The Halakhic Theory of Judaism of Rabbi Emanuel Rackman

1.           His major writings
2.          The contours of his thought
   1.          Revelation
   2.          liberal motifs in Rackman’s thought
   3.          Women
3.        Philosophy of Law
4.        Conclusion

                  __________________________________________-

1.           Rabbi Rackman’s Major Writings

Rabbi Emanuel Rackman’s [henceforth, ER] first book was a published version of his doctoral dissertation entitled Israel’s Emerging Constitution  [IEC] (1955)  This  monograph is the most cogently argued and least theological product of  Rackman writing.  Every sentence flows into the next, the line of argument is flawless, and it is written with a literary discipline that would not be replicated in future writing.  While a lover and advocate for Israel, Rackman’s political study of the emerging Israeli Constitution reflects a partisanship that draws upon a uniquely American sense of right.  For Rackman,   Israel’s elite controlled political power and did not take the concept of individual Rights, enshrined in the first ten amendments to the American Constitution, seriously.   According to Rackman, a written constitution that enshrined individual rights would have enhanced the moral quality of the Israeli political system.

Israel’s Labor Party’s marginalization of the Communist Left and the Right Wing Herut is, for ER, a denial of human dignity that the Law is morally obliged ought to protect.  In this volume, ER emerges as a probing, intellectual who happens to be an idiosyncratic Orthodox Jew with a fiercely liberal and philosophically urbane sensibility.  Natural Law theory provides Rackman with a perspective and rhetoric with which the Orthodox Jewish tradition and secular modernity might be synthesized.    While ER’s Judaic thinking evolved throughout his career, his view of political theory, developed in the early 50’s, remained constant  throughout his writing and this sensibility informed his treatment of halakhic issues that  re-emerge in his theological and halakhic writings.

ER’s second volume, One Man’s Judaism,  [OMJ]  presents a collection of writings which as a book was published  in 1970 and works out the system that first appeared in an earlier work first published in 1966 in the Commentary Symposium:  The Condition of Jewish Belief.  In this brief theological response , ER provides the contours of his unique “One Man’s Judaism.”  He believes in revelation, but is not a fundamentalist or like any other of the Orthodox respondents to the Symposium,  he accepts the Laws of the Covenant, but as a copartner with God and not a blindly obedient and mindlessly dutiful slave.  

ER asserts that Torah overlaps with Orthodoxy, but is not limited to Orthodoxy. In other words, Orthodoxy is the way the Torah that is usually applied in community, but the Torah is wider in scope than what is expected and accepted within Orthodoxy.  In other words, the religious forms of Orthodoxy do not exhaust the range of Halakhically legitimate religious expressions.   But ER is no secularist, either.  Responding to the hyper-rationalist Naturalism of Mordecai Kaplan, Rackman insists that a real, personal God did choose the Jews to be the “chosen people.”   His audience in this volume, which includes his essay on  Jewish belief,  is the Jew who wants to remain Orthodox in observance while living in and inhabiting the modern world,  professionally intellectually, and theologically.   For ER,  “Reconstructionists and Reform denigrate God’s role in applying God’s covenant;  some Orthodox denigrate the role of man.” [OMJ   173]  His middle position claims to be honest to God as well as to humanity that life’s actual realities.

Rackman’s final volume to date, Modern Halakhah for our Time [MHT] (1995), applies his vision of an expanding, flexible Jewish law, to issues currently convulsing within in the contemporary Orthodox community.   The moral reading of the Law takes into account the actual statute recorded in the Oral Torah canon, which must be read with integrity, and the life situation to which the legal norm must be applied.  Whereas in One Man’s Judaism ER implicitly argues that Torah is larger than the Orthodox orbit,  in Modern Halakhah for our Time, he explicitly includes those within the Conservative Movement who were, at the time of his writing,  committed to Halakhic Judaism.  Unlike most Orthodox thinkers, who apply the method of the analytic school, often referred to as “Brisk,”  and which often treats the inherited culture, called “Tradition” and considered to be  normative, ER borrows an idiom from Conservative Judaism when applying the definitions of Prof. Menachem Elon of the Hebrew University, locates himself  “Historical School.”    [1]   However, ER  refers not to the Historical School, which has become associated with Conservative Judaism, but with the Historical “approach.”   [OMJ 43-44] Well aware that history as an academic discipline  describes what is and rabbis, who function as judges, deal with normative issues of ought,  ER  applies his sense of morality and decency that he finds in the fabric of the laws to be the mpre engine that translates descriptions of fact into prescriptive, value laden norms.

II.  The Contours of ER’s Thought

1. Revelation

ER’s synthesis of a traditional Orthodox identity and liberal social politics translate into a religious sensibility that stresses a modern religious mindset according to which humanity participates in Revelation. [2]   He concedes that like Socrates, he is seen as a corruptor of the youth because he preaches that Judaism encourages doubt. [OMJ 17]   [[3]]   This sensibility is grounded in this one man’s application of the Higher Biblical Criticism to his understanding and applications of Judaism’s normative claims.

 ER is also willing to consider a doctrine of continuous revelation, but only when “the modern age recaptures basic religious experience.”  [OMJ 353]   He claims that God continues to reveal the divine will, but only to those for whom revelation is not an empty idiom.  Thus, ER finds in Abraham Joshua Heschel’s scholarship the claim that some rabbis believed that there were revelations that occurred in the Middle Ages. [OMJ 177]  [[4]]  But unlike Jewish liberals, who reject the doctrine that there is a real, commanding God Who  akes demands, [[5]]  ER sees God as the Author of Jewish law’s basic norm, [MHT 15] [[6]]  And, citing the late President Belkin of Yeshiva University, ER endorsed  Josephus’s view  held that Israel’s God is Israel’s ultimate sovereign. [[7]]  Judaism is a legal order [OMJ 4] with a personal God Who is the Commander. [OMJ 11] [[8]]  For ER, the continuous revelation that empowers humanity to participate with God in defining the content of Revelation, has two sources. First, Abraham’s covenant [OMJ  5-6was augmented at Sinai.  [[9]] Second, a close reading of isolated ER statements indicates that he is that he has accepted the Documentary Hythothesis regarding the composition of the Pentateuch:

The most definitive record of God’s encounters with man is contained in the Pentateuch, Much of it may have written by people in different times, but at one point in history God not only made the people aware of his immediacy but caused Moses to write the eternal evidence between Him and His people. Even the rabbis in the Talmud  did not agree on the how. But all agreed that the record was divine.”  OMJ  180  [my emphasis]

While not affirming that the Higher Critical position is theologically or factually correct, ER here  entertains it as a possibility, taking the Talmudic discussion regarding the authorship of the last lines of Deuteronomy to be precedent for reconsideration of the Mosaic authorship of other passages as well.  Furthermore,

                        “Many theologians, even among those who are committed to the belief    in           

                        a historical Revelation at Sinai, maintain that it happened once and will        

                        never happen again”   OMJ  177  [emphasis mine]

From his word choice, ER does not necessarily accept a historical revelation at Sinai, but actually posits that God’s covenantal Revelation is in fact revealed in subsequent prophecies as well . [[10]]  ER’s later formulation is ultimately his redefinition of what it means to be authentically Jewish, or Orthodox:

                        What then, unites all who are committed to the Halakhah, those presently          

                        called “Orthodox?” It is simply the belief that from the Covenant between                     

                        God and Israel there emerged the obligation to obey His law, which is

                        subject to change and development only as the Law—Written and Oral—     

                        made change and development possible. The dissenter, or the champion of                    a new rule, must base his dissent or his effort at legislation on these

                        fundamental norms and methodology they describe.   [MHT 112]

                        [my emphasis]

In his comments regarding the application of science to Torah,  “by  any criterion the Pentateuch was written before the Common Era.”  MHT  136   In other words, none of the Higher Critics take the Pentateuch’s basic text to have been completed or augmented before the rabbinic period.  And ER here again treats the Documentary Hypothesis regarding the Pentateuch’s historical origins minimally as a theory that is plausibly

true.  [[11]]

ER’s Judaism affirms [a] a commitment to Halakhah, [b] a commitment to a  binding covenant between God and Israel [c] which admits to change only as authorized by the halakhic system. [[12]]  The Mosaic authorship of the Torah is, for most Orthodox thinkers,  [[13]] as necessary a dogma for Judaism as is the belief in the Resurrection of Jesus for the the Roman Church.    By adding his comment regarding dissent, ER  affirms his own “one man’s Judaism.”  

ER’s three dogmas  are the existence of a personal, omnipotent God, Revelation, and the chosen people. [[14]]   It is precisely because ER takes God seriously that he is constrained to take humankind, created in God’s image, seriously.   Consequently, suicide is an affront to God.  [MHT 25]   Citing Maine, the Hebrew laws were “progressive.” [OMJ 230] [15]  The command to conquer the earth [Genesis 1:28] is evidence that humanity is invested with dignity by God. ER also rejects Augustine’s claim that humankind is in desperate need of grace [OMJ 122-3] Unlike Augustine, who justifies slavery, ER proudly distinguishes between the Christian claim that Judaism is bound by Pharisaic legalism on one hand, [OMJ 129] but limits slavery much more than Augustine. [OMJ 141]   ER argues that the aim, end, or telos of Jewish law is to outlaw slavery.  [OMJ 207]  There is no tolerance for debt slavery. [OMJ 129]   Judaism’s “God centered humanism” [OMJ 149] conditions society to affirm freedom as the condition of human dignity. [OMJ 95]  This sensibility, that human beings should be free because their dignity is God given, is enshrined in the right to privacy and [MHT 28] the outlawing of self-incrimination [bSan 17a]  [OMJ 173] [[16]] 

ER’s modernity is manifest not only in his willingness to respectfully reconsider the format of the covenant revelation and affirm the human/divine partnership. He happily applies and synthesizes social science findings with what he takes to be the telos or goal of the law.  He laments what he takes to be the myopic view of Israeli political parties that stymied the composition of a right granting constitution.

            Perhaps in the future Israel’s political literature will be written  by

            persons who are not professional party politicians and then it will command

            more universal interest. [EIC 36]

For ER, authentic Judaism, unlike Israel’s political system, is not Statist. The State, being sovereign, is the embodiment of the Law in pagan legal orders but not for Torah law.  [17] According to ER, a law that is no more than the formal hierarchy of authority, like Kelsen’s, Austin’s, and the Soviet system are inconsistent with Judaism.  [OMJ 115]  [18]   Since freedom and dignity reflect the telos of the law, the individual, on the basis of law, has the right, and in Judaism, the obligation  to defy the state, the king, and even the rabbis if that person is convinced that the people in power acted wrongly. [OMJ  97-98]

It is because humanity and God are copartners in revelation, humans may, for ER, suspend what they believe to be God’s law.   The Torah commands that Israel “live” by the law [Lev 17:5] which was taken to mean that the dignity of life supersedes other Torah obligations. [bYoma 85b, MHT 32]   The rabbis took Psalms  119:126 to authorize the suspension—but not nullification—of the Torah law itself. [[19]]    ER asks rhetorically “how did the rabbis justify their arrogance?” [MHT 32]  This formula reflects the Haredi retort with which ER struggles in his sparring with  his  ideological adversaries on his Right.   Consequently, he is the first modern Orthodox rabbi that I found to refer to the Right Wing Orthodox approach as heresy: 

It is the reactionaries in Orthodoxy who bear much of the guilt for this tragic phenomenon [the intimidation of dissent] Their heresy [!]  ] is that they regard their own Biblical and Talmudic interpretation as canonized in the same measure as the texts themselves–which was never true. They are repeating this heresy again, in Israel, and the Diaspora, so that already Jewish sociologists detect the possibility of further schisms within Orthodoxy. [OMJ 232]

For ER, a Jewishly authentic opinion

requires acknowledgment of the divine origin of the commandments and [the] firm resolve to keep them. OMJ 262-3

The extremist Orthodox claim is parried, ironically,  by an appeal to reason and Judaism’s basic norm.  [[20]]  But note well that ER requires a belief in the Torah’s divine origin, and not necessarily to Mosaic authorship because for ER, the rabbis engage in Revelation by dint of their authorized evolving the Law!  

The dialectic of Jewish law insists upon  antinomies, which the rabbis, as “partners in the development of the law,” [OMJ 204] are authorized to resolve. ER here calls attention to  the application of justice in human life, moving toward the abolition of slavery. [OMJ 207]  It is precisely because God is both immanent  and transcendent that the rabbis were entrusted to preserve Judaism’s abiding morality in the application of Halakhah .   

ER views Jewish Tradition historically and not conceptually. He adopted the descriptive approach of Professor Menahem Elon

.  By reviewing the norms recorded in the past in context, one may better understand how those norms ought to be applied in the present. This perspective has enabled and empowered ER to advocate his opinion and not submit to the intimidating pressure of those who are uncomfortable with his modernistic and confessed liberal tendencies.  He observes  that in the present rabbis are afraid to rule liberally because of social and political pressure [OMJ 262]

2. Liberal Motifs in Rackman’s Thought

ER wants a liberalized law to emerge.  While reading the tradition expansively, ER

insists upon treating the tradition with integrity.   While Jewish law outlaws sterilization

[OMJ 116] ER suggests that the serilzation of criminals, in violation of one statute, may

save lives  and therefore be permitted.  [21]  The case for liberal rulings occur when statues

and norms are in conflict.  Similarly, ER writes that regarding artificial

insemination,“Jewish Law is exceedingly liberal.” [OMJ 112]  Leniency is associated

with liberalism.  ER is trying to show how the rules of Judaism direct and purify the soul

and are not gratuitously or arbitrarily imposed to give people grief.   While adopting the

lenient ruling regarding Artificial Insemination by a donor, ER suggests that the offspring

is permitted to anyone but the other offspring of the anonymous donor. [[22]]

If Jewish law may be  be suspended in emergency cases, then there

would be no purpose in being gratuitously stringent in the applications of Jewish law.  The rabbinic virtual abolition of the Sota ordeal  [OMJ 112] is taken by ER to be a ritual of reconciliation, the telos  of which to allay the husband’s suspicions regarding what he takes or mistakes to be his wife’s waywardness.   [23] He observes that some Orthodox rabbis permit the use of a dishwasher for milk and meat if the utensils are cleaned on separate runs. [[24]]   Note that leniency is defined by a permitted deviation from communal expectations, and not the letter of Talmudic law.

Regarding the use of the microphone use on Shabbat, ER avoids taking a stand regarding its permissibility on the legal merits of the matter, preferring instead to suggest that some regard the prohibition to be Biblical, rabbinic, or not forbidden at all [OMJ 271] He then invokes the principle of emergency to justify its use.  While R. Moshe Feinstein is adamant that the microphone prohibition might be Biblical, and that there is no room for either leniency or respect for alternative opinions, ER argues that Jewish law may be otherwise understood.  [[25]]  While true to his own position regarding pluralism within Jewish law, treating his opposition with the highest of respect, [[26]] ER applies the principles of strict construction, that the letter of the law may well allow for microphone use, and failing that leniency, the emergency principle discussed above would allow local rabbis discretion.  Ironically, it is the local rabbi and not charismatic gadol who is authorized to make these decisions. [[27]]  The shift from reason to charisma, articulated by R. Herschel Schachter, [[28]] is not without precedent in the  Jewish tradition.  [29]

Ever concerned about his identity within the Orthodox consensus, ER claims that “Halakhah dictates that men be separated from women in the synagogue.” [OMJ  272]      He does not cite  the source of this norm in the canonical Judaism of the Dual Torah. It is likely that this assertion follows from his Orthodox culture. [[30]] Like  his comment on the microphone, he concedes the existence of rabbinic restriction, alluding to R. Soloveitchik’s position, that the Bible requires separation of the genders and rabbinic law demands segregation with a partition,  [31]while others, referring to the more restrictive R. Feinstein, believe that the Torah actually demands the partition segregation. Without demonstrating his view regarding the status of the synagogue partition, he again invokes the emergency principle to allow for leniency.  

ER  also suggests the electricity may be permissible according to Jewish law. [OMJ 41, MHT 2]  He does not cite the lenient readings, but his leniency regarding the use of microphones, now contextualized, is consistent.  Elsewhere, [OMJ  53]  ER apologetically claims that its use is based on the prohibition to use the power of creation. This assertion is proclaimed apologetically, but not anthropologically and no sources justifying his contention are cited.  ER’s contention   that men initiate divorce but women’s consent is required [OMJ 217] is also apologetic, as the woman’s consent was a subsequent development in the history of Jewish law and not a norm in the Dual Torah canon.

While unhappy with Rabbi Moshe Feinstein’s invalidating non-Orthodox marriages to overcome the aguna situation, he concedes that the liberalizing result should not be dismissed. [MHT 70]                                                                                                        

ER is unable to solve the problem of bastardy, in spite of the fact that the offspring suffers for the wrongs of the parents. [OMJ 212-213] While he cites limiting precedents, ER does not raise the possibility of applying DNA testing to determine who the biological parents really are.

3. Women in the Thought of R. Emanuel Rackman

ER recognizes the conflict between the rules recorded in the past regarding women  [32] and the sensibilities of the modern age.  [MHT 120-121] [33] Applying the principle of freedom, which for ER is the operational ethic underlying Jewish law [OMJ 267] and the historical precedent for diversity, ER applies a mindset similar to Ronald Dworkin’s moral reading of the law which fills in the gaps in the law with the judge’s ethical bias.  Specifically, the Scripture’s view, revealed by God, regarding inheritance, has been changed in order to give women what a  human  sense of fairness takes to understands to be their due. [OMJ 268]

ER notes that while R. Feinstein outlawed the bat mitzvah ritual because the practice was initiated by the Reform, [MHT 1-2] [34] R. Isaac Nissim did find a precedent for this rite. [35]  ^{He further claims that unlike R. Nissim, “very few rabbis have been equally liberal [in accepting innovation] as far as women are concerned.” [MHT 7]}

^{ER has no difficulties allowing women to have their own Haqafot on Simhat Torah or women’s prayer groups.  He alludes to the restrictive ruling the REITS Five [36]} which claimed that the women’s prayer groups violated several principles, precedents, policies, and conventions. But ER astutely calls attention to the practice of Ashkenazi women to recite a blessing before performing the lulav bouquet waving on Sukkot.   According to ER, a women reciting this blessing” is really lying.” [MHT 65]  [37]  ^{ER claims that women observed the rite and with time adopted the practice of reciting the blessing “And then came rabbis who rationalized approval.}

^{ER concedes that halakhic development is often political and not logical.  Rabbis differ on any given issue, with one view prevailing over the other.  ER’s approach to law is  instrumental  and result oriented–he will apply any method or reasoning, given his canon of reasonable limits–to insure that the law’s moral minimum  [[38]] and freedom aspiring telos be achieved.  He envisages women’s prayer services which include Qaddish and Qedusha, “without anyone objecting.” [MHT 66]   Consistent with his doctrine  of continuous revelation,  ER implies that an Orthodox consensus is sufficient to validate a practice.  While ER prefers families not pray in different settings based upon gender, he realizes that he cannot prohibit, on policy grounds, what he [a] knows, the REITS Five notwithstanding, is not forbidden by explicit statute, and [b] which some women with sincere passion want.  ER here takes the position that anything that is not forbidden is indeed permitted, or authorized. [[39]]  His realization that “women are not counted in a ‘Minyan’ may be unalterable”–because the canonical data and the historical Orthodox rabbinic consensus are in concert–indicates the limits of his own sense of Revelation regarding how far the liberal envelope might be pushed. [40]}

^{When there is no rabbinic consenus,  ER believes that one may follow whom one wishes.   He cites Rabbi Eliezer Waldenberg, who permits the abortion of a deformed fetus, with his colleague, Rabbi}

^{J.D. Bleich, strongly demurring. [MHT 110]    And as long as there are legitimate lenient opinions, it is for Rackman legitimate to adopt them. [41]   ER does not discuss the merits of the case or the status of the fetus in Jewish law in coming to his conclusion [42] and he does not address what makes an opinion legitimate. [43]}

^{ER anxiously searches for  validating precedents in order to  reject  what has been taken to be canonical Jewish law when the situation requires such liberalism.  When Yeshiva University allowed women to learn Torah , it “ignored the tradition that women are not to be taught the ‘Torah Sheba’al Peh. Bar Ilan University also ignores the prohibition.” [emphasis mine]   [MHT 66-67] ER takes past usage, called ambiguously “tradition,” and then argues that Bar Ilan University ignored the negative orm that he labels  prohibition, in Hebrew, issur,  suggesting that Jewish law does change and is merely providing an instance that many within the Orthodox  consensus has declared to be valid. That women not studying oral Torah is a “Tradition” in the canonical sense,  [44]or that the canonical documents actually issued an unambiguously a negative norm, has been discussed extensively in modern Orthodox literature.  Since Traditional ordination no longer obtains in modernity, ER hints that he would not object strongly to Orthodox women earning the rabbinic diploma. [MHT 66], a position strongly opposed by main stream Orthodoxy [45] and some Traditional Conservative Jews as well. [[46]]}

^{The most controversial position taken by ER regarding women is his attitude toward annulling marriages when Jewish divorces [gittin] cannot be obtained.  While in recent times ER has been vocal and public regarding  nullifying marriages,   [[47]]  his recent position has roots}  in earlier writing.   Recalling that humankind is, for ER, a copartner in a Revelation that is simultaneously Divine and human,  ER is consistent to his system when he declares that “in family law and civil law the demands of life are as the logical implications of the  [canonoical] texts.  [OMJ 174]   He therefore adopts the lose construction of Rabbi Abraham ben David [Raavad] and rejects the strict constructionist [or positivist, ay] position Maimonides as being less flexible in the face of the recorded, positive statute.  The implications of this choice, that a ruling may be reversed only when it violates positive canon, go undiscussed. For Maimonides and Bet Yosef, the Amoraic Talmud ends the canon, whereas for Raavad, the decisions of the past generation is canon. [48]  [OMJ 175] 

ER calls the reader’s attention to the Tosafist requirement that a woman’s consent is needed for divorce.  [OMJ  124-125] He takes this enactment to be a liberal reflex and precedent for subsequent policy changes, but does not consider the possibility that the Tosafist stringency has cultural parallels in a Christian Europe that is growing more restrictive regarding the ending of marriages. [49]

Because equality and freedom are goals of the law for ER, ER argues that the ancient precedents be activated and extended to address contemporary needs  [OMJ 241-243]  He argues that Rabbi Professor Menahem Elon, well known as an Associate Justice on the Israeli Supreme court, allows human input “in the application of biblical legislation”  to allow humans to apply their own source of right, and invoking the idioms of “natural law” and “categorical imperative.”  [MHT 133]  This doctrine is strikingly similar ER’s and Conservative Judaism, as noted above.   Like ER, Elon advocates the nullifying of marriages when Jewish divorces are unobtainable. [50]   Since the rabbis have the right to confiscate property, the rabbis have the right to confiscate  the  marital ring, which is property,  by which the marriage came into being. [MHT 37]

III.       Constitutionality in the Thought of Emanuel Rackman

R. Emanuel Rackman’s understanding of the Halakhah, with a natural law, human reason -driven reading, is similar to, if not influenced by, the legal philosophy of Ronald Dworkin who, as a matter of principle, takes rights seriously in an empire of law whereby the law is an instrument of the ethical.   Applying the mindset of Brisk, albeit with an alternative trajectory, ER reads the Halakhic literature for what he takes to be its ethical substrate, which to his mind is the ultimate ground of normative right.

In the Brisker Halakhic tradition, , the unchanging divine concept, divined by the Masoretic sage,  [51]  is defined, applied, and ultimately limits how the positive Talmudic statute might be defined.  By appealing to Nahmanides’ reading of “You must do what is right and good,” [Deuteronomy 6:18] it is the good that must be obeyed and the individual norms are not as binding, but as is the obligation to do  good.  [52]  Endorsing the position of R. Walter Wurzberger, who claims that the Halakhah is not an end [Greek teloV]  but a guide, [53]

ER is defines his Orthodoxy idiosyncratically. He views the law as method and guide, the letter of which is not ultimately binding in all situations. He believes that Jewish law is binding, it reflects but does not exhaust either Divine intent or normative will.   God’s holding Cain accountable for his brother’s murder is, for ER, grounded in a morally based natural law.  [MHT 106] [54]   Advocating halakhic activism, ER views humanity’s free will as the moral source for activist decisors reckoning “with social needs.” [MHT 107]

ER’s avant garde legal system, while in no way fundamentalist, remains fundamentally Orthodox. Assuming a maximalist reading of Hebrew Scripture, ER dismisses what he takes to be the extreme or minimalist position of most contemporary critics. However, the current state of Biblical scholarship no longer views the Albright maximalist understanding of Scripture favorably. But ER is emotionally attached to the very traditionalism that his mind and method are prepared to reconsider and on occasion reject.  Like R. Joseph D. Soloveitchik, ER is not prepared to engage in interfaith dialogue, [55]   even though no scholar of note has cited a statutory norm that would prohibit the practice.   And like R. Soloveitchik in “Confrontation,” ER argues his case on policy, which while legitimate, is not binding, and as noted ER does not cite specific halakhot that would be violated in such dialogue. [56]  Nevertheless, ER freely contrasts Judaism to Christianity, but not in a forum where his position is subject to peer review or intellectual interchange. [57]

ER often applies “reason” or apologetics to demonstrate that Judaism can function in the moment of modernity.  His apologetic treatment of the slave is negated by Jewish law’s outlawing the freeing of the Canaanite slave. [OMJ 130] [58]  He wishes and claims, but does not demonstrate that women and men are equal in Judaism. [OMJ 134]

ER’s reliance on rabbinic consensus against the plain meaning of the canonical text finds precedent in post-Talmudic rabbinic culture.   Raavad’s concept of canon includes the great sages of the previous generation.  [59]  While most seriously affiliating Orthodox Jews take care to immerse utensils in the miqveh,  there has been no call, to my recollection, for re-introducing the giving of the priestly gifts of meat to an Aaronide after slaughter, in spite of the clear sense of the canon.   [60]   While issues like microphone and mechitsa are culture defining issues which determine who is considered insider or outsider to the community, even though the canonical information is, at best ambiguous—and for which ER appeals to emergency flexibility [61]  rather than exegesis or consensus for leniency—other matters, like Hadash grain or community eruvim, where the current consensus is not always congruent with the plain sense of the canon, are not raised by communal Orthodox rabbis or by ER. [62]  Thus, ER is advancing a halakhic policy, but a consistent theory of law.

ER’s Ashkenazi Orthodox background bleeds through in his transliterations.. He refers to the Council of Mandates as the Waad ha-Mandatim, [IEC 65]  or Wa’adat ha-Huqa [IEC 38] with the vav being pronounces as the Arabic wow.  But the qof is not augmented or doubled.  Bayot haHinuch reflects popular usage but not phonetic precision, which would be be’ayot. When writing tachnit as  tochnit or rosho instead of rasha, ER’s Ashkenazi Orthodox rabbinic culture, which was not precise in its phonological articulation, becomes apparent.  Thus, if there is no principle of significance at stake, ER will not challenge the Orthodox consensus.

 ER is painfully  aware that his philosophy of Jewish law is “one man’ Judaism:

“Most  halakhic authorities  regard the  halakhah as a body of rules handed  down

 by the Divine Sovereign to enable the Jew to live according to the His will.” {MHT 1]

ER concedes that there is a majority, with which he, as a modern, disagrees, and which his idiosyncratic reading of the validating tradition legitimates.  He portrays the Brisk or Analytic school as one which sees the rabbi as a jurist and not an activist legislator.  He argues that there is a “legitimacy of diversity” [MHT 3]  in Judaism that legitimates a range of opinion which includes his own.  According to ER’s understanding of the Analytic School, it is claimed that the Talmud maintains that it is the women’s desire to be in a bad marriage than to be single. [MHT 8] [63] This observation is taken to be a rule of the Halakhic system. [64]  For ER, it reflects a social reality that informs the decisor.  Different social realities move decisors to read the realities and the statutes differently.

ER’s reading of the Talmud for its ethical substrate, like Brisk’s reading of the Talmud for its conceptual substrate, are different in content but similar in form.  ER takes the analystic Briskers to be too positivist when they refuse to become activist decisors, but he calls the more extreme Orthodox, also often Briskers, heretics because they identify their spin on the documents to be the moral equivalent of the document itself. In other words, activist decisors exist  on the Right as well as the Left within Orthodoxy.

ER’s secular education focused on politics, not Wissenschaft des Judentums, which he read [given the readings cited in footnotes!] but did not master.  For example, ER disagrees with those who claim that the folk saying, “a woman would rather be married than to sit as a widow/spinster,”  [ OMH 125]  [65] In point of fact, a  description of the rabbis, here a saying of Resh Laqish,  is simply not binding rabbinic legislation.  At stake in this matter and the agenda of ER’s life’s work  is that ER is what Jeffrey Gurock calls an “accommodator,”  and the consensus of most of Orthodoxy’s rabbis reflects the mindset of modernity’s “resistors.” [66]  For ER, earlier authorities accepted the “modernity” of their time, like R. Jacob Tam defining of Christianity as a non-idolatrous religion with whom business may be undertaken three days before and three days after their holy days. [MHT 9] It is the utility of R.Tam’s  conclusion and not the cogency of his claim that made the opinion into de facto law, and a rabbinic consensus is, for ER, sufficient to alter normative practice.  By adopting this position, ER appears to ignore the Scripture, grounded in what he otherwise accepts to be revelation, that there is an element of Law that is absolute. [67]

There are two scholars, uncited in ER’s work, that when referenced, explain ER’s system.

Rabbi Professor M. S. Feldblum, who taught at Yeshiva University and subsequently, at

Bar Ilan University, accepted and applied critical study to the Talmud, he specialized in the tractate Gittin, and actually advocated, like Menahem Elon, nullification of the marriage when a Jewish divorce was unobtainable. [68]  Those who advocate what is popularly understood as “Tradition” strongly opposed this reading. [69]

Recalling ER’s ethical reading of the law, his concern for integrity in the reading of the Law that is honest to God, because it is revelation and honest to human realities because the Law must be applied by humans to human reality, we find a model in the writings of Ronald Dworkin.  For Dworkin, Law is an instrument of liberalism which treats all of its citizens equally, paying attention to their particular needs. [70]   Individual dignity [71] is enshrined by a Law that is neutral on the issue of what the “good” really is, allowing that choice to be made by the dignity endowed individual.[72]  ER, like  Dworkin, realizes that liberty, the right to act freely, often yields unequal realities.

Because ER is so concerned with individuality and the right to dissent he, like Dworkin, takes rights seriously.   For Dworkin, a right is a claim  of the individual  [73] over homogenization of the democratic and sometimes tyrannical  consensus.  Rights insure the dignity of the citizen, who is politically and psychologically empowered to acdt as a  citizen whose character and prerogatives are enshrined in  statute .  In Freedom’s Law, [74]

Dworkin, like ER, argues that the law must be read ethically by judges who find principles, or a moral substrate—as defined by Wurzberger and ER above—that become the formula whereby   the statutes of the legal order are to be applied.  Unlike the Jewish Left, which for ER denigrates God’s role in the creation of law, ER’s Orthodoxy insists upon textual and and intellectual integrity.   For Dworkin as well as ER, laws occasionally confront the jurist with conflicting legal claims and values, [75] so that formal equality must be rejected in favor of real equality in life.  By advocating proactive autonomy, [76] Dworkin echoes ER’s One Man’s Judaism.

5.         Conclusion

Emanual Rackman is a self-defined Orthodox Jew whose traditional Judaism is informed by and is synthesized with  his chosen secular discipline, Political Science.

A political liberal who is a religious moderate conservative and, in the context of the current Orthodox continuum, inhabits the extreme Left of Jewry’s Right,  Rackman takes God’s will and human dignity seriously, even when the  two seem to conflict. 

Rackman is one of the few Orthodox thinkers to apply, albeit furtively, the findings of moderate  Bible Criticism to his normative approach to Law.    Since the Torah’s composition and interpretation is a Divine/human partnership, a Dworkinian balance between competing claims is sought.  The so –called unchanging Divine law is subject to change on ethical, social, and pragmatic grounds.   ER’s isolated statements ado imply that there is merit in the Bible criticism, but he never actually affirms the theory in a way that the simple reader might notice.  While I suspect that this Straussian strategy was adopted to avoid a repetition of the Louis Jacobs Affair in England, where Rabbi Jacobs bona fides as an Orthodox rabbi was withdrawn by Rabbi Brodie because the former accepted the Higher Biblical Criticism,   ER’s strategy is consistent with Maimonides’ ruling that the doctrinal rules are violated not be state of belief, but by articulation. [77]

Rackman interprets Jewish law liberally and ethically, and is willing to innovate,

as in the case of  his advocacy and implementation of the nullification of marriages when religious divorces are not available. 

Rackman’s traditional background regularly reveals itself, in his diction, his reverence for and study of the Law, and his insistence that a real commanding God is the Torah’s ultimate if not literary Author.  And his Orthodox socialization is evidenced by his Ashkenazi background bleeding through the academic Sefardic Israeli phonology that has become the convention of the secular academy.  The rejection of his liberal reading of Jewish Law on the part of  what he takes to be Orthodoxy’s parochials, or modernity resisters,  moved Rackman to regard that Orthodoxy as his adversary.  When, as noted above, ER maintains that Orthodox Right attaches canonicity  to its spin of the canon’s plain meaning, ER views its position as heresy, an idiom singularly appropriate in medieval rather than modern discourse.

A passionate Zionist, ER calls attention to Israel’s constitutional inability to recognize the individual dignity with sufficient seriousness.

For ER, the Law of Torah carries the telos of human dignity, with legal statutes that are not be understood and applied  literally or philologically, as suggested by legal positivists like Maimonides, but according the ethical substrate implied by the individual laws, which in turn provide the template and benchmark for their implementation.

While ER’s unique synthesis expresses the sensibilities of many modern Orthodox affiliates who try to live with moral, religious, and Jewish integrity in two very different-- American and Orthodox Jewish--constructions of reality,  the road he has taken is lonely and will trouble most Orthodox readers. Even those who might endorse his legal activism may recoil at the theological radicalism that underlies and justifies this activism. Hence, ER’s  synthesis is unique to one man, and hence ER’s religion and life project is well defined by his the title of  his first major Jewish work, One Man’s Judaism.]