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Vol. 69, No. 1 (Winter 2025-26) - Teaching Halakhah in the Conservative Movement

Between Legal Validity and Lived Truth Falls the Shadow Reflections on Teaching Halakhah

Gordon Tucker

This article will address two questions about the teaching of halakhah: Why should we teach it? and How shall we teach it so as best to fulfill our answer to “why”? In answering the second question, the focus will turn to matters that, I maintain, should be unsettling to anyone committed to halakhah as religious law, as I am. That is what led to the title of this piece. “Falls the Shadow” is the thrice-repeated phrase from T. S. Eliot’s well-known poem “The Hollow Men.” The shadow is said to fall “between the idea and the reality,” “between the motion and the act,” “between the conception and the creation.” For the purpose of making my present intention clear, I will add to those three all of the interstices that hold the realm of thought or potentiality apart from the realm of action and consequences. In thinking about how halakhah should be taught, I will focus on the ways in which law can often proceed from and live entirely within its internal, conceptual logic and allow itself a detachment from the real-world consequences that follow from that logic. The shadow that symbolizes that obscured vision can take on many forms, but the most vexatious of all are those that cause violence and pain, by which I emphatically also mean to include psychic pain. A critical distinction that will underlie these thoughts is one that has been axiomatic for more than a century in the philosophy of knowledge—namely, the difference between what is validated in the systems we build to model truth, and what manifests itself as true in the real world of our lives and cherished beliefs.

Let us turn, then, to our two questions.

Why Teach Halakhah?

The short answer that best fits the contemporary society in which Jews live is “to cultivate a consciousness of obligation.” Consider that the phrase “no obligation” has virtually been a mantra used by advertisers of various products and services for a long time, because the emphasis on the right and the freedom to choose is among the foundations of contemporary culture in modern democratic societies. Our cultural setting is one in which autonomy is highly prized, and expected as everyone’s right. What was observed by Arnold M. Eisen and Steven M. Cohen more than twenty years ago is no less true today: “American Jews today are relatively more individualistic and less collectivist. Taken as a group…they regard the ever-changing selection of Jewish activities and meanings from the broad repertoire available as part of their birthright as Jews. They celebrate the autonomy of this choosing and do not worry about its authenticity.”1 In philosophical terms, the tension behind such observations is between the “autonomy” that is invoked here and its opposite, “heteronomy.” Here is a concise paraphrase of Immanuel Kant’s classical definition of the terms (as he famously advocated for one of the two): “instead of being obedient to an externally imposed law or religious precept, one should be obedient to one’s own self-imposed law. The former [Kant] called heteronomy; the latter autonomy.”2 Obligation to rules external to us has indeed fallen on hard times.

Let us look at a striking illustration of how a retreat from heteronomy made it, most surprisingly, into Jewish religious education. A song that many American Jews learned in our younger years was a Passover ditty called “ʿAvadim hayinu, ʿattah benei ḥorin” (“We Were Slaves, Now We Are Free People”). The song was composed in the secular kibbutz Ein Ḥarod in the prestate era by Shalom Postolsky. Although the first two words do indeed appear in the traditional Haggadah, all five are not found in that juxtaposition in the official Passover liturgy. So what actually is in the Haggadah? There are, as we know, two beginnings to the story. Both of them make it clear that we were in service, but to the wrong things—either to Pharaoh or to idols. When the story reaches its climactic conclusion, and we are prepared to leave the degradation of ʿavdut (“servitude”) and eat the bread of freedom, we raise the glass and prepare to bring it all to a triumphant conclusion with the Hallel. And how does the Hallel begin? Not by celebrating our status as benei ḥorin (“free people”) but with an exhortation to praise God that addresses us as “ʿAvdei Adonai” (“servants of God”). In other words, the careful composition of the liturgy for the festival of freedom makes the crucial point that we are not meant to be free of all service; the question is rather: To what will we be giving our service? To a tyrant for whom we are as nothing, and who brooks no questioning, or to a God who cares for us and whose commandments often come with rationales that explain their morality? However, the secular kibbutzniks of the Jezreel Valley in the 1920s and 1930s saw their history rather differently from that given in the implicit argument of the Haggadah. For them, the song celebrated their move from servitude to the religious law they associated with exile, to freedom from those shackles.

It is most remarkable that they taught us to sing this song each year in the Orthodox yeshivah qetanah I attended in Washington Heights, New York. Somehow they did not get that it undermined everything the carefully constructed Haggadah was trying to teach us—that the gift of the Exodus was the move from one kind of service to another, more worthy version. It was pointedly not the autonomy of benei ḥorin, at least in terms of what that phrase meant for the early Zionist pioneers, and what it continues to mean for so many Jews in the America of the twenty-first century.

Now, if the importance of teaching halakhah is to move people who prize their freedom to choose to a more positive consideration of obligation, then we will need to conceive of obligation in a way that is compatible with the autonomy our contemporaries are unlikely to give up.

The texts surrounding an apparently challenging teaching attributed to the third-century rabbi Ḥanina will turn out to be helpful. The dictum appears in b. Qiddushin 31a and three other passages in the Babylonian Talmud: “Of two people who both perform the identical act, the one who does so out of obligation ranks higher than the one who does so voluntarily.” This certainly seems counterintuitive to the contemporary mind, in which voluntarism elicits greater praise than obediently fulfilling an obligation. But the possible key to understanding this dictum in a way that is compatible with autonomy comes from considering the context in which R. Ḥanina’s teaching appears in two of those texts. It is the account of a colloquy that took place nearly a century after R. Ḥanina, between R. Yosef and his colleagues.

R. Yosef was blind, and in his day, it was as yet unresolved whether people who could not see were subject to the performative mitzvot. R. Yosef is quoted as saying that he was always rooting for the possibility that people like him were exempt from the mitzvot, so much so that if someone could prove to him that he was indeed exempt, he would throw a party in honor of his colleagues. And that was because he had always read things the way we naturally do today—namely, that doing something voluntarily when you do not have to is more meritorious than doing it because you are commanded to do so. But when he learns the unchallenged opinion of R. Ḥanina—that the one acting out of obligation actually ranks higher—he switches sides in what he roots for. Now he will happily throw the party if his colleagues could prove to him that he is also subject to the performative mitzvot even though he is blind.

But note that the only thing that is unresolved in R. Yosef’s mind is whether he is going to spring for the food and drink, because his name might show up higher in some ranking system by virtue of being obligated. What is not at all in doubt for R. Yosef is whether he is going to continue performing the mitzvot, irrespective of whether he was subject to a heteronomous command. Of course he would continue to do so! The crucial point that usually gets missed here is that the uncertainty is only about whether there is a party or not. R. Yosef, it seems, was going to continue his life of Jewish observance whether or not he was commanded to do so by God’s law.3 It seems that some kind of impetus to regular observance was operating on R. Yosef, independent of any external source of command.

We might well ask whether R. Yosef was committed to observance because of a desire to keep faith with and be trusted by his community, or because he had an inner sense of command that impelled him to do so. Perhaps it was both. However that may be, the essential point right now is that a meaningful sense of obligation seems to have some degree of independence from an outside source of command, and certainly from an expectation of either external reward or punishment.

A beautiful and compelling expression of this idea of an “autonomous heteronomy” was given in an essay by the contemporary Orthodox rabbi Elyakim Krumbein, a teacher at Yeshivat Har Etzion, that reflects on R. Ḥanina’s seemingly strange teaching:

A commandment has two polar aspects. One of these is rooted in the mysterious haze that enveloped Mount Sinai, out of which the voice of the Blessed Holy One broke forth. This aspect of the command is unresolved, since it will be fulfilled only in a reality not yet known. The second aspect is rooted in the immediate reality, which a person encounters after having wondered in suspense about when a moment of command would arrive, and in which that person now knows with exactitude what is required. When those conditions come into being—for example, the festival arrives and one is holding the four species, or when his son is before him on the eighth day of his life, with the circumcision implement present—it is then that a person apprehends the connection between the present reality and the voice of Sinai. The voice of the Commander then calls out from the present reality. The berakhah for the mitzvah is how this recognition is expressed. The Sages believed that one should not fulfill a mitzvah simply in reliance on an ancient command, as if it were a payment on an obligation taken on in the past. A person should be able to declare: “We were commanded concerning what is happening right at this moment.” That is, the command renews and completes itself in the immediacy of the present. But that can happen only if a person is attuned to it.4

The startling implication of this is that the one who responds to an ancient command for which he has not felt an inner compulsion in the present is not actually acting out of commandedness! It is only someone who is attuned to that which calls to him right now who can rightly say the berakhah “who has sanctified us with the commandments” and thus claim the status of one who acts out of obligation.

A true command is not something that comes to me from a tradition, not something that is “purely heteronomous.” Such an obedient act always threatens to become at best what Isaiah called “a commandment learned from humans by rote” (Isaiah 29:13). A true command touches me personally, lights me up, and impels me to say that I am being spoken to right now, irrespective of what my distant ancestors heard or did, and that I wish to respond to that which I sense to be part of who I am. This is nothing less than a recognition that a command, or a sense of obligation, must come both from the present moment and from within. It is what may have been thought to be a Kantian impossibility—an autonomous response to an external mandate—or what Michael Walzer, reflecting on the lessons of the Exodus and of Sinai, called being “freely bound.” But one must be attuned to it.

This, therefore, may be a way to avert the antagonism between the autonomy we cherish and the sense of obligation on which our tradition—indeed, any tradition—depends. This, then, would be a fitting answer to the first question posed at the outset of this article. We should teach halakhah because it is the framework of heteronomy that overlays our Jewish heritage and is shared by all the generations. But for it to have religious (and not merely historical) value, individuals must receive the commands personally and embrace them from their own selves and their own commitment. This is the bridge that we seek between the Jewish stress on obligation and the autonomy that no modern person will easily let go. It is important to teach halakhah because halakhah at its best seeks to attune us to a life of obligation that comes from within us.

How to Teach Halakhah

Now that I have suggested something crucial about why teach halakhah, we can take on the more complicated second question of how halakhah ideally should be taught. As we consider this question, it is especially important to attend to what Moshe Halbertal has argued concerning the history of halakhah and what he calls its “emergence.”5 The rough contour of his argument is as follows: Before the advent of rabbinic Judaism, Jews had the laws of the Torah. There was, for example, to be no labor on the weekly Shabbat, and the meager evidence that we have in the biblical period suggests that individuals were expected to drop their daily economic activities (e.g., Nehemiah 13:15). What we did not have until the activity of the rabbis was the meticulously detailed systemization of Shabbat rules that we find in the Mishnah and the Talmud. Here is how Mira Balberg describes this move from the more general and amorphous biblical law to rabbinic halakhah: “The biblical injunction is extremely terse: you shall not do any labor. The Mishnah then dissects the general category of labor into thirty-nine different subcategories of labor, and then continues to zoom in on each one of those categories and subcategories and scrutinizes it further.”6 The traditional view, which the rabbis themselves promoted, was that these rabbinic dissections were part of an oral tradition dating all the way back to Sinai. It is hard to see how to refute such a view, so it should never be disrespected. Yet it is equally hard to understand why, if such an ancient oral tradition were being passed down over more than a millennium, we would have no evidence of its existence in late biblical and Second Temple narratives and legal literature. Indeed, in the sequel, Balberg adopts Halbertal’s observation that the rabbinic systemization was in no way inevitable: “as Halbertal noted, there is nothing natural or inherently warranted about the notion that one must perform a commandment in a very particular and accurate way in order for one’s performance to count as a fulfillment of the commandment.”7 In other words, there need be no impediment to the conclusion that the move from the prerabbinic to the rabbinic world was a move from law to halakhah, where the word “halakhah” now denotes a very specific enterprise. It is best understood not just as a collection of laws, but as a considered and methodical enterprise of defining and systematizing what had heretofore been rather loosely stated laws of Shabbat, or of marriage and divorce, forbidden mixtures, or a host of other biblical rulings that lacked minute defining parameters.

Interestingly, Maimonides (Rambam), in introducing the laws of marriage in his code Mishneh Torah (Hilkhot Ishut 1:1) pointedly notes that there was an early time when marriage was the much less structured phenomenon of two consenting adults simply agreeing to live together in intimacy. That is exactly what the verse in Deuteronomy 22:13 depicts (“A man takes a woman to wife and cohabits with her”). The very traditional view was that all of the rabbinic rules for marriage (as set forth in m. Qiddushin, for example) were already given orally to Moses. But if one is not wedded to that idea—and, as noted, one would expect such ancient rules to find their way into prerabbinic literature—then the biblical law of marriage and the rabbinic halakhah of marriage neatly illustrate just what Halbertal is arguing.

This understanding of the origins of halakhah in the practice of the rabbis has important implications for how it should be studied and taught. We are in the realm of metatheory here. That is, we are not asking questions within halakhah but standing outside it and asking evaluative questions about what its goals are, whether it is accomplishing those goals, and other such matters. The important point to be made is this: Every instance of systemization in human intellectual activity is a project of constructing a model of that which is held to have an existence outside that system. So, for example, when mathematicians construct systems of axioms and rules of derivation that refer to numbers, geometric surfaces, or solids, they are seeking a way of capturing the truths about those things through derivations in the system. Similarly, when general concepts in a political constitution are systematized into codes of law with many fine details and nuances, those legal systems are intended to capture the truths held to be self-evident by the society that formulated and adopted that constitution. A way of summarizing this is to distinguish “validity” from “truth.” Being “valid” means that a thing—a proposition or a law, for example—has been correctly derived in the system. Being “true” means that it expresses that which is held to be the truth that the system was constructed to model in the first place.

These two things—validity and truth—are interdependent but not necessarily the same thing. Let us take one example: The Torah says: “No one misbegotten shall be admitted into the congregation of the Lord; none of his descendants, even in the tenth generation, shall be admitted into the congregation of the Lord” (Deuteronomy 23:3). “Misbegotten” is NJPS’s translation of the term mamzer. Whatever revulsion (likely related to lineage) this was expressing to those who first heard or read the word mamzer, later rabbinic interpretation created the halakhot that were based on what they took mamzerut to be—namely, the product of an adulterous or incestuous relationship. The creation of these halakhot out of the simple but ambiguous text in the Torah must have been intended to ensure that God’s will for a holy people would be sustained through an abhorrence of lustful faithlessness. So far, so good.

According to those halakhot, however, offspring were being stigmatized for the misdeeds of parents. Moreover, if a woman who was previously married then married again after a civil divorce but had never been told or taught of the need for a get to end the first marriage, her children from the second husband would also be barred from marriage in the Jewish community. Indeed, all the descendants of such a child would be similarly stigmatized ad infinitum. That compromised status of the children and the children’s children is a perfectly valid consequence of the halakhot constructed out of Deuteronomy 23:3. But now come the critical questions: Does that impairment of the children in fact express the religious value that is the intended point of the halakhah? and Why should we not consider the possibility that as valuable and edifying as a halakhic system may be, it also may on occasion fall short of the religious beliefs that we cherish? Such beliefs may even be written into our ancient literature itself, such as the principle that God should want to punish only perpetrators of crime, certainly not their innocent offspring (see Ezekiel 18).

Metaquestions such as these tend to make us uncomfortable. The best known illustration of this takes us once more to the Passover Haggadah, and how it treats one particular hypothetical child who asks a question pregnant with meaning. The child, whom the text calls “wicked,” asks the all-important metaquestion: “Why are you doing this?”—that is: What are your systemically valid practices really about? This is perhaps the most important question that one can ask about religious law. It asks what the validity of the norms and practices has to do with the truths of faith and belief that they are meant to express. The wicked child is the only one who gets no answer; this child only gets berated for asking the question. You cannot get more true to life than that. Metaquestions make us nervous. But that does not mean they are not crucial. So, in a reference to the great American congressman John Lewis, we might say that this so-called wicked child should always have been called the “good-trouble-making child.”

It is a consequence of the answer to our first question that legal systems, in addition to providing a consistent and predictable array of interrelated rules to keep order in a society, also help to strengthen community by promoting the cultivation of attitudes of obligation. At the same time, since they are (as noted above) simply fallible models of what the foundational principles of the society intend, what they produce is not guaranteed to be identical to those intended goals.

Let us get a bit more specific about how all of this plays out in legal systems. In the case of open, democratic societies, there are fundamental shared beliefs about what such a society should be, what its values are, what it stands for, and what it should mean to live a virtuous life as a member of that society. Beliefs such as these are the sorts of things that, to take a ready example, are set forth as self-evident in America’s Declaration of Independence. The need, then, is to systematize these beliefs in a language that maps them onto the kinds of behaviors that are taken to be consistent with those beliefs and visions. The hope, then, is that there is a strong, if not entirely perfect, correspondence between the legal system and the political and social beliefs—sufficiently strong that a rule validly generated within the system could reliably indicate that this rule expresses the society’s vision for itself. That is the reason and justification for the legal system.

What, if anything, changes when we are speaking of a religious culture? Then we find ourselves speaking of something at once especially important and especially elusive. For now it is not just a question of what a society’s self-image is, or what the will of the people is. In the case of religious law, it is a question of a set of beliefs concerning truths about a transcendent realm, and about the obligations that flow from those truths. Allowing, as we must, for a vast range of images of what we call God, let us say that this involves trying to express truths about what we take to be the will of God. In an era of prophets, there were individuals who presented themselves as God’s spokespersons, and those who were believed were taken to be conveying the divine will directly. As the Torah itself put it in speaking of a true prophet: “Just listen to him.” But prophecy could not suffice, for how was one to have a device for determining who the true prophet was? Without a procedure for determining what God’s will is for us, shared beliefs about that will would have to be mapped onto formalized codes of behavior. Now, those beliefs about God’s will—or, if you prefer, about what is a sanctified or redemptive life—are expressed in many forms, both written and oral, within the loosely defined archives of a religious society; in the Jewish tradition, this is called “aggadah.” And what is to express those beliefs and visions? The Torah itself is surely part of that story, and its eventual canonization is an early stage in the process of meeting that basic and urgent need. But only in the rabbinic period were rules and obligations systematized into halakhah, which has rooted itself in Jewish practice ever since. The hope and the intention were, and have always been, that the language and the normative force of halakhah would accurately capture what God’s will is.

That last sentence is the most honest answer we could give to the pointed and unsettling question posed by the good-trouble-making child: “Why are you doing this?” The answer is perforce unsettling because it raises a follow-up question: “Does it in fact accurately capture what God’s will is?” Now, it should be clear that there is no unequivocal and uncontroversial definition of God’s will. We have only our presumptions about what God’s will is, and those we have inherited by tradition. But they are very strong presumptions, and the more they are shared, the more we will risk for them. To put it another way, in the absence of direct communication from beyond, all we can rely on, trust, and have faith in are the shared beliefs and intuitions of our forebears about what God’s will is, and our convictions about how much we still share those same beliefs and intuitions, or modified forms of them. So we return to the follow-up question posed by the good-trouble-making child: How well does our language and system of halakhah capture those beliefs? In the end, that is halakhah’s sole vocation.

Here is how Barry Wimpfheimer put it in a recent book:

Codifiers of Jewish law have been driven by an assumption…that codes are the ideal form for representing law…. But law is not composed entirely of its normative function…. Codes present mandates and prohibitions, ignoring questions of genealogy, legal authority, and the relationship between theoretical law and lived life. Even the most well-conceived and executed codes can, as a result, still be found lacking.8

Moreover, the converse problem looms as well, and this one is much more serious for a society aspiring to live in accordance with the divine will. That problem is this: human apprehensions of the virtuous and moral life change, evolve, and deepen. As a result, particular systematizations of law will produce valid results that can, and often do, conflict with embedded (and certainly with evolving) intuitions about the virtue that is being systematized in the first place—for example, condoning slavery, corruption of blood, disadvantaging women, or not recognizing nontraditional family structures. The United States Constitution in its original form already responded to the perceived injustices inherent in corruption of blood, but it did not originally respond to what would in time become solid intuitions and convictions about slavery, women’s roles, and increasingly, the coexistence of different sexual orientations. It had to be amended and/or interpreted in ways that would resolve inconsistencies with the shared convictions that the laws were created to express in the first instance, as we became aware of those inconsistencies. Especially in an age when systemic validity was shown always to be inadequate as a formalization of truth (even in the readily systematizable field of mathematics!), it would have been foolhardy to claim that norms validly produced by our constitutional legal system were ipso facto faithful reflections of our political and moral beliefs. And it would have been even more bizarre to say that if they were not, we would have to adjust our belief system to fit our laws. It would be getting the causal arrow behind the creation of legal systems entirely backwards.

More dangerous still is the situation as it affects religious law, which is there to systematize not the will of a people—which could theoretically be ascertained through a properly constructed plebiscite—but a transcendent will. Convictions about what God’s will is can be widely shared as well, and they often are across religious communities. They also change, evolve, and deepen. So what are we to do when the honest answer to the follow-up question posed by the good-trouble-making child is that there are some validly produced and highly precedented norms of halakhah that no longer accurately express our convictions about what a sanctified and godly life ought to be, and about what human beings created in the divine image are entitled to? What are we to do when a received and justly venerated systematization of religious values instructs us to inflict corruption of blood on people whose parents have violated cardinal norms of sexual propriety and purity? (This is the aforementioned case of the mamzer, the child of even unwitting or technical adultery, which occurred because a previous marriage was dissolved in an invalid way.) What should our reaction be when the norms of halakhah would require us to consign a woman to celibacy because her husband has abandoned her or disappeared without granting the divorce he alone is authorized to grant? What should we contemplate doing if the valid and highly precedented norm of halakhah makes it impossible to approve, let alone sanctify, a loving relationship between two women or two men, even if we hold, on the basis of evidence, the belief that they are constitutionally built to love in this way? And what if that dissonance is further intensified by the fact that a large body of our own aggadah—namely, the sum total of the theological and moral teachings in our cultural archives—reminds us that the Creator intended people to love and to create homes and families, and that people’s lives should not be bereft of the pleasures and responsibilities that are the human birthright solely because of factors they could never control? Validity in such cases has failed to be congruent with truths as we apprehend them, and for which the systemic validity was designed in the first place. The crisis must be met. Indeed, it must first be acknowledged, which is no doubt exactly what the parent of the good-trouble-making child wants to avoid doing.

But we must acknowledge it, because, in these instances, as Robert Cover taught us, the systematized law sometimes threatens violence and pain. In these instances, we speak primarily not of physical pain but of the social and existential pain, which is more than anyone should have to bear. When such pain is entailed by the halakhic system, it is not in the name of halakhah but in the name of God. One might have the right to accept the fallacy of equating validity with truth if one were submitting to some pain and disability for oneself, in the manner of a martyr. Even that might be questioned. But it is impossible to justify indulging in that fallacy when it entails pain inflicted on others.

It would be one thing to reconcile to the doling out of pain and isolation on other human beings if one were convinced that it was being sanctioned by an inscrutable and infinite divine will that we receive directly. Adherents of the traditional view that the halakhic rules already existed and were communicated to Moses at Sinai have this option. But for those who, like most readers of this journal, adopt Halbertal’s view of the emergence of halakhah, it seems completely unjustifiable to reconcile to it on the basis of a systemic misconflation of validity and truth, as we profess belief in a God of compassion. Systems do not produce truth. They produce mappings of truth into norms, approximations to truth that may be exposed from time to time as just that: approximations. Cover, in his essay “Violence and the Word,” noted the urgent need for a “latent…structure to render the judicial utterance morally intelligible.”9 The latent structure can be a set of theological beliefs. But, as theology changes, we may be left with “the moral unintelligibility of routine judicial utterance when the structure is no longer there.” What would the good-trouble-making child have to say in the face of that?

One can only think of Martha Minow’s insight about these systemic arguments, an insight she formulated as follows: “Modes of analysis and argument that maintain their exclusive hold on the truth are suspect. By casting doubt on alternative modes, they shield themselves from challenge and suppress alternative ways of understanding. They also render ordinary and explicable all they encounter: ‘to a hammer, everything looks like a nail’”—even, apparently, when the nail may pierce not only the innocent, but also the image and reputation of the divine. Minow continues: “But some things are extraordinary and call for extraordinary responses. Methods of analysis that smooth out the bumps and subsume all under generalizations risk not only making this mistake but hiding it from view.”10

The first part of this article made the case for the importance of studying halakhah, which certainly means getting into its norms, its logic, the simanim in the codes, and the literature of the responsa. It is an essential part of a Jewish curriculum because it acculturates us to the importance of obligation in our lives. We have now come to the answer to the second question with which we began: “How shall we teach halakhah”? While we must recognize that halakhah will usually prove to be a faithful modeling of our intuitions about the will of the God we worship, we also must consider that the adequacy of that model is not guaranteed. We must also ascend to the meta-level and ask the “good-trouble” questions. It makes little religious sense to opt for saddling God with the responsibility for rules that inflict pain on the undeserving when there is a much better approach—namely, acknowledging that even the most conscientious human attempts at modeling the divine will sometimes get it wrong. Why would it not be the truly religious and humble way to get God off the hook for inflicting hurt by humbly considering the fallibility of our efforts to map God’s will onto human laws?

If we teach halakhah in this way, we can hope never to have to hear, at least in more liberal communities, the religiously untenable phrase “I understand the pain this will cause, but the clear halakhah compels me to accept it.” We can paraphrase Cover’s closing line in the essay cited above as follows: It is between the idea and the reality, between validity mistaken for truth and truth itself, that the shadow of pain and religious failure falls.

Rabbi Gordon Tucker is Vice Chancellor for Religious Life and Engagement at The Jewish Theological Seminary (JTS). He served as Senior Rabbi at Temple Israel Center in White Plains, New York from 1994 to 2018, and is now Senior Rabbi Emeritus. From 1982 to 2007 he was a member of the Rabbinical Assembly Committee on Jewish Law and Standards.

  1. 1 Arnold M. Eisen and Steven M. Cohen, The Jew Within (Indiana University Press, 2000), 184.

  2. 2 “Immanuel Kant,” Internet Encyclopedia of Philosophy, https://iep.utm.edu/kantview/#:~:text=At%20the%20foundation%20of%20Kant's,of%20things%20we%20can%20experience.

  3. 3 I am indebted to Dr. Sarah Wolf for this insight.

  4. 4 Elyakim Krumbein, “On the Matter of Acting by Command” (Hebrew), Aggadot Ḥazal, http://www.daat.ac.il/chazal/maamar.asp?id=19 (translation and emphasis mine).

  5. 5 Moshe Halbertal, “History of Halakhah and Emergence of Halakhah” (Hebrew), Dinei Yisraʾel 29 (2013): 1–23.

  6. 6 Mira Balberg, “Ritualizing Law, Legalizing Ritual,” in Jewish Law: New Perspectives, ed. Suzanne Stone and Yonatan Brafman, Perspectives on Jewish Texts and Contexts 26 (de Gruyter, 2024), 157.

  7. 7 Balberg, “Ritualizing Law,” 158.

  8. 8 Barry Scott Wimpfheimer, Narrating the Law: A Poetics of Talmudic Legal Stories, Divinations: Rereading Late Ancient Religion (University of Pennsylvania Press, 2011), 9.

  9. 9 Robert Cover, “Violence and the Word,” in Narrative, Violence, and the Law, ed. Martha Minow, Michael Ryan, and Austin Sarat (University of Michigan Press, 1995), 228.

  10. 10 Martha Minow, “Stories in Law,” in Law’s Stories: Narrative and Rhetoric in the Law, ed. Peter Brooks and Paul Gewirtz (Yale University Press, 1996), 35.