meta: {"file": "/data/tomer/Sefaria-Export/txt_done/Modern Works/Works of Eliezer Berkovits/Conversion \"According to Halakhah\"; What Is It/English/Conversion According to Halakhah - What Is It Judaism 23 Fall 1974 467-78.txt"}
text: Conversion "According to Halakhah"; What Is It
  גיור 'כהלכתו' - מהו?
  Conversion "According to Halakhah" - What Is It: Judaism 23 (Fall 1974): 467-78
  
  
  Conversion "According to Halakhah"; What Is It
  
  
  
  
  
  OUR CONCERN HERE IS NOT WITH THE POLITICAL issues, struggles, and bickerings that are usually associated with the title of this essay. Strictly speaking, our chief interest here is not even with the question of conversion. What we intend to discuss is the meaning of the term, <i>al pi halakhah</i>, according to <i>halakhah</i>. We shall use the problem of conversion in the State of Israel, which has embroiled us so long and generated so much bitterness among Jews, as an example to illustrate the fundamental problem of halakhah in our days.
  The <i>din</i>, the law, regarding conversion is really very simple. For a conversion in accordance with the <i>din</i> there has to be <i>kabbalat ol mizvot</i>, the acceptance of the commandments of the Torah; in the case of a male convert there has to be circumcision, and finally there has to be <i>t’vilah</i>, immersion in the ritual bath. The requirements of the law in this matter are clear. There is no problem there. The problem, of course, is that while there is the <i>din</i> as stated in the Talmud and crystallized in the codes there are also a great many Jews who either do not accept the Talmud as the ultimate authority for their own religious conscience or who give to the law regarding conversion an interpretation which differs widely from the one given to it by Orthodox Judaism. The real question, therefore, is not what does the <i>Shulḥan Arukh</i> say about conversion. That is well known. The question is what to do about all the Jews who do not accept the Orthodox view in this matter. It makes little sense to argue that since the unity of the Jewish people is at stake, all Jews must accept the Orthodox viewpoint. It makes no sense at all; not because the question of conversion is not <i>that</i> important. It is of vital importance to us all. We are dealing here with the very essence of the nature and meaning of Jewishness. It makes no sense because in this way we shall not safeguard the unity of the Jewish people. On the contrary, the gap widens and the essential nature of being a Jew becomes more and more diluted for more and more Jews. One might, perhaps, retort: we are not concerned with the practical consequences. Here is the law; we insist that it be adhered to. But would this still be a halakhic position? Is it, indeed, so, that authentic halakhah is free of meaningful practical considerations? We shall yet come back to this later in our discussion.
  Apart from the practical considerations, there is also a moral question to be raised. By insisting that in matters of conversion the Orthodox view must prevail exclusively, we have, of course, stated that our rather numerous non-Orthodox brothers and sisters have to be excluded from having any say in such a vital issue as what it means to be a Jew. Do we have the moral right to make such demands? It is true that we maintain that Torah is <i>min hashamayim</i>, revealed to the Jewish people by God and, therefore, the law regarding conversion has divine authority? I, too, believe that, together with all Orthodox Jews. Nevertheless, I cannot overlook the fact that, no matter how strongly I believe it, it is still only my personal belief. And if there are tens of thousands of us who so believe, the faith in Torah <i>min hashamayim</i> will still remain <i>our</i> belief. No matter how convincing our reasons and our proofs for the faith may be for us, they will still be no more than reasons and proofs <i>for us;</i> enough for me, clear and convincing, like the brilliance of a clear and cool morning, yet inseparable from my subjectivity. It is true that our opinion in this matter of conversion is identical with that of the <i>g’dolei Torah</i>, the great Torah scholars of our generation. But, again, this, too, is our recognition of their greatness. If we should be mistaken, if the great Torah scholars themselves should be mistaken, then the greatness of the <i>g’dolim</i> itself would be wanting and of little consequence. But, of course, we are right, our faith is true, and the greatness of the “great ones” is unquestionable. Indeed—so <i>we</i> believe. That Torah is <i>min hashamayim</i> so I believe; but I cannot help recognizing that the fact that I so believe does not make my belief a faith <i>min hashamayim</i>. The Torah is <i>min hashamayim;</i> my faith that is so is not; neither is my interpretation of the meaning and consequences of that faith <i>min hashamayim</i>. If so, how can we deny to Conservative and Reform rabbis and scholars the right to their interpretation? Of course, we Orthodox are the only Torah-true Jews. But no matter how much we insist on this, it will, nevertheless, remain our own subjective insistence. Could not, then, our non-Orthodox brothers and sisters turn to us and say with equal right, since our interpretation of Torah and Judaism is mistaken, that we do not represent Torah-true Judaism and that only theirs is the Torah-true way?
  Of course, an Orthodox Jew might say: I don’t care what <i>they</i> maintain. I have my own convictions and I shall not depart from the letter in the <i>Shulḥan Arukh</i> regarding conversion <i>kḥut hasa’arah</i>, not as much as the breadth of a hair. Indeed, one does have the right to such a decision. But, for the sake of intellectual honesty, one should have a proper understanding of the meaning of such a decision. In a sense, in its ultimate consequences, this would be a decision of seceding from community with non-Orthodox Jews or excluding them from community with us. Or, to say the least, it would be a decision regarding the rights and status of our non-Orthodox brothers and sisters within the community of Israel. However, if this is fully understood, we will have to concede that this is no longer a question purely of conversion, but of the importance of the unity of the Jewish people, the idea of <i>klal Yisrael</i>, in relationship to the laws of conversion. How to convert to Judaism is not a halakhic problem. It is all stated clearly in the <i>Shulḥan Arukh</i>.
  The problem is that in this case the prescribed laws on conversion are in conflict with another important principle of Judaism, that of preserving the unity of Israel, the idea of <i>k’neset Yisrael</i>, with the obligation of <i>ahavat Yisrael</i>, the love for the people of Israel. Only when we understand this, have we raised the halakhic question. For, indeed, such is the classical halakhic problematics, i.e., that the strict adherence to one law is in conflict with the strict adherence to another law and obligatory principle of Judaism. We repeat, then: in the case on hand, any Orthodox Jew has the right to say that, for him, the importance of the laws of <i>gerut</i> (conversion) are so vital that for their sake he will push aside all the important obligations regarding the ideal of <i>klal Yisrael</i> and <i>ahavat Yisrael</i>. But where does he find the authoritative basis for his decision? In the <i>Shulḥan Arukh</i> on <i>hilkhot gerim</i>, in the section on conversion? Certainly not! There he will find all the rules on how to convert a non-Jew. What he will not find there is the answer to our problem of halakhah, i.e., in view of the importance of the idea of <i>klal Yisrael</i> and all that it involves. For Torah-true Judaism, what should be our attitude to a vast number of fellow Jews who do not observe the laws on conversion as we do? Where, then, will he find the answer to his question, in which book, in which code? In no book, in no code. He must make this decision by himself, in his own heart, in his own Jewish conscience. But how so? He will accept the authoritative validity of the law on conversion, at the same time that he will acknowledge the importance of the reality of <i>klal Yisrael</i> and <i>ahavat Yisrael</i> and will then seek a resolution of the conflict from the source and the quality of the comprehensive ethos of Judaism, from what Judaism is about in its totality, according to his understanding and commitment. Moreover, this is an understanding and commitment which has grown into a measure of maturity as the result of the dedicated study of the classical sources of Judaism and of adherence to a way of life inseparable from it. This is not a purely subjective decision; but just because of the subjective element involved in it, it will be a truly halakhic solution to a genuinely halakhic problem.
  
  
  
  It has now become necessary to give thought to the very essence of halakhah, the nature of the halakhic problem and the characteristic quality of the halakhic solution. Only by dealing with this aspect of our theme do we approach the core of our problem; indeed, not only the specific problem of conversion but the problem of halakhah in the widest sense in the contemporary situation of the Jewish people. What is halakhah? Halakhah is Torah <i>she’baal peh</i>, oral Torah, as distinct from the Bible itself, which is Torah <i>she’biktav</i>, the written Torah. In other words, the Bible alone is not enough; the Torah <i>she’biktav</i> cannot fulfill the function or the purpose intended by the Torah. Why not? Let us see how halakhah functions, what is the work that halakhah does. Let us look at some quite well-known examples, as well at others less well-known. A very famous case of a halakhic problem and its solution is the case of Hillel’s <i>prosbul</i>. To put it concisely and perhaps not quite accurately, it was the transformation of private debts, which otherwise, in accordance with the written law of the Bible, would be forfeited in the <i>sh’mittah</i> year, into public debts. This was a bold innovation, which Samuel, of a later generation, would have liked to abolish. How and why was it instituted by the great Hillel? He was committed to the law of the <i>sh’mittah</i>. But, in his time, this law came into conflict with other valid concerns of Judaism. On the one hand, there was a Torah obligation to protect the interest of the poor who, as the seventh year was approaching, could not receive any loans for fear that in the <i>sh’mittah</i> year the money would be lost. On the other hand, there was also the important practical consideration for the effective functioning of the economic process within society; also a valid concern of Judaism. Rab Hisda expressed the meaning of the term <i>prosbul</i> into the etymologically monstrous, yet essentially correct interpretation: <i>pros bulee u’butee</i>, an ordinance in the interest of the poor and the rich (T. B. Gittin, 36b and 37a). Where did Hillel find the authority for his innovation? Where was it written in the Torah? It was, of course, not found in any text, in any code. He found it within himself. There was a clash between equally valid laws, principles, and concerns of the Torah. He had to find a resolution to the conflict. There was no text, no Torah <i>she’biktav</i> to tell him which course to follow. He could find the solution to the problem within his own understanding of the comprehensive ethos of Judaism as he was able to gather it in his own heart and in his own conscience from the totality of the Torah-teaching and the Torah-way of life.
  Let us consider another example. According to the written law of the Bible, two witnesses are required in order to establish a fact in court. Yet, in the case of a husband who has disappeared, the teachers of the Talmud accepted the testimony of one witness alone in order to prove the death of the husband in order to allow the wife to remarry. How could they rule in this manner against an explicit law of the Torah? There are all kinds of interpretations for this bold innovation. (See, <i>Tosafot, Yevamot</i>, 88a; the commentary of Rashi in <i>Shabbat</i> or the Novellae of the <i>Ritba</i>, ad loc.) However the technicality of the ruling may be explained, the decisive motivation for the ruling was, as it is clearly stated in the Talmud (T.B. Yevamot, 88a): <i>m’shum aguna akeelu boh rabbanan</i>, meaning: in order to save the wife from the status of an <i>agunah</i>, i.e., from being a woman tied, to the end of her days, to a man who has disappeared, they applied the law leniently to her case. Once again, it is the authentic halakhic problem situation. There is the written law of the Bible, but this time it is in conflict with another obligation of the Torah-true Jew, the care and concern for a woman whose husband has disappeared. Once again, there was no written code to consult. On the basis of the rabbis’ understanding of the overriding Torah-purpose formulated nowhere explicitly, but absorbed into their own consciousness as the result of a life of dedication and commitment to Torah and its living realization, they gave the answer, a halakhic solution to a halakhic problem.
  The examples are innumerable. For instance, the case of Rabba bar Bar Hana who had hired some workers to carry some barrels of wine. Somehow, the workers broke the barrels and the wine was lost. Whereupon Rabba took away their clothes as a guarantee for, or in lieu of, damages, which he thought he was entitled to. They brought the case for adjudication before Rab, who ruled that the clothes were to be returned to the workers. Asked Rabba: “Is this the law?” And the answer was: “Yes! for it is written; ‘That you walk in the way of good men.’“ The clothes were returned. The workers, however, were not yet satisfied. “We have worked all day and we are hungry,” they said, claiming their wages. Ruled Rab: “Go and pay them their wages.” Once again Rabba asked: “Is this the law?” and the answer was given: “Yes! For the verse in Proverbs concludes: ‘And keep the paths of the righteous.’“ (T.B. Baba Mezia, 83a).) Legalistically speaking, Rabba was, of course, right. Such was not the law. But the case before Rab presented one of those characteristically halakhic problems. There was the law of damages. But there was also the obligation to care for the disadvantaged. Once again, the decision was made on the basis of a rabbi’s appreciation of the more comprehensive concern of the Torah. Rab’s decision was not in accordance with the specific law of damages, but with the total purpose of the Law of the Torah. It was halakhah.
  The cases which illustrate the point we are making are numerous in Talmudic literature. We shall conclude with the discussion of two more. In recent times, due to a <i>cause célèbre</i> in Israel, the problem of the <i>mamzer</i>, of the bastard according to Biblical law, became, for a while, the preoccupation of many of us. Without commenting on the case itself, let us see how certain aspects of the problem were dealt with in the Talmud. There is, for instance, a statement by Rabbi Yohanan, the leading teacher of his time in Erez Yisrael, who swore that he could prove that <i>mamzerim</i> were present in a family. According to the law, that would disqualify it from inter-marriage with the “pure” families. Yet, he refrained from revealing the facts. As he said: “What can I do? Some of the <i>g’dolei ha’dor</i>, the great men of this generation, are mingled among them.” (T.B. <i>Kiddushin</i>, 71a). The question might well be asked: Who gave Rabbi Yohanan the authority to disregard a Biblical commandment and allow the marriage with members of a family who were, by the law of the Torah, to be excluded from the community? But once again we have before us the typical halakhic problem. There is the law on <i>mamzerut</i> in conflict with another law and concern of Judaism, the respect due to <i>g’dolei ha’dor</i>, to the great men in Israel, who are bearers and teachers of the Torah, whose function is vital for the preservation of Judaism and the Jewish people. There was no code extant to tell Rabbi Yohanan how to act. On the basis of his total understanding of what Judaism demands of the Jew, he decided not to reveal the facts. In the Talmud, itself, his decision is related to a principle formulated by Rabbi Yizhak: “Once a <i>mamzer</i> has ‘sunk’ into a family, leave him there.” The meaning being that even though one could determine which part of the family is “pure” and which is not, do not investigate, do not ferret out the <i>mamzer</i>. The principle is further broadened into the rule that if one knows with certainty of a <i>mamzer</i> in a family who could be simply singled out, but the case is not generally known, one is not permitted to reveal the truth. One might wonder how such leniency could be justified in the face of a clear Biblical ruling on the exclusion of the bastard and his descendants in all generations from intermingling with the community. Undoubtedly, here, too, Biblical teachings in conflict with each other in a given situation had to be considered. On the one hand, the law on the <i>mamzer</i>; on the other, considerations of justice and pity for the innocent bastard and his offspring. (The rabbis in various places had the courage to question the justness of the law regarding the <i>mamzer</i>.) Thus, with true halakhic boldness, out of their comprehensive interpretation of Judaism’s meaning, they limited the application of the law about the bastard.
  We conclude with the discussion of one of the most striking examples of halakhic boldness and independence found in the Talmud. We have in mind the great debate about the <i>tanur shel Akhnai</i>, the oven of Akhnai. The subject matter of the debate itself is irrelevant to our discussion. The dispute over the law in this case raged between Rabbi Eliezer the son of Horkenos and the other masters. Since his colleagues did not accept his arguments, the mighty Rabbi Eliezer wrought a number of miracles to prove that he was right. The miracles were disregarded. Finally, a voice from heaven came to the support of Rabbi Eliezer declaring: “What do you want from Rabbi Eliezer? The halakhah is always as he teaches it!” What was there for the rabbis to do? The Talmud continues the story: Rabbi Joshua then stood up and said (quoting from the Bible somewhat out of context): “It is not in heaven!” (Deut. 30:12). And this explanation is given: Said Rabbi Jeremiah: “What does it mean, ‘It is not in heaven’? The Torah has already been given to us on the mountain. We pay no attention, not even to a heavenly voice. Because You (i.e., God) have already written in the Torah at the mountain: ‘Decide according to the majority’“ (Exodus, 23:2. This, of course, is itself a “halakhic” re-interpretation of the literary meaning of the text.) Needless to say, the second part of the story is no longer about the oven of Akhnai. It is about the confrontation between the divine voice, which the rabbis clearly received, and their own conscience as to what was the right decision in the case of the oven. How did they resolve the confrontation? They beat the divine voice with God’s own words, as they understood those words. However, their own personal share in the decision is obvious. For one could have easily argued with Rabbi Joshua: It is true that one should rule in accordance with the majority opinion, but only when the discussion is among men. However, in a debate with God Himself, how dare you rule against God? How, indeed, dare you enter into a debate with Him? Yet, the rabbis did rule against a voice from heaven. Once again, there was a conflict between two demands of the Torah: to obey the heavenly voice or to administer the law in a given case as they were able to understand it. Once again, the conflict was resolved on the basis of a more comprehensive principle which, in the rabbis’ own estimation, deserved priority. The story itself finds its charming conclusion as follows: Rabbi Natan met the prophet Elijah (who, in Jewish lore, occasionally walks among the people and reveals himself to them) and asked him, “What did the Holy One, blessed be He, do in that hour (of the great debate)?” Said Elijah: “He laughed and exclaimed, ‘My children have defeated me, my children have defeated me’!” (T.B. Baba Mezia, 59b). The postscript to the story is decisive. To His own joy, God is overruled. A specific word of God is controlled by a more comprehensive divine command. Therein lies the secret of the creative vitality of the halakhah. We might now formulate it more generally. When, in a given situation, a specific law is in conflict with another law, principle, or concern of the Torah, the specific law may be limited in its application, re-interpreted, adapted, suspended or changed in this one situation but not abolished, by the overruling concern of the total Torah.
  We may now be in a better position to understand why the Torah <i>she’biktav</i>, the Written Torah, is not enough, why it needed to be completed by a Torah <i>she’baal peh</i>, the Oral Torah and why the halakhah could not be anything else but oral teaching. Every written law is somewhat “inhuman.” As a code laid down for generations it must express a general idea and abstract principle of what is right, of what is desired by the lawgiver. But every human situation is specific and not general or abstract; in a sense, every human situation is unique. No general law speaks to the specific situation. The uniqueness of the situation will often call for additional attention by some other principle, which has its validity within the system. Two witnesses are necessary to establish a fact. That rule has general validity. But the woman whose husband has disappeared is in a specific situation. The law of the Torah, itself, calls for responsible care for her specific plight. Resolution can be found only in the totality of the ethos of the law. But no written code can provide the resolution. The code can deal only with the general, not with the specific. Once you write it down as a code you have generalized it. Only the Oral Torah, alive in the conscience of the contemporary teachers and masters, who can fully evaluate the significance of the confrontation between one word of God and another in a given situation, can resolve the conflict with the creative boldness of application of the comprehensive ethos of the Torah to the case. Thus, Torah <i>she’baal peh</i> as halakhah redeems the Torah <i>she’biktav</i> from the prison of its generality and “humanizes” it. The written law longs for this, its redemption, by the Oral Torah. That is why God rejoices when He is defeated by His children. Such defeat is His victory.
  According to an opinion in the Talmud, God concluded His covenant with Israel only on account of the Oral Tradition (T.B. Gittin, 60a). A covenant is a relationship of mutuality. The covenantal relationship could find no expression in the revelation and acceptance of the Torah at Sinai. It was a case, as the Talmud puts it, of <i>kafah aleihem har k’ghighit</i>, a law given, imposed. Only in halakhah is the covenant, as mutuality of relationship, fully present. Halakhah is not subjective adjustment at all, (though a specific law may be adjusted, but not for the sake of adjusting to the situation). The very essence of covenantal mutuality cannot be subjectivity; but neither can it be without subjective involvement on both sides. Halakhah is not subjective, but it has a subjectively creative element to it. The halakhist recognizes the will of God as expressed in the Torah; he is wholly committed to the law and the teaching of the Torah. But in the mutuality of the covenant the responsibility has fallen to him, to take upon himself the risk of determining, in the light of the totality of the Torah teaching and Torah living, the manner in which the will of the other party to the covenant is to be realized in a specific situation. Ultimately, he has to do that in the independence of his own Torah-imbued conscience. This is our share in the covenant, the existential component of our participation in it. Loyalty to the Torah, to the divine partner to the covenant, demands that we accept the responsibility, notwithstanding the risk involved in the subjective aspect of our participation. Only thus may the generality and abstractness of the written Torah be transformed into <i>Torat Hayyim</i>, its realization in whatever situation Jews may find themselves in the course of history.
  
  
  
  Let us now return to the question of conversion “according to halakhah.” We have indicated earlier that this is not just a matter of conversion but, rather, the problem of how to decide in the case of a conflict between the laws of conversion and one’s Torah-obligation of preserving <i>aḥdut</i>, the unity of <i>k’neset Yisrael</i> and the mizvah of <i>ahavat Yisrael</i>, the love of all Israel. Only because of the confrontation between two equally binding principles of the Torah do we have an authentic halakhic problem on hand. Is there now any further principle in the totality of the system of Judaism that might be used as the basis for a halakhic solution? One could perhaps make the following suggestion. It is true that the laws of conversion do prescribe that a non-Jew be accepted into Judaism only if he is willing to accept all the commandments of the Torah in all sincerity and if he is circumcized and immersed in the properly prepared ritual bath. Yet, it is also established that if this were not the case, but a person converted without the religious responsibilities having been explained to him, even if he or she undertook this step for the sake of marrying a Jew or a Jewess or for any other ulterior reason, even if the conversion had taken place in the presence of three laymen, ignorant of the laws and teachings of Judaism, the conversion is still valid. Of course, this is allowed only <i>be’d’eebad</i> i.e. <i>post factum</i>, after the event of conversion had taken place. But <i>l’khatḥilah</i>, as a rule, from the start of the conversion process, it is not permissible. On the other hand, there exists a general principle of halakhah that all cases of need, of urgency, <i>eyt hazorekh</i> or <i>hadḥak</i>, are to be treated as <i>b’ed’eebad</i>. In other words, what normally would be admissible only <i>post factum</i>, under the pressure of circumstances is allowed <i>l’khatḥilah</i>, from the start. Now, I do not hesitate to say that the preservation of <i>aḥdut Yisrael</i>, the unity of <i>klal Ysrael</i>, and the practice of <i>ahavat Yisrael</i> are matters of utmost urgency. With this understanding of the problem, I might well think that a compromise with our non-Orthodox brothers and sisters was possible. I imagine that I would have every right to approach them and talk to them somewhat as follows:
  We have our own views on what constitutes genuine conversion and you have yours. We disagree on this point. We shall not force our view on you as you will not force yours on us. But insofar as we are both part of <i>k’neset Yisrael</i> and desire to have our place of responsibility in it, we do have in common our concern for the preservation of <i>klal Yisrael</i> and are equally motivated by <i>ahavat Yisrael</i>. Therefore, in this matter of conversion your problem is very similar to ours. It is not really a question of how to admit a non-Jew into Judaism. It is a “halakhic” problem for you no less than for us, i.e., how to resolve the conflict between your requirements for conversion and your commitment to the reality of <i>klal Yisrael</i>. We know well what your <i>l’khatḥilah</i> position on conversion is. But since this is a case of <i>eyt hazorekh</i> and <i>shaat hadḥak</i>, what would be your <i>be’d’eebad</i> position in view of the need for Jewish unity and for the sake of your love for your fellow Jews? In view of the need and the urgency dictated by our understanding of Judaism’s call for <i>ahavat Yisrael</i> and the safeguarding of the unity of the community of Israel in our relationship to you we are, <i>be’d’eebad</i>, willing to forego the demand for full adherence to the requirements for conversion as we accept it for our own conduct. How far can you go in allowing your obligation to preserve unity and commitment to a common destiny to control and modify your requirements for conversion? I disagree with Reform Jews as to what these requirements ought to be. As to Conservative Judaism, I understand from some of its leading spokesmen that the majority of the Conservative rabbis do adhere to the laws of conversion as stated in the <i>Shulḥan Arukh</i>, though I assume that the Orthodox interpretation as to what constitutes <i>kabbalat ol mizvot</i>, the acceptance of the yoke of the Commandments, may differ from theirs. But notwithstanding the disagreements, I do have sufficient respect for the leading rabbinical and scholarly personalities in both the Conservative and Reform groups to know that, in moral responsibility, they could not, and would not, refuse to respond positively to such an approach on the part of those who came to them in the name of halakhah. At least, instead of shouting at each other, we might start talking to each other.
  
  
  
  Is this the solution? Perhaps. Is there no other way? Perhaps there is. What concerns us here, however, more than the actual solution to this specific problem is the fact that in all this unseemly shouting it has occurred to no one to define the problem “halakhically” as we have analyzed it. Instead, what should have been resolved in the spiritual dimension has been degraded to a political struggle, one which, to our humiliation, has been silenced for the time being only by the booming of the Syrian guns. Is this Torah? Is this halakhah?
  We have discussed this problem of conversion “according to halakhah” because it illustrates the problem of halakah in our time in the widest sense. In the course of the ages a calamity has overtaken the Torah <i>she’baal peh</i>, the Oral Torah. In the course of time, what was to be oral teaching became more and more committed to writing. The first “text” of the Oral Torah was the Mishnah. In the Gemarah, which is usually understood to be the explanation of the mishnaic text, one notices the struggle of the Oral Torah, still very much alive, with the mishnaic phase of its solidification. There is a continuous tension between the oral teaching and the written word of what, too, was, in its origin, Torah <i>she’baal peh</i>. The text is “corrected;” a law often formulated in the Mishnah as a general principle is interpreted to mean only a single rule in a specific case. The plain meaning of the text is often changed into its very opposite by an insertion. Interpretation is often “creative,” in that it often disregards syntax and literal meaning. The whole of the Gemarah testifies to the unavoidable struggle of the spoken word of the halakhah with its solidification in a text. But, then, the Gemarah, too, was “concluded.” And now the Oral Torah has been committed to two texts. However, the second text has much less a solidified form of the oral teaching than the first. There is an essential difference between the spoken and the written word. Whereas the Mishnah was, indeed, a transformation of the spoken word into the written one, the Gemarah was the writing-down of the spoken word in a manner that preserved its essential spoken quality. The Mishnah is a text; the Gemarah is more like notes for a text.
  Then came the third phase, that of the codifiers. Maimonides, for instance, in his <i>Mishneh Torah</i>, imitating the mishnaic style, transformed the “notes” of the Gemarah into a text and, thus, he transformed the entire extent of Oral Torah into a new kind of Torah <i>she-biktav</i>. The ultimate outcome of this process was, of course, the <i>Shulḥan Arukh</i>.
  Thus, what was not meant to be did come about: the Oral Torah became a written one. In fact, this whole development took place in actual violation of a principle of the Torah, according to which it was forbidden to commit to writing the Oral Torah. (T.B., Gittin, 60b). Why, then, was it done? One might apply to this entire development what was said in the Talmud of Rabbi Yohanan and Rabbi Shimon ben Lakish, who allowed themselves to study the written version of certain parts of the oral tradition. It is said that they did it following a verse in Psalms (119: 126) which, in a famous Talmudic interpretation reads: When it is time to act for God, one may violate His commandment (T.B., Gittin, 60a). They meant to say that, since it was impossible to preserve the entire body of the oral teaching in memory alone, some parts of it had to be put into writing, especially in the light of the vicissitudes, uncertainties, distinction of communities and Talmud academies, and exiles in the history of the Jewish people in many lands. This conclusion is supported by Maimonides’ Introduction to his monumental halakhic work, the <i>Mishneh Torah</i>.
  This mean that the transformation of the Oral Torah into a text was due to political history. It was an unavoidable violation of the essence of halakhah when the spoken word was forced into the straitjacket of a written mould. It was no one’s fault; nevertheless, it was a spiritual calamity of the first magnitude. Orthodoxy is, in a sense, halakhah in a strait-jacket. Having had to transform the Oral Torah into a new written one, we have become Karaites of this new Torah <i>she-biktav</i>, forced upon us by external circumstances.
  It was part of the spiritual tragedy of the <i>Galut</i> that exactly what halakhah, in its original vitality and wisdom, intended to protect us from, has happened. In a sense, we have become Karaites. God can no longer rejoice over His “defeat” by His children. It is a condition we have had to accept. It is the price we have paid for the preservation of our identity and Jewish survival.
  Today, however, we are faced with unprecedented new challenges and problems, problems of a true halakhic nature, which require solutions in the true halakhic spirit. This is true in the free societies in which Jews live, but it is compellingly manifest in the State of Israel. When some leading rabbinical authorities there maintain that halakhah can solve all of the problems that may be raised for Judaism in a modern state they are right and they are wrong. They are right, for halakhah in its original strength could solve all such problems. Yet, they are wrong. Halakhah, in its present strait-jacketed state, cannot fulfill that function.
  This is certainly no plea for reform. We believe that many of our inherited moulds are leaking and cannot meaningfully contain the life that has fallen to the lot of our generation. What is needed, first of all, is to retrace our steps. To return to the original halakhah, to rediscover it, and, having rediscovered it, to restore it to its original function. If only the problem were thoroughly understood, it would liberate us from the stultifying burden of this “Karaite halakhah.” We would then see that in this generation we have been called upon, as it were, by another <i>bat kol</i> to accept the responsibility to make use of whatever is still left of the Oral Torah in its textual solidification. It would be the beginning that would lead us back to the original source and strength of halakhah. It would be the beginning of its restoration to its original vitality and dignity, for the sake of which God concluded this covenant of mutuality with Israel. What is needed is not less study of Torah, but better study of Torah. What is needed is at least one Talmud research institute that would be dedicated to this task of rediscovery of halakhah and—at first—its intellectual restoration. What is needed is not less dedication to halakhah, but more faith in halakhah. Where there is greater faith, greater boldness is justified.
  As in the past, because it was a time to act for God, shackles had to be placed on the Oral Torah in violation of God’s command, so now the hour has come when the need to act for God places upon us the responsibility to free the Oral Torah from its shackles in obedience to God’s original command. There are risks involved in such an undertaking. Because of it we need, not less, but more <i>yi’rat shammayim</i> (fear of God). But, possibly, most of all, we need to join much more <i>ahavat Yisrael</i> to our <i>ahavat ha-torah</i>, by far more love of all Israel to illuminate our love of Torah. And pray to God for His guidance.
  __________ELIEZER BERKOVITS <i>is chairman of the philosophy department of the Hebrew Theological College, Skokie, Illinois</i>.