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Touro Law Review

Abstract

The role and function of “halakha” (Jewish law) in Jewish communal life is a divisive issue: while Orthodox Jews tend to embrace Jewish law, non-Orthodox Jews (here deemed “Heterodox”) generally reject Jewish law and halakhic discourse. We will explore the way in which Robert Cover’s work offers an antidote to categorical Heterodox distaste for halakha specifically, and law more broadly, providing a pathway into an articulation of halakha that may speak to Heterodox Jews specifically: one that is driven by creative “jurisgenerative” potential, that is informed by a paideic pluralism, and that is fundamentally democratic in its commitment to being shaped not by its authors or enforcers but by the people who imbue it with meaning.

We explore four examples of Heterodox halakhists whose work is grounded in such a vision for law articulated by Cover: Rachel Adler, Tikva Frymer-Kensky, Mark Washofsky, and Gordon Tucker. These four scholars, responding to distinct cultural moments and emerging socio-political realities, develop attempts to transform halakhic life and discourse. Inspired by Cover, they each offer reflections of an approach to halakha as it could be, imagining alternative approaches to Jewish law-making.

Our analysis builds on these frameworks, which are shaped by Robert Cover’s work. Through the incorporation of two core principles for Jewish law-making—”a judge has only what his eyes see,”and “the heart alone knows its bitterness”—we attempt to expand the analysis of these thinkers to articulate and illustrate a path to progressive psak among Heterodox Jews that dis-locates notions of authority and expertise in law-making, and embodies the well-known dictum created and popularized by disability justice activists: nothing about us without us, suggesting a framework for pluralist approaches to Jewish law that are liberatory and community-driven.

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