THE SEARCH FOR LIBERAL HALAKHAH

It is customary to blame this rejection on a reactionary Orthodox rabbinate who intransigence stems from identifiable historical causes.’ This, however, overlooks the essential theoretical objections raised by Orthodox halakhists, who contend that rabbinic law, as defined by its traditionally accepted criteria of validity, cannot sustain the innovations which the liberals suggest. If they are to prove their case, halakhic liberals must respond directly to these theoretical objections. It is not enough for them to claim that halakhah can be flexible; they must show that it is flexible enough to support the items on their halakhic agenda. This requires a detailed and precise theory of halakhah which will determine the criteria of halakhic legitimacy and demonstrate that the solutions advocated by today’s liberals meet those criteria. As if to take up this challenge, three booklength studies of liberal halakhic theory have appeared during the past decade. Each author, in his own way, addresses himself to the criteria of legitimacy in halakhah: just what is it that determines whether a specific proposal is valid under rabbinic law? Taken together, these works constitute the present"state of the art" in liberal halakhic thought. This essay is an attempt at evaluation of those efforts. What have these scholars accomplished, and what remains to be done?

In A Tree of Life: Diversity, Flexibility, and Creativity in Jewish Law,° Louis Jacobs adopts an"historical" approach to liberal halakhah. This method offers much promise for the liberal halakhist, since the vast rabbinic-halakhic literature contains numerous instances of interpretation and legislation that display a heightened ethical consciousness and a sensitivity to the needs of the age.” The difficulty lies in basing a legal theory upon scattered cases, in proving that these reflect the rule rather than the exception in halakhah. To overcome this problem, Jacobs produces a thoroughgoing history of the post-Talmudic halakhah. The work, marked throughout by Jacobs ’ considerable Talmudic and theological erudition, is to date the most comprehensive such history ever published. His thesis is that halakhah is not an

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