Chapter Two: On Legal Conservatism

Legal systems, as such, tend to conservatism. Generally, law is not the force that changes reality but the means by which existing change can find expression. This is done through the formulation of a new social consensus in the shape of norms. Law is not revolutionary by nature. It does not produce a new sets of priorities; it refrains from leading social revolutions and is reticent to serve as the catalyst of cultural change. The law is driven by change and does not impel such change; it lags behind reality rather than creating it. The law reflects changes in the facts, preferences, tastes, and decisions of its reference group, but it is not the crucible of these changes.

Legal conservatism is easily discernible in two components of a legal system: the legislature, which is the source of legal norms, and the court, which is the setting for the interpretation and implementation of these norms.

Members of a legislature conduct political negotiations, whose results are formulated as law. Lawmakers try to use their political power so that the interests and the values of their constituency will be reflected in the emerging norm. As a result, the legislative outcome is usually an authentic expression of society’s combined priorities and of the will of the electorate. The preservation of harmony between the public will and parliamentary legislation is guaranteed by the fact that members of parliament who fail to operate in this way will not survive the next election. Quite simply: if the agency creating the norms were not exposed to recurrent public election, the law might function in an independent mode that imposes the legislator’s preferences on reality. However, since the legislative body is elected, it is clear that the legislation it produces will be conservative, giving expression to society’s current preferences.

What about the judges? In some judicial systems, including the Israeli one, once judges are nominated they do not stand for public re-election. As such, from a perspective of political independence, they can use the authority invested in them in non-conservative ways, an approach that may be synonymous with creative legislation. Courts that regularly embrace such an approach in varying and widely controversial contexts will be correctly classified as social catalysts and as promoting changes in values, with all that this implies. Although some would describe the current Israeli Supreme Court in these terms, it must be stressed that this description does not as such point to the basic character and the general ethos of judicial activity. Judicial activity has inherent limitations: it is a secondary activity, ancillary to the primary legal one that takes place in parliament. [21] Judges have no direct authority to determine norms ex nihilo, but must rather follow the normative path paved by the legislature.[22] As we know, however, some judges tend to judicial passivity while others lean toward activism. The difference between these two conceptions of the judicial role, although relevant to the present discussion, does not change the general picture. An activist judicial tradition does not assume a mandate to instigate social and ideological revolutions. Judicial activism, even when allowing a judge to go beyond settling specific disputes in order to set general norms for society,[23] is, after all, a professional activity, wherein a judge considers a range of legitimate interpretations of a given law and chooses one that, more than others, will change current societal norms.[24] But activist judges, if they wish to preserve their legitimacy and society’s trust, understand that their creative interpretation of the law must remain within a relatively limited spectrum of possibilities dictated by the source of the law as created in the legislature.[25]

This description of legal conservatism, which applies to all judicial systems, is all the more true with regard to the halakhic system, particularly in light of the significant and broad characteristics of Halakhah that I will discuss below. It is important to emphasize that these characteristics are not universally agreed upon, but are nevertheless generally accepted in contemporary discourse regarding Halakhah and hence central to our discussion. The characteristics that reinforce the judicial conservatism with which Halakhah is viewed may be enumerated as follows:

First, the source of Halakhah’s authority is a singular and unique divine revelation at Sinai, a belief that distinguishes it axiomatically from the source of authority claimed by other legal systems. The divine is eternal, and its norms – unlike that which is human – cannot be affected by the vicissitudes of time. Since Halakhah was shaped by God, the singular character of revelation would necessarily mean that it applies to all human experiences – past, present, and future – until the end of days.[26]

Second, Halakhah is a religious system of law and hence, its purpose is twofold. Alongside the traditional role of ordinary legal systems – that is, creating social order – a religious legal system is also attuned to theological aims. Its declared purpose is not measured solely by temporal circumstances and needs, nor is it necessarily tailored to fit earthly dimensions. Thus, whereas an ordinary legal system deals with two normative spheres – one covering the relationship between individuals and another that between the individual and the collective – the halakhic system includes a third normative layer, namely the relationship between the individual and God.[27] The purpose and the aims of this aspect of the law, like the internal connection between this theology and halakhic observance, distinguish Halakhah from non-religious legal systems.[28]

Third, the halakhic legal system does not draw upon an authoritative normative source parallel to a legislature, which continuously creates new norms ex nihilo. After Halakhah’s constitutive act, namely the revelation at Sinai, there exists no clear and sharp division separating legislative and judicial powers. Halakhah, to be sure, allows for the creation of new norms that supercede halakhic precedent or stand in contradiction to it in the form of an “enactment” [gzerah] or “regulation” [takkanah] issued by institutions or individuals with authority. Such enactments and regulations, however, do not constitute a continuous, fixed, and broad endeavor imbued with structural significance resembling that of the legislature in a modern legal system.[29] Reliance on precedent and its application to a given case through interpretation remains the mainstream pattern for halakhic development, while enactments and regulations are the exception.

So far, then, we have noted that the divine source of halakhic authority (divine rather than human), its content and aims (theological rather than merely social and ethical), and its patterns of development (generally hermeneutical rather than legislative) distinguish it from an ordinary legal system. These three distinctive aspects intensify the sense of conservatism that accompanies the halakhic endeavor. The singular divine source and the theological meanings of Halakhah appear to support the notion of the eternity of the norm and its detachment from human reasons and explanations, to assume its truth independently of facts, and to sever its link with real consequences and with transient human morality.

Let me be precise: the validity of these characteristics of Halakhah, as well as their specific details and implications, are not universally accepted, and halakhists themselves have historically expressed diverse and opposing views with regard to them. In my view, every one of the general statements depicted above with broad brush strokes requires separate and rigorous analysis from a variety of perspectives – theological, legal, historical, and sociological. A critical analysis of this type will probably reveal an intra-halakhic picture far more complex than the one drawn above. Yet, for our purposes in the present context, it is precisely this broad and sketchy description of Halakhah’s distinguishing characteristics that is current and even dominant in popular halakhic discourse and in the discourse regarding Halakhah. Whatever their substantive validity, these characteristics are the ones that determine the perception of Halakhah in our generation. This perception, in turn, underscores the relatively conservative nature of Halakhah vis-à-vis other legal systems which, in any event, tend naturally to conservatism. If the source of authority is a singular divine revelation, it cannot react to changes in reality; if Halakhah has a theological purpose as well, then those interested in normative changes consistent with the system find their hands tied; if Halakhah lacks a functioning legislature, its course of development precludes innovation by means of novel reformulations of its priorities in accordance with the demands of the time; if its development depends mainly on precedent, its ability to react to shifting realities depends on the availability and frequency of relevant precedents and on the judicial activism endorsed by halakhists.