The Conservative Nature of Halachah

“One who breaks through a fence will be bitten by a snake.” (Kohelet 10:8)

In many of the most passionate debates in today's Jewish world, issues are framed by the media in stark, black-hat vs. white-hat terms: The bad guys are insensitive sticklers for ideological purity, the good guys are compassionate scholars whose priority is kvod habriyyot and the welfare of Man.

You can pick pretty much any issue you like, but here are a few:

-Women's rights

-Interfaith dialogue

-Conversion standards

-Community standards of tzniut

These debates are framed in the Forward, the Jewish Week, the New York Times and beyond as matters of Compassion vs. Law, human leniency vs. divine absolutism, or worse, humane rationalism vs. nouveau fundamentalism.

I am not taking sides on any of these actual issues, at least not in this post. In practice, I've been on both sides of all four debates mentioned above! But this black/white characterization is unfair. Halachah, as it is traditionally understood and as was expressed in the Kohelet citation above, has long demanded conservatism, specifically in the name of compassion – compassion for the individual, and compassion for the community.

When Kohelet declares that the trespasser will be snakebit, he employs a lucid analogy for the practice of pioneering leniency. The very real fear is that removing the fence may endanger the individual practitioner, as well as the community. We know not why the fence was first built, but someone saw fit to build it; dare we think ourselves wiser and remove the fence without knowing what lurks on the other side?

To take one of the recent causes celebre: Dare I be lax in a conversion requirement, knowing that I risk declaring someone Jewish who actually is not?

Is it truly more compassionate to say, “We will label you 'Jew' even though you are not committed, yet, to kashrut, or Shabbat?” Certainly, that will satisfy an immediate demand, but what about if we are wrong – what about the possibility that the other side of the debate is correct, and he/she is not actually Jewish? What will be the ramifications for the eventual offspring?

And even if I am right in my leniency, and she/he is a Jew – What favor am I doing for the Jewish community, by introducing someone who will weaken the communal observance? And what favor am I doing for the convert personally, and the convert's children, by ushering them into a covenant they will not observe?

To these questions, in matters ranging far beyond conversion (The Shulchan Aruch sees fit to quote the snakebite principle in cases as varied as sitting down for והוא רחום (Orach Chaim 134:1) to eating meat in communities where people customarily avoid it in mourning for the Beit haMikdash (Orach Chaim 551:11) to eating meat without checking the animal's lungs for certain problems (Yoreh Deah 39:1)), Halachah has traditionally been conservative, urging caution, advising שב ואל תעשה עדיף, better to sin by inaction than by action.

Witness the example of Moshe Rabbeinu. Two of the most frequently cited biblical, halachic, compassionate 'liberalisms' are the Pesach Sheni decision (allowing people to observe a second Korban Pesach if they could not observe the first) and the Bnot Tzelafchad decision (giving the daughters of Tzelafchad land, because they had no brothers). But note that in each case, when the issue was brought to Moshe, he did not offer the leniency - rather, he explicitly relied on prophecy. Moshe did not feel comfortable offering a leniency based on his own compassion.

I admit that I am not satisfied by the conservative solution. As I noted above, I have been on both sides, and I am not taking a stand on the issue here.

My point is only that I would prefer to see the conservative view treated with the respect it deserves, as a compassionate position with firm grounding in Halachic tradition.