See here for a collection of highlights from Rabbi Klapper’s weekly Divrei Torah from 2017!
Monthly Archives: December 2017
We’re excited to share the 2017 Alumni Divrei Torah Snapshots, which feature highlights from CMTL’s weekly alumni Divrei Torah written in 2017.
Check out the list of publications by Rabbi Klapper and our alumni, updated to include new publications in 2017!
We asked our alumni for their favorite pieces they wrote in 2017. This is what they shared with us.
This week’s alumni Dvar Torah is by Ezra Newman
Parshat VaYechi opens with Yaakov having a series of meetings with his son Yosef. In the second of these meetings, Yaakov asks Yosef to bring his sons Ephraim and Menashe to him, so that he can bless them. In the middle of this meeting, just after telling Yosef that Ephraim and Menashe will be sons like Reuven and Shimon to him, Yaakov adds an unusual interlude.
ז וַאֲנִי בְּבֹאִי מִפַּדָּן, מֵתָה עָלַי רָחֵל בְּאֶרֶץ כְּנַעַן בַּדֶּרֶךְ, בְּעוֹד כִּבְרַת-אֶרֶץ, לָבֹא אֶפְרָתָה; וָאֶקְבְּרֶהָ שָּׁם בְּדֶרֶךְ אֶפְרָת, הִוא בֵּית לָחֶם.
7 And as for me, when I came from Paddan, Rachel died unto me in the land of Canaan in the way, when there was still some way to come unto Ephrath; and I buried her there on the way to Ephrath–the same is Beth-lehem.’
The classical commentators struggle to understand the purpose of this interlude. The most common position, taken by Rashi and Ibn Ezra, amongst others, is that Yaakov is trying to explain to Yosef why Yosef should bury Yaakov at Maarat HaMachpelah, even though Rachel, Yosef’s mother, is not buried there. Yaakov is explaining to Yosef that he did not choose to bury Rachel on the roadside out of spite, but out of circumstance, and Yosef should not hold this against him when deciding whether to fulfill his father’s request to be taken back to the Maarah to be buried.
There is a fundamental problem with this interpretation, however: it takes the verse completely out of the context of the conversation. This meeting, the second of the parsha, is about Yosef’s children and inheritance, not about Yaakov’s burial. Yaakov and Yosef discussed his burial during the first meeting in the parsha. According to this interpretation, this verse should have been there, not here in the second meeting which is happening “after these things.”
What is actually happening in this verse is that Yaakov is explaining to Yosef why he has just proclaimed that Ephraim and Menashe will be sons to him like Reuven and Shimon. In this meeting, Yaakov is announcing to Yosef that he will be treated as the bechor/firstborn in the family, and will receive a double portion of the inheritance. This will be accomplished through Yosef receiving two portions (one for Ephraim and one for Menashe) in the land of Canaan, whereas every other brother will only receive one.
After telling Yosef that this is happening, Yaakov explains why. His explanation is simple: Yosef is the firstborn son of Rachel, his beloved wife. In the pre-Deuteronomic era, Yaakov was not required to give the double portion inheritance to the firstborn son of any wife; he was allowed to give it to the firstborn son of whichever wife he wanted, or possibly any son at all. Yaakov, who, as Genesis attests to, loved Rachel more than Leah, was perfectly free to give the double portion to the firstborn of his beloved wife. In fact, it seems likely that the Deuteronomic law banning giving firstborn inheritance to a later born son of a beloved wife is a direct response to this Genesis story.
Yaakov, therefore, feels the need at this moment to explain Rachel’s burial to Yosef. It’s possible that Yosef would have thought that Rachel was not actually Yaakov’s most loved wife. After all, Rachel died when Yosef was young, so he did not get to see much of his parents’ interactions. Additionally, Yosef was sold to Egypt when he was a child, and did not get to witness how Yaakov interacted with his sons over the previous period of years. And furthermore, Yaakov just informed Yosef in their previous meeting that he wants to be buried with Leah when he dies, not with Rachel. Yaakov therefore explains to Yosef that only circumstance forced him to bury Rachel on the roadside, as she was still his beloved wife, and Yosef will receive the firstborn double portion because of that.
Presumably the major commentators shy away from this approach out of a desire to not accuse Yaakov of disobeying a Deuteronomic law. But, al-derech-hapshat, this seems to me to be a more plausible reading.
Ezra Newman (SBM ’13) is from Silver Spring, MD and is currently a second-year law student at Harvard Law School.
by Rabbi Aryeh Klapper
When Yaakov feels his death approaching, he consciously recreates a scene from his grandfather Avraham’s life. He calls in a man who seems to have his complete confidence, gives him detailed instructions related to geography, and insists that he swear, not just verbally but by means of an impressive physical gesture of commitment, to uphold those instructions.
If you have complete confidence in an agent, why make him swear to uphold your instructions?
One possibility is to convey how important the issue is to you. A second possibility is so that the agent can convey to others how important the issue is to you.
Each of these possibilities seems a reasonable explanation of both forefathers’ actions. Avraham wants Eliezer to understand how important it is for Yitzchak to marry a woman from outside Canaan, and also to insulate him from any pressure to have the bride’s family meet Yitzchak first. Yaakov wants Yosef to understand how important it is for him to be buried in Hebron, and also to arm him against any attempt by Pharaoh to ‘suggest’ that a state funeral in Egypt would be a greater honor.
Yet Chazal in each case there also seems a third possibility, which is an unstated and perhaps even unacknowledged undercurrent of mistrust and even resentment.
When Eliezer asks Avraham what to do if the woman will not follow him back – Is he reflecting his disappointment that Yitzchak won’t marry his own daughter? Might he therefore have been less than wholehearted in his efforts to find a wife for Yitzchak in Charan?
When Yaakov demands to be buried in Hebron – does this remind Yosef of his own mother Rachel’s wayside grave, while Leah sleeps eternally in the family crypt?
The fact is that Yosef at first resists taking the oath. He says merely “I will do as you have said”, and swears only after Yaakov once again insists. Moreover, he never makes the physical gesture of commitment that Yaakov initially demands. Very likely it is for this reason that with his dying breath Yaakov commands all his sons to ensure his burial in Hebron, and that his very last words remind them that this will place him next to Leah.
These stories reflect the fundamental truth that trust and discretion are directly related. When you completely trust someone else, both their judgment and their motives, you give them goals and principles, not rules. Mistrust leads to rules.
This is why for most companies the first layer of customer service representatives cannot genuinely respond to anything about your specific case. They can only follow rigid scripts. You often have to reach multiple steps up the chain before speaking to anyone who can actually think about the case in terms of the corporation’s goals and values, i.e in terms of the purposes and intents of the rules rather than in terms of the rules themselves.
It should be clear that even at the highest level, the rules still play a role as rules, not just as resources that can be mined for information about goals and values. Even or especially the people responsible for making the rules need to abide by them. Customers need to know what they can reasonably expect when they buy a product. Workers need to have confidence that they are not enforcing cruel caprices. Executives need to be accountable to each other and to their boards, and boardmembers to stakeholders. Arbitrary power is bad for everyone involved. The exercise of arbitrary power leads to being subject to someone else’s arbitrary power, and the exercise of arbitrary power tends to corrupt absolutely.
So we need to distinguish as sharply as we can between arbitrary power and discretion.
All this applies directly to the realm of psak halakhah.
I think it is useful, and hopefully not trivializing, to think about halakhic authorities as the legal department of the Torah’s customer service operation. This will also help us acknowledge and recognize that halakhic authority can reasonably be conceived of in hierarchical terms. Some authorities can only work from rigid scripts; some from a much more flexible set of instructions; and some can genuinely consider whether the case in front of them fits any of the existing rules.
We can also understand from our own experience that the best corporations are those which vest genuine discretion even in their first-line representatives. The more layers one has to go through before one can talk to “a human being”, i.e. a person with the capacity to respond to your case in its individuality, the more frustrating and dehumanizing the experience.
The questions then are: What are the conditions necessary to build a halakhic system which maximizes discretion at every level of the system? How can we be transparent about the existence of discretion without creating the unreasonable and unsustainable expectation that every complaint will be resolved in the manner that the customer initially demands? How can we train halakhic authorities to exercise discretion without making them unaccountable to each other and to Torah, and without corrupting them? Make no mistake – arbitrary and unaccountable halakhic power is as corrupting as any other kind. Moreover, it tends to lead to a form of religious imperialism, in which halakhists conquer territory that might otherwise belong to other aspects of Judaism so as to expand the realm in which they can exercise their arbitrary and unaccountable power. Such imperialism will ironically often be justified on the ground of the need to limit others’ inappropriate use of halakhic discretion.
At Limmud UK this past Wednesday, I led a session titled “Should Torah Scholars have Authority?”. Leading such a session was inherently paradoxical. I started by insisting that we move into a circle, rather than having me stand apart from an audience. I made other substantive and I think effective efforts to ensure that we had a genuine discussion in which all positions could be respectfully heard. But I don’t deny having led, not merely facilitated. And I’m happy to report that I think we reached a consensus that we wanted to build a community in which Torah scholars had real, although certainly not arbitrary and unaccountable, authority. The problem was a fundamental lack of trust that Torah scholarship leads to better decisions, both in terms of the characters of the decisors and in terms of the ethical grounding of their decisions. This applied even to halakhic decisions in areas that have ethical implications.
This of course is not a problem limited to the UK. It is tempting to argue that it is – that after twenty one years, the Center for Modern Torah Leadership has accomplished all that needs to be done in the US, and all that needs to be done is to extend our reach. But that is far from the case.
I do believe, however, that we have made and are making a difference. I believe that our alumni have a better grasp of what needs to be done, and that they are creating a healthier environment for halakhah as community leaders and representative of Torah. I think it is reasonable to expect that their influence will grow as they grow.
It is vital that we support them – by creating opportunities and spaces for them to continue to learn with each other, by enlarging the community of alumni, by spreading the Center’s Torah widely so that they find fertile ground for genuine halakhic leadership wherever they go. Our work is sustained only by your support, and therefore is fully accountable to you. Thank you very much for your confidence.
The Center for Modern Torah Leadership is excited to share the 2017 CMTL Reader, a collection of the top works written by Rabbi Klapper and/or published by the CMTL in 2017. We hope you enjoy!
by Rabbi Aryeh Klapper
SBM 2017 Shaylah:
Kaila Adamah Jellison was a junior at Samuel Myerson High School when she suffered her first attack of manic-depressive illness.
It began with exhilaration. I had always been a highly competent and painstaking student, but prone to two-dimensional readings of texts and human beings. Suddenly I could see into the depths of literature and people, made giant intuitive leaps, and everything made so much sense! I still experience the world more richly as a result of that first week. But the crash came soon after. My limbs became concrete; my mind, an uncomprehending blank. Nothing made sense; nothing interested me. Then came an obsession with death – I wandered through the local cemetery for several nights in a row writing endless morbid poems and reciting kaddish at each gravestone that seemed to have a Jewish name . . . But no one in school seemed to notice anything amiss; I still don’t understand how.
A second attack came in graduate school, soon after her marriage to Marcus. This time the manic phase led to uncontrolled spending and impulsive rule-breaking; the depressive phase almost killed her.
I bought fountain pens – tens of fountain pens, because my ideas deserved to be expressed in perfect calligraphic form. I shoplifted some of them because the line at the store was too long. Then I started collecting wild turkey feathers and sharpening them into quills so that I could write the perfect Megillat Esther – and I did! . . . a few days later I was hallucinating, and thinking suicidally in very specific ways …
A psychiatrist put her on lithium, which worked. But for several years she would stop taking the pills whenever she felt good enough for a while – the highs were too seductive, and the lows no longer seemed real. She thought she could take them in time if her moods seemed to be spiraling out of control; but she was constantly in danger of falling completely over one cliff or the other. But one day in Elul, Marcus came home to find her in the grip of a paranoid/grandiose fantasy.
The world was out to get me; or maybe the world was broken, and only I could fix it, by repenting properly on Yom Kippur. But my whole community was conspiring to stop me . . .
Kaila was hospitalized on 28 Ellul, in a facility well out of walking distance of any motel or Orthodox community and with no space for guests and limited visiting hours. She is prescribed medication that makes her ravenously hungry. Her doctors say that while it is almost certain that she will return to normal moods soon, having caring visitors daily will probably lead to a significantly faster return to normalcy. They also warn that this is remission, not recovery, and that this cycle will happen again unless she succeeds in staying on her meds.
As you are a close friend of the family, and an informal halakhic authority of some repute, it is not surprising that when you visited that night, both Kaila and Marcus had questions they want to ask you:
- Is the megillah kosher?
- If I blow shofar for myself, can I make the berakhah?
- Should/may/must I fast on Yom Kippur?
- Can I take a cab to visit her on Shabbat and yom tov?
- Our minhag has always been for her to make the hamotzi on Friday nights. Can I be yotzei with her berakhah while she is hospitalized? (Was I yotzei with her berkakhot during these interim periods?)
Sometime before Pesach, with Kaila having been out of the hospital after Sukkot and medication-compliant since, she decides to write a magazine article about her experiences for the OUs Jewish Action, with the goal of destigmatizing mental illness in the Orthodox community. Jewish Action accepts the article and asks you if you’re willing to write up the answers you gave her, with your reasoning, so they can either publish or link to it. They also pass on that several rabbis on their advisory board expressed deep interest in reading as fully developed a teshuvah on the questions as you can produce.
Rabbi Klapper’s response:
Kaila and Marcus Jellison are an exceptional couple who deserve our admiration and gratitude. Their courage opens the space for a much-needed conversation about the spiritual and halakhic lives of the mentally ill and how they can best be included in our communities. I emphasize that we need to discuss all three aspects: halakhah, spirituality, and inclusion. My focus here will be on how halakhic deliberations and conclusions affect and are affected by all three aspects.
The halakhic tradition discusses mental disability primarily in one narrow and probably atypical context: the competence of a husband to issue a Jewish divorce. The context is narrow because divorce has no necessary connection to any other aspect of Jewish law. On the one hand, it requires an unparalleled type of mental “force” on the part of the husband. He must write or delegate the writing of the get in a fashion that imbues it with the semi-mystical quality of “lishmoh-ness”. This requires his willing consent and intent, and is often understood as requiring his physical presence. On the other hand, as my teacher Rabbi J. David Bleich has noted in the context of American constitutional law, a husband can produce a valid get without having any degree of religious intent or belief, so long as he understands its consequences within the realm of Jewish law for those who accept its authority.
Divorce law may also be halakhically anomalous with regard to issues of mental disability because it involves one of the supreme ethical imperatives within halakhah: the drive to free women from marriages that provide them with no companionship. A man who is declared incompetent to divorce will generally also be useless as a husband. The less relationally competent he is, therefore, the more pressure there is to declare him legally competent in the area of divorce. There may be correspondingly greater reason to declare him incompetent with regard to other areas of halakhah.
This brings us back to our initial triumvirate: From the perspectives of the spiritual and communal lives of the mentally ill, what are the central halakhic issues, and how are they best approached? 
For example, Kaila and Marcus asked two questions about blessings. The first was whether she was permitted to make a birkat hamitzvah before blowing shofar for herself on Rosh HaShannah. The second was whether she could make a birkat hanehenin on behalf of herself and another obligated adult.
It is possible to approach these issues from a purely technical, although humane and clever, perspective. For example, one might suggest a mimah nafshakh: If Kaila is competent, then she is permitted to make a birkat hamitzvah; if she is not, then she is not subject to the prohibition against making berakhot levatalah. So either way there is no reason for a posek to tell her not to make the berakhah before the shofar. Or a pragmatic workaround: Marcus can mutter the blessing under his breath while pretending to fulfill his obligation through Kaila. These are perfectly legitimate practical approaches to the issue at hand, and yet they require absolutely no consideration of Kaila’s spiritual life or communal place (even though they cater to her presumed psychological best interests).
A very different approach would ask: What sort of intellectual, emotional, or religious understandings or capacities are necessary to make these blessings meaningfully for oneself, and for others? To what extent is that meaning or meanings dependent on the religious reality of being obligated, or on the religious condition of being capable of obligation? To what extent should or must halakhic categories of obligation correspond to such spiritual and psychological realities?
Let me be clear that the answer to the last question is not obvious. For example, one strand of the tradition holds that blind people are exempt from all Torah obligations despite being perfectly capable of obligation. Some modern poskim continue to exempt deaf-mutes from all obligations on the grounds that this exemption is a rationale-less and therefore unchangeable halakhah leMosheh miSinai. Rav Mosheh Feinstein held (in one responsum; he appears to hold differently elsewhere) that anyone exempted from one mitzvah on grounds of mental incompetence is exempt from all mitzvot, even if they are fully competent with regard to those other mitzvot. A standard contemporary ruling is that adults with the mental age of kindergarteners are legally obligated in all mitzvot, even though they cannot be held more liable than kindergarteners when they transgress. So we have both exemptions and obligations that explicitly do not correspond to spiritual and psychological realities.
Nonetheless, I believe that it is generally best to pasken with a bias toward correspondence. We therefore must turn to Kaila’s realities.
Manic-depressive illness is not explicitly discussed in Rabbinic literature. The Rabbinic term shotah is defined in one core discussion by a set of actions that include one that may mark depression, sleeping in cemeteries, and another that may mark mania, going out alone at night. But there is no hint of bipolarity as a defined condition , let alone as a progressive disease with varying degrees of severity. There is of course also no discussion of its treatment, or of the status of manic-depressives in the various stages of taking effective medicines.
As SBM 2017 Fellow Shoshana Jakobovits correctly notes, manic-depressive illness is not a “secular” condition that can be evaluated in isolation from religion. Rather, at each stage it is often associated with religion. As with other mental illnesses such as obsessive-compulsive disorder, the expression of the disease in otherwise religious people is especially likely to take a religious form. Thus in our case Kaila said kaddish in graveyards while depressed, and learned safrut and wrote a Megillat Esther while manic.
We can therefore separate two questions:
1) What are the halakhic status and consequences of religious acts that are expressions of the underlying illness, recognizing that those actions are likely to be exaggerated expressions of “genuine” feelings?
2) What are the halakhic status and consequences of the religious acts of people suffering from mental illness, but which they plausibly contend are not expressions of the underlying illness?
Now we are not called on to discuss the kaddishes per se. We can presume that Kaila was aware that as a davar shebikedushah, the halakhah generally does not permit the kaddish to be said liturgically without a minyan present, and that in a neuronormal condition she would have abided by this halakhic restriction. It is accordingly clear that her illness is capable of causing her to violate halakhah in a manner that the Talmud likely would describe as העברה על דעתה, against her actual will. It is possible that this particular expression of the disease was wholly accidental, and she might equally well have violated any other halakhah. It is also possible that her underlying halakhic inhibitions would have prevented her from violating halakhah except in service to what seemed like a necessary positive religious outpouring. If the first hypothesis is correct, it seems to me likely that she must be ruled legally unaccountable for all matters. If the second is correct, we must address whether this distinction can become the basis for a coherent and plausible halakhic framework.
We must also discuss whether “legally unaccountable” should or must entail “not halakhically obligated”. As noted above, modern decisors have regarded adults with Down’s Syndrome as simultaneously legally unaccountable and halakhically obligated. However, perhaps the moral pressures in that case exceed those in ours. The Talmud also records the category of the tinok shehishbah, the Jewish infant captured and raised by non-observant aliens. As an adult, such an infant is legally unaccountable; he or she incurs liability for one sacrifice when they first commit a sin of appropriate severity, and incurs no further liability no matter how numerous or varied their sins. Rav Moshe Feinstein in one responsum states explicitly a position that seems implicit in much contemporary psak regarding American Jewry, namely that such an adult is nonetheless treated halakhically as fully obligated, and so can for instance make birkot hanehenin for other fully obligated adults. Perhaps then Kaila can also do so even if we rule that he is legally unaccountable for all matters. One might argue that she can do so kal vachomer, since her unaccountability may stem from an exaggerated spiritual sensibility rather than from the absence of any such sensibility.
But here it may also necessary to distinguish the stages of illness. In OCD, for example, the religious expression has no real connection to the mitzvah; the disease just seizes on available anxieties and amplifies them generically. In severe mania, this is also the case. But there may be a hypomanic point at which this is not so, or at least not so absolutely.
Many halakhic scholars have offered variations on a legal distinction between a person who is intrinsically not obligated, and one who is obligated-but-excused. This distinction may have concrete halakhic consequences, for example whether one may say a birkat hamitzvah. The category “shotah” has been assigned to each side of this divide, and other scholars have split the category, so that some shotim fall on one side and other shotim on the other. Some scholars have offered more theological distinctions, in which people can be categorized as religiously obligated even though not halakhically obligated. Such scholars may distinguish between rational and other commandments, for example. Each of these distinctions can be seen as relevant to our case.
The question of violating Shabbat to visit psychiatric inpatients can also be the subject of profound theological/halakhic discourse. Is it considered “life-saving” to restore someone to full sanity? If yes, does that mean that the insane are not fully alive (and how does one avoid the disturbing potential moral and halakhic implications of such a statement)? However, these are all moot in the present case. An in-patient for psychosis resulting from manic-depressive illness is at non-negligible risk for self-harm at essentially every moment. Any non-negligible possibility of speeding their return to neuronormalcy has the status of life-saving, and for a patient who expresses a desire or gratitude for visitors, visiting certainly has that possibility. As there is no issue of immediacy, care should be taken to violate Shabbat in the least halakhically severe way possible, but the underlying law is clear.
To conclude: My hope is that this synopsis honors the Jellison’s courage by jumpstarting overdue conversations among both scholars and laity, and by making our communities safer and more supportive spaces for members with mental illnesses. I pray that I have not committed any errors, and encourage readers to email me with questions or correction.
 A more complete, and yet still very preliminary, analysis of the underlying traditional texts and rulings can be found in my forthcoming Teshuvah. In this venue I will present the halakhah as I would currently decide it.
 There are a few discussions of conditions that may approximate clinical depression.
by Rabbi Aryeh Klapper
Note: This article was originally published in the Fall 2017 JOFA Journal (pp. 23-25), edited by SBM alumna Leah Sarna (SBM 2014).
In Gender Equality and Prayer in Jewish Law, Rabbis Ethan Tucker and Micha’el Rosenberg have produced a book that is noteworthy for its integrity, accuracy, and clarity. The authors worked for many years to refine the book’s content and responded to critiques with thanks and openness to revising their arguments, if not their conclusions. (Full disclosure: I am thanked for my “sharp and serious critiques and criticisms” [p. 9], ongoing from when I was a stripling Orthodox rabbinic adviser at Harvard Hillel while they were undergraduates.) The formal elements of their arguments are consciously crafted to fall within traditional and contemporary Orthodox halakhic parameters.
This hard-earned and well-deserved praise does not mean that the book ought to succeed in directly affecting the davening practices of halakhic communities, nor that it successfully justifies the gender-identical practices of current prayer communities that otherwise follow the halakhot of prayer. It is vital to understand why, even if the explanation is lengthy.
In Talmud Sanhedrin 17a, Rav Yehudah, citing Rav, states that only scholars who know how “to declare the sheretz pure from the Torah” may be seated on the Sanhedrin. In other words, membership on the High Court was limited to those who were able to construct intellectually plausible halakhic arguments with results that contradicted explicit Torah verses. This does not mean that such scholars were entitled to walk into the Temple with a dead sheretz in hand. On the contrary: It means that intellectual plausibility cannot be a sufficient basis for halakhic action, because intellectually plausible halakhic arguments are available to justify any action. Supple and open minds are necessary for halakhah to respond effectively to reality; authority is necessary for halakhah to mean anything at all.
Put differently, where there is inadequate halakhistic will, there is no halakhic way. This is true whether or not one believes that there ought to be such will and way. The key questions are what constitutes adequate halakhistic will, and what—beyond intellectual plausibility—is necessary for an argument to gain authority.
Rabbis Tucker and Rosenberg perform a valuable public service by clearing away the claim that halakhic change to the intersection of gender and prayer is theoretically impossible. (Claims of theoretical halakhic impossibility almost always reflect the intellectual horizons of the claimant rather than those of Torah.) They also make a prima facie case that no one has successfully articulated a convincing modern rationale for Orthodoxy’s gender-differentiated practice.
This leaves them in the following position: They acknowledge that past halakhah has always had—and required—gender-differentiated prayer roles. (Here they implicitly exclude American Conservative Judaism from the live halakhic tradition). However, they find continuing that differentiation to be a morally intolerable signal that women are not full citizens of the Jewish polity.
To resolve this tension, they propose that communities endorse one of two halakhic moves:
- Asserting that the rationales offered in the past for gender-differentiation would yield different or even opposite results today. Excluding women used to be a way of maximizing the honor of God or the community in a prayer context; today it diminishes honor.
- Asserting that biological women living in progressive contemporary societies do not fall under the category of “nashim” found in past halakhic texts. (This would likely entail saying that such biological women are bound by mitzvot aseh she-hazman graman.)
Each of these moves is halakhically conceivable, but neither of them is halakhically compelling in and of itself. The real issue is whether these proposals have enough authority to legitimate action on the part of those who buy into the underlying analysis. (The book’s claims about citizenship, honor, and womanhood require separate treatment; here I am addressing those who are unalterably convinced of these claims.)
Arguments about authority tend to be inherently arrogant, circular, and off-putting. Asserting the need for great scholarship, for example, implies that the level of one’s own scholarship is sufficient to judge that of others. Claiming that community X isn’t frum enough to self-legitimate its idiosyncratic practices invites a recitation of one’s own community’s all-too-evident flaws. I have little expectation from the attempt, and yet I cannot simply concede the field.
Halakhic legitimacy for a given position, as I understand it, requires that it be supported by scholars with some degree of some or all of communal recognition, personal character, personal scholarship, relevant experience, sociological responsibility, intellectual persuasiveness, moral persuasiveness, and spiritual persuasiveness. (This list may not be exhaustive.) All these are evaluated within the boundaries of those who accept the authority of current halakhah as binding Divine Law.
This seems intuitive to me, but I recognize that my intuition is not universally shared. So here is a preliminary and inadequate effort at explication.
A fundamental assumption at the heart of Torah is that the Jewish people constitute a political community bound by religious law. Like any constitutional republic, halakhah limits formal political influence to those who accept the authority of the constitution and its authorized interpreters.
Those interpreters may well get it wrong; the existence of the sacrifice-brought-when-the-Sanhedrin-errs demonstrates that the Torah assumes the fallibility of its authorized interpreters, and that the Law has meaning independent of their interpretations.
As an analogy: I believe that the Supreme Court has often gotten the U.S. Constitution wrong. But I accept that its interpretations are binding law until I succeed in getting the Supreme Court to rule differently.
Of course, halakhah has no Sanhedrin nowadays. No one should consider granting the Rabbanut, the Moetzet Gedolei HaTorah, the Rabbinical Council of America, the International Rabbinic Fellowship, Beit Hillel, Tzohar, or any other existing body anything resembling that sort of authority. These groups are not representative of the halakhic citizenry as a whole, and often they are not accountable to anyone but themselves.
But we can and must maintain a middle ground between oligarchy and anarchy, or between the ideology of da’as Torah and the belief that everyone can decide the legal meaning of the Tradition entirely and unaccountably for himself or herself.
I acknowledge with shame that the battle, as it stands, is largely lost. The halakhic citizenry is a small percentage of the Jewish people. The overwhelming majority of Jews do not see themselves as bound by Jewish law (except perhaps, to some extent, on some issues of personal status, where the secessionists are correspondingly more impassioned). Most halakhists make their decisions in total disregard of the interests and values of the Jews who reject their own authority, let alone of those who reject the authority of halakhah entirely; this generates a vicious cycle of alienation. Despair would not be unreasonable, and allies are desperately needed.
There is no question that Rabbis Tucker and Rosenberg are such allies. Their book is genuinely intended to fortify halakhah, and to show those whose commitments on issues of gender are a priori that there is space for them within halakhah. In this I wish them all success.
However, I believe that the currently appropriate space is that of loyal opposition. The loyal opposition is entitled to keep agitating for change, but must recognize the authority of the legal status quo. But for the role to be meaningful, and therefore psychologically tolerable, it is vital that those who support the status quo genuinely listen to those who seek change, acknowledge that change is not inconceivable, and indicate that they would themselves become a loyal opposition should change happen legitimately. Failure to do these things breeds cynicism, and then disengagement and/or rebellion.
Furthermore – if it were likely that eliminating gender distinctions in prayer would engender a mass return to general halakhic loyalty, or prevent a mass exodus, I think a way would be found. For exactly such purposes, the category hora’at sha’ah (emergency decree) was instituted, even if all other halakhic mechanisms were found too implausible.
But I see no evidence that existing gender-identical services attract large numbers of Jews to recognize the authority of the rest of halakhah, although Rabbis Tucker and Rosenberg strongly encourage and very much wish this. We are fooling ourselves if we believe that prayer issues are all that keep large segments of American Jewry from embracing kashrut, taharat hamishpahah, endogamy, and the biblical prohibition against certain male homosexual acts as binding Divine law, to list just a few issues.
We are equally fooling ourselves if we expect that creating gender-identical prayer services in response to sociologically based critiques will bring peace to those who already love and practice halakhah but have moral difficulties with its positions on gender. For these women and men, prayer is often a secondary issue. More often, by making it evident that halakhah cannot stand against the moral pressure of the times, we will undermine a fundamental basis of their observance and commitment.
In these regards, it is relevant that Rabbis Tucker and Rosenberg themselves advocate for change without accepting the legal status quo as binding. Their book evangelizes for practices that they have long since adopted themselves and implemented in communities they lead. No halakhic arguments could persuade them to do otherwise.
Why does this matter? The Halakhic system sets up different standards for evaluating halakhic arguments, depending on their relationship to existing practice. Arguments that support an idiosyncratic practice of a community that generally accepts conventional halakhic authority may need only meet the standard of limmud zekhut, which can hover around bare plausibility. Arguments that seek to legitimate the practice of a community that rejects conventional halakhic authority, or halakhic authority altogether, may need to be utterly compelling to overcome concerns such as “strengthening the hands of sinners”. It matters a great deal whether gender-identical prayer practices are evaluated under one rubric or rather the other.
It also matters a great deal that Rabbis Tucker and Rosenberg implemented their practices before developing the specific arguments in their book, and that they will continue to follow those practices regardless of the acceptance or rejection of those arguments by other halakhists. It seems reasonable to say that those who are not open to halakhic persuasion cannot lend personal authority to their halakhic arguments; rather, they cannot be given personal halakhic authority, at least with regard to those specific issues, until after their arguments are accepted.
I recognize that this argument can be reversed. Halakhists who require gender-differentiation, it will be argued, are as impervious to argumentation on their side as Rabbis Tucker and Rosenberg are on theirs. Perhaps no one can be granted authority on the issue outside their ideologically kindred community, and the ordinary processes of halakhah are helpless. This is how we get sectarianism, or “the Torah becoming two Torahs”.
Rabbis Tucker and Rosenberg deserve great credit for seeking to prevent or overcome sectarianism by making their argument on common halakhic ground. But this by itself cannot be a sufficient basis for success. Halakhic argumentation matters only because some arguments fail.
- arguments for radical sociological change must meet a higher standard than arguments for minor sociological change, and
- arguments for assimilating the practices or values of a nonhalakhic or failed halakhic community must meet a higher standard than arguments for the legitimacy of practices indigenous to a halakhically observant community.
In light of all the above, my best judgment is that, despite my deep personal appreciation of its authors, this book does not succeed in gaining practical halakhic legitimacy for gender-identical, or “identitarian,” prayer services.
This does not mean that such legitimacy is eternally precluded. Practical halakhah is responsive to both social change and intellectual creativity, and in general it is unwise to make absolute predictions about its course. There is no question that many men and women who are absolutely faithful to halakhah as-it-is would prefer that it be different. The most anyone can properly say is that he or she cannot imagine circumstances in which this or that practice would become halakhically legitimate, and that, as he or she now understands the issue, any community adopting such a practice now or in the future would be in violation of halakhah.
But neither God nor Torah is bound by our present imaginations, let alone by the imaginations of specific scholars. The gates of halakhic debate close rarely, if ever—and, ideally, never.
by Rabbi Aryeh Klapper
The Scottish poet and farmer Robert Burns was moved to philosophic reflection by the sight of an overturned mouse nest in his freshly ploughed furrow. The poor mouse had spent much time perfecting its home to the best of its ability. But it had no sense of context; it could not see the big picture.
Are humans any different? “The best laid schemes o’ mice an’ men / Gang aft a-gley”. There is no necessary connection between intentions and consequences. Burns concludes that mice have the advantage of us. Mice live in the moment and never suffer the torments of pessimistic anticipation. Humans live in terror because we understand the limitations of our perspective, but cannot overcome them. We know that our best efforts cannot prevent our best-laid plans from going awry, and therefore we – not just the cowards among us – die a thousand times before our deaths.
Burns’ despair has one implication that may be either damning or redeeming. He at least seemingly undermines any rationale for accountability. If intentions have no necessary relationship to consequences, how can we be held responsible as the author of those consequences? If we know that intentions have no necessary relationship to consequences, why should the most evil of our practical intentions be taken more seriously than fantasies? R. Tzadok HaKohen MiLublin takes this bull by the horns and argues that sin fundamentally consists in the belief that one might be held accountable for the consequences of actions, when such accountability would suggest that an action took place which contradicted G-d’s Will. How could such a thing be?
One might be forgiven for believing that this week’s parshah confirms R, Tzadok’s view. After Yaakov’s death, Yosef (50:20) denies any right or intention to punish his brothers for their treatment of him.
ואתם חשבתם עלי רעה
א-להים חשבה לטובה
למען עשה כזה להחיות עם רב
You thought evil of me;
G-d thought it into good,
so as to be able to do what He has done to this day,
namely to keep many people alive
This is the reading adopted by Rashbam.
“א-להים חשבה לטובה” –
הק’ גרם לכם
ואתם לא פשעתם בי
כי לטובתכם נתכוון הק’
“G-d thought it into good” –
The Holy caused you (to act this way)
(therefore) you have done me no offense
because the Holy intended this for your benefit
I tend to see this as one more instance of Rashbam smashing a three-dimensional text with a mallet repeatedly until it is perfectly flat. There is no nuance or complexity left at all; all’s absolved that ends well, and Yosef’s conception of justice and internal emotions align perfectly with G-d’s intention.
Rashbam’s mallet is consciously aimed at the psycho-theological skyscraper that emerges from Rashi’s commentary.
ויאמר אלהם יוסף:
כי התחת א-להים אני?!
שמא במקומו אני, בתמיה?!
אם הייתי רוצה להרע לכם, כלום אני יכול?!
והלא אתם חשבתם עלי רעה
והקב”ה חשבה לטובה
למען עשה כזה להחיות עם רב
והיאך אני לבדי יכול להרע לכם?!
Yosef said to them:
Do not fear,
as am I in place of G-d?!
Do I stand in His place?!
If I had wanted to do you evil, would I be able!?
Behold you thought to do me evil
But The Holy Blessed One thought it into good
so as to be able to do what He has done to this day,
namely to keep many people alive
So how would I by myself be able to do you evil?!
In Rashi’s reading, Yosef is not reconciled to his brother’s actions, only reconciled to the practical impossibility of punishing them. Yosef understands that he can only act within the parameters of G-d’s plan, and he understands that plan as aimed not (only) at his own good, but rather as the good of the many people – perhaps Jews, perhaps, Egyptians, perhaps both – that he saved from dying of famine. Yosef is impotent, not forgiving. It is possible that his mature recognition of the impossibility of vengeance leads eventually to a genuine rapprochement. It is also possible that he is greatly frustrated by the big-picture constraints he must work within. Consider as an interesting parallel Lavan’s words to Yaakov in 31:29:
יש לאל ידי
לעשות עמכם רע
וא-להי אביכם אמש אמר אלי לאמר
השמר לך מדבר עם יעקב מטוב עד רע:
There is (Divine?) power in my hand
to do you evil
But the G-d of your father said to me yesterday:
“Guard yourself against (even) speaking to Yaakov, whether for good or for evil”.
Note that Rashbam there as well portrays Lavan as accepting G-d’s restriction out of regard for His honor, rather than chafing against His involuntary imposition. I prefer to see Lavan’s attribution of Divine power to his hand as significant. (There may be similar subtle significance to writing ויאמר אלהם יוסף just before he says התחת א-להים אני.)
Rashi’s psychologically complex reading of Yosef has theological implications. For Rashbam, it is wrong to hold a grudge, or to think less of somebody, for actions undertaken with malevolent intent that nonetheless turned out well. Rashi, by contrast, sees no reason for Yosef to modulate his evaluation of the brothers’ character in accordance with the consequences of their actions. They did wrong, and deserve to have bad things done to them – it’s just that in this case specifically he believes that G-d has told him that the big picture takes precedence over human justice.
I may seem to be belaboring the point. So let me explain why I think this issue matters so much.
We really cannot know the consequences of our interpersonal behavior. The bully at school may turn her victim into a tireless crusader for the unfairly victimized; the shallow or cruel or sexist talmid chakham may inspire a generation of students to go into chinnukh lest their children be educated by the likes of him; the sadist who humiliates an alcoholic beggar may cause them to “hit bottom” and seek help These positive consequences do not excuse their behavior. Nor are we obligated to wait to see how things turn out before we mete out our own consequences.
These cases are low-hanging fruit. The more challenging ones are where interpersonal cruelty is directly and explicitly justified on the basis of the big picture. After all, “one must not be too great a tzaddik”, and “the mercy of the foolish is cruelty”. All true. And yet (I hope) we all can recognize that such justifications are inherently dangerous, and people who use them often tend to damage themselves spiritually. If we could image souls, I suspect we’d find that a lot of our harsher polemicists had CTE.
This analysis doesn’t acknowledge that few human beings are islands. What we do to a person affects their friends, and their families, and their students – and in turn their friends, and their families, and their students. Who saves a life, saves a world; who affects a life, for good or for ill, often affects a world.
Many years ago I listened as a public rabbinic figure gave what seemed to me an interminable and insupportable speech at the bar mitzvah of a child he hardly knew. At one long-suffering point, I gave into the temptation to whisper a sarcastic remark to the person sitting next to me – who turned out to be the speaker’s nephew. I try to keep in mind now, when I speak and when I write about another person, that their nephew is probably in the audience. This can’t paralyze all criticism, but hopefully it improves my judgment of what is necessary.
A thousand years after Parshat Vayigash happened, the haftorah tells us that Yechezkel still felt the need to heal the breach between Yosef and his brothers: Chazal tell us that in their time Gentile kings still held the Jewish people as a whole accountable for the sale of Yosef; and that we did not respond by citing Rashbam. Nor should we today.