Who Is the Judge Today?

When there’s a dispute on a Jewish matter, to whom do you go to for resolution? Our portion begins that judges and magistrates should be set up throughout the land. If there is a dispute, whether on a criminal or civil matter, we are instructed “to appear before the Levitical priests or the judge in change at that time.”[1] Who is the judge today? The Talmud teaches that the judge is the authority, understanding it to refer to the rabbinical court or beit din. This group is meant to apply Jewish law to that generation’s particular circumstances.[2]  While in our movement such a court is only convened for life cycle matters (conversion or divorce), in the Conservative Movement each rabbi is meant to fulfill this responsibility as mara d’atra (the “master of the place.”) Rashi states that even if the judge is not on the same level as those who came before, you still need to listen to him, as it is the judge from your day.[3]

If one is supposed to go to the authority of one’s day then why are there so many rabbinic authorities?  This is especially true in the United States where there is no Chief Rabbi to adjudicate Jewish law. One is supposed to go specifically to one’s rabbi yet there are so many rabbis out there, two of whom could hear the same case and rule differently. As this verse teaches us, one is supposed to speak before the judge who gives him/her a ruling which s/he must hold by. One cannot halachically go to another rabbi for a second opinion. It has gotten to the point where a number of people in the Orthodox world research the rabbis’ opinions in advance of going to them so that they will get the answer that they want.

Can the rabbi really fulfill this position of judge? After all, the judicial system has a clear hierarchy, with county, district, appellate and supreme courts. There is no such objective hierarchy in the rabbinate: each rabbi has his/her own domain for making decisions. In the Orthodox world there is still a beit din of three rabbis used for legal matters, but that does not exist in the Conservative world. Furthermore, one can easily access the opinions of the Committee on Jewish Law and Standards online, so what need is there for an individual Conservative rabbi to adjudicate Jewish law?

One of the critiques I heard of our movement’s law committee was at Heritage Retreats in Santa Ynez, California in 2004. The retreat occurred at Ray Kroc’s former Circle K ranch, which was claimed to be the largest ostrich farm in the United States. The unstated goal of the two-week retreat was to make participants Orthodox by getting them to commit to attend Yeshivat Machon Shlomo in Har Nof for one year (ideally without telling their parents).  It was run by Baalei Teshuva rabbis.[4]  The rabbis tried to persuade me not to become a Conservative rabbi, even taking the liberty of changing the retreat schedule to do a class on Conservative Judaism, in particular Solomon Schechter’s Catholic Israel.[5] The problem as they saw it was that to be inclusive of multiple voices, the Conservative Movement created a law committee.[6] As was argued, when you need to decide as to whether or not to have surgery, you don’t go to a committee of doctors but rather an expert doctor. Similarly, when you decide Halacha, you don’t decide by committee-you go to an expert, as in the judge mentioned in Parshat Shofetim. The rabbis made the law committee, and by extension Conservative Judaism, seem farcical-one even proclaimed that a Conservative rabbi told him that if a majority of members of the committee wanted bestiality it would pass!

In retrospect, I would have argued that while ideally everyone should have their own rabbi they go to for advice, the nice thing about the 25 rabbis on the law committee is that they take the discussion to a higher level, ensuring that when a position paper is passed it is adequately researched and examined for any flaws in logic, as well as that all of the rabbinic sources behind the paper are thoroughly vetted.

Communication today on matters of Jewish law, at least from the Conservative Movement, is less between a person and a judge but rather a conversation on how to keep matters of Jewish law in the contemporary world. I find that when people come to me with questions about Jewish law, the most important part is the personal conversation. The goal of a rabbi is not to be a walking encyclopedia of Halacha but rather one who is able to apply Jewish law to contemporary situations. That is why the Torah doesn’t say look at these instructions but rather go to the judge who will be there in your day. It recognizes that Jewish law needs to continue to develop and evolve in light of new situations and contemporary reality. At the same time, judges and rabbis should not just bend on a whim but should be aware of the factors behind the decisions they are making and hold onto their core principles. As Rabbi Joseph Potasnik taught me, the words Hashivah Shofteinu which we say three times in the weekday Amidah means, “give us judges who don’t change from their ideals.”[7]

As we continue to study Parshat Shofetim, let us determine what it means to act in accordance with Jewish law and answer new questions that come our way. Similarly, we need to examine the role of the judge today in acting both according to tradition and addressing new questions which develop.

[1] Deuteronomy 17:9

[2] Babylonian Talmud Rosh Hashanah 25 a-b

[3] Rashi on Deuteronomy 17:9 ד”ה ואל השופט אשר יהיה בימים ההם

[4] Rabbis who grew up as secular Jews but later became Orthodox

[5] The English term for כלל ישראל, all of Israel

[6] The committee contains 25 rabbis, all of whom vote on responsa, as well as 5 lay leaders who do not vote.

[7] Rabbi Joseph Potasnik, Introduction to Chief Justice Stephen Breyer, May 12, 2017.

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