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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The Moral and Historical Imperatives of Exodus

This week’s alumni Dvar Torah is by Rabbi Jason Strauss

Parshat Va’era seems to be merely a transition between Shemot and Bo, with no independent significance or character.  Last week’s Torah reading introduced us to Moshe’s character, to Aaron, and to the suffering of the Jewish People in Egypt, while Pharaoh’s decision to release the Jewish People doesn’t happen until next week.  It’s not clear why Va’era stops after the first seven plagues.  Moreover, Va’era opens with a narrative that seems redundant. G-d and Moshe re-litigate G-d’s command to lead the Jewish People out of Egypt and Moshe’s qualifications for the task.

Why was this relitigation necessary?  At the end of Parshat Shemot, Moshe views himself as a failure who has made things worse rather than better for the Jewish People. He accuses G-d of having increased their suffering.  Why is he willing to try again?  G-d’s response must contain something more than a pep-talk to inspire Moshe to return to Pharaoh.  It must effect a change in his self and his self-perception.  

In Parshat Shemot, Moshe is identified with moral sensitivity and principle.  Rav Yaakovson, the Rosh Yeshiva of Shaalvim, explains that “ויצא אל אחיו וירא בסבלותם,” (Exodus 2:11) means that Moshe left his comfortable life style and paid attention to the suffering of his brothers. As Rashi says, “נתן עיניו בלבו”, meaning that he looked inside himself and felt the pain of others. Three times in Shemot, Moshe sees injustice and refuses to stand by idly by; he rescues a fellow Jew being beaten by an Egyptian, a Jew from another Jew, and a group of non-Jewish women from other non-Jews. Unsurprisingly, the Midrash identifies Moshe with righteous justice (Shemot Rabbah 5:10).

However, as Rav Yonatan Grossman notes, Moshe does not yet identify with his people as a historical community. When faced with rejection and threats by his people in Egypt, Moshe runs to Midian instead of continuing to defend the people. Likewise, during Moshe’s initial conversation with Hashem at the burning bush, G-d only mentions that He has “seen” or “heard” the suffering of the Jewish People; there is no mention of the covenant or a historical/national reason for redemption.

In Parshat Va’era, however, Moshe is  rejected by the people and yet still defends them to G-d.  This expression of empathy and identification leads G-d to reveal the special covenant between Him and the people, forged with their ancestors: “I have now heard the moaning of the Israelites because the Egyptians are holding them in bondage, and I have remembered My covenant” (Exodus 6:5). In Va’era, Moshe is for the first time charged with both a moral and a historical mission to redeem Israel from bondage.

As Rabbi Hayyim Angel observes, this explains the abrupt shift in 6:14 from the conversation between G-d and Moshe to Moshe and Aharon’s lineage. Until this point, Moshe’s lineage and heritage were not essential components of his mission or of his willingness to follow G-d’s instruction to liberate the Jewish People; he represented abstract justice.  In Parshat Va’era, Moshe realizes that he must represent the Jewish people as well.  This inspires another crisis of confidence as an outsider: how can he convince Israel, much less Pharaoh, of the possibility of Exodus?  Therefore, the Torah reminds us, and Moshe, of his deep historical connections to the people and its leadership; he and his brother are very much in a position to represent Israel in arguing for their freedom.

 

Sources:

Angel, Hayyim. J. (2014). A Synagogue Companion: Insights on the Torah, Haftarot, and Shabbat Morning Prayers. New York, NY: Institute for Jewish Ideas and Ideals.

Grossman, Yonatan. “The Two Consecrations of Moshe” Virtual Beit Midrash. Yeshivat Har Etzion, 1997. Web. 23 January 2017.

Rabbi Jason Strauss (SBM 2012, 2013, 2014) is the rabbi of Congregation Kadimah-Toras Moshe in Brighton, MA and a teacher at Maimonides School in Brookline, MA.

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Do True Lovers Have Free Will? A Philosophic Pilpul

by Rabbi Aryeh Klapper

In honor of the marriage of Tzipporah Machlah and Yehuda

Principle #6 of the Thirteen Principles of Belief reads: “I believe with perfect belief that all the words of the prophets are true”.  It is therefore astonishing that Meshekh Chokhmah asserts in his Introduction to Sefer Shemot that such belief is impossible.  

Here is his argument:

The prophecy of Mosheh is above the prophecy of all the prophets,

because the prophecy of the others is (certified) on the basis of signs and wonders,

and anyone who believes in signs, has in his heart an imperfection = יש בלבו דופי,

or else is certified via a prophet who is (already) presumed to be a prophet (on the basis of signs and wonders), such as Elisha via Eliyahu,

just that the Torah said to believe a prophet who displays signs and wonders,

just as it commands that we believe witnesses, even though it is not necessarily inevitable that they will always testify truth.

Chananiah ben Azor demonstrates this, as he was a true prophet but in the end became a false prophet, as they say in (the chapter titled) “Those Who are Strangled”.  

Not so Mosheh Rabbeinu, because all Israel heard the Holy Blessed One speaking to Mosheh face to face, and all of them reached the level of prophecy and saw how the Holy Blessed One spoke to him,  therefore Shemot 19:9 says: “Behold I am coming to you in the thickness of cloud, so that the nation will hear when I speak with you, and they will believe also in you forever”,

because so long as they believed on account of the signs, as they did in Mitzrayim – it would have been easy to nullify (whatever Mosheh commanded) via another prophet who displayed signs and wonders;

not so now – even if a thousand myriads of prophets came with signs and wonders to say in the name of Hashem that the point of a yud of Mosheh’s Torah should be altered, we will not heed him, and we have a mitzvah to execute him in accordance with the law of a false prophet,

since regarding the prophecy of Mosheh we ourselves are witnesses, and so Scripture says: and they will believe also in you forever”.

Meshekh Chokhmah contends that belief in prophets other than Mosheh is a legal rather than religious category, and reflects obligation rather than conviction.  Belief in Mosheh is different because it originates in direct experience.

Meshekh Chokhmah’s argument echoes Mishnah Avot 5:16’s reflection on interhuman relationships:

All love that is contingent on something – when that something ceases, the love ceases;

But (love) that is not contingent on anything – will not ever cease

Belief in Mosheh is emunah she’einah teluyah badvar = noncontingent belief; belief on other prophets is emunah heteluyah badavar = contingent belief.

But even this does not convey the full radicalness of Meshekh Chokhmah’s position.  He actually offers two grounds for the contingency of belief in prophets.  The first is that the evidence for their status is irrelevant.  The second is that prophets are human beings with free will, and someone may be a true prophet one day and corrupt the next.  Mosheh Rabbeinu is an exception to the first issue because his status is established differently; but how could G-d tell the Jews to believe in Mosheh forever?  Shouldn’t they keep in mind that even he might be corrupted?  As Meshekh Chokhmah writes:

If so, how could G-d command that they believe forever in Mosheh – does not Berakhot 33a teach that “All is in the hands of Heaven except the fear of Heaven”, and (therefore) that knowledge does not compel choice?  (Should they not be concerned) lest Mosheh afterward choose, G-d forbid, to add (to the Torah) out of his own mind?!

He concludes:

Against our will, (we must say) that Hashem the Blessed removed choice from Mosheh utterly, and he was left determined, as the angels are.

Two subtly ironic touches show that he understands just how extreme this conclusion seems.  The first is his statement that the position that Mosheh Rabbeinu did not have free will is reached al karchin = against our will.  The second is his citation of the source for his argument:

Investigate closely all the words of Rabbeinu (=RAMBAM) in the Laws of the Foundations of the Torah Chapters 7 and 8, because all his words are holy, and they were said in the spirit of prophecy without a doubt.

In other words, Meshekh Chokhmah’s argument for the possible falseness of all prophecy other than that of Mosheh Rabbeinu, derives from the words of Rabbeinu Mosheh (ben Maimon, RAMBAM), but the prophetic authenticity of RAMBAM cannot be doubted.  Why not?  Was Rambam also deprived of his free will?

Note also that in this reading Mosheh becomes the mirror image of Pharaoh.

But let us focus once again on the nexus of love and belief.  Meshekh Chokhmah suggests that Mosheh’s becoming angelic led to his separation from his wife.  In his formulation, the issue is a lack of physicality; Mosheh literally becomes an angel.  

But it seems to me that a better argument can be made directly from the issue of free will.  Genuine relationship requires that both parties maintain the relationship of their own choice, and a man without free will cannot be a real husband.  Indeed, while Meshekh Chokhmah tries hard to present Mosheh’s apotheosis as a reward, G-d created humans precisely because angels cannot freely choose to love Him.

But here is the problem.  We argued above that love and belief are parallel.  Contingent love, like belief in non-Mosaic prophecy, is subject to change and decay.  Love based on direct experience of the other, like the Jewish people’s prophetic experience of Mosheh’s prophecy, is eternal.  How can this be so?  Why doesn’t it depend on the lover’s choice to act in accordance with his or her experience?  

One might suggest that true lovers are deprived of free will.  But we just argued based on Mosheh that true love requires free will!

I’m not at all sure that we should try to resolve this contradiction.  As Rabbi Akiva does with the apparent contradiction between Divine foreknowledge and human free will, sometimes you just have to embrace the paradox: “Everything is foreseen, and yet autonomy is granted”. (Avot 3:15).  

Instead, we should bless the newly married couple that their love, so deeply grounded in genuine experience of each other’s souls, provide them with both the security that stems from a promise of eternity and the wonder generated by the constant experience of freely choosing to share one’s life, and of having that choice freely reciprocated.

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A Pharaoh Who Knew Joseph

This week’s alumni Dvar Torah is by Rabbi David Fried

At the beginning of Parshat Shmot, describing the enslavement of the Jewish people in Egypt, the Torah states (Shmot 1:13):

וַיַּעֲבִדוּ מִצְרַיִם אֶת בְּנֵי יִשְׂרָאֵל בְּפָרֶךְ

Egypt enslaved the children of Israel with parech.

The word parech is usually translated as some kind of very difficult, or perhaps even unproductive, labor.  However, in the Gemara Sota 11b, Rabbi Elazar says we should interpret the word as פה רך—a soft mouth, which Rashi explains means that they initially drew them into the labor with kind words until they were accustomed to it.  The Midrash Tanchuma (B’ha’alotecha 13) elaborates on this idea by saying that at first Pharaoh and all the Egyptians took up the baskets and shovels themselves, and when the Jewish people saw all of the Egyptians participating they eagerly joined in as well.

On the surface, one could analyze what point this Midrash is trying to make.  Were the Jews too eager to be seen as “real” Egyptians?  Were they afraid of being seen as outsiders if they did not participate?  I would like to start the analysis with a different question: where in the text is this interpretation coming from?  Rabbi Elazar’s read of פרך as פה רך is a clever hook for this Midrash, but is clearly not the simple meaning of the word.  Like many Midrashim, a real appreciation of where it comes from requires a much broader study of the text.  And like many Midrashim on the beginning of Shmot, I believe the source for this Midrash is in Sefer Breishit.

Back in Parshat Vayigash, we are told about how Yosef stored up grain in Egypt during the years of plenty, and then sold it to them during the years of famine, in order to keep everyone alive.  At some point, though, the people run out of money.  In chapter 47 of Breishit, the Torah tells us:

יט לָמָּה נָמוּת לְעֵינֶיךָ גַּם אֲנַחְנוּ גַּם אַדְמָתֵנוּ קְנֵה אֹתָנוּ וְאֶת אַדְמָתֵנוּ בַּלָּחֶם וְנִהְיֶה אֲנַחְנוּ וְאַדְמָתֵנוּ עֲבָדִים לְפַרְעֹה וְתֶן זֶרַע וְנִחְיֶה וְלֹא נָמוּת וְהָאֲדָמָה לֹא תֵשָׁם

כ וַיִּקֶן יוֹסֵף אֶת כָּל אַדְמַת מִצְרַיִם לְפַרְעֹה כִּי מָכְרוּ מִצְרַיִם אִישׁ שָׂדֵהוּ כִּי חָזַק עֲלֵהֶם הָרָעָב וַתְּהִי הָאָרֶץ לְפַרְעֹה

כא וְאֶת הָעָם הֶעֱבִיר אֹתוֹ לֶעָרִים מִקְצֵה גְבוּל מִצְרַיִם וְעַד קָצֵהוּ

כב רַק אַדְמַת הַכֹּהֲנִים לֹא קָנָה כִּי חֹק לַכֹּהֲנִים מֵאֵת פַּרְעֹה וְאָכְלוּ אֶת חֻקָּם אֲשֶׁר נָתַן לָהֶם פַּרְעֹה עַל כֵּן לֹא מָכְרוּ אֶת אַדְמָתָם

כג וַיֹּאמֶר יוֹסֵף אֶל הָעָם הֵן קָנִיתִי אֶתְכֶם הַיּוֹם וְאֶת אַדְמַתְכֶם לְפַרְעֹה הֵא לָכֶם זֶרַע וּזְרַעְתֶּם אֶת הָאֲדָמָה

כד וְהָיָה בַּתְּבוּאֹת וּנְתַתֶּם חֲמִישִׁית לְפַרְעֹה וְאַרְבַּע הַיָּדֹת יִהְיֶה לָכֶם לְזֶרַע הַשָּׂדֶה וּלְאָכְלְכֶם וְלַאֲשֶׁר בְּבָתֵּיכֶם וְלֶאֱכֹל לְטַפְּכֶם

כה וַיֹּאמְרוּ הֶחֱיִתָנוּ נִמְצָא חֵן בְּעֵינֵי אֲדֹנִי וְהָיִינוּ עֲבָדִים לְפַרְעֹה

כו וַיָּשֶׂם אֹתָהּ יוֹסֵף לְחֹק עַד הַיּוֹם הַזֶּה עַל אַדְמַת מִצְרַיִם לְפַרְעֹה לַחֹמֶשׁ רַק אַדְמַת הַכֹּהֲנִים לְבַדָּם לֹא הָיְתָה לְפַרְעֹה

19Let us not perish before your eyes, both we and our land. Take us and our land in exchange for bread, and we with our land will be slaves to Pharaoh; provide the seed, that we may live and not die, and that the land may not become a waste.”

20So Joseph gained possession of all the farm land of Egypt for Pharaoh, every Egyptian having sold his field because the famine was too much for them; thus the land passed over to Pharaoh. 21And he removed the population town by town, from one end of Egypt’s border to the other. 22Only the land of the priests he did not take over, for the priests had an allotment from Pharaoh, and they lived off the allotment which Pharaoh had made to them; therefore they did not sell their land.

23Then Joseph said to the people, “Whereas I have this day acquired you and your land for Pharaoh, here is seed for you to sow the land. 24And when harvest comes, you shall give one-fifth to Pharaoh, and four-fifths shall be yours as seed for the fields and as food for you and those in your households, and as nourishment for your children.” 25And they said, “You have saved our lives! We are grateful to my lord, and we shall be slaves to Pharaoh.” 26And Joseph made it into a land law in Egypt, which is still valid to this day, that a fifth should be Pharaoh’s; only the land of the priests did not become Pharaoh’s. (New JPS translation, slightly modified)

Just a generation earlier, Yosef had made the entire population of Egypt “slaves to Pharaoh.”  The Midrash is highlighting that in order to convince the Jewish people to be slaves to Pharaoh, all they had to do was point to the fact everyone in Egypt was already slaves to Pharaoh, so why should they be any different?  (I believe this is also the source for the Midrash that the tribe of Levi was never enslaved—the Egyptian Priests were never enslaved to Pharaoh as we saw in the verses quoted above, and the idea was that the Jewish slavery was just a matter of convincing the Jews to accept the same arrangement as the rest of the Egyptians.)

As to the ultimate message of this Midrash, we can only speculate.  Perhaps it is intending to criticize Yosef’s policy of making all of the Egyptians slaves to Pharaoh.  Perhaps that policy was necessary as an emergency measure during the famine and had outlived its usefulness but the Jews were afraid to criticize it for fear of being seen as outsiders or having their Egyptian patriotism questioned.  What we can say for sure is that this Midrash teaches us that a deeper, richer, conversation about Sefer Shmot can be had when we learn it side by side with Sefer Breishit.

Rabbi David Fried (SBM 2010) is a musmakh of Yeshivat Chovevei Torah and teaches Judaics at the Hebrew High School of New England in West Hartford, CT.

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The Elor Azaria Case: A Halakhic Framework

by Rabbi Aryeh Klapper

Last spring, IDF soldier Elor Azaria deliberately shot and killed a wounded man lying on the ground. Several minutes before, that man had deliberately knifed one of Elor’s comrades.

Last week, a military tribunal found Azaria guilty of “harigah”. Generals and philosophers and rabbis weighed in to support or denounce the verdict, while accusing each other of ignoring or distorting Torah and ethics. Some voices supported the verdict but called for either a pardon or for very lenient sentencing.

The verdict depended on both a determination of fact – that Azaria had no reasonable basis to believe that the man posed a threat – and a determination of law.

Given the determination of fact, was the determination of law compatible with the letter and spirit of Halakhah?

One halakhic framework many opiners cited is Maimonides’ ruling (Laws of Murder and Life-Preservation 1:13) that one must use the minimum force necessary to stop a rodef (person attempting to kill another). One who kills a rodef unnecessarily is called a shofekh damim (bloodshedder), but is not executed by Torah courts.

Why is he not executed? Maimonides distinguishes between retzichah (murder), which is automatically punished by execution, and shefikhut damim (bloodshedding), which is not. As in many legal systems, a variety of mitigating factors can lower a crime from first to second degree homicide, or from murder to manslaughter.

The Israeli military system apparently makes a similar distinction between “retzichah” and “harigah”, with harigah parallel to shefikhut damim. (The analogy some have made to the halakhic category retzichah beshogeg (accidental homicide), which is punished by internal exile, is incorrect.)

While halakhah does not mandate executing a shofekh damim, Maimonides makes clear that the state has the authority to punish the sinner in accordance with social need and communal ethics.

Therefore, if rodef is the proper framework, Halakhah leaves Azaria’s punishment to the judgement of the secular authorities. It is within the letter and spirit of halakhah to argue for leniency or stringency on moral or policy grounds.

However, rodef is not the proper framework, for several reasons.

1) Maimonides discusses situations where the rodef is still dangerous; he never considers permitting the extrajudicial killing of an incapacitated rodef. If a terrorist no longer poses a threat, only formally constituted authorities may execute him. (The related halakhic framework of ba bamachteret (furtive trespass) yields the same result.)

2) Rodef does not apply in the context of war. Soldiers engaged in battle have no halakhic obligation to wound rather than kill enemies, even when wounding would accomplish the same military objective. (I discuss captured or surrendering soldiers below.)

With rodef eliminated, what is the proper framework? Should the man Elor Azaria killed be treated as a civilian who attempted murder, or rather as a soldier in an enemy army?

Professor Asa Kasher, [1] an author of the IDF code of ethics, contends that terrorists must be treated as civilian criminals. I suggest that from a halakhic perspective, the issue may depend on the status of non-Jews living under Jewish rule in the Land of Israel today.

Popular halakhah often uses the term gerei toshav (resident aliens) to refer to non-Jews who observe the Seven Noachide Commandments, including the prohibition against bloodshedding. However, this halakhic category formally applies only when the Jubilee is in force, and only in territory under Jewish rule. The Jubilee is not in force today, and throughout the Diaspora Jews live and have lived under non-Jewish sovereignty. Clearly the non-Jews of those societies are not formal gerei toshav. There must be a category that covers at least non-Jews living under their own sovereignty outside the Land of Israel.

My tradition from my teachers is to distinguish between de jure and de facto gerei toshav. De jure gerei toshav undergo a formal naturalization process which includes acceptance of Jewish rule and of the binding force of the Seven Noachide Commandments, including the prohibition against bloodshedding. De facto gerei toshav simply live in accordance with the Seven Noachide Commandments. The conditions of the Jubilee et al apply only to de jure gerei toshav, whereas our obligations of sustaining (including the law of pursuit) apply to both categories of gerei toshav.

Three relevant questions remain open:

  1. What is the status of a de facto ger toshav who lives in an area under legitimate Jewish rule but actively resists that rule?
  2. Can the status of de facto ger toshav result from membership in a community or group, or must it be acquired individually on the basis of behavior?
  3. If a de facto ger toshav deliberately violates one of the Seven Noachide Commandments, is he or she now considered a sinning ger toshav, or rather an ex-ger toshav?

I suggest that along these three axes it is possible to distinguish between citizens of Israel and non-citizens living in the Territories. Perhaps Israeli citizenship automatically grants a person the status of de facto ger toshav, and so long as the person retains citizenship, regardless of their crimes, they remain gerei toshav. However, residents of the territories living under military administration have no such collective grant. Their status depends on their individual actions, and so an attempted murderer from the territories loses the status of ger toshav. Furthermore, perhaps attempted murderers with political motivations, having lost the status of ger toshav, may be treated halakhically as enemy combatants. (But there really is very little halakhic discussion of irregular warfare.)

Terrorists who are not Israeli citizens are therefore not gerei toshav, and likely should be regarded as enemy combatants. (We must still consider whether soldiers should presume that terrorists are citizens.) Elor Azaria’s case should accordingly be treated as equivalent to shooting an incapacitated prisoner of war.

The halakhah regarding prisoners of war is undeveloped. But there is universal agreement that the IDF can hold its soldiers accountable to its own code of conduct in this regard. The IDF has the right to punish Elor Azaria as it sees fit for violating its halakhically legitimate ethical norms.

I celebrate the continued vitality of those norms, and support their robust enforcement.

Some of those who demonstrated against the Azaria verdict did so with reprehensible motivations, such as racism, or actions, such as threats of violence. There is no room for threats against a legitimate system of justice. The defendant seems to show no remorse. There is grave danger of a slippery slope, and of emboldening dangerous elements of Israeli society. For all these reasons, I oppose showing Azaria extraordinary leniency.

But I do not think it is fair to tar all those who call for leniency as denying obvious principles of halakhah or Jewish ethics. There is no developed body of halakhah dealing with the ethics of ethically asymmetrical warfare. Having never been a soldier, I prefer not to make absolute judgments about what it is fair to expect of human beings in the fog of battle, although in this case my instincts are with the prosecution.

It is rarely good for justice when individual cases become symbols. For example, symbolic defendants often cannot be acquitted when there is strong evidence of guilt, even if reasonable doubt remains. Such cases are a good time for scholars to heed the Rabbinic injunction “Sages, be cautious with your words”, lest you mislead your students and they suffer the consequences. I hope my words here meet that standard.

 

Notes:

[1] see here for a Torah in Motion panel on military ethics featuring Dr. Kasher and myself

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Love in the Beginning

This week’s alumni Dvar Torah is by Sam Englender

It’s been almost three months since Simchat Torah, and since then, a lot has happened. The world has been created, filled, flooded, and then filled again. We’ve also seen our own family struggle and grow. Each generation with its own challenges, our nth-times-over great grandparents have fought and grown and loved.

And it is this love that I want to focus on, for as we will see, there is something very strange afoot.

Our Patriarchs and Matriarchs loved often and with great intensity. God is usually very sparing in God’s description of internal emotions in the Torah, yet in Sefer Bereishit we see that the root אהב (love) is used 15 times. And when we explore these verses, it becomes clear that this “Bereishit Love” is a very specific type of love: Possessive Love.

In Possessive Love the lover (the one who loves) doesn’t take in account the “lovee’s” (the object of the love) wishes and desires. This is why in all of Bereshit we never are told of the lovee’s reaction to love. Rather the Torah tells us only of the lover’s desires and emotions. We are told that Jacob loves Rachel, not that Jacob and Rachel love each other. The lovee is in effect negated. Let’s take a look at an example:

Bereishit 34

 וַיַּרְא אֹתָהּ שְׁכֶם בֶּן-חֲמוֹר, הַחִוִּי–נְשִׂיא הָאָרֶץ; וַיִּקַּח אֹתָהּ וַיִּשְׁכַּב אֹתָהּ, וַיְעַנֶּהָ

 וַתִּדְבַּק נַפְשׁוֹ, בְּדִינָה בַּת-יַעֲקֹב; וַיֶּאֱהַב, אֶת-הַנַּעֲרָ, וַיְדַבֵּר, עַל-לֵב הַנַּעֲרָ

2 And Shechem the son of Hamor the Hivite, the prince of the land, saw her; and he took her, and lay with her, and raped her.

3 And his soul cleaved unto Dinah the daughter of Jacob, and he loved the maiden, and he appealed to the maiden’s emotions.

Dina’s rape proves that Shechem doesn’t have an iota of concern for Dina. And yet the Torah tells us that he loves Dina! How could this be? It is because Shechem loves Dina with Bereishit Love, a possessive love that completely disregards the desires of the object of their affections.

Moreover, when you love someone with a possessive love, you also think about them constantly. You need their constant presence (think about the stereotypical over-possessive boyfriend, or the pageant mom). The lovee becomes absorbed into the lover’s identity. Perhaps the story of Dina and Shechem is the most violent and disturbing example of this possessive love. However, this model holds true throughout Bereishit. Here’s another example from when Yosef’s brothers are recalling (a yet unrevealed) Yosef’s query about their family in Egypt:

Bereishit 46

 וַנֹּאמֶר, אֶל-אֲדֹנִי, יֶשׁ-לָנוּ אָב זָקֵן, וְיֶלֶד זְקֻנִים קָטָן; וְאָחִיו מֵת, וַיִּוָּתֵר הוּא לְבַדּוֹ לְאִמּוֹ וְאָבִיו אֲהֵבוֹ

.כא  וַתֹּאמֶר, אֶל-עֲבָדֶיךָ, הוֹרִדֻהוּ, אֵלָי; וְאָשִׂימָה עֵינִי, עָלָיו

.כב  וַנֹּאמֶר, אֶל-אֲדֹנִי, לֹא-יוּכַל הַנַּעַר, לַעֲזֹב אֶת-אָבִיו:  וְעָזַב אֶת-אָבִיו, וָמֵת

20 And we said unto my lord: We have an elderly father (Yaakov), and a young child of his old age (Binyamin); and his brother is dead (Yosef), and he (Binyamin) alone is left of his mother, and his father loves him.

21 And you said to your servants: Bring him down to me, that I may set mine eyes on him.

22 And we said unto my lord: The child cannot leave his father; for if he should leave his father, his father would die.

Here it is clear as can be. It doesn’t matter if Binyamin wants to travel to Egypt or not. Binyamin’s needs and desires are irrelevant for Yaakov, he simply must have Binyamin nearby. Binyamin is not allowed to have any identity other than Yaakov’s son. Bereishit Love  doesn’t think about the lovee’s needs and simultaneously can’t live without the lovee. The danger of this type of love is holding someone so close that you subsume them, you erase their humanity.

However, Bereishit Love is not the only type of love in the Torah. We are see that there exists Commanded Love. In the Torah there appear three commandments to love. Let’s take a look:

Vayikra 19

.יח  לֹא-תִקֹּם וְלֹא-תִטֹּר אֶת-בְּנֵי עַמֶּךָ, וְאָהַבְתָּ לְרֵעֲךָ כָּמוֹךָ:  אֲנִי, יְהוָה

18 You shall not take vengeance, nor bear any grudge against the children of your people, but shall love your neighbour as yourself: I am the LORD.

 

Devarim 10

.יח  עֹשֶׂה מִשְׁפַּט יָתוֹם, וְאַלְמָנָה; וְאֹהֵב גֵּר, לָתֶת לוֹ לֶחֶם וְשִׂמְלָה

.יט  וַאֲהַבְתֶּם, אֶת-הַגֵּר:  כִּי-גֵרִים הֱיִיתֶם, בְּאֶרֶץ מִצְרָיִם

18 He executes justice for the fatherless and widow, and loves the stranger, giving him food and clothes.

19 Love the stranger; for you were strangers in the land of Egypt.

 

Devarim 6

 וְאָהַבְתָּ, אֵת יְהוָה אֱלֹהֶיךָ, בְּכָל-לְבָבְךָ וּבְכָל-נַפְשְׁךָ, וּבְכָל-מְאֹדֶךָ

5 And you shall love the LORD your God with all your heart, and with all your soul, and with all your might.

In all of these three cases, we are told to bring close that which often seems far away. Just as we told to keep God close to us, we also are told to keep our fellow and the ger close to us.

Bereishit Love is the danger of zero boundaries, but Commanded Love is responding to a danger at the opposite pole, that of holding people at too far of a distance. There is no commandment to love your husband or wife, or parents or children. That is because, love of family is natural. The primary danger of loving your family, is loving love in a way that doesn’t allow the lovee their own identity. This is what God is trying to warn us against in Bereishit. However, in the rest of the Torah, we are shown that there is another very real danger, that of insulating ourselves from building relationship with those distant from us. We must be commanded to love God, to love our fellow and the ger so that we will be part of something greater than just a family. If we follow these mitzvot we will be part of a holy community that takes care and builds connection with the others in its midst.

So as we transition from Bereishit to Shemot, may we all merit to bring both God and those who are far away, closer into our midst.    

Sam Englender (SBM 2015) is in his third year at Yeshivat Chovevei Torah.

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Is Halakhah Always Law? Thoughts about Aggadic Aging, Morality, and Mortality

by Rabbi Aryeh Klapper

Does Jewish tradition recognize an ethic independent of Halakhah? In his article by that title, Rav Aharon Lichtenstein zt”l argued that the question is semantic.  If one defines Halakhah expansively as the totality of Jewish religious obligations, ethics are included; if one limits Halakhah to the realm of religious law, then some ethical obligations are external to the system.

ראויים דברים למי שאמרם – This answer was a fitting formulation for R. Lichtenstein, who for me and countless others embodied Awe of Heaven (יראת שמים).  But there are many ways in which it can fail to satisfy others.  The most obvious is that it ignores (other than in Footnote 5) the question of whether ethics can ever legitimately conflict with religious law, and if yes, how a religious person should behave when legitimate sources of religious obligation conflict.

I want to raise a less obvious but perhaps more fundamental issue.  To what extent, and in what contexts, is halakhah supposed to function as law rather than as ethics?  Rav Lichtenstein’s approach distinguishes between formal law (דין) and informal ethics (לפנים משורת הדין), or alternatively between the letter and the spirit of the law.  These distinctions may not do justice to the phenomenon of halakhah.

For example:  Does law require a human enforcement mechanism external to the person bound by the law?  In other words, must law make me accountable to other human beings to be “law?  I think the conventional answer is yes.  But Halakhah includes many crimes that, in its own terms, are punished by G-d and not by human beings.  It includes other categories of wrongdoings which Chazal admit can never be conclusively observed by human beings because they depend on intent in cases where intent cannot be conclusively inferred from actions (“לכך כתוב “ויראת מאלקיך).  Are these law, or ethics?

A second, more immediately practical, question is whether halakhah is always supposed to tell people what to do, or rather – at least in some cases and contexts – to provide a framework which leaves room for subjective decisionmaking.

This second option may seem oxymoronic – in what sense is something halakhah if it leaves room for subjectivity?  But the apparent contradiction stems from the same issue of accountability to others.  What if halakhah sometimes has a right answer that absolutely binds you, but that only you can discover and know?

I want to explore that possibility through a fascinating Rabbinic reading of an element of this week’s parshah, when Yosef is told “behold your father is ill”.

Avraham, Chazal tell us, was bothered because people could not tell him and Yitzchak apart.  He therefore asked G-d to introduce cosmetic aging.  In some versions, Yitzchak asks for aging to involve suffering as well, so that sins can be atoned for.  Yaakov then asks for illness to precede death, so that people will know to put their family affairs in order.

This paragraph is best read as the sustained development of a science fiction premise, along the lines of Alan Lightman’s treatment of time in Einstein’s Dreams.  What would it be like to live in a world with no physical aging, or with purely cosmetic aging, but without immortality?

It seems to me that in such a world death would be experienced as totally arbitrary.  The Master Timekeeper blanks your cardioplate without any notice, and you keel over and die.  (In Harlan Ellison’s magnificent “Repent, Harlequin’, said the Ticktockman”, the Master Timekeeper does send advance notice.  עיין שם.)

Yaakov feels that this condition deprives him of dignity.  Mortality per se is undignified, but Yaakov feels that the indignity can be diminished by facing (or perhaps confronting) death.  He is willing to sacrifice his physical quality of life, and experience the physical indignities of old age, in order to face death squarely.

One might object to Yaakov: Shouldn’t we face death every day, since it may come at any time?  Didn’t Rabbi Eliezer tell us to repent the day before our death, and when challenged, acknowledge that this meant we should repent every day?

I think the proper answer is that the mussar mentality also has its limits.  Death-consciousness should be in the back of a healthy mind in an apparently healthy body, but not at its front. But there comes a stage – thanks to Yaakov – when it properly moves to the front.

Does this aggada have anything to teach us about modern halakhah?

Contemporary medical technology has created a world which is the opposite of Chazal’s prePatriarchal imaginarium.  Before Yaakov, we had death without mortal illness; now, we have mortal illness which can go on for years, with progressive mental and physical debilitation.  The practical impact of this reality can be that Yaakov’s gambit now gives the elderly the worst of both worlds; the indignity of physical (and mental) limitations without the compensation of confronting impending death in full consciousness.

One vision of geriatric halakhah assumes that the prolongation of life is always the supreme value.  Observant Jews facing a progressive mortal illness should manage their care accordingly.  While there is room at some point for refusing some kinds of care, perhaps rather than endure overwhelming pain, the choices are always made on an either/or basis, and decisions which prioritize anything above life are always concessions to weakness.

A very different vision, informed by our aggada, would relate to mortal illness as an intended Divine gift, requested and bestowed to diminish rather than escalate the indignity of dying.  Patients would be empowered and encouraged to make decisions within that framework from the very outset of their illness.

Even suggesting such an approach is risky nowadays.  Whereas Yaakov sought to know when death was imminent, the contemporary West has often instead sought the autonomy, and the consequent dignity, of determining the time of one’s own death.  This has generated the push to legalize physician-assisted suicide in many states, and euthanasia in several European countries.  From a halakhic perspective I believe such laws are fundamentally licenses to murder, and I believe that the same argument can easily be made in a secular key.

Here is where it should make a difference to have halakhah, rather than unrooted ethics.  Halakhic rules can prevent one from imagining – or at the least from acting on the imagination – that suicide is a defeat of mortality, rather than a rejection of the value of life.  They can force the concession that one is not always entitled to dignity when that conflicts with acknowledgement of G-d’s sovereignty.

At the same time, I am suggesting, halakhah might leave space for individuals to determine whether to adopt a course of treatment that will prolong life but diminish conscious life, or the mental acuity with which one lives, or one’s capacity to live with some modicum of independence.

These must not be free-for-alls, but rather real halakhic decisions with absolute right and wrong answers for each individual, and yet, decisions that should be left in the realm of ויראת מאלקיך rather than externally imposed.  They must be made in the religious arena and not with halakhically unjustified deference to the regnant practices of the medical profession.  What we need is a model of G-d-fearing that eagerly seeks intellectual and moral accountability to the tradition and its past and present human interpreters without surrendering responsibility.

In other words, I am suggesting that halakhah here should be a hybrid or new construction at the intersection of ethics and law, and furthermore, that perhaps there is space for such an approach in many other halakhic contexts.

 

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