This difference is felt in the way in which Berkovits levels his criticism of prevailing halachic practice. Berkovits believed that the halacha had ossified to the point of inflicting real damage on some of its own moral ends—two significant examples being the status of women in Orthodox life (particularly with respect to marriage and divorce law), to which he dedicated two full books; and the question of conversion standards, the increasing stringency of which was, in his mind, contributing to the dissolution of the unified Jewish people.²⁸ At the same time, however, the values Berkovits invokes are consistently those found in the biblical and rabbinic literature. When calling for a reconsideration of the status of women in Jewish law, for example, Berkovits shies away from Enlightenment concepts such as liberty and equality, and instead invokes classical Jewish concepts such as human dignity, the protection of the innocent, and the covenantal symbolism which the institution of marriage is supposed to entail, in order to conclude that “we have reached a juncture at which the comprehensive ethos of the Tora itself strains against its formulation in specific laws.”²⁹ In his theological writings, as well, Berkovits assumes that the Jewish tradition is driven by a set of moral values inherent to and derived solely from within that tradition. His Studies in Biblical Theology (1969) is an extensive and meticulous work dedicated to teasing out the essential moral principles of the Bible by analyzing its use of terms such as “holiness,” “justice,” and “truth.”³⁰ 

Berkovits’ emphasis on values rather than rules, and the kinds of change which such an approach implies, earned him no small amount of criticism from an Orthodox establishment that was, and continues to be, in the midst of a dramatic shift in the opposite direction.³¹ Yet his account of the oral tradition resolves a number of difficulties which the more conventional accounts are at pains to address. For example, a salient feature of the Talmud is its interweaving of legal discussions into a single text with the anecdotal and legendary materials known as agada. From the structure of the Talmud, it appears as though the halacha and agada were originally studied together, as a single subject. But if the halacha is essentially a set of rules rather than values, there is no obvious reason why the Talmud (or the Tora, for that matter) should ever have mixed together two essentially unrelated literary forms. Indeed, the logic of separating them is sufficiently compelling that Maimonides and the other codifiers found no difficulty in doing away almost entirely with the agada in composing their legal works; similarly, it is common practice in most yeshivot today to skip over the agadic passagesof the Talmud, on the assumption that they have no important bearing upon the halachic discussion.

Yet if, as Berkovits insists, the rules of the halacha are merely one reflection of a set of higher moral principles, and the rules alone cannot suffice to provide the content of these values, then the interspersion of agadic material becomes reasonable, for it is in the tales and aphorisms of the rabbis that these moral principles are presented as part of an actual life full of unique situations; it is these stories that permit the student of halacha to study the application of values in complex, living circumstances, in a way that the study of a cut-and-dry legal code never can. If the institutions of Sabbath and prayer, to take two examples, are not merely about following a particular set of rules, but in fact aim at creating a certain type of devotional experience of which the rules are only a part, then the many agadot which appear in the talmudic tractates of Shabbat and Brachot, and which are rich in theological statements about the nature of these institutions, constitute a crucial alternative path for understanding how to live them.³²

Another difficulty which Berkovits’ model addresses is the relation between the prophetic and halachic texts. It is no secret that inasmuch as the halacha, narrowly understood, has become the focus of the yeshiva world, it has been at the expense of study of the Bible, particularly the books of the prophets. Like the agada, the biblical stories and prophetic teachings appear to add little to one’s understanding of a rule-driven law; in several places the Talmud even prohibits the deduction of laws from prophetic texts.³³ Yet from the standpoint of the tradition itself, the reduction of the prophets’ status is a difficult pill to swallow: The rabbis of the Talmud not only possessed an encyclopedic grasp of the prophetic writings, as is evidenced by their extensive citation of them; they also underscored the importance of the prophetic books through various halachot aimed at preserving their sanctity (such as the public reading of the haftara on the Sabbath, or the declaration that scrolls containing books of the Bible “defile the hands”),³⁴ as well as through detailed midrashic commentaries on many passages throughout the Prophets and Writings. The deepest secrets of the Tora are understood by the rabbis to be contained within the opening chapters of the book of Ezekiel, whereas the book of Esther is said to contain the key to understanding the Jews’ covenant with God.³⁵ If the teachings of the prophets are so irrelevant to living a proper Jewish life, as may be inferred from their place in the yeshiva curriculum, why were the rabbis of the Talmud so concerned with them?

From the perspective suggested by Berkovits, there is no necessary separation between “prophetic” and “rabbinic” Judaism, for the thrust of both is moral. The rabbis were no less concerned with the cause of morality than were the prophets, and Berkovits is not exaggerating when he casts them as the prophets’ moral heirs.³⁶ If there is a great difference between prophetic and rabbinic texts, it is due not to a diminution of the status of morality, but to its incorporation into an oral law charged with fashioning a formal normative system for a people living in dispersion. This does not mean that there were no real differences between the way the prophets understood the normative content of the Jewish law and the way it was understood by the rabbis. What it does mean is that the popular view of the rabbis as dedicated principally to the preservation and process of ritual laws, and only secondarily to moral principles, is the reverse of the truth; and that there need be no contradiction between a commitment to the halacha as a binding law and a belief in the primacy of morality in determining the content of that law. The moral realm is not only a part of the halachic tradition. It is its driving spirit.

 

Nowhere in his writings did Eliezer Berkovits offer us a systematic treatise on the nature of Jewish morality, as considered separately from halacha. Yet his writings are infused with a distinctive set of assumptions that amount to a systematic rejection of the Kantian style in ethics, which, with its nearly exclusive focus on purity of intention, has characterized the thought of almost every major writer on Jewish morality of the last century. The Jewish perspective, according to Berkovits, is not concerned with the attempt to identify absolute principles which should inform our intentions, for it is not primarily concerned with intentions at all. From Berkovits’ perspective, what is important is not intentions, or even “actions” as such, as much as theconsequences of action. The moral values which stand behind the writings of the prophets and the rabbis are, in other words, an attempt to describe a desired state of human affairs within the world, the achievement of which is the aim of moral behavior.

This belief plays an especially prominent role in his halachic writings. One of Berkovits’ goals in writing Not in Heaven is to demonstrate that the halacha not only accepts the priority of the moral, but also, as a consequence, constantly concerns itself with what he calls the “wisdom of the feasible”—the willingness to accept change in the legal order when this is necessary in order to avert undesirable social consequences such as shame, injustice, waste, physical danger, or communal strife. Citing the talmudic dictum “what is possible is possible, what is impossible is impossible,” Berkovits brings a number of cases in which the Jewish norm is determined not according to a strict application of abstract principle, but according to the “possible”: That which can be reasonably expected to bear successful application, as measured by its consequences.

One example is the talmudic principle of “the end was permitted on account of the beginning,” according to which emergency personnel, who are permitted to travel on the Sabbath in order to save lives, are allowed to return home on the Sabbath as well, even after the risk to life has passed, when in principle they should be required to remain where they are. Because of the concern that doctors, midwives, or firefighters would hesitate to take the steps necessary to save lives because of the prospect of being stranded until nightfall, the rabbis allowed continued travel even after the mission had been completed, in order to achieve the desired result of saving lives.³⁷ Another example concerns the willingness of the rabbis to add an extra month to the Jewish calendar—with the consequence of delaying the observance of biblically prescribed holy days—for the purely practical reason of avoiding the difficulties of conducting Passover too soon after the winter rains.³⁸ Flexibility in halacha is displayed primarily in an effort to bring about desirable social results, or to prevent undesirable ones.