An Impractical Solution

(Hat tip: Nishma)

If one were to summarize the main difference between Modern Orthodoxy and Chareidism today, that difference would be the concept of autonomy.  The further right one goes into the Chareidi community, the less autonomy the individual has and the more conformity to the community and its universal standards is valued.  The further left one goes into Modern Orthodoxy, the opposite occurs with customized Judaism becoming the norm at that edge as opposed to identification with community standards.
Which is better?  A high level of autonomy or communal obedience?  If an absolute amount of either is not reflective of what real Torah Judaism is, then what is the appropriate level of autonomy to be balanced against the community?
Rav Nathan Lopes Cardozo, in a recent essay entitled On the Nature and Future of Halakha in Relation to Autonomous Religiosity addressed this subject, raising profound and important questions.  Anticipating the controversial nature of the subject, he noted:
I am confronted daily with countless young Jews who search for an authentic Jewish religious way of life, but are unable to find spiritual satisfaction in the prevalent halakhic system as practiced today in most Ultra or Modern-Orthodox communities. For many of them, typical halakhic life is not synonymous with genuine religiosity. They feel that halakha has become too monotonous, too standardized and too external for them to experience the presence of God on a day-to-day basis. Beyond "observance", they look for holiness and meaning. Many of them feel there is too much formalism in the halakhic system, and not enough internal meaning; too much obedience and not enough room for the individualistic soul, or for religious spontaneity. More and more sincere young people express these concerns, and many of them are deeply affected by their inability to live a conventional halakhic life. Since they sincerely long for the opportunity to experience halakha, I struggle to find a response to this acute growing predicament. The solution must simultaneously acknowledge that a genuine Jewish religious life cannot exist without being committed to the world of halakha. This existential tension greatly influenced the content of this paper. The following observations are therefore not written from the perspective of a halakhist, but from the perspective of a deeply concerned Jewish thinker, who wants young people to be authentically religious while living a halakhic life which is meaningful to them. The following suggests a new insight into the world of halakha and its practical application.
Surely there are many arguments which can be brought against the contents of this essay, some of which I can point to myself. However, the purpose of this essay is to get people thinking, not to claim the definitive truth of my observations and suggestions.
I am fully aware that the views expressed may not be palatable to most bona fide and respected poskim. My analysis and suggestions will probably not carry their approval. I hope only to act as a catalyst in the hope that some halakhic authorities and Jewish thinkers will take my suggestions seriously and be prepared to discuss them. They are nothing more than thoughts which came to mind when contemplating and discussing these issues with students.
At no point does he "bash" any Orthodox group.  His cri de couer is sincere.  He sees so many in the Orthodox world on both sides of the spectrum devoid of emotion, going through the motions, either looking for something more or being led down a path devoid of that "more" in the name of some dogma.  There is a crisis assaulting us and he must be commended for being willing to open up the dialogue.
And since that's what he wants, I would like to register my disagreement with some of his suggestions, specifically his desire to return halachic Judaism to a pre-Shulchan Aruch stage.
His observations are spot on in terms of how "Judaism by the book" has become the dominant mode of practice in this day and age:
A careful read of modern Jewish Orthodox literature reveals that many authors misunderstand the nature of Jewish law. Much of this literature is dedicated to extreme and obsessive codification, which goes hand in hand with a desire to "fix" halakha once and for all. The laws of muktzeh, tevilath kelim, tzeniut and many others are codified in much greater detail than ever before. These works have become the standard by which the young growing observant community lives its life. When studying them one wonders whether our forefathers were ever really observant, since such compendia were never available to them and they could never have known all the minutiae presented today to the observant Jew. Over the years we have embalmed Judaism while claiming it is alive because it continues to maintain its external shape.
The majority of halakhic literature today is streamlined, allowing little room for halakhic flexibility and for the spiritual need for novelty. For the most part, the reader is encouraged to follow the most stringent view without asking whether this will actually help her or him in their Avodath Ha-Borei (service of the Almighty) according to her or his distinct personality. The song of the halakha, its spirit and mission are entirely lost in this type of literature. When the student looks beyond these works seeking music, he is often confronted with a dogmatic approach to Judaism which entirely misses the mark. We are plagued by over-codification and dogmatization.
Years ago I was davening in a small shul where the minyan arrived late, if not at all.  Generally the custom was to start services on time and then pause at just before Yishtabach until the 10th man arrived.  During this time people either learned or had quiet conversations.  One day a young beis midrash boy was praying with us and asked me where the heter for talking at that point in the service was mentioned in the Mishnah Berurah.  I pointed out to him that in small communities this is quite a common practice but he wasn't satisfied.  "I need to see it written somewhere" he muttered, as if only seeing a teshuvah or mention in some approved book would ease his doubts.
A couple of years earlier my father and I were sitting and listened to a shiur on the performance of bedikas chametz.  Halfway through a recent baal teshuvah with a fetish for details started quizzing the rabbi about the procedure.  The spoon, what was the source that it had to be a wooden one?  What was the length of the handle?  And the feather, did it have to be from a goose or was another kosher bird acceptable? 
I even fell into this trap a few years ago.  My rebbe was instructing me in a pre-fasting procedure called the segulah of the Chofetz Chayyim.  In short, the afternoon/night before a fast you eat a whole bunch of grapes and then drink two cups a tea, one with 5 teaspoons of sugar and the second plain.  So I asked: the grapes, white or red?  The tea, how big a cup and what kind of tea in particular?  He didn't understand why any of that mattered so I blurted out "It's a frum thing so it has to matter!"
Judaism by the book removes the spontaneity and creativeness of halachic practice and demands identical performance by non-identical people.  In identifying this, Rav Cardozo has given us an important issue to deal with.  His solution, on the other hand, is concerning:
Halakha is the practical upshot of un-finalized beliefs, a practical way of life while remaining in theological suspense. In matters of the spirit and the quest to find God, it is not possible to come to final conclusions. The quest for God must remain open-ended to enable the human spirit to find its way through trial and discovery. As such, Judaism has no catechism. It has an inherent aversion to dogma. Although it includes strong beliefs, they are not susceptible to formulation in any kind of authoritative system. It is up to the Talmudic scholar to choose between many opinions, for they are all authentic. They are part of God's Torah, and even opposing opinions "are all from one Shepherd" (Hagiga 3b)...
As mentioned earlier, several outstanding Talmudists have argued that Maimonides' Mishneh Torah and Rabbi Joseph Karo's Shulhan Arukh starved Jewish law of this very spirit. Maimonides eliminates all references to the basis of his rulings and almost entirely ignores even the existence of dissent and minority opinions. On the occasion where he does refer to them, he seems to express a negative attitude, as if he would like to save Judaism from this embarrassment. (See, for example, Hilkhot Mamrim 1:3-4.) Although less extreme, Rabbi Joseph Karo also states his rulings in the Shulhan Arukh in general language without mentioning sources or other opinions. It is true that he first authored the "Beit Yosef" in which he brings many opinions and citations, so one might argue that he did not want his Shulhan Arukh to become a distinct and self contained work. However, the fact is that once he authored this work, it quickly assumed this very status. It would be hard to argue that the author did not foresee this possibility...
Maharshal goes on to state that the Shulhan Arukh's entire enterprise is dangerous. Those who study it will come to believe that what Rabbi Joseph Karo wrote has finality, and even "if a living person would stand in front of them and exclaim that the halakha is different, citing excellent arguments or even an authoritative received tradition, they will pay no heed to his words..." (Yam shel Shelomo, introduction to Hulin). Rabbi Haim ben Betzalel adds that people will fail to realize that this current authority is "just one person among many". (Vikuah Mayim Haim 7.)
Moreover, such codices lead to intellectual laziness. People will no longer study the Talmud in their reliance on these works. They can be compared to a pauper who collects alms from wealthy people and shows off his riches. At first it seems that he is indeed rich. After all, he has food and clothing. But in truth this is illusory, for all he has are the items he collected. (ibid) Similarly, one who studies only these codices and rules does not know the ins and the outs of the Talmudic debates which preceded them.
Again, all valid points of observation but I would raise two objections.  The first is in the nature of the chicken and egg argument (BTW it was the chicken that came first).  Which preceded which, intellectual laziness or law codes?  I would argue that intellectual laziness was one reason for the development of law codes, not the other way around.  In addition to that factor, one could add the difficulties of obtaining a comprehensive Gemara education in many parts of the Jewish world through the ages.  Finally, in order to avoid using any law codes, one must have an encyclopedic knowledge of both Talmuds as well as the Rishonim that explained them.  This might have been possible for the very gifted of our nation but not for the average person who, in the absence of any guidebook, would be completely dependent on the local Rav for even the simplest questions. 
Finally there is the aspect of halachic fluidity mentioined by Rav Cardozo.  This is certainly an important thing to note.  Halacha, despite the best efforts of some, is not a monolithic and rigid structure.  Stringencies and leniencies are often in the eye of the beholder and what is appropriate in one situation might not be in a similar but slightly different one.  Such is the job of the posek to appreciate these subtleties.
But - and this is the important bit - while any given question might have a host of acceptable answers in the eilu v'eilu tradition, at some point a person has to act.  He has to set aside 11 of that dozen and choose the one correct answer for him at that moment.  He can't always go back to the Talmud and first principles.  Sometimes there isn't time.  Sometimes there isn't the expertise.  Sometimes there isn't the need and this is where legal codification does become useful.
The final problem I would note (for now) is the horrible potential for fragmentation and intolerance.  Recall the wide variety of accepted halachic practices that existed in the time of the Talmud.  Chicken cheeseburgers were assur in some places, muttar in others.  What one could and couldn't touch on Shabbos varied from place to place.  How long to wait after meat for milk?
Now flash forward to today.  Despite the presence of the overarching authority of the Shulchan Aruch, there is still tremendous diversity within the Orthodox world.   The ongoing Chassidim vs Sephardim clash in Emmanuel over so-called stringencies regarding what nusach to daven with and the proper length for girl's sleeves is just the tip of the iceberg.  In this day and age there are people who won't eat in the homes of others not because they don't keep kosher enough for the Shulchan Aruch but because of chumros that were invented or added on later.  The line "Well the Magen Avraham permits it" cuts no ice with this people.  Can you imagine what would happen if we went back in time and just increased variability?
The conflict in Emmanuel is giving is the answer as to what the real source of our problems is, why our young people are either becoming extremists or drifting away, why more and more frum people are simply going through the motions without joy and enthusiam. 
Any Judaism based on minutiae and not ethical concerns is not one that can be happily embraced by the masses.  When you tell teenagers who are looking for a positive reason to be Jewish all about the "thou shalt not's" how are you encouraging them?  When they ask deep questions about the nature of God and Torah and are given simplistic answers, how are you satisfying them?  When you show them that it's worth alienating and hating your brother because his daughter's skirt is an inch too short for you and that inch is worth more than 3500 years of shared nationhood and suffering, what are you saying about Judaism as a loving, inclusive religion?
Until those issues are seriously addressed, there will be no real progress towards ahavas Yisrael and ahavas Torah that we so desperately need.