Different Responses to New Realities

Beginning in the nineteenth century, cataclysmic changes affected Jewish communal life. Secularization, the separation of Church and State, emancipation, and the institution of civil marriage undermined the authority of Jewish communal leadership and led to a shift from a generally traditional society to one where the majority of Jews no longer observed all of halakhah and many chose social assimilation and (increasingly) intermarriage. The latter phenomenon gave rise to the following question: If a Jew has chosen to marry (or to live with) a non-Jewish partner, and that partner applies to convert, what is the proper rabbinic response? While there is a wide range of opinions among rabbis responding to this question, they can be divided broadly into a more lenient position and a more restrictive position. This chapter will explore the central arguments of each side.

The basic issues on which the two sides disagree are as follows:

1. If the non-Jewish partner of a Jew applies to convert, is her motivation for the sake of marriage (rather than sincere religious motivation)? If so, are we required to reject this application out of hand?
2. If we agree to accept such spouses for conversion, are we not thereby implicitly condoning and even encouraging intermarriage?
3. If a Jew has chosen a non-Jewish spouse, this frequently reflects that he or she herself holds a cavalier attitude toward observance of mitzvot. It stands to reason that we can expect no more from the prospective convert. If so, then:
   
   1. Should we agree to accept a convert who likely will not be religiously observant?
   2. If halakhah regards “acceptance of the commandments” as a crucial part of the conversion ceremony, can such a candidate fulfill that requirement? If not, then even if we want to accept such a person it is a waste of time, for without acceptance of the commandments conversion can never be valid.

Several German rabbis, including Yaakov Ettlinger, Samson Raphael Hirsch, and Azriel Hildesheimer, opposed performing conversions in cases of intermarriage. They maintained that in the era when Rambam permitted such a conversion (see previous chapter), the Jewish community was generally observant. Back then, conversion to Judaism necessarily meant entry into an observant Jewish community. However, one no longer could presume that a convert would join an observant community, since the majority of born Jews no longer fully observe halakhah. These rabbis maintained that it is contrary to Torah to accept a convert who will be non-observant. Therefore, Rambam’s ruling is not relevant as a precedent in the modern era.

Similarly, some rabbis ruled that a mohel should not circumcise a boy born from a Jewish father and a non-Jewish mother, since there was little likelihood that the child would grow up in an observant Jewish home. Thus, even if the child were later to complete the conversion process by immersion in a mikvah, he would at most become a non-observant Jew, whom (as noted above) Torah does not want as a convert. In addition to their halakhic analysis, this group of rabbis believed that a strict policy against conversion and circumcision of sons born through intermarriage would deter others from intermarrying.[1]

            Other rabbis disagreed with this analysis. They believed that a Bet Din is obligated to do whatever it can to avoid an intermarriage and that this can be achieved by converting the non-Jewish partner. Moreover, the Bet Din also has a responsibility to ensure a Jewish future for the children of intermarried couples. Rabbis Zvi Hirsch Kalischer and Marcus Horowitz insisted that a mohel should circumcise a boy born from a Jewish father and non-Jewish mother, since he is still of Jewish stock, zera Yisrael. The Bet Din has a responsibility to keep such children closer to Judaism and the observant community, and perhaps one day they would come to accept Judaism more fully. These rabbis maintained that a Bet Din should view a father’s desire to circumcise his son as an act of sincere commitment, since he did not have to request this circumcision at all.

            In this spirit, Rabbi David Zvi Hoffmann ruled that if a couple is civilly married and the non-Jewish spouse comes to a Bet Din to convert, this should not be considered a conversion “for the sake of marriage” since they already live as a married couple and therefore have no ulterior motive for conversion. Aside from the responsibility to do everything it can to prevent intermarriage, the Bet Din also has a responsibility to the children of these couples, and can help in their religious development by giving them two Jewish parents.

Rabbi Hoffmann understood that this situation was not ideal, but considered performing the conversion as the lesser of two problems. Rabbi Hoffmann also wanted prospective converts to avoid going to Reform rabbis, as the converts (and many others) would mistakenly think that they are Jewish even while not having undergone a halakhic conversion. Within his permissive ruling, Rabbi Hoffmann maintained that the non-Jewish partner must commit to three pillars of mitzvah observance: Shabbat, kashrut, and the laws of family purity.[2]

One of the central debates between the two positions revolved around the requirement of conversion “for the sake of Heaven” (Gerim 1:3). The permissive side maintained that any choice made by the prospective convert not for personal gain should be considered “for the sake of Heaven.” A civilly married couple, then, could be considered sincere since they did not need to come to a Bet Din in order to be married. Rabbi Yehiel Yaakov Weinberg agreed with Rabbi David Zvi Hoffmann, that if a couple already lives together, a Bet Din may view their voluntarily coming to the Bet Din to mean that the conversion was not for ulterior motives. Others, including Rabbi Shlomo Kluger and Rabbi Ovadiah Yosef, maintained this view, as well.[3]

Additionally, many who permitted such conversions did so in order to avoid the greater problem of intermarriage. A lenient interpretation of the rules of conversion was the preferable choice. Finally, the permissive side insisted that a Bet Din has a responsibility to work proactively to help people avoid living in sinful relationships.

The restrictive side disagreed. True, such a conversion may not be for the sake of marriage, but it also is not a sincere conversion for the sake of heaven. The Jewish partner, for example, may want his or her non-Jewish spouse to convert for social and communal acceptance. The restrictive side also maintained that it is not the responsibility of a Bet Din to proactively bend the rules of conversion to help sinners. Additionally, they argued, of what benefit would it be to convert a non-Jewish spouse if the couple likely will remain non-observant? Similarly, of what benefit would it be to the child of an intermarriage, who was unlikely to grow up observant? Such individuals are better off as non-Jews, since they will not be culpable for violating the Torah. Better remain a Gentile than become a non-observant Jew![4]

Toward the end of the nineteenth century, some rabbis pushed the restrictive position further and maintained that absent a fully sincere and heartfelt commitment to observing all of the mitzvot at the time of conversion, conversions are not valid even after the fact, even if performed by an Orthodox Bet Din. Professors Avi Sagi and Zvi Zohar maintain that Rabbi Yitzhak Schmelkes was the first to state and defend this position (in 1876).[5] Two leading exponents of this position were Rabbis Mordechai Yaakov Breisch and Moshe Feinstein.[6]

One of the leading exponents of the permissive position in the twentieth century was Rabbi Benzion Uziel, the Sephardic Chief Rabbi of Israel at the time of the founding of the State. Rabbi Uziel maintained that many mixed couples exist, whether just living together or married under civil law, and the Bet Din has a responsibility to change this situation for the better if it is able to do so. He therefore ruled that if a couple already is civilly married, or they are certainly going to get civilly married, a Bet Din should perform the conversion to create a marriage in which both partners are Jewish.

Rabbi Uziel understood the obligation of a Bet Din to inform a prospective convert of some mitzvot prior to conversion (Yevamot 47a–b) to mean that the convert is required to be informed that a central aspect of Judaism is commitment to Torah and mitzvot, and that Jews are held responsible by God to observe them. However, the halakhah does not demand that a convert commit to observing all of the mitzvot, but rather only to understand that he or she is responsible to observe the mitzvot.

            Rabbi Uziel also invoked Rambam’s responsum (#211, discussed in the previous chapter), where he permitted the less-than-ideal conversion of a Christian maid who had an affair with a Jewish man so that they could get married. Similarly, argued Rabbi Uziel, many circumstances in the modern period fit this less-than-ideal status, where a Bet Din must choose the lesser of the two evils.

            Rabbi Uziel also insisted that the Bet Din has a responsibility to the children of intermarried couples. If the father but not the mother is Jewish then the child is of Jewish stock, zera Yisrael, and should be converted so as to become halakhically Jewish. If the mother is Jewish, then the child is Jewish. If that child’s non-Jewish father wants to convert, the Bet Din should accept him so that the child grows up in a unified Jewish home with two Jewish parents.

Not only is the Bet Din permitted to do such a conversion, but it is obligated to do so in order to progress from a situation of intermarriage to one in which the entire family is Jewish. Rabbi Uziel stressed that the Bet Din first must attempt to break up such an intermarriage, but if it could not dissuade the couple, the conversion should take place.[7]

A prolific contemporary writer on conversion, Rabbi Chaim Amsellem, maintains that there are particular halakhic grounds for leniency where a prospective convert is of Jewish stock, zera Yisrael. He maintains that some actual religious commitment is required of a convert, but that is not tantamount to an acceptance to observe the entire Torah. Rather, commitment to have some semblance of a Shabbat and holidays, as well as a belief in one God and an abandonment of previous religious affiliations, is sufficient.[8]

Current Realities

With the creation of the State of Israel, a new identity was possible as people living in Israel could cast their lot with the fate of the Jewish people, without adopting any meaningful religious lifestyle.[9] Ashkenazic Chief Rabbis Yitzhak Herzog and Isser Zalman Unterman both maintained stringent policies for conversions that occur outside of Israel. However, they believed that if an intermarried couple wanted to convert to make aliyah under the Law of Return, and it was safe to live in the country where they currently resided (so that they did not have the ulterior motive of converting to attain physical safety by moving to Israel), then their adoption of the Zionist dream is to be considered casting their lot with the Jewish people.[10]

With hundreds of thousands of people from the former Soviet Union living in Israel today who are not halakhically Jewish, several religious Zionist rabbis maintain that a lenient policy is required. Rabbi Yoel Bin-Nun has argued that there should be a mass conversion ceremony. Rabbi Yigal Ariel similarly maintains that their living in Israel fulfills the halakhic requirement to accept Jewish peoplehood.[11]

Similarly, the rampant rate of intermarriage throughout the Diaspora has led several rabbis to adopt the lenient ruling on conversion so that they can prevent as many instances of intermarriage as possible. These rabbis also attempt to convert the children of mixed marriages when possible.

In contrast, the restrictive position maintains that every convert must be judged on a case-by-case basis as an individual, and each one must demonstrate a full and sincere personal commitment to halakhah and Jewish belief. Without such commitment at the time of the conversion, the conversion is invalid even post-facto.

Rabbis who espouse the restrictive position maintain that a Bet Din should welcome anyone who fully accepts the Torah’s religious standards, and everyone else is better off remaining non-Jewish. People who sin through intermarriage and assimilation are not the responsibility of a Bet Din, since they brought these problems onto themselves by making sinful choices.

Summary of the Major Issues

            There is a wide range of definitions assigned to “acceptance of mitzvot,” including the following: (1) The convert agrees to fulfill the ritual of conversion, circumcision, and mikvah (Ramban, Tosafot).[12] (2) The convert must give verbal assent to observe the mitzvot (Rabbis Hayyim Ozer Grodzinski, Abraham Isaac Kook). (3) The convert needs to understand that a central aspect of Judaism is commitment to Torah and mitzvot, and Jews are held responsible by God to observe them (Rabbis Raphael Aharon ben Shimon, Benzion Uziel). (4) The convert must commit to observe all mitzvot. If, at the time of the conversion, the convert said untruthfully that he or she was committed, then the conversion is invalid even post-facto (Rabbis Yitzhak Schmelkes, Mordechai Breisch, Moshe Feinstein).[13]

            There also is debate over the meaning of conversion “for the sake of heaven”: (1) As long as there is no tangible benefit for the convert, a conversion can be considered to be for the sake of heaven. Therefore, an intermarried couple that approaches a Bet Din so that the non-Jewish partner can convert is accepted, since they already are living as a married couple. (2) Some concede that such conversions are less than ideal, but it remains good policy for the Bet Din to accept such converts to avoid the greater evils of intermarriage, mixed-religion households, and to keep the children of intermarriages closer to the Torah. (3) Conversion for the sake of Heaven requires a full and sincere commitment to God, the Torah, and mitzvah observance.[14]

            There is a fundamental debate regarding the obligation of a Bet Din toward sinners: If the more lenient positions are a compromise with pure halakhah (which they may not be, as we have seen), is it the obligation of the Bet Din to bend the rules to accept the lesser of two evils, or does the Bet Din have no obligation to compromise?

            Intertwined with the purely halakhic debates is a disagreement over the best public policy. Granting that there are strong halakhic opinions on both sides of this debate, what policy best serves the Jewish people? Do hundreds of thousands of people of Jewish stock from the former Soviet Union living in Israel who fight in the Israeli armed forces and marry other born Jews; or the countless couples who either are intermarried or will intermarry, and the children of intermarriages, require the Bet Din to be proactive and as inclusive as possible? Or is it preferable for a Bet Din to be as restrictive as possible toward those who do not fully adopt the ideal beliefs and observant lifestyle of the Torah?

            To summarize, the permissive side has two dimensions: (1) The classical halakhic sources support the permissive side. (2) The classical halakhic sources may not fully support the permissive side at the level of ideal halakhah, but we live in an age where halakhic compromise is preferable to the greater problems that arise by not performing the conversions. The restrictive side, in contrast, insists that the classical halakhic sources do not support the permissive side, and that a Bet Din should not bend any rules to help sinners.

Tragic Recent Development: The Possibility of Annulling a Conversion

Toward the end of the twentieth century, a radical new development took place, as several rabbis began to insist that a conversion can be revoked at any time if the convert demonstrates a lack of halakhic observance.[15] This innovative ruling led to a series of truly dreadful events. In 2006, then Sephardic Chief Rabbi of Israel Shlomo Amar declared that he rejected most Orthodox conversions from abroad. In 2008, Rabbi Avraham Sherman of Israel’s Rabbinical High Court cast doubt on thousands of conversions performed by Rabbi Haim Drukman, who had been the head of the State Conversion Authority in Israel. He also declared Rabbi Drukman to be invalid to serve as a rabbinical judge since Rabbi Drukman disagreed with what Rabbi Sherman maintained was the accepted position in halakhah. In 2009, then Ashkenazic Chief Rabbi of Israel Yona Metzger supported Rabbi Sherman, and insisted that Israel’s Chief Rabbinate has the power to annul any conversion.[16]

The besmirching of the good names of righteous judges who performed the conversions, and the horrific anguish brought upon halakhic converts and their children who are fully and irrevocably Jewish, are absolutely unacceptable. The Talmud debates whether one who oppresses the convert violates 3, 36, or 46 Torah laws (Bava Metzia 59b). Rabbi Yosef Zvi Rimon condemns Rabbi Sherman’s sinful conduct of disqualifying Rabbi Drukman and his court:

Rabbi Haim Drukman is a God-fearing and righteous man. Disagreeing with his judgment is one thing; disqualifying him from being a judge—or even a good Jew, since conversion overseen by three observant Jews is valid—is intolerable. Rabbi Aharon Lichtenstein…intimated that Rabbi Sherman’s comments about Rabbi Drukman is a transgression of Torah prohibitions relating to bein adam l’haveiro [interpersonal relationships], which disqualifies him from testifying or serving as a dayan [rabbinical judge].[17]

Returning to the genuine principled debate, rabbis who insist on the restrictive position recognize that many leading halakhists maintain positions against their own.[18] Therefore, they should grant legitimacy post-facto to conversions performed by Orthodox Batei Din who follow the permissive opinions. All converts need to know that once they convert through an Orthodox Bet Din, they are irreversibly Jewish and nobody ever can take that Jewishness away from them or from their children.[19]

The religious establishment is obligated to address cases of intermarriage, children of intermarriages, and people of Jewish ancestry. While halakhists must determine the proper halakhic ruling and policy, it is clear that both sides have great halakhic decisors and strong arguments to support them. The key to Jewish unity, then, is for Batei Din to recognize the rulings of others who follow different halakhic opinions, even when they vigorously disagree with their positions.

            There are fewer people more courageous and beloved than adult converts, who enter under the wings of the Shekhinah, transforming their identity, and identifying with the Jewish people.[20]

            One Midrash states this point beautifully:

God greatly loves the proselytes. To what may this be compared? To a king who had a flock [of sheep and goats].... Once, a deer came in with the flock. He associated with the goats and grazed with them…. The king was told: “A certain deer has joined the flock, and is grazing with them every day.” The king loved him. When he went out into the field, the king gave orders: “Let him have good pasture as he likes; no man shall beat him; take care of him!”… They said to him: “Master! You have so many rams, so many sheep, so many kids—and you say nothing to us about them; but with regard to this deer you instruct us every day!” The king said to them: “The sheep, whether they want to or not, such is their way: to graze in the field all day…. The deer sleep in the desert, and it is not their way to enter into human settlements. Should we not be grateful to this one, who abandoned all the great wide desert where all the animals live, and came to be in our yard?” Similarly, should we not be grateful to the proselyte, who abandoned his family and father’s home and left his people and all peoples of the world, and came to be with us? (Numbers Rabbah 8:2)

Review Article by Rabbi Marc D. Angel

In 2006, Oxford University Press published a book by Chris Lowney, “A Vanished World: Muslims, Christians, and Jews in Medieval Spain.” The author asked me to write a blurb, and it was included on the back cover of the book. Here is what I wrote:

“Chris Lowney has written a meaningful book about interfaith cooperation and interfaith antagonism in medieval Spain. While it points to the many failures of those days, it also suggests important triumphs of the human spirit. Can we learn from this story and shape a better, more harmonious world? Can we afford not to learn from this story?”

An underlying theme of Lowney’s book, like so many publications dealing with Islamic Spain, is that Jews and Christians fared reasonably well under enlightened Islamic rule. While life was not always perfect, it was much better for religious minorities in Islamic Spain than in Christian Europe.

Historians refer to a “Golden Age” for Jews of Spain. The Wiki Encyclopedia entry for the Golden Age states: “The nature and length of this ‘Golden Age’ has been a subject of much debate, as there were at least three Golden Ages interrupted by periods of oppression of Jews and non-Jews. A few scholars give the start of the Golden Age as 711–718, the Muslim conquest of Iberia. Others date it from 912, under the rule of Abd-ar-Rahman III. The end of the age is variously given as 1031, when the Caliphate of Cordoba ended, 1066, the date of the Granada massacre, 1090, when the Almoravides invaded, or the mid-12th century, when the Almohades invaded.”

Many authors laud “convivencia”—the generally peaceful co-existence in Medieval Spain that allowed Muslims, Christians and Jews to live in harmony. It is clear that Jewish culture blossomed in Islamic Spain, with the emergence of great poets, grammarians, Bible scholars, talmudists, philosophers, scientists, mathematicians and more.

The blurb I wrote for Chris Lowney’s book reflects my doubts about the extent of Islamic tolerance of Jews and Christians. I wanted to be sure to mention that interfaith antagonism existed and that there were lapses in tolerance. But I also indicated that there were important triumphs of the human spirit, and that we today can learn much of value for maintaining a convivencia in our own times, a respectful and mutually beneficial harmony among people of various religions.

I was right about the failures that occurred under Islamic Spain. But was I right in pointing to that era as a positive model for religious co-existence? Was I too optimistic? Was I engaging in wishful thinking? Was I influenced by the overwhelming praise, by many authors and teachers, of the tolerance of Islamic Spain, and by the ubiquitous lauding of convivencia?

These questions have come to mind as I’ve been reading a newly published book, “The Myth of the Andalusian Paradise: Muslims, Christians, and Jews under Islamic Rule in Medieval Spain,” by Dario Fernandez-Morera, (ISI Books, Wilmington, 2016). The author is Associate Professor in the Department of Spanish and Portuguese at Northwestern University.

While various scholars have pointed to problems and low points during Islamic rule in Spain, Dr. Fernandez-Morera goes much further. His bold argument is that the notion of Islamic tolerance of Jews and Christians is a myth—it is simply not true. The idea of convivencia—the mutual cooperation and harmony among Muslims, Christians and Jews in Medieval Spain—belongs more to the realm of propaganda than to history.

The author quotes numerous scholars who shower praise on Islamic tolerance, on the remarkable “Golden Age” in interreligious cooperation. But he argues that these authors were engaging in “political correctness,” the fashionable presentation of a tolerant and benevolent Islam. He draws on writings of people who lived in Islamic Spain, people who described what life was actually like in their times. He draws on extensive scholarly sources, on archaeological discoveries, as well as on the abundant secondary literature of more recent scholars.

Dr. Fernandez-Morera notes that the famed Umayyad dynasty were followers of the Maliki school of Islam which had little love for non-Muslims. The early Muslim conquerors of Spain and their successors systematically razed churches or turned them into Mosques. They imposed Islamic law on Christians and Jews—known as People of the Book—which made it very clear that the minorities were to be subservient to Muslims. Although granted relative freedom to conduct their communities according to their own religious traditions, Christians and Jews were “dhimmis”—an underclass of “protected people” who had to pay a special tax for the privilege of living under Islamic hegemony.

Dr. Fernandez-Morera writes: “In short, Islamic Spain enjoyed no harmonious convivencia; rather, Muslims, Christians, and Jews had a precarious coexistence. Members of the three communities had to come into contact now and then. Sometimes they did business, or collaborated with one another, or dwelled near one another.” (p. 117) Of course, as in all societies, kinder people interacted more kindly with those of the other groups. And of course, there are examples of periods of relative quiet. And there were individual Jews and Christians who rose to positions of power and influence. Nonetheless, the massive reality was that “dhimmis” were subject to ongoing humiliation, segregation, and violence.

The “dhimmi” regulations imposed a special tax on Christians and Jews. Various rules were intended to humiliate “dhimmis” and remind them of their subservient positions. Writing about restrictions placed on Jews in Islamic Spain, Dr. Fernandez-Morera notes that Jews “must not ride horses. They must show deference to Muslims. They must not give court evidence against a Muslim…They must not proselytize….They must not dress in such an ostentatious manner as to offend poorer Muslims….” (p. 180)

While Jewish communities continued to exist in Islamic Spain, Christian communities declined and ultimately disappeared. “By the end of the twelfth century, as a result of flight (or ‘migration’) to Christian lands, expulsions to North Africa, executions and conversions, the Christian "dhimmi" population had largely disappeared from al-Andalus. When Christians entered Granada in 1492, there were no Christian "dhimmis" in the city.” (p. 208).

Professor Fernandez-Morera’s book has a clear point of view. He is especially interested in highlighting the strengths and virtues of Visigothic Spain before the arrival of the Muslims in 711. He praises the Christian re-conquest of Spain. Had it not been for the “Reconquista,” Islamic rule might not only have prevailed over all of Spain, but might have spread further into Europe. This would have led to the fostering of religious discrimination, the low status of women, the inhibiting of intellectual freedom; it would have precluded the emergence of the Renaissance, and would have left the Western world in the same general condition as the rest of the Muslim world.

While some of the arguments of Dr. Fernandez-Morera seem over-stretched and even polemical, the overall impact of his research and his book must make one stop to think more carefully about the “Andalusian Paradise” and convivencia. Are scholars and politicians perpetuating this myth because it serves a useful purpose, because they—and we—want to believe it? How nice it would be to know that there was a time and place when Muslims, Christians and Jews worked side by side in mutual respect and kindness. How nice to think that it is possible for Islamic rule to be tolerant and benevolent.

President Barack Obama, in a speech at Cairo University, June 4, 2009, stated: “Islam has a proud tradition of tolerance. We see it in the history of Andalusia and Cordoba during the Inquisition [sic].” Prime Minister Tony Blair wrote (“Foreign Affairs, January/February 2007): “The standard-bearers of tolerance in the early Middle Ages were far more likely to be found in Muslim lands than in Christian ones.”

These politicians, relying on wishful and mythological thinking, seek to appease the Muslim countries and to glorify Muslim achievements. Perhaps they think they will thereby convince current day Muslim leaders to embrace the myth of Islamic tolerance, thereby creating bridges between the Muslim world and the West.

Dr. Fernandez-Morera has pointed to the unpleasant and politically incorrect reality that Muslim rule was “tolerant” to Christians and Jews, but only if the "dhimmis" were in a clearly defined inferior position, subservient to Muslims. This is hardly a framework for mutual respect and equal rights.

When I wrote my blurb for Chris Lowney’s book, I wondered: “Can we learn from this story and shape a better, more harmonious world? Can we afford not to learn from this story?” When I wrote those words, I obviously harbored the belief—the hope—that there was a period of convivencia that can be a model for us today. I thought that it would be foolish for us to ignore the positive aspects of life in Medieval Spain.

After reading Dario Fernandez-Morera’s book, I could write these same words, but with a very different meaning. Rephrased, my blurb for today would read: Can we learn from the story of religious persecution and humiliation that characterized Islamic Spain? Can we learn to shape a better, more harmonious world by insisting on genuine respect, equality, decency, and theological humility among all religions? Can we afford not to learn these lessons?

On December 10, 1966 Shmuel Yosef Agnon, the great Israeli Hebrew writer, delivered a speech at the Nobel banquet on the occasion of his having been awarded the Nobel Prize for Literature. Quoting from the Bible, the Jewish Prayer book and rabbinic tradition, Agnon was as clear as possible that he was a Jew, a faithful Jew steeped in Judaism. He pointed out the dilemma of the Jewish People living centuries in Exile, and now struggling to find their way back to their ancient homeland in Israel.  “As a result of the historic catastrophe in which Titus of Rome destroyed Jerusalem, and Israel was exiled from its land, I was born in one of the cities of the Exile. But always I regarded myself as one who was born in Jerusalem.” As he concluded his remarks, he said: “If I am proud of anything, it is that I have been granted the privilege of living in the land which God promised our forefathers to give us.”

Agnon (1887-1970) was born in Buczacz, then part of the Austro-Hungarian Empire, now Buchach, Ukraine. His original family name was Czaczkes. In 1908 he emigrated to Jaffa in the land of Israel. In 1913 he moved to Germany where he married Esther Marx; they had two children. The businessman and publisher, Salman Schocken, became Agnon’s literary patron and freed him from financial worries. In 1924, a fire broke out in Agnon’s home, destroying his manuscripts and library. Shortly thereafter he and his family moved to Jerusalem where he continued his career as a prolific Hebrew writer.

Agnon’s work is laced with biblical and Talmudic passages. His stories and novels did not always have powerful or complicated plots; rather, it was his style of writing that engages the reader. He is calm, wise, gentle. He tells his stories as though he is talking to you in his living room over a cup of tea, without pretensions or pomposity. The reader comes to see Agnon as an older, wiser friend…someone whose memories and thoughts have weight.

In his book, A City in its Fullness, he offers a nostalgic account of the town in which he was born and raised. His stories were about “former days, when the town stood in peace.” Agnon comments: “I was able to tell the things calmly and not in sorrow, and one would not have known from my voice what had happened to my town—that all the Jews in it had been killed. The Holy One, blessed be He, has been gracious to Israel: even when we remember the greatness and glory of bygone days, our soul does not leave us out of sorrow and longing. Thus a man like me can talk about the past, and his soul doesn’t pass out of him as he speaks” (p. 10).

There is irony in his words. He notes that all the Jews of the town were murdered, but then refers to the graciousness of the Holy One, blessed be He! How was the Almighty “gracious to Israel?” He lets them recount the past, including the tragedies, without dying of sorrow! Is Agnon speaking piously, in profound resignation to the will of God? Or is he mocking the notion of God’s being “gracious to Israel?”  Agnon was indeed a religious man; but he was not at peace with God’s treatment of the Jews.

 In spite of their sufferings in Buczacz, the Jews loved their birthplace. But after World War I, life became increasingly unbearable. Poverty was rampant. The government made constant decrees to the detriment of the Jews. “The old took comfort in the fact that they would soon die and not much longer have to endure their afflictions; they would be buried in the city where their ancestors were buried. The young looked toward the four corners of the earth for a place where they would be allowed to live. And the fewest of these few prepared to emigrate to the Land of Israel in order to work its land and to establish for themselves and their descendants a haven where they could be free of the yoke of Exile, which has been Israel’s burden since the day it left its land. Meanwhile, each saw himself living in the land of his birth as but a guest for the night” (pp. 560-61). This was the eternal Jewish dilemma—to be living in places of Exile for generations but always feeling as strangers. Agnon saw the return to the Jewish homeland in Israel as the key to Jews finally feeling really at home in the world.

In his book, A Guest for the Night, he describes having returned to his old town in Europe, that was now in terrible straits after the first World War. “I went to the Beit Midrash and stood before the locked door. Many thoughts passed through my mind in a short time, and this is one of them: the Beit Midrash still exists, but I am standing outside, because I have lost the key and cannot get in” (p. 83). He found a locksmith to make a new key for the Beit Midrash. He hired someone to keep the fire burning in the fireplace so that the place was warm. Slowly, men began to gather again in the Beit Midrash, if only to stay warm on cold winter days. The Jews had been living in this town for generations; the Beit Midrash was coming back to life.

And yet, this was still the Exile. The authorities had the power to oppress the Jews, even to expel them. “I was born in this town and spent most of my youth here—but an official, who was not born here and has done nothing here but enjoy the best the town can give, may come along and tell me: Go, you belong to another country and you have no permission to stay with us. I thought of my forefathers, whose bones are interred in the town’s graveyard….I thought of my other relatives who had bestowed many benefits on the townsfolk—and now the authorities, who inherited all these benefits, could come and expel me from the town” (p. 110).

When he ultimately returned to the land of Israel, he had inadvertently also brought a key to the Beit Midrash with him. He put the key in a box and locked it; he made a necklace and wore it around his neck. He recalled the Midrash that in messianic days, the synagogues and study halls of the diaspora will be miraculously transported to the holy land of Israel. But when will the messiah bring this redemption?  The key “is made of iron and brass, and it can wait, but I, who am flesh and blood, find it hard to endure” (pp. 508-9).

Agnon wonders about the sense of security felt by some Jews living outside the holy land. He tells the story of Mr. Lublin who lived in Leipzig and became a German citizen. Mr. Lublin wasn’t particularly observant religiously, and worked hard in his store to make a living and be a good citizen. Mr. Lublin believed that “Germany sees that all of us, all Germany’s Jewish citizens, sacrifice our children and our wealth for its war against the enemy, and is it possible that after all this they will still deprive us of our rights? Isn’t this so? Why are you looking at me like that?” (In Mr. Lublin’s Store, p.189). Why? Because the narrator (Agnon) thought Mr. Lublin was naïve to trust that the Germans would actually treat Jews fairly, as loyal citizens. No matter how many sacrifices Jews made on behalf of Germany, they were still always going to be victims, always strangers, always mistrusted. Exile was exile. Period.

Agnon has a particular nostalgia for authentic prayer. In his story “Hemdat the Cantor,” he describes how Hemdat ascended the prayer desk on the night of Yom Kippur. “And when he came to the pulpit he gripped it with his two hands, and cried out “’Oi!’ As if it were all-devouring fire. A sudden awe fell upon the entire congregation and all rose and stood and trembled….Hemdat raised his head, his eyes closed and compressed, groping in the air, his eyeglasses swimming in tears….He covered his face with his tallit down to his heart, and he began to give voice, every time in a melody sweeter than the last. Then I understood what Father meant when he said, He who has heard the Kol Nidrei of Hemdat, knows what Kol Nidrei is” (p. 58). The people were uplifted by Hemdat’s prayers. “For Hemdat prayed in awe and fear and feeling and with a broken heart, for Israel the holy nation, who sought to return to Him with a whole heart” (p. 59).

In reminiscing about his hometown of Buczacz, he tells of a man who recited the Musaf and gave him “a real taste of prayer.” The prayer leader had a pleasant voice, but “it wasn’t a voice we heard; it was prayer” (p. 100). The heartfelt longing and yearning of sincere prayer was what inspired Agnon. He was not impressed with external shows of praying, but with actual reaching out to God. In his book, To This Day, he quotes a woman: “’An intellectual’”, she said, ‘is someone who can recite Psalms without tears.’ I couldn’t have put it any better myself” (p. 53).

Agnon was prayerful, even as he realized that he was living in an unredeemed world, where God’s mercy was not always evident. He named one of his books To This Day “in the language of thanksgiving for the past and of prayer for the future. As it says in the Sabbath morning service: To this day have Thy mercies availed us and Thy kindness not failed us, O Lord our God. And mayst Thou never abandon us ever” (p. 175).

Agnon’s writings are sprinkled with wise insights that invite us to ponder his words. In describing a young man who rediscovered the Hebrew language and his connection with the land of Israel, Agnon writes: “he is meticulous with language and meticulous in all his actions. His hair is wild, but his thoughts are orderly. His clothes are in tatters, but his soul is intact” (Shira, p. 176). In his short story, “The Night,” he notes: “But there are guests who come no matter how tightly one’s door is shut, as they are the thoughts surrounding our actions.” And in his story “Between Two Towns” he meditates: “The good Lord created a vast world, with many people in it whom He scattered wide, giving each place its singular quality and endowing every man with singular wisdom. You leave home and meet people from another place, and your mind is expanded by what you hear.” 

And poignantly, he writes of “two Austrians who meet outside of town and one says to the other, ‘where are you going? And the other replies, ‘I’m off to the forest to be alone.’ ‘Why, I also want to be alone,’ exclaims the first. ‘Let’s go together’” (“In the Prime of Her Life”). This might serve as Agnon’s invitation to readers: I want to be alone, but I want you to come along with me so we can be alone together.  

R. David Weiss Halivni [1927-2022] was not just a gadol ha-dor, a great sage of our generation, but he was a gadol ha-dorot, a Torah scholar whose impact will likely transcend his own time and culture horizon. Best known for his breathtakingly monumental Meqorot u-Mesorot [Sources and Traditions], his multi-volume, academic commentary on the Babylonian Talmud, R. Halivni has also written monographs on the Holocaust,^[i] the difference between the plain or originalist sense of the canonical Torah and how the Torah was subsequently understood by the Oral Torah library,^[ii] and the challenge that Bible Criticism poses for the Judaism of Tradition that is identified as “Orthodox.”^[iii]

R. Halivni most significant finding relates to the teaching that Ravina I and R.  Ashi were the last rabbis to be authorized to issue hora’ah,^[iv] or apodictic legislation. Contrary to traditional belief, R. Halivni argues that they were not the actual editors or compilers of the Babylonian Talmud.  Instead, R. Halivni maintains that the Babylonian Talmud was not formally edited,^[v]  but emerged out of the literary and exegetical work of the stamma’im, whose anonymous, Aramaic, casuistic, clarifying discourse expanded and reconstructed the historically earlier Hebrew, apodictic, Amoraic teachings they inherited.^[vi] 

My first connection with R. Halivni goes back to 1968. At R. Halivni’s son, Baruch’s, bar mitsvah at the Jewish Theological Seminary’s [henceforth, JTS] Synagogue, the 13 year old prodigy delivered a discourse on the propriety of wearing tefillin on the intermediate festival days.  As a first year student at the JTS’s Rabbinical School, I understood nothing of Baruch’s presentation, a most humbling experience.

Only JTS’s most talented, Talmudically proficient, entering rabbinical students were assigned to R. Halivni’s class, and I was not an appropriate candidate for that placement. In 1970, Hakham Prof. Jose Faur became my major Torah mentor [rav muvhaq] and at the time I was busy with Judaic studies at JTS and Ph.D. coursework in modern Hebrew literature at NYU. Although not his student, R. Halivni took a personal interest in me. At the senior Rabbinical School dinner of 1973, R. Halivni reminded the graduating students that their mission is to spread Torah observance and learning, not to preach about social action, civil rights, interfaith dialogue, or partisan party politics.  And when R. Halivni teasingly proclaimed that “rabbis ought not to waste their pulpit time and opportunities on book reviews,” his eyes were fixed on me, being trained at JTS to be a Rabbi and at NYU to be a reviewer of Hebrew books.^[vii]

When the JTS voted to accept women to its Rabbinical School by faculty vote, some Halakhically committed rabbis and laypeople then seceded from the Conservative Movement^[viii] and formed what eventually became the Union for Traditional Judaism, the American UTJ,^[ix] with R. Halivni at its helm as its spiritual guide.

The UTJ established a rabbinical ordination program under R. Halivni’s direction, named The Metivta le-Limmudei ha-Yahadut, which in English is  rendered “The  Institute   for Traditional Judaism,” or the  ITJ. The Hebrew/Aramaic name affirmed that the institution is a metivta, a traditional Yeshiva committed to advocating and advancing the Judaism encoded in the classical Halakhah, that applies academic tools to parse and decode Judaism’s sacred library.  In 1991, I was appointed to the ITJ faculty to teach Bible, Hebrew, Aramaic, and Shulhan  ‘Arukh Yoreh De’ah Issur ve-Heter, the  kashrut laws that are the subject of the Orthodox Rabbinical ordination examination.

At the time, I was planning aliyyah and was advised by Rabbi Shlomo Riskin to acquire the Yadin Yadin ordination.^[x] R. Halivni graciously agreed to supervise my Yadin Yadin studies, which was daunting, challenging, and thrilling. And as the Reish Metivta, the head of the school, R. Halivni also became my boss, who would examine and evaluate the Issur ve-Heter students whom I was assigned to prepare.

R.  Halivni’s JTS students were advanced academic Talmudists who learned how the Oral Torah literary canon came into being. And at JTS, R. Halivni was rightly honored as an academic professor; at the ITJ, he was cherished both for his immense learning and his profoundly religious character, example, and consistent moral excellence. At the UTJ/ITJ, R. Halivni provided religious as well as academic leadership.

My mission at the UTJ was also only partially academic.  Studying Halakhic compendia^[xi] like the Shulhan ‘Arukh in order to prescribe appropriate behavior is a normative enterprise with religious as well as academic significance.  In point of fact, there are actually no official, Bet Din ha-Gadol approved codices in Jewish Law.  Both Maimonides’  Yad and Maran Yosef Karo’s  Shulhan ‘Arukh  are  resource compendia and as such are neither the last nor only word in Jewish Law. R. Halivni’s logical mind forced me to appreciate the dynamic taxonomy of the Halakhah, and he expected those who earned his ordination to think logically as well. 

All but my first farher [traditional oral examination] took place at the Hebrew University Giv’at Ram campus Jewish studies reading rooms of the Israel National Library. R. Halivni’s unofficial but permanent library seat [maqom qavu’a] was at the right side end seat of the first reader’s row of tables, with a small reference library placed neatly before him. This scene recalled his JTS office, where R. Halivni formerly said his shi’ur to his small cadre of advanced students. The walls were lined with both sefarim and books, tomes of sacred as well as secular writings,^[xii] in elegant order, meticulously and logically arranged, all to aid in the search for the Torah’s meaning. R. Halivni’s JTS office was a miniature bet midrash, a statement of sacred subversion,^[xiii] an island of order and purpose in an ocean of chaotic disorder, a world where there is no apparent Judge or judgment.^[xiv] At  Hebrew University’s Giv’at Ram library, R. Halivni was not hidden behind an office door; he naturally assumed the role of informal shoeil u-meshiv, the reference resource person of the bet midrash. In the traditional bet midrash, the shoeil u-meshiv must be conversant with the Babylonian Talmud, the major early commentaries [Rishonim], Maimonides’ Yad compendium, and the Shulhan ‘Arukh with its commentaries. At the large Giv’at Ram Judaica reading room, R. Halivni not only exhibited total control of the entire Rabbinic corpus, occasionally playfully employing the “Brisk”/”analytic” approach, which he did not teach,  as  well as the academic/critical method that he adopted, because he believed that method leads to truth. R. Halivni was also well informed in all fields of academic Judaica. Simply put, undergraduate students, doctoral candidates, and tenured professors all sought out R. Halivni’s memory, expertise, guidance, wisdom, and generosity.

In addition to dispensing information to everyone who asked him for help, R. Halivni also communicated friendship, warmth and personal concern.^[xv]  Like his leadership role at the ITJ, at the National Library the professor was also a rebbe. R. Halivni loved  people  because he loved the Torah that requires that the Jew love one’s compatriot with intensity.^[xvi] R. Halivni’s ethical deportment and personal warmth generated an atmosphere where secular, academic monographs wafted the scent of sefarim, because they became volumes that make Torah more readable, understandable, and applicable.

R. Halivni also”presided” over the National Library minhah minyan at the campus library.  It would not possibly occur to R. Halivni to seek this unofficial position of honor; the Jewish Studies Library’s attendees saw in R. Halivni an individual who was at once a giant in Torah, a master of academic Judaica, and a model of ethical excellence.^[xvii] R. Halivni’s interactions with others provided both academic enlightenment as well as a spiritual thrill to everyone who sought his presence. After the daily minhah minyan and just before our scheduled farher, I asked R. Halivni “why at this minyan is the ‘amidah not repeated, as the repetition is required by an explicit Rabbinic norm?”^[xviii]  Pleased that the question was raised, R. Halivni responded, “while one should take the time to say the minhah prayers, the salaried librarians would be stealing time work from their employer, the National Library, were the ‘amidah to be repeated.”  

The quality attention that R. Halivni gave to all comers at the National Library was the same care that he provided to the American UTJ and its Metivta, and it was same care he gave to me, his Yadin Yadin student. R. Halivni provided me with a tutorial in his approach to normative, prescriptive Jewish law. At one session R. Halivni posed the question, “why do we study Torah?” I answered “because it is a mitsvah.” He responded,  
”the ‘Litvaks’ study Torah for the sake of Torah; I study Torah in order to know how to behave.   Torah study is equal to all the other commandments because Torah study shows us how to observe the other commandments.”^[xix] I understood him to be saying that proper Torah study is simultaneously a commandment in its own right and also an exercise in ‘avodah, or prayer.   R. Halivni could play at thinking like a Litvak, but his personal religious synthesis remained Hassidic.

Two-thirds of R. Halivni’s two hour farher sessions examined my control of the material assigned for that year’s test, and the last third was a  conversation in learning during which R. Halivni spoke to me as a peer, and not as a novice. He was challenging me to formulate my own Halakhic hermeneutic, and to apply an appropriate jurisprudential methodology.^[xx]

My very first farher covered the Laws of Judges and the Laws of Testimony.  Focusing on Hoshen Mishpat 34. R. Halivni opened with “what is at stake in  the Laws of Testimony?” I answered with guarded hesitation, “we  are dealing with a matter of  personal status, whether someone is a tsaddiq, a righteous Jew with  proper communal standing upon whose word in court the community may rely, or a rash’a, a wicked  person whose  behavior  does  not  conform  to Jewish Law.”^[xxi] Jewish Law here defines the parameters of Halakhic pluralism. If a person buries one’s dead on the first Festival day mistakenly believing that there is an obligation to bury one’s dead on the first Festival day,^[xxii] that person does not necessarily lose one’s bona fides.^[xxiii] Similarly, charging and collecting interest by lending capital from the orphans’ estate does not automatically disqualify the offender, who may mistakenly reason that taking interest in order to grow the orphans’ estate is a worthy act.^[xxiv]  Those who trespass rules that are not well known must be informed of their error before their bona fides are disqualified, because everyone is entitled to a generous benefit of the doubt assessment.^[xxv]  We should not jump to hasty, negative conclusions.^[xxvi] The “other” might be correct; we have the right to think for ourselves.^[xxvii]  R. Halivni was pleased, and again, I was extremely relieved.

Since part of my Metivta teaching responsibility was to prepare the   ITJ rabbinical students for R.  Halivni’s test on Issur ve-Heter, R. Halivni required that I be re-examined by him on that material as well, in order to  ascertain that I was preparing my Issur ve-Heter students adequately, that they mastered the assigned material to R. Halivni’s standards. R. Halivni was teaching me how as well as what to teach our students.  R. Halivni’s conversations in learning with me were, retrospectively, the programming of my Halakhic thinking with his particular perspective regarding the Halakhic Tradition. He was well aware of my talmid muvhaq relationship with his own close friend and professional colleague, Hakham Faur, and was also pleased that I was exposed to the Halakhic system of Rabbis Moshe Feinstein and Moshe Tendler. Rather than impose his template on me, R. Halivni encouraged me to develop my own system, and to be a Rebbe as well as a Rav, with a heart as well as a mind.

After studying and being tested on the laws of damages, R. Halivni inquired about my secular education.  I had majored as an undergraduate in Philosophy, in order to get a handle on the Western mind and thought. R. Halivni then went into personal mode, confessing that is exactly why he studied Philosophy for his B.A. at Brooklyn College and earned his M.A. at NYU, also in Philosophy, and especially to master Logic and Legal Theory, in order to learn Torah more effectively. Jurisprudence teaches how law is applied; logic reveals the Law’s coherency.  R. Halivni then asked me if I had done any reading in legal theory and, if so, who was my favorite legal theorist.  Hakham Faur also applied legal theory in his Halakhah classes at JTS and I had discovered Hans Kelsen’s “Pure Theory of Law,” whose Legal Positivism was anticipated by Maimonides’ Yad compendium.^[xxviii] According to this  approach, a legal order is a hierarchy of legislated norms, the validity of which  are conditioned by [1] being properly legislated and [2] their not contradicting  higher grade norms.^[xxix] R. Halivni then told me that had I not studied legal philosophy, he would have required me to do readings in the field.^[xxx]

The issue of legal theory arose again when R. Halivni and I were at a UTJ conference in Teaneck, N.J., and a buffet   luncheon was served.  At that moment I was speaking to a lawyer and UTJ leader, Mr. Doug Aronin.  I told him that we may not eat in the UTJ’s Orthodox synagogue sanctuary^[xxxi] because the Oral Torah regards that eating and/or drinking in a designated,   sanctified prayer room to be an act of levity, and is therefore forbidden by an explicit Halakhic norm.^[xxxii] Taking understandable offense for what he took to be a slight and insult to our teacher and spiritual guide, by being stricter than R. Halivni, Mr. Aronin went out of his way to bring our teacher to challenge me to explain why I should not eat in the UTJ’s synagogue sanctuary. After citing the source of the law, R. Halivni replied that Diaspora synagogues are built on condition, because they will be abandoned when the Messiah arrives. I countered that when Diaspora synagogues are in good repair, the qallut rosh restrictions remain in force.^[xxxiii] R. Halivni said, “nu nu, Hassidim are lenient on this issue.” While here R. Halivni revealed that he decided cases as a Legal Realist,^[xxxiv] which also explains Hassidic antinomianism,^[xxxv] he never ever hinted that I should abandon my more mechanical Legal Positivism.

After surviving R.  Halivni’s  farher on Issur  ve-Heter, R. Halivni then told me that logically, we really should first study the laws of mixtures [ta’arovot], and only after mastering the legal principles of mixtures would it be logical to apply the principles of mixtures in general to the rules of salting meat and the legal status of milk  and meat mixtures.  He then asked, “why am I assigning you to learn the Passover kosher laws for next year’s examination? Why do I make this assignment now?” My answer was “we apply the logic of the mixtures rules to the contaminating hamets.” R. Halivni’s logical mind was beginning to shape how I think.

R. Halivni’s assignment of Even ha-‘Ezer 17, the laws of the “’agunah,” the “chained woman”  who is legally married to a man who is either unable or unwilling to commission the writing of the writ of divorce, came with a research  question,  “how are we able to free the agunah?”  He then confided to me that he earned his own Yadin Yadin ordination when he was 15 years old in order to permit Holocaust agunot widows to remarry and resume their lives after World War II. We discussed the case of a woman for whom two witnesses testified that her husband had died, a bet din gave her permission to remarry, which she did,^[xxxvi] yet both Maimonides^[xxxvii] and R. Ovadiah of Bartenora^[xxxviii]  ruled according to the flow of the Bavli^[xxxix] determined that should her first husband reappear alive and well, they forbid the woman to both men, even if the bet din permitted the woman remarry on the basis of two properly vetted witnesses.^[xl]  In order to defend what my intuition deemed to be morally appropriate in the case, I suggested that we consider and apply R. Halivni’s suggested approach to Talmud to Jewish law.  Maimonides and R. Ovadiah rule, understandably, according to the conclusion of the stam, the post-Amoraic, post-hora’ah level of Talmudic text tradition.  On the other hand, R. Moses Isserles decided that if the woman acted according to the good faith direction of the bet din, even if the bet din made an honest error in permitting the woman to remarry, the horrible sanction that she be forbidden to both men ought not to apply to her.^[xli]  And the Amora Rav, whose legal opinions do carry canonical, Oral Torah valence, ruled that a woman who remarries on the basis of two witnesses has done nothing improper and should therefore not suffer any sanction or penalty. While the stam suggests that we cannot ignore the actual, factual reappearance of her first husband, mistakenly thought to be deceased, Rav implies that the Bet Din is indeed empowered to create legal facts that may contradict empirical facts, a legal strategy that might be applied in emergency situations [she’at ha-dohaq].^[xlii]

Some Orthodox voices are troubled by this approach because it calls the reliability of the Rabbis who formulated the Oral Torah documents into question.^[xliii] The Talmudic Rabbis possessed legal authority, not intellectual inerrancy. The tractate Horayyot deals with the possibility that people in authority may make mistakes. By identifying rulings which, on literary grounds may post-date Rav  Ashi, we may rely on authorities, like R. Isserles, who appears, at first glance, to be ruling against the Talmudic norm. The Talmud’s norms are “ought” statements called prescriptions and are on that basis mandatory; Talmudic descriptions are [a] acts of telling, narratives, in Hebrew, Agadah, which are as a matter of Law not legally binding because they are not commands by dint of their syntax, and [b] are subject to empirical review and revision because they are descriptions and not descriptions. I am unaware of any Orthodox rabbi who requires the application of Talmudic medicine as opposed to modern medical science in our time.

Curiously, R. Halivni's application to the JTS’s Rabbinical School was almost rejected by its Admissions Committee because R. Halivni did not project the “image” of the “successful” Conservative rabbi.  This Conservative rabbinic ideal must be sufficiently “traditional” to register as “authentic” to the minimally informed, non-observant laity who are that Movement’s target  client population, but not so obsessively observant that one’s Judaism appears to be more intense than one’s Americanism, rendering that rabbi too parochial, “too ‘Orthodox,’” and thus alienating to their communities.  R. Halivni was thought to be so hopelessly provincial that he would be neither appreciated nor appropriate in a mid 20^th Century Conservative synagogue setting.  R. Saul Lieberman intervened, insisting that R. Halivni was to be groomed for Talmud scholarship, the enterprise for which he proved to singularly appropriate and universally appreciated, and R. Halivni was then accepted into the JTS’s Rabbinical School.  In hindsight, the JTS’s Rabbinical School’s Admissions Committee’s initial reservations regarding R. Halivni’s ability to “fit in” to the Conservative Movement as it was developing were not entirely misplaced. American Conservative Jewry was led by Rabbis  who were appropriately and unambiguously American in dress and deportment. They are also invariably well-spoken, politically and theologically liberal, and are passionately committed to accommodating Judaism to the ethnic Jewish taste culture of its client community.  R. Halivni could not meet that benchmark, as he was from and lived in other worlds.

R. Halivni’s “problem” was that he was programmed to be a “Rov,”  not a “Rabbi.” His Judaism defined his core commitments, his Torah provided the benchmarks and guidelines for  the challenges that was his to confront. This  tension, between the Jewish religious  Tradition and the militantly secular Ivy League Columbia University campus was noted by R.  Channa Lockshin Bob, who  described R. Halivni as

“a person whose sensibilities and demeanor were that of a rosh yeshiva, yet who found himself in the Department of Religion of an Ivy League university, and the implications of that setting for himself and for his students.”^[xliv] 

During one of our  farher/conversation sessions, R. Halivni confided to me that many of early Reform Judaism’s changes could be Halakhically justified. And he always stressed that Torah has to be doable and that it is not more pious to be gratuitously strict.^[xlv]

R. Halivni was also an amazing religious model.  He never spoke with the implied apodictic certainty of prophetic voice, as do some rabbis in all of the ideological streams. While well aware of his own greatness, R. Halivni remained a model of refined, ethical excellence. He always made his interlocutor feel like she or he was the center of the world by listening so very attentively to whomever his interlocutor happened to be at the moment.  While always generous with his time, R. Halivni rarely if ever said mussar/words of moral reproof and betterment.   He was a master of teaching by example. R. Halivni loved God by showing love to people, God’s creatures.   When asked by one of my ITJ students, “how really great is R. Halivni,” I suggested that

“Most if not all of us will ever be able to make that assessment, but when you hear R. Halivni speak, you observe how he respects God’s image in the other person, and when he speaks to each of you, you also become the most important person in his world at that moment. While we are unable to measure the Torah that he went through, we are able to assess the effect of the immense amount Torah went through him.”^[xlvi] 

R. Halivni’s mussar message was not “how inadequate are you now,” but “how holy are you able to become? All of us are works in progress.  Let’s be better together.”

A Rabbinical Council of America colleague recalled a sermon delivered by R. Halivni that called attention to the difference between a tashmish mitsva, an object that generates holiness by its being used in a halakhically prescribed way, like a lulav, shofar, and matsa, and tashmishei qedushah, objects that are themselves inherently holy, like a mezuzah, a Talmudic tome, or a Torah scroll.  R. Halivni explained that in this life we are objects that generate holiness by observing the commandments.^[xlvii] For R. Halivni, our mission as mortals is to become persons who become inherently holy, who touch, and inherit, eternity. ^[xlviii]

^[i] Breaking the Tablets: Jewish Theology After the Shoah (Lanham, Md.:  Rowman & Littlefield, 2007).

^[ii] Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (New  York:  Oxford, 1991).

^[iii] Revelation Restored: Divine Writ and Critical Responses  (Boulder, Colorado: WestviewPress, 1997).

^[iv] bBava Metsi’a 86a.

^[v] David Halivni, Introduction to Sources and Traditions: Studies in the Formation of the Talmud (Jerusalem:  Magnes, 2009), pp. 63-64 and 75-76.

^[vi] Ibid., pp. 128-136.

^[vii] When R. Halivni teased a student, it was always an expression of playful affection. When attending his Hebrew University Talmud class after aliyyah, in my rush get settled, I inadvertently placed my copy of R. Halivni’s Meqorot u-Mesorot on top  of  my Talmud. He chided me, “while I’m proud  of my work, it must  be placed under, and not over,  the Talmud.”  R. Halivni was also  reminding me as well as all who were present, that we all should be more precise  in our halakhic observance.

^[viii] Mordecai M. Kaplan, Judaism as a Civilization (Philadelphia and New York: Jewish Publication Society, 1981), maintains that the “modern ideology,” which is essentially dogmatic secularism [pp. 36-46], can neither be resisted nor denied. For Kaplan, the Conservative Movement is a coalition of style consisting of the
“Right” wing of Reform [pp.126-132] and the “Left” wing of Neo-Orthodoxy [pp. 160-169.  Kaplan argued that maintaining Orthodox theological and/or ritual commitments is hopelessly arcane and morally deficient.

^[ix] Not to be confused with the Israeli Haredi political party, United Torah Judaism, in Hebrew, “Yahadut ha-Torah,” literally “The Judaism of the Torah,” implying it alone is  Torah faithful.  The party is currently on the  brink of schism because its Degel ha-Torah faction forbids any non-Torah studies, like mathematics and English, to be taught in its yeshivot. See https://www.theyeshivaworld.com/news/headlines-breaking-stories/2108588/is-degel-hatorah-on-the-way-to-a-split-with-agudas-yisrael.html.  In contrast, the

American UTJ embraces  secular learning.    

^[x]  During these happenings, I had resigned from the Conservative Rabbinical Assembly, received Orthodox ordinations from R. Oscar Fasman of Chicago’s [actually, Skokie] Hebrew Theological College, R. Moshe D. Tendler of Yeshiva University’s Rabbinical program [RIETS] and R. Mordecai Eliahu, at the time the Sefardic  Chief Rabbi of the State of Israel, and then joined the Rabbinical Council of America, served as the Rabbi of Congregation Israel of Springfield, N.J. and B’nai Israel Congregation, the recently revived Orthodox Synagogue of downtown Baltimore, Maryland. 

^[xi] Menachem Elon. Jewish Law: History, Sources, Principles (Jerusalem:  Magnes, 1973), pp. 1210-1212, is impatient with the major Jewish codes because, to his view, codes radically and artificially freeze Jewish Law   in place and time.  For a similar  view  from a source critical rather than jurisprudential perspective,  see  David Halivni, Midrash, Mishnah, and Gemara: The Jewish Predilection for Justified Law (Cambridge and London:  Harvard, 1986), where R. Halivni shows that the Mishnah’s apodictic diction, which is similar to the syntax of Codes, is the exception to the Rabbis’ preference for Midrash Halakhah and the Babylonian Talmud’s stammaitic, justificatory discourse [p.  115].

^[xii] This is the major  difference between the Israeli and American UTJ’s. The  Israeli  UTJ rejects non-sacred learning, while the American  UTJ embraces it. 

^[xiii] My thanks  go to R. Daniel Landes,  who  introduced me to this idiom.

^[xv] According to  mAvot  1:15 and 3:12, this deportment is mandatory.

^[xvi] Leviticus 19:18 very  subtly commands  intense love,  as the Hebrew  verb “to love” is a transitive verb.  Deuteronomy 6:5 employs the Hebrew particle “et,” which marks  direct objects, when commanding the loving of the Lord. The ”lamed” prefix, when preceding a noun and following a verb, also marks  the direct object of  a transitive verb. This ”lamed” accusative marker is standard in Aramaic, as in the Passover poem, Had Gadya.

^[xvii] As described at Maimonides, De’ot   5:1  and 5.

^[xviii] bRosh ha-Shanah   34b. See also comprehensive summary at https://www.etzion.org.il/he/halakha/orach-chaim/prayer-and-blessings/repetition-shemoneh-esrei-1 and https://www.yeshiva.org.il/midrash/2789.

^[xix] mPe’ah 1:1. It was reported a family member that  R. Halivni, who resided in Jerusalem’s high rise Wolfson Towers, would not avail himself of the building’s Shabbat elevator, even though rabbinic decrees do not apply to the infirmed [see bKetubbot 60a and Shulhan ‘Aruch 328:14]. This “stricture” testifies to the degree R. Halivni took Torah to heart.        

^[xx] My preparation for Chief Rabbi Mordechai Eliahu’s ordination included  Bet Yosef and Kaf ha-Hayyim and my learning under R. Tendler’s supervision was a personal tutorial in R. Moshe Feinstein’s method, mind, and approach to religious leadership. R. Halivni pushed me to formulate my own approach to resolving Halakhic conflict, being both fair to my questioners and honest to God.

^[xxi] Shulhan ‘Aruch Hoshen Mishpat 34:1-3.

^[xxii] Deuteronomy 21:23.

^[xxiii] Shulhan ‘Aruch Hoshen Mishpat 34:4.

^[xxiv] Ibid. 34:11.

^[xxv] mAvot 1:5

^[xxvi]  mAvot 1:1.

^[xxvii]  mAvot   4:8.

^[xxviii] See my "Legal Positivism and Contemporary Legal Discourse," The Jewish Law Annual  6 (1987), republished in ed., Martin P. Golding,  Jewish Law and Legal Theory, (New York: l Press, 1993).

^[xxix] Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley, Los Angeles, and London, University of California, 1967), p. 5 and pp. 198-214, and https://plato.stanford.edu,/entries/lawphil-theory/. For Legal Positivists, the judge applies the legal norm, but does not create or legislate norms.

^[xxx] This was the teaching culture at JTS 50 years  ago.  In my JTS classes in Hebrew literature, the literary texts   were read along with relevant literary theory, providing the student with a logical, methodological toolbox.

^[xxxi] The synagogue of the UTJ had a partition between the  women’s and men’s section, which followed Ashkenazi Orthodox practice.

^[xxxii]bMegillah 28a.

^[xxxiii] Ibid., 28b.

^[xxxiv] Legal Realism maintains that judges apply their policy intuitions to generate Law. See https://intranet.mruni.ot 10”/upload/iblock/b15/008_tumonis.pdf. Orthodox  Legal Realists  often invoke Da’as Torah to justify their dismissing or ignoring problematic Oral Torah norms. My Legal Positivism moved me to don tefillin on the intermediate festival day, because the permission to write  tefillin the intermediate festival day indicates that tefillin are to be worn at that time occasion [bMo’ed Qatan 19a]. At Laws of Tefillin, Mezuza and Torah scroll, 4:10, the Sefardi  Maimonides observes that tefillin are not worn on Shabbat or Yamim Tovim, that is full holidays, clearly implying what bMo’ed Qatan 19a is requiring, that . The  Ashkenazi school of Rashi [Mahzor Vitry, n. 513], R. Asher, Laws of Tefillin n. 15, and R. Isserles’ gloss to Shulhan ‘Aruch Orah Hayyim 31:2 articulate the old Ashkenazi tradition, which conforms  and confirms the canonical record at bMo’ed Qatan 19a. At Bet Yosef Orah Hayyim 31 Maran concedes that the original Sefardi practice was that tefillin be worn on the intermediate festival day, but just like the Greek classics were being discovered during the Renaissance, Maran mistook Zohar Hadash 2:8, Canticles, which disallows tefillin donning on the intermediate festival day, to be composed by the Tanna R. Shim’on bar Yohai, and consequently assigned Oral Torah canonicity to the work.  Simply put, the forbidding of tefillin on the intermediate festival is based, or biased, not upon a “’holy’ Zohar” vetted and approved by the Bet Din ha-Gadol, but on a forgery. At stake in this debate is whether ”tradition” is an integrity driven spiritual ethos or an inertia driven nostalgic preference.

Hear Rabbi J. J. Schacter at  http://www.yutorah.org/lectures/lecture.cfm/728404#, who demonstrates  that the Zohar often overrode Halakhic principle, and see Israel M. Ta Shma, Haa-Nigleh she-ba-Nistar:  le-Heqer Sheqi’ei Halakhah be-Sefer ha-Zohar (Tel Aviv: Kibbutz ha-Meuchad, 2001). This very debate is an example of Orthodox religious pluralism. Each side believes that the other side errs, but as we discovered in the Laws of Testimony, a generally observant Jew who, perhaps in error, sincerely believing that she or he is behaving in accord with the Halakhah does not forfeit one’s bona fides. Therefore, while my understanding leads me to the position that tefillin are mandatory on intermediate festival days, I may not condemn another Jew who on principle will rule according to the Zohar or Maran. One has a right to be wrong in the eyes of the “other."

^[xxxvi]mYevamot 10:1.

^[xxxvii]  Commentary to the Mishnah, ad. loc.

^[xxxviii] Commentary to the Mishnah, ad. loc.

^[xxxix] bYevamot 88a.  Another stammaitic  voice here formulates the policy “because of the ‘chained’ woman[’s plight] the rabbis ruled   leniently.” loc. cit.

^[xl] Deuteronomy 19:15.

^[xli] Shulhan ‘Aruch ‘Even ha-‘Ezer 17:58.

^[xlii] In an oral communication, R. Moshe D. Tendler explained that   a whole non-kosher animal is called a beriyya [a “creation”], whose  very being constitutes a quantity the consumption of which is a Torah violation, even if its bulk is less than the “olive” standard benchmark [bMakkot 13a]. However, the animal must be visible to the naked human eye. One-celled animals do not meet this benchmark, and are therefore not legally present as a point of Jewish Law.  Similarly, a mixture that  possesses one unidentifiable, undetectable part non-kosher contaminant to fifty-nine parts of kosher edibles is both an empirical reality and a legal nullity.

^[xliii] See R. Ahron Soloveitchik, Logic of the Heart, Logic of the Mind: Wisdom and Reflections on Topics of our Times (Genesis Jerusalem Press, 5751/1991), 45-57, which to his view “undermine(s) k’dushas haTorah [the sanctity/authority of Torah].” p. 46.  R. Soloveitchik, who also graduated from NYU, either opposes the exposure of rabbinic fallibility in the transmission of the Oral Tradition or he  disputes the “humanizing” of the Oral Torah, which would deny the “great rabbi” the right, power, and privilege of intuiting rather than demonstrating his position,.

^[xliv] https://thelehrhaus.com/timely-thoughts/the-maculate-conception-introducing-a-symposium-on-rabbi-prof-david-weiss-halivni/. See also Dr. Elana Stein Hain, “a student of Prof. Halivni over the course of twenty years, addressing his pathbreaking theory about the formation of the Babylonian Talmud, the intuitions and methods that he developed around his historical theory, and the abiding love of Torah study that animated his entire project.” Ibid.  This perspective is not  compatible with John Dewey’s militant secularism that came into neighboring JTS via Mordecai Kaplan’s naturalistic “modern ideology.”

^[xlv] bBerachot 6oa and elsewhere.  See https://www.hamichlol.org.il/%D7%9B%D7%95%D7%97_%D7%93%D7%94%D7%99%D7%AA%D7%A8%D7%90_%D7%A2%D7%93%D7%99%D7%A3. 

^[xlvi] This recalled rendering is the gist but not my exact words at the time which I no longer remember because  I failed  to record the comment at that time.

^[xlvii] This doctrine, that holiness is generated by obeying God’s commandments, first appears  at Numbers 15:40, and occurs in the Rabbinic commandment blessing formula, “who has sanctified us by means of  the commandments.” 

^[xlviii] See Isaiah 60:21 and Maimonides, Teshuva 8:4.

The Torah rooted out many ancient pagan superstitions. Professor Yehezkel Kaufmann (1889–1963) pinpointed several critical features that fundamentally distinguish Tanakh from ancient Near Eastern literature. There is one supreme God above who is the Creator of all nature, and there are no forces competing with God. God is absolutely free. God is timeless, ageless, nonphysical, and eternal. Nature is a stage on which God expresses His will in history. Rituals do not harness independent magical powers and do not work automatically. Endowed with free will, people can defy God and even drive God’s Presence away. Evil does not inhere in universe but rather is a product of people sinning, and it undermines creation. Absolute standards of good and justice exist, and people may use their free will to build an ideal society.[1]

The overwhelming majority of Tanakh fits this description perfectly. God and the religious-moral behavior of humanity are explicitly responsible for nearly all events. This premise is so self-evident that one Mishnah dismisses any possibility of a “magical” reading of two Torah narratives that could have been read that way: Moses’ raised arms assisting Israel in the battle against Amalek (Exodus 17:8–16); and Moses’ using a divinely-commanded brass serpent to heal serpent-bitten Israelites in the wilderness (Numbers 21:4–9):

Is it Moses’ hands that make or break success in war? Rather, this comes to tell you, that whenever Israel looked upward and subjugated their hearts to their Father in heaven, they would prevail. If not, they would fall. Similarly, you can say concerning the verse, “Make a [graven] snake and place it on a pole, and everyone bitten who sees it will live.” Is it the snake that kills or revives? Rather, whenever Israel looked upward and subjugated their hearts to their Father in heaven, they would be healed. If not, they would be harmed. (Mishnah Rosh HaShanah 3:8)

There are instances, however, where some commentators interpret biblical narratives and laws in ways that differ from the above principles. This essay focuses on biblical passages that could be interpreted as reflecting powers that do not directly emanate from God. Among traditional commentators, there is diversity of opinion regarding the existence of forces beyond the divine. In most cases, Tanakh does not exhibit evidence of forces beyond God’s realm, but there are a few occasions where it might.[2] Religious educators must be particularly sensitive when teaching these passages with classical commentary, so that their students do not become superstitious.

Do Human Blessings and Curses Work Automatically?

Isaac’s Blessing to Jacob

            Isaac’s bestowal of the birthright is the central theme of Genesis chapters 25 and 27. Jacob successfully obtains the blessing through deception. Isaac upholds his blessing even after learning that he had mistakenly blessed Jacob:

Isaac was seized with very violent trembling. “Who was it then,” he demanded, “that hunted game and brought it to me? Moreover, I ate of it before you came, and I blessed him; now he must remain blessed!” When Esau heard his father’s words, he burst into wild and bitter sobbing, and said to his father, “Bless me too, Father!” But he answered, “Your brother came with guile and took away your blessing.” [Esau] said, “Was he, then, named Jacob that he might supplant me these two times? First he took away my birthright and now he has taken away my blessing!” (Genesis 27:33–36)

Given his knowledge of Jacob’s deception, why does Isaac conclude that “now he must remain blessed” (verse 33)?

            Following a Midrash (Genesis Rabbah 67:2), Rashi suggests that Isaac said “now he must remain blessed” (verse 33) only after hearing that Esau had sold the birthright years earlier (verse 36). Isaac thereby made a rational decision upon learning previously unknown (to Isaac) vital information. Of course, Rashi’s interpretation requires reading the verses out of sequence. In the text, Isaac appears to uphold the blessing immediately after learning that he was speaking with Esau. Most commentators therefore reject Rashi’s reading.

According to Rabbi Joseph Bekhor Shor and Ramban, Isaac’s blessing was prophetic and therefore could not be retracted. Ralbag and Abarbanel disagree and suggest that the blessing was not “automatic.” Rather, Isaac concluded that since Jacob had deceived him successfully, it must have been God’s will that Jacob should be blessed.

To summarize: Rashi, Ralbag, and Abarbanel interpret Isaac’s upholding the blessing as Isaac’s rational decision. Rabbi Joseph Bekhor Shor and Ramban maintain that Isaac’s blessing was an unretractable prophecy. In this latter reading, Isaac was powerless to annul even a misdirected blessing.

Regardless of the aforementioned debate, there is one other critical detail. Although Isaac was unaware (as far as we know), Rebekah received a prophecy during her pregnancy suggesting that Jacob would prevail over Esau:

The Lord answered her, “Two nations are in your womb, two separate peoples shall issue from your body; one people shall be mightier than the other, and the older shall serve the younger.” (Genesis 25:23)

            Moreover, several Midrashim and later commentators understand “the older shall serve the younger” (ve-rav ya’avod tza’ir) as ambiguous. It could mean “the older shall serve the younger,” but it also can mean “the older shall have the younger work for him” (Genesis Rabbah 63:7, Radak, Abarbanel). According to the Midrash, God stated the prophecy ambiguously since its favorable fulfillment for Jacob would occur only when Jacob and his descendants are faithful to God and the Torah. In the broader birthright narrative, then, Isaac’s human blessing also fulfills God’s prophetic plan. Even then, it does not work automatically but appears to be conditional on the future righteous behavior of Jacob and his descendants. According to all of the aforementioned readings, then, Isaac’s blessing reflected God’s will, and did not invoke some independent power that would bring blessing to Jacob and his descendants regardless.

In this spirit, Malbim (on Genesis 27:1) asserts that Isaac did not have the power to bestow divine blessings of chosenness. Rather, he had power over inheritance. The blessing to be God’s nation is solely in God’s hands, and that blessing depends on the religious worthiness of Jacob and Esau. Nehama Leibowitz agrees with this approach, and insists that Esau’s intermarriage to Canaanites (Genesis 26:34), rather than his sale of the birthright, forfeited his worthiness of the divine blessing. Isaac’s blessing of Esau could not have created the third Patriarch of the chosen nation.[3]

Noah’s Blessings and Curses

            After Ham’s shameful behavior toward his drunk and naked father Noah, Shem and Japeth respectfully covered their father. When Noah realized what had happened, he cursed Ham’s son Canaan and blessed Shem and Japheth:

He said, “Cursed be Canaan; the lowest of slaves shall he be to his brothers.” And he said, “Blessed be the Lord, the God of Shem; let Canaan be a slave to them. May God enlarge Japheth, and let him dwell in the tents of Shem; and let Canaan be a slave to them.” (Genesis 9:25–27)

These blessings are fulfilled when the Canaanites—the descendants of Ham—are dispossessed by the Israelites—the descendants of Shem. Did Noah’s blessing and curse cause this critical event in Israel’s history?

            The answer is negative. God dispossesses the Canaanites because they were wicked (for example, Genesis 15:16; Leviticus 18:24–30; Deuteronomy 9:1–5). The Israelites receive the Land because of God’s covenant with the Patriarchs (Deuteronomy 9:1–5). The Israelites also do not retain the Land of Israel automatically. If they are wicked, God will dispossess them from their land as well (see, for example, Leviticus 26:31–33; Deuteronomy 4:25–28; 11:16–17; 28:64–68). Righteous behavior allows a nation to merit the Land of Israel, and wicked behavior leads God to expel a nation from the Land of Israel.

Like Isaac’s blessing to Jacob, then, Noah’s blessings and curses reflect the divine will, and play no independent role in the dispossession of the Canaanites nor in God’s awarding the Land of Israel to Abraham and his descendants.

Balaam’s Blessings and Curses

            A similar discussion arises over Balaam’s power to curse Israel. The premise of the narrative in Numbers chapters 22–24 is that Balaam’s powers were perceived as genuine, and God’s intervention on Israel’s behalf rescued Israel from the deleterious effects of the curse. Tanakh repeatedly invokes this story to demonstrate God’s love of Israel (see Deuteronomy 23:5–6; Joshua 24:9–10; Micah 6:5; Nehemiah 13:1–2).

            However, traditional commentators debate the “what if” of the narrative. Had Balaam actually cursed Israel, would that have harmed Israel? Several talmudic passages and later commentators take the premise of the narrative as factual, that is, Balaam indeed would have harmed Israel were it not for God’s intervention. However, other commentators maintain that Balaam was a charlatan. Moabites and Israelites alike believed in his powers, but they were objectively mistaken. Balaam could not arouse metaphysical powers to harm Israel against God’s will to bless Israel.[4]

Rachel’s Death in Childbirth

Rachel’s tragic death as she gave birth to Benjamin is heart-wrenching (Genesis 35:16–20). The Torah does not explain why she died. Following one Midrash (Genesis Rabbah 74:4, 9), Rashi (on Genesis 31:32) ascribes Rachel’s death to a curse uttered by Jacob when he proclaimed his innocence in stealing Laban’s terafim (household idols) several chapters earlier. Jacob did not know that Rachel had stolen the terafim and hidden them in her saddle bag (Genesis 31:19, 34–35):

“But anyone with whom you find your gods shall not remain alive! In the presence of our kinsmen, point out what I have of yours and take it.” Jacob, of course, did not know that Rachel had stolen them. (Genesis 31:32)

In this reading, Rachel tragically dies as a result of Jacob’s unwitting curse.

            However, most commentators do not link Jacob’s declaration of innocence to Rachel’s death. First, some do not think Jacob’s statement is a curse at all, but rather an exaggerated statement that Jacob would kill anyone who stole the idols (Ibn Ezra), or that Laban would have his permission to kill the thief (Radak).

            There also is no reason to think that human curses work automatically. When Joseph’s brothers emphatically denied stealing Joseph’s silver goblet, they stated:

Whichever of your servants it is found with shall die; the rest of us, moreover, shall become slaves to my lord. (Genesis 44:9)

Benjamin did not die prematurely as a result of this declaration.

            Rejecting Rashi’s approach, Ibn Ezra (on Genesis 31:32) observes that childbirth is dangerous. The only other recorded biblical childbirth death is that of the High Priest Eli’s son Pinehas’ wife (I Samuel 4:19–22). Nobody cursed her, and yet she died. There is no reason to believe from within the text that Jacob’s unwitting curse (if it was a curse at all) should be considered a reason for Rachel’s death.[5]

Do Head Counts Bring Plagues?

            During the commandment to build the Tabernacle, God commands that every Israelite man contribute one half-shekel toward a census:

When you take a census of the Israelite people according to their enrollment, each shall pay the Lord a ransom for himself on being enrolled, that no plague may come upon them through their being enrolled…the rich shall not pay more and the poor shall not pay less than half a shekel when giving the Lord’s offering as expiation for your persons. You shall take the expiation money from the Israelites and assign it to the service of the Tent of Meeting; it shall serve the Israelites as a reminder before the Lord, as expiation for your persons. (Exodus 30:12–16)

Regardless of one’s means, every man is required to give exactly the prescribed amount “to atone for your lives.” The silver from the original census was used to make sockets for the Tabernacle and hooks to connect the boards (Exodus 38:25–28). Every Israelite, rich or poor, thereby contributes equally to this aspect of the Tabernacle.

            Why, however, are people threatened with a plague if they do not give a half-shekel?

            Rashi submits that counting Israelites by head triggers the “evil eye” and brings a plague. Therefore, they must conduct every census using objects such as half-shekels and then count the objects. Rashi adopts the reading of the talmudic Sage Rabbi Eleazar: “Whosoever counts Israel violates a negative precept” (Yoma 22b).[6]

            To support his reading, Rashi invokes the narrative of King David’s census of Israel in II Samuel 24. Despite Joab’s protests, David insisted on counting. The census incurred God’s wrath, eliciting a devastating plague that claimed the lives of 70,000 Israelites:

The king said to Joab, his army commander, “Make the rounds of all the tribes of Israel, from Dan to Beer-sheba, and take a census of the people, so that I may know the size of the population.” Joab answered the king, “May the Lord your God increase the number of the people a hundredfold, while your own eyes see it! But why should my lord king want this?” However, the king’s command to Joab and to the officers of the army remained firm; and Joab and the officers of the army set out, at the instance of the king, to take a census of the people of Israel… The Lord sent a pestilence upon Israel from morning until the set time; and 70,000 of the people died, from Dan to Beer-sheba. (II Samuel 24:2–15)

Rashi asserts that David sinned by not counting with half-shekels or other objects, but instead counted heads.

            Ramban (on Numbers 1:2) rejects Rashi’s interpretation. Joab opposed the very census, and not its method (of not using half-shekels). There are other legitimate military censuses in Tanakh (see, for example, Numbers 31:4–5; Joshua 8:10; I Samuel 11:8, 13:15, 15:4; II Samuel 18:1). To explain the plague in David’s time, Ramban observes that David’s is the only military census in Tanakh taken during peace time, rather than at war time. It was unnecessary and displayed arrogance and a lack of trust in God. God plagued Israel as a consequence of a sin in faith, rather than because of the method of the census (see also Ralbag and Rabbi Isaiah of Trani on II Samuel 24).[7]

            It appears that Ramban’s objection to Rashi is compelling, and there is no connection between the commandment to take half-shekels in Exodus 30 and David’s sin in II Samuel chapter 24. How, then, should we understand the threat of plague in Exodus 30:12?

Rabbi Saadyah Gaon (quoted in Ibn Ezra) submits that the annual half-shekel commanded in Exodus 30 is for support of the Tabernacle and the daily sacrifices. A plague results from laxity in contributing to the building fund and to the nation’s sacrifices, and not from conducting a head count. In this approach, there is nothing wrong with counting people by head. There is a problem with people refusing to contribute a minimal amount to participate in the Tabernacle and its service of the nation.

Alternatively, Rabbi Samuel D. Luzzatto (Shadal) maintains that Rashi has the best reading of Exodus 30:12, that there is a threat of a plague for conducting any census without half-shekels. However, the Torah reflects a popular superstitious belief that counting people can lead to a plague, rather than an objective reality.[8] This approach traces back at least as far as Rabbi David Kimhi (1160–1235) and Rabbi Joseph ibn Caspi (1279–1340), who explain several passages in the Torah as reflective of popular superstitions that are not objectively true.[9]

In either reading, the Torah does not teach that head counts elicit divine plagues. Religious sins such as arrogance, lack of faith, and non-participation in the national religious service incur God’s wrath.

Is There Black Magic?

            The Torah prohibits witchcraft as a capital offense (Exodus 22:17; Leviticus 20:27; Deuteronomy 18:9–13). Our commentators debate whether witchcraft exists, or whether witchcraft does not exist but the Torah prohibits its practice since many pagans believed in its efficacy and used magic in their idolatrous systems. Two biblical narratives bring this question to the fore: The Egyptian magicians in the Torah, and the Witch of Endor in I Samuel chapter 28.

The Egyptian Magicians

            Pharaoh’s magicians turn their staffs into serpents (Exodus 7:8–13), produce blood (Exodus 7:22), and produce frogs (Exodus 8:3). They are defeated during the plague of lice, which they could not replicate (Exodus 8:14–15), and the plague of boils which kept them from being able to appear before Pharaoh (Exodus 9:11).

            Some Sages in Sanhedrin 67b, followed by Ramban, maintain that black magic exists and that the magicians successfully used it. Other Sages in Sanhedrin 67b, followed by Abarbanel, assert that there is no magic and the magicians used illusion (ahizat enayim). Similarly, some Midrashim (Exodus Rabbah 9:10; 10:6) maintain that the magicians used black magic to produce blood and frogs, while others (Mishnat Rabbi Eliezer 19, Midrash HaGadol, quoted in Torah Shelemah Exodus 8:7) assert that the magicians cleverly found areas not yet afflicted, invoked their “magic”, and then the blood and frogs spread entirely from the divine plague.[10] In this instance, the Torah may be read either way.

The Witch of Endor

            Nearing the end of his tragic demise, King Saul turned to a necromanceress out of desperation to ascertain God’s will:

Saul disguised himself; he put on different clothes and set out with two men. They came to the woman by night, and he said, “Please divine for me by a ghost”…At that, the woman asked, “Whom shall I bring up for you?” He answered, “Bring up Samuel for me.” Then the woman recognized Samuel, and she shrieked loudly…“What does he look like?” he asked her. “It is an old man coming up,” she said, “and he is wrapped in a robe.” Then Saul knew that it was Samuel; and he bowed low in homage with his face to the ground. Samuel said to Saul, “Why have you disturbed me and brought me up?” And Saul answered, “I am in great trouble. The Philistines are attacking me and God has turned away from me; He no longer answers me, either by prophets or in dreams. So I have called you to tell me what I am to do.” Samuel said, “Why do you ask me, seeing that the Lord has turned away from you and has become your adversary? The Lord has done for Himself as He foretold through me: The Lord has torn the kingship out of your hands and has given it to your fellow, to David, because you did not obey the Lord and did not execute His wrath upon the Amalekites. That is why the Lord has done this to you today. Further, the Lord will deliver the Israelites who are with you into the hands of the Philistines. Tomorrow your sons and you will be with me; and the Lord will also deliver the Israelite forces into the hands of the Philistines.” (I Samuel 28:8–19)

            It appears that the witch successfully conjures up the deceased prophet Samuel’s spirit, and the characters saw and heard his spirit. This is the only biblical narrative that reflects a connection between the worlds of the living and the dead.

            Radak surveys several rationalist positions which reinterpret the story in light of their belief that witchcraft does not exist. Rabbi Saadyah and Rabbi Hai Gaon maintain that on this singular occasion, God miraculously brought Samuel’s spirit down. Alternatively, Rabbi Samuel ben Hofni Gaon maintains that the entire episode was fraudulent and Samuel’s spirit never appeared. The witch recognized Saul immediately but hid that fact so that she could fool him into thinking that she learned it through her magic. She made an educated guess that Saul would die, since the Philistines were powerful.[11] Ibn Ezra (on Exodus 20:3; Leviticus 19:31) also denies the existence of black magic and maintains that the narrative reflects the mistaken perception of the characters rather than objective reality. Rambam (Hilkhot Avodah Zarah 11:16) states more generally that all forms of witchcraft are both forbidden by the Torah and absolute nonsense derived from the pagan world. Only a fool would believe something so patently irrational (see also his discussion in Guide 2:46). This debate relates to the much broader discussion of how literally traditional interpreters understand biblical texts when confronting conflicts with reason.[12]

            Radak (on I Samuel 28:24) rejects the aforementioned readings. The narrative suggests that the witch really conjured up Samuel’s spirit, and there is no mention of divine intervention. Ramban (on Exodus 7:11; Leviticus 18:21; Deuteronomy 18:9) also adopts the literal reading of the narrative and agrees that the witch successfully conjured up Samuel’s spirit using black magic. These commentators maintain that black magic is prohibited by the Torah, and most of its alleged practitioners are frauds. However, in principle black magic does exist and the Witch of Endor was a true practitioner.

Moshe Garsiel[13] adopts a position similar to Rabbi Saadyah Gaon cited above. The narrative clearly depicts the event as genuine, that is, Samuel’s spirit really appeared and communicated a prophetic message to Saul. According to Garsiel (like Rabbi Saadyah Gaon), Tanakh generally portrays witchcraft as fraudulent. In this unique occurrence, however, God miraculously sent Samuel’s spirit to communicate with Saul. The witch was shocked herself, and therefore screamed. She also immediately understood that only Saul would merit such a miracle, which is how she knew he was the king: “Then the woman recognized Samuel, and she shrieked loudly, and said to Saul, ‘Why have you deceived me? You are Saul!’” (I Samuel 28:12). This revelation was part of God’s punishment of Saul, and God specifically refused to answer Saul through legitimate means.[14]

To summarize, the plain sense of the text suggests that Samuel’s spirit genuinely appeared to Saul. However, there is no reason to conclude that black magic exists. Rather, this may have been a one-time miraculous occurrence, shocking even the witch herself who was used to deceiving her customers.

Can One Divine the Future with Signs?

The Torah prohibits divination of the future with signs (Leviticus 19:26). Nevertheless, two biblical narratives present ostensibly righteous figures divining the future with signs and they are successful, suggesting God’s providential approval.

Seeking a wife for Isaac, Abraham’s servant (midrashically identified as Eliezer, Abraham’s servant in Genesis 15:2) prays to God and creates a sign to ascertain God’s approval:

And he said, “O Lord, God of my master Abraham, grant me good fortune this day, and deal graciously with my master Abraham: Here I stand by the spring as the daughters of the townsmen come out to draw water; let the maiden to whom I say, ‘Please, lower your jar that I may drink,’ and who replies, ‘Drink, and I will also water your camels’—let her be the one whom You have decreed for Your servant Isaac. Thereby shall I know that You have dealt graciously with my master.” (Genesis 24:12–14)

After the servant prayed, Rebekah appeared, drew water for the people and the camels, and clearly was the perfect fit for Isaac. It appears that the servant’s divination of the future through this sign receives divine approval in the narrative.

            Similarly, King Saul’s son Jonathan boldly decides to attack a vast enemy Philistine camp accompanied only by his arms-bearer. He creates a sign that he interprets as signaling divine approval:

Jonathan said, “We’ll cross over to those men and let them see us. If they say to us, ‘Wait until we get to you,’ then we’ll stay where we are, and not go up to them. But if they say, ‘Come up to us,’ then we will go up, for the Lord is delivering them into our hands. That shall be our sign.” (I Samuel 14:8–10)

Jonathan goes on to win a spectacular victory and is the hero of the narrative.

            Despite their resounding successes, did Abraham’s servant and Jonathan violate the Torah’s prohibition against divination? Commentators debate the meaning of a talmudic passage:

Rab himself has said: An omen that is not after the form pronounced by Eliezer, Abraham’s servant, or by Jonathan the son of Saul, is not considered a divination. (Hullin 95b)

Rambam (Hilkhot Avodah Zarah 11:4) interprets this passage to mean that the divination of Abraham’s servant and Jonathan is forbidden divination.

            Rabad of Posquieres sharply rejects Rambam’s reading and insists that Abraham’s servant and Jonathan were righteous and acted appropriately, as is evident from the narratives. He concludes by saying that if Abraham’s servant and Jonathan were alive, they would whip Rambam with fiery lashes. Radak and Ralbag agree with Rabad and maintain that the signs of Abraham’s servant and Jonathan were permissible. Rabbi Elhanan Samet explains that Rabad, Radak, and Ralbag interpret the Talmud to mean that unlike the other signs discussed in that passage, which are considered unreliable forms of divination, the signs of Abraham’s servant and Jonathan were reliable. The Talmud is giving advice on appropriate divination.[15]

            Alternatively, Ran (Rabbenu Nissim on Hullin 95b) and Rabbi Joseph Karo (Kesef Mishneh on Rambam, Hilkhot Avodah Zarah 11:4) agree that the signs of Abraham’s servant and Jonathan were appropriate because they are rational. Abraham’s servant sought a hospitable wife for Isaac, and Jonathan interpreted the Philistines’ summoning him as giving him a military advantage. The Torah prohibits making decisions based on signs that have no rational basis, such as seeing a black cat.

            According to Rambam, the Torah outlaws all divination signs, rational or not. For the others, Abraham’s servant and Jonathan sought signs of divine providence using rational means and prayer. The plain sense of the narratives supports the majority opinion against Rambam, that Abraham’s servant and Jonathan acted appropriately and were blessed with divine assistance.[16]

Conclusion

            The plain sense of the biblical texts we have considered does not support the notion that human blessings or curses work automatically without divine support. There also is no evidence that a head count automatically elicits a plague. The plain sense of the narrative in I Samuel 28 (and possibly also the Egyptian magicians) might suggest the existence of black magic, but a number of commentators exclude that possibility and provide a fair alternative reading of the text. Regardless, the Torah outlaws sorcery as a capital offense. It appears from the plain sense of the text that the signs of Abraham’s servant and Jonathan are acceptable in the context of faith in God and rationality. Rambam rules otherwise, and prohibits all forms of divination.

            While some Midrashim and later commentators ascribe some of these events to automatically triggered forces, it appears that Tanakh indeed attempts to eradicate superstitions at their roots. God rules the entire universe, and people’s righteous or wicked behavior, not magic, determines God’s providential relationship with humanity.

            A final note to educators: While Rashi often is the exclusive commentator taught to children throughout much of Elementary School, educators of young children should give serious pause before teaching Rashi’s comments about the issues discussed in this essay. Since it is difficult to present complex and conflicting views on these subjects to young children, Elementary School students will necessarily adopt the view that Rachel died because of Jacob’s unwitting curse and that head counts invoke the “evil eye.” It is preferable to defer these discussions at least until High School, when children are old enough to learn the different sides of these debates.

Notes

If, ten years ago, someone had told me that I would be a member of the board of a religious, rabbinic organization, that I would attend synagogue services every Shabbat, that I would put on tefillin, and that I would even write an article for a religious publication – I would have laughed and explained how severely mistaken that person was: I, the proud member of Hashomer Hatzair, who is secular in every fiber of his body?! Nevertheless, something no less than a revolution took place in my life, and a substantive change in my worldview. Like many revolutions, the change began with something small. 

But, if I may, I would like to begin at the beginning. I was raised near Haifa, and I was taught the values of secular socialism, the love of Israel, tolerance, social responsibility – and many other values that can also be found in the Torah – as a member of the Kiryat Haim section of Hashomer Hatzair. In my childhood, there was no connection between the religious and secular residents, and no attempt was made to establish such a connection. The two communities lived side-by-side like oil and water, never mixing. In the army, I served in a mostly secular unit, whose members came from backgrounds similar to my own. When a religious soldier would arrive, our mission was to see how long it would take for us to get him to watch television on Shabbat, and to remove his kippah. We had quite a few “successes”. 

After the army, I met my wife, Irit, who had been raised in a traditional Jewish home, and we had four children. Until about a decade ago, a connection ith God was foreign to me, and was always associated with the corrupt religious establishment, on the one hand, and extremist settlers, on the other. I wrongly assumed that there was a part of the Jewish people that had an exclusive license from God. In the meantime, my hard work bore fruit, and I managed to purchase the Israeli Building Center.

 The biggest change in my relationship with religion and Judaism began in that framework, as I came to know several religious people involved in the construction industry. Work-related discussions began to digress to discussions about life, family, children, lifestyle, and we even got together with our wives. Slowly, for the first time in my life, I began to have real friendships with religious people. One day, our friends, Meir and Revital Noga, invited us to their home for Shabbat dinner. Meir gently suggested that I come early and accompany him to the synagogue. What I did not know at the time was that Meir had consulted with his rabbi, and had received what was then a rather innovative rabbinic decision, allowing him to invite me and my family for Shabbat, even though it meant that we might desecrate Shabbat. We went to synagogue together – for me, it was the first time in 30 years – and we sat down together for Shabbat dinner with their beautiful family. 

Back then, we also became very close friends with a family from Givat Shmuel, Michal and Meir Mizrachi, whose children became close friends of our children, and Iris and Dvir Granot from Tzur Yigal. Through those acquaintances with those special people, I learned how beautiful and special Judaism is, and that, wow, some of it suits me. Who would have imagined that one day the rabbi who allowed us to come for Shabbat, and who opened that door, Rabbi Ronen Neuwirth, would become a friend whom I would join in working together to establish the Beit Hillel organization?! 

More than ten years ago, I began putting on tefillin daily, making kiddush and saying birkat hamazon after meals. Two years later, I began attending synagogue services on Friday evenings (in the community center of my moshav, Ramot Hashavim), and a year later, I began attending Saturday morning services, as well, becoming a regular member of the minyan. Due to the small number of worshippers in the synagogue in Ramot Hashavim, Benzi (perhaps the only Orthodox person in the community), began to encourage us to lead services. Slowly, we began to add other “secular” Jews. 

But the turning point came during the Second Lebanon War (2006), when one of the women began attending Friday night services on a regular basis, and other women followed. The women began bringing their children, and their husbands soon followed. Today, twenty-five families are members of the Ramot Hashavim congregation. If you had asked people in Ramot Hashavim five years ago if such a thing were possible, they would have said that you were hallucinating. Every Monday, we study the weekly Torah portion at one of the homes in the community. Because we did not have a kosher Torah scroll, I assumed the responsibility of having one written (when I was told that I was crazy, and that it was very expensive, I replied that, in any case, everything I earn is granted to me from Above, so it really isn’t mine anyway), and two years ago, I brought it to the synagogue in a procession in which hundreds of residents participated, with musical accompaniment that rocked the whole neighborhood. 

This year, we held hakafot shniyot for the first time. We are on the way. We are not (yet) Shabbat observant, and perhaps some of us never will be. But we are now firmly rooted in the world of Torah and tradition, like thousands of other Israelis throughout the country – people with “invisible kippot”. None of this would have occurred had it not been for the Noga family from Kfar Ganim, the Mizrachi family from Givat Shmuel, and the Granot family from Tzur Yigal, who opened their hearts and their homes, and were it not for the invitation to be their Shabbat guests, and having us as guests in their home. They lit the Jewish spark that exists in every Jew. They showed me the beautiful side of Judaism and Jewish tradition. Thanks to their outstretched hands, my children are growing up together with theirs, and when my son joins the army, he will not be motivated to encourage his observant friends to watch television on Shabbat, but the opposite.

 So, what do I ask of the religious community? I ask them to learn from the Noga, Granot and Mizrahi families. Open your hearts and homes to your friends, coworkers and neighbors. Friends, the time is ripe in Heaven and in Israel. You must take advantage of this opportunity to be part of the unification of the Jewish People. That, I believe, is the current mission of Religious Zionism. May we fulfill the statement of the rabbis in the Midrash (Song of Songs, 5:2) - “Open up for me an opening like the eye of a needle and in turn I will enlarge it to be an opening through which wagons can enter.”