National Scholar Updates

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

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

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

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

Secular College Is Not a Frat House

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

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

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

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

More Subtle Challenges

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

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

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

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

Going “Off the Derekh”

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

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

Place of Religious Growth

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

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

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

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

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

Conclusion

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

Sephardic and other non-Ashkenazic traditions should be better represented in Jewish Day Schools and high schoo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                 The Low Down on the Height of the Mechitsah     

Toward Defining The Contemporary Orthodox Identity

By Alan J. Yuter

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

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

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

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

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

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

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

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

           wonder/take seriously] God and keep 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Halakhic Legal Realism transfers the power of norm creation from the object/heftsa of the canonical text to the person/gavra of the rabbinical judge.
   
   
   1. Jewish Legal Realism from the time of the Tosafists  has proclaimed that the “customs of Israel [are considered to be] Torah” which, like Oral Torah legislation, must be accepted as if they too were  the “word of the Lord.” 

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

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

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

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

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

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

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

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

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

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

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

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

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

           wonder/take seriously] God and keep 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   

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

   

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

   

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

   

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

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

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

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

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

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

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

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

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

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

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

   

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

   

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

   

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

   

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

   

1. Halakhic Legal Positivism observes 

    

   
    

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

       

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

       

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

       

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

    

   
    

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

       

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

       

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

       

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

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

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

Rabbi Hayyim Angel begins a new series on the Book of Kings on Monday, October 16. Classes are held in conjunction with the Beit Midrash of Teaneck. In-person classes are held on Mondays and Wednesdays from 12:00-12:45 pm, at the Teaneck Jewish Center (70 Sterling Place). Classes also are available over Zoom at that time. They also are recorded and available for listening at any time by registered participants.

Classes are free and open to the public. For more information or to register, please contact Mrs. Leah Feldman, at [email protected].

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

—Hakham Ya’akov Anatoli

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

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

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

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

—Midrash Tanhuma

To Be a Judge

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

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

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

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

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

From Judges to Leaders

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

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

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

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

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

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

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

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

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

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

Context and Us

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Behold, injustice! Behold, iniquity!

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

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

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

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

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

Notes

Angel for Shabbat, Parashat Hayyei Sarah

By Rabbi Marc D. Angel

“And the life of Sarah was a hundred and seven and twenty years; these were the years of the life of Sarah (shenei hayyei Sarah)” (Bereishith 23:1).

After stating that Sarah was 127 years old when she died, the Torah repeats “these were the years of the life of Sarah.” Instead of seeing this as a redundancy, perhaps the Torah is alluding to something other than Sarah’s age.

The words shenei Hayyei Sarah could be translated “the two lives of Sarah” (shenei meaning two, rather than years of). The Torah is pointing to two aspects of Sarah’s life: Sarah as she was seen by others, and Sarah as she was within herself.

The Torah doesn’t tell us too much about Sarah’s life. She generally is described as a tag along with Abraham, who is the real hero. In almost all stories, Sarah is passive, even when Abraham twice tells her to pose as his sister rather than his wife thereby endangering herself to save him. She grows into a childless elderly woman, with her handmaid Hagar giving birth to a son—Ishmael—for Abraham. 

But when conflict arises between Ishmael and Isaac, Sarah is no longer a passive bystander. She demands that Abraham banish Hagar and son, something Abraham very much did not want to do. God told Abraham: whatever Sarah tells you, listen to her voice. Sarah is vindicated. Her son Isaac will be Abraham’s one and only spiritual heir. We hear no more about Sarah until her death. 

To the outside world, Sarah might have seemed timid, passive, entirely subservient to Abraham. But she harbored a dramatic inner strength unsuspected by others, even by Abraham. When it came to her beloved son, Isaac, Sarah was a lioness. This was not merely a reflection of motherly love, but a commitment to the future of her people. Abraham would have been happy with Ishmael as his successor but Sarah knew better: Isaac was the worthy heir. Abraham had to hear it directly from God: listen to Sarah. If she tells you to banish Hagar and Ishmael, then do so. It is Isaac who is your true heir and successor.

When Sarah died, the Torah reports that Abraham came to eulogize and mourn for her (lispod leSarah velivkota) (23:2). Who came to the funeral? Who heard Abraham’s words of eulogy? Abraham and Sarah were basically strangers in the land. They had one unmarried son, Isaac. Their nephew Lot disappeared from the scene long before. What words of eulogy would be relevant in the situation?

Answer: Abraham’s eulogy was essentially given to himself. With Sarah’s passing, he finally realized that Sarah wasn’t simply a subservient participant in his life: she was in fact the vital force for his family’s future. If Abraham was going to become a forefather of a great nation as God had promised, it was only through Sarah that this would come to pass. Abraham finally saw the “two lives” of Sarah—the compliant wife, and the princess (Sarah means princess) of his people. Without her, Abraham himself would have been an empty and forgotten old man.

Thank you Sarah.