The concern for such overarching values afforded the rabbis a remarkable degree of exegetical freedom, which—at least at some stages during the development of the halacha—permitted them to alter or even abrogate the practice of certain laws specified in the Bible. Occasionally this was done through technical innovations to circumvent the law, such as the institution of prozbul, a rabbinic writ enabling the extension of monetary loans beyond the sabbatical year despite a biblical injunction to the contrary.¹⁴ More frequently, however, we find the plain intention of the biblical institution ignored. Berkovits cites a number of laws which, while explicit in both letter and spirit in the Tora, were either restricted beyond applicability or simply excised from the practical halacha: The case of the “stubborn and rebellious son” who, because of his vile and uncontrolled ways, is seen as deserving of death; the “city led astray” which is to be destroyed utterly because it has fallen to the temptation of public idolatry; or the “forty lashes” which the Tora prescribes as punishment for certain crimes, but which under the rabbinical interpretation are never to be carried out in full.¹⁵ In these and similar cases, what Berkovits calls the “halachic conscience” has been called in to amend the law for the sake of a higher moral principle. In some instances the rabbis explicitly cite the general moral verses of the Bible, such as “And you shall do that which is right and good in the eyes of the Eternal your God.”¹⁶ In others, no source was considered necessary to justify such steps.

Why did the rabbis allow themselves such a degree of flexibility in interpreting the law, if it is divinely revealed? According to Berkovits, such flexibility is central to the nature of the oral tradition. As he writes in Crisis and Faith (1976):

According to Berkovits, the written Tora cannot and does not advertise itself as an exhaustive handbook of Jewish living. Rather, it presents laws together with moral values, and then depends on an oral tradition to derive, express and apply these principles to the realities of human life. The role of the scholar is to internalize these values and translate them into functional rabbinic precedent, through what Berkovits calls the “creative boldness of application of the comprehensive ethos of the Tora to the case.” Through a living oral tradition, the scholar of Tora gives the written law its applicability, makes it relevant for the life of his generation, and thereby redeems it from irrelevance and inhumanness: “The written law longs for this, its redemption, by the oral Tora.”¹⁷

For this reason, in ancient times it was strictly forbidden to put the oral teachings into fixed, written form—a prohibition breached only reluctantly in the second century with the redaction of the Mishna by R. Yehuda Hanasi, when conditions of exile endangered the continued transmission of the oral law. However, as the exile deepened over the centuries, the need for increasingly concrete written representations of the halacha was felt, and the precedent set by the Mishna was repeated and expanded until, during the medieval period, the oral law was for the first time translated into the systematized written codes which are now understood to form the core of practical halacha. Today, codes of Jewish law have become central to yeshiva study; most rabbinical programs focus not on study of the Bible or Talmud, which contain mostly literary material or non-decisive legal discussions, but on the perusal of codes of law such as R. Jacob ben Asher’s Arba’a Turim and R. Joseph Karo’s Shulhan Aruch, and commentaries on these codes such as Karo’s Beit Yosef and R. Yisrael Meir Kagan’s Mishna Brura—the assumption being that through these will the student learn how to render proper halachic decisions when called upon.¹⁸ Thus the recent shift in Orthodoxy towards an emphasis on “book learning” can be seen, in a way, as the extension of a trend that has spanned many centuries.

In Crisis and Faith, Berkovits reviews this history with no small measure of discomfort. In his view, this gradual transformation of the oral tradition into a written one was a “calamity,” representing a “violation of the essence of halacha.”¹⁹ While he admits that owing to the Jews’ historical predicament, there may not have been any alternative (as some of the codifiers maintained in their own defense), Berkovits nonetheless views the codification of the oral law as a blow to the traditional goals of Jewish law itself. Echoing the criticism leveled against the codes when they first appeared in medieval times, Berkovits sees them as violating the purpose of an oral tradition by reducing what is supposed to be a system of values, the application of which necessarily eludes precise and permanent delineation, to a set of rules. What was once “halacha”—literally, a way of living—became a complex code which circumscribes life but cannot capture its most essential contents. The kind of approach to Jewish life that emerged as a result, and became dominant in Orthodoxy in Berkovits’ lifetime, was the shadow of what had once been a dynamic, creative approach to life.

Berkovits does not argue for the abolition of the Shulhan Aruch. He accepts the premise that the halacha is a binding system of law, and that, as with any legal system, one must for the sake of the integrity and stability of the law be willing to preserve time-worn precedents. In this regard, Berkovits is no revolutionary.²⁰ But by reviving the debate over the effect of the legal codes, he is nonetheless raising the banner for a reconsideration of the way halacha is understood. If the codification of the halacha was a necessary response to the trials of destruction and exile, then the lawbooks which have come to be identified so fully with Orthodoxy are in some important sense alien to the law. Even if they are helpful in assisting a student to review or to organize the halacha, they are of limited value in allowing him to understand, internalize, and ultimately live the values that are the law’s essence. For this reason, Berkovits called for a revision of the way Orthodox rabbis are educated, in order to foster a rabbinic type that would more closely resemble the creative, erudite thinkers of the Talmud. This, he hoped, would lead to a regeneration of the vital and dynamic character of the law.²¹ 

Berkovits is not the only scholar of halacha to insist on the flexibility of the law. Such efforts have become especially popular in recent years, particularly among scholars of the Conservative movement; indeed, some of their arguments resemble Berkovits’ quite closely.²² Yet there is a significant difference between Berkovits’ effort and that of these other scholars, which concerns the nature of the values which justify change. Underlying much of the argument of non-Orthodox scholars is an effort to justify change as part of an ongoing evolutionary process resulting from the continuous encounter between tradition and the evolving needs of the individual or society. In the words of Louis Jacobs, a prominent Conservative thinker: “The ultimate authority for determining which observances are binding upon the faithful Jew is the historical experience of the people of Israel”—meaning that history brings new situations before the Jewish people, and halacha must evolve accordingly.²³ Robert Gordis, another leading scholar of the Conservative movement, expresses a similar belief when he writes that “tradition constitutes the thesis, contemporary life is the antithesis, and the resultant of these two factors becomes the new synthesis. The synthesis of one age then becomes the thesis of the next; the newly formulated content of tradition becomes the point of departure for the next stage.”²⁴ In these and similar writings, the emphasis is upon change as a response to new challenges posed by the flow of history, with little attempt to spell out exactly what are the eternal values, if any, that the openness to change is ultimately intended to preserve. Change is a product of the fluid encounter between the Jewish people and history, and therefore it does not follow any clear pattern; it is as variegated as history itself. As a result, it often becomes difficult to tell from these writings whether the need for change is determined through reference to principles that are themselves found within the Jewish tradition, or whether it is derived from somewhere else.²⁵ 

From Berkovits’ standpoint, this view is hard to reconcile with the moral message of the prophetic texts. These were clearly meant to deliver a message whose importance rested not in its success as a “synthesis” between the traditional and the contemporary, but precisely in its ability to transcend the changing attitudes of history. Indeed, according to the Talmud it was the criterion of eternal validity that determined whether a given text was included in the biblical canon in the first place.²⁶ Instead, Berkovits understands change in halacha to reflect the careful, incremental adjustment of legal means to further moral ends that are themselves intrinsic to Judaism and unchanging. These moral ends are not an external “antithesis” with which the tradition must come to terms by changing its internal content in keeping with them; they are themselves the moral core of the same revealed message from which the law receives its authority. Commenting on the statement of the medieval Jewish thinker Judah Halevi that “God forbid that there should be anything in the Tora that contradicts reason,” Berkovits writes:

While the law may change, the values which underlie it do not; on the contrary, the purpose of change is to permit the continued advancement of the Bible’s eternally valid moral teaching under new conditions.