Out of Bounds: Part 7--Stricters Measures
By: Jonathan Seidel
“Sacred Opponents”
Despite all this intended development there are many who claim there is no growth1. There is a formal tendency to do away with all social change. This as mentioned earlier is the meta-historical ideology. This is best presented by the ultra orthodox community2. Many who have rejected any notion of development due to external changes. The irony is that the present philosophy of isolationism and stricter conduct is innovative itself as well as a response to the modern changes. Many of these religious individual’s parents lived in urban Europe. It was the fear of modernity that compelled them to retreat to survive. Dr. Soloveitchik examines this phenomenon in his explanation of the shift to the right and the recent emphasis on text3.
The stringencies against female learning, secular studies, and modesty are creative ideas to preserve continuity. I understand their claim but too strict is not healthy nor is it legally viable (Tos. Yevamot 1:13)4. Profs. Waxman and Freidman propose an alternative reasoning to this development. Attributing the centralisation of the yeshiva as the decider of law as opposed to the traditional communal rabbi and social structure5. They have essentially bundled themselves up hiding from the outside world. This is known as legal formalism. As R’ Soloveitchik6 and R’ Bleich7 maintain there are pre-existing rules and an a-priori systematic nature transcending reality. Prof. Benjamin Brown admits he believes in this system, discussing it at length8. Prof. Schremer adversely notes that he focuses on the codes which vary increasingly from responsa9. He adds that people value this system because it proclaims the sages’ infallibility10. The idea that the sages may have been mistaken scientifically11, have made inflammatory remarks about women12, and sinned is not only possible but at least regarding the latter inevitable (Ecclesiastes 7:20). The system is not complex but organismic13; not negating external impact. Breathing is effortless but organismic mechanically. Its expression can be compromised by foreign factors complicating breathing. Alterations (medicine+bodily aid) are made to fix the issue. Halakha follows the same philosophy. The system has its own mechanics but social and scientific advances require new medications to overcome the “peripheral diseases”/accommodate the changes.
Society inevitably grows and remaining binded to an ancient truth is powerful and dangerous. We outlaw slavery despite its permission in the Bible and Talmud14. Times have changed and humanity has advanced15. Similarly women are not regarded as second class citizens. Judaism has a positive view of women but that does not negate certain considerations that are socially incumbent16. Recognising sociological factors elucidates the philosophical underpinnings of laws proposed. R’ Kook’s insistence on modesty to prohibit female inclusivity17 I think somewhat perverts the concept of modesty. Women can be modest in the public sphere. Hiding them in the kitchen to follow traditional roles is not the proper course of action. As long as she does not forget her armour at home she can succeed (this applies to men as well). There is not only a modest way to dress but a method of modest expression. Modesty is not exclusion to “protect” but reflective inclusion. Metaphysical truths may exist but cherry picking is disingenuous. R’ Weinberg followed by R’ Berkovits attributed social factors not only to their decisions but also to their underlying thinking. Change transpiring does not automatically permit but rather the change is questioned; inquiring if this change resonates with our religious philosophy18. Autopsies made the cut for R’ Weinberg, female voting for R’ Uziel and female Talmud study for R’ Soloveitchik. Women are highly intelligent and capable of participating alongside their male counterparts productively and modestly. The Jewish effort in the global cooperation to aid those in need is expressed by Israel’s assistance in providing care for the needy. Leaders in medicine and technology, obligates us to share our findings.
R’ Yuter argues that haredi authorities do not negate flexibility; latitude is afforded but limited19. Halakha evolves over time20. Interestingly, certain haredi leaders adjudicated differently in their youth before taking on the conservative mantle. R’ Elyashiv was lenient and quite liberal in his early cases. These were not small but one’s specifically supplied by the Chief Rabbi, R’ Herzog himself for the young scholar. Yet, in time as he became the central figure of the rabbinical court, his liberal side vanished into a staunch stringent decisor21. The main thrust behind the da’at Torah ideology is the centricity of decision making in a select few for all life issues. This attitude has evolved into an ideological phenomenon lacking traditional support. They reject anyone who is not aligned with their interpretations or construct a revisionist history of those respected. To fit their ideological needs, there is much interpretation and construction of new norms. The haredi community refuses to serve in the army against halakhic precedent22. Continuing with the army theme, the Chazon Ish’s opposition to women serving had no legal argument. Sociological considerations are permitted albeit limited but only authorised by a select few. Yet, it is policy not law that is primary. Even if legally permissible the minute authority will reprimand to maintain their agenda23.
The canonisation of a text does prove the truth of the opinion. They interpreted to the best of their knowledge and their society. They canonised that women should not learn but now we affirm they must, so too with forbidding killing lice. They are finite, imperfect, mortal men. Halakha is internally dynamic, to what extent it evolves is questionable. R’ Cardozo goes as far as to assume there is a lack of courage today24. I think there needs to be a balance and genuine engagement with contemporary issues. We should not accept nor reject every social change25. We must effectively oscillate. The rabbis in their wisdom are the knights of the halakhic palace examining each issue at the gate ensuring tranquil entry.
Endnotes
1. A recent essay tackles the divide between innovation and preservation, liberal versus conservative. Beginning with Hillel and Shamai to R’ Yehoshua and R’ Eliezer through the ages. The issue is not whether this concept is novel. As noted, I decry the ahistorical narrative that change has never occurred. One can be a traditionalist and not favour innovation but he can not deny its necessity nor its ancient roots. See: King Dad. Additionally, R’ Ginzberg argues that the respected schools’ legal tendencies followed economic statuses. Shammai the wealthy and Hillel the poor (Avot de-Rabbi Natan A:3, B:4). See: Louis Ginzberg, “The Significance of Halachah For Jewish History” On Jewish Law and Lore (Atheneum, 1955) pp. 102-104. Hillel’s liberal/lenient model of inclusion reflects the social level he was targeting.↩
2. Although this is the general rule of the ultra orthodox, R’ Auerbach and the Chazon Ish (famously his decisions were lenient but his followers opted stringently) are the general exceptions with changes and leniencies (Supra note 82). See: Aryeh Klapper in his essay Is There a Modern Orthodox Way to Decide Halakhah? notes they do make changes, they just incline stringently. While this is true, it is not really making novel changes. You are simply adding an additional step to the procedure. Stricter regulations on clothing is not novel in the classic sense but does alter the prior way. Menachem Friedman, Haredi Society: Sources, Trends, and Processes (Jerusalem: Machon Yerushalayim Le-Heker, Israel 1991) pp. 15-17. R’ Novak explains R’ Klein’s criticism of orthodox authorities “freezing” halakha as acknowledging prolific scholarship but failing to utilise the wide range of tools. David Novak, “Is Conservative Halakhah Possible?” Judaism 25:4 pg. 496. I believe many orthodox authorities would make a similar argument regarding their haredi counterparts. To be conservative is simple. An extra layer is not problematic. It is the liberal route that is daring, requiring immense knowledge and creativity.↩
3. See: Haym Soloveitchik, “Rupture and Reconstruction” Tradition 28:4. Prioritisation of text was not a new phenomenon. Tosafot in the early mediaeval period, textualised the Talmud (Fishman. Becoming People of the Talmud pp. 141-146) something their goenic predecessors objected to (n. 69). There is an interesting difference, where Tosafot was liberally inclined, haredim have been conservative. Despite both acting canonically each side differs in its methodology. The dialectical argumentation and equal footing of scholars spurred debate and innovation but the lofty teachers of the latter procured a conservative preservation approach. The haredim acted similarly to mediaeval sefardi ideology. Both sects being ashkenaz begs the question: was there a reversal to orality and then eventual return to textualisation? Pilpul was not accepted by everyone and its decline in the early modern era, may have reversed text back to a custom centred identity only to be shifted in light of the enlightenment and holocaust.↩
4. Reclaiming Orthodox Judaism. R’ Marc Angel expresses his concerns for the Haredi community and its excessive narrowism. Personally I have witnessed some changes but there is more to grow.↩
5. Chaim Waxman, “Towards a Sociology of Psak” Tradition 25.3 pp. 15-17. The ultra-orthodox should be respected for their decisions. There are many positives for their method of life. Prof. Waxman acknowledges them “American Modern Orthodoxy: Confronting Cultural Challenges,” Edah 4:1, and Shagar, Faith Shattered and Restored: Judaism in the Postmodern Age, ed. Zohar Maor, (Jerusalem: Maggid, 2017) in a chapter titled “Authentic Haredism” advocates the movement to be followed with a few changes to their perspective: recognising their incredible commitment to tradition and community. I disagree, but accept the success and allegiance to the ideology.↩
6. Joseph B Soloveitchik, “Ma Dodech Midod” Divrei Hagut ve-Ha'arakha (Jerusalem: WZO, 1982), pp. 57-97.↩
7. J. David Bleich, Contemporary Halakhic Problems. Vol. 4. New York: Ktav and Yeshiva University Press, 1995.↩
8. Benjamin Brown, “Formalism and Values: Three Models” in New Streams in Philosophy of Halakhah, eds. Aviezer Ravitzky and Avinoam Rosenak (Jerusalem: Magnes Press and Van Leer Institute, 2008), pg. 244. Prof. Brown does admit the law is influenced and changes but there is still an organic structure. Dynamic growth occurs inside the system. See: Walter S. Wurzburger, “The Oral Law and the Conservative Dilemma” Tradition 3:1 pp. 85-87. R’ Wurzburger notes the conservative movement’s changes were valid to orthodoxy, the methodology was just incorrect. It is not necessarily “what” changes but “how” it changes. He noted that halakha needs to account for socio-cultural concerns but disagreed that Rabbis respond to changes themselves, not changing the principles/system itself. See: Walter Wurzburger, “Is Sociology Integral to Halakhah,” Judaism 29:1 pg. 26.↩
9. See: Berachyahu Lifshitz, “The Legal Status of Responsa Literature” Authority, Process and Method: Studies in Jewish Law ed. Hanina Ben-Menahem and Neil S. Hecht. (Amsterdam: Harwood Academic Publishers, 1998) pp. 89-98. Prof. Lifshitz concludes that there is no notion to prioritise responsa over the codes. Maimonides codified the case of the “lethal” wife whose two husbands have passed, forbidding her from remarrying a third time (Issurei Biah 21:31) but in a responsum wrote otherwise (Responsa no. 218); he did not uphold it in practice. See: Hanina Ben-Menachem, “The Second Canonization of the Talmud” Cardozo Law Review Vol. 28 pp. 37-51. The law to be-applied at times contradicts the codified listed numeral in its flexible implementation. Though this does not mean that one cannot rely on a responsa. Responsa are subjectively induced to the questioner providing potentially temporal authorisation. R’ Soloveitchik’s responsa demonstrate a sense of non-formalism. See: Gerald Blidstein Society & Self: On the Writings of Rabbi Joseph B. Soloveitchik (New York: OU Press, 2012), pg. 38. Additionally, as Prof. Wimpfheimer has pointed out the power of narrative to the law in the Talmud in “breaching the canonicity of the law” Barry S. Wimpfheimer, Narrating the Law: A Poetics of Talmud Legal Stories (University of Pennsylvania Press; Illustrated edition, 2011) pg. 54. This concept can also be applied to responsa: narratives act as the social and/or economic realities synthesising the law persistently with it. The codes may list the ideal compilation but the law stretches to “accommodate” the necessary societal personality.↩
10. Adiel Schremer, “Toward Critical Halakhic Studies” The Tikvah Center For Law and Jewish Civilisation, 2010. pg. 16.↩
11. Re-imagining Orthodoxy. See: Lawrence Kaplan, “Daas Torah: A Modern Conception of Rabbinic Authority,” Rabbinic Authority and Personal Autonomy, ed. Moshe Sokol, Northvale, Jason Aronson, 1992, pg. 17.↩
12. Norman Lamm, Separate Pews in the Synagogue Tradition 1:2 pg. 148.↩
13. Max Kadushin Organic Thinking: A Study in Rabbinic Thought (New York: Bloch, 1938) preface.↩
14. The Slow End of Slavery - Rabbi Sacks on Parsha. Michah Gottlieb, "When Orthodoxy Goes Too Far." The Jewish Daily Forward, 2012. The Tur and SA both discuss slave laws (Yoreh Deah 267:18). Jews had slaves, see: David Brion Davis, “Jews in the Slave Trade” Culturefront (Fall 1992) pp. 42-45 and Eli Faber, Jews Slaves and the Slave Trade: Setting the Record Straight. New York: New York University Press, 1998. The Bible permits buying non-Jewish slaves to pass on to kin. Regarding them as possessions (Leviticus 25:44-46). The Talmud further elaborates that freeing such a slave is violating the command of eternal servitude (Berachot 47b). Shmuel innovatively adds to not humiliate them (Niddah 47a) but it is Maiomnides who first focuses on ethical treatment (Hilchot Avadim 1:6, 9:8). For a further analysis of the legal development and modern relevance of the laws of slavery see the first section of my: Eternal Entities?. In the ensuing section of the same essay I discussed theological dogmatism. Utilising such a concept is aligned with external influence. The sages did have their own type of dogma according to R’ Kadushin but Dr. Kellner redefines these dogmas as statements. See: Max Kadushin, The Rabbinic Mind (New York: Bloch, 1972) [3rd edition] pg. 340 and Menachem Kellner, Must a Jew Believe Anything? London and Portland, Oregon, 1999 pp. 38-39. See also: Shlomo C. Pill, “Law as Faith, Faith as Law: The Legalization of Theology in Islam and Judaism in the Thought of Al-Ghazali and Maimonides” Berkeley Journal of Middle Eastern & Islamic Law, 6(1) for a similar view to the latter. Dr. Kellner persists that it was external pressure that constructed these dogmas in opposition to Dr. Berger’s thesis of prior existence (pp. 49-51). See: David Berger, “Review of Menachem Kellner’s Must a Jew Believe Anything?”, Tradition 33:4 (1999) pg. 83. Additionally, Prof. Berman diachronically argues the rise of new religions, Christianity and Islam, differed heavily from their ancient counterparts creating creeds. The ancient world did not have words for belief nor any creed as it was more a lifestyle than a system, orthoprax not orthodox. Once belief transitioned from the private sphere of the tribe to global indoctrination, creeds were necessary to bind people together. Joshua A. Berman, Ani Maamin: Biblical Criticism, Historical Truth, and the Thirteen Principles of Faith (Maggid Books, 2020), pp. 192-195. Dr. Haym pointed out Maimonides elevating mosaic revelation as a principle was a direct response to Islamic attack that every word of the Qur'an was dictated to Mohammed prophetically. See: Haym Soloveitchik, “Two Notes on the Commentary on the Torah pf R. Yehuda he-Hasid” Turin 2 (2008) pg. 243 n. 6. Either way whether they were created (Kellner) or existed then exposed (Berger) Jewish dogma responded to external polemics of its legitimacy.↩
15. Nahum Rabinovitch, “The Way of Torah” Edah 3:1 pp. 8-12.↩
16. The Importance of Women in Judaism.↩
17. “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.↩
18. The reformers’ attempt to abrogate the second day festival failed. Even with a sufficient historical argument, certain leaders such as the Hatam Sofer rejected this claim on metahistorical grounds, to a point of biblical supremacy. See: Jacob Katz, Divine Law in Human Hands (Magnes Press: Jerusalem, 1998) pp. 255-319. This issue also questions kitniyot. Though their uncompromising attitudes do not translate to an openness of change.↩
19. Alan Yuter, “Positivist Rhetoric and Its Functions in Haredi Orthodoxy” Jewish Political Studies Review 8:1/2 pp. 130, 139. See: Avi Safran, “The Perils of Pluralism: A Defence of ‘Right Wing’ Orthodoxy” Association of the Jewish Outreach Program 1:1.↩
20. Avraham Karelitz, Igrot HaHazon I and Menachem Schneerson, “Torah and Judaism” A Thought for the Week 1:1 pg. 5.↩
21. See: Avraham Reiner, ‘‘R’ Yosef Shalom Elyashiv as a Halachic Decisor,’’ Modern Judaism, Vol. 33:3, pp. 263-270, 281. In his conclusion, Prof. Reiner cites R’ Elyashiv’s wife and daughter’s testimonies as painfully distanced and detached from him. He was in a world of pure mechanical legislation. The absence of reality criteria or extra legal factors is indicative of his alienated presence. Prof. Goldman rebuked R’ Elyashiv as out of touch, writing: ‘‘It is not by coincidence that the most popular current haredi ideology turns psak halakha into simply a formal act without consideration to the great needs of the hour.’’ Eliezer Goldman, Judaism without Illusion (Jerusalem, 2009), pg. 34.↩
22. Samuel C. Heilman, Defenders of the Faith: Inside Ultra Orthodoxy Jewry (New York: Schocken, 1992) pp. 101-102. R’ Eichler refused to serve despite his father's history because his father was fighting for the nation, not the state. He incorporates external influences into his decision to decline.↩
23. A more jarring case occurred in Yeshiva University regarding a gay club in their law school. R’ Yuter wrote this article in 1996 and it has recently resurfaced as an issue on campus. Beyond the politics as there is still today opposition. R’ Keller berated R’ Lamm for not shutting down the school or dismissing the club. There is no issue with homosexual gatherings nor with being homosexual. It is the act that is problematic in tradition. Ironically much disagreement in the university itself grew in response to this club. Based on R’ Yuter’s reasoning there should be no problem. YU can accept the club without promoting a biblical prohibition. Modern Orthodoxy has already recognised the scientific consensus that one is naturally homosexual and does not choose. See: LGBTQ Students File Complaint Against Yeshiva U. The decision of the student council to abstain I do not think was executed in malice (albeit knowing the president for many years). In my understanding of halakha this should be an open shut case. They can even mimic what transpired twenty years ago at Cardozo in the former example. Personally, the hesitation by the administration to concede may stem from two issues 1. It's too close to home. Permitting the Cardozo gay club was a graduate school and was not as closely tied to YU as its own undergraduate campus. Given that most of the halakhic authorities are the same it's possible that their uncomfortability is clouded in opposition to this public display. 2. Dr. Soloveitchik wrote about a shift to the right aka “haredization of orthodoxy” as coined by Prof. Waxman. In this vein, what was permitted twenty years ago is not tolerated today. The authorities’ views back then were more lenient but today are far more stricter. This issue clearly reflects an ideological front, not a legal problem.↩
24. Nathan Lopes Cardozo, The Problem and Future of True Halacha.↩
25. R’ Tam rejected using new inks because it flowed too freely but accepted preparing animal skins for parchment because the Sages utilised the best means available. Prof. Ta-Shma explains that animal skins were an old phenomenon and ink was newer in France. In Germany it was widely used so R’ Simcha of Speyer accepted it. See: Israel Ta-Shma, Halakhah, Minhag u-Mezi’ut be-Ashkenaz (Jerusalem, 1996), pp. 192-202.↩
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