the absence of philosophical consensus, as to why people must be moral, he concluded, secular intellect could no longer serve as a basis of value.

Having lost confidence in human moral capabilities, Borowitz stresses the limits and shortcomings of Western culture. Since universal ethics has been overestimated, he tends towards a new Jewish-centeredness, in which halakhah substitutes for naive universalism.

6.1.4.Among spokesmen of Western Orthodox Judaism, too, reference is made to postmodernism to delegitimize rationalist and ethical critique of religion. The argument goes that the concepts of natural law and of ethics are subjective and relative, and that there is nothing stable but the positivist interpretation of Halakhah.

However, Heschel, who was the precursor of Jewish postmodernity, has already formulized the shortcomings of this kind of pan-halakhism (religious behaviourism). True, postmodernism has questioned some of the assumptions of non-orthodox and secular Judaism, but it questions even more so the beliefs of any orthodoxy.

6.2.1.In Israel, postmodernism appears in additional forms. One of them is the call for religious autonomy, i.e. the demand of secularized and non-orthodox society for freedom from the objective rule of religious law and the rabbinical establishment. Non- orthodox Judaism in Israel functions through voluntary congregations and embraces pluralism. Instead of accepting orthodoxy and monism, it wishes to return to the ancient freedom of interpretation, as still reflected in Talmud and Midrash.

Even secular humanism does not totally reject the cultural tradition of the Jewish people, though mainly expressed in religious form. It demands, however, that individual self- determination be respected by the community and by individuals.

6.2.2.Another form of Israeli postmodernism is revisionist history, criticizing Zionism and Zionist leadership, as well as questioning many postulates of the State of Israel. A school of young historians reexamines the history of the Sho'ah, of Zionism and of the State in the light of new documents and Arab arguments. The present debate centers around certain myths which supposedly were needed to safeguard the political future of Israel.

6.2.3.Israeli postmodernism appears also in the call for cultural pluralism, including the rights of minority cultures, such as those of Oriental Jews, women (though not statistical minorities), Palestinians and alternative life-styles.

6.2.4.Postmodernism plays a role even among Israeli traditionalists. The new Jewish psychology by Mordechai Rotenberg is an example for this tendency. Rotenberg uses the pluralism of the midrash for psychotherapy. Following Buber's philosophy of the dialogue, he calls for pluralism in the relationship between therapist and patient. Just as various interpretations can co-exist, the view of the therapist need not reject the patient's narrative.

Likewise, the patient should not reject his past but rather reinterpret it. This could be done according to the model of teshuvah (repentance). Rotenberg calls also upon secularists to face and reinterpret collectively their communal and national past. It remains to be seen, whether, without their religious basis in individual faith, these methods could be applied in postmodern society.

6.2.5.Indeed, the phenomenon of secularist transforming into ba`aley teshuvah (born again Jews), is another form of postmodernism, which has put its imprint on religious as well as political life in Israel.

6.2.6.Likewise, Israeli postmodernism expresses itself in the reaction to Messianism and religious Zionism, which emerged out of the conflict between the ideal of 'Erets Israel and the peace process. According to Avi`ezer Ravitzky and his colleagues of Oz weShalom and Netivot Shalom, many assumptions of Messianism and of religious Zionism need revision.

6.3.1.Postmodernism, obviously, poses the question, whether, after Nietzsche's challenge of God and all values, and after Wittgenstein's distinction between language and reality, speech of God, truth and Jewish law is still meaningful.

A fundamental postulate of communal and individual discourse in Israel should be the very existence of Jewish nationhood and statehood. The restoration of Jewish political independence, over two millenia after the biblical prophecies to this effect, the gradual ingathering of the exiles, and the successful resistance to the Arab attacks, seem to have a spitual meaning. They support the believer vis-a-vis the claim that "God is dead", and against the denial of God's involvement in Jewish history.

True, the traditional concept of God, comprising omniscience, omnipotence and benevolence, has become questionable after the Sho'ah. This does not, however, prove that God is non-existent, but that these concepts do not fit "the wholly other".

Following Rabbi Isaac's parable of Abraham seeing a "burning palace" and John Wisdom's parable of the gardener, the world can be understood as a "reversible figure and ground". "Our choice, then, is either to see a theistic or an atheistic pattern in our experiences ... , or to affirm that no pattern exists until and unless every piece of evidence fits neatly into it (agnosticism)". Religious language is a way of perception, conditioned by personal and communal factors.

6.3.2.The concept of truth, as applied to the Torah, has to be understood as part of one particular language game, viz. the tradition of Israel, expressing coherence within its own framework. A statement made within this context, e.g. chosenness, need not be true outside this context, for instance as an exclusive judgment over worldwide religious phenomena.

Oddly enough, although the Torah's henotheism and even monotheism rejects any foreign cult and reverence to other gods, it includes also a more pluralistic approach, which, in our view, could serve as a guideline towards postmodern Jewish theology:

The priestly code provided that "whoever curses his god shall bear his sin. He who blasphemes the name of the Lord shall be put to death" (Lev 24:15-16).

This rule was said to have been made after the quarrel between two people, as a result of which the blasphemy had taken place. The offender had been the son of an Egyptian father and an Israelite mother, while his adversary had been an ordinary Israelite. The latter had probably slighted the god of the former, i.e. an Egyptian deity, to which the former had replied with blaspheming the God of Israel.

The rule distinguishes between two cases: Everybody was to pay respect to his own god, and contravention was punishable, though not by capital punishment. On the other hand, everybody was to respect the God of Israel, and contravention was punishable by death. Thus, the law protected foreign cults vis-a-vis their adherents and the cult of Israel vis-a-vis everybody.

The Book of the Covenant probably provided for respect to all religions: "You shall not revile 'elohim (God, god or gods); you shall not curse the ruler of your people" (Ex 22:28).

While the honour of the ruler is protected, if he is ruler of your people, protection is granted to God, irrespectively of his identity. True, priests, prophets and sages will have interpreted the rule with reference to the God of Israel, but the original meaning may have been more inclusive and liberal, to give protection to all gods.

Indeed, the Septuagint, speaking from the perspective of multi-religious society, translated as follows: "theous ou kakologeseis, kai archontas tou laou sou ou kakos ereis". The first subject is in the plural, including, therefore, other gods as well as the Lord.

In the same vein is the story of King Josiah's battle with Neco, King of Egypt, who had sent him the following message: "What have we to do with each other, King of Judah? I am not coming against you this day, but against the house with which I am at war; and God has commanded me to make haste. Cease opposing God, who is with me, lest he destroy you"(2 Chr 35:21). The text, then goes on to describe King Josiah's death in this battle, because - "he did not listen to the words of Neco from the mouth of God".

The God who was quoted by Neco was either called Amun-Re or Osiris, and his message had reached King Josiah through the Egyptian King. Thus, the biblical text recognizes the plurality of the divine phenomena and the unity behind all forms of worship.

Pluralism and universalism are also behind a prophetic warning to Israel: "I have no pleasure in you, says God of Hosts, and I will not accept an offering from your hand. For from the rising of the sun to its setting my name is great among the nations, and in every place incense is offered to my name and a pure offering" (Mal 1:10-11).

This means recognition of all cults as various forms of worship to the one God of the World. It was made possible through the experience of the Babylonian exulants, who in 538 B.C.E.had been addressed by King Cyrus, a Zoroastrian, speaking to them in the name of the God of Israel.

As put by Sa`adyah ben Joseph in 933 C.E. -"all beings are his creatures, and he cannot be said to to be Creator of the one but not of the other ... if the Bible speaks of his chosen people ... this is only to elevate and honour them ... Likewise (we should understand, Z.W.F.) his being called God of Abraham, Isaac and Jacob and God of the Hebrews, for he is God of all and these expressions are meant to enhance and honour the pious".

Rabbi Abraham Isaac Kook wrote in 1921 -"Since it (Judaism, Z.W.F.) is universal and encompasses all, it cannot, by its nature, exclude anything from its rule and contents, but must give space to everything. Thereby it extends the appearance of the light in all life-styles and manifestations of the spirit. Its basic tendency of patience (tolerance, Z.W.F.) makes space for any tone of light, life or spiritual expression. It realizes that everywhere is the spark of light, that the interior and divine spark shines in everyone of the various belief systems, and in the various education systems of human culture, so as to mend spirit and matter, time and world, individual and society. However, they are of different qualities ...".

6.3.3. After Nietzsche and especially after Wittgenstein, Jewish legal discourse, in my view, should transform into an open ended and pluralistic conversation. Traditionally, Jewish law tolerated partial observance and humanist or sociological ideologies, at least as a first step towards perfection.

The possibility of a postmodern version of Jewish law is given through the rabbinic preference of practice to dogma: "Would they had forsaken Me but kept My law, since the light contained therein would have led them back to the right pace".

Yitz Greenberg concluded from the Sho'ah that God could no longer command Israel; only a new voluntary assumption of the commandments by the people could nowadays give meaning to the covenant. By implication, non-orthodox Judaism had thereby become legitimate. This, in essence, had been the attitude of Mordecai Kaplan, relying on naturalism and sociological jurisprudence, while Greenberg brought in the new argument of theodicy.

In Israel, the needs of the Jewish people and the openendedness of halakhah have been emphasized by Yeshayahu Leibowitz and Eliezer Berkovits.

6.4.Jewish law makes sense also if it is not hierarchical, unitary, coherent and closed, and it could, indeed, be interpreted differently and pluralistically (deconstruction of logocentrism).

Attempts have indeed be made to reinterpret the Jewish legal tradition. Jose Faur, for instance, used critical theory for a better understanding of the rabbinical system. The covenant, according to his system, had created a new sovereign authority, the law, based on agreement not on truth. It is an author-reader relationship between God and his interpretative community. God, the author, surrenders his work to a community who receives it, thus authorizing interpretation without recourse to his intent.

Each generation passes on the work to the next generation, for fresh interpretation. Against Greco-Christian logocentricity, the midrash does not discover the mind of the author, but generates meaning from the text, independent of the intention of the author.

However, in our view, the law makes sense only vis-a-vis God and the ideal of holiness. Whatever authorization has been given to the reader, remains a delegated power, to be used in accordance with the divine intention, and otherwise being ultra vires.

As already said, Jewish law has been proclaimed as an antithesis to modern American law, to be used as a model for the transformation of the latter into a postmodern pluralistic system of law. Indeed, the classical sources of Jewish law preserved minority opinions, and Jewish hermeneutical tradition is pluralistic and non-dogmatic. However, Jewish law, just as modern legal systems, puts an end to controversies by laying down the halakhah, though, perhaps, with less insistence on hierarchy, uniformity and coherence, and with a certain degree of open endedness.

From the perspective of Jewish law, the discussion between modernism and postmodernism has a different content. The textual meaning of the sources, as accepted by Jewish orthodoxy, is not based on the methods of modern literary criticism. Jewish postmodernism brings therefore home to the authorities and to the learned world the variety of meanings existing in past and present, and, in consequence, the flexibility of such meaning.

Moreover, Jewish postmodernism questions the foundations of state-religion relations, including the so-called status quo and civil religion. Hence, the fact that contemporary Jews are largely secularized must be taken into consideration in the decision making process of the rabbinical authorities. If, de facto, Jewish law is no longer dat israel or dat yehudit, the will of the individuals concerned counts, before any meaningful guidance can be given.

Since Jewish law is meant not just as a system of `avodat hashem (worship), but as a derekh hashem (way of - or to - God) and a means letsaref haberi'ot (to test or refine the people), this general direction and function must be examined, before a particular rule can be confirmed or created.

Likewise, the central concepts of heweh domeh lo (imitatio dei) and of qedushah (saintliness) call for transcendence beyond mere legal legitimacy and must have an impact upon interpretation in general.

In the context of Jewish law, deconstruction of logocentrism means change of decision-making. Instead of the largely legalistic system, as practiced by the orthodox rabbinate, Jewish law needs imposition of moral principles as rules of the second order, humanization of law and ritual, as well as individualization and internalization of the norms.

It also means critical reinterpretation of legal texts from the point of view of marginal groups. Up to the present, these groups were seen as mere objects who had no chance to contribute their subjective opinions on the legal rules imposed upon them. Now, Jewish legal tradition is being studied and discussed by women, handicapped, non-Jews, descendants of interreligious marriages and agnostics or atheists. Their feedback should be an important input in Jewish law, even as interpreted according to the orthodox tradition.

If the orthodox rabbinate will maintain its hierarchical attitude to Jewish law and insist upon its coherence, recognition will eventually be given by the state to non-orthodox rabbis and interpretations.

6.5.Jewish law has still chances to appeal to secularized people and to overcome their nihilism, subjectivism and anarchism. Their questioning of rabbinical authority and legitimacy should be taken by orthodoxy as a challenge calling for a creative response.

Chiloniyut (secularist ideology) often rejects only clericalism and religious pressure, not religiosity and certainly not transcendence or metaphysics. Many individuals identifying themselves as chiloni, observe certain forms of Sabbath and other religious commandments and attend religious services. They do not reject Jewish law, but reserve the right to be selective.

In so far as the orthodox rabbinate makes absolutist claims, the answer of secularists is denial of its authority and legitimacy. This does not, however, diminish the chances of a non-authoritarian approach of Jewish law, and the invitation of secularists to participate, as much as they wish, in the observance of certain rules.

Just because of the prevalence of nihilism and anarchism, there may be among some postmodernists demand for study and experience of Jewish legal tradition. Likewise, religion can appeal to the secularist by emphasizing the subjective element in the observance of its rules, i.e. by stressing the need for creativity and internalization. Since in the postmodern age no internal limits are recognized to individual willfulness and idiosyncrasy, Jewish law could play a moderating role.

As Robert Gordis and David Novak assert, the flexibility of halakhah is a dogma of Jewish faith. Louis Jacobs has pointed at the dangers of the infallibility claim made by orthodoxy. Elliot Dorff and Neil Gillman argue that the Jewish ethos requires living by halakhah, but, as stressed by Borowitz, halakhah can no longer require surrender of conscience. Therefore, in the latter's view, traditional halakhah has come to an end, but his relational theory of revelation generates the possibility of creating a new halakhic structure.

6.6.Especially in the State of Israel, Jewish law should be inclusive and non-sectarian vis-a-vis Jewish heretics, non-Jews and other belief systems, embrace pluralism and renounce totalizing and judging others.

Indeed, a certain form of pluralism was always prevalent among the rabbis, but it was limited to the academy and did not extend towards non-rabbinic views and practices. Therefore, Samaritans, Zadoqites, Christians, Qara'ites and Progressive Jews were excluded from the fold. In theory, however, Jewish law, even according to the orthodox interpretation, could be more inclusive, tolerant and pluralistic.

It could be done, if Jewish law would adopt the view of Moses Mendelssohn, and renounce all forms of religious coercion. Heretics could be seen by halakhah as a necessary result of the free will, which is indeed a prerequisite to the service of God. We have already spoken of a pluralism vis-a-vis other cults and this pluralism also allows a change of attitude towards non-rabbinic views and practices.

Tolerance and pluralism is not so much a question of halakhah as it is a personal attitude. It will be adopted by orthodox leaders, once they understand that their own interest is better served by a more inclusive attitude towards others.

In Israel, Jewish law must be prepared to function in a multi cultural, pluralist and individualist society, and must adapt to the framework of liberal democracy.

In fact, Jewish orthodoxy has already developed a certain pluralism within the framework of halakhah. Lithuanian and Hungarian mitnagdim (rationalists) have learnt to live with mystically inclined chasidim, while ashkenazi tradition recognizes and tolerates sefarad, `edot hamizrach and yemenite customs and practices.

The ingathering of exiles in the State of Israel provides a multi-cultural scene, which, eventually, will be internalized even by orthodoxy and thereby develop the missing principle of pluralism in its belief system.

We have already mentioned the implied pluralism of perception at the Sinaitic revelation. This was so not only as a result of human individuality but also as a result of the divine message. The rabbis thought that God had presented himself at Sinai in the Egyptian language, in other words, not in the language of holiness but only in a foreign language. All attributes are, therefore, mere approximation, so that by the very process of revelation pluralistic theology becomes legitimate.

In Jewish law, the controversies between the Schools of Hillel and Shammai were resolved by the assumption that both were the word of God, and a modus vivendi was found to permit communion in spite of diversity.

6.7.Jewish law will also make its contribution to the values of postmodernism, and take positive steps on ecology, human relations, peace and human feeling. There has, been a growing awareness of ecological insights in Jewish law sources. Human relations and the promotion of peace are the concern of two ancient principles of Jewish law, darkhey no`am, and darkhey shalom (gadol hashalom), which are used for legislation as well as for interpretation.

The quality of shiflut ru'ach (humility) occupies a high place in the rabbinical hierarchy of values, and even among the qualities of the judge, Jewish law counts `anawah (humility). This could help overcoming certain postmodern attitudes, including the "I-Me-Mine" complex ruining Western society.

7. Conclusion

The challenges to Jewish law by modernity and postmodernity call for unique responses not only on behalf of rabbis but by the whole people of Israel. In the absence of a universal council of synagogues or any other spiritual forum, denomminational responses are being given unilaterally without prior consultation with the other parties. Hopefully, in the course of time this process will become more rational, universal and sophisticated.

However, just as cosmic laws regulate sun, moon and oceans, there seems to be a cosmic force to ensure the eternity of Israel as a nation before God. This, force, according to Sa`adyah ben Joseph (1Oth cent. C.E.), is Torah, written and oral law, which keeps Jewish identity alive.

The challenge of the Jewish people at present, is how to restore the viability of Torah and Halakhah and how to become again committed to its discipline. Once Israel will have given the proper response, its experience vis-a-vis modernity and postmodernity may become a model for mankind.

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