This raises the question of how and when innovation in the halakha may emerge. At many junctures, this happened as the result of a bold decision on the part of giants of halakhic erudition like Rabbi Moshe Feinstein (1895-1986), figures whose broad shoulders and widely accepted authority allowed them to adopt and propagate rulings that lesser authorities could not. Today, however, such figures appear to be a dying breed. In the post-World War II period, one is hard put to name a halakhic leader of towering eminence who has been succeeded within his community by someone of equal stature. This is true across all lines in the halakhic world; as true in the United States as in Israel; as true among Sephardim, especially after the passing of Rabbi Ovadia Yosef, as among Ashkenazim; as true for the haredim as for the Modern Orthodox.
Is there something about the modern condition itself that has engendered this surprising trend? Is it that today’s scholars live in an age of unprecedented prosperity, with unprecedented access and exposure to the world outside the study hall and unprecedented freedom of choice – all, arguably, inimical to achieving greatness in Torah scholarship at the highest level?
Or, alternatively, is it that thanks precisely to the blessings of modernity, which have encouraged unprecedented numbers to engage in classical Torah study, it has become much more difficult for any one individual to stand out? In previous generations, a scholar would achieve acclaim within his city or region, and from there his reputation might spread. Today, when the halakhic world partakes of the global village, reputations have little chance to develop incrementally, and the very word “local” has become a vestige of a long-gone past. Whatever may be the causes of this trend, by now it has been in place for six decades. If it continues, and if leaders do not emerge to command a broad following as in the past, then the bias toward sticking with what has been done until now will become all the more ingrained.
It would seem that for innovation to take place in this environment, the authority supplied in previous generations by recognized and accepted Torah giants will now stem from consensus. But in order for the consensus to have validity, it will need to be a consensus of accomplished halakhic authorities – individuals who have published responsa covering a broad cross-section of law and who also serve as community leaders, accepted by their peers and the public within their own local sphere and beyond. The call for change can come from academics, educators, speakers, and clergymen. But the change will only be valid when it is adopted by a consensus of recognized halakhic authorities.
What is clear is that halakhic adaptation to changing circumstance is today a very slow process. Indeed, some would argue that it is only getting slower; in a seminal essay, Haym Soloveitchik has traced the process by which, in recent decades, the statutory nature of halakha has produced an ever-greater rigidity. Indeed, some would say that affirming the view that halakha stands outside society has itself become a central tenet – and boundary marker – of Orthodoxy.
Consider this: In fifteenth-century Germany, halakhic authorities ruled for the first time that during Passover, a Jew could retain possession of leavened items (hametz) in his property by formally selling them to a non-Jew prior to the holiday. At the time, the ruling was considered revolutionary. It could take hold only because communities lived in relative isolation and autonomy. German Jews accepted it even as Jews of other Ashkenazic lands did not; in the fullness of time, it became accepted by most.
By contrast, halakhically observant Jews today are at once ever more divided from one another and ever more connected. Ever more divided, because of competing visions of Judaism in general and of Jewish law in particular; ever more connected, because of the global village that is the internet. When a halakhic authority issues a ruling, he no longer does so in isolation; the speakerphone, so to speak, is on. If his opinion is even slightly controversial, in nanoseconds the filibuster in cyberspace will begin to block its adoption. There is never time and space for innovation to take hold on the local level, to demonstrate its merits, and then to become slowly adopted (or not) by others. In this environment, halakhic reform can most likely succeed only by slowly building a prior consensus for change.
Joshua Berman – Ani Maamin: Biblical Criticism, Historical Truth, and the Thirteen Principles of Faith p.163
The Sea Is Not Full 