The Jewish internet has been alive over recent months with attempts to draw denominational boundaries. In particular there has been much discussion about whether Open Orthodoxy, the cluster of ideas coming from Rabbi Avi Weiss and Yeshivat Chovevei Torah, is an expression of Orthodox or Conservative Judaism. This is a problematic question. It implies there are Platonic forms of Orthodoxy and Conservatism which can be measured against the facts on the ground and an adjudication made. In fact, all Jewish denominations are creations of particular times and places and can only be understood in those contexts. Another approach is to ask whether specified views and methodologies are valid expressions of authentic Judaism, or whether they constitute a break with the Mesorah, the chain of tradition beginning at Sinai. However, that is not a historical but a religious question. We each have our own view on what is ‘valid’ and ‘authentic’ and those commitments do not derive from scholarship but from faith. I am a historian, so I am drawn to a third approach, which is to ask whether Open Orthodoxy adopts the same principles as earlier religious expressions, which were generally regarded as Orthodox.
I want to use an important review essay by Rabbi Dr Walter S. Wurzberger, ‘The Oral Law and the Conservative Dilemma’, which appeared in Tradition in 1960. This article is pertinent for our purposes because it attempts to explain exactly what differentiates Modern Orthodoxy from Conservative Judaism, even in the latter’s most traditionalist form. It does not concentrate on practices among members of the two movements, or even on different halakhic rulings emanating from each. Rather it examines the theological and philosophical underpinnings of each denomination. If Open Orthodoxy shares the principles set out by Wurzberger and accepted by the then Modern Orthodox community as a valid definition of its position, it follows that while the spokespeople for Open Orthodoxy might be mistaken in some regards, and their halakhic positions might be considered wrong, even reckless, they remain within accepted definitions of Orthodoxy, because of the understanding of the Mesorah which guides them.
Wurzberger’s article was a review of Boaz Cohen’s Law and Tradition in Judaism (New York, Jewish Theological Seminary 1959), which attempted to explain the Conservative approach to halakhah. Cohen’s halakhic conclusions were extremely traditionalist in this work. He rejected important decisions of the Committee on Jewish Law of the Conservative Movement’s Rabbinical Assembly as against halakhah, for example riding in a car to the synagogue on Shabbat and mixed seating in services. He therefore could not be criticised for undue leniency in practice. Wurzberger therefore critiqued the very foundations of Cohen’s approach. In Wurzberger’s reading, Cohen believed that as the Rabbis developed the Oral Law they modified the original law, either deliberately to adapt to the needs of the time, or inadvertently because they did not understand the texts they were dealing with. In other words, the Sages effectively created the halakhah as we have it today. They were innovators, even if they appeared to themselves or others to be merely expounding and applying. Ultimately Jewish Law as we have it did not grow out of an original revelation but was the invention of the Rabbis.
Whether this is an accurate description of Cohen’s position is not important for our purposes. What matters for this discussion is the Orthodox position which Wurzberger placed in contrast, an approach which represented the mainstream Modern Orthodoxy of his day.
Long before the advent of the Historical school, the traditionalists fully recognized that they were entrusted with a Torat Chayyim – a living Law…Because the halakhic process is characterized by a continuous interaction between subjective and objective components, it is natural that changes in historical conditions will lead to far reaching repercussions in the realm of Halakhah. This is not at all a question of “adapting” or “adjusting” the law to meet novel conditions, but of interpreting and applying it within the frame of reference of new circumstances…It must be borne in mind that this dynamic character of the law is an integral part of the Massorah, the chain of tradition dating back to Sinai , not something that was grafted upon the Torah later on to prevent its obsolescence and decay…It is the function of the Halakhah scholar, employing creative halakhic processes, to unravel the specific meaning which the timeless message of Sinai holds for his own time.
Rabbi Wurzberger wrote so clearly that a gloss would be redundant. Rather, we can turn immediately and compare this understanding of the Mesorah with Rabbi Weiss’s, which he put forward in his article on the graduation from Yeshivat Maharat of students ordained as clergy:
Mesorah is not solely rooted in the past. Rather our mesorah is, that within proper parameters, we ought to innovate to address the issues of our time and continue the work. This innovation is not straying from mesorah, it is demanded by it. This involves two steps.
The first step is to assess the law and evaluate whether it is in conflict with other central principles of Torah. Consider, for example, the Torah’s position on polygamy, slavery or yefat to’ar, the laws of a female war-captive. These laws seem in conflict with other values of Torah, values like tzelem Elohim – every human being created in the image of God or kavod ha-bryiot – human dignity or kedoshim ti’hiyu – and you shall be holy.
If conflict exists, mesorah includes a second step: a systematic means by which halakha can evolve. The Torah makes this very point when it declares that in every generation, when challenging issues arise, one is to go to the judge of his or her generation. (Deuteronomy 17:8-9) Mesorah includes a sophisticated network of rabbinic law, some interpretive (dinin she-ho’tzi’u al darkei hasevara) and some legislative (takanot u’gezeirot). After an extensive, in-depth analysis of the law, new applications may be possible.
This is classic Wurzbergian analysis. The Mesorah draws its strength from the Torah itself, it allows timeless principles to be applied to the needs of the day, it enables the full realization, through careful thought, of the original wishes of the Torah, which will reveal themselves differently in each generation, sometimes leading to ‘far reaching repercussions in the realm of halakhah’. One can argue whether Rabbi Weiss has made the right judgement about women’s roles, but it is difficult to claim that his basic approach to change within Judaism and the role of the Mesorah is substantively different to approaches which were not only accepted but promoted in Modern Orthodox circles half a century ago.
Not all self-identified Modern Orthodox rabbis maintain this understanding of the Mesorah and the way it works. That may explain a difference of view between the most distinguished representative of the old school and a representative of the new.
In 2009 Rabbi Dr Norman Lamm was reported as follows in the Jerusalem Post:
Regarding the ordination of female rabbis, Lamm said his opposition was “social, not religious…Change has to come to religion when feasible, but it should not be rushed. Women have just come into their own from an educational perspective. I would prefer not to have this innovation right now. It is simply too early. What will happen later…I am not a prophet.”
He clarified his remarks shortly afterwards to the YU Commentator:
“I was criticized, of course. People asked, ‘You mean that al pi din [by law] they’re allowed to become rabbis?’ My response: ‘I don’t know. Are you sure they’re not allowed to?”
Rabbi Lamm went on to say, however, “It is too early to tell where this is all headed and I think they are moving much too quickly. Do I think having women rabbis is a good thing? I do not know. I am, however, concerned that, before long, we will find ourselves overly feminized, and I would not want to see that happen.”
Rabbi Lamm’s words were recently characterized as a mis-speak due to failing powers. In fact they seem to match entirely the approach of his old colleague Walter Wurzberger. The Mesorah has the capacity to make far reaching halakhic changes, all of them rooted in the revelation at Sinai. Whether they should be made, or should be made now, is a different matter. This is a very different point of view to the one implied by this statement, also reported in the Commentator:
The RCA’s Rabbi Kletenik, however, was unequivocal. “To ordain a woman as a rabbi,” he told The Jewish Press, “is a breach of our mesorah and not acceptable in an Orthodox synagogue.”
It is entirely reasonable to take a different view of the boundary between Orthodoxy and non-Orthodoxy and on the workings of the Mesorah. People always did. Wurzberger described his section of Orthodoxy as a ‘tiny but articulate minority’. However, it is not fair to claim that the understanding held by Rabbi Weiss and others associated with Open Orthodoxy has no precedent. The application might be wrong, and that is something to debate as part of an internal Orthodox conversation, but to call it neo-Conservative would come as a great surprise to one of Conservative Judaism’s great critics, Walter Wurzberger.
Dr. Ben Elton is a student at YCT Rabbinical School
 Tradition in 1960 (3:1), just before Wurzberger became editor of the journal, and was reprinted in A Treasury of “Tradition” (ed. Norman Lamm and Walter S. Wurzberger, New York: Hebrew Publishing Company 1967, pp. 436-443). I am not the first person to identify Wurzberger and this article. See Alan Brill, ‘A Tiny but Articulate Minority’ (Tradition 41:2, 2008)