Eliezer Berkovits and the Revival of Jewish Moral Thought

By David Hazony

With the decreasing relevance of most Jewish philosophy, a neglected American thinker deserves a new look.

For nearly two centuries, the institution of Jewish law has sustained withering criticism from religious thinkers who have argued that in submitting to a legalistic outlook, Judaism has abandoned the moral truths that were at the core of the ancient biblical teaching. Following Spinoza, these writers have argued that while the law may once have been necessary for the establishment of the ancient Jewish people, it was already showing signs of wear by the time of the prophets such as Isaiah and Jeremiah, and is certainly not relevant as law today; rather, it is the moral spirit expressed by these prophets that is the eternal message of Judaism. Thus according to Martin Buber, a leading spokesman for this approach, the central problem with the traditional view is that it “transforms the law into a heap of petty formulas and allows man’s decision for right and wrong action to degenerate into hairsplitting casuistry,” with the result that “religion no longer shapes but enslaves religiosity.”1 
Views similar to Buber’s can be said to have reached the height of their influence during the first half of the twentieth century, at a time when modernist beliefs had become so accepted among Jewish religious thinkers that many openly doubted whether Jewish law would even survive the coming generations.2 In our day, however, a reaction against such extreme positions can be felt throughout the spectrum of Jewish religious belief, a striking example being the platform adopted by the Reform movement in 1999, which broke with its century-long opposition to the application of Jewish law when it called for the “ongoing study of the whole array of mitzvot,” and the renewed observance of classical practices previously abjured by many of the movement’s leaders.3 As a result, the question of the importance of the Jewish law, or halacha, has again become relevant in circles well beyond its traditional constituency, necessitating the reconsideration of fundamental questions concerning the nature and function of this law: If an approach to Jewish life based on law is not inherently at odds with the moral demands of the prophets, as some have argued, then what, if anything, is its moral value? Is it possible that the law, properly understood, could itself play an important role in creating the moral personality, and even that most elusive of aims, the moral society?
With such questions in the air, it is well worth a renewed consideration of the writings of Eliezer Berkovits, perhaps the one modern thinker who addressed these questions most directly and systematically, and who for this reason may prove to be the most significant Jewish moral theorist of the last generation. Berkovits, who died in 1992, is known principally for his writings on the Holocaust, as well as his essays on modern trends of Jewish philosophy.4 His most important work, however, may be his exploration of the nature of Jewish morality—an effort spanning half a dozen books and many essays, which offers a comprehensive approach to Jewish faith that includes both respect for the traditional law asa binding norm and a belief in the normative supremacy of the values and vision articulated by the prophets.
This he achieved through a careful examination of the rabbinic and biblical literature, which led him to reach three important conclusions about Jewish morality: (i) That the halacha as presented in the Bible and Talmud is primarily about moral values rather than rules, and that any attempt to reduce it to a fixed set of rules violates its essence; (ii) that Jewish morality, as expressed by the prophets and as impressed upon the halacha, is concerned fundamentally with the consequences of one’s actions rather than the quality of one’s reasoning or intention; and (iii) that Judaism understands morality not only as a discipline of man’s intellect or spirit, but no less as an effort which must be incorporated into the habits of his physical being, through the vehicle of law, if it is to achieve its goal of advancing mankind in history.
Perhaps there is no need to say that if Berkovits’ description of Jewish morality is correct, then much of the fire and brimstone poured upon the halacha over many years may have been misguided, and the road may in fact be open for a serious reconsideration of the justifications and desirability of a law-observing Judaism in our own time. But perhaps of equal interest is the light which Berkovits’ arguments shed on the defense of the law mounted by many of its staunchest adherents in recent years, which the central claims of his philosophy do much to call into question as well. In what follows, therefore, I have devoted one section to each of what I take to be the three central tenets of Berkovits’ worldview concerning the relationship between Jewish morality and the traditional law. In so doing, I hope to show that, when considered together, they constitute one of the most potentially fruitful philosophies of Jewish morality in recent times; and to suggest that this effort may offer a path towards a more coherent understanding of the Jewish normative tradition. 

Eliezer Berkovits was born in Romania in 1908, and received his rabbinical and philosophical training in the 1930s at the Hildesheimer Rabbinical Seminary in Berlin and the University of Berlin. After escaping Germany in 1938, Berkovits served as a communal rabbi in Leeds, Sydney, and Boston before assuming the chair of the philosophy department at the Hebrew Theological Seminary in Chicago in 1958, where he taught until 1975. At that time, at the age of 67, Berkovits relocated to Jerusalem, where he lived and worked until his death less than a decade ago. Over the course of his career, Berkovits wrote no fewer than nineteen books, as well as many articles, which, while demonstrating an unflagging devotion to Orthodox Judaism, nevertheless reflected a sharp discontent with the dramatic changes that Orthodoxy had undergone during his lifetime.
In the decades that followed the Second World War, much of Orthodox culture underwent a transformation that the sociologist Menachem Friedman has described as a shift from “life tradition” to “book tradition,” or from a popular religion based on deeply rooted traditional values and norms, in which the scholar was generally limited in his ability to determine practice, to one centered on rules made explicit in the codes of law and in the interpretations of those codes by the rabbis of the yeshivot.5 This shift had its roots in the rabbinical seminaries of Central and Eastern Europe in the early nineteenth century, but became a dominant social trend only after the Holocaust; at that time, the disruption of centuries of communal life prompted Orthodox leaders to encourage massive yeshiva enrollment, in the hope of rebuilding part of the vast world of Tora scholarship that had been lost. The result was that by the 1970s and 1980s, Orthodoxy had come to be characterized not only by a changed institutional structure, but also by a new normative ethos, based far more on the authority of the written halachic codes and their interpreters. 
Although this shift was by no means uniform throughout Orthodoxy, a few general points have been observed in describing it. The first is that authority in determining Jewish practice, once given principally to family and communal traditions and only secondarily to the learned elites of the yeshivot, shifted decisively in favor of texts, particularly codes of law, and therefore to the yeshivot where they are studied. The second was a new tendency towards stringency in halachic ruling—what Judaic scholar Lawrence Kaplan has described as an “ethos of humra” (i.e., an ethos of stringency), predicated on the asceticism characteristic of yeshiva life, as well as a belief in strictness as a kind of moral training.6 Third, Jewish practice to a great degree lost its internal hierarchy of values, which was displaced by a new tendency to view all halacha, down to the most minor of prohibitions, as possessing equal importance.7 As a result of these changes, a new Orthodox norm has emerged that is quite different from what prevailed a century ago, in which value distinctions within the halacha have largely collapsed, and the rule of texts has, for the most part, prevailed.8 
Berkovits’ writings represent the first and most concerted attempt by an Orthodox writer to resist these trends. The thrust of his argument is that the halacha, although a legal system, is nonetheless a fluid one governed by a fixed set of moral values; accordingly, it has always evolved, allowing change whenever particular rules, including biblical prohibitions, were understood to be in conflict with Judaism’s own larger goals. To demonstrate this, Berkovits wrote a number of works on the nature of Jewish law, the best known of which is Not in Heaven: The Nature and Function of Halacha (1983).9 In this work he describes what he calls the “priority of the ethical” in halacha, by which he means a flexibility built into the law to allow for the fulfillment of higher moral principles. One such principle is that of human dignity (kevod habriot), the application of which ranges from preserving the physical modesty of men and women to protecting the honor of the disadvantaged. According to the Talmud, the preservation of human dignity overrides all rabbinical regulations, as well as some biblical commands.10 Moreover, Berkovits cites a number of cases in which the principle of human dignity inspired legal innovation. The Talmud cites the ordinances concerning funeral rites, in which rabbinic leaders obligated wealthy families to adopt the standards of the poor, who could not afford fancy coffins and shrouds, in order to allay the latter’s shame.11 Another such value is the “ways of peace” (darkei shalom), the desire to prevent needless conflict both within the Jewish community and between Jews and gentiles. While the principle of the “ways of peace” is not given the same legal weight as human dignity, the rabbis nonetheless felt it to be a fundamental principle, as expressed by the late amoraic statement that “the Tora in its entirety exists for the sake of the ways of peace.”12 Berkovits cites additional principles which drive and at times override provisions of the halacha, including economic efficiency, public safety and common sense (sevara).13 

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