National Scholar Updates

From Devar to Torah: Or Wittgenstein's Big Shoes

 

I

This is my second symposium on Tanakh education for Conversations, and there have been countless others, elsewhere, on related topics.1 Each time I have aimed to approach the subject from a different angle, and to examine where my thinking has changed. This time, alas, the questions posed to us about the challenges to Tanakh education impel me to be frank about our difficulties. My solace is that the situation is far different in Israel, and for the better. 

To start with three glaring deficiencies in our education. One is that frum (religious) discussion of Tanakh, whether you call it devar Torah or sermon, is detached from peshat (the plain meaning of the text)both peshat in the biblical text and careful reading of the classical rabbinic sources. It is often an exercise in homiletical whimsy, as evanescent as Jonah’s gourd, conceived for the moment, and almost immediately forgettable, a “treadmill to intellectual oblivion.” In my previous life as an editor, I would get material from rabbis and laypeople, who had been encouraged to consider their devar (sic!) print-worthy, and it was awkward trying to explain the difference between the fruits of their lucubration and the real thing. For the most part these productions are harmless, but cumulatively they deliver the message that anything goes, and they reinforce the feeling, more generally propagated by the internet, that discussing Tanakh and other theologically significant matters, does not require much of an attention span. 

Partly as a reaction to this perceived arbitrariness, partly out of curiosity and a desire to be “modern,” superior, academic, and up-to-date, there is an opposite tendency: to treat Tanakh earnestly as a basket of “problems.” One gravitates toward tidbits of comparative Semitics or Ancient Near Eastern discoveries, or technical phenomena like Qeri/Ketiv. More ambitiously, one concentrates on some of the challenges posed by biblical criticism (with special attention to those that can be talked about while standing on one foot), picks up rumors of scholarship in the media, attends lectures. Here, of course, especially with Higher and Lower Criticism, there is a danger of heresy or pseudo-heresy.  However, even when no theological lines are crossed, such an attitude leads to trivialization of the word of God. The academic or controversial talking points take priority over the encounter with Torat HaShem 

This is liable to happen precisely because the more “devout” alternatives, in their own way, are also pleased to sidestep serious reading of the text in favor of the glib devar. Also because the prevalent mode of interpretation in our synagogues and schools tends to be univocal—what is commonly called the “takeaway” is supposed to be clear, unambiguous, all neatly wrapped up and tied with a bow. The study of great literature, history, and the like might force us to recognize that often, for the crucial questions in human life, there are no simple bottom-line solutions, and if our liberal arts studies were alive and healthy, they would contribute depth to our study of Torah as well.2 But that is a different subject; as we are, one shallowness calls out to the other. Sadly, when speaking with individuals fully in the grip of “modernism,” it is impossible even to explain to them what they are missing. 

Last and most urgent is the problem of sheer ignorance. Tanakh is not much taught, what is taught is rarely retained, and 12 or more years of putatively intensive Jewish education are apparently insufficient to give young people adequate resources to allow serious study of Tanakh and its commentators (or even Talmud for that matter) in the original. I leave it for others to judge whether this is a consequence of neglect or incompetence on the part of elementary school and high school teachers, or fear that pursuing mastery with young students will damage fragile egos, or other factors. In my work, I witness the panic provoked in seemingly healthy young people by the challenge of Hebrew. Among the not-so-Modern Orthodox I have met baalei keria (readers of the Torah in synagogue services) unsettled by what they perceive to be arcane and intimidating explanations of the fact that, in the Torah, initial letters of a word sometimes have the dagesh kal and sometimes do not. 

You may argue, correctly, that my laments concern only the poorly educated “masses,” not the elite. Indeed, our most intelligent and diligent students and thinkers are in no way inferior to the best of yesterday and it is the best that we should be nurturing. What this argument leaves out is that, in an egalitarian environment, the weakest dictate the tone and standard for the rest. Invincible mediocrity among adults, reinforced in the schooling of the young, “trickles up” and demoralizes the best. You may also observe, regarding the first two of my complaints, that I, having taught Tanakh and Jewish thought for so many decades to so many of the rabbis and teachers out in the field, did not successfully communicate better alternatives, and cannot disclaim responsibility for our collective failure. 

 

II 

 

Last week my class in the Book of Exodus confronted Seforno’s overview of the book. Seforno quotes Ezekiel 20, where the prophet states that the Israelites in Egypt were rife with idolatry and that God took them out of Egypt only to prevent desecrating God’s Name. Hazal already noted that this damning information was suppressed for 850 years, from the time of the Torah to the time of Ezekiel. The implication would be that a peshat reading of Exodus would not incorporate the information we get from Ezekiel and that is reiterated in Midrashim. Seforno, however, relied on the content of Ezekiel’s prophecy in interpreting the Torah. Studying Seforno compels us to take up a variety of significant questions: Is he right to perceive hints to Israelite corruption in ExodusIs their sin mitigated by partial repentance? Why does Rambam, referring to the idolatry in Egypt mentioned in Ezekiel, claim that God rescued the people due to the oath God swore to Abraham? Are the ups and downs in Israel’s response to Moses linked to the history of betrayal? How is the record of idolatry in Ezekiel similar or different from Joshua 24, where we are reminded that Terah was an idolater? Why are these matters raised in Ezekiel and in Joshua? 

If we aim to enhance our study of Tanakh and the commentators, it is essential to read them with care and it is equally crucial to bring to them our own questions. It may be useful, sometimes very useful, to consult academic scholarship on the Jewish exegetes, their cultural background, generalizations about their methods, the history of their printed texts, but the considerations emerging from the previous paragraph are not conditional on out of the way secondary resources. The first and last requirement is reading and thinking alertly. 

In the case just examined I did not propose solutions. Study first, make speeches later. Asking the right questions is the first step in the quest for answers. Those of us who teach are expected, at least occasionally, to make original points, preferably true. But the quest for truth and wisdom begins with questions persistently pursued. I would not exchange such reflection for a devar, or for a veritable wilderness of devar’s. 

 

III 

 

Sometimes the spur to analysis is not our spontaneous reflection or our study of the traditional resources. What about academic publications and specifically what about books and articles that are dismissive of Orthodox doctrine and indifferent to our God-fearing orientation? The simple answer is that it depends on whether the questions they raise and pursue are worthy of our attention or not. It may be more useful to look at an example than to speak in the abstract. 

When I received the invitation to contribute to this discussion, I was in the middle of reading Adi Ophir and Ishay Rosen-Zvi's Goy: Israel’s Multiple Others and the Birth of the Gentile. This book is mainly about post-biblical Judaism, rabbinic and non-rabbinic literature of the talmudic period, but it contains interesting analysis of Tanakh as well. The thesis of the book is that the idea of “goy,” the non-differentiated ontological “other” of the Jew, is a relatively late invention. Biblical literature spoke of specific nations, Moabites and Egyptians, for example, and defined Gentiles in terms of their practices, such as idolatry, but did not assign them to one all-inclusive, metaphysical category of Gentile. This general thesis should be of interest to anyone concerned with the subject of Jewish identity as it developed and as it is articulated in our sources.  

Here let me focus on an aspect of the book relevant to Tanakh. Many eschatological texts concern the Gentile nations. Some describe war or potential war involving the nations or specified nations against God and/or Israel (Joel 3–4; Ezekiel 38–39; Zechariah 12 and 14). The same prophets envision the nations serving God and worshipping in God’s Temple (e.g., Zechariah 8 and 14; Zephaniah 3; Isaiah 56 and 66, inter alia). Some assign a positive future status to converts (Isaiah 56; Ezekiel 47).  Most of these sources turn up in the Ophir-Rosen-Zvi volume. In theory one could notice the same phenomena simply by studying the primary texts and the traditional commentaries. In practice, reading the book contributed to my thinking, and invited further reflection. 

Here comes the caveat. The atmosphere and content of the presentation is academic, not religiousNo surprise that the books of the Torah are dated and analyzed in conformity with preferred versions of biblical criticism. No surprise that, when prophetic accounts of the ideal future are contrasted with the books of Ezra and Nehemiah which condemn intermarriage with Gentiles, the obligatory buzzwords of modernity, words like “xenophobic,” and “separationist” are used to condemn halakhic Judaism. Quite apart from specific issues of theological truth, it is taken for granted that the Torah, both Written and Oral, should be treated not with reverence, but as a specimen of intellectual history that is judged from the superior perspective of secular scholarship. 

How should this affect the Orthodox reader? If you open the Tanakh or listen to discourses linked to Tanakh in search of inspiration or comfort food for the brain, no benefit accrued from studying such works can outweigh the discomfort it engenders and the potential corrosion of faithfulness. Even the serious student cannot dismiss reflexively the threat of intellectual and religious corruption in this field, as is the case in so many other areas of confrontation with contemporary secular culture. How to prepare and fortify oneself? 

One prerequisite is knowledge. That includes, first and foremost, knowing one’s way around Tanakh and being fully at home with the long history of Jewish interpretation. For those who think they will benefit from the academic literature, it means acquiring fluency in the substance and language of non-Jewish interpretation and academic scholarship, being able to readily “translate” their premises, arguments, insights, and aims into our own way of speaking and thinking, somewhat as students of foreign languages and cultures learn to think like the natives and to understand intuitively a cultural frame of reference alien to theirs. This is easier said than done, especially when the learner, by definition, begins without the needed background. 

The Orthodox student must be a person of robust faith. Academic study is only one area where this is necessary. By faith, in this context, I mean not only subscribing to all the correct beliefs and rejecting the heretical ones. Being faithful means being steadfast in one’s commitment. This is hard to achieve under the pressure of increasingly “other-directed,” conformist, socialization, in our “secular” lives and within the shelter of our Orthodox enclaves. Too many of our would-be intellectuals and pseudo-intellectuals vacillate between confidence and doubt, driven by the desire to fit in and unduly influenced by whom we have spoken to last. Faith is not only a virtue of the mind; it demands more than intelligence and “inner directedness.” Faith is a virtue of character, and rests upon spiritual and ethical stability. Faith is about who we are, not only about what we know and believe. 

When Wittgenstein remarked that you need big shoes to cross a bridge with cracks in it, he was not prescribing for specific scholarly pursuits but describing what it takes to be a thinking individual, a “philosopher.” And the thrust of his remark was that understanding is not typically promoted through exhibitions of scintillating intellectual cleverness but often requires a “big shoe” solidity, which he is not afraid to call “obtuseness.” Professional proficiency in a complex field requires apprenticeship with appropriate exemplars of excellence, despite the theoretical possibility that you can pick up a modicum of reading competence, information, and reasoning skills in the solitude of the library. That is even more so in acquiring and sustaining the fundamental orientation needed to become a serious religious individual. You cannot grow as a faithful individual, in the sense used here, without the personal example of faithful personalities. As the Mishna (Avot chapter 1) puts it, you must make yourself a teacher and acquire a friend. We need before our eyes living examples of solid, persistent, unshakeable yet thoughtful commitment to God and to God’s Torah. 

 

IV 

 

Which contemporary writers are especially worthy of commendation? It goes without saying that if you are working on a specific text or a set of questions, the most useful books and articles are those that address the problems at hand, and the researcher or thinker who will benefit you most in each case may not be of value at other times. The works I mention here have general value. In keeping with my previous remarks, these are works that exemplify a proper balance among exegetical, theological, literary, and historical dimensions of study. In other words, they provide good role models and not just useful information. 

 

  1. After all these years, Nechama Leibovitz’s Gilyonot remain an excellent invitation to the careful reading of exegesis, mostly but not wholly the traditional commentators. At times, the sources tackled, and the kind of solutions implicitly favored reflect the parameters of her personal agenda. All the same, she is the teacher of all of us. 

  2. The Daat Mikra series of commentaries published by Mosad haRav Kook was intended to supply a biblical commentary faithful to tradition, yet up to date with modern scholarship, history, geography, and so forth. Some of the volumes are already showing their age, and the format is one that sometimes tends to be overly conservative, and at other times overly inclusive of religiously liberal positions. It is successful as a commentary more than as an intensive analysis of specific issues. Nonetheless, it does the work it was intended to do. 

  3. On the Torah, I like the Torat Etzion series. One advantage is that it represents many writers, for the most part familiar with the kind of questions and solutions prevalent among the Bible critics, and aware of the approaches to these questions adopted by contemporary Orthodox interpreters. Despite the shared backgrounds and interests of many contributors, individual writers speak for themselves, which makes for a degree of diversity in their presentations. 

  4. If I were to mention one name in contemporary Orthodox Bible scholarship, it would be the prolific Yonatan Grossman. His many books and articles comment on a variety of biblical texts, most notably his multiple volumes on the Book of Genesis. These stand out for their attempt at comprehensiveness and no less for the balance between his use of traditional exegesis and approaches, on the one hand, and the full panoply of modern scholarship on the other hand. 

 

In mentioning these endeavors, I do not intend to dismiss the work of many other Orthodox writers, nor to exclude engagement, by those able to do so, with scholarship from outside our community of faith and commitment. Some years ago, I set aside one morning a week for private learning with one of my students. During these sessions we had before us a book by a well-known contemporary Orthodox scholar-thinker. One day my havruta asked me why I kept consulting this volume when invariably I disagreed with his analysis. The reason was that I cared about the questions he asked and the sources he brought to bear. He stimulated our thinking in ways that I appreciated. Much of the task incumbent on us is accumulating knowledge and information and keeping it in working order. The great challenge and joy, however, is to seek wisdom beyond information, and for that we must learn how to think and to find teachers and partners in our quest. 

 

 

Kohelet: Sanctifying the Human Perspective

[1]KOHELET

 

SANCTIFYING THE HUMAN PERSPECTIVE[2]

 

INTRODUCTION

 

Tanakh is intended to shape and guide our lives. Therefore, seeking out peshat—the primary intent of the authors of Tanakh—is a religious imperative and must be handled with great care and responsibility.

Our Sages recognized a hazard inherent to learning. In attempting to understand the text, nobody can be truly detached and objective. Consequently, people’s personal agendas cloud their ability to view the text in an unbiased fashion. An example of such a viewpoint is the verse, “let us make man” from the creation narrative, which uses the plural “us” instead of the singular “me” (Gen. 1:26):

R. Samuel b. Nahman said in R. Jonatan’s name: When Moses was engaged in writing the Torah, he had to write the work of each day. When he came to the verse, “And God said: Let Us make man,” etc., he said: “Sovereign of the Universe! Why do You furnish an excuse to heretics (for maintaining a plurality of gods)?” “Write,” replied He; “And whoever wishes to err will err.” (Gen. Rabbah 8:8)

 

The midrash notes that there were those who were able to derive support for their theology of multiple deities from the this verse, the antithesis of a basic Torah value. God would not compromise truth because some people are misguided. It also teaches that if they wish, people will be able to find pretty much anything as support for their agendas under the guise of scholarship. Whoever wishes to err will err.

            However, a second hazard exists, even for those sincerely seeking the word of God:

It is related of King Ptolemy that he brought together seventy-two elders and placed them in seventy-two [separate] rooms, without telling them why he had brought them together, and he went in to each one of them and said to him, Translate for me the Torah of Moses your master. God then prompted each one of them and they all conceived the same idea and wrote for him, God created in the beginning, I shall make man in image and likeness. (Megillah 9a)

 

This narrative reflects the concern that by popularizing the Torah through translation, less learned people may inadvertently derive the wrong meaning from the “plural” form of “Let Us make man.” For this anticipated audience, God inspired the elders to deviate from the truth and translate with the singular form so that unwitting people would not err.

While this educational discussion is central to all Tanakh, Ecclesiastes probably concerned our Sages and later commentators more than any other biblical book. By virtue of its inclusion in Tanakh, Ecclesiastes’ teaching becomes truth in our tradition. Regarding any book of Tanakh, if there are those who wish to err in the conclusions they draw, they will do so. However, our Sages worried that Ecclesiastes might cause even the most sincerely religious people to draw conclusions antithetical to the Torah, thereby causing greater religious harm than good. and consequently they considered censoring it from Tanakh:

R. Judah son of R. Samuel b. Shilat said in Rav’s name: The Sages wished to hide the Book of Ecclesiastes, because its words are self-contradictory; yet why did they not hide it? Because its beginning is religious teaching and its end is religious teaching. (Shabbat 30b)

 

Our Sages discerned internal contradictions in Ecclesiastes, but they also worried that Ecclesiastes contained external contradictions, that is, verses that appear to contradict the values of the Torah. They addressed this alarming prospect by concluding that since Ecclesiastes begins and ends with religiously appropriate teachings, those verses set the tone for the remainder of its contents. If one reaches anti-Torah conclusions from Ecclesiastes, it means that something was read out of context. A striking illustration of this principle is a midrashic teaching on Ecclesiastes 11:9. The verse reads:

O youth, enjoy yourself while you are young! Let your heart lead you to enjoyment in the days of your youth. Follow the desires of your heart and the glances of your eyes—but know well that God will call you to account for all such things.

 

To which our Sages respond:

 

R. Benjamin b. Levi stated: The Sages wanted to hide the Book of Ecclesiastes, for they found in it ideas that leaned toward heresy. They argued: Was it right that Solomon should have said the following: O youth, enjoy yourself while you are young! Let your heart lead you to enjoyment in the days of your youth (Ecc. 11:9)? Moshe said, So that you do not follow your heart and eyes (Num. 15:39), but Solomon said, Follow the desires of your heart and the glances of your eyes (Ecc. 11:9)! What then? Is all restraint to be removed? Is there neither justice nor judge? When, however, he said, But know well that God will call you to account for all such things (Ecc. 11:9), they admitted that Solomon had spoken well. (Lev. Rabbah 28:1; cf. Ecc. Rabbah 1:3)

 

Were our Sages genuinely worried about people not reading the second half of a verse and consequently adopting a hedonistic lifestyle? Based on the midrashic method of reading verses out of their natural context, this verse likely posed a more serious threat in their society than it would for a pashtan who reads verses in context. The best defense against such egregious errors always is good peshat. This chapter will briefly consider the challenges of learning peshat in Ecclesiastes, and then outline a means of approaching Ecclesiastes as the unique book it is.

 

METHODOLOGICAL CONSIDERATIONS

 

            At the level of derash, many of our Sages’ comments on Ecclesiastes appear to be speaking about an entirely different book, one that is about Torah. The word “Torah” never appears in Ecclesiastes. Such midrashim appear to be radically reinterpreting Ecclesiastes to make it consistent with the rest of Tanakh. Similarly, many later commentators, including those generally committed to peshat, sometimes follow this midrashic lead of radical reinterpretation of the verses they find troubling.

            This approach is rooted in the dual responsibility of our commentators. As scholars, they attempt to ascertain the original intent of the biblical text. However, they also are students and teachers of Jewish tradition. Their educational sensitivities often enter the interpretive arena, particularly when the surface reading of Ecclesiastes appears to threaten traditional values.[3]

            For example, Kohelet opens by challenging the enduring value of the two leading manifestations of human success: wealth and wisdom. That Kohelet focuses on the ephemerality of wealth and physical enjoyment is not surprising, but his focus on the limitations and vulnerability of wisdom is stunning:

For as wisdom grows, vexation grows; to increase learning is to increase heartache. (1:18)

 

Sforno is so uncomfortable with this indictment of wisdom that he reinterprets the verse as referring to the ostensible wisdom of heretics. I often wonder if the parshan himself believes that a suggestion of this nature is peshat, that is, does he assume that Kohelet cannot possibly intend what he appears to be saying; or is he reinterpreting primarily to deflect such teachings from a less learned readership, as did the authors of the Septuagint in the Talmudic passage cited above.[4]

Some commentators attempt to resolve certain internal and external contradictions in Ecclesiastes by attributing otherwise troubling (to these commentators) statements to other people—generally evil people or fools. Take, for example, one of Kohelet’s most life-affirming declarations:

Go, eat your bread in gladness, and drink your wine in joy; for your action was long ago approved by God. Let your clothes always be freshly washed, and your head never lack ointment. Enjoy happiness with a woman you love all the fleeting days of life that have been granted to you under the sun—all your fleeting days. For that alone is what you can get out of life and out of the means you acquire under the sun. (9:7-9)

 

Ibn Ezra—the quintessential pashtan—writes, “This is the folly that people say in their hearts.” Ibn Ezra maintains that Kohelet’s own view is the opposite of what this passage says.[5] However, such attempts to escape difficult verses appear arbitrary. Nothing in the text signals a change in speaker (particularly if Kohelet wishes to reject that speaker’s views), leaving decisions of attribution entirely in the hands of the commentator.[6]

            Commentators also devote much energy to reconciling the internal contradictions of Ecclesiastes. See, for example, the lengthy discussions of Ibn Ezra (on 7:3) and Mordechai Zer-Kavod (introduction in Da’at Mikra, pp. 24-33). Some reconciliations are more textually convincing than others. Regardless, it is critical to ask why there are so many contradictions in the first place.[7] That so many strategies were employed to bring Ecclesiastes in line with the rest of Tanakh and with itself amply demonstrates that this Megillah is unusual. Ecclesiastes needs to be understood on its own terms rather than being reinterpreted away. Pashtanim also developed a methodology for confronting Ecclesiastes’ challenges directly, as will be discussed presently.[8]

 

ATTEMPTING A PESHAT READING: GUIDELINES

 

            In order to approach Ecclesiastes, we must consider a few of its verifiable features. Ecclesiastes is written about life and religious meaning in this world. The expression tahat ha-shemesh (beneath the sun) appears twenty-nine times in Ecclesiastes, and nowhere else in the rest of Tanakh. Tahat ha‑shamayim (under heaven) appears three additional times, and Rashi and Rashbam[9] maintain that this expression is synonymous with tahat ha‑shemesh. In the same vein, people are called ro’ei ha-shemesh (those who behold the sun) in 7:11. The word ani (I) appears twenty-nine times, and its appearance is not grammatically necessary. The emphasis on tahat ha-shemesh demonstrates a this-worldly perspective, while the repetition of the word ani highlights the personal nature of the presentation. Michael V. Fox notes the difference between how 1:12-14 is written:

I, Kohelet, was king in Jerusalem over Israel. I set my mind to study and to probe with wisdom all that happens under the sun.—An unhappy business that, which God gave men to be concerned with! I observed all the happenings beneath the sun, and I found that all is futile and pursuit of wind.

 

Fox then imagines how these verses could have been written without the focus on the personal narrative:

Studying and probing with wisdom all that happens under the sun is an unhappy business, which God gave men to be concerned with! All the happenings beneath the sun are futile and pursuit of wind.

 

Without the personal reflections that are central to Kohelet’s thought, we are left with a series of dogmatic pronouncements. Kohelet’s presentation invites readers into his mind as he goes through a personal struggle and process of reflection.[10]

            Given this starkly anthropocentric perspective, Ecclesiastes should reflect different perspectives than the theocentric viewpoint of revealed prophecy. All people perceive the same reality that Kohelet does. On the basis of this observation, R. Simeon ben Manasia maintained that Ecclesiastes was not inspired altogether:

R. Simeon ben Manasia says: The Song of Songs defiles the hands because it was composed with divine inspiration. Ecclesiastes does not defile the hands because it is only Solomon’s wisdom. (Tosefta Yadayim 2:14)[11]

 

Though his minority view was rejected by our tradition (which insists that Ecclesiastes is divinely inspired), Ecclesiastes is written from the perspective of human wisdom.

            The word adam appears forty-nine times in Ecclesiastes, referring to all humanity (except for one instance in 7:28, which refers specifically to males). Kohelet speaks in a universal language and does not limit its discourse to a Jewish audience. Torah and other specifically Jewish themes do not appear in Ecclesiastes, which focuses on more universal hokhmah (wisdom) and yirat Elokim (fear of God).

            Similarly, God’s personal name—the Tetragrammaton—never appears in Ecclesiastes. Only the generic name Elokim appears (forty times), signifying both the universalistic discourse of Ecclesiastes and also a distant, transcendant Deity, rather than a close and personal relationship with God. In Ecclesiastes, God appears remote, and it is impossible to fathom His means of governing the world. For example, Kohelet warns:

Keep your mouth from being rash, and let not your throat be quick to bring forth speech before God. For God is in heaven and you are on earth; that is why your words should be few. (5:1)

 

Since God is so infinitely superior, there is no purpose and much harm in protesting against God (cf. 3:11; 7:13-14). Moreover, Kohelet never speaks directly to God; he speaks about God and the human condition in a sustained monologue to his audience.

            Tying together these strands of evidence, Rabbi Naftali Tzvi Yehudah Berlin (Netziv) attempts to explain why Ecclesiastes is read (primarily by Ashkenazim[12]) on Sukkot:

It is written in Zechariah chapter 14 that in the future the nations of the world will come [to Jerusalem] on Hol HaMo’ed Sukkot to bring offerings…. And this was the custom in King Solomon’s time. This is why Solomon recited Ecclesiastes on Hol HaMo’ed Sukkot in the presence of the wise of the nations…. This is why it contains only the name Elokim, since [non-Jews] know only that Name of God. (Harhev Davar on Num. 29:12)

 

Needless to say, this means of justifying a custom is anachronistic from a historical vantage point. Nonetheless, Netziv’s keen perception of Kohelet’s addressing all humanity with universal religious wisdom captures the unique flavor of this book.

            From a human perspective, life is filled with contradictions. Ecclesiastes’ textual contradictions reflect aspects of the multifaceted and often paradoxical human condition. Significantly, Ecclesiastes’ inclusion in Tanakh and its consideration as a divinely inspired book elevates human perception into the realm of the sacred, joining revelation and received wisdom as aspects of religious truth.

            While Ecclesiastes contains truth, it is but one aspect of truth rather than the whole truth. For example, Kohelet considers oppression an unchangeable reality:

I further observed all the oppression that goes on under the sun: the tears of the oppressed, with none to comfort them; and the power of their oppressors—with none to comfort them. Then I accounted those who died long since more fortunate than those who are still living; and happier than either are those who have not yet come into being and have never witnessed the miseries that go on under the sun. (4:1-3)

 

Kohelet never calls on God to stop this oppression, nor does he exhort society to stop it. He simply laments that human history repeats itself in an endless cycle of oppression. Kohelet sets this tone in 1:4-7 by analogizing human existence to the cyclical patterns in nature (Ibn Ezra).

            In contrast, prophecy is committed to changing society so that it ultimately matches the ideal messianic vision. While a human perspective sees only repetitions of errors in history, prophecy reminds us that current reality need not mimic past history.

            Kohelet grapples with the realities that wise/righteous people do not necessarily live longer or more comfortable lives than the foolish/wicked and that wisdom itself is limited and fallible:

Here is a frustration that occurs in the world: sometimes an upright man is requited according to the conduct of the scoundrel; and sometimes the scoundrel is requited according to the conduct of the upright. I say all that is frustration…. For I have set my mind to learn wisdom and to observe the business that goes on in the world—even to the extent of going without sleep day and night—and I have observed all that God brings to pass. Indeed, man cannot guess the events that occur under the sun. For man tries strenuously, but fails to guess them; and even if a sage should think to discover them he would not be able to guess them. (8:14-17)

 

Kohelet maintains both sides of the classical conflict: God is just, but there are injustices manifested in the real world. While Kohelet cannot solve this dilemma, he discovers a productive response. Once a person can accept that the world appears unfair, one can realize that everything is a gift from God rather than a necessary consequence for righteousness.[13] We ultimately cannot fathom how God governs this world, but we can fulfill our religious obligations and grow from all experiences. Wisdom always is preferred to folly,[14] even though wisdom is limited and the wise cannot guarantee themselves a more comfortable life than fools, and everyone dies regardless.[15]

On a deeper level, the human psyche is profoundly attracted to being godlike. This tendency lies at the heart of the sins of Eve (Gen. 3:5, 22) and the builders of the Tower of Babel (Gen. 11:1-9).[16] Kohelet blames God for creating us with this desire while limiting us, rendering this innate drive impossible (7:14; cf. Rashbam, Ibn Ezra on 1:13). Confrontation with our own limitations leads to the extreme frustration manifest in Ecclesiastes. However, once we can accept that we cannot be God, this realization should lead to humility and awe of God:

He brings everything to pass precisely at its time; He also puts eternity in their mind, but without man ever guessing, from first to last, all the things that God brings to pass. Thus I realized that the only worthwhile thing there is for them is to enjoy themselves and do what is good in their lifetime; also, that whenever a man does eat and drink and get enjoyment out of all his wealth, it is a gift of God. I realized, too, that whatever God has brought to pass will recur evermore: Nothing can be added to it and nothing taken from it—and God has brought to pass that men revere Him. (Ecc. 3:11-14)[17]

 

Michael V. Fox summarizes Ecclesiastes’ purpose as follows:

 

When the belief in a grand causal order collapses, human reason and self-confidence fail with it. This failure is what God intends, for after it comes fear, and fear is what God desires (3:14). And that is not the end of the matter, for God allows us to build small meanings from the shards of reason.[18]

 

While Kohelet challenges us at every turn, he simultaneously provides us the opportunity to find meaning beneath the unsolvable dilemmas.

Similarly, the universality of death tortures Kohelet. Once Kohelet accepts the reality of death, however, he concludes that it is preferable to attend funerals rather than parties, since focusing on our mortality will encourage us to live a more meaningful life:

It is better to go to a house of mourning than to a house of feasting; for that is the end of every man, and a living one should take it to heart. (7:2, cf. Rashbam)

 

Rabbi Joseph B. Soloveitchik expands on this idea, and says that it is not that there can only be meaning in life if there is death:

The finite experience of being arouses man’s conscience, challenges him to accomplish as much as possible during his short life span. In a word, finiteness is the source of morality…. For orgiastic man, time is reduced to one dimension; only the present moment counts. There is no future to be anticipated, no past to be remembered.[19]

Certain paradoxes and limitations are inherent to human existence, and not even the wisest of all men can make them disappear. Instead, Kohelet teaches us how to confront these challenges honestly and then embark on a process of intense existential frustration that ultimately leads to a greater recognition of the infinite gap between ourselves and God, leading in turn to humility and fear of God, leading in turn to living more religiously in every sense.[20]

 

CONCLUSION

A further word: Because Kohelet was a sage, he continued to instruct the people. He listened and tested the soundness (izzen ve-hikker) of many maxims. (12:9)

Kohelet relentlessly challenges received wisdom rather than blindly accepting it. This process is accompanied by formidable dangers and responsibilities; but ignoring that pursuit comes with even greater dangers. Kohelet never abandons his beliefs nor his normative sense of what all God-fearing people should do; yet he also never abandons nor solves his questions and his struggles with human existence. By presenting this process through a personal account with inspired wisdom, he becomes the teacher of every thinking religious individual.

One midrash suggests that Solomon made the Torah accessible in a manner that nobody had done since the Torah was revealed. He taught those who were not prophets how to develop a relationship with God:

He listened and tested the soundness (izzen ve-hikker) of many maxims (12:9)—he made handles (oznayim) to the Torah…. R. Yosei said: Imagine a big basket full of produce without any handle, so that it could not be lifted, until one clever man came and made handles to it, and then it began to be carried by the handles. So until Solomon arose, no one could properly understand the words of the Torah, but when Solomon arose, all began to comprehend the Torah. (Song of Songs Rabbah 1:8)

 

Tanakh needed prophecy so that we could transcend ourselves and our limited perspectives to aspire to a more perfected self and world, and to reach out across the infinite gulf to God. Ultimately, however, it also needed Ecclesiastes to teach how to have faith from the human perspective, so that we may grow in our fear of Heaven and observe God’s commandments in truth.

 

 

 

[1]

[2] Throughout this chapter, “Ecclesiastes” refers to the name of the book, and “Kohelet” refers to the author. This chapter is adapted from Hayyim Angel, “Introduction to Kohelet: Sanctifying the Human Perspective,” Sukkot Reader (New York: Tebah, 2008), pp. 39-54; reprinted in Angel, Revealed Texts, Hidden Meanings: Finding the Religious Significance in Tanakh (Jersey City, NJ: Ktav-Sephardic Publication Foundation, 2009), pp. 190-204.

 

[3] For a survey and analysis of some of the distinctions between the readings of Rashi and Rashbam on Ecclesiastes, see Robert B. Salters, “The Exegesis of Rashi and Rashbam on Qoheleth,” in Rashi et la Culture Juive en France du Nord au Moyen Age, ed. Gilbert Dahan, Gerard Nahon and Elie Nicolas (Paris: E. Peeters, 1997), pp. 151-161.

 

[4] For a discussion of the interplay between text and commentary regarding the faith of Abraham, see Hayyim Angel, “Learning Faith from the Text, or Text from Faith: The Challenges of Teaching (and Learning) the Avraham Narratives,” in Wisdom from All My Teachers: Challenges and Initiatives in Contemporary Torah Education, ed. Jeffrey Saks and Susan Handelman (Jerusalem: Urim Publications, 2003), pp. 192-212; reprinted in Angel, Through an Opaque Lens (New York: Sephardic Publication Foundation, 2006), pp. 127-154.

 

[5] It should be noted that Ibn Ezra suggests an alternative interpretation for these verses. Precisely because he is so committed to peshat, Ibn Ezra occasionally resorts to attribution of difficult (to Ibn Ezra) verses to other speakers instead of radically reinterpreting those verses. See, e.g., Ibn Ezra on Hab. 1:1, 12; Ps. 89:1; Ecc. 3:19.

 

[6] Beginning in the eighteenth and nineteenth centuries, some critical scholars employed the opposite tactic, i.e., that Eccelesiastes was a work that denied beliefs found elsewhere in Tanakh, and a later “Orthodox glossator” added to the text to correct those errors. One traditional rabbinic commentator—Shadal—actually adopted this argument in his commentary (published in 1860) and expressed the wish that our Sages would have banned Eccelesiastes from Tanakh. Four years after publishing his commentary, however, he fully regretted and retracted that view and expressed appreciation of Eccelesiastes’ religious value. For a discussion of Shadal’s initial interpretation of Eccelesiastes in light of his anti-haskalah polemics, see Shemuel Vargon, “The Identity and Dating of the Author of Eccelesiastes According to Shadal” (Hebrew), in Iyyunei Mikra u‑Parshanut 5, Presented in Honor of Uriel Simon, ed. Moshe Garsiel et al. (Ramat-Gan: Bar-Ilan University Press, 2000), pp. 365-384.

 

[7] Ibn Ezra and those who followed his approach assumed that intelligent people do not contradict themselves: “It is known that even the least of the sages would not compose a book and contradict himself” (Ibn Ezra on Ecc. 7:3). However, Rabbi Joseph B. Soloveitchik considered this perspective Aristotelian. Jewish thought, in contrast, accepts dialectical understandings of humanity and halakhah (Days of Deliverance: Essays on Purim and Hanukkah, ed. Eli D. Clark et al. [Jersey City, NJ: Ktav, 2007], p. 29). Cf. Michael V. Fox: “Even without systematically harmonizing the text, the reader tends to push Qohelet to one side or another, because the Western model of rational assent regards consistency as a primary test of truth. But Qohelet continues to straddle the two views of reality, wavering uncomfortably but honestly between them” (A Time to Tear Down and a Time to Build Up: A Rereading of Ecclesiastes [Grand Rapids: MI, Eerdmans, 1999], p. 134).

See also Shalom Carmy and David Shatz, who write that “the Bible obviously deviates, in many features, from what philosophers (especially those trained in the analytic tradition) have come to regard as philosophy… Philosophers try to avoid contradicting themselves. When contradictions appear, they are either a source of embarrassment or a spur to developing a higher order dialectic to accommodate the tension between the theses. The Bible, by contrast, often juxtaposes contradictory ideas, without explanation or apology: Ecclesiastes is entirely constructed on this principle. The philosophically more sophisticated work of harmonizing the contradictions in the biblical text is left to the exegetical literature” (“The Bible as a Source for Philosophical Reflection,” in History of Jewish Philosophy vol. 2, ed. Daniel H. Frank & Oliver Leaman [London: Routledge, 1997], pp. 13-14).

 

[8] See further discussions in Gavriel H. Cohn, Iyyunim ba-Hamesh ha-Megillot (Hebrew) (Jerusalem: Eliner Library, 2006), pp. 253-258; Fox, A Time to Tear Down and a Time to Build Up, pp. 1-26.

 

[9] The commentary of R. Samuel ben Meir (Rashbam) on Qoheleth, ed. and trans. by Sara Japhet and Robert B. Salters (Jerusalem: Magnes Press, Hebrew University; Leiden: E.J. Brill, 1985).

 

[10] Michael V. Fox, The JPS Bible Commentary: Ecclesiastes (Philadelphia: Jewish Publication Society, 2004), introduction p. xvii.

 

[11] See discussion of sacred scriptures ritually defiling the hands in Sid Z. Leiman, The Canonization of Hebrew Scripture: The Talmudic and Midrashic Evidence (Hamden, CT: Archon Books, 1991), pp. 104-120.

 

[12] In Tractate Soferim chapter 14, the practice of reading Ecclesiastes is not mentioned when the other Megillot are. The first references to the custom of reading Ecclesiastes on Sukkot are in the prayer books of Rashi and Mahzor Vitry (eleventh century).

 

[13] Cf. e.g., Ecc. 2:24; 3:12, 22; 5:17; 8:15; 9:7; 11:9.

 

[14] Cf. e.g., Ecc. 7:12, 19; 8:1; 9:18; 10:12.

 

[15] Cf. e.g., Ecc. 2:13-15; 6:8; 7:15-16, 23; 8:17; 9:1, 11, 16.

 

[16] In relation to the introduction of this chapter, Lyle Eslinger (“The Enigmatic Plurals Like ‘One of Us’ [Genesis I 26, III 22, and XI 7] in Hyperchronic Perspective,” VT 56 [2006], pp. 171-184) proposes that the “plural” form of God that appears three times in Genesis expresses the rhetorical purpose of creating boundaries between God and humanity. The first (“Let Us make man”) distinguishes between God and the godlike human; the other two occur when the boundaries are threatened by Eve and then the builders of the Tower of Babel.

 

[17] Cf. e.g., Ecc. 5:6; 8:12; 12:13.

 

[18] Fox, A Time to Tear Down and a Time to Build Up, p. 49.

 

[19] Days of Deliverance: Essays on Purim and Hanukkah, p. 33.

 

[20] In this regard, Eccelesiastes resembles the Book of Job. While a rigid system of direct reward and punishment is refuted by empirical evidence, this belief is replaced by an insistence on humble submission to God’s will and the supreme value of faithfulness to God. Suffering has ultimate meaning even if we cannot fathom God’s ways. See Michael V. Fox, “Job the Pious,” ZAW 117 (2005), pp. 351-366.

 

Learning to Define Myself as Jewish

 

Until I started college, I never had to define myself as Jewish. I never had to introduce myself at SAR High School as an Orthodox Jew, nor did I have to explain why I did not eat Subway sandwiches or why I believed in a Jewish homeland. My extracurriculars, the school newspaper and Model UN, were never Jewish-related. Being Jewish was a given, not something I had to defend or explain.   

But, when I came to college, I could not spend more than two minutes with someone before explaining that I kept kosher, so no, I could not join them for breakfast, and since I kept Shabbat, they should not expect a text from me for the next 25 hours. It was more than mere logistics—unless I told someone about my Judaism, it felt like they did not know me. 

At first, I was embarrassed; it was as though I had a tic that compelled me to constantly discuss my Jewishness. Why couldn’t I get through one conversation without talking about prayer or Shabbat? Was I so boring that the only topic I could talk about was my religious life? 

Eventually, I realized why I felt compelled to immediately introduce myself as Jewish— it was simply that Judaism was/is the most central part of my identity, and for the first time, this identity required an introduction. 

 

Secular College Is Not a Frat House

 

Before college, I had some vague sense of what I wanted my experience to be like—learn a lot, make new friends, and meet people different from the New York Jews with whom I had spent my whole life. I loved my friends, and I loved high school, but I wanted to go somewhere that would force me to leave the comfort of my “Jewish bubble.” So, I applied to Harvard, a place where the Jewish community was not too small, but also not too large. 

But my priorities changed during my gap year in Migdal Oz, a Midrasha in Israel. I spent every day with a hundred other religious girls, and I had an amazing time. They motivated me to learn every day, to be more serious about my halakhic practice, and to think more deeply about my values. Since we were coming from a similar place with similar beliefs, it was not hard to make close friends and to grow a lot from those friendships. I wondered why I had desired to leave the bubble when the bubble was so fulfilling. I tried not to think about the end of the year, and I avoided talking about college, which I had begun to think of as the antithesis to Migdal Oz. Secular college would undoubtedly be a place of debauchery, devoid of values. So, when it came time to fill out my preferences for an assigned freshman year roommate, I expected the worst: “I want roommates who will NEVER bring men into the room; They should NEVER host parties; etc.” 

To say that I was wrong would be an understatement. Sure, Harvard has some questionable traditions (let’s just say Primal Scream, when students run around naked in Harvard Yard, is not my favorite night of the year), but it is by no means the wild frat house I had anticipated. Instead, I met many students devoted to volunteering, classmates who were thoughtful and kind, and religious Catholic and Greek Orthodox friends whose lives, like mine, centered around their faith.

I found that my closest friends were Jewish, and that my closest friends who were not Jewish were religious. I spent most of my time at Hillel and appreciated that it functioned as a second home where I could pray, do work, learn, and eat meals with friends. Secular college was certainly not the “off-the derekh” (a path wherein people lose their religious values) machine of which I had been warned, but rather a place teeming with opportunities to commit oneself to the Jewish community.

 

 

More Subtle Challenges

 

Yet, to say that I had no social or intellectual challenges during my time here would be false. While I was pleasantly surprised to find an upstanding environment instead of my naive expectations of wild debauchery, I sometimes wonder if this feared degeneracy would have been better. For example, when Primal Scream occurs, it tends to unite our Orthodox community; we would never run around like those people, and we stand opposed to that culture. Like the Maccabees fighting against Hellenistic influence, so too do we shelter ourselves from the surrounding immorality. 

The more difficult challenge was realizing that the students at a homeless shelter volunteer shift were really decent people, and hanging out with them left me feeling as fulfilled as a Hillel-organized hessed event. Indeed, discovering that I could find value and community outside the Orthodox sphere was threatening in a way that Primal Scream never could be.   

I also had a greater sense of complacency—I succeeded in keeping kosher and observing Shabbat despite limited food options and mounds of work, so was it really so bad if I occasionally went to a party? Or, I managed to pray in the mornings despite early classes, so was it really so bad if I did not make it to minyan? The more I took on outside of Hillel, the less time I had to commit to Judaism. And sadly, I go to Shaharit (morning prayer services) and learn Torah far less frequently now than I did my freshman year, when I had fewer friends outside Hillel, fewer extracurricular activities, and less schoolwork.  

Our Orthodox community also shrank during my time here, from a 45-person to a 25-person community. It became harder to learn Torah when there was less positive peer pressure to do so, or to use the Beit Midrash for Torah learning when people increasingly used it as a hangout space. Moreover, the temptation to build communities outside of Hillel grew much stronger when I had fewer friends within Hillel. These challenges sometimes made college feel lonely, and made me miss SAR and Migdal Oz’s robust Jewish communities. And, though my experience has been largely positive, I have friends who cannot say the same.  

 

Going “Off the Derekh

 

Indeed, our Hillel has seen many people leave the Orthodox community, i.e., go “off the derekh.” This is primarily because college is the first place that people who have problems with Orthodoxy can choose to pursue a different religious path. While someone with doubts may still have to observe Shabbat and pray in an Orthodox synagogue when living with their parents, when they arrive at college, they can instead join the Conservative minyan. There are also social temptations that many who grew up in an Orthodox environment never faced before: friends who go out on Saturdays, friends who eat at non-kosher restaurants, and so on. 

Moreover, since our Hillel is relatively small, there are people who do not find friends in the community and look outside of Hillel to form those relationships. This also leads people off the derekh—after all, it’s hard to spend five hours at Hillel on a Shabbat afternoon without friends when one could be hanging out with one’s theater friends at a show.  

 

Place of Religious Growth

 

Nonetheless, I am convinced that college is a place of more religious growth than rejection. In fact, of the 25 people in our Orthodox community, five are Ba’alei Teshuvah (Jews who grew up in less observant households who become more observant). If college were such a hostile place for religious growth, I doubt 20 percent of our community would have actively chosen to join. 

            I think the trend of Ba’alei Teshuvah at college can be explained by two factors. One, Harvard is privileged to have the infrastructure to support someone who wants to grow religiously. We have a robust Hillel, an inviting Chabad, and a warm Meor. We have Jewish learning classes, free Shabbat meals, and a host of rabbis ready to offer advice and mentorship. Consequently, for students who never went to Jewish Day School, Harvard might be the first place they learn about Judaism and the first time they have a community, across the street from them, eager to invite them into the fold. 

Second, college can be a time of intense loneliness. You are away from your family and home-community, and it is difficult to immediately find like-minded friends. Being religious, however, gives one a built-in community and a sense of belonging that can help alleviate that loneliness.

            And religious growth is not limited to Ba’alei Tshuvah. As I mentioned before, college was the first time that I (who had grown up religious), had to define what exactly Judaism meant to me. I had to explain why I wore skirts and could not hug a person of the opposite gender. Being forced to offer these explanations helped me reinforce my observance. In fact, many of the religious questions that forced me to think the most were posed by my non-Jewish friends. “Why can you say: “Oh my God” if you can’t take God’s name in vain?” “Are you really allowed to eat with us given the prohibition against a non-Jew cooking for you?” “Could you hold up someone of the opposite gender if they were falling, or would that still be prohibited?”   

College was also the first time that I could give up parts of my practice so easily, and that fear drove me to instill certain practices more diligently. At home, if I do not attend synagogue on a Shabbat morning, I still feel that it is Shabbat—my family is home, and we have Shabbat lunch as normal. In contrast, at school, Shabbat rarely feels like Shabbos until I leave my dorm for synagogue. Similarly, at SAR, people knew I was religious no matter how I dressed, but on campus, my dress-code standards feel a lot more telling.

Conclusion

 

Ultimately, secular college is not the place for every religiously observant Jew. For me, the main threats to religious identity came from finding meaning outside the Jewish community and from the complacency of “I am already doing so much to juggle my Jewish practice with all my other obligations.” Yet, I still maintain that I have grown more religiously in my years at Harvard than I have at any other stage in my life. Because, while my Jewish observance/engagement may have fluctuated while in college, it is also here that I gained clarity about my Jewish identity and what being Jewish means to me. And, while the challenges posed by secular college are definitely real, those same challenges have forced me to identify and guard my religious priorities more than I would in an all-Jewish environment.

 

 

The Current State of the Modern Orthodox Community

  1. Do you sense that Orthodoxy has been moving to the right? To the left? Other?

 

I think it’s helpful to understand why we often discuss “rightward” and “leftward” movements within American Orthodox Judaism. In 2006, the sociologist Samuel Heilman coined the term, “sliding to the right.” It was the title of his important tome that, as the subtitle indicated, explored the “contest for the future of American Jewish Orthodoxy.” Heilman’s book studied everyday life: for example, college enrollment, yeshiva study in Israel, and attitudes toward culture and technology. His conclusion was that the rising generation of traditional-leaning Jews had moved the boundary lines of what is and what isn’t Orthodox Judaism. In each case, those lines “slid” further to the right, shrinking the acceptability of so-described Modern Orthodox practices and placing greater power in the hands of those who subscribed to the values and beliefs of the “rightward” yeshiva world. 

            Five years later, Yehuda Turetsky and Chaim Waxman authored an article that questioned Heilman’s findings. The pair interviewed 50 women and men who described their religious beliefs as in concert with Modern Orthodox Judaism. The interviewees expressed to Turetsky and Waxman a concern for how Hareidi (Israel) and Yeshivish (U.S.) rabbis had banned books and people; most notably, the “excommunicated” Rabbi Natan Slifkin. Those interviewed also expressed an openness for advanced Torah study for women, as well as some inclusion for women in synagogue rituals. They therefore found, in opposition to Heilman, a competing “slide to the left.” 

            Both approaches are compelling, making it difficult to easily plot the trajectory of Orthodox Judaism in the United States. Simply put, it seems a mistake to suggest that Orthodox practice (and belief) has moved from a “left-leaning” liberal attitude to a “right-pulling” conservatism and rigidness. This narrow view of history is too simple when we account for the variety of forces weighing upon Orthodox observance. The history of “change” is rarely binary. Change, I’d say, does not move two-dimensionally along an x-axis. Change moves in oft-unchartable strides. It does this because change doesn’t occur in a vacuum. It sometimes moves unconsciously, reacting to indigenous extratextual conditions. For Orthodox Judaism, a list of those external forces include culture, politics, technology, as well as legal and economic variables. 

Orthodox Judaism has bargained, to borrow a term from scholars of the American Amish, with modernity in complicated ways. Take, for instance, the gray areas of Jewish jurisprudence, as I have argued, from the rise and fall of peanut oil in Ashkenazic-practicing homes on Passover (it has been labeled “kitniyot”) to the emergence of bat mitzvah ceremonies in Orthodox spaces. Peanut oil was “the Passover oil” in the immediate postwar period, approved by all kosher certification agencies. There were no audible grumblings from more stringent Hungarian Jews until the 1960s. Bat mitzvah, on the other hand, was a decidedly Conservative Jewish practice in the 1950s and rarely done in Orthodox circles. In the case of peanut oil, the Orthodox community banned it and moved to the “right,” while in the latter instance, bat mitzvah rituals, we have moved very far to the “left.” Factor in consumerism (Passover vacations, boutique toys, and other Orthodox products), dating practices, and women in the workforce, and you will further bollix notions of linear movements to one direction or another.

Consider, as well, the uneven reception of Torah study and leadership opportunities for women. It is probably a fair assessment to conclude that most Orthodox communities have not warmed to women clergy but have expanded the scope of learning available to Orthodox women. But the notion of “clergy” is curious; and it is absolutely the case that women have been made leaders in some of the most ardently Orthodox communities, even if it hasn’t taken place on a pulpit. In 2015, two rebbetzins—rabbis’ wives—successfully argued in a courtroom in Portland, Oregon, that they were not required to testify in a divorce trial because they ought to enjoy “clergy privilege” and exempt from sharing conversations held in confidence with members of their community. The representatives of these women, belonging to what might be described as a “rightwing” segment of the Orthodox community, claimed that “it was reasonable to argue that despite Orthodoxy’s position that women cannot be ordained rabbis, the kollel wives were in fact officially hired by the Kollel to ‘minister’ to the community in vital ways that overlapped with the duties of clergy.” In all these instances, it is apparent that modernity has posed challenges and opportunities for Orthodox Jews to grapple with their own red lines and develop creative responses to how this community engages with their American environs. In some cases, change can be interpreted as a movement to the right. In others, it is altogether clear that change shifted things leftward. Upon observing this phenomenon, I argued in my recent book, that all American tradition-bound faiths, Orthodox Judaism included, are in search for “authenticity.” The quest for authenticity, a hard-to-describe sentiment, takes a group in a myriad of directions. 

 

  1. What would you consider the proper “center” and how is that center doing?

 

First, some history. The “center,” as in “Centrist Orthodoxy,” had a short shelf life. In the 1980s, Modern Orthodox Judaism rebranded itself as “Centrist Orthodoxy.” In 1986, Rabbi Norman Lamm, president of Yeshiva University, authored a visionary essay on Centrist Orthodox Judaism in the pages of Tradition. Two decades earlier, Rabbi Lamm had been one of the key figures to popularize the term, “Modern Orthodoxy.” By the mid-1980s, Rabbi Lamm believed that “modern” somehow connoted religious compromise, which was never his intention. Drawing from Rambam’s (and Aristotle’s) Golden Mean, Rabbi Lamm preached his movement’s belief in moderation and nuance in the areas of higher learning and Western culture. Centrist Orthodoxy, like Modern Orthodoxy before it, valued Religious Zionism. 

Others added to Rabbi Lamm’s list. For example, Rabbi Gilbert Klaperman, president of the Rabbinical Council of America, confessed to his colleagues at the rabbinical group’s Midwinter Conference in Upstate New York that he and other “Centrists” were “being drawn to the right by the adamant inflexibility of those who are at the right.” In time, by the end of the 1990s, Rabbi Lamm and others reclassified themselves as Modern Orthodox Jews. Since then, some have preserved “Centrist Orthodox Judaism” as a moniker that represents something a bit more religiously conservative while others have used the term interchangeably with Modern Orthodoxy. Sociologist Sylvia Fishman provided an interesting taxonomy in her Ways into the Varieties of Jewishness.

How is this subgroup of Orthodox Judaism faring? In terms of numbers, it’s clear that it is no longer the dominant community. In 2013, the Pew Research Center published “A Portrait of Jewish Americans.” The report was a landmark population study of Jews in the United States. Among its findings, Pew tabulated about 5 million Jews, about 10 percent of whom belong to the Orthodox group. Within that smaller group, 30 percent self-identify as “Modern Orthodox.” According to my math, this suggests that the Modern Orthodox number just 150,000 women and men. The more recent Pew survey completed in 2020 does not drill down on these figures but the dataset available online confirms that the Modern (or Centrist) Orthodox are no longer the mainstream of Orthodox Jewish life in the United States. 

            Why not? I’d offer that it’s because the tenets of Modern Orthodoxy are no longer all that distinguishable from the yeshiva world. The latter has softened its stance on Israel; the erstwhile anti-Zionists (save for Satmar) are by and large non-Zionists. The yeshiva world visits Israel, champions it, and votes for American politicians who they believe best serve Israel’s interests. In addition, the Modern Orthodox and Orthodox Right are much closer aligned in terms of higher education. The yeshiva world has developed partnerships with universities to help their children earn degrees in “practical” fields such as accounting and the health sciences. Their children enroll in top medical schools and elite law schools. With great ingenuity, the Orthodox Right produces manuals to help young people navigate the higher education system to obtain degrees through online programs. One of the most comprehensive is Reuven Frankel’s The Bochur’s Guide to College.

            Meanwhile, the Modern Orthodox have cooled to the liberal arts and the traditional undergraduate experience. Some (understandably) worry about how their children will do on a secular college campus, amid BDS and rising antisemitism. Even before this, though, about 20 years ago, two Ivy League graduate students, Gil Perl and Yaakov Weinstein, wrote a pamphlet titled, “A Parents’ Guide to Orthodox Assimilation on University Campuses.” The short tract with a Modern Orthodox audience in mind warned about the perils of the campus quad. It received significant attention; it was passed around in yeshivot and seminaries in Israel and discussed at many Hillels throughout the United States. 

It's not just the social and cultural aspects of college life. The Modern Orthodox—like so many Americans—have counseled their youngsters to forsake “impractical” degrees in the humanities in favor of business programs, computer science, and other professional-minded tracks. Consider the case of Yeshiva University. In 1987, YU opened the Sy Syms School of Business in response to student requests for “new areas of interest.” President Norman Lamm anticipated the criticism. Even as a minority of students pleaded for business programs, he was adamant that YU remain a liberal arts school. YU’s business school, therefore, trumpeted Rabbi Lamm, “insists on a liberal dose of the liberal arts.” He remained resolutely opposed to total vocationalism and intended for the business school to retain a small portion of the university’s total undergraduate offerings. Today, Sy Syms’ male student body is larger than (the all-male) Yeshiva College’s (Stern College for Women is still much larger than the women’s cohort at Sy Syms). Withal, and due to a lower birthrate than families belonging to the yeshiva world, it is little wonder that the Modern Orthodox community is not growing, at least not at the same rapid pace of the Orthodox Right.

 

  1. What are the three greatest challenges facing Modern Orthodoxy today?

 

First, politicization. By this, I do not mean that Modern Orthodox Jews have en bloc taken up a particular political party’s cause or voted in a monolithic way. Modern Orthodox Jews probably vote somewhere in between the GOP-leaning Orthodox Right and the majority of American Jews who have, since FDR, voted for Democrats. By politicization, I have in mind the recent discourse about Modern Orthodox Judaism that has centered on politics rather than faith. This is not new in the history of American religion. For instance, in the decades leading up to the Civil War, politics (slavery) split Baptists and Methodists into “northern” and “southern” sections. The United States’ democratic processes are contentious and deeply meaningful; as a result, they tend to absorb considerable discussion and secrete into other areas of life—education, sports, and popular culture, to list a few. Perhaps, then, it was inevitable that matters such as LGBTQ+ and First Amendment issues would eventually dominate the conversations of Modern Orthodox Jews in the media and around the Shabbat table. Yet, it has come at the expense of Modern Orthodoxy spending time on pressing religious concerns: These include refining its approach to Torah study, revitalizing its synagogues, and forming new agencies and ideas to better support its constituencies. 

            Second, expertise. A dozen years ago, researchers Randall Stephens and Karl Giberson authored a brilliant monograph on expertise in the American evangelical community. Their work, The Anointed, demonstrated how the Christian Right elevated self-taught and self-described experts to champion “Evangelical Truth in a Secular Age.” These men (few of these experts were women) published books, wrote articles and took to other forms of modern media to weigh in on science, politics, and history. Their goal was to provide an alternative and “safer” form of truth that could, in their minds, better jibe with their communities’ religious and social sensibilities. Very often, these evangelical exponents deployed rhetorical apologetics and made statements without the sufficient scholarly scaffolding to make cogent and compelling arguments—at least not the kind that would satisfy the most learned. While some within this group such as the historian Mark Noll, described this phenomenon as the “scandal of the Evangelical Mind,” many pious Protestants have felt more comfortable with internal experts, no matter how these individuals compare to scholars and researchers who had trained and received credentials from American universities.

            In the 1960s, the same was the case for the yeshiva world. Their magazines described “newfangled” research in psychology and education. They also worried about the research produced by women and men who were part of the nascent field of Jewish Studies. They often positioned these flawed disciplines against the flawlessness of Daas Torah, a term that denotes a belief in an unimpeachable form of rabbinic wisdom. 

More subtly and more recently, the Modern Orthodox have revealed the same concerns about elevating experts, even within their own community, who possess top credentials. More often than not, congregational rabbis and yeshiva heads are asked to opine on mental health, dating advice, and lecture in the areas of science, history, and philosophy. In some instances, these rabbis and religious leaders possess relevant credentials. Rarely, however, do they conduct research, write, or, I suspect, generally keep up with their peers in the field. Modern Orthodox communities have become much better about inviting a small (but growing) cluster of women leaders to speak on a myriad of issues. But, like their male counterparts, these women are often asked to speak about areas far beyond their specializations. 

            Confounding this further is social media and the relatively low cost of publication. On the one hand, social media has democratized discourse, permitting many people to obtain a voice on various platforms and podcasts. On the other hand, the phenomenon has short-circuited the vetting process. While it is hardly the case that all articles and books published decades ago were the finest works of scholarship, there are, at present, no controls on material produced for wide consumption and consideration. The result of this and the decline of expertise in the Modern Orthodox fold is that there is no very trustworthy forum for intelligent conversation about Modern Orthodox Judaism.

            Third, economics. It is very expensive to live a Modern Orthodox lifestyle. The cost of education is particularly painful. Day School and college are very expensive. Tuition for families, say, with four children enrolled in Day School and summer camp can run, easily, about $120,000 (and that’s after taxes). Rising mortgage rates and housing costs just add to the high cost of Modern Orthodox living. To be sure, it’s not cheap to live in the yeshiva world. Yet, the Orthodox Right, it is my sense, finds philanthropic and government resources (troubling exposés in the media, notwithstanding), to help subvent some costs. 

 

  1. What positive developments do you sense for contemporary Modern Orthodoxy?

 

It is too soon to speculate about our post-pandemic Modern Orthodox communities. No doubt, synagogues and their leaders have had to reconsider the needs of their congregants. Likewise, Day Schools, forced to pivot and improvise during the “shutdown” Covid period, have learned a lot about their capacities and their ongoing needs for professional development. As for economics, especially amid rising interest rates and inflation, it is far too soon to prognosticate remedies. However, it is heartening to observe the efforts of the Orthodox Union and other agencies who have worked closely with state-level lawmakers to find funding to support Jewish education. In short, the crisis wrought by the Covid-19 pandemic has forced all types of people to think differently about their communities and organizations. This has, no doubt, extended to the Modern Orthodox.

            There’s another reason for optimism. Even before the coronavirus pandemic, Modern Orthodox Judaism in the United States was the beneficiary of an exciting jolt of energy from their dati-le’umi counterparts in Israel. Israelis have inspired new and more advanced forms of learning for America’s Modern Orthodox women, introduced new thinkers and ideas, thanks in large part to Koren Publishers. Still, there are cultural differences between the Modern Orthodox in the United States and Israel’s dati-le’umi leaders. America’s Modern Orthodox community was fashioned by a Lithuanian rabbinic folkway. 

For this reason, traditional Talmud study (“yeshiva learning”) was the coin of the realm for leadership. Unlike in Israel, non-Eastern European exponents such as Rabbi Samson Raphael Hirsch, did not gain a sturdy foothold in American environs. It’s also the reason that Tanakh scholarship is better appreciated among the dati-le’umi constellation Israel than it has been within the Modern Orthodox communities in the United States. This also may suggest why women’s leadership has developed differently in the two communities. If these realms are changing in the United States, it is probably because of Israel’s influence. Not everything from Israel will “take,” of course. The indigenous Modern Orthodox community will continue to privilege traditional Talmud learning, even as other areas of Torah scholarship gain increased reception. We’ll figure out what works best and redevelop the infrastructure to reimagine and fortify our Modern Orthodox communities in the United States.

 

 

Halakhic Thinking re: Mechitsah

                 The Low Down on the Height of the Mechitsah     

Toward Defining The Contemporary Orthodox Identity

By Alan J. Yuter

The  synagogue mechitsah, the partition separating women from men in the Orthodox shul, has evolved over time to become the defining distinction between what is accepted to be authentic Orthodox Judaism that the Torah law prescribes and non-compliant, non-Orthodox communities. As with any culture, a person’s actual opinions are inevitably conditioned by one’s teachers and peers, rabbis and rebbes, congregations and communities, and peers and friends.[i] The polemic and hyperbole that has been applied to the synagogue mechitsa  often leaves dissenters with the hard choice of remaining silent and compliant or as being marked as an outsider. The most efficient way to be accepted as an Orthodox Jew in good standing before God is by that person adopting an unquestioning and uncritical submission to the designated, rabbinic elite.   Principled, idiosyncratic commitments are less valued than deferring to the Orthodox elite.

People often allow their personal piety to be worn on their sleeves for observers to notice. The easiest and socially inexpensive way to proclaim one’s ideological orthodoxy is by denouncing those who may not conform to the culture Orthodoxy’s benchmarks.  Thus, lower mechitsot, or partitions segregating women from men in the Orthodox synagogue, may imply lower and possibly inadequate religious standards.  If one is prepared to endorse a less than adequately sized partition segregating the genders in the synagogue prayer setting, one’s “fear of Heaven” may also be suspect.

Authentically religious Jews look into their canonical books and not only to uninformed peers or people mistaken to carry canonical or statutory authority. The Orthodox Judaism that is encoded in the Oral Torah library only canonizes books; other religions often canonize people as well. Orthodoxy’s currently enfranchised elite are said to possess the Holy Spirit,[ii]  which bestows upon them the ability, expertise, and authority to parse the Canonical Oral Torah library, understand its message, and to articulate its normative implications, that God speaks to Jewry in their voice alone. Thus, the Great Rabbi is singularly entitled to read intuitively and knowingly between the Torah’s lines but no one else has the right to read, understand, or apply the Torah Canon’s actual, plain sense meaning.[iii]

There are two major approaches to Law in general and to the Halakhah, Jewish law, in particular. The Legal Formalist, or Legal Positivist, examines the legal systems[iv] the “ought to do” and ought not  to do” legislated rules which are interpreted and applied but are not created by the judge. In contrast, Legal Realism maintains that the Law is made by the judges when rendering real life legal decisions.[v]   While the Old Babylonian Codex Hammurabi records Hammurabi ’s Legal vision, his Letters reveal that his personal behavior did not conform to his own Code’s normative benchmarks. In Old Babylonian culture, Legal Realism reigned.

 A plain sense reading of the Torah seems to present a Positive legal order according to which God’s command, “obey the norms of the Torah contract,” is the Basic Norm of Jewish Law.  The Hebrew idiom for Judaism’s “Basic Norm" is “’ol malchut shamayim, the “yoke of Heaven’s Kingdom,” according to which God the Creator is accepted as Israel’s King and Commander, as well.

Genesis 1:3 reads “And God said/issued an imperative, ’let there be light,’ and there was light.” The canonical Hebrew imperative, vay-hi or, literally “light, be[!],” is immediately followed by “vay-hi or, “light came into being.” While the Semitic root “amr” usually means “say” in Biblical Hebrew, in Arabic, Aramaic, and occasionally even in Biblical Hebrew,[vi] “command” is the preferred rendering. Note that the command’s fulfillment report employs the same diction as the command itself. This semantic device indicates that God the Creator is also God the Commander, and God expects exact compliance with the divine directives. When compliance takes place, God rewards the well-performing person with sanctification,[vii] or holiness,[viii]  but the consequence for non-compliance with God’s command is death.[ix]

Hebrew Scripture’s Law requires precise adherence to the Lawgiver’s actual words, as evidenced by Scripture’s consistent concern for exact compliance with God’s word:

13 “Now all has been heard;
    here is the conclusion of the matter:
Fear [=hold in a state of awe and 

           wonder/take seriously] God and keep 

          His commandments,
    for this is the duty of all mankind.
14 For God will bring every deed into   

                 judgment, including every hidden thing,
    whether it is good or evil.”[x]

 

From these Hebrew Scriptural witnesses, we conclude that, for Biblical theology, God the Commander “stands“ at the top of the Torah’s hierarchical order of legal norms. Israel is held to account regarding its adherence to the exact, specific norms that are memorialized in the Torah’s actual words.  Scripture explicitly commands vigilance when anticipating unscrupulous pretenders to legitimate legislative authority who would dare to add to or to detract from Torah Law.[xi] However, Legal Realists’ personal sense of what might be considered to be reasonable to the intellectual elite who may, on occasion cancel the legislated norm if they deem the norm to be unworthy. Legal Realists’ tend to be cultural aristocrats who in antiquity might validate their power by means of miracles—or by exploiting the art of allusion—in order to present themselves in everyday life to be the Creator’s duly ordained deputies, and in modernity as those who are able to establish whatis proper and good" in God’s eyes.[xii] 

According to Positivist Halakhah, the statute/norm is unalterable, unless the given norm is revoked by a Bet Din [=rabbinical court] greater in wisdom and number than the court that issued the initial ruling[xiii]  or provides for its own suspension.[xiv]  Since a plain sense reading of the Written Torah document indicates that God’s words are to be taken face value, we have adopted the Positivist/Formalist position in this study. [xv]  Taking the Commander’s diction as the Divine word, the Halakhic Positivist must pay close attention to the legal text’s lexicon, syntax, and diction when defining the norm encoded in the canonical text. Below we will examine the mechitsah issue from both Legal Realist and Legal Positivist perspectives. In Talmudic literature, the idiom “mechitsah,” or partition wall, is attested in the laws of plantings, in order to avoid mixing diverse seeds, the sukkah wall, and the eruv, the merging or enclosure of courtyards into one single residence, permitting carrying within its perimeter on Shabbat. According to Jewish law, a kosher eruv also requires a walled perimeter that is more enclosed than open, and the eruv arrangement enjoys the consent of every non-Jew and non-observant Jew residing within the eruv’s perimeter.   There is no mention of a synagogue mechitsah requirement in the canonical Babylonian Talmud or related literature,  the medieval Maimonidean Yad, or the early modern  Shulhan ‘Aruch legal compendium.  There is no textual evidence of a positive Torah norm requiring a synagogue mechitzah in the Oral Torah canon.   But we do know that men, women, and children heard the Torah being read in the women’s section of the Temple on Yom Kippur[xvi] and on the Sukkot holiday during the Haqhel ritual.[xvii]

Rabbi Moshe Feinstein and others argue that the “great reform” [Hebrew, tiqqun gadol] made for the intermediate Sukkot festival day ritual of water drawing in the Temple is the “source” for the synagogue partition being viewed as a Biblical prohibition.[xviii] A formal separation of women and men was made in the Temple based on an obscure passage preserved by the Biblical Chronicler.[xix] There are three Formalist difficulties with this rendering. According to the formal principles of Jewish law, Torah law does not derive from any Biblical post-Pentateuch book,[xx] and I-II Chronicles were among the last books of Hebrew Scripture to have been composed, by all accounts.[xxi]  Second, the idiom tiqqun, or “enactment,” is not a divinely authorized, but necessarily human, positive rabbinic law that semantically cannot be a Biblical obligation.[xxii]  This difficulty was also addressed by the ultra-Orthodox R. Yom Tov Schwartz, who answered [me’anneh] the letters,  Iggarot, or responsa, of R. Feinstein.[xxiii]  Third, Jewish Law does not require basins, animal or grain sacrifices, or necessarily raised women sections in contemporary Orthodox synagogues. Oral Law norms alone provide the instances in which the synagogue functions as a miniature Temple. And men were welcome in the Temple’s women’s section on occasion, as noted above.

R. Feinstein was scandalized with mixed gender seating during synagogue based prayer, and he claimed that this gender mixing and contact, even if unintentional, violates a presumed Torah norm  prohibiting levity or qallut rosh.[xxiv] According to the Talmud, one may not engage in qallut rosh in a synagogue, indicating that the entire category is conventional but not covenantal.[xxv] I do not recall that avoiding qallut rosh was ever viewed as a Pentateuchal obligation. Nevertheless, R. Feinstein is unwavering regarding the synagogue mechitsah in spite of the fact that it goes unmentioned in the Oral Torah canon, but he does not object to eating in shteibels, or small chapels of Hassidic prayer.   By defining these small synagogues as batei midrash, dedicated study rooms,  the leniency of allowing eating in a bet midrash is somehow transferred to the small chapel.  While the Talmud does not mention, much less forbid, mixed gender settings per se to be qallut rosh, eating in the synagogue is most assuredly forbidden as an instance of qallut rosh.[xxvi] R. Feinstein’s vehemence has carried the day in Orthodox culture, and the mechitsah has become a defining feature of institutional Orthodoxy.

A close reading of R. Feinstein’s Introduction to Iggarot Moshe reveals the mindset of a Legal Realist, and not of a Legal Positivist. While affirming a perfect Torah law de jure to be a Positive legal order, R. Feinstein observes that a perfect Torah cannot be responsibly applied literally, perfectly, or at face value in an imperfect, human, social reality. R. Feinstein hereby adopts the Legal Realist perspective whereby the judge who is a Great Torah sage is authorized, obliged, and able to fill Orthodoxy’s leadership vacuum,  rule on pressing matters of law, and to determine appropriate policy for the Orthodox community in its  immediate current culture context.  His concern for the dire dangers challenging Orthodoxy suggest that in emergency situations and when called for, the Law itself may be suspended.[xxvii]    Realizing the danger of invoking the Torah’s emergency clause by suspending the Law in a fashion that may appear to be compulsive, cavalier, and capricious, the Positivist Maimonides immediately cautions the legal decisor regarding danger of the slippery slope should this norm be invoked often or irresponsibly.[xxviii]

As a Great Sage to whom dicey questions were so often directed, R. Feinstein not only had to rule correctly, as the religious authority of his community, he was obliged to lead responsibly as well. He could not and did not consider the positive statute alone; he took into account the social contexts, tradeoffs, consequences, and implications of his decisions as they are applied in the real world.  He also had to rule wisely and convincingly,[xxix]which sometimes requires compromise and trade-offs.  After all, he did not have a police force to enforce his rulings. His moral authority was all that he had in his possession, and that he needed to do his job.

Legal Positivists might not be sufficiently sensitive to challenges to   Orthodox social culture, communal expectations or policy, because they focus upon Halakhah’s explicit, recorded norms. Mixed-gender synagogue prayer was the issue that identified R. Feinstein as the outstanding Orthodox Legal Realist of his time.  On one hand, mixed gender synagogue seating profoundly offended the community’s sensibilities, but to date there has been no success at all in identifying  a Canonical, Oral Torah document that reports this assumed, positive legal norm.

R. Avrohom Gordimer, who is both a lawyer and an Orthodox activist,  explains how Orthodoxy’s living culture, or “Tradition,” also known as  Masorah,” really works.  His  words read like a Legal Realist manifesto:

“Mesorah reflects enduring and traditional practices that are based on solid halachic and/or hashkafic (ideological and attitudinal) considerations, when such considerations are not formally codified or patently evident. In the case of synagogue ornamentation, the synagogue is classified as a Mikdash Me’at, a ‘Miniature Beis Ha-Mikdash’ (Holy Temple), and, as such, must reflect the highest degree of holiness and dignity. Anything that hints at Kalus Rosh (secular levity or amusement) is disallowed. This tradition and sentiment, which is based on halachic and hashkafic concepts yet is not codified specifically in terms of the actual adornment of the synagogue, forms the Mesorah as to the appropriate physical decor of a shul (and precludes introducing superhero or sports themes, as appealing and “Jewish” as they may seem).”[xxx] 

Orthodox Legal Realism elevates and reifies habit, appropriateness, expectations, and mimetic usage into actual law, and significantly, it also affords its own rabbinic elite immunity from review when their decisions differ from the “official religion,” what is taken to be a divinely inspired Oral Torah mandate. According to this approach, rational discussion assumes that the question is in fact subject to rational discourse and public review. But Gordimer’s “Tradition” is a social or taste culture, not the true legal order prescribed by the Written and Oral Torah library.[xxxi] This Judaism maintains that the “customs of Israel are Torah,”[xxxii]  but Torah is “the word of the Lord,”[xxxiii] and social customs are clearly not divine mandates. Since social customs are not the word of the Lord, but are accepted as distinctly human, social constructs, customs  cannot generate the sanctity of a divine order appropriately fulfilled.[xxxiv] Keenly aware not only of the Hartian “rules of obligation,” i.e. the Halakhah ’s prescriptive  norms, the Legal Positivist is also mindful of the “rules of recognition,” the rules that confirm a given norm’s validity. As opposed to Rabbis Feinstein and Gordimer, the Maimonidean Positivist  understands “Tradition” to be the Oral Torah transmission from Moses to R. Ashi, with whom hora’ah, the authority to legislate apodictic legislation, comes to an  end.[xxxv]   According to this school of Orthodox thought, “Tradition” is the publicly vetted Oral Torah legal order transmitted from one generation’s Bet  Din ha-Gadol  to the next.[xxxvi] It is what Israel ought to do according to the Torah covenant; it is not necessarily what Israel happens to do in everyday life. 

Mixed gender synagogue seating violates [a] the traditional, historical practice of Jewry until the 19th Century, [b] traditional expectations of living continuity, and [c] its implementation often leads to future communal turbulence.  Since family seating presented a mortal threat to Orthodox synagogue expectations, membership, theology, and leadership models, R. Feinstein the community leader formulated his substantive political/theological agenda, the goal of which is the preservation of Yiddishkeit, the living Eastern European, traditional culture guided by Great Rabbis whose Torah learning and principled piety provided  the source of their authority and power.  In Eastern Europe, Yiddish was that Jewish language by which they proclaimed that the local Jewish population was neither Russian nor Polish by ntionality.[xxxvii]   R. Feinstein strained to minimalize the social dislocation caused by the migrations, with Yiddishkeit culture providing the social glue that sustains “traditional” Jewish life. This agenda may be gleaned from his many responsa:

  • R. Feinstein strives to preserve Orthodox social culture as it was preserved by Jewry’s ancestors. Compliance with contemporary  rabbinic directives is a much more valued disposition than the creative individualism of independent minds.

  • Changes in Jewish culture are usually socially disruptive because they foster assimilation and undermine current religious standards and commitments. The Orthodox Legal  Realist “Tradition of Israel” is the real life culture—as well as Law—of the Haredi  Orthodox elite.

  • No change in usage or policy may be implemented without the approval of the Great Sages.

  • Orthodox Judaism must resist any, all, and every deviation that threatens the integrity of Orthodoxy’s Halakhah, ethos, and ideological narrative. Pretenders and competitors to Orthodoxy are so religiously illegitimate that it is even forbidden to officially communicate with them.

Mixed gender prayer may choreograph the unorthodox notion that God “must” agree to the radical egalitarianism of the secular, intellectual elite. For the unorthodox rabbinic elite, “God” is usually a concept, but is neither the Creator nor Commander of the cosmos. Given the emergency principle cited above,[xxxviii] R. Feinstein’s Legal Realism might actually be compatible with Legal Formalism because the emergency principle allows rabbinic discretion, and even law suspension, during emergencies.[xxxix] Extreme threats on occasion may require extreme responses. Liberal Jewish ideologies do not, with  few exceptions, affirm a God Who commands, makes distinctions between individuals, and Who holds humankind to account for what it does. Mixed gender “prayer” violates the Yiddishkeit religious ethos and must be regarded and resisted as a counterfeit cult.

Rabbi Joseph B. Soloveitchik argues that the synagogue gender separation is a Biblical requirement and the absence of this separation violates the rule of “thou shalt not see a matter of nakedness.” [xl] He also declares that the mechitsah must be “attributed” to an uncited, unidentified rabbinic enactment.   In order to convincingly stress the “Biblical” nature of the separate seating in the synagogue requirement, R. Soloveitchik appropriately cites a Torah verse to justify his claim.[xli]  But there are two problems with this assertion.   Rabbis functioning after the Talmud came to closure simply do not possess the Halakhic authority, jurisdiction, or standing to derive apodictic laws from Biblical texts.[xlii] Such claims also require the approval of the Supreme Court of Israel, the Bet Din ha-Gadol.   As noted above, the juridic power to create or legislate apodictic rabbinic norms has sadly lapsed in our day.  And the Torah does not provide for oracular legal  promulgation,[xliii] at least for the Legal Positivist. Since the Talmud does not explicitly claim that mixed seating violates Biblical law, the claim that it does is problematic, at best.   A learned colleague suggested that R. Soloveitchik “must” be referring to Maimonides, Laws of Shema 15:3, which disallows praying in the presence of “nakedness,” the external sex organs, or excrement. Jewish law only requires that women cover those body parts that by social  convention are covered.[xliv]   Simply put, a woman may not dress provocatively.   But if women are properly clad, why would mixed synagogue seating be forbidden according to Torah law?  R. Soloveitchik actually allowed mixed gender classes at his Maimonides Day School for Torah study, which like prayer, may not be performed in the immediate presence of either nakedness or excrement. And since classroom furniture is more exposing than synagogue pews, there is greater risk of visual impropriety in the day school  classroom than in the synagogue sanctuary.  The assertion that one may not fulfill the shofar requirement in a mixed seating synagogue setting is anomalous because a ritual slaughterer who slaughters while stark naked has acted improperly,  his act of slaughtering is not disqualified either by the absence of the slaughtering benediction or by his lack of clothes.[xlv] Perhaps R. Soloveitchik attaches the protocols of prayer to the shofar blast. If the shofar is a prayer without words,[xlvi] then the shofar rite should be performed with the same solemnity, and protocol, as prayer.

R. Soloveitchik’s imputation of the mechitsah requirement to a Rabbinic decree is a similarly challenging claim. If a proposed norm is not memorialized by and recorded in the Oral Torah canon for citation, it is simply is not a valid norm.  The claim that a restriction exists by conception or imputation but without citation conflicts with Oral Torah principle that the absence of evidence may not be construed  to be evidence of absence.[xlvii]  On one hand, the synagogue partition “requirement” does not appear  in any extant Talmudic text and it is also unattested in the classical legal compendia. On the other hand,  the Tosafist report[xlviii] that the partition may be erected on the Shabbat for “conventional modesty” is evidence [a] that mechitsot were part medieval Jewry’s religious inventory, [b]  the mechitsah institution is neither Biblical, as argued  by R. Feinstein, nor Rabbinic, as proposed by R. Soloveitchik. While the classical  Rabbinic canon seems to be silent regarding  mandatory gender separation during communal prayer, the [c] historical development of gender separation for formal communal events yields a very proper, appropriate policy the function of which is to preemptively avoid ‘erva,  or sexual improprieties. After all, a practice that is adopted by all of  Torah compliant Jewry does  become binding Jewish law,[xlix] and on this ground the mechitzah is mandatory.

Rabbis Soloveitchik and Feinstein may have thought  that the mechitsah message defines a distinct Orthodox identity in opposition to the egalitarian radicalism of the non-Orthodox streams, which reject the God Who commands and makes distinctions.[l]  Since homosexuality has been accepted to be “normative” for every non-Halakhic stream in Jewish life, the Orthodox  Rabbinic fears were actually prophetic and their emergency-driven Halakhic hyperbole aimed—in retrospect successfully—in protecting their laity’s thick Orthodox culture.

The mechitsah issue has had a life of its own within Orthodoxy. In a taped lecture, R. Isochor Frand, a teacher at Baltimore’s Ner Israel Yeshiva, contrasts R. Feinstein’s relatively “liberal” position to the more rigorously strict Hungarian position. But Frand neither addresses nor cites R. Soloveitchik’s consistent position, that the statutory mechitsah height is 10 handbreadths, or 40,” which is also the required height of the Sukkah and eruv  wall, as well.  In other words, once a wall is required, the  Oral Torah definition of a wall being 40” long of necessity applies. Protective rabbinic extensions of, or fences around, Torah law are designed to prevent the community from sinning,[li]  unwittingly or accidentally. When Nadav and Avihu invented an invalid, unauthorized cultic rite—they raised a “foreign” fire on the Tabernacle altar, which God did not command them to present,  and lost their lives because they dared to intuit how to  approach the Lord’s sacred Presence.[lii] The Torah insists that one may neither add to nor subtract from the Law, even if one does possess oracular powers.[liii]   According to Jewish Law, the 40” partition rises to the sky, following the rabbinic rule of gud asiq. By claiming that the synagogue partition serves to implement the gender segregation that prevents levity and inappropriate license [R. Feinstein], or to avoid visual impropriety [R. Soloveitchik], Great  Rabbis’ instincts, intuitions, and Torah informed internalized sense of propriety have assumed post facto Halakhic validity, and are part of the Legal Realist’s toolbox. 

bQiddushin 81a does report that ad hoc partitions were occasionally erected to prevent intergender immodesties. But the claim that the synagogue gender partition originates  as a duly legislated Oral Torah norm cannot be made on the basis of the currently available textual evidence. R. Chaim Navon echoes our finding:


“What about a mechitza in the synagogue itself? Here the solid, unequivocal and consistent custom in all Jewish communities is that there should be a mechitza in the synagogue during prayer times. Jewish prayer is conducted in the framework of total separation between men and women. No halakhic authority challenges the obligation to have a mechitza. Nevertheless, it is not at all clear that this practice has an unequivocal halakhic foundation.[liv]

 

In my view, the gender separation for communal Jewish prayer is an evolved, after-the-fact normative obligation. When asked at my pre-employment Baltimore B’nai Israel interview why I insisted on maintaining the mechitsah in the sanctuary, I responded that 

 

“my personal work product requires gender segregation for shul based prayer. I am unable to do my job, that is serve a Halakhic community, without it. Without the mechitsah in place, I am unable be a believable advocate for Torah because I would have forfeited my own membership in the community of the committed.  I am unable to sell a congregational community to prospective members as a  social and spiritual home that did not segregate the genders, because the mechitsah reminds that segment of Jewry that would consider my work product and mission appropriate, that men and women are different, distinctions individuate every person into a unique carrier of God’s image, and protocols are always in place to remind Jewry that sexual activity is proper only with one’s spouse, in a state ritual purity and sanctity.”

 

Just because there is no clear canonical source of obligation for the mechitsa does not necessarily mean that the mechitsa should be removed. The synagogue mechitsa reminds Jewry what is unique to the Torah’s religious narrative:

 

  • God created both animal and vegetable life in male and female types. There is both order and meaning in Creation.

  • God created the human animal in the Divine image, “male and female [He] created them.”[lv] While the genders are distinct, the Divine image inheres equally in both.

  • Scripture commends and commands that the genders relate to each other in sanctity and with restraint. In a secular age in which many assume that there is neither Judge nor judgment, people crave pleasure now and they do not want to wait, where Naturalism proclaims that transcendence is a myth, free will—and personal accountability—an allusion,[lvi] the mechitsa choreographs a robust, contrarian narrative  to modernity’s naturalistic  secularism. The God Who created the cosmos by distinguishing between light and dark, heaven and earth, solid land and liquid seas, is also the same God Who commands humankind to holy. 

  • Rashi sees sexual restraint as the instrument by which holiness is generated.[lvii] Maimonides’ Book of Holiness deals with the laws regarding sex and food, that is how Jews ought to respond to their basic human drives. By reminding Jewry that there is a Judge and judgment, there are objects and behaviors that are forbidden by God, and others that are permitted. In my view, a tasteful mechitsa choreographs  these overarching values.

 

  • This summary only represents my view, apologetic, and Jewish construction of reality, as a Legal Positivist.  Most Orthodox rabbis are Legal Realists. R. Feinstein’s mechitsa responsa, when read from a Legal Positivist perspective, are problematic. But in his Introduction to Iggerot Moshe, R. Feinstein concedes that it is impossible to apply the pure Torah law in real life. When popular Orthodox practice conflicts with Oral Torah norms, R. Feinstein will defend popular practice against what appears to be an unambiguous Oral Torah directive. For example, He permits standing for the Ten Commandments[lviii] and clapping and dancing on holy days,[lix] but will not forbid smoking cigarettes because otherwise pious Jews and Great Rabbis smoke.[lx] I am unaware of  a rule of recognition that claims that if everyone does a forbidden act, the act somehow becomes permitted.[lxi] The sacred community and its rabbinic elite are de facto sources of law in Orthodox Legal Realism.  Clarifying R. Soloveitchik’s “two traditions,”[lxii] R. Avrohom Gordimer[lxiii] affirms that in addition to the recorded, Positive Oral law norms, Orthodox Yiddishkeit culture is a second, also unwritten Oral Torah, compliance with which is mandatory and is not subject to review or challenge. This popular culture is R. Soloveitchik’s “second type of Tradition.”[lxiv] His first type of Tradition” is Maimonides’ Legal Positivism. For Maimonides and the Legal Positivists, this is the only normative Jewish Tradition. “Two tradition Orthodoxy”  affirms that the “customs of Israel are [also] Torah”  understands Torah to be revealed in the life of the sacred community as well as in the sacred library. According to this Orthodoxy, the mechitsa reflects the unwritten Oral Torah according to which  Great Rabbis are able to intuit as they promulgate law as  Legal  Realists, creating law for a living community. Because Maimonides disapproved of adding piyyutim [liturgical poetry] to the prescribed, formal prayers,[lxv] R. Soloveitchik does not regard Maimonides to be a Halakhic man,[lxvi] precisely because Maimonides does not accept this second type of Tradition to be normative.

 

  1. Halakhic Legal Positivism observes 


    1. that lacking an  explicit norm in the Oral Torah that establishes the synagogue mechitsa is a requirement, with some evidence that the original modesty mechitsa was an ad hoc response to situational intergender impropriety, it must nevertheless be maintained because it was a practice accepted by all Israel.

    2. Modern Orthodox circles prefer the “letter of the law” Legal Positivist position because this point of view focuses upon legislated norms but not the habits, folkways, and conventions.  As long as the Law is fulfilled, non-Jewish cultures,  ideas, and interests may be may explored, and if found to be compatible with Torah, they may even be adopted.[lxvii]  Modern Orthodoxy maintains that    whatever is not forbidden by formal Jewish law is permitted, carving out a social space for legitimate Orthodox autonomy.

    3. For this version of Orthodoxy, Torah is an accessible, readable, object/heftsa documentary trove which contains norms that command, forbid, and when silent permit and authorize autonomous behavior, nurturing, fostering, and cultivating a citizen who is able to assess the communal elite fairly, generously, and honestly.

 

  1. Halakhic Legal Realism transfers the power of norm creation from the object/heftsa of the canonical text to the person/gavra of the rabbinical judge.


    1. Jewish Legal Realism from the time of the Tosafists  has proclaimed that the “customs of Israel [are considered to be] Torah” which, like Oral Torah legislation, must be accepted as if they too were  the “word of the Lord.” 

    2. Jewish Legal Realists are less bound by the canonized statute than they are by their own intuitive sense of  Halakhic and social propriety. Conflicts between the canonized Oral Torah norm and the accepted community practice are often resolved by deferring to the community’s present  sense of propriety. 

    3. Religious Legal Realists’ rulings are not usually subject to review, because [a] their spokespeople often speak in a prophetic or divine voice,[lxviii] [b] with dissent derided as improper. [lxix] Jewish Law assumes that Halakhic mistakes are not heresies but errors,[lxx] because people are supposed to be judged generously, with the benefit of doubt.[lxxi] Great Rabbis rarely invoke legal theory, because their authority derives more from Max Weber’s traditional and charismatic leadership models than from reason. Appeals to reason  may be assessed and challenged,[lxxii] which is not the case for traditional and charismatic leadership. While Raabad follows the opinion of the individual he deems to be the greater rabbi, Maimonides, anticipating Weber, accepts the most compelling, rational claim, based on the facts and the logic of the case.[lxxiii] When first dealing with the mechitsa issue over 40 years ago,[lxxiv]  and reading the data as a Legal Positivist, I discovered that non-Orthodox thinkers are informed but not obliged by the Oral Torah Law. I also realized that institutional Orthodoxy is not as Halakhically consistent as one would expect. Torah cannot be both minhag Yisrael, what Jews happen to do, and “the word of the Lord,” or what Jews  ought to do. A Legal Realist who is guided by intuition, who believes that Israel received a virtually inerrant mimetic culture that is the contemporary expression of God’s will, would regard the synagogue mechitsa to be an embodiment of a Torah ethos. But a Legal Positivist defines Torah inductively by exposing the Torah polity’s ethos that is created by the Halakhic norms.

If one adopts Legal Realism, the Law is always able to be responsive, because proceeds from the judge rather than from the legislature it; and if one adopts Legal Positivism, one is able to guide one’s actions based on public information and expectations.  The Positivist judge is an umpire, applying but not daring to create law.   Orthodox Legal  Realists have no patience the Positivist’s relentless focus on the statute, norm, and rule. They have determined that Orthodoxy requires the synagogue mechitsa  and they assign an appropriate valence to that requirement.  The Positivist might argue that while there is no clear  norm requiring the synagogue mechitzah and there  is even some reasonable evidence, cited above,  that there never was such a rule requiring the mechitsa. Culture aristocrat that he/she is, the Legal Realist will not allow the naked letter of the law to subvert the practice that elite presumes to be right and good.   Note well that in most political arenas, the Positivist is the reactionary/conservative and the Realist is the radical/liberal. This is not the case for contemporary  Orthodoxy.  Orthodox modernists are bound by the Positive Jewish law, but not by nostalgia, habits, or folkways. The Oral Law does not forbid all assimilation; it only forbids what it explicitly forbids by formal norm. And since neither Maimonides nor the Talmud speak of a second, undocumented “tradition” that conflates what Orthodox Jewry happens to do with what it is obliged by its Torah Law to do, Orthodox Legal Positivists will not necissarilly be bound by this undocumented, and unvetted, “tradition.”

The canonical Tradition rules that for a Milhemet mitsvah, a war fought for  the security of the Jewish land, people, or state, everyone, even the bride and groom, are conscripted.[lxxv] The Hazon Ish disagreed   vehemently with this Oral Torah norm,[lxxvi] objecting to women’s military service on moral, or cultural grounds.  But he does not offer a legal argument.   Instead, he appeals to the immortality of coercion and the sexual license associated with military life.[lxxvii] Acutely aware of the tension between Orthodox Jewish law and current Orthodox cultural sensibilities and norms,   R. Alfred  Cohen observes:

“At all times, authentic Jewish leadership is not constricted by the niceties of academic precedent but acts from a broader and deeper appreciation of halachic norms, which may take precedence over considerations. We also have to realize that rabbis employ a variety of methods in arriving at a Halachic conclusion, so that at times there is a certain anomaly in their conclusions.”[lxxviii]

 Cohen concedes that God’s word, as it appears in the Canon, does not always reflect what the Orthodox establishment claims to be authentically “Orthodox.”  If Torah is really the unchanging will  of God, then Cohen’s comment, “authentic Jewish leadership is not constricted by the nicities of academic precedent but acts from a broader and deeper appreciation of halachic norms, authentic Jewish leadership is not constricted by the nicities of academic precedent but acts from a broader and deeper appreciation of halachic norms,” is incoherent.  Cohen actually concedes that [1] Jewish Law does     undergo change, [2] authentic Jewish leadership is not  bound by the letter  of statutory Jewish Law, and [3] Jewish “tradition”  is a  culture matrix that supersedes the normative, canonical tradition     which  contain the rules that the Torah prescribes.     Ironically,  Orthodox “traditionalists” formulate a Legal Realism ideology that reifies     popular folk religion into what is believed to be an accurate iteration of Sinai’s Torah in contemporary times.  And Orthodoxy’s modernists, the Legal  Positivists,  who are bound by the Torah’s explicit norms,   but not its descriptions, which are  Aggadah, or matters told, but not commandedironically emerges as  the     “more Orthodox” of  the  two orthodoxies.  After all,  to     be  theologically correct, Torah    must be no  less than God’s word, not in God’s heaven, but in human hearts, to fulfill.

 

   

 

 

 

 

 


 


[i] Maimonides, De’ot 6:1.

[ii] See Bernard Weinberger, “The Role of the Gedolim,” The Jewish Observer (October 1963), p. 6. This author suggests that only truly holy people are capable of appreciating—and understanding—Torah’s holy texts. In other words, unless one is vetted to be a “Great Rabbi,” or godol, one is not entitled even to suggest an opinion, because

such a person is probably not guided by the “Holy Spirit.”

 

[iv] I prefer Hans Kelsen, Pure Theory of Law, trld. M. Knight (Berkeley, Los Angeles, and Landon: University of California Press, 1967).

[vi] As witnessed by  Psalms 33:9. When Scripture reads: ”Va-yomer Adonai el Moshe leymor [as per Exodus 4:4, 21, and elsewere, the root amr should be understood as “command.”  In most instances leymor, usually rendered “as follows” or “saying,” will precede an imperative verb.               

[vii] Numbers 15:40.

[viii] “Holiness” seems to be divine energy. See the parallelism of Psalms 150:1 [qodsho parallels and defined by ‘uzzo].         

[ix] Especially Genesis 2:17 and Deuteronomy 30:17.

[x] Ecclesiastes 12:13-14.

 Deuteronomy 13:1-5.

[xii]  See Deuteronomy 6:18. In his commentary to this verse, Nahmanides first explains that people ought to orient themselves to God’s point of view, which is the Legal Positivist perspective.  But for Nahmanides, being “proper and good” carries a meta-Halakhic valence, because the Biblical instances of being “proper and good” are not exhaustive, making the Legal Realist judge the Legal Realist judge the arbitrator of propriety. In his introduction to Genesis,  Nahmanides claims that the Torah’s letter may be organized differently.   While this claim is compatible with Legal Realism, because it renders its meaning indeterminate, it clashes sharply with Maimonides, Eight Chapters “this Torah will never undergo change.”

[xiii] bMegillah 2a, bMo’ed Qatan 3b, bGittin  36b, b’Avodah Zara 7a and 36a.

[xiv]  Like bBerachot 19b, the laws regarding preserving human dignity.

[xv] bBetsa 36b unambiguously disallows handclapping, thigh slapping, and dancing on Jewish holy days.   At Shulhan ‘Aruch OH 339:3, Maran Karo duly records the Oral Torah’s restrictive norm, as befits a Legal Positivist. However, R. Isserles the Legal Realist first argues that today, i.e. in his own contemporary times,”we allow people to do these acts and to sin unintentionally.” In other words, these acts are tolerated but are not approved. His second opinion, that the law need not be nullified by a Bet Din ha-Gadol, because the reason that motivated the legislation, had lapsed. R. Isserles  apparently believes that the post-Talmudic Great Rabbi, as evidenced here, may override Oral Torah norms. The Legal Positivist Maran Joseph Karo simply records the norm as it is legislated, while Rabbi Isserles, the Legal  Realst [a] justifird the integrity of his community regarding its non-compliance with the higher grade Oral Torah norm, [b] rejects or ignores Talmudic law when that law appears to be arcane or incompatible with the community’s sense  of propriety. Maran Karo merely memorializes the norm encoded in the canon; R. Isserles on occasion creates the Law. At his Introduction to Darkei Moshe, R Isserles concedes that he takes the Oral Torah norm into account as strives to justify popular culture, even against the Canonical library’s actual norms.  Also note that for R. Isserles, charisma is attached to the great rabbinic personality, who is authorized, as with holy day clapping and dancing, to allow for dispensation,

[xvi] bYoma 69a-b.

[xvii] bSotah 41a.

[xviii] bSukkah 51b. See also R. Moshe Feinstein, Iggerot Moshe, Orah Hayyim 1:39.

[xix] I Chronicles 28:19.

[xx].bHagiga 19b.

[xxi] H.L.A. Hart’s “rules of recognition” determine whether a norm or legal claim is valid. At  The Concept of Law (Oxford, 1961), p. 99, Hart explains that the “rules of recognition” determine what rules of obligation, or norms, are indeed part of the given legal order. For Judaism’s legal order, one must demonstrate that a rule is “recognized” as a norm within the order if one wishes to assign a legal valence to that norm.

[xxii] See Deuteronomy 17:8-13 for the Written Torah’s authorizing of the Oral Torah’s rabbinic power to legislate for all Israel, which is localized in the Bet Din ha-Gadol, the Halakhic supreme court. “Enactments” [taqanot[ are positive, i.e. “to do” rabbinic norms. Maimonides, Introduction to the Yad compendium.

[xxiii] Yom Tov Schwartz, Me’anneh la-Iggarot (New York, 1964), pp.31-42. This Haredi voice objected to many of R. Feinstein opinions, which he believed was too accommodating to secular American culture. The word “me’anneh,” literally an “answer,” assumes  a polemical tone because its use of the intensive pi’el conjugation signifies a thematic disapproval and should be best rendered “retort.”

[xxiv] bMegillah 28a.

[xxv] When levity took place, then the mechitsah was installed. bSukkah 51b.

[xxvi] bMegillah 28a.

[xxvii] Maimonides, Mamrim  2:4.

[xxviii] Ibid. 2:5.

[xxix] Introduction to Iggerot Moshe, Orah Hayyim, vol.1

[xxxi][xxxi][xxxi][xxxi][xxxi] Hebrew  Scripture maintains that there is no individual who is exempt from the law [Ecclesiastes 12:13-4], and there is no one who does not sin [Ecclesiastes 7:20].     The Torah puts the Head Priest [Leviticus 4:3-12], at head of  the Israelite polity [Leviticus 4:22], or the Israelite  polity  itself [Leviticus 4:13] on notice that they do not possess possess sovereign immunity. Abraham questioned God’s decision to destroy Sodom and ‘Amorah [Genesis 18:23], and Moses challenged God’s apparent lack of proportion in  meting out punishment, “one man [=Qorah] sins and You are in frothy rage regarding the people [Numbers  16:22]?”   The monarchs of ancient Israel were regularly  held to account for their murderous abuse of power.  II  Samuel 12:7describes  the Prophet Nathan holding David to account for  the death Uriah and I Kings 21:18 reports Elijah’s sarcastic  rebuff of Ahab, “have  not committed murder and also taken possession as the heir to deceased’s estate?”  My expanded translation reflcts an exegetic unpackaging of this very thick text.

 

[xxxii] Prof. Israel Moshe Ta Shma discovered this idiom’s first occurrence to be at the end of the 12th Century, Minhag Ashkenaz Qadmon (Jerusalem:  Magnes, 1994), p. 27, and boldly calls the reader’s attention to the fact that medieval Ashkenazi Judaism’s approach to communal custom is inconsistent with Oral Torah jurisprudence.  But the medieval Ashkenazi evolved popular communal practice into binding rabbinic Law, which is echoed in Gordimer’s sense of “Tradition.”

[xxxiii] Isaiah 2:3.

[xxxv] R. Soloveitchik believes that Halakhic authority is charismatic.  See my The  Nuanced Ambiguities of R. Joseph B. Soloveitchik’s Thought,” A Review Essay of Dov Schwartz, Religion or Halakha:  the Philosophy of Rabbi Joseph B. Soloveitchik, trans.  Batya Stein (Leiden and Boston: Brill, 2007) Review of Rabbinic Judaism 12.2 (2009), pp. 232-233, notes 13 and 14. At  Shenei Sugei Masoret  [two types of tradition], in Shiurim le-Zeicher Abba Mori (Jerusalem, 1993), reveal the two very distinct versions of Orthodox culture outlined above, the “tradition” of inherited culture” and the Great Tradition that is encoded in the canon, outlined in Maimonides introduction to the Yad..  The preference of both R. Soloveitchik and his son, Prof. Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy,” in Tradition 28:4 (Summer, 1994), is for the primacy of the second sense of Tradition, which is mimetic usage, the “Tradition” endorsed by Gordimer, cited above. Once unpacked, these essays reveal two very distinct versions of Orthodox culture, the “tradition” of inherited culture” and the Great Tradition encoded in the canon.   I suspect that Prof  Haym Soloveitchik’s use of the ”reconstruction” idiom was both boldly chosen and deliciously subversive.  He regularly calls  attention to the disparities between that ”orthodox” religion, the “Tradition”  of the Oral Torah library and the Yiddishkeit mimetic street culture, which may now be understood as a civilization.  While the Legal Realist looks to how the Law’s is put into the practice by the community of the committed,  the Legal Positivist will judge the community based upon the canonical benchmarks, the legislated norms of the legal order.   His M.A. thesis, on medieval Ashkenazi leniencies regarding non-kosher wine, and his Ph.D. dissertation on usury, focus specifically on the fact that this Orthodoxy waived canonical restrictions in order to earn a livlihood. 

[xxxvi] Maimonides, Introduction to the Yad

[xxxvii] Ironically, there is no Halakhic obligation to speak in Yiddish.  But there most assuredly is a legal  obligation to converse in Hebrew. See Sifre to Deuteronomy 46.  Most  Eastern European Orthodox rabbis viewed Yiddish as a Jewish vernacular, and did not insist upon Hebrew language instruction.  A Legal Positivist, if duly competent, would provide Torah instruction in Hebrew, the “holiness” language.

.

[xxxviii] Maimonides, Mamrim 2:4.

[xxxix] See my Hora’at  Sha’ah: The Emergency Principle in Jewish Law and a Contemporary Application, “ Jewish Political Studies Review 13:3-4 (Fall 2001), pp.  3-39.

 

[xl] Deuteronomy 23:15.

[xli] See Baruch Litwin, The Sanctity of the Synagogue (New York, Jerusalem, Cleveland: Spero Foundation, 1959), pp. 139-141.

[xlii] bBava Metsi’a 86a.

[xliii] Deuteronomy 30:11-12.

[xliv]  See R. Mordecai Eliahu, https://harav.org/books/darcitaara-25/. ”Nakedness” in this context refers to female body parts, that are covered by clothing, either.  If t         

[xlv] Shulhan ’Aruch Yoreh De’ah 1:10.

[xlvi] Arnold Lustiger, summarizer and annotator, Before Hashem You Shall be Purified: Rabbi Joseph B. Soloveitchik on the Days of  Awe (Edison, N.J.: Ohr Publishing 1998), p. 21.

[xlvii] lo ra’inu  eino ra’ayah,” mEduyyot 2:2.  See also also Maran  Karo’s discussion at Bet Yosef, Yoreh De’ah 1:1, who makes this positivist argument most forcibly, convincingly, and eloquently.

[xlviii] Tosafot to bShabbat 125b, s.v. ha-kol modim], indicates, at least according to Tosafot, the mechitsah apparently is not a formal, legal obligation.

[xlix] A custom accepted by  all Israel is binding, like the Babylonian Talmud, became because it was  accepted by all Israel. Maimonides, Introduction to the Yad compendium.  Other examples of this phenomenon are the fasts of Esther and the Firstborn and the male head covering for prayer.

[l] The Hebrew Havdalah prayer, which marks the passage decent from sacred to more mundane time, may be rendered into English, “[Praised] are You, Lord our God, King of the universe, who makes a distinction between sacred and profane, between light and darkness, between Israel and the nations, between the Seventh Day and the six work days. Blessed are You Lord, who makes a distinction between sacred and profane.” https://www.chabad.org/library/article_cdo/aid/258908/jewish/Havdallah.htm.  As with Genesis 1’s creation narrative, distinctions make meaning, writing [letters require dark marks on light surfaces] and sanctity, possible. 

[li] mAvot 1:1 advises that human rabbinic legal norms be enacted to remove the possibility of transgressing Torah law. Protective fences are not applied to rabbinic norms. bShavu’ot 46a.

[lii] Leviticus 10:1-2.                      

[liii] Deuteronomy. 13:1-6.

[lv] Genesis 1:27.

[lvi] This is the position of John Dewey, The Quest for Certainty (New York: Perigree, 1980).

[lvii] Comment to Leviticus 19:2.

[lviii] Iggerot Moshe Orah Hayyim 4:22. bBerachot  12a reports that  is not permitted to perform gestures that would suggest  that the Torah is not  uniformly sacred, but since  [a] standing for the Ten  Commandments is an accepted   practice among  the community faithful, and [b] the reason attached to  the norm, to avoid  sectarian criticism,  does  not apply  in our time.  The Legal Positivist would  contend that norm remains in force until revoked by a Supreme Court e greater  in wisdom and number than the Talmudic court [bBetsa 5a].  While one would think that the human mimetic Tradition would defer to the revealed Judaism encoded in the Oral Torah library, this is not the case. The theological apologia for this anomaly will be discussed below.

[lix] See bBetsa 36b and Iggerot Moshe, Supra. 2:4. Siding with the Ashkenazi Legal Realists, R. Feinstein suggests “that it is the  practice to be lenient [and to permit holy day clapping and dancing] because fully righteous dance on Shabbat and holidays.” 

[lx] Iggerot Moshe Yoreh De’ah 2:49,

[lxi]  See Numbers 15:26 and Lamentations 5:7.

[lxii] See above,  Shenei Sugei Masoret ” (two types of tradition), in Shiurim le-Zeicher Abba Mori, (Jerusalem, 1993).

[lxiii]Ibid.

[lxiv] Ibid. and Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of

Contemporary Orthodoxy,” in Tradition 28:4 (1994), pp. 64–130.

[lxv] Guide 1:59 and  Responsum n. 254. Piyyutim contain gnostic doctrines and interrupt the canonized liturgy.

[lxvi] Joseph B. Soloveitchik, Halakhic Man, ed., Lawrence Kaplan {Philadelphia: JPS, 1983), p. 83.

[lxviii] This idea may find precedent in the fact that Biblical judges are on occasion called “elohim,” which can mean “God,” “god,”  or “judge.” See Exodus 21:6, 22:7-8  and Psalms  82:1.

[lxix]Hazon Ish proclaimed that the latter day Great Rabbis possess the authority of the Sanhedrin [Iggarot 1:41],   it is not permitted to question established Halakhot [Iggarot 1:25], and at Iggarot 1:32, Hazon Ish declared  that the early authorities possessed the “Holy Spirit” while our generation does not. Contemporary Orthodoxy ought to defer to the Great Sages without hesitation. Failure to defer indicates  a failure of faith.  He claims to recoil from disagreeing with the Oral  Torah Sages [Iggarot 1:15] but does not demonstrate why rabbinic descriptions carry normative valence. No contemporary serious rabbi requires the implementation of Rabbinic medical practice.                                                                                                                                                                                                                                                                                                                                                                                                       

[lxx]  For example, see ShulhanAruch, Hoshen Mishpat 34:4,11, and 24.

[lxxi] mAvot 1:6  and  6. bShabbat 97a and bYoma 19bteach that people who wrongly suspect upright Jews deserve  to be whipped,  and bGittin 2b-3areminds us that in ritual matters even  one witness is sufficient to determine whether an act or an object may be permitted or forbidden.

[lxxiii] Introduction to the Yad, the Hebrew idiom being da’at notah, referring to the most convincing position.

 

[lxxiv] In my first essay on the topic, "Mechitza, Midrash, and Modernity," Judaism 28:2 (1979), p.159, I concluded: “While the non-orthodox trends have been successful in scholarly examination of the Jewish tradition, they have not yet mustered the passionate commitment of their followers. The rigor of their search for truth is often negated by a concomitant loss of passion. Orthodoxy demands faith, especially in the oracular quality of the  gadol, even  at the expense of historical reality or the existential quest for truth. Ultimately, history will be the legitimating referee.” By applying jurisprudential theory to Halakhah, motivations are uncovered,  political positions may be clarified, and  ideological consistency might assessed.

[lxxv] bSotah 44b. See also Maimonides, Kings 5:1.

[lxxvi] 

Abraham Karelitz, Qovets, ed. S. Greinman (Jerusalem and B’nai B’raq, 1988), 1:111-113, and Alfred Cohen, “Drafting Women for the Army,” Journal Halachah and Contemporary Society 16 (1988), p. 42, conveniently at https://downloaad.yutorah.org/1988/1053/735795.pdf.  For the Judaism of Hazon Ish, see Benjamin Brown, The Hazon Ish: Halakhist, Believer, and Leader, (Jerusalem: Magnes, 2011). 

[lxxvii] Karelitz. 1:111. In order to contextualize this non-Halakhic argument, Hazon Ish reminds his readers that Jewry must have complete faith in every opinion of the Oral Torah Sages [Ibid. 1:115], the Rishonim are like holy angels [1:32], and have faith in the infallibility of contemporary Great Rabbis [1:182].  According to Maimonides, Introduction to the Yad], Rabbinic legislation obliges, Rabbinic descriptions do not, post-Rav Ashi sages possess equal authority as post-Amoraic regional jurisdiction, and emunat hakhamim [Avot 6:6] refers to “the faith/confidence of the Rabbis of the Oral Torah Canon, “and does require faith in the assumed inerrancy of any latter day saintly rabbinic synod. Since charisma trumps reason for Legal Realists, these issues would not be raised, much less addressed, by Hazon Ish.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 

[lxxviii] Cohen, Ibid.

 

 

 

 

 

The  synagogue mechitsah, the partition separating women from men in the Orthodox shul, has evolved over time to become the defining distinction between what is accepted to be authentic Orthodox Judaism that the Torah law prescribes and non-compliant, non-Orthodox communities. As with any culture, a person’s actual opinions are inevitably conditioned by one’s teachers and peers, rabbis and rebbes, congregations and communities, and peers and friends.[i] The polemic and hyperbole that has been applied to the synagogue mechitsa  often leaves dissenters with the hard choice of remaining silent and compliant or as being marked as an outsider. The most efficient way to be accepted as an Orthodox Jew in good standing before God is by that person adopting an unquestioning and uncritical submission to the designated, rabbinic elite.   Principled, idiosyncratic commitments are less valued than deferring to the Orthodox elite.

 

 

People often allow their personal piety to be worn on their sleeves for observers to notice. The easiest and socially inexpensive way to proclaim one’s ideological orthodoxy is by denouncing those who may not conform to the culture Orthodoxy’s benchmarks.  Thus, lower mechitsot, or partitions segregating women from men in the Orthodox synagogue, may imply lower and possibly inadequate religious standards.  If one is prepared to endorse a less than adequately sized partition segregating the genders in the synagogue prayer setting, one’s “fear of Heaven” may also be suspect.

 

 

Authentically religious Jews look into their canonical books and not only to uninformed peers or people mistaken to carry canonical or statutory authority. The Orthodox Judaism that is encoded in the Oral Torah library only canonizes books; other religions often canonize people as well. Orthodoxy’s currently enfranchised elite are said to possess the Holy Spirit,[ii]  which bestows upon them the ability, expertise, and authority to parse the Canonical Oral Torah library, understand its message, and to articulate its normative implications, that God speaks to Jewry in their voice alone. Thus, the Great Rabbi is singularly entitled to read intuitively and knowingly between the Torah’s lines but no one else has the right to read, understand, or apply the Torah Canon’s actual, plain sense meaning.[iii]

 

 

There are two major approaches to Law in general and to the Halakhah, Jewish law, in particular. The Legal Formalist, or Legal Positivist, examines the legal systems[iv] the “ought to do” and ought not  to do” legislated rules which are interpreted and applied but are not created by the judge. In contrast, Legal Realism maintains that the Law is made by the judges when rendering real life legal decisions.[v]   While the Old Babylonian Codex Hammurabi records Hammurabi ’s Legal vision, his Letters reveal that his personal behavior did not conform to his own Code’s normative benchmarks. In Old Babylonian culture, Legal Realism reigned.

 

 

 A plain sense reading of the Torah seems to present a Positive legal order according to which God’s command, “obey the norms of the Torah contract,” is the Basic Norm of Jewish Law.  The Hebrew idiom for Judaism’s “Basic Norm" is “’ol malchut shamayim, the “yoke of Heaven’s Kingdom,” according to which God the Creator is accepted as Israel’s King and Commander, as well.

 

 

Genesis 1:3 reads “And God said/issued an imperative, ’let there be light,’ and there was light.” The canonical Hebrew imperative, vay-hi or, literally “light, be[!],” is immediately followed by “vay-hi or, “light came into being.” While the Semitic root “amr” usually means “say” in Biblical Hebrew, in Arabic, Aramaic, and occasionally even in Biblical Hebrew,[vi] “command” is the preferred rendering. Note that the command’s fulfillment report employs the same diction as the command itself. This semantic device indicates that God the Creator is also God the Commander, and God expects exact compliance with the divine directives. When compliance takes place, God rewards the well-performing person with sanctification,[vii] or holiness,[viii]  but the consequence for non-compliance with God’s command is death.[ix]

 

 

Hebrew Scripture’s Law requires precise adherence to the Lawgiver’s actual words, as evidenced by Scripture’s consistent concern for exact compliance with God’s word:

 

 

13 “Now all has been heard;
    here is the conclusion of the matter:
Fear [=hold in a state of awe and 

 

 

           wonder/take seriously] God and keep 

 

 

          His commandments,
    for this is the duty of all mankind.
14 For God will bring every deed into   

 

 

                 judgment, including every hidden thing,
    whether it is good or evil.”[x]

 

 

 

From these Hebrew Scriptural witnesses, we conclude that, for Biblical theology, God the Commander “stands“ at the top of the Torah’s hierarchical order of legal norms. Israel is held to account regarding its adherence to the exact, specific norms that are memorialized in the Torah’s actual words.  Scripture explicitly commands vigilance when anticipating unscrupulous pretenders to legitimate legislative authority who would dare to add to or to detract from Torah Law.[xi] However, Legal Realists’ personal sense of what might be considered to be reasonable to the intellectual elite who may, on occasion cancel the legislated norm if they deem the norm to be unworthy. Legal Realists’ tend to be cultural aristocrats who in antiquity might validate their power by means of miracles—or by exploiting the art of allusion—in order to present themselves in everyday life to be the Creator’s duly ordained deputies, and in modernity as those who are able to establish whatis proper and good" in God’s eyes.[xii] 

 

 

According to Positivist Halakhah, the statute/norm is unalterable, unless the given norm is revoked by a Bet Din [=rabbinical court] greater in wisdom and number than the court that issued the initial ruling[xiii]  or provides for its own suspension.[xiv]  Since a plain sense reading of the Written Torah document indicates that God’s words are to be taken face value, we have adopted the Positivist/Formalist position in this study. [xv]  Taking the Commander’s diction as the Divine word, the Halakhic Positivist must pay close attention to the legal text’s lexicon, syntax, and diction when defining the norm encoded in the canonical text. Below we will examine the mechitsah issue from both Legal Realist and Legal Positivist perspectives. In Talmudic literature, the idiom “mechitsah,” or partition wall, is attested in the laws of plantings, in order to avoid mixing diverse seeds, the sukkah wall, and the eruv, the merging or enclosure of courtyards into one single residence, permitting carrying within its perimeter on Shabbat. According to Jewish law, a kosher eruv also requires a walled perimeter that is more enclosed than open, and the eruv arrangement enjoys the consent of every non-Jew and non-observant Jew residing within the eruv’s perimeter.   There is no mention of a synagogue mechitsah requirement in the canonical Babylonian Talmud or related literature,  the medieval Maimonidean Yad, or the early modern  Shulhan ‘Aruch legal compendium.  There is no textual evidence of a positive Torah norm requiring a synagogue mechitzah in the Oral Torah canon.   But we do know that men, women, and children heard the Torah being read in the women’s section of the Temple on Yom Kippur[xvi] and on the Sukkot holiday during the Haqhel ritual.[xvii]

 

 

Rabbi Moshe Feinstein and others argue that the “great reform” [Hebrew, tiqqun gadol] made for the intermediate Sukkot festival day ritual of water drawing in the Temple is the “source” for the synagogue partition being viewed as a Biblical prohibition.[xviii] A formal separation of women and men was made in the Temple based on an obscure passage preserved by the Biblical Chronicler.[xix] There are three Formalist difficulties with this rendering. According to the formal principles of Jewish law, Torah law does not derive from any Biblical post-Pentateuch book,[xx] and I-II Chronicles were among the last books of Hebrew Scripture to have been composed, by all accounts.[xxi]  Second, the idiom tiqqun, or “enactment,” is not a divinely authorized, but necessarily human, positive rabbinic law that semantically cannot be a Biblical obligation.[xxii]  This difficulty was also addressed by the ultra-Orthodox R. Yom Tov Schwartz, who answered [me’anneh] the letters,  Iggarot, or responsa, of R. Feinstein.[xxiii]  Third, Jewish Law does not require basins, animal or grain sacrifices, or necessarily raised women sections in contemporary Orthodox synagogues. Oral Law norms alone provide the instances in which the synagogue functions as a miniature Temple. And men were welcome in the Temple’s women’s section on occasion, as noted above.

 

 

R. Feinstein was scandalized with mixed gender seating during synagogue based prayer, and he claimed that this gender mixing and contact, even if unintentional, violates a presumed Torah norm  prohibiting levity or qallut rosh.[xxiv] According to the Talmud, one may not engage in qallut rosh in a synagogue, indicating that the entire category is conventional but not covenantal.[xxv] I do not recall that avoiding qallut rosh was ever viewed as a Pentateuchal obligation. Nevertheless, R. Feinstein is unwavering regarding the synagogue mechitsah in spite of the fact that it goes unmentioned in the Oral Torah canon, but he does not object to eating in shteibels, or small chapels of Hassidic prayer.   By defining these small synagogues as batei midrash, dedicated study rooms,  the leniency of allowing eating in a bet midrash is somehow transferred to the small chapel.  While the Talmud does not mention, much less forbid, mixed gender settings per se to be qallut rosh, eating in the synagogue is most assuredly forbidden as an instance of qallut rosh.[xxvi] R. Feinstein’s vehemence has carried the day in Orthodox culture, and the mechitsah has become a defining feature of institutional Orthodoxy.

 

 

A close reading of R. Feinstein’s Introduction to Iggarot Moshe reveals the mindset of a Legal Realist, and not of a Legal Positivist. While affirming a perfect Torah law de jure to be a Positive legal order, R. Feinstein observes that a perfect Torah cannot be responsibly applied literally, perfectly, or at face value in an imperfect, human, social reality. R. Feinstein hereby adopts the Legal Realist perspective whereby the judge who is a Great Torah sage is authorized, obliged, and able to fill Orthodoxy’s leadership vacuum,  rule on pressing matters of law, and to determine appropriate policy for the Orthodox community in its  immediate current culture context.  His concern for the dire dangers challenging Orthodoxy suggest that in emergency situations and when called for, the Law itself may be suspended.[xxvii]    Realizing the danger of invoking the Torah’s emergency clause by suspending the Law in a fashion that may appear to be compulsive, cavalier, and capricious, the Positivist Maimonides immediately cautions the legal decisor regarding danger of the slippery slope should this norm be invoked often or irresponsibly.[xxviii]

 

 

As a Great Sage to whom dicey questions were so often directed, R. Feinstein not only had to rule correctly, as the religious authority of his community, he was obliged to lead responsibly as well. He could not and did not consider the positive statute alone; he took into account the social contexts, tradeoffs, consequences, and implications of his decisions as they are applied in the real world.  He also had to rule wisely and convincingly,[xxix]which sometimes requires compromise and trade-offs.  After all, he did not have a police force to enforce his rulings. His moral authority was all that he had in his possession, and that he needed to do his job.

 

 

Legal Positivists might not be sufficiently sensitive to challenges to   Orthodox social culture, communal expectations or policy, because they focus upon Halakhah’s explicit, recorded norms. Mixed-gender synagogue prayer was the issue that identified R. Feinstein as the outstanding Orthodox Legal Realist of his time.  On one hand, mixed gender synagogue seating profoundly offended the community’s sensibilities, but to date there has been no success at all in identifying  a Canonical, Oral Torah document that reports this assumed, positive legal norm.

 

 

R. Avrohom Gordimer, who is both a lawyer and an Orthodox activist,  explains how Orthodoxy’s living culture, or “Tradition,” also known as  “Masorah,” really works.  His  words read like a Legal Realist manifesto:

 

 

“Mesorah reflects enduring and traditional practices that are based on solid halachic and/or hashkafic (ideological and attitudinal) considerations, when such considerations are not formally codified or patently evident. In the case of synagogue ornamentation, the synagogue is classified as a Mikdash Me’at, a ‘Miniature Beis Ha-Mikdash’ (Holy Temple), and, as such, must reflect the highest degree of holiness and dignity. Anything that hints at Kalus Rosh (secular levity or amusement) is disallowed. This tradition and sentiment, which is based on halachic and hashkafic concepts yet is not codified specifically in terms of the actual adornment of the synagogue, forms the Mesorah as to the appropriate physical decor of a shul (and precludes introducing superhero or sports themes, as appealing and “Jewish” as they may seem).”[xxx] 

 

 

Orthodox Legal Realism elevates and reifies habit, appropriateness, expectations, and mimetic usage into actual law, and significantly, it also affords its own rabbinic elite immunity from review when their decisions differ from the “official religion,” what is taken to be a divinely inspired Oral Torah mandate. According to this approach, rational discussion assumes that the question is in fact subject to rational discourse and public review. But Gordimer’s “Tradition” is a social or taste culture, not the true legal order prescribed by the Written and Oral Torah library.[xxxi] This Judaism maintains that the “customs of Israel are Torah,”[xxxii]  but Torah is “the word of the Lord,”[xxxiii] and social customs are clearly not divine mandates. Since social customs are not the word of the Lord, but are accepted as distinctly human, social constructs, customs  cannot generate the sanctity of a divine order appropriately fulfilled.[xxxiv] Keenly aware not only of the Hartian “rules of obligation,” i.e. the Halakhah ’s prescriptive  norms, the Legal Positivist is also mindful of the “rules of recognition,” the rules that confirm a given norm’s validity. As opposed to Rabbis Feinstein and Gordimer, the Maimonidean Positivist  understands “Tradition” to be the Oral Torah transmission from Moses to R. Ashi, with whom hora’ah, the authority to legislate apodictic legislation, comes to an  end.[xxxv]   According to this school of Orthodox thought, “Tradition” is the publicly vetted Oral Torah legal order transmitted from one generation’s Bet  Din ha-Gadol  to the next.[xxxvi] It is what Israel ought to do according to the Torah covenant; it is not necessarily what Israel happens to do in everyday life. 

 

 

Mixed gender synagogue seating violates [a] the traditional, historical practice of Jewry until the 19th Century, [b] traditional expectations of living continuity, and [c] its implementation often leads to future communal turbulence.  Since family seating presented a mortal threat to Orthodox synagogue expectations, membership, theology, and leadership models, R. Feinstein the community leader formulated his substantive political/theological agenda, the goal of which is the preservation of Yiddishkeit, the living Eastern European, traditional culture guided by Great Rabbis whose Torah learning and principled piety provided  the source of their authority and power.  In Eastern Europe, Yiddish was that Jewish language by which they proclaimed that the local Jewish population was neither Russian nor Polish by ntionality.[xxxvii]   R. Feinstein strained to minimalize the social dislocation caused by the migrations, with Yiddishkeit culture providing the social glue that sustains “traditional” Jewish life. This agenda may be gleaned from his many responsa:

 

 

  • R. Feinstein strives to preserve Orthodox social culture as it was preserved by Jewry’s ancestors. Compliance with contemporary  rabbinic directives is a much more valued disposition than the creative individualism of independent minds.

     

  • Changes in Jewish culture are usually socially disruptive because they foster assimilation and undermine current religious standards and commitments. The Orthodox Legal  Realist “Tradition of Israel” is the real life culture—as well as Law—of the Haredi  Orthodox elite.

     

  • No change in usage or policy may be implemented without the approval of the Great Sages.

     

  • Orthodox Judaism must resist any, all, and every deviation that threatens the integrity of Orthodoxy’s Halakhah, ethos, and ideological narrative. Pretenders and competitors to Orthodoxy are so religiously illegitimate that it is even forbidden to officially communicate with them.

     

Mixed gender prayer may choreograph the unorthodox notion that God “must” agree to the radical egalitarianism of the secular, intellectual elite. For the unorthodox rabbinic elite, “God” is usually a concept, but is neither the Creator nor Commander of the cosmos. Given the emergency principle cited above,[xxxviii] R. Feinstein’s Legal Realism might actually be compatible with Legal Formalism because the emergency principle allows rabbinic discretion, and even law suspension, during emergencies.[xxxix] Extreme threats on occasion may require extreme responses. Liberal Jewish ideologies do not, with  few exceptions, affirm a God Who commands, makes distinctions between individuals, and Who holds humankind to account for what it does. Mixed gender “prayer” violates the Yiddishkeit religious ethos and must be regarded and resisted as a counterfeit cult.

 

 

Rabbi Joseph B. Soloveitchik argues that the synagogue gender separation is a Biblical requirement and the absence of this separation violates the rule of “thou shalt not see a matter of nakedness.” [xl] He also declares that the mechitsah must be “attributed” to an uncited, unidentified rabbinic enactment.   In order to convincingly stress the “Biblical” nature of the separate seating in the synagogue requirement, R. Soloveitchik appropriately cites a Torah verse to justify his claim.[xli]  But there are two problems with this assertion.   Rabbis functioning after the Talmud came to closure simply do not possess the Halakhic authority, jurisdiction, or standing to derive apodictic laws from Biblical texts.[xlii] Such claims also require the approval of the Supreme Court of Israel, the Bet Din ha-Gadol.   As noted above, the juridic power to create or legislate apodictic rabbinic norms has sadly lapsed in our day.  And the Torah does not provide for oracular legal  promulgation,[xliii] at least for the Legal Positivist. Since the Talmud does not explicitly claim that mixed seating violates Biblical law, the claim that it does is problematic, at best.   A learned colleague suggested that R. Soloveitchik “must” be referring to Maimonides, Laws of Shema 15:3, which disallows praying in the presence of “nakedness,” the external sex organs, or excrement. Jewish law only requires that women cover those body parts that by social  convention are covered.[xliv]   Simply put, a woman may not dress provocatively.   But if women are properly clad, why would mixed synagogue seating be forbidden according to Torah law?  R. Soloveitchik actually allowed mixed gender classes at his Maimonides Day School for Torah study, which like prayer, may not be performed in the immediate presence of either nakedness or excrement. And since classroom furniture is more exposing than synagogue pews, there is greater risk of visual impropriety in the day school  classroom than in the synagogue sanctuary.  The assertion that one may not fulfill the shofar requirement in a mixed seating synagogue setting is anomalous because a ritual slaughterer who slaughters while stark naked has acted improperly,  his act of slaughtering is not disqualified either by the absence of the slaughtering benediction or by his lack of clothes.[xlv] Perhaps R. Soloveitchik attaches the protocols of prayer to the shofar blast. If the shofar is a prayer without words,[xlvi] then the shofar rite should be performed with the same solemnity, and protocol, as prayer.

 

 

R. Soloveitchik’s imputation of the mechitsah requirement to a Rabbinic decree is a similarly challenging claim. If a proposed norm is not memorialized by and recorded in the Oral Torah canon for citation, it is simply is not a valid norm.  The claim that a restriction exists by conception or imputation but without citation conflicts with Oral Torah principle that the absence of evidence may not be construed  to be evidence of absence.[xlvii]  On one hand, the synagogue partition “requirement” does not appear  in any extant Talmudic text and it is also unattested in the classical legal compendia. On the other hand,  the Tosafist report[xlviii] that the partition may be erected on the Shabbat for “conventional modesty” is evidence [a] that mechitsot were part medieval Jewry’s religious inventory, [b]  the mechitsah institution is neither Biblical, as argued  by R. Feinstein, nor Rabbinic, as proposed by R. Soloveitchik. While the classical  Rabbinic canon seems to be silent regarding  mandatory gender separation during communal prayer, the [c] historical development of gender separation for formal communal events yields a very proper, appropriate policy the function of which is to preemptively avoid ‘erva,  or sexual improprieties. After all, a practice that is adopted by all of  Torah compliant Jewry does  become binding Jewish law,[xlix] and on this ground the mechitzah is mandatory.

 

 

Rabbis Soloveitchik and Feinstein may have thought  that the mechitsah message defines a distinct Orthodox identity in opposition to the egalitarian radicalism of the non-Orthodox streams, which reject the God Who commands and makes distinctions.[l]  Since homosexuality has been accepted to be “normative” for every non-Halakhic stream in Jewish life, the Orthodox  Rabbinic fears were actually prophetic and their emergency-driven Halakhic hyperbole aimed—in retrospect successfully—in protecting their laity’s thick Orthodox culture.

 

 

The mechitsah issue has had a life of its own within Orthodoxy. In a taped lecture, R. Isochor Frand, a teacher at Baltimore’s Ner Israel Yeshiva, contrasts R. Feinstein’s relatively “liberal” position to the more rigorously strict Hungarian position. But Frand neither addresses nor cites R. Soloveitchik’s consistent position, that the statutory mechitsah height is 10 handbreadths, or 40,” which is also the required height of the Sukkah and eruv  wall, as well.  In other words, once a wall is required, the  Oral Torah definition of a wall being 40” long of necessity applies. Protective rabbinic extensions of, or fences around, Torah law are designed to prevent the community from sinning,[li]  unwittingly or accidentally. When Nadav and Avihu invented an invalid, unauthorized cultic rite—they raised a “foreign” fire on the Tabernacle altar, which God did not command them to present,  and lost their lives because they dared to intuit how to  approach the Lord’s sacred Presence.[lii] The Torah insists that one may neither add to nor subtract from the Law, even if one does possess oracular powers.[liii]   According to Jewish Law, the 40” partition rises to the sky, following the rabbinic rule of gud asiq. By claiming that the synagogue partition serves to implement the gender segregation that prevents levity and inappropriate license [R. Feinstein], or to avoid visual impropriety [R. Soloveitchik], Great  Rabbis’ instincts, intuitions, and Torah informed internalized sense of propriety have assumed post facto Halakhic validity, and are part of the Legal Realist’s toolbox. 

 

 

bQiddushin 81a does report that ad hoc partitions were occasionally erected to prevent intergender immodesties. But the claim that the synagogue gender partition originates  as a duly legislated Oral Torah norm cannot be made on the basis of the currently available textual evidence. R. Chaim Navon echoes our finding:

 

 


“What about a mechitza in the synagogue itself? Here the solid, unequivocal and consistent custom in all Jewish communities is that there should be a mechitza in the synagogue during prayer times. Jewish prayer is conducted in the framework of total separation between men and women. No halakhic authority challenges the obligation to have a mechitza. Nevertheless, it is not at all clear that this practice has an unequivocal halakhic foundation.[liv]

 

 

 

In my view, the gender separation for communal Jewish prayer is an evolved, after-the-fact normative obligation. When asked at my pre-employment Baltimore B’nai Israel interview why I insisted on maintaining the mechitsah in the sanctuary, I responded that 

 

 

 

“my personal work product requires gender segregation for shul based prayer. I am unable to do my job, that is serve a Halakhic community, without it. Without the mechitsah in place, I am unable be a believable advocate for Torah because I would have forfeited my own membership in the community of the committed.  I am unable to sell a congregational community to prospective members as a  social and spiritual home that did not segregate the genders, because the mechitsah reminds that segment of Jewry that would consider my work product and mission appropriate, that men and women are different, distinctions individuate every person into a unique carrier of God’s image, and protocols are always in place to remind Jewry that sexual activity is proper only with one’s spouse, in a state ritual purity and sanctity.”

 

 

 

Just because there is no clear canonical source of obligation for the mechitsa does not necessarily mean that the mechitsa should be removed. The synagogue mechitsa reminds Jewry what is unique to the Torah’s religious narrative:

 

 

 

  • God created both animal and vegetable life in male and female types. There is both order and meaning in Creation.

     

  • God created the human animal in the Divine image, “male and female [He] created them.”[lv] While the genders are distinct, the Divine image inheres equally in both.

     

  • Scripture commends and commands that the genders relate to each other in sanctity and with restraint. In a secular age in which many assume that there is neither Judge nor judgment, people crave pleasure now and they do not want to wait, where Naturalism proclaims that transcendence is a myth, free will—and personal accountability—an allusion,[lvi] the mechitsa choreographs a robust, contrarian narrative  to modernity’s naturalistic  secularism. The God Who created the cosmos by distinguishing between light and dark, heaven and earth, solid land and liquid seas, is also the same God Who commands humankind to holy. 

     

  • Rashi sees sexual restraint as the instrument by which holiness is generated.[lvii] Maimonides’ Book of Holiness deals with the laws regarding sex and food, that is how Jews ought to respond to their basic human drives. By reminding Jewry that there is a Judge and judgment, there are objects and behaviors that are forbidden by God, and others that are permitted. In my view, a tasteful mechitsa choreographs  these overarching values.

     

 

  • This summary only represents my view, apologetic, and Jewish construction of reality, as a Legal Positivist.  Most Orthodox rabbis are Legal Realists. R. Feinstein’s mechitsa responsa, when read from a Legal Positivist perspective, are problematic. But in his Introduction to Iggerot Moshe, R. Feinstein concedes that it is impossible to apply the pure Torah law in real life. When popular Orthodox practice conflicts with Oral Torah norms, R. Feinstein will defend popular practice against what appears to be an unambiguous Oral Torah directive. For example, He permits standing for the Ten Commandments[lviii] and clapping and dancing on holy days,[lix] but will not forbid smoking cigarettes because otherwise pious Jews and Great Rabbis smoke.[lx] I am unaware of  a rule of recognition that claims that if everyone does a forbidden act, the act somehow becomes permitted.[lxi] The sacred community and its rabbinic elite are de facto sources of law in Orthodox Legal Realism.  Clarifying R. Soloveitchik’s “two traditions,”[lxii] R. Avrohom Gordimer[lxiii] affirms that in addition to the recorded, Positive Oral law norms, Orthodox Yiddishkeit culture is a second, also unwritten Oral Torah, compliance with which is mandatory and is not subject to review or challenge. This popular culture is R. Soloveitchik’s “second type of Tradition.”[lxiv] His “first type of Tradition” is Maimonides’ Legal Positivism. For Maimonides and the Legal Positivists, this is the only normative Jewish Tradition. “Two tradition Orthodoxy”  affirms that the “customs of Israel are [also] Torah”  understands Torah to be revealed in the life of the sacred community as well as in the sacred library. According to this Orthodoxy, the mechitsa reflects the unwritten Oral Torah according to which  Great Rabbis are able to intuit as they promulgate law as  Legal  Realists, creating law for a living community. Because Maimonides disapproved of adding piyyutim [liturgical poetry] to the prescribed, formal prayers,[lxv] R. Soloveitchik does not regard Maimonides to be a Halakhic man,[lxvi] precisely because Maimonides does not accept this second type of Tradition to be normative.

     

 

  1. Halakhic Legal Positivism observes 

     


     

    1. that lacking an  explicit norm in the Oral Torah that establishes the synagogue mechitsa is a requirement, with some evidence that the original modesty mechitsa was an ad hoc response to situational intergender impropriety, it must nevertheless be maintained because it was a practice accepted by all Israel.

       

    2. Modern Orthodox circles prefer the “letter of the law” Legal Positivist position because this point of view focuses upon legislated norms but not the habits, folkways, and conventions.  As long as the Law is fulfilled, non-Jewish cultures,  ideas, and interests may be may explored, and if found to be compatible with Torah, they may even be adopted.[lxvii]  Modern Orthodoxy maintains that    whatever is not forbidden by formal Jewish law is permitted, carving out a social space for legitimate Orthodox autonomy.

       

    3. For this version of Orthodoxy, Torah is an accessible, readable, object/heftsa documentary trove which contains norms that command, forbid, and when silent permit and authorize autonomous behavior, nurturing, fostering, and cultivating a citizen who is able to assess the communal elite fairly, generously, and honestly.

       

 

  1. Halakhic Legal Realism transfers the power of norm creation from the object/heftsa of the canonical text to the person/gavra of the rabbinical judge.

     


     

    1. Jewish Legal Realism from the time of the Tosafists  has proclaimed that the “customs of Israel [are considered to be] Torah” which, like Oral Torah legislation, must be accepted as if they too were  the “word of the Lord.” 

       

    2. Jewish Legal Realists are less bound by the canonized statute than they are by their own intuitive sense of  Halakhic and social propriety. Conflicts between the canonized Oral Torah norm and the accepted community practice are often resolved by deferring to the community’s present  sense of propriety. 

       

    3. Religious Legal Realists’ rulings are not usually subject to review, because [a] their spokespeople often speak in a prophetic or divine voice,[lxviii] [b] with dissent derided as improper. [lxix] Jewish Law assumes that Halakhic mistakes are not heresies but errors,[lxx] because people are supposed to be judged generously, with the benefit of doubt.[lxxi] Great Rabbis rarely invoke legal theory, because their authority derives more from Max Weber’s traditional and charismatic leadership models than from reason. Appeals to reason  may be assessed and challenged,[lxxii] which is not the case for traditional and charismatic leadership. While Raabad follows the opinion of the individual he deems to be the greater rabbi, Maimonides, anticipating Weber, accepts the most compelling, rational claim, based on the facts and the logic of the case.[lxxiii] When first dealing with the mechitsa issue over 40 years ago,[lxxiv]  and reading the data as a Legal Positivist, I discovered that non-Orthodox thinkers are informed but not obliged by the Oral Torah Law. I also realized that institutional Orthodoxy is not as Halakhically consistent as one would expect. Torah cannot be both minhag Yisrael, what Jews happen to do, and “the word of the Lord,” or what Jews  ought to do. A Legal Realist who is guided by intuition, who believes that Israel received a virtually inerrant mimetic culture that is the contemporary expression of God’s will, would regard the synagogue mechitsa to be an embodiment of a Torah ethos. But a Legal Positivist defines Torah inductively by exposing the Torah polity’s ethos that is created by the Halakhic norms.

       

If one adopts Legal Realism, the Law is always able to be responsive, because proceeds from the judge rather than from the legislature it; and if one adopts Legal Positivism, one is able to guide one’s actions based on public information and expectations.  The Positivist judge is an umpire, applying but not daring to create law.   Orthodox Legal  Realists have no patience the Positivist’s relentless focus on the statute, norm, and rule. They have determined that Orthodoxy requires the synagogue mechitsa  and they assign an appropriate valence to that requirement.  The Positivist might argue that while there is no clear  norm requiring the synagogue mechitzah and there  is even some reasonable evidence, cited above,  that there never was such a rule requiring the mechitsa. Culture aristocrat that he/she is, the Legal Realist will not allow the naked letter of the law to subvert the practice that elite presumes to be right and good.   Note well that in most political arenas, the Positivist is the reactionary/conservative and the Realist is the radical/liberal. This is not the case for contemporary  Orthodoxy.  Orthodox modernists are bound by the Positive Jewish law, but not by nostalgia, habits, or folkways. The Oral Law does not forbid all assimilation; it only forbids what it explicitly forbids by formal norm. And since neither Maimonides nor the Talmud speak of a second, undocumented “tradition” that conflates what Orthodox Jewry happens to do with what it is obliged by its Torah Law to do, Orthodox Legal Positivists will not necissarilly be bound by this undocumented, and unvetted, “tradition.”

 

 

The canonical Tradition rules that for a Milhemet mitsvah, a war fought for  the security of the Jewish land, people, or state, everyone, even the bride and groom, are conscripted.[lxxv] The Hazon Ish disagreed   vehemently with this Oral Torah norm,[lxxvi] objecting to women’s military service on moral, or cultural grounds.  But he does not offer a legal argument.   Instead, he appeals to the immortality of coercion and the sexual license associated with military life.[lxxvii] Acutely aware of the tension between Orthodox Jewish law and current Orthodox cultural sensibilities and norms,   R. Alfred  Cohen observes:

 

 

“At all times, authentic Jewish leadership is not constricted by the niceties of academic precedent but acts from a broader and deeper appreciation of halachic norms, which may take precedence over considerations. We also have to realize that rabbis employ a variety of methods in arriving at a Halachic conclusion, so that at times there is a certain anomaly in their conclusions.”[lxxviii]

 

 

 Cohen concedes that God’s word, as it appears in the Canon, does not always reflect what the Orthodox establishment claims to be authentically “Orthodox.”  If Torah is really the unchanging will  of God, then Cohen’s comment, “authentic Jewish leadership is not constricted by the nicities of academic precedent but acts from a broader and deeper appreciation of halachic norms, authentic Jewish leadership is not constricted by the nicities of academic precedent but acts from a broader and deeper appreciation of halachic norms,” is incoherent.  Cohen actually concedes that [1] Jewish Law does     undergo change, [2] authentic Jewish leadership is not  bound by the letter  of statutory Jewish Law, and [3] Jewish “tradition”  is a  culture matrix that supersedes the normative, canonical tradition     which  contain the rules that the Torah prescribes.     Ironically,  Orthodox “traditionalists” formulate a Legal Realism ideology that reifies     popular folk religion into what is believed to be an accurate iteration of Sinai’s Torah in contemporary times.  And Orthodoxy’s modernists, the Legal  Positivists,  who are bound by the Torah’s explicit norms,   but not its descriptions, which are  Aggadah, or matters told, but not commandedironically emerges as  the     “more Orthodox” of  the  two orthodoxies.  After all,  to     be  theologically correct, Torah    must be no  less than God’s word, not in God’s heaven, but in human hearts, to fulfill.

 

 

 

 

 

   

 

 

 

 

 

 

 

 

 


 


[i] Maimonides, De’ot 6:1.

 

 

[ii] See Bernard Weinberger, “The Role of the Gedolim,” The Jewish Observer (October 1963), p. 6. This author suggests that only truly holy people are capable of appreciating—and understanding—Torah’s holy texts. In other words, unless one is vetted to be a “Great Rabbi,” or godol, one is not entitled even to suggest an opinion, because

 

 

such a person is probably not guided by the “Holy Spirit.”

 

 

 

[iv] I prefer Hans Kelsen, Pure Theory of Law, trld. M. Knight (Berkeley, Los Angeles, and Landon: University of California Press, 1967).

 

 

[vi] As witnessed by  Psalms 33:9. When Scripture reads: ”Va-yomer Adonai el Moshe leymor [as per Exodus 4:4, 21, and elsewere, the root amr should be understood as “command.”  In most instances leymor, usually rendered “as follows” or “saying,” will precede an imperative verb.               

 

 

[vii] Numbers 15:40.

 

 

[viii] “Holiness” seems to be divine energy. See the parallelism of Psalms 150:1 [qodsho parallels and defined by ‘uzzo].         

 

 

[ix] Especially Genesis 2:17 and Deuteronomy 30:17.

 

 

[x] Ecclesiastes 12:13-14.

 

 

 Deuteronomy 13:1-5.

 

 

[xii]  See Deuteronomy 6:18. In his commentary to this verse, Nahmanides first explains that people ought to orient themselves to God’s point of view, which is the Legal Positivist perspective.  But for Nahmanides, being “proper and good” carries a meta-Halakhic valence, because the Biblical instances of being “proper and good” are not exhaustive, making the Legal Realist judge the Legal Realist judge the arbitrator of propriety. In his introduction to Genesis,  Nahmanides claims that the Torah’s letter may be organized differently.   While this claim is compatible with Legal Realism, because it renders its meaning indeterminate, it clashes sharply with Maimonides, Eight Chapters “this Torah will never undergo change.”

 

 

[xiii] bMegillah 2a, bMo’ed Qatan 3b, bGittin  36b, b’Avodah Zara 7a and 36a.

 

 

[xiv]  Like bBerachot 19b, the laws regarding preserving human dignity.

 

 

[xv] bBetsa 36b unambiguously disallows handclapping, thigh slapping, and dancing on Jewish holy days.   At Shulhan ‘Aruch OH 339:3, Maran Karo duly records the Oral Torah’s restrictive norm, as befits a Legal Positivist. However, R. Isserles the Legal Realist first argues that today, i.e. in his own contemporary times,”we allow people to do these acts and to sin unintentionally.” In other words, these acts are tolerated but are not approved. His second opinion, that the law need not be nullified by a Bet Din ha-Gadol, because the reason that motivated the legislation, had lapsed. R. Isserles  apparently believes that the post-Talmudic Great Rabbi, as evidenced here, may override Oral Torah norms. The Legal Positivist Maran Joseph Karo simply records the norm as it is legislated, while Rabbi Isserles, the Legal  Realst [a] justifird the integrity of his community regarding its non-compliance with the higher grade Oral Torah norm, [b] rejects or ignores Talmudic law when that law appears to be arcane or incompatible with the community’s sense  of propriety. Maran Karo merely memorializes the norm encoded in the canon; R. Isserles on occasion creates the Law. At his Introduction to Darkei Moshe, R Isserles concedes that he takes the Oral Torah norm into account as strives to justify popular culture, even against the Canonical library’s actual norms.  Also note that for R. Isserles, charisma is attached to the great rabbinic personality, who is authorized, as with holy day clapping and dancing, to allow for dispensation,

 

 

[xvi] bYoma 69a-b.

 

 

[xvii] bSotah 41a.

 

 

[xviii] bSukkah 51b. See also R. Moshe Feinstein, Iggerot Moshe, Orah Hayyim 1:39.

 

 

[xix] I Chronicles 28:19.

 

 

[xx].bHagiga 19b.

 

 

[xxi] H.L.A. Hart’s “rules of recognition” determine whether a norm or legal claim is valid. At  The Concept of Law (Oxford, 1961), p. 99, Hart explains that the “rules of recognition” determine what rules of obligation, or norms, are indeed part of the given legal order. For Judaism’s legal order, one must demonstrate that a rule is “recognized” as a norm within the order if one wishes to assign a legal valence to that norm.

 

 

[xxii] See Deuteronomy 17:8-13 for the Written Torah’s authorizing of the Oral Torah’s rabbinic power to legislate for all Israel, which is localized in the Bet Din ha-Gadol, the Halakhic supreme court. “Enactments” [taqanotare positive, i.e. “to do” rabbinic norms. Maimonides, Introduction to the Yad compendium.

 

 

[xxiii] Yom Tov Schwartz, Me’anneh la-Iggarot (New York, 1964), pp.31-42. This Haredi voice objected to many of R. Feinstein opinions, which he believed was too accommodating to secular American culture. The word “me’anneh,” literally an “answer,” assumes  a polemical tone because its use of the intensive pi’el conjugation signifies a thematic disapproval and should be best rendered “retort.”

 

 

[xxiv] bMegillah 28a.

 

 

[xxv] When levity took place, then the mechitsah was installed. bSukkah 51b.

 

 

[xxvi] bMegillah 28a.

 

 

[xxvii] Maimonides, Mamrim  2:4.

 

 

[xxviii] Ibid. 2:5.

 

 

[xxix] Introduction to Iggerot Moshe, Orah Hayyim, vol.1

 

 

[xxxi][xxxi][xxxi][xxxi][xxxi] Hebrew  Scripture maintains that there is no individual who is exempt from the law [Ecclesiastes 12:13-4], and there is no one who does not sin [Ecclesiastes 7:20].     The Torah puts the Head Priest [Leviticus 4:3-12], at head of  the Israelite polity [Leviticus 4:22], or the Israelite  polity  itself [Leviticus 4:13] on notice that they do not possess possess sovereign immunity. Abraham questioned God’s decision to destroy Sodom and ‘Amorah [Genesis 18:23], and Moses challenged God’s apparent lack of proportion in  meting out punishment, “one man [=Qorah] sins and You are in frothy rage regarding the people [Numbers  16:22]?”   The monarchs of ancient Israel were regularly  held to account for their murderous abuse of power.  II  Samuel 12:7describes  the Prophet Nathan holding David to account for  the death Uriah and I Kings 21:18 reports Elijah’s sarcastic  rebuff of Ahab, “have  not committed murder and also taken possession as the heir to deceased’s estate?”  My expanded translation reflcts an exegetic unpackaging of this very thick text.

 

 

 

[xxxii] Prof. Israel Moshe Ta Shma discovered this idiom’s first occurrence to be at the end of the 12th Century, Minhag Ashkenaz Qadmon (Jerusalem:  Magnes, 1994), p. 27, and boldly calls the reader’s attention to the fact that medieval Ashkenazi Judaism’s approach to communal custom is inconsistent with Oral Torah jurisprudence.  But the medieval Ashkenazi evolved popular communal practice into binding rabbinic Law, which is echoed in Gordimer’s sense of “Tradition.”

 

 

[xxxiii] Isaiah 2:3.

 

 

[xxxv] R. Soloveitchik believes that Halakhic authority is charismatic.  See my The  Nuanced Ambiguities of R. Joseph B. Soloveitchik’s Thought,” A Review Essay of Dov Schwartz, Religion or Halakha:  the Philosophy of Rabbi Joseph B. Soloveitchik, trans.  Batya Stein (Leiden and Boston: Brill, 2007) Review of Rabbinic Judaism 12.2 (2009), pp. 232-233, notes 13 and 14. At  Shenei Sugei Masoret  [two types of tradition], in Shiurim le-Zeicher Abba Mori (Jerusalem, 1993), reveal the two very distinct versions of Orthodox culture outlined above, the “tradition” of inherited culture” and the Great Tradition that is encoded in the canon, outlined in Maimonides introduction to the Yad..  The preference of both R. Soloveitchik and his son, Prof. Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy,” in Tradition 28:4 (Summer, 1994), is for the primacy of the second sense of Tradition, which is mimetic usage, the “Tradition” endorsed by Gordimer, cited above. Once unpacked, these essays reveal two very distinct versions of Orthodox culture, the “tradition” of inherited culture” and the Great Tradition encoded in the canon.   I suspect that Prof  Haym Soloveitchik’s use of the ”reconstruction” idiom was both boldly chosen and deliciously subversive.  He regularly calls  attention to the disparities between that ”orthodox” religion, the “Tradition”  of the Oral Torah library and the Yiddishkeit mimetic street culture, which may now be understood as a civilization.  While the Legal Realist looks to how the Law’s is put into the practice by the community of the committed,  the Legal Positivist will judge the community based upon the canonical benchmarks, the legislated norms of the legal order.   His M.A. thesis, on medieval Ashkenazi leniencies regarding non-kosher wine, and his Ph.D. dissertation on usury, focus specifically on the fact that this Orthodoxy waived canonical restrictions in order to earn a livlihood. 

 

 

[xxxvi] Maimonides, Introduction to the Yad

 

 

[xxxvii] Ironically, there is no Halakhic obligation to speak in Yiddish.  But there most assuredly is a legal  obligation to converse in Hebrew. See Sifre to Deuteronomy 46.  Most  Eastern European Orthodox rabbis viewed Yiddish as a Jewish vernacular, and did not insist upon Hebrew language instruction.  A Legal Positivist, if duly competent, would provide Torah instruction in Hebrew, the “holiness” language.

 

 

.

 

 

[xxxviii] Maimonides, Mamrim 2:4.

 

 

[xxxix] See my Hora’at  Sha’ah: The Emergency Principle in Jewish Law and a Contemporary Application, “ Jewish Political Studies Review 13:3-4 (Fall 2001), pp.  3-39.

 

 

[xl] Deuteronomy 23:15.

 

 

[xli] See Baruch Litwin, The Sanctity of the Synagogue (New York, Jerusalem, Cleveland: Spero Foundation, 1959), pp. 139-141.

 

 

[xlii] bBava Metsi’a 86a.

 

 

[xliii] Deuteronomy 30:11-12.

 

 

[xliv]  See R. Mordecai Eliahu, https://harav.org/books/darcitaara-25/. ”Nakedness” in this context refers to female body parts, that are covered by clothing, either.  If t         

 

 

[xlv] Shulhan ’Aruch Yoreh De’ah 1:10.

 

 

[xlvi] Arnold Lustiger, summarizer and annotator, Before Hashem You Shall be Purified: Rabbi Joseph B. Soloveitchik on the Days of  Awe (Edison, N.J.: Ohr Publishing 1998), p. 21.

 

 

[xlvii] lo ra’inu  eino ra’ayah,” mEduyyot 2:2.  See also also Maran  Karo’s discussion at Bet Yosef, Yoreh De’ah 1:1, who makes this positivist argument most forcibly, convincingly, and eloquently.

 

 

[xlviii] Tosafot to bShabbat 125b, s.v. ha-kol modim], indicates, at least according to Tosafot, the mechitsah apparently is not a formal, legal obligation.

 

 

[xlix] A custom accepted by  all Israel is binding, like the Babylonian Talmud, became because it was  accepted by all Israel. Maimonides, Introduction to the Yad compendium.  Other examples of this phenomenon are the fasts of Esther and the Firstborn and the male head covering for prayer.

 

 

[l] The Hebrew Havdalah prayer, which marks the passage decent from sacred to more mundane time, may be rendered into English, “[Praised] are You, Lord our God, King of the universe, who makes a distinction between sacred and profane, between light and darkness, between Israel and the nations, between the Seventh Day and the six work days. Blessed are You Lord, who makes a distinction between sacred and profane.” https://www.chabad.org/library/article_cdo/aid/258908/jewish/Havdallah.htm.  As with Genesis 1’s creation narrative, distinctions make meaning, writing [letters require dark marks on light surfaces] and sanctity, possible. 

 

 

[li] mAvot 1:1 advises that human rabbinic legal norms be enacted to remove the possibility of transgressing Torah law. Protective fences are not applied to rabbinic norms. bShavu’ot 46a.

 

 

[lii] Leviticus 10:1-2.                      

 

 

[liii] Deuteronomy. 13:1-6.

 

 

[lv] Genesis 1:27.

 

 

[lvi] This is the position of John Dewey, The Quest for Certainty (New York: Perigree, 1980).

 

 

[lvii] Comment to Leviticus 19:2.

 

 

[lviii] Iggerot Moshe Orah Hayyim 4:22. bBerachot  12a reports that  is not permitted to perform gestures that would suggest  that the Torah is not  uniformly sacred, but since  [a] standing for the Ten  Commandments is an accepted   practice among  the community faithful, and [b] the reason attached to  the norm, to avoid  sectarian criticism,  does  not apply  in our time.  The Legal Positivist would  contend that norm remains in force until revoked by a Supreme Court e greater  in wisdom and number than the Talmudic court [bBetsa 5a].  While one would think that the human mimetic Tradition would defer to the revealed Judaism encoded in the Oral Torah library, this is not the case. The theological apologia for this anomaly will be discussed below.

 

 

[lix] See bBetsa 36b and Iggerot Moshe, Supra. 2:4. Siding with the Ashkenazi Legal Realists, R. Feinstein suggests “that it is the  practice to be lenient [and to permit holy day clapping and dancing] because fully righteous dance on Shabbat and holidays.” 

 

 

[lx] Iggerot Moshe Yoreh De’ah 2:49,

 

 

[lxi]  See Numbers 15:26 and Lamentations 5:7.

 

 

[lxii] See above,  “Shenei Sugei Masoret ” (two types of tradition), in Shiurim le-Zeicher Abba Mori, (Jerusalem, 1993).

 

 

[lxiii]Ibid.

 

 

[lxiv] Ibid. and Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of

 

 

Contemporary Orthodoxy,” in Tradition 28:4 (1994), pp. 64–130.

 

 

[lxv] Guide 1:59 and  Responsum n. 254. Piyyutim contain gnostic doctrines and interrupt the canonized liturgy.

 

 

[lxvi] Joseph B. Soloveitchik, Halakhic Man, ed., Lawrence Kaplan {Philadelphia: JPS, 1983), p. 83.

 

 

[lxviii] This idea may find precedent in the fact that Biblical judges are on occasion called “elohim,” which can mean “God,” “god,”  or “judge.” See Exodus 21:6, 22:7-8  and Psalms  82:1.

 

 

[lxix]Hazon Ish proclaimed that the latter day Great Rabbis possess the authority of the Sanhedrin [Iggarot 1:41],   it is not permitted to question established Halakhot [Iggarot 1:25], and at Iggarot 1:32, Hazon Ish declared  that the early authorities possessed the “Holy Spirit” while our generation does not. Contemporary Orthodoxy ought to defer to the Great Sages without hesitation. Failure to defer indicates  a failure of faith.  He claims to recoil from disagreeing with the Oral  Torah Sages [Iggarot 1:15] but does not demonstrate why rabbinic descriptions carry normative valence. No contemporary serious rabbi requires the implementation of Rabbinic medical practice.                                                                                                                                                                                                                                                                                                                                                                                                       

 

 

[lxx]  For example, see ShulhanAruch, Hoshen Mishpat 34:4,11, and 24.

 

 

[lxxi] mAvot 1:6  and  6. bShabbat 97a and bYoma 19bteach that people who wrongly suspect upright Jews deserve  to be whipped,  and bGittin 2b-3areminds us that in ritual matters even  one witness is sufficient to determine whether an act or an object may be permitted or forbidden.

 

 

[lxxiii] Introduction to the Yad, the Hebrew idiom being da’at notah, referring to the most convincing position.

 

 

 

[lxxiv] In my first essay on the topic, "Mechitza, Midrash, and Modernity," Judaism 28:2 (1979), p.159, I concluded: “While the non-orthodox trends have been successful in scholarly examination of the Jewish tradition, they have not yet mustered the passionate commitment of their followers. The rigor of their search for truth is often negated by a concomitant loss of passion. Orthodoxy demands faith, especially in the oracular quality of the  gadol, even  at the expense of historical reality or the existential quest for truth. Ultimately, history will be the legitimating referee.” By applying jurisprudential theory to Halakhah, motivations are uncovered,  political positions may be clarified, and  ideological consistency might assessed.

 

 

[lxxv] bSotah 44b. See also Maimonides, Kings 5:1.

 

 

[lxxvi] 

 

 

Abraham Karelitz, Qovets, ed. S. Greinman (Jerusalem and B’nai B’raq, 1988), 1:111-113, and Alfred Cohen, “Drafting Women for the Army,” Journal Halachah and Contemporary Society 16 (1988), p. 42, conveniently at https://downloaad.yutorah.org/1988/1053/735795.pdf.  For the Judaism of Hazon Ish, see Benjamin Brown, The Hazon Ish: Halakhist, Believer, and Leader, (Jerusalem: Magnes, 2011). 

 

 

[lxxvii] Karelitz. 1:111. In order to contextualize this non-Halakhic argument, Hazon Ish reminds his readers that Jewry must have complete faith in every opinion of the Oral Torah Sages [Ibid. 1:115], the Rishonim are like holy angels [1:32], and have faith in the infallibility of contemporary Great Rabbis [1:182].  According to Maimonides, Introduction to the Yad], Rabbinic legislation obliges, Rabbinic descriptions do not, post-Rav Ashi sages possess equal authority as post-Amoraic regional jurisdiction, and emunat hakhamim [Avot 6:6] refers to “the faith/confidence of the Rabbis of the Oral Torah Canon, “and does require faith in the assumed inerrancy of any latter day saintly rabbinic synod. Since charisma trumps reason for Legal Realists, these issues would not be raised, much less addressed, by Hazon Ish.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 

 

 

[lxxviii] Cohen, Ibid.

Torah and Worldly Knowledge: Our Judges, Our Leaders, and Us

 

And what branch of human wisdom is there that can be ignored in our efforts to arrive at a fuller knowledge of God?[1]

—Hakham Ya’akov Anatoli

 

It is well-established that laws and regulations have existed in many pre-Torah societies of the ancient world.[2] However, the Ten Statements (aseret haDibberot) revealed to the Nation of Yisrael were unique in their acceptance as divinely-sourced categorical imperatives. Prior ancient codes claimed human authorship[3] (not divine) were revealed to kings (not laypeople), and did not contain pre-installed and defined tools of interpretation that allowed for judicious interpretation and enduring relevance.[4]

The Ten Statements were to preside over our land through a subsidiarity system that saw Moshe at the top, with local courts dealing with local matters autonomously. This structure was the innovative brainchild of Yitro, the non-Jewish father-in-law of Moshe. Yitro felt that local problems required local solutions. Until then, Moshe had been judging each case by going to God and seeking revelation.[5]Yitro’s recommendation was designed to facilitate the human contribution to Covenant with God.

 

Turnus Rufus once asked Rabbi Akiva, “Which is preferable—the works of God or the works of man?”

Rabbi Akiva brought him wheat kernels and braided loaves, saying, “These are the works of God, and these are the works of man. Are the works of man not preferable to these raw kernels?” [6]

—Midrash Tanhuma

 

To Be a Judge

 

The localized courts would represent the evolving body that is the Oral Law, which would allow judges to interpret and innovate law according to the time and place. Since the men tasked with this role will have great responsibilities, there are characteristics required to fill it: 

 

You shall choose out of the entire nation capable men, God fearers,[7] men of truth, who hate monetary gain…. (Shemot 18:21) 

 

Among the esteemed list of requirements to be a judge of Yisrael, there is an expectation that one would have a broad intellectual capacity. Therefore, these judges would require knowledge of the world—knowledge that illuminates, but exists beyond, the pages of the Torah. The acquisition of such knowledge would ultimately impact their level of wisdom, while also allowing them to rule on relevant matters of law:

Rambam: We appoint only men of wisdom and understanding [to the Sanhedrin], who are exceptional in their knowledge of the Torah and who possess a broad intellectual potential. They should also have some knowledge concerning other intellectual disciplines such as medicine, mathematics, astronomy, astrology, and also the practices of fortune-telling, magic, sorcery, and the hollow teachings of idolatry, so that they will know how to judge them.[8]

 

Radak: The wisdom concerning the unity of God [philosophy] as well as external forms of wisdom…astrology and the vanities of idol-worship… the measurement of land and knowledge of solstices and calculations…medicine. No one can be appointed to the Sanhedrin to decide the law unless he knows these disciplines.[9]

 

From Judges to Leaders

 

However, this requirement goes beyond the realm of court judges determining law. Hakhamim of every generation have manifested this from the time of Hazal to the Geonim, from the Rishonim to the Aharonim, to today:[10]

 

Rabbi Avraham Yitzhak Kook: It is the obligation of the true Sages of our generation to follow in the footsteps of our medieval rabbis to look after our perplexed people and to broaden their knowledge of the intellectual disciplines, according to the newest research. They must show them how all truths must be viewed from the perspective of Torah.[11]

 

Hakham Ben Sion Uziel: Our rabbis of all generations did not limit themselves to their four cubits and to the walls of the study hall. Rather, they learned and knew all which transpired in the world of science and justice.[12]

 

Rabbi Eliezer Melamed: The Gedolei haDor [great ones of the generation], members of the Sanhedrin, must be proficient in the wisdom found in the world, and someone who is not, cannot be considered a true Gadol (great one), and cannot sit in the Sanhedrin. For even if he is punctilious and immensely knowledgeable, it would be impossible to discuss with him in depth, thoroughly and calmly on any matter… a Gadol baTorah who guides the generation, must understand the processes that drive peoples and society, the economy and science, the weight of international relations, and the system of cultural influences existing in the world.[13]

 

It is astonishing to notice that in our time these very topics are the same “secular” topics that some people within our nation have simply discarded as heretical and non-Jewish. Much of this confusion, rooted in fear generated by a lack of knowledge in these fields, is due to an unfortunate resistance to distinguish between facts and values. Our Sages, of blessed memory, had no such issue with making this distinction:

 

Rabbi Gerald Blidstein: The Sages had little difficulty in accepting knowledge of the physical world from gentiles; more broadly, we may say that Jews have no advantage when it comes to matters of fact (whether physical or not).[14]

 

While some may still reject or scoff at such worldly knowledge, many Hakhamim defiantly defended those who studied science, philosophy, or other worldly disciplines:

 

Meiri: Foreign learning is no longer foreign material that might be banned; it is part of Jewish culture. There are Jewish tracts on the sciences, and the sciences have been incorporated into non-philosophic works as well. The sciences are necessary …The religious problems raised by philosophic study are inconsiderable in relation to its benefits. Our distinguished specialists in the sciences should be allowed to pursue their work unhindered, and their writings—however troubling—should not be suspected of heresy. To restrict access to the sciences—even from a few people for a short time—would almost certainly be to their detriment and the detriment of our community.[15]

 

Hakham Ya’akov Anatoli: It is an emphasis on thought and truth, rather than on words and phrases, that will restore rationality to its rightful place and level the artificial barriers a misguided obscurantism has erected between Hebrew wisdom and the wisdom that flows from other cultures.[16]

 

Rabbi Eliezer Berkovitz: Questioning the permissibility of secular studies is one of the unhealthy manifestations of the exilic (galut) mentality. It is deeply embarrassing that in our time it is still necessary to discuss the relationship between religious studies and secular studies, with a view to justifying their integration within a wholesome and complete form of Jewish education.[17]

 

Context and Us

 

This striving to know about God’s world is not something reserved exclusively for our judges and leaders. We as members of the body of Yisrael are equally charged with viewing the Author of the Word (Torah) as the Author of the World, because such an endeavour falls under our legal requirement to know God:

 

Rambam: The principle of principles and the pillar of the sciences is to know that there is a First Being [God].[18]

 

Although one can never know the essence of God, one can still come to know God through God’s ways and expressions (derakhim) such as Torah, science, and the other details (peratim) of reality that God presents us with.[19] 

 

Rambam: “And you shall love the Lord your God” (Devarim 6:5). What is the path to loving God? Upon one’s contemplation of God’s works [Torah] and God’s great and wonderful creations [the world], discovering in them God’s endless and limitless wisdom, one comes directly to love and to praise, glorify and yearn with a great desire to know God.[20]

 

It is moving to learn that the level of our love for God is based on this very knowledge of God!

 

Rambam: In accordance with one’s knowledge will be the love of God. If much knowledge, then much love, and if little knowledge, then little love.[21]

 

Therefore, our Hakhamim understood that content is never just content. What lies above any piece of scientific, philosophical, historical, or other worldly piece of content must be a contextual lens through which one can understand, interpret, and respond to it. In a world replete with unorganised content, the context of Yisrael must be to know God. 

 

Hakham Yosef Qafih: All those subjects and sciences which, for some reason, people refer to as “secular knowledge,” if a person studies them in order to arrive at insight and knowledge of God—behold, they are surely sacred [qadosh].[22]

 

Hakham Yisrael Moshe Hazan: Once a rabbi has filled his stomach with the meat of Torah, he should stand in the halls of the natural sciences…and if he should do so, surely his eyes would be filled with light, enabling him to understand several deep matters found in the Torah, Talmud, and Midrash.[23]

 

Abraham Ibn Daud: The purpose of all the sciences is the knowledge of God.[24]

 

Hakham Ben Sion Uziel: It is impossible to understand Torah—certainly to plumb its depths—without a profound and broad knowledge of all worldly wisdoms and sciences.[25] “Talmud Torah” is a general term referring to the attainment of wisdom; it includes Torah study as well as all the studies and sciences which deepen our understanding.[26]

 

The Maharal: A person ought to study everything that will enable one to understand the essential nature of the world. One is obligated to do so, for everything is God’s work. One should understand it all, and through it recognise one’s Creator.[27]

 

Although many various Jewish figures and communities have sought to embody this approach,[28] itwas one of the key distinctions between Sepharad and Ashkenaz in their formative years.[29] Since then, this tradition has been a unique characteristic of Sephardic communities throughout the generations.[30] It is important to stress that such an endeavor is distinct to that of reformist entities who sought to embrace the world and its knowledge without the lens of Torah. One of the foremost leaders of Syrian Jewry, Hakham Yitzhak Dayan (1878–1964), clearly elucidated this subtle yet crucial distinction:

 

The first intellectuals in the period of the wise men of Spain (Sepharad) realized and knew well the depth of the light of Judaism and its glorious power. The Torah and rational knowledge walked among them like twin sisters. And there was a true peace among their spiritual tendencies. And therefore in their wisdom and their intelligence they strengthened and sustained the Torah and the tradition and made them intellectually accessible. But the new maskilim of the past generation failed to comprehend this. They did not penetrate the great depth of Judaism. They did not comprehend that the homeland of the nation’s soul, which developed and reached perfection over thousands of years, was the spirit of the Bible and the Midrash and the sublime ideas they contain. They did not comprehend that a person who seeks wisdom and perfection in mundane knowledge must all the more fulfill one’s natural responsibility to honor the holy tradition as a person honors one’s father and mother. And therefore they strayed a great distance and changed their manner.[31]

 

We can now appreciate how crucial it is for both the leadership and membership of Yisrael to remain sensitive to, and knowledgeable about, the developing world around them. Those who fail to do so are ultimately rejecting God and God’s works, in no uncertain terms:

 

Behold, injustice! Behold, iniquity!

They do not regard the work of God, neither have they considered the operation of His hands. (Yishayahu 5:7, 5:12)

 

While some may continue to claim that those who isolate themselves from the world and knowledge of it are somehow at the peak of faithfulness to God, it is only fitting to respond with the pointed words of two Hakhamim from different parts of the world, yet had the same desire to fulfil our objective to “know God”:

 

Hakham Hoter Ben Shelomo: The person who renders the sciences null and void and is hostile toward those who engage in them…he is of degenerate temperament and hard to cure. The person who is of that disposition is in a worse state than he who receives his knowledge by uncritical faith. For uncritical faith is an obstacle to verification, and it is a matter for the blind. It is like a group of blind people joined together and walking down a road who are being led by one person who can see. If he stumbles, the group stumbles.[32]

 

Rabbi Avraham Yitzhak Kook: It is through “little faith” that people, eager to affirm their ideological stances, battle against all the so-called evils that arise in the world: scientific knowledge, heroism, beauty, and order, claiming that these are outside all that is divine in the world. And it is with a begrudging eye that some, who think they have comprehended the foundations of holiness in a realm that transcends worldly development [Torah] come to detest culture, the sciences, and the political arena—within the Jewish nation and in the world at large. But all of this is a grave error and displays a lack of faith. The “pure view” sees God's appearance in all worldly progress. Both individual and communal, spiritual, and material. Everything is part of God's ongoing creation.[33]

 

Such unabashed commitment by our Hakhamim propels us to continue striving toward our chief objective to “know God” in every generation.

 

Notes

 


 


[1] Ya’akov Anatoli, Malmad haTalmidim, Vaet’hanan, p. 159b.

[2] As Rabbi Moshe Shamah states in Recalling the Covenant (p. 360), “Regulations that prescribe respect for the names of the gods, the honouring of parents, and the prohibitions of murder, adultery, stealing and false testimony had long been legislated in Near Eastern society.” 

[3] In the epilogue of Hammurabi’s Laws, it states “These are the just decisions which Hammurabi, the able king, has established and thereby has directed the land along the course of truth and the correct way of life.” In contrast, it is not claimed anywhere in the Torah that Moshe is the source of the divine law—he is simply the scribe.

[4] Such interpretation and re-interpretation relating to law can only be made by members of a Sanhedrin or other great court, and doing such things without the due legal process was ultimately the downfall of reformist sects.

[5] Shemot 18:16–17.

[6] Midrash Tanhuma, Tazria 5:1.

[7] Rambam defines “fear of God” as a state of awe and reverence achieved by a person who marvels at the sheer magnitude of the world and how minute they are in comparison. See Mishneh Tora, Hilkhot Yesodei HaTorah, 2:2. Indeed, “fear of God” is a far more sophisticated concept than how it is commonly presented today by certain proponents of pop-Torah as promises of dread and terror. According to Rambam (Mishneh Torah, Hilkhot Teshuvah 10:6), this is correlated with the level of knowledge that one has about God, “In accordance with one’s knowledge will be the love of God. If much knowledge, then much love, and if little knowledge, then little love.” 

[8] Mishneh Torah, Hilkhot Sanhedrin, 2:1.

[9] Radak, Kovetz Teshuvot HaRambam 3, p. 5b.

[10] Rabbinic figures throughout the ages have played key roles in representing and transmitting this key feature of the Geonic-Sephardic tradition, such as R. Se’adya Gaon, R. Shemuel HaNagid, Rabbenu Hananel, R. Yehuda HaLevy, R. Ibn Megas, R. Abraham Ibn Ezra, HaRambam, R. Yosef ben Yehuda, R. David Kimhi (Radak), Ralbag, R. Levi ibn Habib, R. Moshe AlmosninoR. Yitzhak Orobio, R. David Nieto, R. Yisrael Moshe Hazan, R. Menashe Sitehon, R. Eliyahu Ben Amozegh, R. Yeshaya Dayan, R. Yitzhak Dayan, R. Matloub Abadi, R. Eliyahu Friei, R. Yosef Qafih, R. Yosef Faur, and many others today.

[11] LeNebukhei HaDor, 2:3.

[12] Sha'arei Uziel, Introduction, p. 35 and 37.

[13] In Memory of Rabbi Rabinovitch, available at: https://revivimen.yhb.org.il/

[14] Judaism’s Encounter with Other Cultures, p. 51.

[15] Menahem Meiri’s letter to Abba Mari, in Simeon ben Joseph, Hoshen Mishpat. This is also summarised and referenced in Gregg Stern, Philosophy and Rabbinic Culture, p. 210.

[16] Malmad HaTalmidim, Introduction.

[17] Essential Essays on Judaism, p. 236.

[18] Sefer HaMisvot, Misvat Aseh 1.

[19] Similarly, you can never know the essence of another person, but you can know that person through the expressions and persona they present you with. See Rambam, Moreh haNebukhim, Part 1, Chapter 34 for an analysis of this important point.

[20] Mishneh Torah, Hilkhot Yesodei HaTorah 2:1–2.

[21] Mishneh Torah, Hilkhot Teshuvah 10:6.

[22] Ketavim, Volume 2, p. 594.

[23] She’erit HaNahala, p. 24.

[24] HaEmunah Ramah, p. 44.

[25] Mikhmanei Uziel, p. 405.

[26] Ibid., p. 552–553.

[27] Kitvei Maharal mi-Prague, Mossad Harav Kook, Volume 2, pp. 119–120.

[28] This holistic approach of Hakhmei Sepharad is similar, but crucially different, to the model of thought commonly known today as Torah uMadda (Torah and “secular” knowledge), which attempts to bridge gaps between Torah and worldly knowledge, arguing for their peaceful coexistence. No such distinctions were made by Hakhmei Sepharad, who viewed their study of God’s world as a religious obligation. As Rabbi David Berger eloquently states in Judaism’s Encounter with Other Cultures, p. 97: “If love of God, clearly a quintessential religious value, was to have any real meaning, it could only flow from a knowledge of the Creator’s handiwork, and this required a pursuit of the sciences.”

[29] While Hakhmei Sepharad lived in the sophisticated and highly developed Islamic world of southern Spain, the rabbis of France and Germany lived in a Christendom that had limited access to science and philosophy. This is also highlighted by Hakham Yehuda Ibn Tibbon (1120–1190) in the introduction of his Hebrew translation of Ḥovot HaLevavot: “And in the lands of Edom [Christendom]...they had great Sages in the wisdom of Torah and Talmud since the days of yore; however, they did not engage in other wisdoms because their Torah was their livelihood and because books of other wisdoms were unavailable to them.” 

[30] …even though it was much harder for many Jews to maintain such broad intellectual studies during the “survive mode” of Galut, as predicted by Hakham Shem Tob ibn Falaquera (1225–1290): “It is virtually impossible for a person of the Exile in these times to fulfil the conditions required for intellectual perfection that Maimonides mentioned….All this is difficult for one who is enslaved, who is in distress and oppression, whose life is the life of sorrow.” (Moreh HaMoreh, p. 135–136). Indeed, I believe this is one of the main reasons why this approach is not currently as widespread as it was. Those familiar with Maslow’s Hierarchy of Needs will understand and appreciate this reality—and why it is (thankfully) coming back to the mainstream now that Jews are relatively in “thrive mode.”

[31] Minhat Yehudah, p. 30.

[32] Siraj al-Uqul, available in Tzvi Langermann, Yemenite Midrash, p. 15.

The Binding of Isaac: Extremely Religious without Religious Extremism, by Rabbi Hayyim Angel

The Akedah, or binding of Isaac (Genesis 22:1–19), [1] is a formative passage in Jewish tradition. It plays a central role on Rosh haShanah, and many communities include this passage in their early morning daily liturgy. Beyond its liturgical role, the Akedah is a religiously and morally challenging story. What should we learn from this jarring narrative with regard to faith and religious life?

It appears that the Akedah, perhaps more than any other narrative in the Torah, teaches how one can and should be extremely religious, but also teaches how to avoid religious extremism. In this essay, we will consider the ideas of several modern thinkers who explore the religious and moral implications of this narrative. Why Did Abraham Not Protest? Although the very idea of child sacrifice is abhorrent to us, it made more sense in Abraham’s historical context. Many of Israel’s neighbors practiced child sacrifice. It stands to reason that when God commanded Abraham to sacrifice his son, Abraham concluded that perhaps God required this of him. Of course, God stopped Abraham and went on to outlaw such practices as a capital offense in the Torah (Leviticus 18:21; 20:2–5). We find child sacrifice abhorrent precisely because the Torah and the prophets broke rank with the pagan world and transformed human values for the better. [2] In its original context, then, the Akedah highlights Abraham’s exemplary faithfulness. He followed God’s command even when the very basis of the divine promise for progeny through Isaac was threatened.

The German philosopher Immanuel Kant (1724–1804) was deeply troubled by the morality of the Akedah. He maintained that nobody is certain that he or she is receiving prophecy, whereas everyone knows with certainty that murder is immoral and against God’s will. Therefore, Abraham failed God’s test by acquiescing to sacrifice Isaac. He should have refused, or at least protested. [3] However, the biblical narrative runs flatly against Kant’s reading. After the angel stops Abraham from slaughtering Isaac, the angel proclaims to Abraham, “For now I know that you fear God, since you have not withheld your son, your favored one, from Me” (Genesis 22:12). God thereby praises Abraham’s exceptional faith and commitment. [4]

Adopting a reading consistent with the thrust of the biblical narrative, Rambam (Spain, Egypt 1138–1204) draws the opposite conclusion from that of Kant. The fact that Abraham obeyed God demonstrates his absolute certainty that he had received true prophecy. Otherwise, he never would have proceeded: [Abraham] hastened to slaughter, as he had been commanded, his son, his only son, whom he loved…. For if a dream of prophecy had been obscure for the prophets, or if they had doubts or incertitude concerning what they apprehended in a vision of prophecy, they would not have hastened to do that which is repugnant to nature, and [Abraham’s] soul would not have consented to accomplish an act of so great an importance if there had been a doubt about it (Guide of the Perplexed III:24). [5] Although Rambam correctly assesses the biblical narrative, there still is room for a different moral question. After God informs Abraham about the impending destruction of Sodom, Abraham pleads courageously on behalf of the wicked city, appealing to God’s need to act justly (Genesis 18:23–33).[6] How could Abraham stand idly by and not challenge God when God commanded him to sacrifice his beloved son?

By considering the Abraham narratives as a whole, we may resolve this dilemma. Abraham’s actions in Genesis chapters 12–25 may be divided into three general categories: (1) responses to direct commands from God; (2) responses to promises or other information from God; and (3) responses to situations during which God does not communicate directly with Abraham. Whenever God commands an action, Abraham obeys without as much as a word of protest or questioning. When Abraham receives promises or other information from God, Abraham praises God when gratitude is in order, and he questions or challenges God when he deems it appropriate. Therefore, Abraham’s silence when following God’s commandment to sacrifice Isaac is to be expected. And so are Abraham’s concerns about God’s promises of progeny or information about the destruction of Sodom. The Torah thereby teaches that it is appropriate to question God, while simultaneously demanding faithfulness to God’s commandments as an essential aspect of the mutual covenant between God and Israel. [7]

The Pinnacle of Religious Faith

Professor Yeshayahu Leibowitz (1903–1994) suggests that Abraham and Job confronted the same religious test. Do they serve God because God provides all of their needs, or do they serve God under all conditions? Both were God-fearing individuals before their respective trials, but they demonstrated their unwavering commitment to God through their trials. [8]

Professor Moshe Halbertal (Hebrew University) derives a different lesson of commitment from the Akedah. God wishes to be loved by us, but this is almost impossible since we are utterly dependent on God for all of our needs. We generally express love through absolute giving. When sacrificing to God, however, we always can hold out hope that God will give us more. Cain and Abel could offer produce or sheep to God, but they likely were at least partially motivated to appeal to God for better crops and flocks next year. What can we possibly offer God that demonstrates our true love? The Akedah is God’s giving Abraham the opportunity to offer a gift outside of the realm of exchange. Nothing can replace Isaac, since his value to Abraham is absolute. As soon as Abraham demonstrates willingness to offer his own son to God, he has proven his total love and commitment. As the angel tells Abraham, “For now I know that you fear God, since you have not withheld your son, your favored one, from Me” (Genesis 22:12). Halbertal explains that Abraham’s offering a ram in place of Isaac becomes the paradigm for later Israelite sacrifice. Inherent in all sacrifice in the Torah is the idea is that we love God to the point where we are prepared to sacrifice ourselves or our children to God. The animal serves as a substitute. The Akedah thereby represents the supreme act of giving to God. [9] The ideas explored by Professors Leibowitz and Halbertal lie at the heart of being extremely religious. Abraham is a model of pure, dedicated service and love of God. Such religious commitment is ideal, but it also comes with the lurking danger of religious extremism. We turn now to this critical issue.

Extremely Religious without Religious Extremism

The Danish philosopher Søren Kierkegaard (1813–1855) composed a classic work on the Akedah, entitled Fear and Trembling. He argued that if one believes in religion because it appears reasonable, that is a secular distortion. True religion, maintains Kierkegaard, means being able to suspend reason and moral conscience when God demands it. Kierkegaard calls Abraham a knight of faith for his willingness to obey God and sacrifice his son. Although Kierkegaard’s philosophy did not lead others to violence in the name of religion, it certainly is vulnerable to that horrific outcome. In his philosophy, serving God must trump all moral or rational concerns.

A fatal problem arises when the representatives of any religion claim that God demands violence or other forms of immorality. In a powerful article written in the wake of the terror attack on New York City on September 11, 2001, Professor David Shatz (Yeshiva University) addresses this urgent question.[10] He observes that in general, the answer for any form of extremism is to create a system with competing ideals for balance. For example, one may place law against liberty, self-respect against respect for others, and discipline against love. In religion, however, there is a fundamental problem: placing any value against religion—especially if that competing value can trump religion—defeats religious commitment. Professor Shatz suggests a solution. There is a way to have passion for God tempered by morality and rationality without requiring any religious compromise. One must embrace morality and rationality as part of the religion. The religion itself must balance and integrate competing values and see them all as part of the religion. This debate harks back to Rabbi Saadyah Gaon (Babylonia, 882–942), who insisted that God chooses moral things to command. In contrast, the medieval Islamic philosophical school of Ash‘ariyya maintained that whatever God commands is by definition good. [11] Kierkegaard’s reading of the Akedah fails Professor Shatz’s solution to religious extremism and is therefore vulnerable to the dangers of immorality in the name of God. In truth, Kierkegaard’s reading of the Akedah fails the narrative itself: God repudiates child sacrifice at the end of the story. Whereas Kierkegaard focuses on Abraham’s willingness to suspend morality to serve God, the narrative teaches that God rejects immorality as part of the Torah’s religion.

The expression of religious commitment in the Torah is the fear of God, which by definition includes the highest form of morality. [12] There must never be any disconnect between religious commitment and moral behavior, and Israel’s prophets constantly remind the people of this critical message. [13] Thus, the Torah incorporates morality and rationality as essential components of its religious system. It also is important to stress that people who act violently in the name of religion generally are not crazy. Rather, they are following their religious system as they understand it and as their clerics teach it. Such manifestations of religion themselves are evil and immoral.

Post-modernism thinks it can relativize all religion and thereby protect against the violence generated by religious extremism. In reality, however, post-modernism achieves the opposite effect, as its adherents no longer have the resolve to refer to evil as evil and to battle against it. Instead, they try to rationalize evil away. This position very meaningfully empowers the religious extremists. [14] Professor Shatz acknowledges that lamentably, there are negative extremist elements among some Jews who identify themselves as religious, as well. However, their attempts to justify their immorality with Torah sources in fact do violence to our sacred texts.[15] Such Jews are not extremely religious, as they pervert the Torah and desecrate God’s Name. Similarly, every religion must build morality and rationality into their systems so that they can pursue a relationship with God while avoiding the catastrophic consequences of religious extremism. As Rabbi Jonathan Sacks has observed, “the cure of bad religion is good religion, not no religion.” [16]

Conclusion

The Akedah teaches several vital religious lessons. Ideal religion is all about serving God, and is not self-serving. Because we expect God to be moral, the Torah’s protest tradition also emerges with Abraham’s holding God accountable. We may and should ask questions. Simultaneously, we must obey God’s laws in our mutual covenantal relationship. We aspire to be extremely religious, and Abraham serves as a paragon of the ideal connection to God, an active relationship, and faithfulness. The Akedah also teaches the key to avoid what is rightly condemned as religious extremism, using religion as a vehicle for murder, persecution, discrimination, racism, and other expressions of immorality. Morality and rationality must be built into every religious system, or else its adherents risk lapsing into immorality in the name of their religion.

One of the best means of promoting our vision is to understand and teach the underlying messages of the Akedah. We pray that all faith communities will join in affirming morality and rationality as being within their respective faiths. It is imperative for us to serve as emissaries of a different vision to what the world too often experiences in the name of religion, to model the ideal fear of Heaven that the Torah demands, and ultimately to sanctify God’s Name.

Notes [

1] The Hebrew root for Akedah appears in Genesis 22:9, and refers to binding one’s hands to one’s feet. This is the only time that this root appears in the entire Bible. [2] Rabbi Samuel David Luzzatto (Italy, 1800–1865) suggests that this legislation was in part an anti-pagan polemic, demonstrating that the Torah’s idea of love of God does not involve the immoral sacrifice of one’s child. [3] Kant was not the first person troubled by the moral implications of the Akedah. In the second century BCE, the author of the non-canonical Book of Jubilees (17:16) ascribed the command to sacrifice Isaac to a “satanic” angel named Mastemah, rather than God Himself as presented in the Torah. Evidently, the author of Jubilees was uncomfortable attributing such a command directly to God. Adopting a different tactic, a fourteenth-century rabbi named Eleazar Ashkenazi ben Nathan Habavli maintained that the Akedah must have occurred in a prophetic vision. Had the Akedah occurred in waking state, he argued, Abraham surely would have protested as he did regarding Sodom (in Marc Shapiro, Changing the Immutable: How Orthodox Judaism Rewrites Its History [Oxford: Littman Library of Jewish Civilization, 2015, p. 70]). [4] See sources and discussion in Yonatan Grossman, Avraham: Sipuro shel Massa (Hebrew) (Tel-Aviv: Yediot Aharonot, 2014), pp. 300–301. [5] Translation from The Guide of the Perplexed, Shlomo Pines, second edition (Chicago: University of Chicago Press, 1963), pp. 501–502. [6] See especially R. Aharon Lichtenstein, “Does Jewish Tradition Recognize an Ethic Independent of Halakha?” in Modern Jewish Ethics: Theory and Practice, ed. Marvin Fox (Columbus, OH: Ohio State University Press, 1975), pp. 62–88. [7] See further discussion in Hayyim Angel, “Learning Faith from the Text, or Text from Faith: The Challenges of Teaching (and Learning) the Abraham Narratives and Commentary,” in Wisdom From All My Teachers: Challenges and Initiatives in Contemporary Torah Education, ed. Jeffrey Saks & Susan Handelman (Jerusalem: Urim, 2003), pp. 192–212; reprinted in Angel, Through an Opaque Lens (New York: Sephardic Publication Foundation, 2006), pp. 127–154; revised second edition (New York: Kodesh Press, 2013), pp. 99–122. [8] Yeshayahu Leibowitz, Judaism, Human Values, and the Jewish State, ed. Eliezer Goldman (Cambridge, MA: Harvard University Press, 1992), pp. 48–49, 259. Cf. Michael V. Fox, “Job the Pious,” Zeitschrift fur die Alttestamentliche Wissenschaft 117 (2005), pp. 351–366. [9] Moshe Halbertal, On Sacrifice (Princeton, NJ: Princeton University Press, 2012), pp. 22–25. [10] David Shatz, “‘From the Depths I Have Called to You’: Jewish Reflections on September 11th and Contemporary Terrorism,” in Contending with Catastrophe: Jewish Perspectives on September 11th, ed. Michael J. Broyde (New York: Beth Din of America and K’Hal Publishing, 2011), pp. 197–233. See also Marvin Fox, “Kierkegaard and Rabbinic Judaism,” in Collected Essays on Philosophy and on Judaism, vol. 2, ed. Jacob Neusner (Lanham, MD: University Press of America, 2003), pp. 29–43. [11] See Howard Kreisel, Prophecy: The History of an Idea in Medieval Jewish Philosophy (Dordrecht: Kluwer Academic Publishers, 2001), p. 38. [12] See, for example, Genesis 20:11; 42:18; Exodus 1:17, 21; Deuteronomy 25:18. [13] See, for example, Isaiah 1:10–17; Jeremiah 7:9–11; Hosea 6:6; Amos 5:21–25; Micah 6:4–8. [14] For a chilling study of the virtual elimination of the very concept of sin and evil from much of Western literature, see Andrew Delbanco, The Death of Satan: How Americans Have Lost the Sense of Evil (New York: Farrar, Straus, and Giroux, 1995). [15] See especially R. Yitzchak Blau, “Ploughshares into Swords: Contemporary Religious Zionists and Moral Constraints,” Tradition 34:4 (Winter 2000), pp. 39–60. [16] R. Jonathan Sacks, The Great Partnership: God, Science, and the Search for Meaning (London: Hodder & Stoughton, 2011), p. 11.

The Grand Religious Worldview of Rabbi Benzion Uziel

     Rabbi Benzion Uziel delivered the opening address at a gathering

in Jerusalem of the rabbis of the land of Israel (spring

1919). In describing the rebirth of the Jewish nation in Israel,

he pointed out the many challenges facing the emerging Jewish communities

and settlements. He urged the rabbis to be active participants

in this historic process. It would be unacceptable and dangerous if religious

Jews were to say: "Let us stand in a corner as though looking at

the events from a distance. Let us say to ourselves: we and our families

will serve the Lord." He felt that this isolationist attitude was contrary

to the vision upon which our religion is based. Rabbi Uziel exhorted

his colleagues to go among the people, to work with the people, to participate

in every aspect of the nation-building process. In this way, they

could bring the eternal teachings of Torah into the real world. [1]

 

     This theme was to dominate much of the thought and work of

Rabbi Uziel, who proclaimed that Judaism is not a narrow, confined

doctrine limited only to a select few individuals; rather, the Torah is the

guide for the ideal way of life for the entire Jewish people, and also carries

a message for humanity at large. Jewish religious expression must

not be confined to a parochial, sectarian mold. Rather, it must thrive

with a grand vision, always looking outward.

 

     Rabbi Uziel's philosophy of Judaism flowed from various sources.

Born in Jerusalem to an illustrious Sephardic rabbinical family, his father

was the Av Bet Din of the Sephardic community of Jerusalem and presi-

dent of the community council. His mother was part of the Hazan

rabbinical family, which had produced fist-rate rabbinic leaders for generations.

As a youth, Rabbi Uziel studied with the Sephardic sages of

Jerusalem, but also with Ashkenazic rabbis. He became one of those

unique individuals who was well steeped in the halakhic methods and literature

of both the Sephardim and Ashkenazim.

 

     In 1911, Rabbi Uziel was appointed Chief Rabbi of Yafo and its district, where he worked with Rabbi Abraham Isaac Kook, the Ashkenazic spiritual leader of Yafo. Although

Rabbi Kook was older, Rabbi Uziel was appointed Chief Rabbi (Haham Bashi) by the authority

of the Turkish Government. Officially, the office of Chief Rabbi was

open only to individuals born in the Ottoman Empire, whose families

had been living there for several generations, and who knew the language

of the land, as well as French and Arabic. Rabbi Uziel had all

these qualifications, while Rabbi Kook did not. Rabbis Uziel and Kook

developed a good working relationship and held each other in high

esteem. In 1921, Rabbi Uziel became the Chief Rabbi of the famous

Sephardic community of Salonika, returning to be Chief Rabbi of Tel

Aviv in 1923. In 1939, he was elected Chief Rabbi of Israel, Rishon le-

Zion.

 

     Rabbi Uziel was a leading posek, thinker, teacher, communal leader

and political activist, one of the unique figures of 20th century Jewish

life. Rabbi Uziel saw God's hand in the development of Jewish life in

Erets Yisrael. He felt that he was participating in the early stages of the

final redemption of Israel. His writings are characterized by the calm

wisdom of a genuine scholar and at the same time by an overwhelming

sense of urgency. Depending on the quality of religious leadership, he

said, everything could be won or lost.[2]

 

     Rabbi Uziel believed that the Jewish people, especially those living

in a revitalized Erets Yisrael, could be living models of the excellence

inspired by the Torah. Through their moral and ethical accomplishments,

the Jews would succeed in making the rest of the world aware of

the great standards set by the Torah for all of humanity. [3]

 

     He felt strongly that Jews must be aware of their own national

charter. Through this self knowledge, they would be able to conduct

their lives according to the ideals set forth in the Torah tradition. This

would lead to their own happiness, as well as to a positive influence on

the world in general. Rabbi Uziel criticized those false ideologies which

distracted the Jewish people from their authentic national charter. He

rejected the assimilationists, since their strategy would ultimately undermine

the true message of Judaism. He also chastised those who would

restrict Judaism to the narrow confines of their homes, synagogues and

study halls. This strategy would bury Judaism in a small inner world,

cutting off its impact on society as a whole. It was necessary to steer a

middle course between assimilationist tendencies on the left and isolationist

tendencies on the right. Rabbi Uziel cited the verse in Mishlei

(4:25) as a guide: "Let your eyes look right on and let your eyelids look

straight before you. Make plain the path of your foot and let all your

ways be established. Turn not to the right nor to the left. Remove your

foot from evil."

 

     Only by focusing on the specific charter of the Jewish people--to

create a righteous nation based on the laws of Torah tradition--could

the Jewish people fulfill its mission. Through our creating a model

Torah society, we would be seen by the entire world to be the representatives

of God. Our Torah teaches us to live life in its fullness. It teaches

us how to apply the highest moral and ethical standards to all human

situations. Judaism is not a cult, but a world religion with a world message.

"Our holiness will not be complete if we separate ourselves from

human life, from human phenomena, pleasures and charms, but (only if

we are) nourished by all the new developments in the world, by all the

wondrous discoveries, by all the philosophical and scientific ideas which

flourish and multiply in our world. We are enriched and nourished by

sharing in the knowledge of the world; at the same time, though, this

knowledge does not change our essence, which is composed of holiness

and appreciation of God's exaltedness." The national charter of the

Jewish people is "to live, to work, to build and to be built, to improve

our world and our life, to raise ourselves and to raise others to the highest

summit of human perfection and accomplishment. (This is accom-

plished by following) the path of peace and love, and being sanctified

with the holiness of God in thought and deed."[4]

 

     In his address accepting the appointment as Chief Rabbi of Yafo

(6 Heshvan 5672), Rabbi Uziel stated that a leader must have two

seemingly opposite qualities: strength of character and humility (gevura

nafshit and anava). In truth, these two qualities are not in opposition

but must go together. True humility cannot be found except in one

who has spiritual strength. Indeed, humility without such strength is

not humility at all: it is weakness stemming from fear and doubt.[5]

 

     In his address to the rabbis of Erets Yisrael in 1919, he reminded

his colleagues that while humility in itself is praiseworthy, it becomes repulsive

if it leads to shying away from the needs of the hour. Rabbis

who hide in the mantle of humility abdicate their responsibility to the

community. Leadership requires strength of character. [6]

 

     Rabbi Uziel saw the rabbis' influence deriving from the force of

their own righteousness, devotion and erudition. Since the hallmark of

Torah is peace, coercion and threats are not the proper ways to gain

adherence to Torah. Rather, rabbis (and religious people in general)

must win the hearts of their fellow Jews through deeds of love and

kindness. [7] One cannot demand respect; one must earn it.

 

     Rabbi Uziel was among those who believed that the time had

arrived for the reestablishment of a Sanhedrin. Through such a structure,

rabbinic authority would once again be centralized. The public

would know where to turn for Torah guidance. A properly constituted

Sanhedrin would have profound influence on Jewish communities

throughout the world and would be a harbinger of the ultimate redemption. [8]

 

     Rabbi Uziel was troubled by a schism among the Jews in Israel.

One group stressed the study of Torah to the exclusion of building the

land and organizing the people, while the other group emphasized

action while negating the need to study Torah. Both groups were

wrong. "Action without study--even action is lacking, since it is a

branch without roots. And study without action is a root without a

branch." [9]

 

     According to the Torah, work is obligatory. It is forbidden for a

person to be supported by the labor of others without providing his

own productive labor. A parent is obligated to teach his child Torah and

an occupation. A child who does not learn how to support himself

through his own labor is compared to a thief who steals the labor of

others without exerting any effort of his own. Each individual must be

engaged in productive labor to support himself, to share in the building

of the world and the advancement of humanity. Labor is not only an

obligatory commandment, but also gives the individual a sense of

honor and dignity. The laws of the Torah go hand in hand with productive

forms of labor and business. By working, one learns not only the

knowledge of one's profession, but also compassion, love and responsibility

for others.[10]  These spiritual and moral qualities are learned by

engaging in productive labor, not merely by abstract study.

 

     During the War of Independence in 1948, a number of yeshiva

students came to Rabbi Uziel to obtain exemptions from military service.

He rejected their requests and said that if he were not already an

old man himself, he would be holding a gun and hand grenade, fighting

to defend the Old City of Jerusalem where he was born and raised.

This was a battle of life and death for the people of Israel. How could

anyone want to be exempted from fighting this great battle? On the

contrary, each person should rise to the occasion and give strength to

his fellow soldiers. He told the yeshiva students that it was a mitsvah for

them to join in the defense of their people, to risk their lives alongside

their brothers, to defend the Jewish people and the Jewish land. [11]

 

     In Rabbi Uziel's view, religious leadership entailed a total commitment

to participate in all aspects of the life of the nation. Religious people

were not to live on hand-outs or to seek exemptions. Only by a

thoroughgoing involvement in all aspects of national life could the religious

community bring its values and ideals to all the people of Israel.

To retreat into self-enclosed religious enclaves was to surrender Torah

leadership. It was to reduce Judaism to a small, self-contained cult. This

position was absolutely untenable to Rabbi Uziel, who viewed Judaism

as a grand way of life which must shape the entire society, serving as a

model for the world.

 

     Rabbi Uziel believed that Torah study and observance should

make the religious Jew into a model human being.[12] But exactly what

are we to study and do in order to attain the highest standards of Torah

ideals? Obviously, we must study and observe Torah in as thorough and

profound a way as possible. In Rabbi Uziel’s view, the Torah is not simply

a book of laws and commandments; it encompasses all knowledge.

"It is impossible to understand it--certainly to plumb its depths--without

a profound and broad knowledge of all worldly wisdoms and sciences"

which are hidden in the depths of creation. [13] The Torah itself is

interested in cosmology, philosophy, theology, human history. To be

well-versed in Torah involves knowledge of astronomy and mathematics

in order to set the calendar. Torah law includes comprehensive knowledge

of weights and measures. It entails agronomical and zoological

knowledge in order to observe properly the laws of mixed species

(kilayim). Likewise, the laws of terefòt demand a thorough knowledge

of animal anatomy. Jewish law requires a knowledge of human psychology,

so that the judge can determine whether or not a witness is

attempting to deceive him. Halakha includes political and economic

principles, as well as laws governing the relationships between different

peoples. In short, Torah--being a total way of life--necessitates understanding

life in its fullness.[14]

 

     The Torah tradition teaches Jews to be engaged in the development

of society (yishuvo shel olam) in the broadest sense of the term.

This entails not only populating and settling the world, but studying

the ways of nature (science) in order to advance human civilization.

Yishuvo shel olam involves knowledge of how to establish a system of

justice and how to develop a harmonious and ethical society. Involve-

ment in yishuvo shel olam is a necessary condition to fulfilling our specific

Jewish way of life. The settlement and building of society increases

knowledge, widens our intellectual and scientific horizons. This very

process awakens within us a more profound appreciation of the wonders

of God, His creative powers and His providence. [15]

 

     Rabbi Uziel did not see Torah and mada as conflicting. He believed,

rather, that in order to be a Torah personality with full Torah

knowledge, one must study worldly wisdom. But when one studies

such subjects as philosophy, science, psychology, history and literature,

one does not do so for the sake of academic knowledge, but rather as a

means through which one gains a deeper understanding of God's ways.

"Talmud Torah" is a general term referring to the attainment of wisdom;

it includes Torah study as well as all the studies and sciences

which deepen our understanding. [16] It is Talmud Torah in this broad

sense which raises a person from ignorance to wisdom. Secular knowledge

by itself provides knowledge, but only within the context of Talmud

Torah does secular knowledge have ultimate meaning, leading the

student closer to God.

 

     In his address upon assuming the position of Chief Rabbi of

Salonika (9 Adar, 5681), Rabbi Uziel stated: "It is true that scientific

knowledge (mada) raises a person, gives him wings to soar to great

heights, enlightens his eyes to discover the secrets of nature and to uti-

1ize its powers, to make life more pleasant and to increase longevity;

general knowledge also endows a person with spiritual powers. But all

the acquisitions of general knowledge are vessels which help one to

live--and are not life itself. . . . The goal (of life) is . . . to know the

God of the universe, to walk in His ways and to cling to Him. [I7]

 

     Rabbi Uziel saw Maimonides as the classic example of the Jewish

ideal. In the Mishne Torah, Maimonides presents the spiritual inheritance

of the people of Israel from Moses to his own time. In addition,

he draws on the best of worldly knowledge. Rabbi Uziel believed that

Jewish sages were well aware of the philosophical, scientific and theological

insights propounded by non-Jewish sages. Indeed, Jewish sages

had to have knowledge of the world in order to fully understand the

Torah itself. After all, the Torah, Talmud and rabbinic literature include

references to all branches of human knowledge. Maimonides advocated

the principle: receive the truth from whoever states it. Maimonides

studied philosophy and science, gathering the best of what he found; in

this way he enriched his own thoughts in depth and breadth. [18]

 

     In his book on the laws of guardianship (apotropos), Rabbi Uziel

noted that our sages were fully cognizant of the legal thought and prac-

tice of the non-Jewish nations with whom they had contact. Our rabbis

of all generations "did not limit themselves to their four cubits and to the

walls of the study hall. Rather, they learned and knew al which transpired

in the world of science and justice." They did not hesitate to admit the

truth of the words of non-Jewish sages when the truth was with them. [19]

 

     In a letter he wrote to the leadership of the Alliance Israelite Universelle,

Rabbi Uziel recognized the importance of Jewish students

learning both religious subjects and general studies. He stressed the

need to learn Hebrew and said that Jewish students in the diaspora

should learn the language of the land in which they lived as well as at

least one European language. But the goal of Jewish education should

be clear: to raise children faithful to their people and to their Torah,

people who would be useful to their families, their people, and society.

Rabbi Uziel insisted that general subjects be taught by religious teachers.

Otherwise, a spirit of secularism would enter the children's hearts,

leading them away from the very goals for which Jewish schools stood.

In every generation, he said, the Jewish people have produced learned

doctors, authors, and business people. We have not lacked giants in science

and worldly wisdom. And we have been able to attain this while

retaining total loyalty to the Torah tradition. If modern-day Jews think

that their children can achieve success only by receiving an exclusively

secular education, they are in fact sacrificing their children's spiritual

lives. There is no necessity to do so, since one can attain worldly success

while remaining deeply steeped in Torah tradition. The ideal can be

attained only when general studies are taught within the context of the

Jewish religious tradition. [20]

 

     Jews throughout history have not allowed themselves to be cut off

from the intellectual currents of the world. Rather, they have been at

the forefront in all areas of human knowledge and scientific advancement.

In spite of the attempts by anti-Semites to confine Jews to ghettos

and to limit their educational opportunities, Jews have made

remarkable contributions to human knowledge. As active and knowledgeable

participants in world civilization, our goal is to lead humanity

in the paths of proper ethics and social harmony.[21]

 

     Rabbi Uziel saw Abraham, our forefather, as his model for outreach

to general society. Abraham's teachings brought people closer to

a proper understanding of God; indeed, he was successful in converting

many to his beliefs. By lovingly guiding people in the ways of God, he

set a pattern for his descendants to emulate. A basic responsibility of the

Jewish people is to teach monotheism and ethical behavior to the peoples

of the world. [22]

 

Unlike some other religions, Judaism does not claim a monopoly

on the world to come. All people--Jewish or not--have access to God,

and will be rewarded for a life of righteousness. [23]

 

     Judaism teaches responsibility towards each human being and

every nation. The ultimate redemption of Israel is not the success of

one people, but rather the redemption of all humanity. The entire

world will become free of war, rid of false beliefs and ideologies; it will

be free of political, military and religious coercion.[24]  A cornerstone of

Jewish religiosity is the recognition of the "image of God" found in all

human beings. This insight leads to the love of individuals and to the

love of humanity. [25]

 

     Since all human beings are created in the "image of God," all are

entitled to loving concern and respect. Rabbi Uziel’s commitment to

this principle is evident in a halakhic controversy which erupted concerning

autopsies. Already in the early 1930's in Erets Yisrael, the issue of

autopsies arose in connection with training Jewish doctors in emerging

Jewish medical schools. Medical training necessitated performing autopsies,

but how could this take place under halakhically correct conditions?

Rabbi Kook ruled in 1931 that it was not permissible to perform autopsies

on Jewish bodies for the sake of medical education. He recommended

that non-Jewish bodies be purchased for the sake of scientific

research. In sharp contrast, Rabbi Uziel theorized (le-halakha ve-lo lema'ase)

that autopsies could be permitted according to Jewish law if

conducted with proper respect. "In a situation of great benefit to everyone,

where there is an issue of saving lives, we have not found any reason

to prohibit (autopsies), and on the contrary, there are proofs to permit

them." In considering whether it would be preferable to obtain non-

Jewish bodies for autopsies, Rabbi Uziel’s response was unequivocal:

"Certainly this should not even be said, and more certainly should not

be written, since the prohibition of nivul stems from the humiliation

caused to all humans. That is to say, it is a humiliation to cause the body

of a human being--created in the image of God and graced with knowledge

and understanding to master and rule over all creation--to be left

disgraced and rotting in public." According to Rabbi Uziel, if one were

to prohibit autopsies, then no autopsies could be performed on anyone,

Jewish or non-Jewish. The result of this policy would be that no doctors

could be trained. [26]

 

     Rabbi Uziel’s appreciation of the “image of God" in everyone was

manifested in his abhorrence of discrimination based on religion or race.

In the early days of British rule over Erets Yisrael, Rabbi Uziel was

already imagining how halakha would be implemented in a new Jewish

state. He posed the theoretical question: may the testimony of non-Jews

be accepted in Jewish courts according to the rules of the Torah? "It is

impossible to answer this question negatively, because it would not be

civil justice to disqualify as witnesses those who live among us and deal

with us honestly and fairly. Weren't we ourselves embittered when the

lands of our exile invalidated us as witnesses? If in the entire enlightened

world the law has been accepted to receive the testimony of every person

without consideration of religion or race, how then may we make such a

separation?" He then went on to write a comprehensive responsum in

which he demonstrated the propriety of establishing a regulation allowing

testimony from non-Jews. [27] This responsum demonstrates Rabbi Uziel's

concern for creating ajust Jewish society which respected the rights and needs

of the non-Jewish population.

 

     In his speech to the rabbis of Erets Yisrael (1919), he stated that

the Jewish nation was a people of peace, never wanting to advance itself

by causing destruction to others. Non-Jews should not feel threatened

by the emergence of a Jewish state, since a Jewish government would be

a source of peace and blessing.[28]  In his address at his installation as Chief

Rabbi of Israel (1939), Rabbi Uziel stressed the need to forge links of

peace and fellowship among all segments of society in Erets Yisrael. [29] In

his radio address in honor of his installation as Chief Rabbi, he made a

special appeal to the non-Jewish population in the land of Israel: "We

stretch out to you a hand of peace, true and trustworthy. We say to you:

The land is spread out before us and we will work it with joined hands.

We will uncover its treasures and will live in it as brothers together." [30]

 

Rabbi Uziel, who spoke Arabic fluently, felt it was vital for Jews to

establish good relations with their Arab neighbors. He strenuously criti-

cized those individuals who, in the name of Judaism, fomented anti-

Arab attitudes. This was a perversion of Judaism. "The Torah of Israel,

all of whose paths are ways of peace, calls for the peace and love of its

people and all who are created in the image ofGod."[31]  It was up to rabbis

to decry negative attitudes towards the Arabs. In 1927, Rabbi Uziel

visited Baghdad and spoke to the Jewish community there, inspiring

them with his message from Zion. In his speech, which he delivered

both in Hebrew and Arabic, he called on the Jews of Baghdad to share

in the religious Zionist ideals, to settle in Israel, to maintain their religious

traditions in the land of Israel. The Arabic newspapers of Baghdad

praised Rabbi Uziel’s speech, and lauded his call for peace and

friendship between the two great nations (Jews and Arabs), both peoples

being descendants of our forefather Abraham.[32]

 

     In 1921, a battle erupted between Jews and Arabs in the outskirts

of Tel Aviv. When Rabbi Uziel learned that both sides were shooting at

each other, he went out to the battleground in his rabbinical garb. Fearlessly,

he walked between the two camps. The gunfire stopped. Rabbi

Uziel spoke to the Arabs with emotion. He reminded them that Jews

and Arabs are cousins, descendants of Abraham. "We say to you that

the land can bear all of us, can sustain all of us. Let us stop the battles

among ourselves, for we are brothers."

 

     Rabbi Uziel fully believed that peace and harmony were achievable

if goodwill could prevail. He was faithful to this vision throughout his

life, even though it was rejected by political and religious leadership on

both sides.

 

     When Rabbi Uziel died in 1953, hundreds of thousands of people

mourned his passing. All the people of Israel, Sephardim and Ashkenazim,

Jews and non-Jews, had lost a religious leader of the highest

stature. The motto of his life had been the words of the prophet Zekharya:

"Love truth and peace." The grandeur of his life and his religious

vision were an inspiration to his generation, and will stand as a

lasting monument for generations to come.

 

NOTES

 

[1] R. Benzion Uziel, Mikhmanei Uziel, Tel Aviv, 5699, p.328.

[2] For more on the life and career and Rabbi Uziel, see Shabbetai Don Yahye,

HaRav Benzion Meir Hai Uziel: Hayav uMishnato, Jerusalem, 5715. See

also Yaacov Hadani, "HaRav Benzion Uziel keManhig Medini,” Hamidrashia,

Vol.. 20-21, 1987, pp. 239-266. [See also Marc D. Angel, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel, Jason Aronson, Northvale, 1999.]

[3] R. Benzion Uziel, Hegyonei Uziel, VoL. 1, Jerusalem, 5713, p. 99; and

Hegyonei Uziel, Vol. 2, Jerusalem) 5714, p. 120.

[4] Hegyonei Uziel, VoL. 2, pp. 121-125. See also, Mikhmanei Uziel, p.460.

[5] Mikhmanei Uziel, p.324.

[6] Mikhmanei Uziel, p.331.

[7] Mikhmanei Uziel, pp. 364-365.

[8] Mikhmanei Uziel, p.391; Mishpetei Uziel, Yore De'a 3, Vol. 2 Addendum

No.3; Sha'arei Uziel, Jerusalem, 5751, p.l0. See also Marc D. Angel, Rhythms

of Jewish Living, New York, 1986, pp. 70-72; and Marc D. Angel,

Voices in Exile, Hoboken, 1991, pp. 194-196.

[9] Mikhmanei Uziel, p. 557.

[10] Mikhmanei Uziel, pp. 456 and 458.

[11]  Quoted in Shabbetai Don Yahye, pp. 227-228.

[12] Hegyonei Uziel, Vol. 2, pp. 96-97.

[13] Mikhmanei Uziel, p. 405.

[14] Mikhmanei Uziel, pp. 406-407.

[15] Hegyonei Uziel, Vol. 2, p. 98.

[16] Mikhmanei Uziel, pp. 552-553.

[17] Mikhmanei Uziel, p. 345.

[18] Mikhmanei Uziel, pp. 382-383; 393.

[19] Sha'arei Uziel, introduction, pp. 35 and 37.

[20] Mikhmanei Uziel, pp. 516-517.

[21] Mikhmanei Uziel, p. 120.

[22] Hegyonei Uziel, Vol. 1, pp. 98-99.

[23] Hegyonei Uziel, Vol. 1, p. 176.

[24] Hegyonei Uziel, Vol. 2, pp. 146-147.

[25] Mikhmanei Uziel, p. 344.

[26] For Rabbi Kook's opinion, see Da’at Cohen, Jerusalem, 5745, No. 199.

Rabbi Uziel's opinion is found in Piskei Uziel, Jerusalem, 5737, No. 32, especially

pp. 178-179. See also my article, "A Discussion of the Nature of

Jewishness in the Teachings of Rabbi Kook and Rabbi Uziel," in Seeking Good, Speaking Peace,

edited by Hayyim J. Angel, Hoboken, 1994, pp.112-123.

[27] For a discussion of Rabbi Uziel’s position, see Rabbi Haim David Halevy,

"The Love of Israel as a Factor in Halakhic Decision Making in the Works

of Rabbi Benzion Uziel," Tradition, Vol. 24, Spring 1989, pp. 17-19.

[28] Mikhmanei Uziel, p. 330.

[29] Mikhmanei Uziel, p. 424.

[30] Mikhmanei Uziel, p. 429.

[31] Mikhmanei Uziel, p. 523.

[32] Shabbetai Don Yahye, pp. 107-108.

[33] Shabbetai Don Yahye, p. 77.