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Books: The Law As Sanctifier
Malka Melanie Landau

Eliezer Berkovits believed that halakhah had to be moral, and that there were cases where ethics even trumped the commandments. His philosophical writings remain fresh and pertinent nearly a decade after his death.

Philosophers have long pondered the relationship between law and morality. According to the late Orthodox thinker Eliezer Berkovits, Jewish religious law is true to its name only when it is also moral.

Writing in an essay called "The Nature and Function of Jewish Law," in 1983, Berkovits suggested that "the rabbis in the Talmud were guided by the insight: God forbid that there should be anything in the application of the Torah to the actual life situation that is contrary to the principle of ethics." But he didn�t stop there; Berkovits argued that there were cases in which the principle "even renders explicit Biblical commandments inapplicable."

That remark appears in this newly published collection of his essays, and it captures what is perhaps one of the most important themes that guided Berkovits�s long career as a philosopher and theologian. Though he affirms the necessity and relevance of Jewish law, at the same time he highlights the shortcomings in its current application, an all too infrequently articulated position. As David Hazony, the collection�s editor, notes in his introduction, the arguments of Berkovits are all the more significant coming from an Orthodox writer attempting to resist the dominant trend toward increasing the rigidity of the practice of Jewish law.

Eliezer Berkovits was born in Romania in 1908, and had his rabbinic and philosophical training in Berlin. After serving as a communal rabbi in Leeds, Sydney and Boston, he joined the faculty of the Hebrew Theological College in Chicago, teaching philosophy there from 1958 until 1972. When he was 67, he and his wife relocated to Jerusalem, where he lived until his death, in 1992.

Berkovits may be best known for his writings on the Holocaust and Jewish philosophy, such as "Faith after the Holocaust" (1973), in which he establishes a limited-providence theory that both accounts for human free will and resists removing God from the realm of history by establishing that evil will ultimately lose out. The collection under review, however, concentrates on the centrality of morality to contemporary Jewish life. Though published over a period of half a century, and addressing a wide range of topics, the pieces appearing here are important for reflecting their author�s great faith in the Jewish legal system to produce law that meets human needs. This trust in halakhah as a morally relevant system is, as he emphasizes, part of the legacy bequeathed to us by the sages of the Talmud.

In "Conversion and the Decline of the Oral Law," from 1974, Berkovits addresses the rifts that have been caused between Jews by Orthodoxy�s rejection of non-Orthodox conversions. He critiques the way the Orthodox hegemony (to which he himself belongs) excludes non-Orthodox Jews from its definition of Am Yisrael (the People of Israel) through its refusal to accept their conversions. He has the courage to admit that even if traditional Jews feel certain they are the only ones faithful to the Torah, this insistence remains a subjective truth that is not accepted by most other Jews. The question of whether to accept non-Orthodox conversions is posed as a conflict between the Shulhan Arukh (the 16th-century authoritative code of Jewish law), on the one hand, and the value of preserving the unity of the Jewish people, on the other. (Though Berkovits does not take a position on the question, the very fact that he raises it helps us view it differently.)

Formulating the conversion problem as one internal to the halakhic system makes way for a solution that is unavailable, if the obligation to maintain Jewish unity is placed outside the boundaries of the legal system as a secondary consideration. But Berkovits helps us see the conflict around conversion as one between two principles internal to halakhic life that therefore demands a creative halakhic solution.

Berkovits's commitment to seeing such conflicts of values as being played out within Jewish law singles him out among other scholars who also advocate change within the halakhic system. While other thinkers may appeal to the current historical situation and the integration of values that modernity holds dear, Berkovits bases his conception of Jewish morality on already existing halakhic categories. He doesn�t need to refer to 19th- and 20th-century treatises about morality and try to integrate them; rather, he sees the underlying moral approach in the classical Jewish texts.

For example, Berkovits addressed the problem of Jewish Israeli identity in "The Spiritual Crisis in Israel," written in 1979. The essay reflects his desire to make Judaism more attractive to the average Israeli. For him, the state had failed to fully realize its Jewish character. Israeli Jews often identify themselves as Israelis and not as Jews, and for them, questions of Jewish peoplehood only arise when they are outside of Israel and no longer in the majority. Berkovits blames the modern Zionist desire for "normalization" of the Jewish people for denying that the Jewish nation had been based on a unity of religious practice. It is in this light that he calls modern Jewish Israelis "a generation that does not know what it has inherited."

In such essays as "The Concept of Holiness," "The Biblical Idea of Justice," and "A Jewish Sexual Ethics," Berkovits offers us conceptual models rather than a historical approach. For example, in the latter, written in 1976, he presents an attractive, if somewhat idealized, picture of Jewish sexual morality. He describes the human challenge of converting the impersonal sexual instinct into the very personal and intimate relationship with one�s partner. He brings the delightful story from the Talmud about the man whose tzitzit (ritual fringes) hit him in the face as he climbs seven beds to meet a highly sought-after prostitute. Thus reminded of his piety, the man decides not to have sexual relations with the prostitute. Once he reassures her that his reticence is not to be taken as a personal insult, they simply sit facing one another on the floor, naked, while he explains why he has to refuse her. The story ends with the woman�s conversion and marriage to the same man, their lust transformed into consecrated love. This, for Berkovits, is the function of Jewish law: to sanctify life by accepting and elevating human nature rather than rejecting or condemning it.

"Essential Essays on Judaism" is published by the Shalem Institute, a right-leaning Jerusalem think tank. Though Berkovits may seem an unlikely partner for Shalem, the organization has in fact organized within its walls an Institute of Jewish Thought under Berkovits�s name, which is devoted to republishing some of his out-of-print works, and sponsoring research and conferences on his thought. It may be Shalem�s commitment to the Jewish nature of the State of Israel that makes Berkovits an attractive figure to it. Both share an understanding of the unique role of the Jewish people in bringing to the world a sense of the morality that lies behind and beyond halakhah. The creation of the state becomes an opportunity to live out this mission of integrating a Jewish morality. In this light, the relationship with the Palestinians is a subject that is noticeably absent from this collection.

Though I did not have the privilege to know Eliezer Berkovits, I attended a class with his son, Rabbi Dov Berkovits, at the Pardes Institute, in Jerusalem. There, he taught the Talmudic story of Honi the Ma�agel, who sees a man planting a carob tree and asks him why he is planting it if he will not be alive to eat of its fruit. It�s a story that might be applied to the writings of Eliezer Berkovits. As the denominational rifts in the Jewish world widen, as the enmity between ultra-Orthodox and secular people in Israel continues and as Israel grapples with its many challenges, we see that the poignancy and relevance of his teachings have only increased with time.