WHO OWNS THE TORAH? 

Elitism and Democracy in Torah Perspective

The Torah in numerous places appears to assume that halakhic knowledge and authority would be centralized in the tribe of Levi. 

Nonetheless, throughout Jewish history Torah scholars have come from all tribes, and from converts.  Was this part of the Divine plan?  If yes, why does the Torah so often associate scholarship with Levi?  If not, does making halakhic authority accessible to everyone replace the Torah’s vision of an ideal social order with anarchy and chaos?

Rambam (Laws of Shmittah 13:12-13) seeks to resolve this tension by turning all scholars into honorary Levites. 

Why wasn’t Levi granted a share in the inheritance of the Land of Israel and its spoils

together with his brothers?

Because he was separated-out to serve Hashem,

to attend Him and to teach His straight ways and righteous statutes to the masses

as Scripture says:

“They will teach Your statutes to Jacob, and your Torah to Israel”

Therefore they were separated from the ways of the world –

they do not go out to battle like the rest of Israel

they do not inherit land and they are not granted property via the exertion of their bodies

rather they are the troop of Hashem

as Scripture says:

“Hashem blesses his troops”

And He the Blessed grants them (what they need)

as Scripture says:

“I am your share and land-inheritance”.

But this is not true only of the tribe of Levi;

rather,

each and every person from all those present in the world

whose spirit volunteered him and whose intellect made him comprehend

to become separated and stand before Hashem to attend and serve Him,

and to know Hashem,

and walked straight as the Divine made him,

and removed from his neck the yoke of the many calculations which human beings have sought –

He is sanctified as holy of holies,

and Hashem will be his share and land-inheritance for eternity and beyond,

and he will be granted in this world what is sufficient for him,

as He granted to the kohanim and Levites,

as behold David said:

“Hashem is my share and portion; You direct me as I choose my lot”

Turning Levi into a symbol or metaphor enables Rambam to maintain that the Torah intends there to be a social divide between the scholarly elite and the rest of the Jewish community.  The elite give up all interest in money or power – G-d takes care of their minimal this-worldly needs -  and as a result they can be trusted with Torah authority.

It is a pretty vision.  Unfortunately, the politics of this world rarely turn out that way.  G-d tends to provide for the this-worldly needs of scholars by way of non-scholars, who accordingly and properly have great influence over their Torah dependents.  Scholars are not always satisfied with the bare minimum of physical comfort. Desire for power may be as prevalent among scholars as among businessmen.  Scholars compete for the best fellowships, jobs, and students, not always nicely or with proper regard for ultimate ends.  In sum: Concentrating authority in scholars does not successfully insulate Torah against the evils endemic to other political systems.

We might seek to insulate scholars from the direct influence of the rich by creating a government-sponsored fellowship, a National Endowment for the Metahumanities.  Socialist Torah, rather than capitalist.  After all, the Torah does not say that G-d will provide for the Levites’ this-worldly needs on an ad hoc basis; rather, it sets up a tax system to support them.  

I think the best way to evaluate this theoretically attractive vision is to think about the Rabbanut in Israel.     

An alternative vision emerges from a midrash cited by Rashi to Devarim 29:3.

“And Hashem did not give you a heart to know until this day” –

I have heard that on the very day that Moshe gave the scroll of the Torah to the Children of Levi

as Scripture writes (31:9):

”He gave it to the kohanim Children of Levi”

all Israel came before Moshe and said to him:

‘Moshe Rabbeinu,

we too stood at Sinai and received the Torah, and it was given to us,

so why are you giving the members of your tribe dominion over it?! 

They will say to us tomorrow:

‘It was not given to you; it was given to us’.

Moshe rejoiced over the matter. 

It was about this that he said to them (27:9):

“This day you have become a nation to Hashem your G-d” –

this day I have understood that you are cleaving to and desirous of the Omnipresent.

It seems from this midrash that Moshe Rabbeinu originally inclined to either the socialist or capitalist visions above, or perhaps to Rambam’s imagined Republic.  But when the other tribes – all Israel! – came to him and protested that they too wanted to study Torah, he rejoiced. 

This midrash is likely related to the dialogue between Moshe and Yehoshua about Eldad and Meidad (Bamidbar 11:28-29), where Moshe, to Yehoshua’s surprise and perhaps dismay, expresses comfort with the idea of a community in which everyone is a prophet, and therefore no one has more access to the Divine than anyone else.  Moshe was comfortable in principle with both spiritual and halakhic democracy.

Comfort in principle does not imply endorsement in practice.  Democracy, in both its pure and representative/republican varieties, has its own weaknesses.  As Socrates loved to point out, democracy works well only when its constituents know the limits of their own knowledge, and prefer truth to power.  In fact, only Eldad and Meidad were prophets, not the entire people of Hashem.  By the same token, not all of us – even among those who live the life of Levi - are halakhically competent scholars.

Nonetheless, the democratic ideal properly has consequences.  The chief of these are that scholars must be accountable to their constituents, must constantly seek to spread rather than hoard knowledge and authority, and must recognize the autonomy of individual men and women as a core religious value.

In the coming weeks I expect to publish several essays that have as their immediate practical aim the constriction of halakhic authority, and therefore might reasonably be seen as in tension with the last commitment above.  So in the spirit of the first and second commitments, and of the month of Elul, I ask and invite you to look for them, read them carefully, and then hold me accountable.

Shabbat shalom

אֵ֣ת כָּל־הַדָּבָ֗ר אֲשֶׁ֤ר אָנֹכִי֙ מְצַוֶּ֣ה אֶתְכֶ֔ם אֹת֥וֹ תִשְׁמְר֖וּ לַעֲשׂ֑וֹת לֹא־תֹסֵ֣ף עָלָ֔יו וְלֹ֥א תִגְרַ֖ע מִמֶּֽנּוּ:

Everything that I am commanding you – that is what you must observe, to do.  You must not add to it; and you must not subtract from it.

Devarim 13:1 can be read as a free-standing and self-sufficient sentence, which is why it starts a new chapter.   However, the traditional Jewish punctuation reads it as the true conclusion of the preceding chapter, which ends:

לֹא־תַעֲשֶׂ֣ה כֵ֔ן לַיקֹוָ֖ק אֱלֹהֶ֑יךָ כִּי֩ כָל־תּוֹעֲבַ֨ת יְקֹוָ֜ק אֲשֶׁ֣ר שָׂנֵ֗א עָשׂוּ֙ לֵאלֹ֣הֵיהֶ֔ם כִּ֣י גַ֤ם אֶת־בְּנֵיהֶם֙ וְאֶת־בְּנֹ֣תֵיהֶ֔ם יִשְׂרְפ֥וּ בָאֵ֖שׁ לֵֽאלֹהֵיהֶֽם:    

Do not do the same for Hashem your G-d, because it was all the abominations of Hashem that He hates that they did for their gods; yes, they would even burn their sons and daughters in fire for their gods.

Seforno uses this connection to make the startling claim that the prohibition against “adding to” is needed to prevent Jews from voluntarily instituting child sacrifice for the sake of Heaven.

“לא תוסף עליו” - כי אולי תוסיף דבר נמאס אצלו יתברך, כמו שיהיה אם תרצה להוסיף מיני עבודות לא-ל יתברך, שלפעמים תהיה העבודה הנוספת דבר נמאס אצלו ית', כמו שריפת הבנים.

“You must not add to it” – because perhaps you will add something that is revolting to Him May He be Blessed, as would happen if you wanted to add forms of service to the Divinity May He be Blessed, that on occasion the added service would be revolting to Him May He be Blessed, like the burning of sons.

Seforno’s shocking suspicion also implies an important liberalism: G-d does not reject humanly conceived and initiated worship out of hand.  If we could be trusted to choose actions which pleased Him, perhaps He would even prefer such freely-chosen worship above obedient service.

By contrast, Rabbi Samson Raphael Hirsch reads our verse as rejecting human religious autonomy in principle.

“Everything” the parshiyot-division of the Masorah shows that this verse is the conclusion of what is said before it, and this is its meaning: For this reason, you must not produce for yourself new ways of Divine service, you must not seek to ingratiate yourself before your Divinity in ways different from those that were established by Him.  Only if you faithfully perform that which he commanded will you express the submission which He is expecting from you.  He imposed mitzvot on you and taught you how to fulfill them, and these mitzvot and these ways of fulfilling them express His will. 

Rav Hirsch seems to believe that worship in a freely-chosen form is oxymoronic. 

This profound philosophical dispute between Seforno and Rav Hirsch may reflect an even deeper disagreement about the nature of the Oral Law.  Why doesn’t the rabbinic corpus constitute an illegitimate addition? 

For Rav Hirsch, the Written Law is famously the “lecture notes” for the Oral Law.  This means that the Oral Law actually came first – the Written Law is just a way of encoding it.  There is nothing creatively human about the Oral Law.  Even the most brilliant rabbis were merely answering complex crossword clues correctly.  This tracks with his absolute prohibition against adding.

By contrast, Seforno may acknowledge that while the Oral Law is under the authority of the Written Law, it is the product of an unscripted human encounter with the Divine Will, and may reflect genuine creativity.  For Seforno, the prohibition is against undisciplined adding.

This theme is elaborated by Rabbi Pinchas Halevi Horowitz (1730-1805) in his Panim Yafot.  Rabbi Horowitz reads the opening of the verse as a reference to the Oral Law – “Everything that I am commanding you” includes matters that are not explicit intentions of the text.  He embraces the paradoxical formulation on Megillah 19b that G-d showed Mosheh everything that the Soferim would eventually originate.  The Talmud says that this refers specifically to the rabbinic mandate to read the Megillah on Purim, but Rabbi Horowitz reads it more broadly.

He then adds an important excursus on the nature of Torah study.

שלימוד התורה הוא בכל דור בשני פנים

האחד ללמוד התורה שכבר נתון בכתב ובע"פ בכל הדורות הקודמין, וזה הלימוד מקרא ומשנה,

והלימוד השני הוא עיון והשכל הטוב חלקו מאת ה' בתורה, כמ"ש ותן חלקינו בתורתיך,

. . . כי שתי הפנים האלה התחלפו בימי שנות האדם

בילדותו א"צ כ"כ שקידה וזיכרון הטוב,

כמ"ש [שבת כא ב] בגירסא דינקותא עולה לזיכרון יותר מבימי הזקנה,

אבל בעיון השכל הוא בהיפוכו כי דעתם מתיישבת עליהם,

. . . the study of Torah in every generation has two aspects

The first is to lean the Torah that has already been given, in writing or orally, in all the previous generations.  This learning is called mikra and Mishnah.

The second type of learning is ?analysis and excellent comprehension? which is his portion given out by Hashem in the Torah, as is written “and give our shares in Your Torah”.

. . . These two aspects reverse during a person’s years

In his youth he does not need so much diligence and good memorization,

as per Talmud Shabbat 21b that the learning of youth arise in memory more than that of old age,

but the investigation of the intellect is the reverse, because their mind becomes settled . . .  

According to Rabbi Horowitz, the human “share” in G-d’s Torah is not what we take out of the text, but rather what we put into it.  It is our creative contribution.  But such contributions must be built on a solid basis of knowledge of the written Torah and all its previous interpretations, including those once regarded as creative.  In turn, our successors will be required to memorize our creative contributions by rote before being allowed to attempt such contributions themselves.

Rabbi Horowitz thus sets out a model for the discipline that Seforno sees as the difference between legitimate creativity and illegitimate adding.  Creativity must go hand in hand with genuine commitment to and respect for the past.  Moreover, creativity is not an end in itself; rather, its value is predicated on being filtered via sound and mature judgment.

Let us be frank – this model may not be useful in real life.  There is no formula for determining the genuineness of commitment to the past.  Making memorization a requirement simply privileges those with superior memories.  Similarly, good and mature judgment are often not recognized, especially by those who lack them.

What may help is an acknowledgement and keeping-in-mind of the Torah’s caution that creativity can lead to human sacrifice. 

The Kotzker Rebbe reportedly asked:  Why did the angel call out to Avraham two commands-to-stop at the Binding of Isaac?  Wouldn’t Avraham have stopped once G-d said “DO NOT send your hand forth against the child”?  Why did He need to add “and do nothing at all to him”? 

More astonishingly yet, Rashi claims that Avraham did not stop in response to “DO NOT send your hand forth”; rather, he asked for permission to at least wound Yitzchak, which is why G-d continued “do no meumah (a pun on mum=blemish) to him”.  Why would an apparent sadistic streak emerge, rather than a joyous celebration of the reprieve?

The Kotzker replied: The most difficult temptations are those which convince a person that letting his or her worst evil inclinations flourish is actually a fulfillment of the Divine Will.  We may convince ourselves that the very absurdity of an action is what proves its religious origin: who but G-d would think of such a command?  Or we may convince ourselves that only the most ethically counterintuitive actions can prove that we are acting out of genuine religious devotion, that we are utterly engaged in the fulfillment of His will rather than our own.  Thus the true test of the Akeidah was not whether Avraham was willing to sacrifice Yitzchak, but rather whether he was able to abort the sacrifice when G-d revealed his error.  And, the Kotzker concludes, even Avraham was unable to stop immediately, even when presented with an angel telling him to stop – the angel had to tell him twice to keep him from drawing blood.

A reasonable argument can be made that the popularity of creative stringencies in contemporary Orthodoxy stems precisely from this impulse, especially in the areas of conversion and agunot.  There is real and culpable inconsistency in celebrating creative leniencies while denigrating creative stringencies.  At the same time, we should be hypersuspicious of any creativity that seems to draw strength from the number of victims it claims.

WEEK ONE SUMMARY OF SBM 2017

Shoshana Jakobovits and Gershon Klapper

The topic of the 2017 Summer Beit Midrash is “Mental Disability in Halakhah”. We will approach this topic through the halakhic category of שוטה (shoteh). The psukim in the Torah make no mention of שוטה as a legal status, and the Tannaïtic material may not define the condition formally. We will therefore attempt to build a framework for this category via its legal implications, having started this week with the Midrash Tanaïm and the Mishnah, and continuing next week with the Tosefta, the Yerushalmi and the Bavli.

Can we find rationales for the mitzvot the שוטה is excluded from? Maybe all mitzvot which require דעת (da’at, knowledge or understanding)? Or perhaps mitzvot which have a certain communal aspect? Are there specific halakhic realms they don’t participate in, or participate in only partially (for example testimony, marriage and divorce, or perhaps נזיקין, damages)? What are the differences between the statuses of the חרש (cheireish, deaf-mute) and שוטה as recorded in pre-Helen Keller halakhic literature, and to what extent does the traditional grouping of the קטן (katan, minor) with them have legal significance? These are some of the overarching questions we explored this week.

The Mekhilta d’Rabbi Yishmael (מכילתא דרבי ישמעאל כי תשא - מסכתא דשבתא פרשה א, 31:14) discusses the חרש ,שוטה and קטן ‘s obligation regarding at least some aspects of shabbat:

"To know that I, the L-rd, sanctify you" (Sh’mot 16): What is the intent of this? From "And the children of Israel shall keep the Sabbath" (Ibid.) I might think, even a חרש (deaf-mute), a שוטה (imbecile), and a קטן (minor) [are obligated]? It is, therefore, written "to know that I, the L-rd, etc." I spoke only of one who has דעת.

The presumption of the Mekhilta seems to be that we would think that the חרש ,שוטה and קטן are exempt from (at least some) obligations of Shabbat. This idea in mind, one could think that the words "And the children of Israel shall keep the Sabbath" come to state that in fact all B’nei Israel, חרש ,שוטה and קטן included, are obligated in these. The Mekhilta states that the function of the words "to know (לדעת) that I, the L-rd, sanctify you" are to show that חרש ,שוטה and קטן are, in fact, excluded from the obligation since they lack the appropriate דעת.

It is interesting, and perhaps even crucial to note that there is absolutely no presumption that the people belonging to the categories חרש ,שוטה or קטן might be excluded from the category בני ישראל (B’nei Israel). In other words, the Jewishness of the חרש ,שוטה and קטן, their belonging to the Jewish people is never put into question by the Mekhilta, nor by any other source from the Midrash Halakhah and the Mishnah.

What is put into question, though, is their intellectual capability, their דעת. However, the concept of דעת is quite obscure and further questions need to be addressed: what exactly does דעת entail? Are there different kinds of דעת (i.e. knowledges of different concepts) and from which mitzvot does this criteria exempt the חרש ,שוטה and קטן?

The Midrash Halakhah excludes the חרש ,שוטה and קטן on several occasions on the grounds that they are lacking דעת; this rationale appears, for example, in the Sifrei Bemidbar (Parashat Chukat, piska 124), which deals with the placing of the red heifer’s ashes in a tahor place. The חרש ,שוטה and קטן are declared pasul for this task, since they lack the דעת להניח, the knowledge to place these ashes appropriately. It is unclear from this text whether the Sifrei deems their דעת insufficient for placing, for handling precious objects, or for placing in a tahor location. In any case, this type of דעת is radically different from the type of דעת required in the Mekhilta, which is an understanding that G-d sanctifies us and a rather abstract, spiritual notion.

Furthermore, in the Tosefta (Shvu’ot, ch. 3) the word ידע (knew, Vayikra 5:1) is taken to prove that a שוטה is unfit to testify. This type of דעת, a basic knowledge of the circumstances and content of events necessary to provide testimony, constitutes yet another type of דעת.

What seems to emerge from studying Rabbinic legal interpretations of Torah is that the שוטה is excluded from specific mitzvot because of their lack of the דעת necessary to perform those mitzvot.

Let us now move to mishnaic texts, and consider a mishnah central to the rulings about חרש and שוטה: the mishnah (Rosh Hashanah ch. 2) rules that a חרש, a שוטה, and a קטן cannot fulfill the masses’ obligation to hear the shofar by blowing it for them, citing a general precept that “All that have no obligation in a matter cannot fulfill the masses’ obligation [in that matter].” This statement, as it seems to assume that the חרש, שוטה, and קטן have no obligation to hear shofar, provides a theoretically far-reaching curb to the שוטה’s involvement in mass obligations and implies a significantly handicapped obligatory framework; the קטן is already “exempt from all commandments” (Sanhedrin ch. 8) and the חרש is presumably exempt from shofar as he is from other obligations that explicitly require hearing — “testifying” (Tosefta ch.3) and “appearing [in Jerusalem at festivals]” (Mekhilta ch. 20) — but the שוטה lacks a rationale for exemption unless he, too, is generally exempt from a category, maybe all-encompassing, of commandments into which this falls. This thesis is further supported by other mishnayot, which state that the חרש שוטה and קטן cannot “read the megillah [to the masses],” (Megillah ch. 2) that they cannot “sanctify [the red heifer],” (Parah ch. 5) and that they cannot “lean [on sacrifices];” (Menachot ch. 9) presumably this is because they have no obligation to hear the megillah, or purify via the red heifer, or bring sacrifices, and why but because they have preceptually limited obligations. Additionally, the שוטה is listed without rationale as exempt from appearing in Jerusalem at festivals in the mishnah, (Chagigah ch. 1) as well as in the Mekhilta (ch. 20) which outlines the specific exemptions of other categories from the commandment.

We will continue by exploring the tosefta and talmudic sources, tracking the evolution of the definitions and legal ramifications of the cases חרש and שוטה. We will delve into philosophical and technical discussions as we move towards a comprehensive framework for dealing with contemporary חרש and שוטה cases. As the חרש and שוטה — which were often distinct in early sources — converge in the mishnah, will they change again? Wherein lie the originators and resolvers of the modern conundrums confounding all and driving this summer’s SBM?

Every faction that exists for the sake of Heaven – will ultimately endure;

content.

A REINTRODUCTION to HALAKHIC MAN – Part 1

Rabbi Joseph B. Soloveitchik’s Ish HaHalakhah dominated the landscape of Modern Orthodox hashkafah for years.  More precisely, an image arising out of a partial understanding of the work dominated that landscape.  This image closely approximated the epigraph of the book – “the image of his father’s face appeared to him in the window” – which is to say that it caught the core of the Rav’s portrayal of his father and grandfather.  It had enormous value in explaining, validating, and valorizing the character of the Eastern European Talmudic scholar to an American Jewish culture with a tenuous-at-best relationship to rigorous traditional Torah study, and in more generally presenting halakhic dedication as enabling rather than inhibiting the development of a rich internal life.

Ish HaHalakhah’s influence far outstripped the range of those who actually read the book, let alone of those who read it in the original Hebrew.  Many eager readers (myself as a teenager, but I don’t think I’m projecting) gave up when they hit untranslated Greek characters in the opening pages.  So it can be no surprise that, as with all hyperintellectual books that become cultural touchstones, some errors and loss of context were the price of popularization. 

Such distortions are calibrated to the needs and desires of their time.  As a culture changes, they reverse roles and make the book’s message less rather than more accessible.

Here are three common perceptions related to the book that I contend are incorrect:

1) The Ish HaHalakhah represents the highest form of Jewish religiosity, rather than one among many powerful forms

2) Halakhah is the only form of access to the Divine Will that Orthodoxy should acknowledge, and there is no religious meaning to acts or intentions that are not channeled through the intellectual frameworks and practical mandates of halakhah.

3) The Ish Hahalakhah has no interest in determining Halakhah.  When the Talmud records halakhic disputes, he seeks only to explore the conceptual underpinnings of each position.  The same is true with regard to disputes among later commentators and decisors.

Let us begin with the question of whether the Ish HaHalakhah reflects the highest form of Jewish religiosity.  My evidence against this hypothesis is the book’s own description of its eponym, on page 15.

תעודתינו במאמר זה היא לחדור לתוך כבשונה של תודעת איש ההלכה ולעמוד על מהותו של טיפוס "מוזר ומשונה", המתגלה לעולם מתוך ד' אמותיו "המצומצמות", כשידיו מלוכלכות בשפיר ושליא.  ברם כדי לצאת ידי חובתינו במסה זו עלינו לפתוח בביאור סירטוט אופייני וקו יסודי בהשקפתו האונטולוגית של איש הדת בהשוואה אם איש הדעת - שמתוכם של השינויים וההבדלים שבין שניהם, נכיר את בעל הוויות אביי ורבא.

This section is translated as follows on pp. 4-5 of Dr. Lawrence Kaplan’s magisterial translation, Halakhic Man:

Our aim in this essay is to penetrate deep into the structure of halakhic man’s consciousness and to determine the precise nature of this “strange, singular” being who reveals himself to the world from within his narrow, constricted “four cubits” [Berakhot 8a], his hands soiled by the gritty realia of practical halakhah [see Berakhot 4a].  However, in order to fulfill the task, we must undertake a comparative study of the fundamental and distinctive features of the ontological outlooks of homo religiosus and cognitive man.  For only by gaining an insight into the differences and distinctions existing between these two outlooks will we be able to comprehend the nature of halakhic man, the master of Talmudic dialectics.

It is almost impossible for translations to capture allusions, especially when the alluded-to text is less known than the alluding text.  “master of Talmudic dialectics” is certainly more helpful to most audiences than “master of the challenges of Abbaye and Rava”.  But readers of the English have no way of knowing that the Rav is citing language from Talmud Sukkah 28a., and I contend that in this case the allusion is critical to meaning.  Here is the Talmud:

A beraita:

Hillel the Elder had eighty students –

Thirty of them were fit to have the Divine presence rest on them as it did on Moshe Rabbeinu;

Thirty of them were fit to have the sun stand still for them as it did for Yehoshua bin Nun;

Twenty of them were intermediate.

The greatest of them was Yonatan ben Uziel;

the least of them was Rabban Yochanan ben Zakkai.

They said regarding Rabban Yochanan ben Zakkai that he did not leave aside

mikra or mishnah,

gemara, halakhot, and aggadot

didkdukei Torah and dikdukei Sofrim,

kalim vachamurim and gezeirot shavot

tekufot and gematriot,

the discourse of the ministering angels

the discourse of demons

the discourse of dekalim

parables of washermen

parables of foxes

great thing

lesser thing.

What is the meaning of great thing?  The Making of the Chariot;

What is the meaning of lesser thing?  The challenges of Abbaye and Rava . . .

Many of the elements of Rabban Yochanan ben Zakkai’s curriculum are obscure, and can only be identified speculatively.  But there is no ambiguity about the status of “the challenges of Abbaye and Rava” relative to the status of “the Making of the Chariot”; it is davar katan, a lesser thing.

It follows that the Ish HaHalakhah, as the master of “the challenges of Abbaye and Rava”, is not the equal of one who is a master of “the Making of the Chariot”, and we have demonstrated that the Ish HaHalakhah is not the highest form of Jewish religiosity.

This naturally raises the question: Who is the master of the Making of the Chariot?

This question was the subject of great medieval controversy.  Rambam Laws of the Foundations of Torah 4:13 identifies the making of the Chariot with rational metaphysics, and he was sharply criticized for this by those who identified it with mystical experience instead. It is true that Ish HaHalakhah points out repeatedly that its eponym is not interested in either rational metaphysics or in mysticism.

But I contend that the Rav held a third position.  Rather, the key to the Rav’s hierarchy lies in a seeming paradox that Lord Rabbi Sacks raised many years ago: The Ish HaHalakhah would clearly have no interest in reading the Rav’s book about him, let alone in writing it!  I contend that for the Rav, the master of the Making of the Chariot is the author, not the subject, of the book.      

In a subsequent installment, I will seek to justify that claim on the basis of Halakhic Mind.  But I will first seek to demonstrate the incorrectness of the other two misperceptions listed at the outset of this essay, on the basis of Halakhic Morality and the Rav’s lomdishe account of semikhah, respectively.  Please stay tuned, and I very much welcome anticipatory questions, challenges, and comments.

Shabbat shalom!

Purim, Anti-anti-semitism, and Modern Orthodoxy[1]

Megillat Esther opens with a massive all-male drinking party at King Achashverosh’s palace, then cuts to an all-female drinking party at the queen’s palace.  Disaster strikes when the king demands that Queen Vashti switch parties* while “wearing the crown of royalty, so as to show the nations and the officers her beauty”.  The midrashic suggestion that she was ordered to come wearing only the crown captures the atmosphere of the verse perfectly, although the specific facts necessary to create that atmosphere may well be culturally dependent. 

                Vashti refuses, and the king (at least) banishes her and removes her queenship.  It’s not clear whether we are supposed to sympathize with her (in which case her role in the story is to help establish Achashverosh’s character and explain Esther’s handling of him), ignore her, or celebrate her downfall (thus the midrashim which suggest that Achashverosh was essentially imitating her humiliation of Jewish women).

                A key question is whether Achashverosh’s demand of Vashti is a breach of Persian morals or not.  If it is, it generates a whole social breakdown, as all the virgins in Persia are now put on display for the king, and all the women are put on notice that they may not refuse any of their husbands’ requests.  Ironically, it is precisely this breakdown that enables the reversal of fortune at the megillah’s end – Esther invites the king and Haman to drinking parties, and Haman’s fate is sealed when the king reasonably suspects that such drinking parties lead to debauchery.

                Now how do the Jews relate to all this?  The midrash reasonably assumes that they participate in the party (the midrash also notes that no reason is given for the party, and suggests that it was about the failure of the promised Jewish redemption to arrive – thus the use of כלים מכלים שונים in 1:7, which the midrash identifies with the Temple vessels), and there is no hint in the text that they object to the chauvinist decree or the taking of the virgins.  To all accounts they participate כדת*, in accordance with the law – a term which appears in 1:8 (describing the drinking), in 1:15 (regarding Vashti’s fate), and in 2:8 and 2:12 (regarding the collection and preparation of the virgins, described as “in accordance with the דת of women”). 

                But Haman does not see it that way.  The Jews, he declares in 3:8, have different דתs than any other nation (ודתיהם שונות מכל עם – note that the word שונות recalls וכלים מכלים שונים, and is likely a basis for identifying those with the Temple vessels), and they do not follow the דתs of the king.  Is Haman correct?  Or is this an anti-Semitic projection?*  Regardless, in 3:15 the king’s דת becomes that the Jews are to be exterminated.

                The truth is that one Jew – Mordekhai – refuses to obey one order[2] of the king – bowing down to Haman.  I suggest that Mordekhai sees Haman as ambitious and a threat to the king, whose life Mordechai has already saved.  ונהפוך הוא – it is Mordekhai’s loyalty that exposes him to the charge of being a Vashti.  At the same time, we learn that Haman may be somewhat hen-pecked, despite the king’s banishment of Vashti.

                In 4:16, the plot turns when Esther agrees to approach Achashverosh אשר לא כדת, after protesting that all the people of all the nations know better.  In other words, she makes Haman’s charge true – her דת is not the king’s, and different from those of all other nations.  In 8:13 the king overwrites his דת of extermination, and in 9:13 we learn that the new Jewish דת involves hanging the ten sons of Haman.

                Is that all there is to Persian Judaism – does ונהפוך הוא (see 9:1) change only who’s on top and who on bottom, but not the nature of society?          

                As of 8:17, that seems to be the case – the Jewish reaction to victory is – a drinking party!*  In which they are apparently joined by many nonJews, who are now afraid of them.  In other words, they have become Achashverosh.

                But in 9:19, a new feature (mitzvah – דת?) is added to the day – now in addition to the drinking, there must also be mishloach manot, reflecting some recognition of community,  and in 9:22, a radically new דת – מתנות לאביונים, gifts to the poor.* 

                Until 9:22, the Megillah is a court farce, and one might be forgiven for thinking that the entire plot relates only to the wealthy elite –perhaps the extermination plan seemed total to them because they simply didn’t consider the poor.  But over time, the Jews – perhaps prodded by Mordekhai and Esther – recognize that this episode should cause them to question the whole moral structure of Persian society, and so their דתות in fact become different than those of other nations.*  .  (If I were a dyed in the wool liberal I would connect this to Mordekhai raising taxes as well, but I’m not.) 

                Most specifically, the Jews become the antithesis of Amalek, which attacks specifically the weak.*  We reject the evolutionary imperative and preserve those who cannot protect themselves.

                The challenge of this reading is that it makes anti=Semitism the spur of Jewish morality.  We are blessed to live in a society in which caring for the less fortunate or less able is an almost universally agreed upon דת, although we disagree strongly about how best to accomplish that.  But there are other areas in which there is profound pressure to fall into step with the immoral moral expectations – the דתות – of the society that surrounds us.         

This is especially true of Modern Orthodoxy.  I confess that the first chapter of the Megillah always puts me in mind of a group of male Orthodox college students I once knew who would drink themselves into oblivion each Friday night, but tried hard to send the female students home (to their own parties?) before they completely lost control over their behavior.

                Nonetheless, I don’t think that self-ghettoization is effective, and it has its own corruptions.  The yetzer hora (evil inclination) finds its way through cracks in the walls, and is all the more effective when unrecognized. 

But openness to influence must be balanced with a firm sense of identity and moral self-confidence – we must be willing to be out of step, even if that causes us to pay a heavy social price – even if we are no longer invited to the parties, or lose influence in political parties.  “Everyone thinks that” is no more an excuse for us than it was for Esther.

Moral and Other Sevarot

A fundamental premise and moral of Talmud study – the one lesson without which (in my humble opinion) one has learned little or nothing – is that reason (practical and pure) and revelation need each other.  It is arrogance to believe that one can discover the truths of Torah simply by looking into oneself or by unaided contemplation of the world; it is megalomania to believe that one can understand Torah without the mediation of human intellect.  

Our tradition demands that we develop a dialectical epistemology, an approach to truth that balances and interweaves autonomous investigation with acceptance of the received Word.

Talmud is often taught and learned without explicitly referencing this issue, and “dialectical epistemology” is not a self-explanatory phrase.  So I’ll try to provide in this week’s essay a clear illustration of what I mean.

Bava Kamma 46b records a halakhic dispute between Symmachus and the Sages in the following case:  An ox gored a pregnant cow to death, and the cow was found next to its stillborn calf.  Do we presume that the stillbirth occurred before the goring, or rather that it was caused by the goring?  Symmachus says that the issue is in doubt, and so the gore-r pays half of what he would pay were his responsibility clear; the Sages say המוציא מחבירו עליו הראיה = “The one who wishes to take something away from his fellow has the burden of proof”, and so the gore-r pays nothing.

Several hundred years later, R. Shmuel bar Nachmani asks: What is the Biblical source for the Sages’ principle?  He responded by citing Exodus 24:14.

וְאֶל־הַזְּקֵנִ֤ים אָמַר֙

שְׁבוּ־לָ֣נוּ בָזֶ֔ה עַ֥ד אֲשֶׁר־נָשׁ֖וּב אֲלֵיכֶ֑ם

וְהִנֵּ֨ה אַהֲרֹ֤ן וְחוּר֙ עִמָּכֶ֔ם

מִי־בַ֥עַל דְּבָרִ֖ים יִגַּ֥שׁ אֲלֵהֶֽם –

יגיש ראיה אליהם.

To the Elders he said:  

Sit for us in this situation until we return to you

and behold Aharon and Chur with you

whoever is a baal devarim (= plaintiff) yigash (=will draw near) to them –

meaning that he will draw-near a proof to them.

R. Ashi then attacks Rabbi Shmuel bar Nachmani’s premise:

הא למה לי קרא!? סברא הוא!?

דכאיב ליה כאיבא, אזיל לבי אסיא!?

Why should a verse be needed?!  This can be derived from sevara (=reason)!?

The one who experiences the pain goes to the house of healing!?

Rav Ashi’s attack appears to be based on the claim that unaided practical reason can reliably derive some Halakhic truths.  The relevant halakhic truth here seems roughly equivalent to “Possession is nine-tenths of the law.”  Since not all halakhic truths can be derived in this way, Revelation is still needed, but only to supplement reason.  We therefore expect Rav Ashi’s attack to be followed by an understanding of the verse as teaching such a supplemental truth, and we are not disappointed:

אלא קרא לכדר"נ אמר רבה בר אבוה,

דאמר רב נחמן אמר רבה בר אבוה

מניין שאין נזקקין אלא לתובע תחלה,

שנאמר:

מי בעל דברים יגש אליהם –

יגיש דבריו אליהם.

Rather, the verse is needed (as the basis) for R. Nachman in the name of Rabbah bar Avuha,

for R. Nachman bar Avuha said:

What is the Biblical source for the principle that we take cognizance only of the plaintiff initially?

Scripture says:

Whoever is a baal devarim (=the plaintiff) will yigash (=draw near) to them –

meaning that he will draw-near his words to them.

This new conclusion seems unrelated to its predecessor; rather than establishing who has the burden of proof, it establishes a principle of judicial procedure.  However, Rashi draws a connection:

כגון

ראובן תובע משמעון מנה שהלוהו (בעדים או בשטר)

ושמעון משיבו 'תפסת משלי - החזר לי מה שתפסת',

או

'משכון היה בידך ונפחת מדמיו, שנשתמשת בו' –

בתחילה נזקקין לטענת ראובן ומוציאים לו המנה משמעון,

ואחר כך נזקקין לו לטענת שמעון לדון על דבר התפיסה והמשכון.

An example (of taking cognizance only of the plaintiff initially) is

Reuven sues Shimon for a mana that he has lent him

Shimon replies: ‘You (illegitimately) seized something of mine -  return what you have seized’

or

‘You had my pledge in your possession and it lost value, because you made use of it' –

We initially take cognizance of Shimon’s claim and extract the mana from Shimon for him,

and afterward take cognizance of Shimon’s claim to judge the matter of the seizure or the pledge.

According to Rashi, Rav Nachman is not introducing a new axis.  Rather, he introduces a special circumstance in which Rav Shmuel bar Nachmani’s principle is true but its implications are not obvious.  What happens when the defendant counterclaims, and offers to bring proof?  The verse teaches that the burden of proof needs to be met only with regard to specific claims, rather than to the general financial balance between the parties.  To extract money from Shimon, Reuven needs to prove only that Shimon’s owes him, even if the possibility remains that he has equal or greater counter-obligations.  

Rav Nachman’s statement should end the sugya.  Instead, the Talmud cites an astonishing coda:

אמרי נהרדעי:

פעמים שנזקקין לנתבע תחלה.

והיכי דמי? דקא זילי נכסיה.

The Nehardaens say:

Sometimes we take cognizance of the defendant initially.

When is that?  When his assets are losing value.

Rashi provides two illustrations of losing value.  

1. when Shimon has a deal in place to sell the object he is counterclaiming from Reuven.  

2. when Shimon is under financial pressure and will have to sell his real estate at a below-market price in order to pay Reuven.  

The common denominator of these cases is that the Nehardeans disregard R. Nachman’s clarification when they see it as generating injustice, despite its Biblical derivation, and even though their standard of injustice is derived solely from intuition.  What entitles them to do this?

With this question in hand, let us return to Symmachus and the Sages, and ask an almost opposite question.  If the Sages’ principle is so obviously true that no verse is needed to teach it, how could Symmachus disagree with them?  

The answer is that Symmachus also addressed a special case.  How heavy is the burden of proof?  In many areas of halakhah, a probabilistic argument (=rov) is sufficient – if it can be demonstrated that possibility X is more likely than possibility Y, halakhah will treat X as true.  Symmachus held that such a demonstration was also sufficient for the purposes of extracting money, but the Sages disagreed.  (Perhaps the Sages believe that Revelation is needed to overrule Symmachus.)

ROSH (Bava Kamma 5:1) collects several interpretations that disagree with Rashi’s.  Rabbeinu Tam, for example, thinks that Reuven’s claim must be for personal injuries rather than property damage, and ROSH thinks that in such a case Shimon doesn’t even get the standard 30-day stay of judgment to collect exculpatory evidence.  RIVA interprets “taking cognizance of only the plaintiff initially” as meaning that the plaintiff gets to put his full case on before the defendant rebuts, and wins the case even if the defendant plausibly claims that his witnesses died or left town owing to the delay.  RAAVAD interprets it as giving the plaintiff the right to suspend his case indefinitely without prejudice, even if the defendant asks for a verdict.  

What matters for us is ROSH’s summary comment:  

וכל הני פירושי סלקי אליבא דהלכה

דסברות גדולות הם:

All these interpretations come out in accordance with the halakhah,

because they are in great accord with reason (=sevarot gedolot).

What sort of reason?  Remember that Rav Ashi gave what appeared to be homespun wisdom via analogy – the burden of proof is on the plaintiff, as why should the healthy party (=the party in possession) go to the doctor (=beit din)?  Shitah Mekubetzet cites Rav Yehonatan as offering a very different interpretation:

כלל גדול נתן משה רבינו עליו השלום לשבעים זקנים ואהרן וחור

שלא ידינו שום אפוקי ממונא בדעת מכרעת וברובא

אלא בראיה.

סברא הוא דכאיב ליה כאיבא אזיל לבי אסיא –

לא היה צריך משה להזהירן,

דפשיטא הוא דלא גרע דין אחד ממשפט הרופאים,

שאין הרופא דן את החולה לפי סברתו לבדו

עד שאומר לו החולה 'ראשי כבד עלי ובמקום פלוני', 'ומשתנה עלי במקום פלוני למקום פלוני',

ולפי שהוא מראה לו פנים הוא דן אותו

כך התובע צריך להראות לו פנים שתביעתו חזקה וברורה

כלומר בעדים.

Mosheh Rabbeinu of blessed memory gave a broad principle to the seventy elders and Aharon and Chur

that they should not extract any money judicially on the basis of compelling reason or probability

rather (only) via proof.

But (Rav Ashi held that) “the one who experiences the pain goes to the house of healing”

and therefore Mosheh did not need to command them about this,

since it is obvious that legal judgement does not require less care than medical judgement,

and a physician does not judge the patient on the basis of his unaided reason

rather he waits for the patient to say “My head is heavy and hurts in that place”, or ?

and he judges in accordance with what the patient makes apparent to him

so too the plaintiff must show that his claim is strong and clear,

namely via witnesses.

According to R. Yehonatan, reason teaches that one cannot extract money on the basis of reason alone!

Bottom line: Reason can be a source of halakhic truth.  When this appears to make a verse of Revelation redundant, we may interpret that verse as limiting or countering the halakhic truth derived from reason.  But this does not shake our underlying epistemological faith in reason, so we may limit that limit on the basis of reason.  This cycle can and should be iterative.  Shabbat shalom.      

Dear Rabbi Klapper,

In the last number of years the question of women's role in spiritual leadership in the synagogue in the Modern-Orthodox community has been a contentious issue. The issue has touched on both halakhic discussions as well public policy concerns, the pace of evolution in the halakhic community and "political" concerns related to relationships with other segments of the community. Wherever one falls on the question of the wisdom of whether move "x" or "y" should have been done at point "a" or "b" in the last five years, certain realities now exist in a number of shuls throughout North America. To that end I would like to hear your perspective, in writing, on the following questions:

1. On a halakhic level, do you believe that an Orthodox shul that employs a God-fearing, observant, learned woman in a clerical role, consistent with the shul's understanding of kedushat beit haknesset and within the other parameters of Orthodox halakha (e.g mehitzah, use of traditional prayerbook etc.) fully retains its status as an Orthodox shul and "mikdash me’at"?

2. What is your view, if the woman employed fills the exact same role as in #1 but uses the title "Maharat"?

3. What is your view if the woman employed plays the exact same role but also has the title "Rabba" or "Rabbi"?

Kevod Horav X,

I am honored by the request you convey, and will do my best to convey my opinion.  I hope it will be helpful as the Orthodox community ponders these weighty issues.

On issues of such moment and controversy, clarity and nuance are both vital.  I will therefore begin by stating two bottom-line commitments as clearly as I can, and then proceed to nuanced analysis.  Here are those commitments:

1.  It is necessary and positive for women to be hired as religious professionals in Orthodox communities.  Any such role can be defined as “clerical”; therefore I oppose any blanket ban on women playing clerical roles.  

2.  It is necessary and positive for Orthodox women to attain semikhah-level competence (and far beyond) in Talmud and halakhah.  Women who attain such competence must be given titles that attest to their achievement, for both practical and ethical reasons.

And now for the nuanced analysis:

One challenge in dealing with the question as formulated is that so many of the terms used have no direct halakhic translation.  For example, the category “clergy”, and the term “clerical role” are English words derived from categories external to Judaism.

The question of whether hiring women to play “clerical roles” violates halakhah is therefore one of definition.  Those who seek to exclude synagogues with female clergy will argue that such women will inevitably, now or in the near future, play all clerical roles; those who seek to include such synagogues will argue that all such roles will be tightly circumscribed in accordance with “mainstream” halakhah.  The flexibility of the category even within Orthodoxy is easily demonstrated by a review of the literature about the parsonage tax privilege.

Another challenge is that “Orthodox” is not identical with “halakhically defensible”.  Shuls have been accepted as Orthodox that engage openly in halakhically prohibited behavior, and “Orthodoxy” can legitimately choose to exclude synagogues for halakhically defensible behavior that it deems immoral, unethical, or unwise.  Orthodoxy is a religious coalition whose parameters are legitimately determined by hashkafah, realpolitik and sociology as well as halakhah.

Mikdash me’at is somewhat different.  The term is almost certainly a melitzah, but it may be one with a halakhic definition, namely that what takes place within it fulfills the obligation of avodah shebelev, and that we would encourage someone to daven there betzibbur rather than davening alone.  

By way of illustration: I believe that there has been an Orthodox consensus for some time that one should rather pray alone than pray in a mixed-pew congregation, and a plausible argument that one who prayed in a mixed-pew congregation is obligated to pray again.  By contrast, the famous proclamation that one should choose to not hear shofar on Rosh HaShannah than to hear it in a mixed-pew congregation is hard to justify on technical halakhic grounds, as to my knowledge no one has argued that a mehitzah is necessary for shofar-listening.  Rather, that proclamation must be understood as an attempted or actual takkanah, a legislative act by prominent rabbis who believed themselves to be broadly accepted as having such authority,

There is a reasonable ongoing prudential debate as to whether the titles given to women with semikhah-level competence in Torah and halakhah should include “rabbi”, רב, רבי, or an obvious feminine analogue such as רבה.  Those in favor argue that only such titles can create the proper equal respect for Torah scholarship etc.; those opposed argue that such titles will create a presumption that women can play all roles currently played by male rabbis, and that this presumption is false.  However, the legal arguments about whether one can give “semikhah” to someone who cannot fulfill all the roles of a “samukh” generally relate to intellectual competence, not to personal status issues such as gender, and have long been decided in practice on the side of minimal qualifications.

The prudential argument can only be settled authoritatively by a legislative act that enjoys consensus support within Orthodoxy.  I am not currently aware of any such act.  Therefore, while it is perfectly legitimate to oppose such titles with might and main, I think it is incorrect to say that the granting or acceptance of such titles is per se a violation of halakhah.  This is true kal vachomer of newly minted titles such as Maharat.  

Therefore, I think it would be greatly overreaching to declare that a synagogue that hires a woman as a member of its clergy, and calls her “rabbi”, has thereby violated halakhah, or that one who prays with a minyan in such a synagogue does not fulfill the mitzvah of tefillah betzibbur.  It remains a mikdash me’at, even if one thinks it has erred.  בדידי הוה מעשה - I myself have willingly davened in such shuls, without halakhic qualms.

The question of whether it remains an “Orthodox shul”, however, is very different – one can be halakhic on an ideological island, but one cannot meaningfully be Orthodox if the rest of what one recognizes as “Orthodox” excludes you.  It is also possible for such exclusion to eventually have a legislative as well as a sociological impact, and certainly more strident opponents will aim for and claim that impact.  Synagogues considering such innovations must consider the risks and rewards of their choices, as must the opponents of such innovations.

This cheshbon will necessarily be affected by one’s opinion as to the qualifications, piety, and observance of the women who have assumed these titles and positions or are likely to do so in the future.  If, for example, the most qualified, pious, and observant women are less likely to use the title “rabbi”, it seems foolish to fixate on the title.

I have a further difficulty with the question as formulated.  You ask my opinion solely about cases where the clerical roles in question are “consistent with the shul's understanding of kedushat beit haknesset and within the other parameters of Orthodox halakha (e.g mehitzah, use of traditional prayerbook etc.”  The problem, of course, is that the shul’s understanding of these concepts may differ from that of those who oppose hiring women for such roles, and its understanding, played out in practice, may have halakhic ramifications.

Note also that I have made no effort here to explicate which if any roles of the samukh or rabbi are not available to women, or to limn my own definition of kedushat beit knesset.  I am in the course of addressing some of the technical issues in my ongoing series on women and serarah.  But I want to set out here three negative principles.

1. The halakhic consensus among religious Zionists is that Golda Meir could legitimately become Prime Minister of Israel.  At the least it must be acknowledged that many significant halakhic figures held this way.  Any limitation on women’s roles based on a concept such as serarah must be tested for plausibility against a sentence such as “women can be Prime Minister of Israel but not President of a Young Israel”, which to me is self-evidently absurd.

2. There is no halakhic barrier to women issuing halakhic positions in areas for which they have been properly trained, and very likely there are situations in which they are obligated to do so.

3. There is no reason that women cannot play the pastoral roles that make up the bulk of the duties of the contemporary synagogue rabbinate.

In the hope that this is useful to klal Yisroel and that I have not erred in my interpretations of Torah

Aryeh Klapper

15 Tammuz 5776/July 21, 2016

ORDINARY HEROISM?

Rabbi Aryeh Klapper, Dean

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