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Jewish Social Ethics
Judaism, Summer, 1994 by Alan J. Yuter
Novak concludes his very important volume with the observation that Christians do not take Jews seriously because Jews are not religiously Jewish. He rejects secular or ethnic Judaism because he understands that there is no culture without cult. He then turns to two religious expressions that he finds in American Judaism: liberal and Traditional. When liberal Judaism is reduced to its core theological content, it requires that Jews merely be "ethical"; and one does not have to be Jewish to assume this quality. Novak does not note that liberal Judaism's acceptance of homosexuality is an ethical rather than a ritual issue, demonstrating that the real content of liberal Judaism's "religion" are the mores and conventions of the politically correct liberal culture elite.
Novak's address of Traditional Judaism focuses on Rabbi Moshe Feinstein's positive response to prayer in the public schools. Novak identifies the popular Jewish penchant for secularizing America, subscribed to by a large segment of American Jewry, which holds that only in a non-Christian America will Jews find their place. Novak identifies with Rabbi Feinstein's concern that religious (halakhically observant) Jews participate as religious Jews in America, and that religious people, regardless of their creed, have a concern that their society be morally grounded. Unaddressed by Novak is the fact that prayer in public schools, when it occurred, had a distinctly Protestant ring. For the Jew, prayer is public, ideally in a minyan; for Christianity and its founder, it is private, in a closet. Novak challenges America's "Jewish Jews" to be taken seriously as exemplars of piety, learning, and insight who can inform American social and ethical discourse.
According to Novak, Jewish theology, or Aggada, serves to inform the Jew in applying the Jewish tradition in a normative, prescriptive dimension. He does not believe that the halakhic, or pure statute, is self-processing, and, as noted, he rejects, as does his teacher Abraham Joshua Heschel, what is termed the "pan-halakhic heresy," which contends that all Judaic normativity is ultimately reducible to Halakhah, or Jewish positive law.
Following the British legal thinker H.L.A. Hart, who argues that every law has a moral minimal standard, Novak pleads that there is such a standard underlying Jewish law, which must be applied when dealing with the gaps in the law, or those "hard cases" in which Jewish law offers no legislative or interpretive precedent. For Novak philosophical aggadic speculation fills the gaps in the law; for most Orthodox positivists, these gaps are filled not by speculative theology, but by ad hoc policy decisions which reflect the norms of the living, believing, and observing Jewish community. Both Novak and the observing community are exercising subjectivity. Novak's subjectivity reflects a brilliant, if not idiosyncratic, perspective. For the legal positivist, any filling of the legal gap (which some scholars call the penumbra) is valid as long as higher legal norms are not contradicted; for Novak, his theology would fill the gaps in the law and limit the autonomy which the Halakhah does in fact afford the community of the faithful.
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