Halakhah is by nature adaptive. Its continued existence – through changing eras, places, and cultural influences – is an amazing phenomenon from many angles: historical, cultural, theological, philosophical, and legal. As in the past, a dynamic reality compels Halakhah’s contemporary bearers to engage in intra-halakhic renovation. This general truth is particularly valid concerning issues at the center of the discord between religion and state. Unfortunately, at least three cumulative facts hinder halakhic creativity in these areas. The first is the tragic fact of the absence of Jewish sovereignty for a prolonged period. As a result, halakhic readiness for the real possibility of religious existence within a political framework was impaired. The second fact is that the renewal of Jewish sovereignty did not entail a commitment to religion, and most Israeli citizens are indifferent to it and prefer a non-halakhic judicial system. Third, the fact that for several centuries, the jurisdiction of halakhic law has been restricted so that Halakhah’s contemporary bearers have lost some of the instincts that had characterized their ancestors and had enabled them to cope with the “outside” in vital and creative ways, both intellectually and spiritually.
In this paper, I offered four types of intra-halakhic strategies for religious renewal to replace the intellectual barrenness and the legal passivity characterizing the halakhic response to issues of religion and state. Each one offers a different type of solution, and each one is hindered by serious difficulties.
The first strategy proposes deliberate silence. This is an easy solution to implement, but involves anarchic elements from a religious perspective, since it exempts Halakhah from responsibility for important and crucial segments of modern human existence. By contrast, the second strategy suggests that Halakhah should assimilate and internalize suitable elements from the outside culture. This behavioral model has broad and solid support in halakhic tradition but is currently hard to implement, inter alia because a majority of Jews are alienated from Halakhah in both their identity and their consciousness.
The common denominator of these two options is that they offer an overarching meta-halakhic solution to Halakhah’s difficulties in coping with contemporary realities: the tension between religion and state will lessen if Halakhah contracts (by proclaiming lack of conceptual or institutional jurisdiction), or if religion assimilates the state’s prevalent norms (obviously, depending on various conditions). By contrast, the two latter options contend with reality by establishing specific arrangements.
The third strategy focuses on offering a judicial response, activist in nature, to the questions that arise. This has consistently been the prevalent way of developing Halakhah, but it may not suffice when the gap between halakhic precedent and contemporary reality is wide. In such circumstances, it is worth considering a judicial activism that aims not only to interpret extant halakhic categories but also to formulate new ones, relying on Halakhah’s basic principles and trends.
The final strategy focuses on the implementation of halakhic authority and proposes to revive what has been lost in Jewish life: a supreme institution for setting halakhic arrangements on central issues in the public agenda. The road will thereby be paved not only for activist adjudication, but also for halakhic legislation whose purpose and mission is to regulate contemporary realities in the spirit of Halakhah.
All four strategies of action suffer from clear limitations. Only one option is worse than them: the persistence of halakhic silence and the entrenchment behind the atrophying rule, “all innovation is forbidden by the Torah”.