Out of Bounds: Part 5--Inconsistent Adjudication
By: Jonathan Seidel
A deviating trend from the chronological strand of essays by demonstrating the clear dialectic between historical and meta-historian agendas. Authorities were inconsistent and deliberately decided cases in accordance with their agendas and ideologies.
Historical Markers
Does an external force affect the legal system?1 In controversial fashion there is a debate whether halakha is meta-historical or historical2. There are three major leaders who clearly advocate for the former and demonstrate in their opinions yet also acknowledge the latter. The Chazon Ish in regarding measurements is clear that society does prevail over the code and places it superior to the world. Whereas regarding secular Jews he describes their state of affairs historically and due to the devastating effect of the previous generation does not hold them culpable3. Regarding autopsies R’ Kook applied a metaphysical outlook; tying forbidding bodily desecration to preserving life and the image of God. R’ Kook refused to acknowledge secular/Irish morality, instead attesting the previous generations were correct4. Arguing Israel is pure and our familiar solidarity is the reason only secularists are fighting for women’s rights5. He was not downplaying female greatness rather affirming traditional values. He did not believe in the public advancement but acknowledged female prowess6. Contrast that with R’ Kook’s untraditional view on strikes and secularists7. R’ Soloveitchik advocated for female learning on the grounds of the modern age8. The realisation of a new era. On the other hand he firmly opposed R’ Emanuel Rackman’s agunah proposal arguing that R’ Rackman may have been correct but [R’ Rackman] was thinking historically and [R’ Soloveitchik] was thinking meta-historically9. This is surprising given the contradiction at hand. R’ Soloveitchik in his eulogy for his uncle expresses bluntly that there is no historical or scientific effect on halakha10. It has its own internal system11. Prof. Goldman echoes that legality has its own history and geography12. The issues are: R’ Soloveitchik demonstrated the historical impact and secondly the responsa of earlier leaders reveal otherwise. His son Dr. Haym claims external factors have little effect but downplaying the impact does not negate the effect13. It is possible to assume his position is that the law follows a methodology to accept the norm.
The sages in protecting the people and not upsetting the non-Jews instituted the principle of “the ways of peace” and “desecration of the name” in response to the external peace of the non-Jewish world. There is a dispute if the goal was to protect ourselves or to simply foster positive relations14. Whatever the rationale there are alterations to the law to better fair the non-Jew. R’ Y.Y. Weinberg in response to R’ Kook’s appeal to sell land during the sabbatical year to non-Jews15 and outlawing autopsies16 came to a similar conclusion. R’ Weinberg wrote that selling land will cause a disparagement of the Torah by Jews and the world17. The reaction of others is sufficient to forbid such an undertaking. In response to R’ Kook’s prohibition of autopsies, even assuming that the righteous amongst the gentiles will understand and we need not fear the wrath of the commoner, R' Weinberg asserted that autopsies have become a political matter and we must reserve the nations' approval18. R’ Weinberg in the latter case does believe autopsies are not only permissible but required to heal someone for disease that is currently deprived of a treatment. His student, R’ Eliezer Berkovits, took his decisions a step further. R’ Berkovits argued that the modern state struggles with halakha on the national level, something never existing before. Exploring the sabbatical year’s historical significance. In previous generations it made sense living daily but today the agricultural model is exporting products to maintain international commerce19. He applied the same historical criticism to autopsies and famously to women’s rulings20.
The law does not conform to societal demands. It examines the norm and decides to accept or reject freely. The Chofetz Chaim applauded female study due to social advancement. Prof. Aviezer Ravitsky demonstrates the friction in the orthodox community regarding history21. The tension between social impact and traditional growth. The modern Jew may disapprove of historical effect but he cannot deny its evidence22. R’ Lichtenstein echoed the effect of external forces acknowledging the impact as fundamental23. History plays an important role in the development of halakha. We cannot simply choose which we arbitrarily accept and others that we reject. Either it is meta-historical or it is historical24. There may indeed be metaphysical truths and ontological principles but those historically implemented need not be upheld and defended. We must caution such dogmatism, honestly acknowledging social consequences and historical context. It seems social reality is a powerful factor in determining conclusions. We do not let society compel us, only to inspire us.
Endnotes
1. R’ Isaac Klein remarks that “halakha has always been flexible and responsive to sociologic change”, incline with history. Orthodox authorities do so unconsciously, while conservatives do it intentionally. Isaac Klein, Responsa and Halakhic Studies KTAV, New York, 1975 pg. 133. See: Haym Soloveitchik, “Halakhah, Hermeneutics, and Martyrdom in Medieval Ashkenaz (Part I of II),” Jewish Quarterly Review 94, pp. 77-78. Minimising external impact does not nullify it. Prof. Katz’s analysis though he may not emphasise the prowess is still acknowledged by the earlier authorities themselves. The “unconscious-deduction” personally is textually inaccurate and seems more like a copout than honesty. Katz, The Shabbes Goy: A Study in Halakhic Flexibility, trans. Yoel Lerner (Philadelphia: The Jewish Publication Society, 1989), pp. 5-6.↩
2. Aviezer Ravitsky, “Dimensions and Varieties of Jewish Orthodoxy,” Modern Judaism and Historical Consciousness: Identities – Encounters – Perspectives, Christian Wiese and Andreas Gotzmann, eds., (Leiden: Brill, 2006), pp. 408-433. In a subsequent essay I expand upon this bifurcation categorically: two codes: R’ Epstein’s AHS and R’ Kagen’s MB, two poskim: R’ Weinberg (Seredei Aish) and Rav Kook and two chief rabbis: R’ Herzog and R’ Yosef. See: Dynamic Duos.↩.
3. Ibid, pp. 412-416. See: Benjamin Brown, The Hazon Ish: Halakhist, Believer, and Leader of the Haredi Revolution (Jerusalem: Magnes Press, 2011), pg. 320 n. 99 [Hebrew]. Prof. Brown expresses the sage’s realist tendencies toward halakhic analysis.↩
4. Avinoam Rosenak, A.I. Kook The Prophetic Halakhah: Philosophy of Halakhah Jerusalem, 2006 pp. 59-88.↩
5. “The Halakhic Debate over Women in Public Life: Two Public Letters of Rav Abraham Ha-Kohen Kook & The Responsum of Rav BenZion Uziel On Women’s Suffrage and Representation” Trans. Zvi Zohar Edah 1:2.↩
6. Yuval Fruend, Psychology of Above: Soulfulness of Rav Kook Rosh Yehudi, 2009 pg. 55. R’ Fruend brings a few examples of R’ Kook’s positive respectful attitude towards women.
7. [Shragai], “Oral Questions and Replies,” pg. 343. See: Benjamin Brown, Trade Unions, Strikes, and the Renewal of Halakhic Labor Law: Ideologies in the Rulings of Rabbis Kook, Uziel, and Feinstein Vanleer, Jerusalem, 2006. Brown admits it was cultural-historical. For R’ Kook’s liberal legal zionistic tendencies see: Lawrence Kaplan and David Shatz, Rabbi Abraham Isaac Kook and Jewish Spirituality (New York University Press, 1995).↩
8. Nathaniel Helfgot, ed. Community, Covenant, and Commitment: Selected Letters and Communications of Rabbi Joseph B. Soloveitchik, Jersey City, NJ: Ktav/Toras HoRav Foundation, 2005, pg. 83. The Rav believed coed education to be not only a necessity but lambasted the failure of other denominations to follow suit. See: Rabbi Joseph B. Soloveitchik and Coeducational Jewish Education.↩
9. Emanuel Rackman, “Soloveitchik: On Differing with My Rebbe,” Sh’ma: A Journal of Jewish Responsibility, 15/289, (March 1985), pg. 65. R’ Soloveitchik claims the dictum “women would rather be married than alone” (Kiddushin 7a) is a existential truth why this is so but not that “teaching one’s daughter Torah is lewdness” (Sota 21b), instead is subject to history seems hypocritical. A better example is the chazaka of a woman declaring boldly her husband has divorced her is factual but the Rema stated nowadays this does not apply (Even Haezer 17:12). The same logic can be applied to the RCA’s opposition of women rabbis on traditional grounds yet permit female study and wearing the blue dye. See: An Open Letter Of A Modern Orthodox Rabbi To The Ou’s Ban On Orthodox Women Rabbis. See also: The Rav and the Immutability of Halachah. These set ontological principles do not seem to be widely accepted throughout. It seems clear R’ Soloveitchik was concerned about the “slippery slope” phenomenon and a public conference denounced any affiliation with possible negative consequences. I do not know if this would have decimated Jewish law but it would have saved many women from terrible suffering. See: Ruth Halperin-Kadderi, “Tav Lemeitav Tan Du Mi-Lemeitav Armalu: An Analysis of the Presumption” Edah 4:1. Prof. Halperin-Kadderi cites multiple sources arguing for a sociohistorical view of the talmudic dictum. See: Masorah in the Teachings of Rabbi Joseph B. Soloveitchik “a complex of components” and notes 6-7.↩
10. Joseph B Soloveitchik, “Ma Dodech Midod” Divrei Hagut ve-Ha'arakha (Jerusalem: WZO, 1982), pp. 57-97. In And From There You Shall Seek by R’ Soloveitchik pp. 108-109, he does admit that halakha is dynamic. R’ Aharon Lichtenstein has effectively maintained the Rav did believe in the relevance of the sociohistorical setting “The Human and Social Factor in Halakha” Tradition 30.4 pg. 15 and “Texts, Values, and Historical Change: Reflection on the Dynamics of Jewish Law,” Radical Responsibility (ed. Michal J. Harris, Daniel Rynhold, and Tamra Wright; Jerusalem: Maggid, 2012), pp. 201–16. See: R’ Brafman’s article quoting Prof. Blidstein that people misconstrue R’ Soloveitchik’s halakhic philosophy as formalistic by overly concentrating on halakhic man. See: Blidstein, ibid. He uses terms such as “intuitive feelings” and “subjective moods” in Helfgot, Supra pp. 24-25. See: Yonatan Y. Brafman, “‘The Objectifying Instrument of Religious Consciousness’: Halakhic Norms as Expression and Discipline in Soloveitchik’s Thought” Dine Israel 32 pp. 36-38. It is plausible to note that halakhic man is not only an ideal but potentially theoretical. It is not the average Jews affiliation. Even so as noted earlier in the footnote, the innovative attitude can exist within an internal system. It may have its rules but flexibility is apparent.↩
12. Eliezer Goldman, Expositions and Inquiries: Jewish Thought in Past and Present, Hotsaʼat Seforim Magnes Press, Hebrew University, 1996, pg. 318 [Hebrew].↩
13. Haym Soloveitchik, “Halakhah, Hermeneutics, and Martyrdom in Medieval Ashkenaz (Part I of II),” Jewish Quarterly Review 94 (2004): pp. 77-78. Prof. Soloveitchik argues on formalist grounds, while Prof. Grossman argues allegorical and historical precedents were included to cease this practice. “The Roots of Martyrdom in Medieval Ashkenaz,” Kedushat ha-Hayyim ve-Heruf ha- Nefesh: Ma’amarim lezikhro shel Amir Yekutiel eds. Isaiah Gafni and Aviezer Ravitzky, (Jerusalem, 1993), pp. 99-130. See: Haym Soloveitchik, “Rabad of Posquieres: A Programmatic Essay,” in Studies in the History of Jewish Society in the Middle Ages and in the Modern Period, Presented to Professor Jacob Katz on His 75th Birthday, eds. E. Etkes and Y. Salmon (Jerusalem: Magnes, 1980), 30-31. Here Dr. Haym notes that a legislator reads objectively without any subjective inclinations. A true adjudicator would not allow his biases to penetrate his pure reading. This seems more ideal than probable. See Infra note 154 pg. 66 which Dr. Soloveitchik posits a differing view. See also: Halakha After Wittgenstein: Halakhic Meaning As Everyday Use, part 2 - tzerufim.↩.
14. Walter S. Wurzburger, “Darkei Shalom,” Gesher 6 (1977 / 1978), pp. 80-86.↩
15. M. Weiss “On Shmita before 1929” Pangs of Tradition and Change ed. M. Kahana Rehovot, 1990 pp. 75-90. [Hebrew]. According to Dr. Weiss, R’ Kook’s use of selling land was revolutionary, arguing on historical grounds. A.I. Kook, Shabbat Ha-Aretz, pp. 59-61. See: Arye Edrei, “From Orthodoxy to Religious Zionism: Rabbi Kook and the Sabbatical Year Polemic,” Dine Israel 26-27, 2008.↩
16. Abraham Isaac Kook, Da’at Kohen, Jerusalem 1931. Responsum 199 pg. 383.↩
17. Yechiel Yaakov Weinberg, letter to R’ Untermann 15 Sivan 5725, Shevet mi-yehuda, 1993, section 12 pg. 265.↩
18. Yechiel Yaakov Weinberg, “Autopsies in the State of Israel,” Tehumin 12, 1991 pp. 383-384. Seredei Aish #22.↩
19. Eliezer Berkovits, The Crisis of Judaism in the Jewish State, (Jerusalem: Rubin Mass, 1987) pp. 51 [Hebrew].↩
20. Ibid. pp. 65-66. For autopsies R’ Berkovits reasoned the majority of Jews in the land lends importance to the state taking control of helping the community instead of relying on non-Jewish findings. In regards to women he believed refusing female testimony was time bound and if not changed would be a desecration of God’s name. He also noted he could solve many issues including the agunah in the framework of halakha. Eliezer Berkovits, "The Status of Women in Judaism: A Socio-Halakhic Overview” Hagot 5 Misrad Hahinuch, 1983, pp. 44. The Status of Women in the Thought of Rabbi Professor Eliezer Berkovits ל"ז. For a further exploration of his halakhic philosophy see: Eliezer Berkovits, Halacha: Its Power and Function (Jerusalem: Mosad Harav Kook, 1981) [Hebrew]. See also: RABBI ELIEZER BERKOVITS: HALAKHAH AND MODERN ORTHODOXY. To be completely frank R’ Berkovits is not the typical archetype of Orthodoxy but I do think his model of thinking is quite intriguing. Although he was criticised notably by R’ Soloveitchik, I do believe many of his points have merit.↩
22. Haym Soloveitchik, “Religious Law and Change: The Medieval Ashkenazic Example,” AJS Review 12, pp. 205–221. Dr. Haym Soloveitchik downplays the effect of historical change on the basis of being a historian but based on his research it is revealing that he affirms social change even if not ideally.↩
23. Aharon Lichtenstein, “The Human and Social Factor in Halakha” Tradition 30.4 pp. 8-10, 14.↩
24. The discussion of meta-historical vs historical is similar to the formalism vs realism debate. For a brief understanding see: Supra. note 6 and Aviad Stollman “Writing the History of Halakhah: Positivists and Contextualists” ed. Amihai Berholtz, The Quest For Halakhah, (Tel-Aviv: Yediot Aharonot and Beit Morashah, 2003) pp. 335-353. The debate revolves around the nature of the legal system. The latter is more flexible than the former. Utilising external knowledge generally of science to prove a reasoning through the halakhic sources. Killing lice (R’ Melamed) and brain death by Prof. Abraham Steinberg are two examples. Abraham Steinberg, Mavet Mohi-Neshimati (Jerusalem: Mervachim, 2012) pg. 20. Additionally, the formalism-realism debate can be retitled in Jacksonian terms: semantic-narrative ruling debate. In the case of Beitzah 25b of a blind man forbidden from taking his cane with him, Maimonides (Hilchot Shabbat 5:3) and R’ Karo (SA OC 301:18) codify the Mishnah word for word. As we saw the Shita Mikubetzet does permit in necessary cases. It is unclear to me if Maimonides and R’ Karo are supplying semantic readings to be enforced as such (though in other cases his copying of seemingly difficult laws like not compensating a non-Jew for damages may hint at a semantic reading). The commentaries on SA argue, s/he/ does not take the cane because s/he can do without (Baer Hetiv, Magen Avraham, Kaf Chaim, Mishneh Brurah). R’ Melamed quotes R’ Epstein adds a visual example that it would be necessary if s/he is in an unfamiliar neighbourhood (AHS 301:72). In a footnote he further notes that because nowadays blind people are taught to walk with a white cane, without it they may feel a sense of unfamiliarity allowing them to use it to traverse the area (PH Shabbat 21:13).↩
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