The US has a founding document - the Constitution - that was purposefully left amenable to change by its framers, through the possibility of a) amendments b) Supreme Court's ability to interpret document/uphold/strike down legislation c) vague phrasing of certain clauses. This is what makes the Constitution a living document. I accept upon myself the legal system set forth in this document, in order to be a part of American society. Thus, the Constitution is essentially an implied contract in which all members of American society agree to the laws, binding them to each other and to the Constitution. Anyone who breaks the law is in violation of this contract, and thus, expelled from society - i.e. sent to prison.
I am comfortable with this arrangement, because my voting rights allow me - however indirectly - to impact the terms of this contract, by voting for legislators who will propose or oppose certain laws, and presidents who will veto or pass certain bills, and appoint Supreme Court justices with certain jurisprudential theories.
Like Constitutional law, halacha is a living system, as well as a contract: The Sinai experience was essentially a contract between the Jewish people and God, in which they accepted His laws, and by doing so, bound themselves to each other as a civil society. Even if one were not to believe in the Sinai revelation however, one could view it as follows: Today, I, as a Jew, accept upon myself the halachik system, in order to be part of Jewish halachik society.
Once, halacha was a democracy, of sorts. This might sound odd, given that it was legislated by males, but the truth is, that often, a great rabbi will say, "X is the law, but our community does Y, and that is ok." Often, a rabbi will say that while the law should be X, he is ruling Y because of the specific needs of a certain community. As a matter of fact, most of Tosfot's philosophy was to look at the Talmud, look at how the Talmudic verdict differed from their own communities' practice, and then proceed to justify that practice. This is democracy, in the sense that the voice of the people not only was heard, but also shaped legal decision making and application of the law.
The greatest example of halacha as a democratic process is that of the tanur of achsenai, where the rabbinic majority's opinion is incorrect, but that is still the way the ruling goes, because it is halachik principle to follow the majority opinion - in it and of itself a democratic concept. There is also the much famed, "70 faces to the Torah' dictum, which allows for a plurality of opinion co-existing side by side.
Much of the recent tensions between halacha and society stem from the fact that, faced with a perceived threat from modernity and the need to clearly delineate its boundaries from other denominations, the rabbis stopped adopting halacha to society, as had been the practice for thousands of years, and instead started paskening strictly by the book, regardless of the needs of the community, even though this had (perhaps) never been done before. Now, instead of a plurality of equally viable options, there was an attempt to fulfill all of the opinions at once, thus homogenizing what had once been a beautifully diverse system.
The rabbis, in doing this, meant to preserve the halacha from destruction by means of modernity, assimilation, or the blurring of the lines between Orthodoxy and "less legitimate" denominations. They did not realize however, that in doing so, they were negating the democratic essence of halacha that has allowed it to function as an eitz chayim - a living tree - for all of these generations.
Much of the Orthodox community now is moving either towards the right or towards the left - both positions that eschew innovation - one by heading towards a Sofer-istic "Hadash assure min haTorah" way of life, the other, by not taking halacha seriously enough to need innovation - if you don't like something, simply discard it.
The true innovations in halacha tend to come either from movements within the Orthodox community that are reclaiming a democratic approach to Jewish law based on current communal need, or involved in an in-depth scholarly approach to Judaics that enables knowledgeable halachik reform, or from people using their knowledge to come up with a halacik lifestyle they are comfortable with, that falls within the rubric of Orthodoxy, but is not affiliated with a specific movement/hashkafa/rabbi/synagogue, etc. - i.e., not with any specific part of the official rabbinic halachik hegemony.
Ultimately, I believe that halacha will always be an etz chayim, because it comes from God, but I also think that the rabbinic establishment might want to consider going back to the Tosafists they so admire and taking them as an example (as Michale Broyde has done with his investigation on hair-covering, as Daniel Sperber has done), if they wish to remain relevant and retain their authority within the lay community.
Thanks to Rabbi Katz to giving me a Rabbi Hayim Soliveitchik article a while back that planted the seeds of these thoughts in my head.
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