Category Archives: Weekly Devar Torah

Who Gets to Decide What’s “Shabbesdik”?

by Rabbi Aryeh Klapper

Is halakhic sophistication always a virtue?

Mishnah Demai 4:1 states that “One who buys fruits from someone who lacks legal credibility with regard to tithing, and then forgot to tithe them (before Shabbat) – may ask the seller about them on Shabbat, and eat them on the basis of his assurance.”  Why should it matter whether the seller is asked before or after sundown?  Bartenura explains that whereas halakhically sophisticated Jews know that honesty and holiness are unrelated, amei haaretz (=halakhically unsophisticated Jews) regard lying as a violation of the sanctity of Shabbat.  Therefore, while the weekday rule is that only those who observe an area of halakhah have credibility regarding it, one can extend halakhic credibility to amei ha’aretz on Shabbat even regarding laws they violate themselves.

Netziv (Haamek Davar 35:1-3) cites other examples in which halakhah takes the religious intuition of the unlearned into serious account.  In each case, these intuitions may be more constructive socially than scholarly interpretations based on analytic rigor.  Why, then, is law generally determined by scholars rather than by popular practice?

One of the classic intra-Jewish sectarian debates is whether or not one may allow a useful fire to burn in one’s house over Shabbat.  The Prushim (=Pharisees or Rabbanites) said yes, and the Sadducees said no.  The underlying interpretative issue is whether to translate “תבערו” in 31:3 as “do not light a fire”, or rather as “do not allow a flame to burn”.  Our practices of lighting Shabbat candles and of eating cholent are in part demonstrations of loyalty to the Perushi position.

Ibn Ezra records, in amusing emotional detail, a controversy he had with a Karaite (whom he calls a Sadducee) about this verse.  He took the devil’s advocate position that lighting fires should only be forbidden on Shabbat day, “ביום השבת”, and challenged the Karaite to disprove him.  The Karaite failed to do so (over a period of months, with many back-and-forths).  Ibn Ezra concludes that “I have mentioned all this, because an intelligent person can explain Scripture in many ways, which is why we need with regard to all commandments the Kabbalah, Masoret, and Torah Shebe’al Peh [1], as I said when beginning this book”.  Every text can be read plausibly in ways that are nonetheless false; the only way to exclude them is on the basis of received tradition.  The contextual implication is that one need not disprove the Sadducee position regarding fire on Shabbat; if the Rabbinic position is possible, it is necessary.

But why should this be so?  Rabbinic tradition itself records innumerable legal disputes.  Once a dispute arises, both positions are treated as reasonable, and final legal decisions result from interpretive choices rather than Heavenly voices.  No specific rabbinic choice is presumed correct.  Since nothing about the Sadducee interpretation of תבערו conflicts with rabbinic hermeneutics, there seems no intellectual basis for intellectually privileging the Prushi position.  Presumably this is true of many other Sadducee/Prushi disputes.

Many responses to this challenge start from Rambam’s assertion that Mosheh received from Sinai a broad interpretative substratum that is never subject to controversy.  But the more difficult problem to solve is not how one knows where Tradition comes from, but rather why one can have faith that it has been accurately transmitted.  Granting Divine origin, and Mosaic perfection, wouldn’t misunderstanding have crept in the moment Mosheh transmitted his knowledge?  Wasn’t this why Mosheh resisted Yitro’s suggestion that his authority be diffused?

Rambam (Introduction to Mishneh Torah) argues that Mosheh set up a near-perfect pedagogic system, with repetition and reinforcement at every level, so that at least for one generation the Oral Torah could be preserved pristine.  Netziv, however, acknowledges the inevitability of misunderstanding, commenting wryly that “even in that generation of knowledge, there must have been a few amei haaretz, let alone women [2]”.

Netziv goes further.  He suggests that Mosheh, and later Yehoshua, was well aware of these misunderstandings, but where they tended to legal stringency, he did not seek to uproot them.  In other words, from the very beginning there was a practical popular tradition alongside the intellectual tradition, which differed substantively from it.  This is similar to what my teacher Dr. Haym Soloveitchik has famously called “mimetic Judaism”, but with two key qualifications:

  1. it is explicitly acknowledged that the mimetic tradition arose out of folk intuition, rather than seeing it as evidence of lost scholarly positions
  2. the mimetic tradition was tolerated only when it was stricter, not when it was more lenient

Dr. Soloveitchik argues that there is a particular historical reason that the intellectual tradition today (or at least in the late 20th century) tends to stringency, namely the diminishing power of affective religious experience in the halakhic community.  “Having lost the touch of His presence, they seek now solace in the pressure of His yoke.”  He does not suggest that intellectual traditions are inherently or necessarily more stringent than mimetic traditions.  (In a version of this essay published several years ago, I wrote that “In the long run, I contend, those who wish to make significant changes toward ‘leniency’ are better off supporting the primacy of the intellectual over the mimetic.  This may be particularly true with regard to issues of women’s place in ritual, and it is perhaps time that advocates of such changes acknowledged this.”  I think the contention has now been largely verified.)

Netziv contends that the populace in Mosheh’s time adopted the interpretation of תבערו that eventually became the Sadducee position.  He is well aware that this popular tradition eventually turned noxious and generated a position that denied the legitimacy of the Rabbinic intellectual position.  Was Mosheh then wrong to permit it?  Netziv might have adopted the approach (perhaps following the midrash cited by Rashi on “naaseh Adam”) that mistakes are inevitable, and one cannot tell which current mistakes will cause real problems in the future.  

Instead, I suggest, he argues that Shabbat is a uniquely subjective mitzvah, which Mosheh was commanded to explain in a fashion that gave experiential discretion even to those with limited intellectual comprehension.  Therefore, in this case the category “misunderstanding” may be inapplicable.  Verses 35:1-3 represent Mosheh’s explanation of Shabbat in broad categories to those incapable of more precise comprehension, and their subsequent understandings were personally legitimate.  Possibly the Sadducee position represented one such understanding.  Netziv even argues that it was true intellectually with regard to the construction of the Mishkan.

Over time, it became urgently necessary to oppose that understanding.  Why? Perhaps because the mimetic tradition began to see itself as exclusively valid, and delegitimated the intellectual tradition.  Another possibility is that the Sadducee position in the end turned out not to be a stringency, but rather, after the first generation, became a felt burden that diminished the positive mitzvah of enjoying Shabbat, and diminished rather than increased the feeling of holiness.

Netziv himself suggests that the legitimacy of subjective interpretation only applied to the first generation, and thereafter the very same text was properly appropriated for the exclusive use of the intellectual tradition.  Nonetheless, it seems likely to me that Netziv preserves the value of experiential discretion with specific regard to Shabbat, and that, accordingly, Halakhic rulings with regard to such issues as oneg Shabbat, uvda d’chol, and other issues of “Shabbasdikness” should be made with great deference to mimesis and with a deep appreciation of subjectivity taking precedence over the desire for consistent rules.

Shabbat shalom

 

Notes:

[1] I don’t know the specific referent of each of these three terms for Ibn Ezra, or even whether they refer to separate aspects of tradition.

[2] This is not the place to discuss Netziv’s attitude toward women’s learning and intellectual capacity; a good place to start are the various contemporary discussions of the depiction of Netziv’s wife Rayna Batya in his nephew’s autobiographical Mekor Barukh.

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Can We Judge a Psak Based on Its Consequences?

by Rabbi Aryeh Klapper

What should Aharon have done?  What could Aharon have done?

It is vital to recognize that these are not the same question.  The first question can be asked even if none of the available choices would have stopped the making and worshipping of the Golden Calf.  And there may have been things that Aharon could have done to stop the Calf that he was nonetheless correct to avoid doing.

The underlying difference is between consequentialist and nonconsequentualist ethics.  Can the choice which yields the best overall result be wrong?  

The same issue comes up regularly in the context of halakhic decisionmaking.  To what extent are perceived negative consequences evidence of the rightness or wrongness of a psak?

To be sure, consideration of consequences is often part of the purely internal halakhic calculus.  “The Torah has concern for the money of Israel”, and so one can rely on minority positions when the standard psak would cause significant loss.  (Almost) Nothing stands in the way of preserving life.  Rabbinic prohibitions are vacated when the alternative is damage to human dignity.  And so on and so forth.

However, the formal internal calculations of halakhah generally require that these consequences be clearcut.  What if human dignity will suffer either way, but likely more severely one way than the other?  What if this will cause a loss to some people, and a gain to others?  How does one evaluate tradeoffs between quantity and quality of life?

One might say that in such cases one must simply fall back to the formalities of the law.  “Let the law pierce the mountain”, and let the ship of Judaism proceed without regard for the presence of floating mines (a.k.a. torpedoes).

Rabbi Moshe Tendler argues (Kavod Horav p. 167-9) – to my mind convincingly despite minimal evidence – that psak for a community should consider consequences differently than psak for individuals.  For example, communal psak can impose current hardships and risks in the interest of future generations, whereas individual psak must focus on those presently alive.  Communities can also consider statistical consequences whose probable effects on any defined individual are trivial.  In a real sense the formalities of law lose their formality in the context of communal decisionmaking, and consequentialism becomes a much larger factor.  

To take one example: R. David Stav ruled that the town of Shoham could run round trip buses to Tel Aviv and its nightlife on Friday night, in order to prevent the deaths from drunk driving that would otherwise be statistically probable.  I’m fairly confident that he would not permit individuals to offer a group of teenagers a lift if they missed the bus.

But life and death cases are low-hanging fruit.  My question is whether on a communal level poskim may or must also consider much more amorphous consequences.  I liked to tell my high school students that I judged my work as a teacher by the condition of their souls ten years after graduation – ought a shul posek to consider in advance how a given psak will affect the souls of congregants ten years on? Perhaps Rav Tendler’s distinction applies only to concrete matters, but poskim need to consider the future condition of even specific individual souls.

Judging what will be best for other souls inevitably introduces an element of paternalism.  How can I make decisions on the assumption that you will otherwise make poor decisions?

My suspicion is that in principle almost everyone thinks that psak should nonetheless take such consequences into account.  We want poskim to be in relationship with sho’alim, not to be reference books.  We want this not only so that they can understand the underlying situation, but also so that they can respond to it.

Nonetheless, there are at least two valid sources of resistance to this idea.  For many laypeople, giving Rabbis discretion extends the sphere of influence in their lives of people whose values they don’t fully share.  For some senior halakhists, this discretion should be vested only in truly great halakhists with demonstrated capacity to resist the pressures of the moment, otherwise halakhah will lose all its formality and integrity.  Which brings us full-circle, to Aharon HaKohen at Sinai.

Let us set the scene.  Mosheh Rabbeinu has been gone for (a little or a lot) longer than everyone had anticipated.  Rumors are spreading wildly, and a group of agitators are beginning to run riot.  Chur, whom Mosheh had given interim judicial authority together with Aharon, stood up to the rioters and is killed.  No attempt at all is made to censure his murderers.  Aharon reasonably believes that he will be killed if he directly opposes the construction of a constructed image to replace Moshe.  What should he do?

On a halakhic level, the answer may seem simple.  One must give up one’s life rather than commit idolatry or its אביזרא, violations falling within its penumbra.

But in truth it is not simple.  Aharon surely did not intend the Calf to be an actual idol; from his perspective, he simply sculpted a statue.  If no other Jew had worshiped it after he made it, there would be no reason to assume that the calf was assur behanaah, forbidden for Jews to derive benefit from, as are images constructed for the sake of worship.

Nor is there evidence that Aharon himself ever worshipped the calf.  It is an anonymous plural that declares “These are your gods, O Israel”.  He builds an altar before it, but then declares that there will be a holiday for Hashem the next day.  What Aharon violates is lifnei iver, the prohibition against placing obstacles in the path of the spiritually blind, and there is much debate in the tradition as to whether lifnei iver of idolatry is an abizra that one must die rather than commit.

Aharon reasonably believes that the Jews’ souls will be even further damaged if he is killed.  Moreover, if Moshe returns to find him dead, he will absolutely despair of the people, and abandon the whole project of shaping them into the People of Torah.  Moreover, by sort-of participating in their sin, he creates a bond and sympathy and credibility that will be helpful in what will clearly be a long and painful process of spiritual recovery.

But Aharon spent months in Moshe’s yeshiva researching the question of whether lifnei iver of idolatry is an abizra, and came out quite convinced that the weight of the mesorah favored the position that it is.  Nothing about this admittedly traumatic experience has changed his reading of the texts, or the weight of the authorities involved.  It’s just that faced with an actual circumstance, it seems clear that his community would be better off if he paskened the other way, and he can’t claim that the other way is demonstrably incorrect.  So what should he do?

The Torah does not tell us explicitly whether Aharon’s decisions were right or wrong.  Moshe’s first words to him are harsh, but Aharon responds, and then the issue seems to be dropped; in other cases, such as after the death of Nadav and Avihu, this seems to indicate a withdrawal of his initial criticism.

Aharon becomes High Priesthood.  He goes on to save the Jews from Divine wrath when Moshe can’t or won’t, and he dies beloved by both the people and G-d.  The evidence seems to be that from a consequentialist perspective, he made the right decision.

The problem is that a purely consequentialist perspective undermines law completely.  If one should always choose the option that produces the best results, what is the purpose of rules?  

The best halakhists understand that the most important consequence of all is the preservation of halakhah as law, in other words the ability to find meaning in and give authority to rules regardless of their consequences.  

Embracing that paradox is the key to a vibrant halakhic future.

Shabbat shalom.

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Some Kind of Blue? Tradition, Tekhelet, and the Rav

by Rabbi Aryeh Klapper

The color of an object can be defined by the wavelengths of light that it reflects, which means that objects really have no color at all.  Identical reflected lightwaves can then hit human retinas and generate wholly different mental experiences.  Wittgenstein thought that our capacity to communicate about color at all was miraculous.  Regardless, there is no way to convey subtleties of color reliably through pure language.

For this reason, halakhic treatments of color are heavily based on practical tradition.  Which colors create niddah and which don’t is learned by show and tell, not by reading ArtScroll.

All this by way of introduction to the topic of tekhelet, the dye of uncertain color (sky-blue? sea-green? wine-dark like the Homeric ocean?)  that was used in the High Priest’s garments and that we have a mitzvah to place on our tzitzit.  The fundamental halakhic difficulty with tekhelet is that it disappeared from history for a millennium.  In “Two Types of Tradition” (שעורים לזכר אבא מרי ז”ל כרך א), the Rav made famous a family tradition about his great-grandfather the Beit Halevi’s response to the Radziner Rebbe’s attempt to recover tekhelet in the late nineteenth century.

ידוע מה שאירע

בין זקני הגאון רבי יוסף דוב הלוי ובין האדמו”ר הגאון מראדזין

,בנוגע לתכלת שבציצית

.שהרבי מראדזין חידשה וציוה לכל חסידיו להטיל תכלת בציציותיהן

האדמו”ר ניסה להוכיח על יסוד הרבה ראיות

.כי הצבע הזה הוא באמת התכלת

רב יוסף דוב טען כנגד ואמר

שאין ראיות וסברות יכולות להוכיח שום דבר

.במילי דשייכי למסורת של שאל אביך ויגדך

:שם אין הסברה מכריעה כי אם המסורה עצמה

.כך ראו אבות וכך היו נוהגים וכך צריכים לנהוג הבנים

It is well known what happened

between my ancestor the Gaon Rav Yosef Dov Halevi and the ADMOR Gaon from Radzin

with regard to the tekhelet in tzitzit,

that the Rebbe from Radzin renewed it and ordered all his chasidim to put tekhelet among their tzitzit. The ADMOR tried to demonstrate on the basis of many proofs

that this dye is in truth the (halakhic) tekhelet.

Rav Yosef Dov countered that proofs and rational arguments cannot demonstrate anything

with regard to matters that affiliate with the tradition of Ask your father and he will tell it to you.

In such matters, reason is not decisive, but rather the tradition itself:

This is what the fathers saw, and so they practiced, and so the children must practice.

 The Rav understood the Beit HaLevi to be sealing the issue of tekhelet off from the realm of argument and discussion.  What is not clear is exactly what aspect of tekhelet is off-limits to reason and evidence.

I always thought the issue was color; how could we possibly know that we had matched the Torah’s intent or Chazal’s practice?  The discovery of ancient tekhelet textiles would not help with that, as surely even a colorfast dye will change significantly over a thousand years.  The fascinating disputes about how best to restore medieval paintings suffice to demonstrate this.

But rereading the Rav’s essay this week, it seemed more likely that he had in mind the identity of the chilazon, the creature from which the dye is produced.  But this made his claim much harder to accept – why shouldn’t archaeological or chemical evidence be sufficient to identify ancient dye works, and then the chilazon?

The Rav makes the identity of the chilazon a quasi-halakhah l’Mosheh miSinai, and analogizes identifying the chilazon to identifying the etrog as the pri eitz hadar required by Vayikra 23:40.  Let us accept the analogy for the sake of argument.  If the identity of the etrog were lost for a thousand years, there would be a reasonable basis for claiming that it could not be restored on the basis of arguments from texts, no matter how clever or clear.  But if we found an ancient repository of palm, willow, and myrtle branches, and together with them the right quantity of one and only one species of fruit, would that not be sufficient grounds to reconnect us with the original tradition?

Proponents of contemporary tekhelet make this argument, with a shiur by Rav Herschel Schachter providing far and away the most coherent and compelling version I have heard or seen.  But Rav Schachter adds a wrinkle.  As part of the ongoing debate over his tekhelet, the Radziner published on p. 13 of the introduction to his Ein HaTekhelet a letter that he described as being an authorized representation of the Beit Halevi’s position.  That letter seems to undermine the Soloveitchik family tradition. 

הגאבד”ק בריסק דליטא שיחיה

מסר כל טעמו ונימוקו בדבר מיאונו במצות התכלת

לאחד ממיודעינו

:שיכתוב ויאמר לנו משמו בזה הלשון

,כמע”ל לא ביאר בדבריו מה זאת מצא אחר שנשכח

,אם מציאת הדג או הוצאת צבעו

,ורק אחרי אשר כמע”ל יברר זאת, היינו האם היה בזה דבר הנשכח והוא מצאה

.אז נהיה מחויבים לשמוע אליו וללבשו

,אכן אם נאמר כי  הדג היה במציאות

,וגם הוצאת צבעו היה ידוע בכל זמן מהזמנים שעברו עלינו מעת שפסקה התכלת בישראל

,ועל כל זה לא לבשוהו אבותינו ואבות אבותינו

הרי הוא כאילו יש לנו קבלה ומסורה מאבותינו

כי זה הדג וצבעו איננו החלזון והתכלת

,אף שהוא בכל הסימנים שסמנו חז”ל

.כי אפילו נרבה כחול ראיות, לא יועילו נגד הקבלה והמסורה

ורק אחרי אשר יברר לנו כי דג זה או מלאכת צבעו נפסק ונשכח מציאתו או ידיעתו בשום זמן מהזמנים ונפסקה בזה הקבלה, אז יהיה לנו דברי ההלכה לראיה

.ע”כ דבריו שיחיה

The Gaon Av Beit Din of Brisk in Lithuania, may he live,

gave over all his reasons and rationales in the matter of his eschewing the mitzvah of tekhelet

to one of our intimates,

so that he would write and say to us in his name, as follows:

Your Honor did not explain in his words what it is that he found after it had been forgotten.

whether it is the finding of the fish or of the way to extract its dye,

and it is only after Your Honor explains this,

namely whether there was something here that was lost and that he found,

that we will be obligated to heed him and to wear it.

However, if we say that this fish was in existence,

and the extraction of its dye was known in all the times that have passed over us from the time that tekhelet ceased to be in Israel,

and that despite all this it was not worn by our fathers and our fathers’ fathers,

that would be as if we had a received tradition from our ancestors

that this fish and its dye are not the chilazon and the tekhelet

even if it fits all the identifying characteristics given by Chazal,

and even if we multiplied proofs like sand,

they would not prevail against a received tradition

Only after it became clear to us that this fish or the craft of making its dye had its existence or knowledge ceased and forgotten at some time and this interrupted the reception,

then we would use the words of the halakhah as proofs.

Rav Schachter reads this letter as saying that empirical evidence is perfectly sufficient in the absence of a positive tradition, but cannot overcome a negative tradition.  In this case the negative tradition was that no known creature and manufacturing process could yield tekhelet.  Rav Schachter then cites Rav Elyashiv as finding the Radziner’s letter a more plausible account of the Beit HaLevi’s position than the Rav’s report, and this seems clearly to be his own opinion, even though the Rav’s report is confirmed by other branches of the Soloveitchik family.

Now the whole point of “Two Types of Tradition” is that students can challenge their teachers’ intellectual traditions but must simply receive their practical traditions.  Rav Schachter implicitly points out that this metatradition of the Rav is grounded in intellect, and therefore can be challenged and even rejected by his students.

I suggest that metatraditions by their nature as abstractions are always grounded in intellect rather than pure reception, and therefore can never have unchallenged authority.  A claim of authority on the basis of tradition is therefore never self-sufficient.  It can succeed only if there is a shared prior metatradition about the authority of tradition, and that metatradition will be accountable to the ordinary intellectual processes of Torah.

Even without Beit HaLevi’s authority, however, I find the argument that color requires a live tradition to be powerful.  Furthermore, Beit HaLevi seems to have been quite right in doubting that the Radziner had properly identified the chilazon with the cuttlefish, and I remain unconvinced by the partisans of murex trunculus (with the caveat that Rav Schachter argues that neither precision of color nor of mollusk are necessary).  The barriers to reconstructing lapsed traditions such as tekhelet should not be impassable, but they can and should be quite high.

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Moral and Other Sevarot

by Rabbi Aryeh Klapper

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.      

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Creativity and Avodat Hashem

Based on a lecture by Rav Michael Rosensweig.  Rav Rosensweig’s later written version was published as Personal Initiative and Creativity in Avodat Hashem” in The Torah U-Madda Journal Vol. 1.

This summary, by Aryeh (Robert) Klapper, was originally published in Hamevaser, Iyar 5748/May 1988)   All errors of formulation, fact, etc, are Rabbi Klapper’s.

In the beginning, God performed the utterly inimitable creation ex nihilo, out of nothing.  Yet man is required to emulate all of His ways – “lehidamot lo kemah she’efshar”, “to be similar to him to the extent possible”.

Creativity and submission clash constantly in Jewish thought.  “One should not rely on miracles”, but Ramban claims that each moment of existence is a hidden miracle.  Prayer and Kabbalah are means of “affecting” the Divine, but both are aspects of avodat Hashem (service of G-d).  And finally, “No one is free except those who have accepted upon themselves the yoke of heaven.”  From that paradox, the necessary synthesis emerges.  Human beings must create, but only for the greater glory of G-d.  And we must realize that we can at best rediscover Divine truths or develop our own tzelem Elokim (Divine image); we can but transform the yesh G-d brought into being.

Rav Yosef Dov Soloveitchik teaches in Lonely Man of Faith that human beings have a religious obligation to create in both the physical and metaphysical realms, to build the world physically, spiritually, and even aesthetically.  And while the rigid Halakhic system limits human autonomy greatly, unmoderated inflexibility leads to the ritualism Yeshayahu denounced and the legalism so often criticized today.  Judaism must provide a way for human beings to achieve a personal relationship with G-d.

Gershom Scholem writes that every religion creates mysticism in reaction to increasing formalization, surviving undivided if the formal structure allows accommodation.  Kabbalah, however, is neither accessible nor attractive to all.  And extra-halakhic religious systems hold the danger of subjectivism, which Rav Soloveitchik teaches in Halakhic Mind is actually self-worship.

Torah provides several non-mystical outlets for human creativity within the halakhic system.  Sefer Hachinukh, for example, believes circumcision to be an act of self-perfection, and possibly the mitzvah of “zeh keli v’an’veihu”, of beautifying mitzvot, allows human beings to redefine cheftzot shel mitzvah, mitzvah-objects.  Rambam in his Commentary on the Mishnah explains that God gave the Jews many mitzvot so that each would find one to excel in and be particularly inspired by.  The permission of tefillas n’dovoh, voluntary prayer, provides similar opportunities to personalize religion.  Finally, most rishonim encourage the search for ta’amei hamitzvot. rationales for commandments.  Sefer Hachinukh among others believes that each commandment has multiple reasons, enabling each Jew to personalize their kavannah while performing it.

The Yerushalmi extends the tension between creativity and submission to the realm of talmud Torah“Kol mah she’atid talmid vatik lechadesh k’var ne’emar l’moshe misinai”, “Everything a veteran student will originate in the future was already said to Moshe at Sinai”.  The tradition is both vast and rigid.  But it also contains ample evidence of individual contribution.  “Chayav adam lomar davar b’shem omro”, one must identify the Torah one has learned with the one who taught it.  The dialectic method pioneered by the Ba’alei haTosafot revolutionized Talmudic studies in the Middle Ages, as did the pilpulists in the fifteenth century and Brisk in the nineteenth.  Various scholars of the fifteenth and sixteenth centuries claimed that Eliyahu haNavi had revealed himself to them, giving their works a legitimate source outside the received tradition.

David Singer and Moshe Socol recently argued in Modern Judaism that the Rav’s description of his grandfather as a revolutionary resulted from the influence of modernity on his thought, that chidush is actually antithetical to halakhah.  Their position was considered and rejected by the Tanna Rabbi Elazar ben Azariah, who once asked his students “Mah chidush ne’emar hayom?”, “What of originality was said today?”  They replied in surprise “v’halo talmidekha anu?”, “Are we not your students?”  How can we say anything that you have not already heard?  And he told them: “There cannot be a House of Study without chidush”.  The Yerushalmi itself believes that a veteran student can be mechadesh.  Yet the concepts of mesorah and y’ridas hadoros (continuous decline of the generations dating from the Sinaitic Revelation) would seem to exclude any sort of development or progression.

Judaism solves the creativity-submission conflict by incorporating chidushim into the Mesorah.  A talmid vatik can be mechadesh, but the chidush is valid only insofar as it can be included within the Sinaitic revelation, only to the extent that it is rediscovery.  

This solution does not, however, account for the concept of “eilu v’eilu divrei Elokim Chayim”, “These and those are the words of the living G-d”.  The Talmud applies this concept to directly contradictory opinions.  Such opinions cannot be contained within an ordinary tradition.

But the Mesorah is no ordinary tradition.  The Mishnah tells us that every word heard at Sinai divided into seventy voices, that multi-dimensionality was built into the Mesorah at its start.  When Moshe Rabbeinu went up to the heavens, he saw the Heavenly Court developing forty-nine reasons for both permission and prohibition on ritual issues, and he was told “nims’ru lechakhmei yisrael vehahakhra’ah k’mosam”, “They have been given to the sages of Israel, and the decision is theirs”.  Maharal believes that all opinions arrived at by legitimate methods on halakhic issues have significance, albeit those accepted lehalakhah have more; each issue has “aspects of tum’ah and aspects of taharah”.  And Ritva believes in multiple truth, that somehow mutually exclusive opinions on halakhic issues can be true simultaneously.

The justification for this fragmentation of tradition is Judaism’s acceptance and validation of the uniqueness of every human being.  The Mishnah tells us that because of that uniqueness, “chayyav kol Adam lomar: ‘bishvili nivra haolam’”, “Every human being must say: ‘The world was created for me’”.  And Tanchuma points out that individuality is more than skin deep: “Just as their visages differ from each others’, so do their minds”.

If initiative is permitted, then it is obligatory; imitatio dei cannot be disregarded in talmud Torah, the most spiritual activity of all.  The passion of the Beit Hamedrash, “milchamtah shel Torah”, derives from the religious nature of the intellectual battle in Torah.  But again the emotion and the creativity must be within the system: “afilu av uvno v’rabi v’talmid bish’as limud na’asim oyvim v’eynam zazim misham ad shena’asim ohavim”, “Even a father and son or Rav and student become enemies during study, but do not leave (their studies) until they become friends”.  The words of Torah are “ever-multiplying” yet “fixed as driven nails”.  Chidushim are valid only insofar as they possess both characteristics.

Perhaps the most poignant testimony to the value of human initiative in Torah comes from the Vilna Gaon, who turned down a dream-maggid’s offer to teach him the entire Torah effortlessly.  But throughout Jewish history scholars have defended man’s right and need to earn the Torah and make it his own.  Geonic opponents of codification argued that its costs outweighed its benefits, that preventing misinterpretation was not as important as making sure people learned the original sources.  The Maharal’s brother protested the Shulchan Arukh on Tanchuma’s grounds; as people’s minds differ from one another, each can extract something unique and valuable from halakhic texts.  The Maharal in Netivot Olam railed against those who pasken from sifrei psak (handbooks of halakhah) without checking the original sources.  “Ein l’dayan ela mah she’eynav ro’os”, “A judge cannot take into account anything other than what his eyes see”; psak given from secondary sources is a case of the blind leading the blind.

The abuses feared by opponents of codification have never been more evident than in our era, in which reliance on summaries and English “how-to” books, and to a lesser degree on the Mishnah Berurah, have made the Magen Avraham and even the Taz obsolete.  Sadly, never has the need for such reliance been more widespread.  Yet specific historical eras encourage sensitivity to certain issues, and we must believe that our generation has something unique to contribute.  If this seems presumptuous of us, if we are accused of ignoring the concept of y’ridas hadoros, our response must be an abiding faith in the progression of ideas and the unfolding of mesorah.

Even those less experienced and less talented are valuable links in the chain of mesorah.  Individual responses are important in both lomdus and hashkofoh, and the inevitable subjectivity created by the order and amount of the posek’s exposure to sources plays a legitimate role in psak.  But one must constantly challenge his or her own objectivity to avoid subjectivism and self-worship.

Not all ideas about and in Torah are worthwhile.  Tosafot denounces “charifus shel hevel”, “worthless sharpness”, as does Maharal “pilpulo shel hevel”.  Capacity to be mechadesh requires a minimum level of knowledge, method, and the parameters of conceptual plausibility in halakhah and machshovoh, plus exposure to real and textual rebbeim.  But given those conditions, every Jew has the right to view themselves as a potential contributor to and transmitter of the Mesorah.  We have the obligation to pursue truth with passion yet with the utmost respect for our predecessors in the eternally unfolding Mesorah.

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Devorah as Shofetet: Exception or Paradigm?

by Rabbi Aryeh Klapper

In his magnificent introduction to the Sheiltot d’Rabbi Achai Gaon, Rabbi Naftali Tzvi Yehudah Berlin (Netziv) describes two models of halakhic development.  One model, which he identifies with the tribe of Levi, works pointilistically and intuitively.  It sees each circumstance and set of facts as unique and seeks a religious response that addresses that uniqueness.  The second model, which he identifies with the tribe of Yehudah, looks to build general principles and abstractions that apply to all circumstances and all times.  It seeks to respond religiously to the universal aspects of particular experience.   

Please understand the importance of Netziv’s contention that each of these are halakhic approaches.  Many other thinkers present similar binaries but see them as fundamentally opposed.  What Netziv calls the Levite model, they present as antinomian aveirah lishmoh, sinning for the sake of Heaven.  They make the compelling argument that the entire purpose of law is to subsume the particular into the general, to produce rules.  There may be circumstances where the rules should or must be broken, but in such cases, we should honor law by acknowledging the breach rather than claim that the law can bend far enough to accommodate our actions.

By framing intuitive, situation-specific responses as a mode of halakhah – indeed, as the proper mode of the posek as opposed to the lamdan – Netziv rejects this approach entirely.  

We might reasonably suggest that Netziv’s own approach is intended to expand the reach of law and domesticate intuition.  If halakhah validates situation-specific religious responses, how could there possibly be room left for aveirah lishmoh?  

But the truth is that Netziv has the most radical and pervasive understanding of aveirah lishmoh in the Mitnagdic world.  His bon mot was that one must always consider the benefits of a mitzvah (an action mandated by halakhah) against its costs, and the cost of an aveirah (an action forbidden by halakhah) against its benefits, because sometimes fulfilling the mitzvah isn’t worth its costs, and sometimes violating the aveirah is worth its costs.  

Why should a halakhah that relates to situations in their particularity ever generate counterproductive mandates or prohibitions?

I think Netziv must distinguish between mediated and unmediated religious intuition.  The posek’s intuition is mediated by halakhah, and must produce law.  

Perhaps Netziv imagines a sort of religious state of nature, in which each individual human being reacts to every situation in accordance with their direct perception of Divine Will.  The problem is that the Divine Will may be different for you than for me.  In Maimonidean terms, for example, my character might best be developed by cultivating uncritical generosity, while you need to overcome the culpable naivete that leads you to donate large sums to fraudulent charities.  So the religious state of nature does not enable the building of a religious society, and since human beings are social creatures, it follows that the state of nature does not enable human fulfillment.   We therefore need a religious social contract.  Cue Sinai; enter the Torah.

Social contracts require individuals to exchange the right to make some choices (“freedom from”) for the ability to make other choices (“freedom to”).  We retain the ability to make choices that we no longer have a right to make, and sometimes we may have the obligation to exercise that ability (aveirah lishmoh).  By organizing as a society, we gain the ability to make new choices that are simply wrong, such as limiting the autonomy of others unnecessarily.

Social contracts are based on principles that harden into rules, and rules harden into laws.  Netziv argues that this must be an iterative process.  One class of halakhists (lamdanim) constantly draws perfectly straight lines connecting previously decided halakhic points, and then argues that the lines define the boundary of the acceptable; another class (poskim) recognizes that an infinite number of curves can be drawn between two points, and contends that the existing pattern of halakhic points does not justify an overwhelming preference for simplicity.  The lamdanim must constantly revise their models to account for new points decided by the poskim, and the poskim must stay within lines that have already hardened.  Great poskim recognize that lines are two-dimensional, which is to say that they can only create boundaries within a single plane.  If we acknowledge the existence of infinite dimensions, then, the lamdanim can never fully constrain the poskim.  But the vast majority of us live in a much less exuberant religious geometry.

This tension can be illustrated within midrash halakhah by comparing the terms “binyan av” and “chiddush”.  Categorizing a legal detail as a binyan av lets one generalizes it to a broad range of halakhot beyond its original context; categorizing it as a chiddush confines it to its original context, and biases one toward defining that context narrowly.  The only difference between a binyan av and a chiddush is that the former seems intuitive and the latter seems counterintuitive.  

Lamdanim generally have a bias toward seeing things as binyanei av, whereas poskim are more willing to categorize them as chiddushim.  But there is at least one exception to this tendency.  Points that are halakhic outliers, but that have great appeal on non-halakhic grounds, will often be generalized by poskim and minimized by lamdanim.

This brings us to the case of Devorah the Prophetess.  There is no question that existing halakhic lines appear to be drawn with the intention of limiting women’s leadership roles.  There is also no question that Devorah led, and more particularly, that she functioned as a judge.  This is true even if one concedes that “shoftim” means political leaders rather than judges, since ויעלו אליה כל ישראל למשפט clearly means tht all Israel went up to her for legal judgement.

The simplest way of drawing the lines is to “chokify” Devorah, to say that she was an exceptional case that has no implications for the halakhot of leadership – she was in essence a living aveirah lishmoh.  This is where lamdanim pull out their literal deus ex machina, namely על פי הדבור שאני – Devorah functioned on the basis of an explicit Divine decree that suspended all the ordinary laws regarding women.  

An alternate approach is to say that the case of Devorah teaches us that the lines we had in mind are wrong, and we were drawing them on the basis of way too little halakhic data.  מקרא מלא אומר והיא שפטה את ישראל – an explicit and perfectly straightforward verse says that she served as a judge.  We might go further and seek to chokify any undeniable halakhic restrictions on women’s leadership, while generalizing the example of Devorah to the extent we can.

This is not a new conversation.  Tosafot record both options, and each reverberates throughout the subsequent rishonim of both Ashkenaz and Sefard.  But more immediately, each found new and enthusiastic exponents during the early years of religious Zionism.  For example, in 1920 Rabbi Yaakov Levenson published a book called שוויון נשים מנקודת ההלכה = The Equality of Women from the Halakhic Point of View, which enthusiastically argued that the restrictions in Rambam had essentially no applications in a democratic society.  Rabbi Levenson was Chairman and then President of American Mizrachi.  See as well the respectful but strong disagreement expressed by Rabbi Yosef Kanovitz of Toronto, President of the Agudat HoRabbonim of the US and Canada, and Rabbi Levenson’s equally civil response.  Note particularly that the full exchange was published originally by Rabbi Levenson in his התורה והמדע and then included in Rabbi Kanovitz’s posthumous collection דברי יוסף.

In this ongoing conversation, I have a quite strong opinion, which largely tracks that of Rabbi Levenson in practice.  I think it is correct to say that on the immediate issue he addressed, which was women’s suffrage, there is now a practical halakhic consensus in his favor, and any line-drawers must take that into account.  I think it is generally better not to draw lines than to draw absurd lines; hence my rejection of positions that allow Golda Meir to be Prime Minister of Israel but not President of a Young Israel.  

I don’t think that halakhah should be decided by projections of historical trends, and there certainly remain areas of leadership about which reasonable and responsible halakhists and halakhic communities can differ passionately.  For the time being, there will be shuls of observant Jews who eagerly seek the public presence of women as religious leaders, and others who sincerely find that presence to be a violation of the halakhic ethos, and still others where the issue will cause constant tension.  But the examples of Rabbis Levenson and Kanovitz should show us that there is no reason, and perhaps no excuse, for making those passionate differences the cause of Orthodox schism.  Let us rather try genuinely to convince each other.

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Women as Clergy

by Rabbi Aryeh Klapper

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

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