Min haMuvhar

           Diversity of opinion is a reality well recognized in Jewish tradition. The Talmud (Berakhot 58a) records the ruling that one is required to make a blessing upon seeing a huge crowd of Jews, praising God who is hakham haRazim, who understands the root and inner thoughts of each individual.  "Their thoughts are not alike, and their appearance is not alike." Just as no two faces are exactly the same, so no two people think exactly the same. God created each individual to be unique; He expected and wanted diversity of thought.[1]

The recognition that each person thinks differently leads to a respect for the right of a person to express his or her opinion. This notion is dramatically underscored in the laws relating to a zaken mamre, a rebellious elder. The elder (rabbinic scholar) is not deemed guilty for teaching opinions contrary to the rulings of the Great Court; he is only punishable if he instructs people to defy those rulings.[2] It is also reflected in the talmudic practice of recording minority opinions, even though the law follows the consensus of the majority.[3] Even rejected opinions are entitled to respect.

Yet, although Judaism respects diversity of opinion and allows considerable freedom of expression, it also sets some boundaries beyond which a person may not trespass. One may not believe in the divinity of idols. One must believe that the Torah is from Heaven. Indeed, Maimonides listed 13 principles of faith that a Jew must accept. If not, one forfeits a portion in the world to come.[4] We are not free to follow our intellect if it leads us to incorrect beliefs. Our intellectual freedom, thus, is limited by the authoritative beliefs taught by the Torah and our sages.

Within the boundaries of normative Judaism, dissent is respected and even encouraged. But beyond those boundaries, dissent is not tolerated. Intellectual freedom gives way to the authority of tradition. A problem arises: What exactly are the boundaries established by tradition? A variety of attempts have been made over the centuries to establish the principles of Judaism from which one may not dissent.[5] There are certain tenets of faith that may not be denied.

Yet, within the framework of Jewish law and thought, there is considerable room for responsible differences of opinion. When the right to express responsible opinions is negated, Judaism suffers. In a fascinating responsum, Rabbi Naftali Tsevi Yehudah Berlin—the Netsiv—reminded his readers that during the time of the Second Temple, the Jewish people was divided between the Perushim and Tsedukim. Competition between the groups was intense. The situation became so bad that Perushim branded as a Tseduki anyone who deviated even slightly from prevailing practice. To dissent from the predominant opinion led to one's being ostracized. The Netsiv applied the lesson to his own time:

It is not difficult to imagine reaching this situation in our time, Heaven forbid, that if one of the faithful thinks that a certain person does not follow his way in the service of God, then he will judge him as a heretic. He will distance himself from him. People will pursue one another with seeming justification (beHeter dimyon), Heaven forbid, and the people of God will be destroyed, Heaven forfend.[6]

The Netsiv was concerned that self-righteous individuals were attempting to suppress the opinions of others. In the name of Torah, they sought to discredit others—even branding them as heretics. Yet, Jewish tradition respects the right and responsibility of individuals to express opinions that are fully based on proper Torah authority—even when those opinions differ from those popularly held. Rabbi Yehiel Michel Epstein, author of the Arukh haShulhan, noted that differences of opinion among our sages constitute the glory of the Torah. "The entire Torah is called a song (shirah), and the glory of a song is when the voices differ one from the other. This is the essence of its pleasantness."[7]

II

The boundaries of dissent and authority are not always obvious. Let us consider several specific issues, one in the realm of halakha and one in the realm of aggada. The Shulhan Arukh rules (Yoreh Deah 242:2, 3) that one who dissents (holek) from his rabbi is as one who dissents from the Shekhinah. The holek al rabbo is defined as one who establishes his own yeshiva and sets himself up as teacher without getting his rabbi's permission. The Rama adds: "but it is permissible for him to dissent from (his rabbi's) ruling or teaching if he has proofs and arguments to uphold his opinion that the law is according to him (rather than his rabbi)."

This halakha deals with the balance between authority and dissent. On the one hand, a student must respect the authority of his teacher and not try to establish himself as an authority on his own. This would undermine the status of his teacher. On the other hand, if the student has strong proofs to support a halakhic ruling against his teacher, he may disagree with him. Rabbi Hayyim Yosef David Azulai, in his Birkei Yosef, cited the opinion of the Radhaz that a student may disagree with a ruling of his teacher but should not publicize the disagreement nor write a contrary pesak for distribution.[8] The students of each generation had disagreements with their teachers, and did present their proofs and refutations to them. To be sure, students are obligated to present their cases respectfully and reverentially. Their purpose must be to establish the truth, not to aggrandize themselves nor demean their rabbis, Moreover, we are speaking of students who have reached a very high level of Torah learning, and whose opinions deserve serious consideration.

Rabbi Hayyim David Halevy has stated:

Not only does a judge have the right to rule against his rabbis; he also has an obligation to do so (if he believes their decision to be incorrect, and he has strong proofs to support his own position.) If the decision of those greater than he does not seem right to him, and he is not comfortable following it, and yet he follows that decision (in deference to their authority), then it is almost certain that he has rendered a false judgment (din sheker).[9]

Rabbi Yaacov Emden ruled that students should question their rabbis' teachings as best as they can. In this way, truth is clarified.

In regard to legal decisions, not only is the student allowed to reveal his opinion and proofs to refute the words of his rabbi, but he is also obligated to do so. He should not remain silent in such a situation in deference to the honor due his rabbi; the honor due to the Torah is greater.[10]

The issue of dissent from one's rabbis extends back in time to dissension from the rulings of sages of previous generations. Certainly, the earlier sages are granted greater authority than the later sages. Rabbi Yehiel Yaacov Weinberg wrote that proper Torah methodology involves serious analysis of the writings of the aharonim, including evaluation and criticism of their statements. Yet, in matters of pesak we may not dissent from their rulings. In the areas of opinion and explanation, though, we do have the right to offer new insights "because each Jew whose soul was at the revelation at Sinai received his portion in Torah and in novellae of Torah. One should not quibble against this point."[11]

Rabbi Hayyim Palachi wrote that "the Torah gave permission to each person to express his opinion according to his understanding. . . . It is not good for a sage to withhold his words out of deference to the sages who preceded him if he finds in their words a clear contradiction. . . ." Moreover, "a sage who wishes to write his proofs against the kings and giants of Torah should not withhold his words nor suppress his prophecy, but should give his analysis as he has been guided by Heaven. [In this situation,] one does not give honor to the rabbi, for this is Torah and I must study it." Rabbi Palachi noted that even though Maimonides certainly wrote with Divine inspiration, nevertheless many great sages of his generation attacked him and criticized his work. There are numerous examples of students refuting their teachers: Rabbi Yehudah Hanasi disagreed with his father; the Rashba disagreed with the Ramban. The Tosafists disagreed often with Rashi. Respect for authority does not mean that one may not hold opposing opinions.[12]

Rabbi Moshch Feinstein, in one of his responsa, expressed disagreement with an opinion of Rabbi Shelomo Kluger. In rejecting that opinion, Rabbi Feinstein wrote: "But it is certain that I am right (ha-tsedek iti) and that the words of Rabbi Shelomo Kluger-with all due respect-are nothing (einam kelum). One must love truth more than anything."[13] In another responsum, Rabbi Feinstein replied to a rabbi in Benei Berak, who worried because he sometimes taught opinions contrary to those of the Hazon Ish, who was the rabbi of that vicinity. Rabbi Feinstein pointed out that it was not at all disrespectful for the rabbi to study and quote the words of the Hazon Ish, even if he disagreed with some of them. On the contrary, that is the honor of Torah—to have words taken seriously and evaluated seriously. It could not have occurred to the Hazon Ish that there would never arise rabbis who would disagree with his teachings. Rabbi Feinstein concluded by saying that one is certainly allowed to question and disagree with the sages of our generation, even the greatest sages, as long as one does so respectfully, and with proper halakhic justification.[14]

Rabbi Yosef Hayyim of Bagdad, in the introduction to his Rav Pe-alim, stressed the need to be exceedingly respectful of the sages of previous generations. He opposed attacking the opinions of those sages. But it is obvious that even great sages make errors. Yet, when one offers a critique or correction of the words of sages, he should not do so with any sense of personal pride or vanity. He should be humble, aware that even great sages may overlook a source or miss a particular point.[15]

From this discussion, we see that responsible and respectful disagreement is a legitimate and necessary aspect of the halakhic system. Views that can be properly substantiated, even if they conflict with views of greater and earlier authorities, deserve to be heard. One cannot properly be called an apikores simply because he holds a position which differs from others. On the contrary, his position should be carefully evaluated. If it is wrong, it should be criticized and rejected. If it is right, it should be accepted in spite of the greatness of authorities who held a different opinion.

The boundary of legitimacy is not what one individual or group defines it to be. Rather, one may offer his insights and opinions as long as they do not go beyond universally accepted principles of Jewish faith, and as long as they are properly and correctly substantiated by authoritative sources. The halakhic system depends on intellectual inquiry, receptivity to the positions of others, devotion to truth, humility, respect for authority. It is not appropriate to outlaw responsible and respectful criticism of authorities nor to discredit those who offer properly substantiated opinions, even when those opinions dissent from leading authorities.

III

The balance between authority and dissent may also be considered in the realm of aggada. One opinion is that all the words of our talmudic (and even later) sages are true and must be upheld. Another position is that the words of our sages must be treated with respect, but that we are not bound to believe that all their aggadic teachings are without error.

Does the authority of our sages preclude the possibility of legitimate disagreement with their aggadic teachings? Is someone who questions or rejects some of those teachings an apikores?

In the sixth chapter of Pirkei Avot, we are taught that the Torah is acquired in 48 ways. One of them is emunat hakhamim, trust in the sages. Rabbi Yosef Yaavets, one of the rabbis at the time of the expulsion of Jews from Spain, explained that one must not hasten to criticize the words of our sages. If he does not understand or agree with their words, he should attribute the problem to his own intellectual weakness. "He should suspect his own intelligence, not the intelligence of our sages and their words, which were spoken in truth."[16]

Following this attitude in the realm of aggada, Rabbi David Ibn Abi Zimra, a younger contemporary of Rabbi Yaavets, taught that the aggada is true and essential, "given from Heaven like the rest of the Oral Torah. And just as the Oral Torah is interpreted with 13 principles, so the aggada is interpreted with 36 principles. And these principles were transmitted to Moses our teacher at Sinai."[17]

Rabbi Moshe Hagiz wrote an important essay on emunat hakhamim, in which he argued forcefully against challenging rabbinic authority by questioning the validity of any of the words of our sages. He believed that an attack on rabbinic dicta would ultimately lead to a rejection of rabbinic authority generally. This would undermine religious observance and belief.[18]

Rabbi Hayyim Hizkiyahu Medini, in his Sedei Hemed, stated unequivocally: "We must believe in all that is stated in the aggadot of our sages."[19] Rabbi Zvi Hirsch Chajes followed this assumption when explaining that

there are several subjects in the Gemara whose meaning cannot be taken in a literal sense, because the text expounded literally would depict God as a corporeal being, and would also at times involve an act of blasphemy. We should, and we are, indeed, in duty-bound to believe that the transmitters of the true Kabbalah, who are known to us as righteous and saintly men and also as accomplished scholars, would not speak merely in an odd manner. We must therefore believe that their words were uttered with an allegorical or mystical sense and that they point to matters of the most elevated significance, far beyond our mental grasp.[20]

The demand that one must believe all the words of our sages in the aggada came into question in the famous disputation in Barcelona in 1263. Rabbi Moshe ben Nahman, the Ramban, was challenged by his Christian opponent with an aggada that stated that the Messiah was born on the day that the Temple in Jerusalem was destroyed. The Ramban responded: "I do not believe in this aggada at all. . . ." He went on to explain that Jewish religious writings are divided into three traditional categories: Bible, Talmud, and Midrash. "The first we believe entirely. . . ; the second we believe when it explains laws. We have yet a third book which is called Midrash, sermons so to speak . . . ; and this book, if one wishes to believe it he may, and one who does not believe it does not have to. . . . We call it a book of aggada, which is to say discourses, that is to say that it merely consists of stories which people tell one another."[21]

This explanation of the Ramban was rejected by those who insisted on maintaining the truth of all the words of our sages. Some argued that the Ramban never meant what he said, that he only said it to deflect the challenge of his opponent. Thc Sedei Hemed wrote that it is forbidden even to think that the Ramban meant what he said. Writing over two centuries after the disputation, Rabbi Yitzhak Abravanel strongly disavowed the statement of the Ramban because "it opens the gates to undermine all rabbinic authority when we consider any of their words as errors or foolishness."[22]

The above position assumes that respect for our sages demands that we not dissent from nor find fault in their words. Should we do so, we undermine their authority. If we find some of their aggadic teachings problematic, we should not reject them, but should assume that we have not understood their true meaning.

But there is another position, also well rooted in authoritative rabbinic sources. Rabbi Hai Gaon taught that the aggada should not be considered as divinely revealed tradition. The authors of aggada were merely stating their own opinions, and "each one interpreted whatever came to his heart." Therefore, "we do not rely on them (the words of aggada)." Rabbi Hai Gaon maintained that aggadot recorded in the Talmud have more status than those not so recorded—but even these aggadot need not be relied upon.[23] Rabbi Sherira Gaon taught that aggada, Midrash, and homiletical interpretations of biblical verses were in the category of umdena, personal opinion, speculation.[24] Another of the Gaonim, Rabbi Shemuel ben Hofni, stated: "If the words of the ancients contradict reason, we are not obligated to accept them."[25]

This position was also expounded by Rabbi Shemuel HaNaggid in his introduction to the Talmud. He wrote that aggada represents the personal opinions and interpretations of our sages. Rabbi Abraham, son of Maimonides, in an important essay concerning aggada, maintained that one may not accept an opinion without first examining it carefully.[26] To accept the truth of a statement simply on the authority of the person who stated it is both against reason and against the method of Torah itself. The Torah forbids us to accept someone's statement based on his status, whether rich or poor, whether prominent or otherwise. Each case must be evaluated by our own reason. Rabbi Abraham stated that this method also applies to the statements of our sages. It is intellectually unsound to accept blindly the teachings of our rabbis in matters of medicine, natural science, astronomy. He noted: "We, and every intelligent and wise person, are obligated to evaluate each idea and each statement, to find the way in which to understand it; to prove the truth and establish that which is worthy of being established, and to annul that which is worthy of being annulled; and to refrain from deciding a law which was not established by one of the two opposing opinions, no matter who the author of the opinion was. We see that our sages themselves said: if it is a halakha (universally accepted legal tradition) we will accept it; but if it is a ruling (based on individual opinion), there is room for discussion."

This is not to say that the words of our sages should not be taken seriously. On the contrary, statements of great scholars must be carefully weighed and respected. But they may also be disputed, especially in non-halakhic areas. In his introduction to Perek Helek, Maimonides delineates three groups, each having a different approach to the words of our sages. The majority group, according to Rambam, accepts the words of our sages literally, without imagining any deeper meanings. By taking everything literally—even when the words of the sages violate our sense of reason—they actually disparage our rabbis. Intelligent people who are told that they must accept all the midrashim as being literally true will come to reject rabbinic teaching altogether, since no reasonable person could accept all these teachings in their literal sense. "This group of impoverished understanding—one must pity their foolishness. According to their understanding, they are honoring and elevating our sages; in fact they are lowering them to the end of lowliness. They do not even understand this. By Heaven! This group is dissipating the glory of the Torah and clouding its lights, placing the Torah of God opposite of its intention."

Maimonides described the second group as also taking the words of the sages literally. But since so many of the statements of the rabbis are not reasonable if taken literally, this group assumes that the rabbis must not have been so great in the first place. This group dismisses rabbinic teachings as being irrelevant, even silly. Rambam rejected this point of view outright.

The third group, which is so small that it hardly deserves to be called a group, recognizes the greatness of our sages and seeks the deeper meanings of their teachings. This group realizes that the sages hid profound wisdom in their statements, and often spoke symbolically or in riddles. When one discovers a rabbinic statement that seems irrational, one should seek its deeper meaning. While Rambam argued forcefully for a profound understanding of aggada and Midrash, he did not argue that all rabbinic statements are of divine origin. Rather, they are worthy of serious study because they represent the thinking of great sages. Presumably, his son Abraham carried his argument further. When one found rabbinic statements to be unreasonable or incorrect—even after much thought and investigation—he was not bound to uphold them.

Rabbi Samson Raphael Hirsch echoed the opinion of Maimonides and his son. He wrote that "aggadic sayings do not have Sinaitic origin . . . they reflect the independent view of an individual sage."[27] Rabbi Hirsch went on: "Nor must someone whose opinion differs from that of our sages in a matter of aggada be deemed a heretic, especially as the sages themselves frequently differ. . . ." He rejected the opinion that the authority of aggada is equal to the orally transmitted halakha. Indeed, he thought this was "a dangerous view to present to our pupils and could even lead to heresy."

Rabbinic tradition, thus, has two valid approaches to the authority/ dissent issue in the realm of aggada. Rabbi Hayyim David Halevy has written a responsum which offers a balance between the two positions.[28] He noted that there are Midrashim where sages disagree with each other. For example, the Torah records that following the death of Yosef, a new Pharaoh arose over Egypt. Rav interpreted this verse to mean that an actual new Pharaoh arose. Shemuel, though, maintained that it was the same Pharaoh who now made new decrees against the Israelites (Sotah lla). It is impossible for both of these opinions to be objectively correct. Obviously, each offered his interpretation, based on his own understanding of the text.

Moreover, there are topics about which the sages spoke, not relating specifically to the Torah and its interpretation-in which they expressed their own opinions. The statements of our rabbis concerning natural science, for example, were not divinely revealed traditions. In fact, our sages admitted that the wise men of the non-Jews had greater knowledge than the Torah sages in some scientific matters (Pesahim 94b). Rabbi Halevy wrote: "If it becomes clear through precise scientific methodology that a specific idea expressed by our sages is not entirely correct, this does not mar their greatness, Heaven forbid, and their greatness as sages of Torah. Their words relating to Torah were stated with the power of the holiness of Torah, with a kind of divine inspiration; but their other words on general topics were stated from the depth of their human wisdom only." In non-halakhic matters, we should recognize that the sages spoke with great wisdom, although not necessarily with divine inspiration. Therefore, there were disputes among them such as the one concerning the new Pharaoh, where it is clear that one side is wrong.

While respecting the authority and wisdom of our sages, we also must recognize the possibility that some of their non-halakhic statements and interpretations are incorrect. To say this does not make one an apikores. Great sages, as mentioned above, have themselves taught this opinion and have considered it to be correct and authoritative.

It is clear, then, that there is room for dissent and criticism within the halakhic and aggadic systems. This dissent and criticism must be based on great reverence for our sages; on properly substantiated and argued positions; on commitment to the honor and divine origin of Torah. Dissent may not go beyond the universally accepted principles of our faith. But within this boundary, freedom of inquiry, analysis and criticism must be respected-and encouraged.

Notes

The Talmud records a poignant story relating to the destruction of the Temple in Jerusalem by the Romans in 70 CE. Although historians describe various political, sociological, and military explanations for the Roman war against the Jews, the Talmud—through the story of Kamtsa and Bar Kamtsa—points to a moral/spiritual cause of the destruction:

R. Johanan said: The destruction of Jerusalem came through Kamtsa and Bar Kamtsa in this way. A certain man had a friend Kamtsa and an enemy Bar Kamtsa. He once made a party and said to his servant, Go and bring Kamtsa. The man went and brought Bar Kamtsa. When the man [who gave the party] found him there he said, See, you tell tales about me; what are you doing here? Get out. Said the other: Since I am here, let me stay and I will pay you for whatever I eat and drink. He said, I won't. Then let me give you half the cost of the party. No, said the other. Then let me pay for the whole party. He still said, No, and he took him by the hand and put him out. Said the other, Since the rabbis were sitting there and did not stop him, this shows that they agreed with him. I will go and inform against them to the Government. He went and said to the Emperor, The Jews are rebelling against you. He said, How can I tell? He said to him: Send them an offering and see whether they will offer it [on the altar]. So he sent with him a fine calf. While on the way he [Bar Kamtsa] made a blemish on its upper lip, or as some say on the white of its eye, in a place where we [Jews] count it a blemish but they [the Romans] do not. The rabbis were inclined to offer it in order not to offend the Government. Said R. Zechariah b. Abkulas to them: People will say that blemished animals are offered on the altar. They then proposed to kill Bar Kamtsa so that he should not go and inform against them, but R. Zechariah b. Abkulas said to them, Is one who makes a blemish on consecrated animals to be put to death? R. Johanan thereupon remarked: Through the scrupulousness of R. Zechariah b. Abkulas our House has been destroyed, our Temple burnt and we ourselves exiled from our land. (Gittin 55b–56a)

The story tells of a host—apparently a wealthy man—who throws a party and wants his friend Kamtsa to be brought to it. The servant makes a mistake and brings Bar Kamtsa—a person the host despises. When the host sees Bar Kamtsa, he orders him to leave. Even though Bar Kamtsa pleads not to be humiliated by being sent away, the host is unbending. Bar Kamtsa offers to pay for whatever he eats, for half the expenses of the entire party, for the entire party—but the host unceremoniously leads Bar Kamtsa out of his home.

The story reflects a lack of peace among the Jewish community in Jerusalem. The antagonism between the host and Bar Kamtsa is palpable. The unpleasant scene at the party was witnessed by others—including “the rabbis”; obviously, “the rabbis” were included on the party’s guest list. They were part of the host’s social network. When Bar Kamtsa was ejected from the party, he did not express rage at the host. Rather, he was deeply wounded by the fact that rabbis had been silent in the face of the humiliation he had suffered: “Since the rabbis were sitting there and did not stop him, this shows that they agreed with him.” He might have understood the host’s uncouth behavior, since the host hated him. But he could not understand why the rabbis, through their silence, would go along with the host. Why didn’t they stand up and protest on behalf of Bar Kamtsa? Why didn’t they attempt to increase peace? Bar Kamtsa was so disgusted with the rabbis that he decided to stir up the Roman Emperor against the Jewish people. If the rabbinic leadership itself was corrupt, then the entire community had to suffer.

Why didn’t the rabbis speak up on behalf of Bar Kamtsa?

Apparently, the rabbis kept silent because they did not want to offend their host. If the host wanted to expel a mistakenly invited person, that was his business—not theirs. The host seems to have been a wealthy patron of the rabbis; he obviously wanted them included on his invitation list. Why should the rabbis offend their patron, in defense of an enemy of their patron? That might jeopardize their relationship with the host and could cost them future patronage.

The rabbis kept silent because they thought it socially and economically prudent for their own interests. They could not muster the courage to confront the host and try to intervene on behalf of Bar Kamtsa. By looking out for their own selfish interests, the rabbis chose to look the other way when Bar Kamtsa was publicly humiliated.

Rabbi Binyamin Lau, in his review of the rabbinical and historical sources of that period, came to the inescapable conclusion that “the rabbis were supported by the wealthy [members of the community], and consequently were unable to oppose their deeds. There is here a situation of economic pressure that enslaved the elders of the generation to the officials and the wealthy….The Torah infrastructure depended on the generosity of the rich.”

When rabbis lost the spirit of independence, they also lost their moral compass. They were beholden to the rich, and could not afford to antagonize their patrons. They remained silent even when their patrons behaved badly, even when their silence allowed their patrons to humiliate others. Bar Kamtsa was outraged by the moral cowardice of the rabbis to such an extent that he turned traitor against the entire Jewish people.

The story goes on to say that Bar Kamtsa told the Emperor that the Jews were rebelling. To verify this, the Emperor sent an offering to be sacrificed in the Temple. If the Jews offered it up, that proved they were not rebelling. If the Jews refused to offer it up, this meant that they were defying the Emperor and were rising in rebellion. Bar Kamtsa took a fine calf on behalf of the Emperor, and put a slight blemish on it. He was learned enough to know that this blemish—while of no consequence to the Romans—would disqualify the animal from being offered according to Jewish law.

When Bar Kamtsa presented the offering at the Temple, the rabbis were inclined to allow it to be offered. They fully realized that if they rejected it, this would be construed by the Emperor as a sign of disloyalty and rebellion. Since there was so much at stake, the rabbis preferred to offer a blemished animal rather than incur the Emperor’s wrath. This was a sound, prudent course of action. But one of the rabbis, Zecharyah b, Abkulas, objected. He insisted that the rabbis follow the letter of the law and not allow the offering of a blemished animal. He cited public opinion (“people will say”) that the rabbis did not adhere to the law and therefore allowed a forbidden offering. The rabbis then considered the extreme possibility of murdering Bar Kamtsa, so that this traitor would not be able to return to the Emperor to report that the offering had been refused. Again, Zecharyah b. Abkulas objected. The halakha does not allow the death penalty for one who brings a blemished offering for sacrifice in the Temple. Murdering Bar Kamtsa, thus, would be unjustified and illegal. This was “check mate.” The rabbis offered no further ideas on how to avoid antagonizing the Emperor. The offering was rejected, and Bar Kamtsa reported this to the Emperor. The result was the Roman destruction of Jerusalem and razing of the Temple. “R. Johanan thereupon remarked: Through the scrupulousness of R. Zechariah b. Abkulas our House has been destroyed, our Temple burnt and we ourselves exiled from our land.”

Rabbi Johanan casts R. Zecharyah b. Abkulas as the villain of the story. R. Zecharyah was overly scrupulous in insisting on the letter of the law, and he lost sight of the larger issues involved. He did not factor in the consequences of his halakhic ruling; or if he did, he thought it was better to suffer the consequences rather than to violate the halakha. Rabbi Johanan blames R. Zecharyah’s “scrupulousness” for the destruction of Jerusalem, the razing of the Temple, and the exile of the Jewish people. The moral of the story, according to Rabbi Johanan, is that rabbis need to have a grander vision when making halakhic decisions. It is not proper—and can be very dangerous—to rule purely on the basis of the letter of the law, without taking into consideration the larger issues and the consequences of these decisions. Technical correctness does not always make a halakhic ruling correct. On the contrary, technical correctness can lead to catastrophic results. To follow the precedent of Rabbi Zecharyah b. Abkulas is a dangerous mistake.

Yes, Rabbi Zecharyah b. Abkulas was overly scrupulous in his application of halakha, when other larger considerations should have been factored in. His narrow commitment to legal technicalities caused inexpressible suffering and destruction for the Jewish people. But is he the real villain of the story?

Rabbi Zecharyah was only one man. The other rabbis formed the majority. Why didn’t they overrule Rabbi Zecharyah? The rabbis surely realized the implications of rejecting the Emperor’s offering. They were even willing to commit murder to keep Bar Kamtsa from returning to the Emperor with a negative report. Why did the majority of the rabbis submit to Rabbi Zecharyah’s “scrupulousness”?

The story is teaching not only about the mistaken attitude of Rabbi Zecharyah b. Abkulas, but about the weakness and cowardice of the rest of the rabbis. The other rabbis were intimidated by Rabbi Zecharyah. They were afraid that people would accuse them of being laxer in halakha than Rabbi Zecharyah. They worried lest their halakhic credibility would be called into question. Rabbi Zecharyah might be perceived by the public as the “really religious” rabbi, or the “fervently religious” rabbi; the other rabbis would be perceived as compromisers, as religiously defective. They recognized that Rabbi Zecharyah, after all, had technical halakhic justification for his positions. On the other hand, they would have to be innovative and utilize meta-halakhic considerations to justify their rulings. That approach—even if ultimately correct—requires considerable confidence in one’s ability to make rulings that go beyond the letter of the law. Rabbi Zecharyah’s position was safe: it had support in the halakhic texts and traditions. The rabbis’ position was risky: it required breaking new ground, making innovative rulings based on extreme circumstances. The rabbis simply were not up to the challenge. They deferred to Rabbi Zecharyah because they lacked the courage and confidence to take responsibility for bold halakhic decision-making.

When Rabbis Do Not Increase Peace in the World

When rabbis lose sight of their core responsibility to bring peace into the world, the consequences are profoundly troubling. The public’s respect for religion and religious leadership decreases. The rabbis themselves become narrower in outlook, more authoritarian, more identified with a rabbinic/political bureaucracy than with idealistic rabbinic service. They become agents of the status quo, curriers of favor from the rich and politically well-connected.
When rabbis lack independence and moral courage, the tendencies toward conformity and extremism arise. They adopt the strictest and most fundamentalist positions, because they do not want to appear “less fervent” than the extremist rabbinic authorities.

When rabbis fear to express moral indignation so as not to jeopardize their financial or political situation, then the forces of injustice and disharmony increase. When rabbis adopt the narrow halakhic vision of Rabbi Zecharyah b. Abkulas, they invite catastrophe on the community. When the “silent majority” of rabbis allow the R. Zecharyahs to prevail, they forfeit their responsibility as religious leaders.

The contemporary Hareidization of Orthodox Judaism, both in Israel and the Diaspora, has tended to foster a narrow and extreme approach to halakha. This phenomenon has been accompanied by a widespread acquiescence on the part of Orthodox rabbis who are afraid to stand up against the growing extremism.

In the summer of 1984, I met with Rabbi Haim David Halevy, then Sephardic Chief Rabbi of Tel Aviv. He was a particularly independent thinker, who much regretted the narrowness and extremism that had arisen within Orthodox rabbinic circles. He lamented what he called the rabbinic “mafia” that served as a thought police, rooting out and ostracizing rabbis who did not go along with the official policies of a small group of “gedolim,” rabbinic authorities who are thought to have the ultimate power to decide halakhic policies. When honest discussion and diversity of opinion are quashed, the religious enterprise suffers.

The Orthodox rabbinic establishment in Israel, through the offices of the Chief Rabbinate, has had the sole official religious authority to determine matters relating to Jewish identity, conversion, marriage, and divorce. It has also wielded its authority in kashruth supervision and other areas of religious law relating to Jewish life in the State of Israel. This religious “monopoly” has been in place since the State of Israel was established in 1948. With so much power at their disposal, one would have expected—and might have hoped—that the rabbinate would have won a warm and respectful attitude among the population at large. The rabbis, after all, are charged with increasing peace between the people of Israel and their God; with applying halakha in a spirit of love, compassion, and understanding; with creating within the Jewish public a recognition that the rabbis are public servants working in the public’s interest.

Regrettably, these things have not transpired. Although the Chief Rabbinate began with the creative leadership of Rabbis Benzion Uziel and Yitzchak Herzog, it gradually sank into a bureaucratic mire, in which rabbis struggled to gain political power and financial reward for themselves and/or for the institutions they represent. The Chief Rabbinate is not held as the ultimate religious authority in Israel by the Hareidi population. It is not respected by the non-Orthodox public. It has scant support within the Religious Zionist camp, since the Chief Rabbinate seems more interested in pandering to Hareidi interests than in promoting a genuine Religious Zionist vision and program for the Jewish State.

Recent polls in Israel have reflected a growing backlash against the Hareidization of religious life and against the political/social/religious coercion that has been fostered by Hareidi leadership. Seventy percent of Jewish Israelis are opposed to new religious legislation. Fifty-three pecert oppose all religiously coercive legislation. Forty-two percent believe that the tension between the Hareidim and the general public is the most serious internal schism in Israeli Jewish society—nearly twice as many as those who think the most serious tension is between the political left and political right. Sixty-five percent think the tensions between Hareidim and the general public are the most serious, or second most serious, problem facing the Israeli Jewish community. An increasing number of Israelis are in favor of a complete separation of religion and State, reflecting growing frustration with the religious status quo.

Remembering Justice Benjamin Nathan Cardozo
 

by Rabbi Marc D. Angel

Benjamin Nathan Cardozo (1870-1938) was one of the greatest American jurists. During his distinguished career, he served as Chief Judge of the New York State Court of Appeals from 1926 until his appointment to the United States Supreme Court in 1932. He was known for his calm wisdom, personal dignity, and his commitment to social justice. His speeches and writings were characterized by clear thinking and graceful style.

            Cardozo was born into a Sephardic Jewish family that had roots in America since Colonial days. Among his ancestors were those who fought in the American Revolution. His family was associated with Congregation Shearith Israel, the Spanish and Portuguese Synagogue of New York, founded in 1654; he retained his loyalty to Shearith Israel throughout his life, and was buried in the congregation’s cemetery upon his death.

            As a young attorney, recently graduated from the Law School of Columbia University, Cardozo had several interactions at Shearith Israel that reflected his generally traditional worldview. In 1895, as the congregation was planning to build a new synagogue building on Central Park West, a number of leading members were calling for reforms in the synagogue’s customs. For centuries, Shearith Israel had followed the ancient traditions of Western Sephardim, including the separation of men and women during prayer services. The reformers called for various changes, including a seating arrangement in the synagogue that allowed men and women to sit together. The congregation’s religious leader, Dr. Henry Pereira Mendes, strongly opposed the reforms. Tensions within the congregation came to a head at a meeting of congregants on June 5, 1895. A number of reformers put forth their motion to institute changes; Dr. Mendes and another synagogue leader spoke in opposition to their motion. Then the 25 year old Cardozo made “a long address, impressive in ability and eloquence,” in which he argued for the continuity of synagogue tradition. He pointed out that the congregation’s constitution provided for separate seating of men and women, following in the traditional patterns of Spanish and Portuguese congregations. It would be unlawful to violate the constitution. Aside from the legal point, Cardozo stressed the importance of maintaining synagogue traditions that had been established and maintained by generations of congregants. Regardless of one’s personal opinions or level of religious observance, the synagogue is a sacred space that should maintain its integrity.  Following Cardozo’s speech, a vote was taken: the motion to alter the synagogue customs was defeated by a vote of 73 to 7!
 

            In 1898, Cardozo gave a talk at Shearith Israel on Benjamin Disraeli, late Prime Minister of the British Commonwealth. Disraeli was born into the Spanish and Portuguese Jewish community of London, but his father had his children baptized before Benjamin’s Bar Mitzvah. So he was a Jew by birth and by public perception; but was a Christian by formal religious profession. In spite of facing ongoing anti-Semitism, Disraeli rose to the top of the British government, a highly regarded confidant of Queen Victoria.

            The young Cardozo drew a thoughtful portrait of Disraeli’s personal and political life. He could not help but recognize the phenomenal rise to power of a man who was constantly subjected to anti-Semitism in spite of his having been baptized. Although Disraeli presented himself as a Christian, he never flinched from pride in his Jewish background. He described Christianity as a fulfillment of Judaism. Cardozo noted that Disraeli’s position was problematic:  “So we find it to the last—the same union of loyalty to the race and disloyalty to the faith, the same impossible effort to reconcile the irreconcilable and to treat the religious tenets of his manhood as a development of the religion in whose shelter he had been born” (Disraeli, the Jew, Essays by Benjamin Cardozo and Emma Lazarus, ed. Michael Selzer, Selzer and Selzer, Great Barrington, Mass, 1993, p.49). Cardozo noted that Disraeli—in spite of his tremendous successes—was ultimately a conflicted and lonely soul:  “The nation marveled at his wit; it laughed at his sallies; it applauded his intrepid spirit; but all the time, it must have felt within its heart that he was a stranger within its gates.”

            To his credit, Disraeli never apologized for or denied his Jewishness. Quite the contrary. He flaunted his Jewishness and presented the Jews and Judaism in positive lights. Cardozo offered an appreciation of Disraeli’s role vis a vis the Jewish people: “As we look back upon him now, we see, I think, that he affected us for good. He taught us to think worthily of ourselves—that indispensable condition, as men have often said, which must be satisfied before it can be hoped that we shall be thought worthily of by others.  He was himself, before all the world, a living illustration of the powers that are in us, of our resources, of our intellect, of our vigor; of our enthusiasm, of our diplomacy; of our finesse. … He might have stood for many other and perhaps greater things; he might have aided us in many other ways; but these he did stand for an in these he did aid us; and if the aid might have been greater, it none the less was great. It is something to have contributed a little to rousing the self-consciousness of a race, in waking it to a sense of its own dignity, and in waking others to a sense of its latent powers. In these days of Zionism, in these days of Herzl and Nordau, let us remember that we are working upon soil which Disraeli and men like him have helped posterity to till. By his own personality, as well as by his words and deeds, he seemed to weave into the woof of English public life some portion of the Hebraic spirit; to Hebraize the mid of the Protestant and the Puritan; and even to revive in his own day some glimmer of those ancient glories which it was one of the functions of his life to illustrate to the world. For that service at least, let us honor him tonight” ((pp. 65-66).

            In a series of lectures at Yale University in 1921, Cardozo reflected on the nature of the judicial process. “There is in each of us a stream of tendency, whether you choose to call it philosophy or note, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs….We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own” (The Nature of the Judicial Process, Yale University Press, New Haven, 1921, p. 12).

            Cardozo’s own “stream of tendency” included a deep respect for tradition…but a keen awareness of the forces for change. While he understood that judges must not set aside existing rules at pleasure, he also criticized “the demon of formalism.” Judges must balance their decisions, taking into consideration the welfare of society. Cardozo drew on a Talmudic teaching that describes God as offering Himself a prayer: “Be it my will that my justice be ruled by my mercy.” He suggested that judges keep this prayer in mind during their own deliberations (pp. 66-67).

            In a keenly self-revelatory comment, Cardozo reminisced on what he had learned from his experiences as a judge. “I was much troubled in spirit, in my first years upon the bench, to find how trackless was the ocean on which I had embarked. I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile….As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable” (p. 166).

            In a subsequent series of lectures at Yale, Cardozo noted that “law must be stable, and yet it cannot stand still….The victory is not for the partisans of an inflexible logic nor yet for the levelers of all rule and all precedent, but the victory is for those who shall know how to fuse these two tendencies together in adaptation to an end as yet imperfectly discerned” (The Growth of the Law,Yale University Press, New Haven, 1924, p. 143).

            Cardozo appreciated the need for balancing various tendencies—the faithfulness to precedents and the drive for change. It is not a simple matter to judge fairly and correctly. “In our worship of certainty, we must distinguish between the sound certainty and the sham, between what is gold and what is tinsel; and then, when certainty is attained, we must remember that it is not the only good; that we can buy it at too high a price; that there is a danger in perpetual quiescence as well as in perpetual motion; and that a compromise must be found in a principle of growth” (pp. 16-17).

            Cardozo’s vast erudition was accompanied with a profound sense of social responsibility, his own personal dignity, and a calm wisdom. He was serenely confident and competent; and at the same time, he was genuinely humble and self-reflective.

            He was a proud Jew. He was moderately observant of religious rituals, although not strictly so. He expressed his views on religion on various occasions. In 1927, he spoke at a dinner in honor of the 75th birthday of his rabbi at Shearith Israel, Dr. H. P. Mendes. In praising Dr. Mendes, he underscored the values of doing justice, loving mercy and walking humbly with the Lord. That same year, Cardozo spoke at a dinner in honor of his friend, Rabbi Stephen Wise. He again stressed the role of religion as an agent of social justice. “Religion is worthless if it is not translated into conduct. Creeds are snares and hypocrisies if they are not adapted to the needs of life….Has there been some social wrong, some oppression of the people, some grinding of the poor? That is a matter for religion. Has there been cruelty to Jews abroad or to colored men at home?....That is a matter for religion. Has the sacred name of liberty, which should stand for equal opportunity for all, been made a pretext and a cover for special privileges for a few? That is a matter for religion. (quoted in Andrew L. Kaufman, Cardozo, Harvard University Press, Cambridge, 1998, p. 190).

            But religion was more than social justice. At its best, religion must be marked by a selfless idealism and commitment to transcendent ideas. In 1931, Cardozo gave the commencement address at the Jewish Institute of Religion, and referred to Tycho Brahe, the 16th century Danish astronomer, who devoted long years to mark and register the stars, when people mocked him for this seemingly useless endeavor.  “The submergence of self in the pursuit of an ideal, the readiness to spend oneself without measure, prodigally, almost ecstatically, for something intuitively apprehended as great and noble, spend oneself one knows not why—some of us like to believe that is what religion means” (Kaufman, p. 190).

                             *     *     *

            When I began serving Congregation Shearith Israel in 1969, and for many years thereafter, the rabbis’ gowning room was the old office of the late Rabbi Dr. David de Sola Pool. Several photographs hung on the walls, including one of Justice Benjamin Nathan Cardozo which he presented to the Congregation in 1932 upon being appointed to the United States Supreme Court. He inscribed it: “To the historic Congregation Shearith Israel in the City of New York, with the affectionate greetings of its member.”   

            Thus, every morning and evening before synagogue services, I was greeted by the handsome visage of Justice Cardozo. Although he died before I was even born, so that I did not know him personally, I somehow felt a friendship and kinship with him. He was, for me, an entry way into the past of my congregation and community. His photograph conveyed the confidence and the judgment, challenging us to be faithful to the past and yet open to the needs of the present…and future.      

References:

Cardozo, Benjamin N., The Growth of the Law, Yale University Press, New Haven, 1924.

__________________, The Nature of the Judicial Process, Yale University Press, New Haven, 1921.

Kaufman, Andrew L., Cardozo, Harvard University Press, Cambridge, 1998.

Selzer, Michael, Disraeli, the Jew, Selzer and Selzer, Great Barrington, 1993.

(On September 12, 2004, a special service was held at Congregation Shearith Israel in New York (founded in 1654)  to mark the Congregation's 350th anniversary. Since Shearith Israel is the first Jewish Congregation in North America, this occasion also marked the 350th anniversary of American Jewry. Rabbi Marc D. Angel delivered a sermon at the 350th anniversary service, reflecting on American Jewish history through the prism of the experience of Congregation Shearith Israel. This is an abridged version of that sermon.)

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights,that among these are Life, Liberty, and the pursuit of Happiness.” These words from the American Declaration of Independence reflect the deepest ideals and aspirations of the American people. America is not merely a country, vast and powerful; America is an idea, a vision of life as it could be.

When these words were first proclaimed on July 4, 1776, Congregation Shearith Israel was almost 122 years old. It was a venerable community, with an impressive history--a bastion of Jewish faith and tradition,and an integral part of the American experience.

When the British invaded New York in 1776, a large group of congregants, including our Hazan Rev. Gershom Mendes Seixas,left the city rather than live under British rule. Many joined the Revolutionary army and fought for American independence. Our story in America is not built on historical abstractions, but on generations of Jews who have played their roles in the unfolding of this nation. It is a very personal history, ingrained in our collective memory.

On this 350th anniversary of the American Jewish community,we reflect on the courage and heroic efforts of our forebears who have maintained Judaism as a vibrant and living force in our lives. We express gratitude to America for having given us—and all citizens—the freedom to practice our faith. This very freedom has energized and strengthened America.

Within Congregation Shearith Israel, we have been blessed with men and women who have helped articulate Jewish ideals and American ideals. Their voices have blended in with the voices of fellow Americans of various religions and races,to help shape the dream and reality of America.

The American Declaration of Independence pronounced that all men are created equal. In his famous letter to the Jewish community of Newport, in August 1790, President George Washington hailed the United States for allowing its citizens freedom—not as a favor bestowed by one group on another—but in recognition of the inherent natural rights of all human beings. This country, wrote President Washington, “gives to bigotry no sanction, to persecution no assistance.”

And yet, if equality and human dignity are at the core of American ideals, the fulfillment of these ideals have required—and still require—sacrifice and devotion. Reality has not always kept up with the ideals. In 1855, Shearith Israel member Uriah Phillips Levy—who rose to the rank of Commodore in the U.S. Navy—was dropped from the Navy’s active duty list. He was convinced that anti-Semitism was at the root of this demotion. He appealed the ruling and demanded justice.He asked: are people “now to learn to their sorrow and dismay that we too have sunk into the mire of religious intolerance and bigotry?... What is my case today, if you yield to this injustice, may tomorrow be that of the Roman Catholic or the Unitarian, the Presbyterian or the Methodist, the Episcopalian or the Baptist. There is but one safeguard: that is to be found in an honest,whole-hearted, inflexible support of the wise, the just, the impartial guarantee of the Constitution.” Levy won his case. He helped the United States remain true to its principles.

Shearith Israel member Moses Judah (1735-1822) believed that all men were created equal—including black men. In 1799, he was elected to the New York Society for Promoting the Manumission of Slaves. During his tenure on the standing committee between 1806 and 1809, about fifty slaves were freed.Through his efforts, many other slaves achieved freedom. He exerted himself to fight injustice, to expand the American ideals of freedom and equality regardless of race or religion.

Another of our members, Maud Nathan, believed that all men were created equal—but so were all women created equal. She was a fiery, internationally renowned suffragette, who worked tirelessly to advance a vision of America that indeed recognized the equality of all its citizens—men and women. As President of the Consumers’ League of New York from 1897-1917, Maud Nathan was a pioneer in social activism, working for the improvement of working conditions of employees in New York’s department stores. Equality and human dignity were the rights of all Americans,rich and poor, men and women.

The Declaration of Independence proclaimed that human beings have unalienable rights, among them are life, liberty and the pursuit of happiness.These words express the hope and optimism of America. They are a repudiation of the tyranny and oppression that prevailed—and still prevail—in so many lands. America is a land of opportunity, where people can live in freedom. The pursuit of happiness really signifies the pursuit of self-fulfillment, of a meaningful way of life. America’s challenge was—and still is—to create a harmonious society that allows us to fulfill our potentials.

President George Washington declared a day of national Thanksgiving for November 26, 1789. Shearith Israel held a service, at which Hazan Gershom Mendes Seixas called on this congregation “to unite, with cheerfulness and uprightness…to promote that which has a tendency to the public good.” Hazzan Seixas believed that Jews, in being faithful to Jewish tradition, would be constructive and active participants in American society.

Life, liberty and the pursuit of happiness were not reserved only for those born in America; they are the rights of all human beings everywhere. This notion underlies the idealism of the American dream, calling for a sense of responsibility for all suffering people, whether at home or abroad. American Jews have been particularly sensitive and responsive to this ideal.

On March 8,1847, Hazan Jacques Judah Lyons addressed a gathering at Shearith Israel for the purpose of raising funds for Irish famine relief. The potato crop in Ireland had failed in 1846, resulting in widespread famine. Hazan Lyons well realized that the Jewish community needed charitable dollars for its own internal needs; and yet he insisted that Jews reach out and help the people of Ireland. He said that there was one indestructible and all-powerful link between us and the Irish sufferers: “That link, my brethren,is HUMANITY! Its appeal to the heart surmounts every obstacle. Clime, color, sect are barriers which impede not its progress thither.” In assisting with Irish famine relief, the Jewish community reflected its commitment to the well-being of all suffering human beings.American Jewry grew into—and has continued to be—a great philanthropic community perhaps unmatched in history. Never have so few given so much to so many. In this, we have been true to our Jewish tradition, and true to the spirit of America.

Who articulated the hope and promise of America more eloquently than Emma Lazarus? “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me. I lift my lamp beside the golden door.” How appropriate it is that her poem is affixed to the great symbol of American freedom, the Statue of Liberty.

Alice Menken, (for many years President of our Sisterhood) did remarkable work to help immigrants, to assist young women who ran into trouble with the law, to promote reform of the American prison system. She wrote: “We must seek a balanced philosophy of life. We must live to make the world worth living in, with new ideals, less suffering, and more joy.”

Americans see ourselves as one nation, indivisible, under God, with liberty and justice for all. Yet, liberty and justice are not automatically attained. They have required—and still require—wisdom, vigilance, and active participation. America prides itself on being a nation of laws, with no one above the law. The American legal tradition has been enriched by the insights and the work of many American Jews.

In one of his essays, Justice Benjamin Nathan Cardozo—a devoted member of Shearith Israel--referred to a Talmudic passage which has been incorporated into our prayer book. It asks that the Almighty let His mercy prevail over strict justice. Justice Cardozo reminded us that the American system relies not only on justice—but on mercy. Mercy entails not merely an understanding of laws, but an understanding of the human predicament, of human nature, of the circumstances prevailing inhuman society. Another of our members,Federal Judge William Herlands, echoed this sentiment when he stated that Justice without Mercy—is just ice!

Our late rabbis Henry Pereira Mendes, David de Sola Pool and Louis C.Gerstein, were singularly devoted to social welfare, to religious education, to the land of Israel. They distinguished themselves for their devotion to Zionism, and played their parts in the remarkable unfolding of the State of Israel. They, along with so many American Jews, have keenly understood how much unites Israel and the United States—two beacons of democracy and idealism in a very troubled world.

During the past 350 years, the American Jewish community has accomplished much and contributed valiantly to all aspects of American life. We have cherished our participation in American life. We have been free to practice our faith and teach our Torah. We have worked with Americans of other faiths and traditions to mold a better,stronger, more idealistic nation.

America today is not just a powerful and vast country. It is also an idea, a compelling idea that has a message for all people in all lands. As American Jews, we are committed to the ideals of freedom and equality, human dignity and security, to life, liberty and the pursuit of happiness, the pursuit of harmony among ourselves and throughout the world. We have come far as a nation, but very much remains to be done. May God give us the strength and resolve to carry on, to work proudly as Jews to bring the American dream to many more generations of humanity.

The Torah provides a framework for sexual morality. Its legal prescriptions specify forbidden relationships; its narratives describe behavior and dress that reflect attitudes relating to sexuality and modesty.

The Torah’s view of sexual relationships might best be seen as fulfilling the overarching command that we be a holy people (vaYikra 19:2). Indeed, Rashi, in his commentary on this verse, identifies holiness with separation from forbidden sexual relationships.
However, the Torah does not enumerate rules relating to modesty in thought, dress, and speech. For example, it does not state how much of a person’s body needs to be covered, and gives no measurements for sleeve lengths or skirt sizes. Nor does it present specific rules relating to “hirhurim”—erotic thoughts; nor to “mehitsot” separating men and women at public gatherings; nor to the general—non-sexual—interrelationships of men and women. Rather, these rules are inferred from the mandate to be holy—to separate ourselves from sin, including sin of a sexual nature.

The Philosophy of Tseniut

The Talmud and later rabbinic literature provide additional material relating to sexual conduct in general, and tseniut (modesty) in particular. An aim of tseniut is to diminish the possibility of improper sexual temptations that could lead to sinful behavior. The human sexual drive is quite powerful, and the tseniut laws are intended to keep that drive under control.

Tseniut, though, is not simply a system of prevention from sin. Rather, it encompasses a positive philosophy relating to the nature of human beings. While acknowledging the power of human sexuality, tseniut teaches that human beings are more than mere sexual beings.

In his famous book, I and Thou, the philosopher Martin Buber pointed out that ideal human relationships involve mutual knowledge and respect, where people treat themselves and others as valuable persons—not as things. Tseniut, in fact, seeks to foster the highest form of I-Thou relationship. By insisting on modest dress and behavior, the laws of tseniut promote a framework for human relationships that transcends the physical/sexual aspects.

Non-tseniut behavior signals a person’s desire to be seen as an object of sexual attraction. People who dress in a sexually provocative way are interested in being noticed, in exciting the sexual interest of others. When people dress provocatively, what they are communicating is: notice me, I crave your attention, please don’t ignore me. Underlying this non-vocalized plea is the feeling that one will not be noticed unless he/she is prepared to become an object of attention or unless he/she conforms to the prevailing fashions, even if those fashions violate one’s sense of decency and propriety.1

It is normal and natural for people to want to appear pleasing to others. That is why they spend so much time and money on clothing and grooming. If one dresses nicely, neatly, and modestly, one may take pride and satisfaction in his/her appearance. If, though, one specifically dresses or behaves in a manner that is aimed at arousing sexual attention, then he/she has crossed into the non-tseniut mode. One has chosen to be an object a thing,rather than a Thou.

Why would people willingly dress or act in a manner as to make themselves into objects? The answer is that they want to be noticed, admired, longed for. They think that by presenting themselves as objects, they will more likely achieve these goals. They demand less of themselves and of others; no commitment or serious dialogue is invited or expected.

Human beings all have feelings of insecurity; we need to be needed, appreciated, and loved. Although these tendencies are often exacerbated in teenagers, they continue to exist throughout adult life. Exhibitionism is a short-cut to gaining the attention—and hopefully the affection—of others. Yet, underneath the veneer of showiness is a layer of essential insecurity, loneliness, and dissatisfaction with self. Exhibitionism may gain the attention of others, but it does not gain their respect and love.

Dr. Norman Lamm has written: “One who lacks the sense of inner dignity and worth will expose himself [or herself], as if to say, ‘Look at me. Am I not beautiful? Am I not smart? Do you not like me?’ The lack of inner dignity leads to exhibitionism, the opposite of modesty, whereas a sense of inner dignity will normally result in the practice of modesty.”2

Tseniut, then, should be understood as a framework for maintaining our human dignity. It teaches us to treat ourselves and others as valuable human beings, not as objects. Non-tseniut behavior and dress serve to diminish our full humanity, reducing us to the level of objects of sexuality. Tseniut is a manifestation of holiness. Exhibitionism is a manifestation of crudeness and feelings of insecurity.

The Technicalities of Tseniut

It is important for us to understand the underlying assumptions of the ancient and medieval halakhic sources. The early rabbinic opinions on the topic of tseniut emerged from a context where women—Jewish and non-Jewish—were deemed to be subservient to men. The operative principle was that the honor of a princess, i.e. a dignified woman, is for her to remain in private. Women were to stay home to the extent possible. When they appeared in public, they were to be dressed in such a way as not to attract the attention of men. Women generally were not given the same educational opportunities as men, nor were they encouraged or generally allowed to participate in public life or to have authority over men. Women’s role was to care for the household, have children, and maintain piety and modesty.

Classic rabbinic literature assumes that women are primarily a source of sexual temptation to men, and that women should therefore dress and conduct themselves so as not to arouse men’s passions. Discussions of the laws of tseniut often tend to focus on specific details of what constitutes modest and immodest dress and behavior. Rabbi Yehuda Henkin, in his book Understanding Tzniut, cites talmudic and later rabbinic sources dealing with such issues as what parts of a woman’s body constitute nakedness; how much of a woman’s body needs to be covered; the ervah (nakedness) of a woman’s leg, voice, and hair. He also discusses sociological conditions that may impact on the boundaries of modesty.3

The discussion in Berakhot 24a is reflective of the prevailing talmudic attitude:

Rabbi Yitzhak said: An [uncovered] tefah (hand’s breadth) in a woman is nakedness (ervah)….Did not Rabbi Shesheth say that anyone [i.e. any man] who gazes even at a woman’s little finger is as though he gazes at her private parts?... Rabbi Hisda said a woman’s leg (shok) is ervah… Shemuel said that a woman’s voice is ervah…. Rabbi Shesheth said a woman’s hair is ervah.4

This passage, and others of the same tenor, operate with the following tacit assumption. Because women’s body, hair, and voice are so alluring to men, women are to cover themselves up to the extent possible, and are not to use their voices in a way that might arouse men. Halakhic literature contains various opinions as to how to apply the tseniut rulings—but by and large, the general assumptions outlined above are taken for granted.

Yet, let us delve a bit more carefully into these assumptions.

1. Women today are no longer relegated to the home, but are involved in all aspects of society. Women interact regularly, and in many contexts, with men; women often hold positions of responsibility, including having authority over men. Few today would agree with the notion that the honor of a woman is to remain in the privacy of her home. Few today would agree that women are or must be subservient to men.

2. If we are concerned lest men be erotically aroused by women’s body, hair, and voice, shouldn’t we also be concerned lest women be erotically aroused by men’s body, hair, and voice? Although halakhic sources spell out in detail the various restrictions on the manner of women’s dress and behavior, there is very little relating to men’s dress and behavior. The assumption is that men are far more passionate and uncontrollable than women. Whether or not this assumption is correct, it is surely not correct to assume that women lack strong sexual feelings for men. They are subject to erotic arousal by men’s manner of dress and behavior. Thus, all discussions of tseniut should deal with both sides of the equation, not just with women’s mode of dress and behavior.

3. If the rules of tseniut are to protect men from falling into sexual sin, why are most of the restrictions placed on women? The rules could have been formulated in an entirely different way. Since men are so passionate and women are so arousing, then men should cover their eyes in the presence of women and should avoid public places where women might be seen. If men have the problem, why should women be forced to pay the price for men’s weaknesses? Let the women conduct themselves as they wish, and let men guard themselves from falling prey to temptation!

The Philosophy of Tseniut and Its Technicalities

The philosophy of tseniut teaches self-respect, respect for others, and the importance of not treating oneself or others as objects. The goal of tseniut is to maintain human dignity, and to foster respectful and meaningful human relationships.

The technicalities of tseniut should aim at fulfilling the ideals of the philosophy of tseniut. In popular discussions of the subject, though, there often is a serious disconnect between philosophy and technicalities. Here are a few items that underscore the gap between the concept of tseniut and the technical halakhic rules that are supposed to foster tseniut.

1. “Women’s hair is considered ervah, nakedness.” Normative halakha applies this statement only to married women. Single women need not cover their hair, since men are used to seeing them with uncovered hair and will not be aroused. Is this a valid argument? In olden times when girls were married off at an early age, this assumption may have held true. Seeing girls up to the age of early teens with uncovered hair may have been a normal feature of life, not generating untoward thoughts on the part of men. Yet, today most women do not get married while they are still children. If a woman in her 20s or 30s has her hair uncovered, what difference would it make to men whether she is single or married? Most men would not be able to tell whether such a woman is single or married. Yet, halakha allows the single woman to go bare-headed, while a married woman must cover her hair. If the purpose of head covering is to foster tseniut and to prevent men from looking at women’s “nakedness,” then there is no substantial reason today to differentiate between married and single women. Either all women of marriageable age should cover their hair, or none of them need cover their hair because men are accustomed to seeing women with uncovered hair.5 Indeed, Rabbi Yosef Mesas rules that married women need not cover their hair in our days, since the normal practice of women in our society is to go with hair uncovered.6 He wrote: “Since in our time all the women of the world have voided the previous practice and have returned to the simple practice of uncovering their hair, and there is nothing in this that constitutes brazenness or lack of modesty…therefore the prohibition of covering one’s hair has been lifted.”

2. “Women’s hair is considered ervah.” Yet various posekim allow women to cover their own natural hair with a wig. As long as they have fulfilled the technicality of covering their hair, they are not in violation of halakha. In some circles, it is expected that married women wear wigs; if they do not do so, they are considered to be religiously deficient. Does this make any sense? Women will spend thousands of dollars to buy wigs that often look better than their own hair. They will wear these wigs, which can be quite attractive, and be considered to be within the laws of tseniut. However, if a woman “wears” her own hair, in a modest fashion, such a woman is deemed (by many) to be in violation of halakha. If a woman’s hair is indeed nakedness, how can it possibly be permitted for them to wear wigs—also made of hair? Would anyone suggest that a woman is permitted to wear a skin-colored dress that is printed with the design of her private body parts? Of course not. Such clothing is obviously anti-tseniut. Likewise, if a woman’s hair is nakedness, covering it with a wig is anti-tseniut.

3. “A woman’s voice is ervah.” This is generally applied to her singing voice, not to her usual speaking voice. But there are strong halakhic sources that permit men to hear women singing religious songs, or lullabies to their children, or other songs that have no erotic intent or content.7 When the prohibition of “kol ishah” is applied to all instances of women singing in the presence of men, this is a distortion of the intent of the halakha. The prohibition forbids licentiousness. Moreover, it should be applied not only to men hearing lewd songs sung by women, but also to women hearing lewd songs sung by men. The concept of “kol ish” is just as valid and just as important as “kol ishah.” If men sing in a manner that is sexually provocative to women, this constitutes a breach in tseniut and a breach in holiness.

4. “An uncovered tefah of a woman is nakedness.” Surely, it will be agreed that it is proper for women to cover the parts of their bodies that are particularly arousing to men. It should be equally agreed that men be required to cover parts of their bodies that are particularly arousing to women. But the real issue is not how long skirts and sleeves must be, nor how buttoned up a man’s shirt should be. Rather, the question is: What constitutes sexually provocative dress that is forbidden by the philosophy and rules of tseniut? A person might be covered from head to toe, and yet the clothing may be too tight, too clingy, too enticing. A person’s clothing might be entirely within the rules of tseniut, yet the person may use seductive gestures, facial expressions, or body movements. In many cases, an uncovered tefah of a woman (or a man) is not sexually arousing at all; rather it may be repulsive, an example of very bad taste. Likewise when people wear clothing that is too tight or too revealing. These are violations of tseniut, not because they are sexually arousing, but because they compromise one’s dignity—even if one does not want to realize this. They reflect a person’s conscious or subconscious desire to be seen as an object, rather than as a dignified person.

Confronting Reality

A number of tseniut rules in classic halakhic literature have come into conflict with changing societal realities. These rules have been modified or dropped by large groups of Torah-observant Jews. Here are a few examples.

1. …Our sages commanded that a man must not teach his daughter Torah, since the intelligence of the majority of women is not geared to be instructed; rather, they reduce the words of Torah to matters of foolishness according to the poverty of their understanding. Our sages said: One who teaches his daughter Torah is as though he taught her foolishness. To what does this refer? To the Oral Torah; but as concerns the Written Torah, he should not teach her; but if he did teach her it is not as though he taught her foolishness. (Rambam, Hilkhot Talmud Torah 1:13)

Despite Rambam’s ruling, in many Orthodox schools today, girls/women do study Talmud. Indeed, Stern College for Women of Yeshiva University has an advanced program of Talmudic Studies for women, instituted with the blessing of Rabbi Joseph B. Soloveitchik. Programs for women who wish to pursue advanced study of Talmud and halakha have blossomed in the United States and Israel. Modern Orthodox institutions reject the assumption that women‘s intelligence is unfit to absorb the wisdom of Talmud. Moreover, even if Hareidi schools do not teach girls/women Talmud, they do teach the Written Torah—in spite of Rambam’s ruling not to do so.

2. It is unseemly for a woman constantly to be going abroad and in the streets, and the husband should prevent his wife from this. He should not let her leave [home] except once or twice per month, according to the need. There is no beauty for a woman except in dwelling in the corner of her home, for so it is written, “All the glory of the king’s daughter is within (Psalm 45:14)” (Rambam, Hilkhot Ishut 13:11).

Very few, if any, Orthodox communities today follow this halakha of the Rambam. Very few, if any, accept the notion that a woman should live most of her life in the confines of her own home.

3. An unmarried man may not teach children because of the mothers who bring their children [and we fear possible immoral thoughts or conduct between teacher and the children’s mothers]… A woman may not teach children because of the fathers who bring their children [and we fear possible immoral thoughts or conduct between teacher and the children’s fathers]. (Shulhan Arukh, Yoreh Deah, 245:20–21).

Few, if any, Orthodox schools follow this halakha. It is quite common for single men to teach in Day Schools and yeshivot. It is also quite prevalent for women to teach in Day Schools and yeshivot. Indeed, Hareidi girls’ schools tend to encourage students to become teachers.

4. A man must distance himself from women very very much…It is forbidden to look at her beauty and even to smell perfume that is on her…It is forbidden to look at colorful clothes of a woman with whom he is acquainted, even when she isn’t wearing [these clothes], lest this lead him to think about her. If a man comes across a woman in the marketplace, it is forbidden for him to walk behind her; rather he should run so as to divert her to his side or behind him… One who looks even at a woman’s little finger with the intention of deriving pleasure from this, it is as though he looked at her private parts. It is forbidden to hear an ervah voice or look at her hair. One who intends to do any one of these things is subject to lashes [makatmardut]…. (Shulhan Arukh, Even haEzer 21:4).

In discussing the ruling that a man must run from a woman if he meets her in the market place, Rabbi Haim David Halevy asserted that this law refers to former times when women generally stayed home and were not often found walking in public. But in our day, many women walk in the public thoroughfares and marketplaces. If a man ran away every time he found a woman in front of him, people would think he was a fool. In his seeming piety, he would actually subject religion to ridicule in the eyes of the public. Rabbi Halevy concluded that a man who found himself walking behind a woman should simply try to keep his eyes from looking at her.8

The above examples demonstrate that there is a disconnect between various technical halakhot relating to tseniut, and the reality of the societal conditions in which we live. As a result, these halakhot—and others like them—have been generally modified or discarded among Torah-observant Jews. Sometimes apologetic explanations have been given and sometimes not.

Tseniut Today

We need to return to the underlying philosophy of tseniut: the expectation that we be holy, that we live dignified lives, that we not present ourselves as sexual objects. How these aims are actually fulfilled very much depends on the societal conditions in which we live. In ancient and medieval times, when women lived highly restricted lives, the rules of tseniut were applied accordingly. In our times, when women function openly and freely in society, the rules of tseniut also must be applied with this reality in mind.
The following are some proposed applications of the rules of tseniut in our modern societies:

1. Neither men nor women should dress, speak, or act in a licentious manner that will arouse the sexual attention of others. It is a violation of tseniut to wear skimpy, overly tight, or other clothing that is designed to highlight one’s sexuality.

2. It is proper for men and women to dress nicely, neatly, and modestly. It is fine to dress fashionably, as long as those fashions do not violate the philosophy of tseniut.

3. In our society, it is normal for upstanding and proper women to wear pants/pants suits; short sleeved dresses/blouses; clothes with colorful designs. Wearing these things is not a violation of tseniut, as long as these items are not fashioned in such a way as to highlight one’s sexuality.

4. Married women need not cover their hair, as long as their hair is maintained in a modest style. The wearing of wigs does not constitute a proper hair-covering for those married women who wish to cover their hair. Rather, such women should wear hats or other head coverings that actually cover their hair.

5. Men and women may sing in the presence of those of the other gender, as long as the songs are of a religious nature, or of a general cultural nature (e.g. opera, folk songs, lullabies). People should neither sing nor listen to songs that have vulgar language or erotic content that will lead to improper thoughts or behavior.

6. If a person dresses, speaks, and acts in a proper, dignified manner, it is not his/her responsibility if others are sexually aroused by him/her. That is their problem. It is their responsibility to control their thoughts and emotions, and/or to remove themselves from situations that they find to be sexually provocative.

7. Normal interactions between men and women are a feature of our societies. Women may serve in positions of authority over men, just as men may serve in positions of authority over women.9 The key point is this: holiness and tseniut should characterize all contexts where men and women mingle and work together. Co-ed youth groups and schools are permitted, but must be maintained with high standards of tseniut.10

Conclusion

Rabbi Avraham Shammah, who teaches at the Herzog Teachers’ College in Israel, stated: “Women and men should behave in a manner that reflects great respect for one another; they should not consider one another in a crude manner such as sexual objects; they should not dress provocatively, nor should their body language be provocative….”11 This is a fine formulation of the guidelines of tseniut.

It makes little sense to pretend that our living conditions today are identical to those of antiquity and the middle ages. Women’s roles in society have changed radically. The interrelationships of men and women today are far more common and far more frequent than in former times. Fashions have changed dramatically. Definitions of brazenness and immodesty are far different today than they were in olden days. Recognizing these changes is essential to formulating a proper application of tseniut rules.

It must also be recognized, though, that modern-day fashions often reflect very non-tseniut standards. Clothing that is designed to be sexually provocative—low cut in front or back, dresses or skirts above knee-length, clothing that is too tight, men’s pants that are worn below the belt line, and so forth—are clearly in violation of the philosophy and rules of tseniut.

Our goal as thinking halakhic Jews is to be clear on our responsibility to be holy, and to treat ourselves and others as fellow human beings—not as sexual objects. When we live as tseniut human beings, we enhance our own dignity and the dignity we show to others. This is not an inconsiderable accomplishment.

Notes

1. See my book, Losing the Rat Race, Winning at Life, Urim Publications, Jerusalem, 2005, especially chapter 4.
2. Norman Lamm, “Tseniut: A Universal Concept,” in Haham Gaon Memorial Volume, ed. M.D. Angel, Sephardic House and Sepher Hermon Press, New York, 1997, p. 155.
3. Yehuda Henkin, Understanding Tzniut, Urim Publications, Jerusalem, 2008.
4. I am not going into the discussion about improperly seeing or hearing women during one’s recitation of the Shema, nor distinctions between seeing or hearing one’s wife or other women.
5. See Rabbi Henkin’s discussion of hair-covering for women, pp. 29f; and article by Michael Broyde, “Hair Covering and Jewish Law,” Tradition, Fall 2009, 42:3, pp.97-179. It is understood that married women must adhere to a higher standard of tseniut than single women, since married women are subject to the laws of adultery for illicit relations. Nonetheless, both married and unmarried women are bound by the rules of tseniut and obviously are not allowed to comport themselves in a way that will entice improper thoughts or deeds on the part of men who see them.
6. Rabbi Yosef Mesas, Mayyim Hayyim, vol. 2, no. 110.
7. For a discussion of sources relating to kol isha, see Saul Berman, “Kol Isha,” in Rabbi Joseph H. Lookstein Memorial Volume, ed. Leo Landman, Ktav Publishing House, New York, 1980, pp. 45–66; and the responsum of Rabbi David Bigman, “A New Analysis of Kol B’Isha Erva,” in the Responsa section of jewishideas.org. Michael Makovi collected many sources on the topic in his article “A New Hearing for Kol Ishah,” in the Articles section of jewishideas.org
8. H. D. Halevy, Mayyim Hayyim 2:45.
9. See Benzion Uziel, Piskei Uziel, Jerusalem, Mossad HaRav Kook, 5737, no. 44, where Rabbi Uziel argues that women may vote in elections, and may be elected to public office where they have authority over men.
10. See the excellent pamphlet by Rabbi Yuval Cherlow and Ron Hori, Hevra Sheleimah: Hevrah Tsenuah Me’orevet leKhathila,” published by Neemanei Torah vaAvodah and HaKibbutz HaDati, Tel Aviv, 2011.
Rabbi Shammah’s paper was originally published in Hebrew and can be found at http://www.kolech.org.il/show.asp?id=25484. It was published in English in the bulletin of JOFA.

(This essay by Rabbi Marc D. Angel was published in the Jerusalem Post, December 12, 2025.)

With their military victory over the Hellenistic Syrians, the Maccabees entered the Temple in Jerusalem and rededicated it to the worship of God. According to Jewish tradition, they found one jar of pure oil with enough to last for one day. They lit the Menorah and the oil miraculously burnt for eight days, enough time to produce a new batch of pure oil.

When we tell this story year after year, we tend to imagine that the Maccabees found the beautiful gold Menorah of the Temple in its place, and they simply added the pure oil to it.

Yet, this would be truly remarkable. The Syrians had control of the Temple for a long stretch of time and they surely would have plundered all the valuable items within it. It would have been very unlikely for them to have left an impressive gold candelabrum in its place.

A midrash suggests that when the Maccabees entered the Temple, they indeed did not find the Menorah there. It had already been stolen by the enemies of the Jews. So the Maccabees improvised by putting together a make-shift Menorah made of spears. The midrash (Pesikta Rabbati 2:1) surmises that the spears had been left behind by the Syrian soldiers who fled in haste during their defeat.

So the Menorah of the original Hanukkah was made of the spears of our enemies!

This midrash is teaching a profound lesson. The very weapons with which our enemies sought to destroy us—those very weapons were used to spread the light of Judaism! The Maccabees were demonstrating that their victory was not merely successful in a military sense. Rather, it was also—and pre-eminently—a spiritual victory. The enemy’s spears were transformed into branches of the Menorah, bringing light into the Temple, restoring worship of the One true God.

The Haftarah that we read on Shabbat Hanukkah includes the famous words of the prophet Zechariah: “Not by might nor by power, but by My spirit said the Lord of hosts” (Zechariah 4:6).

Not by spears, not by guns, not by missiles, not by terrorism, not by political intimidation: these weapons of our enemies will not prevail. We will transform their weapons into sources of light and peace. We will create a Menorah of righteousness that will inspire the world to a loftier and more spiritual vision.

To quote from the Passover Haggadah, “in each generation they arise to destroy us and the Almighty saves us from their hands.” The Jews seem always to have been the conscience of the nations—and many people do not like a conscience, especially a guilty conscience. They attack us because they are afraid of what we symbolize: a nation dedicated to One God, to an elevated morality, to social justice.

But the ongoing flourishing of Jews and Judaism is our unflinching testimony that the spirit of God will ultimately prevail among humanity. The spears of enmity and warfare will one day be transformed into branches of a Menorah, bringing light and hope to all human beings. May it be soon and in our days!