The Evolution or Non-Evolution of Jewish Practices and Law

Ben Z at Mah Rabu has a post on egalitarian issues in marriage entitled Marriage In Generalized Coordinates. He used some advanced math (including Lagrangian mechanics), but his basic point is that since we have not worked out all the kinks in how to do a more egalitarian wedding ceremony, individual people have to do a lot more thinking, compromising, and trial-and-error work than would otherwise be true.

Ben's post raises an interesting general point about the evolution of Jewish practices and their resulting or non-resulting equilibrium. Ben's background is in physics, but mine is in both law and economics. (My use of Lagrange multipliers was limited to solving n-dimensional optimization problems.) And so I approached this issue a little differently.

Here's the problem. Traditional Judaism advocates particular Jewish practices, rituals, and laws. Before the modern age, these were more or less universally accepted as what Judaism advocated, even if particular people might not follow them. (So there was a traditional standard of kashrut, or of shabbat observance, although some people did not keep kosher or shabbat.) But in the modern age, there has been pressure to change some some of these laws in light of modern ideals, especially in the Reform and Conservative world. The problem is that they have not evolved into a single new standard, but have resulted in many people and many communities each doing their own thing.

I am not arguing whether this is good or bad, only that it has happened.

To see the problem, it might be helpful to look at both law and economics. Both of these fields involve evolution. Legal rules change over time, and current American law is quite different from English common law from 700 years ago, even though it evolved from this. But we have a single law (at least in any single jurisdiction) not a bunch of people, each with their own law.

And of course institutions in the economy change and evolve. New companies are created and succeeds, some companies fail, some new product succeed, and others fail. We are constantly getting better mousetraps, but there is a lot of confusion as the "gale of creative destruction" works its toll.

Both the common law and the economy are able to evolve only because of a complex backdrop of institutions. The common law requires a complex set of courts, litigants, parties, legislatures, prior case law, and rules that require general deference but some flexibility when it comes to previous decisions. The economy requires a complex backdrop of property, contract, and tort law, as well as corporate law and bankruptcy law. It also requires risk takers and risk avoiders, financial capital, human capital, and plain old ingenuity. Without all of these institutions, it would be impossible to evolve --- that is, to move from one state to another while still maintaining some continuity with the past.

Jewish law and Jewish practices have a hard time evolving. And perhaps one reason is the lack of institutions that make this possible.

In the Orthodox world, the tendency is not to evolve. The decision rules of halacha are backwards looking. Once prior generations have decided an issue, it is difficult if not impossible to reverse that. There are some modifications in the interstices, but things tend to be pretty static. Of course, this leads to its own problems. In America, Orthodoxy is often out of sync with the broader society, sometimes for better and sometimes for worse. This dissonance leads to problems that Orthodoxy must address, and how to deal with the modern world is one key area that separates Modern Orthodoxy from hareidi Orthodoxy.

In the non-Orthodox world, the goal is to evolve, at least where appropriate. As we reach new understandings of things like Bible criticism, science, feminism, and egalitarianism, we tend to modify or want to modify some rules and practices and beliefs. (Ben Z's marriage discussion is one example of this.) But we lack the institutions to allow this to evolve, as opposed to simply changing into radically decentralized individual decisionmaking.

I think this problem is most acute in the Reform world. With its emphasis on individualism and autonomy, Reform in effect encourages people to make their own decisions. As a result, longstanding practices not only get changed, but they get changed into numerous different things. And this problem will only grow worse over time. It is hard to maintain a community and community standards when everyone in theory is encouraged to do whatever he or she finds meaningful. And this in turn makes it hard for new dominant practices to emerge and to reach new equilibria. As Ben Z noted, there are a lot of people doing a lot of thinking and coming up with a lot of new wedding ceremonies.

The Conservative movement tries to address this problem with the Rabbinical Assembly and to a lesser extent with other central organizations. The problem here is more practical and sociological. Few Conservative Jews pay attention to this. When deciding whether to eat peanut butter during Passover, Conservative Jews weigh many different considerations, but reviewing the RA's teshuvah on this issue is probably not high on the list. Thus, despite some institutional structure leading to centralized decisionmaking, and thus possibly to new equilibria, these institutions might not have sufficient power, or even social pressure, to produce new practices.

The result of all of this is that over time, Orthodoxy may grow more out of sync with the rest of the world, while Reform and Conservative Judaism may grow out of sync with traditional Judaism with themselves.

Of course, it is not clear that this is a problem. It may be that the lack of a single equilibrium is on balance beneficial. Different communities can have different standards, and people will go where they are most comfortable. But it has costs too, as Ben's example illustrates. There is not a single (or even a small set) of egalitarian wedding ceremonies that have commanded universal acceptance. So Ben, his wife, and lots of other people spend a lot of time thinking about and inventing such ceremonies.

If this is a problem, the solution for Reform and Conservative Jews is to devise some institutional structures that can provide a counterbalance to the decentralizing and centrifugal forces already in operation. (See Ben - I can use physics terms too.) I am not sure what these institutions are, though. They do not have to be central organizations of rabbis (although that may be part of it), and they will need to have broader popular appeal.