Rabbinic Authority and Public Policy

by Shira Hecht-Koller, Esq.

Introductory note from Rabbi Klapper: Shira Hecht-Koller has become an essential voice on issues of Orthodoxy and gender. I am deeply grateful for her wilingness to take the time to respond to my article.

Rabbi Klapper’s article, “Are Partnership Minyanim an Orthodox Phenomenon,” argues that although “it seems…reasonable to concede from the outset that an intellectually plausible argument can be made for the practice of giving women aliyot,” this does not suffice to make this practice “Orthodox.” For that, Rabbi Klapper says, the submission to authority is also needed, and it is not yet clear that partnership minyanim and the people who comprise them do in fact submit to rabbinic authority.

It is salutary that Rabbi Klapper makes it clear at the outset that the deepest issues in the ongoing discussion about partnership minyanim within the Orthodox community revolve primarily around issues of sociology and public policy. The leaders of these minyanim are committed to halakha and to the halakhic tradition, and from the beginning the initiatives have grown out of intensive study of the halakhic sources. As we know, the process of arriving at normative halakha is not a scientific one, and there has always been room for a plurality of halakhic opinions. This does not of course mean that any halakhic opinion is acceptable, but as Rabbi Klapper says, it does mean that there are legitimate halakhic views, that are “not demonstrably wrong,” that still may not be accepted as normative. The question, then, of course, is what allows a view to move from possible to normative.

The fundamental issue raised by Rabbi Klapper’s piece is the nature and source of religious authority. In order to articulate how important this issue is, though, let me begin with the question of terminology. As Rabbi Klapper points out, “There is no magic in the word ‘Orthodoxy’.” So a first step towards a deeper analysis of the explicitly sociological issues would be an attempt to better understand what is at stake beyond a mere word. Rabbi Klapper distinguishes between “Orthodox” and “religious” or “halakhic legitimacy.” This distinction is unclear, and this then clouds the rest of the discussion. If there are “halakhically legitimate” practices that are non-Orthodox, one begins to wonder what the value of “Orthodoxy” is as a label. Has it been reduced to just politics, to the question of membership in certain organizations? Perhaps this is obviously true.

Rabbi Klapper certainly agrees with this basic point: there is something other than pure halakha that defines Orthodoxy. I can well imagine a pure “halakhic man” looking quizzically at this statement. What is this “Orthodoxy” if not a group of Jews in the modern world who have committed themselves to not compromising on matters of halakha, to resisting the temptation to abandon the halakhic tradition, and to insisting always on rigor and depth of halakhic thought and analysis when approaching the world? But even a less rigid worldview may argue that halakha includes within itself numerous extra-legal categories and norms. These are not what Rabbi Klapper leans on, however. He concedes that within halakha, as expansively as that might be applied, there is a plausible case to be made for the legitimacy of partnership minyanim. It is outside of halakha that Rabbi Klapper’s concerns are to be found.

This then leads us to the central question raised by Rabbi Klapper’s analysis: the nature of the extra-halakhic authority on which “Orthodoxy” is said to depend. This authority is placed front and center by Rabbi Klapper in the discussion of what makes a practice Orthodox and legitimate (these terms are interchanged on p. 2). Rabbi Klapper refrains from using the term “rabbis” for those with this authority, presumably because of his stated belief that women with appropriate training and experience should have equivalent authority as their male counterparts – a belief that I think is so well justified as to be almost beyond question. (If only the reality reflected this already!) Instead, he speaks repeatedly of “Orthodox halakhic authorities,” whose approval is needed to make a practice Orthodox. But this brings us to the crux of the question: why should halakhic authorities, male or female, be authoritative on non-halakhic matters, on matters of public policy?

In my view, it is precisely this question that had led to the sense of a “break” within the community. Leaders of partnership minyanim often feel that many halakhic authorities are not sufficiently sensitive to some of the relevant policy and communal factors. When the issues are not halakhic in nature, on what basis do halakhic authorities have authority?

It should be clear that for halakhic questions that do not relate to gender issues (e.g., the kashrut of a sefer Torah, the latest time to eat se‘uda shelishit, etc.), participants in partnership minyanim respect rabbinic authority as much as anyone else. But when it comes to the question of women’s roles, my sense is that many participants in these minyanim feel that deferral to rabbinic authority simply means conceding that nothing will be allowed. This sense of alienation comes from exactly the point Rabbi Klapper makes at the beginning: rabbis forbid practices despite being halakhically permissible, because of their views on public policy, sociology, and a whole suite of other fields.

Of course, it was once true that rabbis (for then there were only rabbis) were entrusted with guiding the community in all sorts of matters. However, it is no longer necessarily the fact that rabbis are more educated than others in the community in anything other than Torah. A rabbi would be foolish to preach on matters of politics in front of the political scientists in his community, or to comment on the medical findings of the week without consulting the doctors. When it comes to Jewish public policy, too, there are professionals and there are experts, and these may or may not be the halakhic authorities. If the question is whether a practice is halakhically acceptable, the halakhic authorities ought to be the decisors. But if the question is one of policy, where does that authority lie?

I will conclude with a question, returning to the question of the terminology. Rabbi Klapper mentions that some people might just like the social networks afforded by the Orthodox community, but that for others the attraction is a personal commitment to halakhah. Is it important to people whether they are called “Orthodox” by others? If they live by halakhah but are judged to have left Orthodoxy, what would the results be?

Shira Hecht-Koller, Esq. teaches Talmud and Comparative Medical Ethics at SAR High School and is a Founding Member of the Orthodox Leadership Project. 

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