To start with, I have long admired Evelyn Gordon's incisive critiques of Israel's judiciary, especially her devastating analyses of Aaron Barak's 'Judicial Revolution.' In addition, I am a priori very sympathetic to the necessity of a straightforward and courageous engagement with the multifold, and frequently, unprecedented challenges that the Torah faces. I was, therefore, loathe criticizing it.
The authors seem to have hoped that an intellectually grounded, cri de coeur would advance their cause. They may be right. However, what they have written is far from being a responsible, learned excursus on Halakhic history and its potential in a contemporary context. It is riddled with factual errors and misinterpretations. Based upon the footnotes, which overwhelmingly refer to secondary literature (some of which is famously agenda driven), the reader is led to conclude that the authors lack a basic mastery of rabbinic and post-Talmudic literature and methodology, without which no cogent case can be made on this topic.
More egregious, however, is the apparently total lack of understanding as to how the Halakhic system works. The authors nurture a vision of 'Halacha ex machina' in which rabbis do as they please and make wholesale changes in the Torah, as they see fit. Such an approach denies Jewish Law any type of internal consistency, or integrity. It is, according to the authors, 'as clay in the hands of the potter.' Such an interpretation, it is true, lies at the heart of the Conservative movement (and its Reconstructionist progeny). However, it is wrong historically and a fatal mistake communally.
As Professor Haym Soloveitchik, the acknowledged doyen of the History of Halakhah, as asserted: 'If law is conceived of, as religious law must be, as a revelation of the divine will, then any attempt to align that will with human wants, any attempt to have reality control rather than to be itself controlled by the divine norm, is an act of blasphemy and is inconceivable to a God-fearing man' (H. Soloveitchik, 'Religious Law and Change: The Tosafist Example,' AJS Review, 12(1987), 205).
That, of course, does not mean that the Law doesn't change, of course it does. The question is what is the texture of the process that engenders or countenances that change. Here, I fully endorse the characterization of Professor David Berger: 'A similar assessment seems appropriate with respect to the closely related issue of change in Jewish law. While the most traditionalist circles maintain that change is, and has always been, out of the question, non-Orthodox figures, and even some in the most liberal sectors of Orthodoxy, assert that rabbis have always succeeded in finding ways to permit what they feel must be permitted. Blu Greenberg's bon, or mal, mot, 'Where there is a rabbinic will, there is a halakhic way,' was provided with a telling Hebrew translation by my distinguished brother in-law David Shatz: 'Im tirΩu, ein zo halakhah'. This question has been
subjected to scholarly scrutiny by Jacob Katz, Haym Soloveitchik, Yisrael Ta-Shma, and Daniel Sperber among others, and my sense, guided no doubt by my own predilections, is that social, humanitarian, and ideological factors - what I call competing religious values - have surely affected the willingness to rethink the plain meaning of texts, but in the final analysis the texts still matter' (D. Berger, 'Identity, Ideology and Faith: Some Personal Reflections on the Social, Cultural and
Spiritual Value of the Academic Study of Judaism,' 25). [Strikingly, Gordon and Levy do not cite any of the above noted scholars- the universally acknowledged leaders in the field of halakhic history.]
This is how rabbinic figures behaved, then as now. If the authors wished to sway them, and the population that is most loyal to Halakha, then their point of view is (at best) a non-starter. Indeed, it is worse than that. For by embracing an understanding of Torah that is an anathema to the halakhic loyalist, they cast serious suspicion on the salutary (and necessary) enterprise of breaking the present halakhic paralysis.
Since I am sure that the authors were well-intentioned, I will not close with the traditional adage posited of the well-intention. Rather, I assume that once can say of them that which the Khazar King heard in his dream: 'Your intention is acceptable, but your actions are unacceptable' (Kuzari 1, 1).