What Is Modern Orthodoxy: The Gray Area (Column 476)

In the previous column we saw the difference between two kinds of conservatism: a literalist conservatism that advocates observing the dictates of tradition as they are, and a midrashic conservatism that advocates observing them in line with interpretation suited to contemporary circumstances. We saw that in practice the difference is one of ethos more than essence, since in practice all Jewish Orthodoxy is midrashically conservative—albeit in varying degrees. In this column I will complete the discussion by pointing to the gray area in which the differences blur between the midrashic and the literalist conservative, and between the midrashic conservative and the reformer or heretic. The first blurring appears via a fascinating phenomenon of a “literalist midrash,” in which even a literalist conservative must resort to midrash to anchor his interpretation. This blurs the line between the midrashic and the literalist conservative. I will then discuss responses to changes in values rather than in factual circumstances, where the boundary between the midrashic conservative and the reformer or heretic becomes blurred. Along the way I will rely on several claims about the development of halakhah and will not be able to go into each one in detail. I will suffice here with a fairly schematic outline of the different arguments with a few sources and examples.

Midrashim Based on Changes in Scientific Knowledge

There are conservative midrashim that rely on new scientific knowledge. Today we know things our Sages in the Talmud did not know, and therefore comes the suggestion to change the relevant laws that were derived from those assumptions. For example, killing lice on Shabbat. The Talmud permitted it, based on a scientific assumption now accepted as incorrect (that lice do not reproduce). Or the permission to desecrate Shabbat for “shuryenei de’eina” (see Avodah Zarah 28b). According to Rashi there, the permission rests on the view that an injury to the eye poses a risk to life, which in my estimation does not seem correct in light of contemporary medical knowledge. The same goes for terefot (fatal defects) in humans and animals, and many other examples.

I will preface by saying that in such issues the midrashic conservative stands on firmer ground. He need not propose a conservative midrash, since the Talmud itself states the rationale for the halakhah. They link the laws of terefot to the fact that a tereifah does not live beyond twelve months, and today we know that in at least some cases this is not true. The conclusion of the midrashic conservative is that we should change the laws of terefot. But here it is not done in light of a change in circumstances, but because of a change in our knowledge about them. Today it is known that these were the circumstances even in the time of the Sages; they just did not know it. In such a case the midrash is much stronger, for there is no change to the law but a kind of correction of error. Ab initio the Sages would not have ruled as they did had they known the facts accurately. To my understanding, this requires no special authority, since it is not considered a halakhic change but a correction of a mistake.

Incidentally, note that in the case of lice the midrashic change is a stringency, contrary to the popular impression that midrashic conservatives always seek leniencies (see the question in the talkbacks to the previous column and my reply there).

“Literalist Midrash”

Behold, the Chazon Ish, in addressing these questions, proposed a far-reaching novelty (Nashim 27:3; Yoreh De’ah 5:3; see a survey here, especially the opening citation from the Chazon Ish). The Gemara in Avodah Zarah 9a divides human history (which according to tradition is meant to last six thousand years) into three parts: two thousand years of chaos, two thousand years of Torah, and two thousand years of Messiah. The Chazon Ish’s claim is that the relevant scientific reality is that which prevailed in the two thousand years of Torah—that is, roughly the Talmudic period. Therefore, even if today we have improved scientific knowledge—and without resorting to the ridiculous apologetics that the Sages were right and science is wrong—the Chazon Ish argues that the decisive facts for halakhah are the (mistaken) facts in which they then believed.

This is an excellent example of a midrash by a literalist conservative. He tries to argue that halakhah should not change, not only in light of changing circumstances, but even in light of changes and expansions in our knowledge about them (which, as I explained, are even easier and more warranted to change). In this sense we are dealing with an ultra-literalist conservatism. Yet to that end he needs a very speculative midrash, which takes an unclear aggadah from the Talmud and applies it in a context unconnected to it in any way. This is, of course, sheer invention, and the only reason anyone is prepared to treat it seriously is the result: if accepted, it allows us to preserve halakhah literally even when it is clearly based on error. In such a case even the most fundamentalist literalist conservative knows he is at a disadvantage. The Chazon Ish himself evidently felt that in this case he could not merely assert a conservative claim against midrashic conservatives, and indeed he resorted to his bizarre midrash about the two thousand years of Torah. In other words, he understood that the burden of proof lay upon him, and he tried (unsuccessfully) to carry it by means of a midrash. That midrash is, of course, utterly untenable, but literalist conservatism in its distress resorts even to untenable arguments (in my opinion its arguments are untenable even in the ordinary cases, as I explained in the previous column).

A similar “literalist midrash” seems to appear in the well-known words of the Vilna Gaon (the Gra) about rabbinic enactments. He claims that even when a clear and known reason is given for a given enactment, there are further hidden reasons the Sages did not reveal, and therefore one cannot rely on the known reason to change the law. In a certain sense, this too is a literalist midrash. He speaks of a case where the reason is clear (and perhaps even stated explicitly in the enactment, like “lest he tilt”). The assumption that there are further hidden reasons is a conservative claim that can be called a literalist midrash—it removes the words from their plain sense and invents a theory to support a literalist conservative stance. Note that in at least some sense this midrash exists in every claim of literalist conservatism (since they always lean on hidden reasons; the novelty here is that they do so even when there is a known reason).

The phenomenon of literalist midrashim sharpens my claim from the previous column: every approach to halakhah rests on interpretation. There I argued against the popular illusion that the midrashic conservative needs interpretive midrash, whereas the literalist conservative simply follows halakhah with no need for midrash or interpretation at all. From this literalists infer that the burden of proof is on the midrashists, for there is a presumption in favor of the literalists. But as we saw here, literalist conservatism also relies on interpretation, and in such cases it is speculative—in fact downright outlandish. The conclusion is that we are dealing with two interpretations standing opposite each other, and we must decide in favor of whichever seems more reasonable. Therefore, as I explained, rules of presumption are irrelevant to this discussion.

The phenomenon of the literalist midrash indicates that the distinction between midrashic and literalist conservatives is not sharp, since both sides rely on interpretive assumptions about the dictates and the tradition. The illusion that the literalist conservative simply adheres to halakhah as it is and requires no interpretation is incorrect. We now turn to the blurring between midrashic conservatism and reform, via a discussion of proposals to change halakhah in light of a change in values (and not facts).

Change in Circumstances vs. Change in Values

In the previous column I addressed the proper halakhic response to changes in factual circumstances (i.e., in reality). Yet in many cases, over time, values also change (see the question raised here), and sometimes such change is the basis or the result of a change in circumstances. For example, the factual change regarding the nature of women is accompanied by a value change. Women today are closer to men in several respects, and in parallel gender equality has become a core value. Can conservatism live with changes in halakhah on a value basis (not dependent on factual change)?

Seemingly not. In the previous column I explained that facts are not Torah, and therefore changing facts and the application of halakhah to them does not contradict the principle of the Torah’s eternity. What halakhah includes are the normative dictates, not the facts. And what about a halakhic response to changes in those [dictates]? A value change means adopting contemporary values—external by their nature (liberal or conservative)—at the expense of the Torah’s values. That is a frontal contradiction to the eternity of the Torah, no? What does commitment to the Torah mean if we also change our basic value assumptions in line with contemporary winds, or by any other influence?!

If we return to the example of the presumption “a person does not repay before time,” I dealt with what becomes of it in a situation where people do repay early. I explained that this is only a factual change, but the halakhic rule that a presumption can shift the burden of proof is Torah and indeed eternal. That cannot be abandoned. Consider what would happen if someone were to claim that today it is not accepted to rely on presumptions to shift the burden of proof, and therefore in halakhah too we should change this. Is that a legitimate conservative claim? What does it conserve? The midrashic conservative conserves the principle after a midrashic reinterpretation, even if not its application to the facts. But if one does not conserve the midrashic principle as well—the values and the dictates of halakhah—what remains here of conservatism? Likewise, a proposal to qualify women as witnesses by virtue of the principle of equality (not by virtue of the factual change they underwent, which would have led the Sages themselves to accept them today, as the midrashic conservative in the previous column claims) is a clear deviation from halakhah. Such a proposal preserves nothing. If such a conservatism is possible, then we have a different gray area—one in which it is hard to distinguish between the midrashic conservative and the reformer or heretic.

This is a very difficult question, and for many years I thought that indeed here the line is drawn. A value change preserves nothing, and therefore there can be no midrashic conservatism that argues for halakhic change in light of a value change. But on further reflection, the picture is not so simple, for two main reasons: 1) What we see as the “values” of halakhah are themselves a product of interpretation. 2) The Talmud’s authority is not with respect to values but with respect to halakhic dictates. I will now detail these two claims.

1. On Values and Interpretation

The Torah does not say that women are disqualified from testimony, and therefore it is not correct to say that the Torah itself declares the principle of equality unimportant in its eyes. That is an interpretation (or derash) of the Sages. On what is it based? Especially since the derash from which women’s disqualification is learned is highly dubious.[1] It seems that this midrash is an asmakhta for a value judgment by the Sages, who deemed it proper to disqualify women from testimony. If so, we are dealing with the values of the Talmudic Sages, not necessarily those of the Torah. They employed values they themselves believed in (as a result of their environment? other factors? or simply from their own hearts? or perhaps from their understanding of Torah or of morality and from their reason? and perhaps all of the above?), and derived from them the disqualification of women. Why, then, should I not employ my own value-laden interpretation, based on my own value assumptions?! This is not a change to the Torah’s values but the application of the Torah’s dictates under new value circumstances—exactly as the Sages did.

One could even formulate here a principle that at first glance looks like a conservative midrash: the law then was stated when the principle of equality was not important in people’s eyes. Today equality is important (this is a value change that can in fact be viewed as a kind of factual change the society has undergone), and therefore women should now be qualified as witnesses. To sharpen the present discussion I will present this claim even under the (incorrect) assumption that factually women today are similar to what they were then.

Seemingly this is a conservative midrash similar to what we saw in the previous column. But upon a second look we see a problem. If I wish to see the proposer of such an idea as a conservative, I must examine what exactly he is conserving. He may claim that his approach does not contradict the Talmud because of the aforesaid midrash, but it seems that it indeed preserves nothing from the Talmud. In the bottom line, what of the Talmudic law disqualifying women’s testimony remains? Buddhist meditation does not necessarily contradict the Talmud, but we cannot say that practicing meditation is an option of halakhic conservatism.

There is, however, another subtle point. In the “standard” conservative midrash one performs midrash on the meta-halakhic plane. In this midrash one performs midrash on the meta-meta-halakhic plane. We can formulate it thus: we assume that even the disqualification of uneducated groups from testimony (the product of the factual, conservative midrash of the previous column) was not essential. The Sages disqualified women (or such groups) only because they were responsive to the value system of their time, which held that one lacking education did not merit equality (as with slavery). Women should remain on the sidelines, or at home. That is, one should not see the Talmudic law (women’s disqualification) as a value principle legitimizing discrimination but as a response to a then-prevailing worldview.[2] If so, in our day, when lack of equality is a moral flaw, then just as the Sages in their time responded to the value demand that prevailed then and incorporated it into halakhah, so too do we in ours. One could even say that in this way we truly continue the path of the Sages.

This already sounds better (at least logically), but there is still room to wonder: what, nonetheless, is preserved here from the original law? In what sense is this a conservative proposal? I truly agree that here nothing of that specific halakhah is preserved. But note that such a proposal merely says that the halakhah disqualifying women from testimony has no value basis in halakhah, and therefore specifically in such a law there is nothing to conserve. A conservative (midrashic) may certainly change it, even if in the bottom line nothing is preserved here. The claim is that in a sense this is a value lacuna that can be filled according to our understanding. Just as with the custom of avoiding legumes (kitniyot) on Passover (see column 2), there is no reason to preserve it if it does not reflect some value dimension (but is merely a “concern” that no longer exists; see there).

I fully understand the concern likely to arise in a reader of such a proposal. One could raise such proposals for any and every halakhah, thereby emptying halakhah entirely of values—and effectively emptying conservatism of content as well. We would erase the entire difference between conservative and innovator, perhaps apart from formulations and rationales (which, while not entirely meaningless, are hard to see as the exclusive criterion of conservatism), and along with that we would in fact erase commitment to halakhah. But it is important to distinguish between fears and arguments on the merits. The fundamental question is whether this argument is correct. Where it leads, and slippery-slope concerns, are secondary questions (they too are important, but I am not dealing with them here).

Moreover, the proposal here is to make such a change only with respect to certain halakhot, not the entire halakhic system. It concerns only those laws that (midrashic) interpretation sees as expressions of an ancient value spirit that has changed. In such halakhot there is room for change arguments of this kind. By contrast, the prohibition of pork, Shabbat observance, tithes, purity and impurity—these will be much harder to attribute to ancient values (though perhaps not impossible). Hence the fear that such an argument would be applied across halakhah is slippery-slope hysteria. I have already written that such hysteria is irrelevant to the initial discussion. Each argument must be weighed on its own merits; if it is correct, it should in principle be accepted. Only afterward may we consider whether there is room to behave not according to law (i.e., to be a “sinning conservative”) because of slippery-slope arguments. That is appropriate only in exceptional cases, which can be addressed through a rabbinic decree or ordinance.

It is important to understand that there is no impediment to claiming that certain halakhot were not created on a value basis, or that they are merely a response to the values then prevalent. It need not be that every single halakhah has an original value substrate from the Holy One, blessed be He, requiring preservation. Therefore every argument for change regarding any given law demands examination on its own.

In passing I will note that in general it is difficult to speak of the Torah’s “values.” In many cases (though not all), we are dealing with our interpretation of the Torah, and of course that is influenced by the values in which we ourselves believe. On the contrary, in situations where the Sages deemed it proper, they even changed the values reflected in the Torah and adapted them to their own. The fact that demands for change align with contemporary values is perceived by conservatives as a kind of accusation—capitulation to the spirit of a decadent West. But that is nonsense. The West adopted such values for certain reasons, and for those same reasons I too truly and sincerely believe in them. Now these are my values, and the question of where they come from and what influenced me is unimportant. No person is free from patterns of influence beyond his birth. If in the bottom line this is what morality requires in my view, then to me that is the will of God. And if it is the result of Western or other influence—so what? “Believe that there is wisdom among the nations,” and we learn character traits even from a cat and an ant. As noted, the “original” values championed by the literalist conservative were drawn from foreign sources. They fit the world of then, not our own. Was that world holier? In my view, in most cases it was less holy.

In places where a halakhah rests on the Torah’s values and we have no reasonable conservative midrash or contemporary values that lead us to think we should change, there the conservative (even midrashic) will not change the law. There are many such halakhot (see below). It is therefore incorrect that an approach proposing conservative midrash also on the basis of value changes is non-conservative. As noted, this has been done throughout history, from the Sages to our day. The difference is one of ethos, not practical outcome.

2. The Talmud’s Authority Regarding Values

We have seen that the values underlying halakhah are usually the product of the Sages’ interpretation over the generations and are not anchored in the Torah itself. But this still does not fully solve the problem, since there is a widespread assumption that the Talmud has absolute authority in the halakhic domain. Without delving into the sources of this assumption, let me say that I agree with it. This raises the question whether that authority does not preclude conservative midrashim. I explained that conservative midrashim based on facts do not contradict the Talmud but point to the way to adhere to its dictates under different circumstances. But with a conservative midrash based on values the situation is different: here we deviate from Talmudic values, and as above the question is whether this is possible. I stress that my words here concern halakhot that have a value basis, not those for which the conservative midrash claims there is none (as we saw above regarding women’s testimony and the value of equality). My claim is that even in such cases, so long as the value does not appear in Scripture itself but is the product of interpretation, there is no obligation to adhere to it. My claim is that the Talmudic Sages have authority in their halakhic rulings, but not in their value assumptions.

At first glance this is naïve. After all, the halakhic rulings rest on value assumptions (at least in the cases I am addressing here). What does it mean to adhere to the rulings without adhering to their value basis? My claim is that if we had the assumption that the Talmudic Sages always got it right (hit upon the halakhic truth and the intent of the Almighty), then it would be reasonable to adhere to their value substrate too. But in several places I explained that adherence to the Talmud’s dictates does not stem from their rightness and truth but from its formal authority. The Sages of Israel across the generations accepted upon themselves the authority of the Talmud. If so, the obligation to adhere to the Talmud’s dictates is grounded in our acceptance of it, and therefore its contours are set by that acceptance. What falls within it falls within it; what does not, does not. My claim is that there is no agreement about the values reflected in the Talmud, only about its halakhic dictates, and therefore even when adhering to the laws we are not necessarily bound to the values reflected in them. Even if there are Talmudic halakhot that reflect socialism or capitalism, the laws bind us, but the value substrate does not necessarily do so.

This is the principle discussed in column 257; see there, and here I will be brief. One can bring an example from the Talmud’s own course. There are not a few situations in which Amoraim dispute Tannaim about the reasons for the laws while adhering to the dictates themselves. A well-known example is the statement of Shmuel (Yoma 85b), who derives a different source than all the Tannaitic sources for the rule that saving life overrides Shabbat. There are places where the halakhah is ruled like a given Sage but not for his reason. There are places where a Tannaitic view is split and adopted in one case but not another (meaning the decision is as that Tanna, but not his reasoning, since the reason applies in both cases). It is evident that adherence to authoritative sources concerns their halakhic bottom line, not necessarily their reasons and underlying assumptions. In column 257 I showed that the opinions of Sages relying on different rationales can be combined to create a majority in a court; from there I deduced that the essence of halakhah is the bottom-line decision, not the arguments and basis for that decision.

But in all the cases I mentioned, the later Sage disputes his predecessor in rationale and source, while accepting his practical dictate. If so, in our case, even if I have proven that we may dispute the values of the Talmudic Sages, we still cannot on that account change their practical dictate. Here the value change that has occurred enters the discussion. If the world now espouses different values (and I myself identify with them), this is not like a later Sage disputing his predecessor. The claim is that the earlier Sage too, were he alive today, would hold today’s values. The world advances in its attitudes to a variety of aspects—slavery, the treatment of women and of people of color, the morality of war, and so on. Is it not reasonable to claim that in our world it past nisht to deviate from these values? In the halakhic sources one can find quite a few claims of this sort. This is essentially the claim of past nisht discussed in columns 447–448.

Examples

In the next column I hope to arrive at a definition of Modern Orthodoxy. But before that I thought it appropriate to bring several halakhic precedents based on arguments like those I have described here (the set of examples is entirely incidental, and I will touch on them briefly and concisely). In discussing them we will also see a mixture of additional mechanisms (such as past nisht and the deferral of halakhah), which can easily be confused with conservative midrash—but not rightly so. In addition we will see explicitly reformist arguments voiced by recognized poskim whose (substantive, not formal) authority is undisputed. These examples will help me sharpen the points I have described up to now. In particular, you will see that even by my lights the fence is not completely breached, and even in the topics I chose—where the motivation to change is clear and it would be proper to do so—there are quite a few arguments that do not fall under the conservative rubric and are therefore unacceptable. As I already noted, in neutral matters where there are no good reasons to change the halakhah, we will certainly not accept arguments of an unreasonable conservative midrash.

The Meiri on Gentiles

Let us begin with the Meiri on the treatment of Gentiles (see about him here). He argued that the various sanctions the Talmudic halakhah (biblical and rabbinic) imposes on Gentiles are null in his day. He bases his claim on a change in circumstances, asserting that Gentiles now behave better (“bounded by the norms of civilized nations”). Note that this is a factual change in circumstances, but the facts in question are the Gentiles’ relation to values (their moral conduct). From our perspective that is still a purely factual change, for the Gentiles around us are different, and therefore perhaps our treatment of them should change accordingly.

Now consider what would happen if someone were to argue that our treatment of Gentiles should change because they deserve equal treatment. This argument is not based on a change in factual circumstances but on the value of equality, which in our society today is very important. I am speaking of someone who says this because he truly believes in equality, not because he wishes to curry favor. Just as our environment believes in it, I too believe in it. I note that it does not matter at this point if depth-psychology researchers would say that deep down I do this to curry favor with someone. Even if that is true, anyone can have deep motives influencing his views. These remarks, of course, also apply to the literalist conservative (opium of the masses; convenience and intellectual laziness). I also note that in principle such an argument could be raised even without assuming a factual change in circumstances (that Gentiles have not truly changed morally). The hypothetical claim is that although they are morally inferior people as in the past, it is not reasonable in our culture to discriminate among people. Is this a legitimate claim? Can it be raised by a (midrashic) conservative?

On its face, this is essentially a past nisht claim. It is unacceptable that halakhah and the halakhic public behave in such an unseemly way and against foundational societal values. On a lower plane some will see this as a concern for hillul Hashem (desecration of God’s name), but on a higher plane the claim is that it is impossible for the Torah to command something so blatantly immoral, and therefore clearly that is not the Torah’s intent in our day at least.[4] For my part, because I separate halakhah and morality, I do not agree with such claims—unless there is a plausible interpretive possibility to incorporate them into halakhah independent of moral considerations. Moral considerations can serve as a tool for deciding among interpretive options in halakhah, not as an interpretive consideration in and of themselves. Therefore, in my view, such a claim regarding treatment of Gentiles is not acceptable within halakhah. It is important to understand that the Meiri (and I, humbly) do not make that claim. Our claim is a conservative midrash based on a change in circumstances, not on a value basis. I only add that one can indeed claim that there is a moral value that conflicts with halakhic values, and thus a conflict is created. At the start of my book Walking Among Those Who Stand I argued that in such conflicts halakhah does not necessarily prevail. That is not a halakhic claim, but of course it has practical consequences.

In passing I will recall that Rabbi Unterman advanced a past nisht claim regarding saving a Gentile’s life on Shabbat, explaining that the principle of darkei shalom (ways of peace) is not merely a fear of Gentiles or of consequences, but an essential argument: “Its ways are pleasantness and all its paths are peace.” Halakhah is supposed to operate in ways that are manifestly moral, and peace is the indication of that, not the instrumental goal. It is natural to note here that in this situation there is nothing new, and seemingly the same argument should have been taken into account by the Sages. Why then did they not permit desecrating Shabbat to save a Gentile’s life? I assume he implicitly relies on the Meiri’s factual claim. Yet if so, there is no need for his far-reaching interpretation of “ways of peace.” In any event, I do not agree with his claim, for by that logic all the non-moral laws are null (note that he permits biblical Shabbat desecration on this basis). True to my view, there is no connection between halakhah and morality. In any case, in my opinion this is a reformist claim.

Destroying Idolatry

Further similar examples of the past nisht principle I brought in column 447. I began there with destroying idolatry in our day. I have no doubt that the reason no posek actually argues that this is obligatory today is not only due to the excuses of “our hand is not strong” and various fears. At least most understand (often unconsciously) that it is past nisht. It cannot be that we demand that others respect us and grant us freedom of worship and we do not grant it to others. And again, this is not only a tactical consideration but an essential one. Note that here we are dealing with a command imposed by the Torah itself, not the Sages; therefore the value substrate is binding. Hence I do not accept such rationales within halakhah. If there is no halakhic explanation, one cannot simply reinterpret or uproot the law. But again I note that it can be deferred in favor of a moral consideration. The moral consideration has independent standing, and even if it does not enter the halakhic calculus to change it, it still has standing when deciding what to do in practice.

In this sense one could say something similar regarding qualifying women based on a value consideration. It is not possible to change halakhah because of equality, since there is no conservative midrash; but one could defer halakhah in favor of morality (or do a meta-meta-halakhic conservative midrash and claim that at the base of this halakhah there is no value substrate; this is borrowing from external values, and therefore we too may borrow and change).

Secular Courts

Another example discussed in the follow-up column (448) is the prohibition of resorting to secular courts (arka’ot) in our day. I explained there that we are dealing with a past nisht consideration, but this is a different sort of consideration than the previous ones. Here, the value on the basis of which we change the halakhah and permit unqualified judges to adjudicate is itself a halakhic value (the existence of an effective judicial system; this is the commandment of dinim, which obligates Gentiles and of course us as well). A past nisht consideration of this kind—which is not based on a moral consideration external to halakhah, but on a meta-halakhic consideration—has a place even in shaping the halakhah itself. In that column I explained that neither in Syria then nor in Israel today is there a formal halakhic solution to the prohibition of arka’ot. The conservative midrashim advanced in this context (mainly by religious judges, against an almost total rabbinic consensus) are unconvincing. Therefore I said that one should be honest and say that indeed there is no solution, and resorting to the courts is a severe biblical prohibition—and nonetheless there is no choice and we must transgress it. The value of an effective judicial system in a proper society overrides the prohibition of appointing an unfit judge, arka’ot, and laymen. This is an example of a decision that does not use halakhic reshaping but a consideration like compulsion (ones), and under compulsion one can deviate from halakhah (the novelty is that this is an expanded notion of compulsion beyond its standard halakhic meaning, as I explained there).

Women’s Testimony

Another example is the words of the Noda BiYehuda and the Terumat HaDeshen regarding women’s testimony in places where men’s testimony cannot be obtained. For example, if a murder occurred in a women’s mikveh (or in the women’s section of a synagogue). In such a place there cannot be a male witness, and therefore the murderer is “home free.” This is unreasonable, and those poskim argue that women’s testimony should be accepted in such a case (either biblically or rabbinically; opinions differ), because it is past nisht for there to be a place beyond the reach of the judicial system. Seemingly this is an argument based on values rather than a change in circumstances. A murder in a mikveh or women’s section could have occurred in the distant past as well. Nothing in our reality has changed that compels us precisely now to change the law. If they were right, the Sages themselves should have said so.

Note that they do not offer a conservative midrash explaining why the disqualification of women is void here.[5] Hence seemingly this is not an acceptable halakhic argument, for there is no conservatism here at all (not even midrashic). On the other hand, it is a reasonable and compelling past nisht argument. As I said above, in my view such arguments cannot enter the shaping of halakhah itself, since there is no conservative midrash. But one can use them to justify a local deviation from it.

In passing I note that in the case of a murder in a mikveh there is no need for any of this, for precisely such cases are the province of the king’s law (mishpat hamelekh; see e.g. column 164). Where there is a known murderer and no formal possibility to convict him, the king imposes judgment according to his rules (not subject to halakhah). Hence here there is no lacuna requiring a solution within halakhah. The king’s law is the way to make exceptions to halakhah where there is a conflicting value (a kind of past nisht consideration). But where there is no king and yet one conducts oneself according to halakhah, the question remains.

Intellectual Property

Another example is the question of copyright (see my article on deception and intellectual property in Tehumin 25). I showed there that there is no simple halakhic source allowing us to recognize intellectual property as biblical property, and therefore not to view one who infringes it as a thief (mainly because it is an abstract thing “without substance”). And yet, Sages over the generations have tried to find various circumventions, and some simply stated—without argument—that it is theft. One argument raised by the author of She’ol U-Meishiv (new series, vol. 1, no. 44) is:

For surely, when an author publishes a new book and merits that his words are accepted throughout the world, it is obvious that he has a right in this forever… Shall our complete Torah be like their idle chatter?! This is something that reason rejects, and daily practice shows that one who publishes a work has a right, as does his agent.

Behold a borrowing of a value recognized by the Gentiles and its importation into halakhah—precisely like my proposal regarding qualifying women for testimony. Note that this also runs counter to a halakhic statement that there is no property in an insubstantial thing.

R. Shimon Shkop likewise wrote at the beginning of his Hiddushei Bava Kamma:

Just as in matters relating to a person’s rights it is agreed according to the laws of the Torah and the laws of the nations that whoever invents something new in the world is its owner with every right…

So too wrote Rabbi Wosner in his approbation to Emek HaMishpat:

And regarding the law itself, surely the Torah’s view inclines that there is a prohibition of theft, etc., in what one’s fellow has completely invented anew, whether a halakhic work and the like, or other things—and so is the law of the kingdom everywhere in the world.

It is important to understand that their claim is not that there is hillul Hashem, but that if even the Gentiles recognize this, then in halakhah it must certainly be so. That is a value argument grounded in the values of Gentiles. Not surprisingly, zealots objected to such statements with the claim—which in my view is justified—what have we to do with the values of Gentiles that stand in contradiction to explicit laws?[6] These are rationales that attempt to effect a halakhic change without a conservative midrash but merely because among Gentiles (and the poskim themselves) a different value is accepted. They also do not write that there has been a change in factual circumstances (though there has been, because of the scope of the phenomenon and the volume of books and digital material); it is clear that they do not hang their hat on circumstantial change but state a law that, in their view, was always true.

In the bottom line, with apologies to the aforementioned poskim, in my view these are reformist arguments, for they are presented without a conservative midrash. Indeed, in the article cited I presented a conservative midrash regarding ownership of an insubstantial thing; in my opinion, without it there is no room for considerations of this sort—at least not when they come to shape halakhah rather than justify a deviation from it. Perhaps those poskim had that or similar in mind, but they do not write anything of the sort.

Slippery Slope

In column 275 I brought the words of Rabbi Ariel regarding a “smart home.” He argued that one should prohibit the whole matter—even if no specific prohibition is found—because permitting it will turn Shabbat into weekday. I argued there that this is a meta-halakhic consideration that is beyond the authority of any posek or institution in our time. You cannot innovate prohibitions on your own initiative. In light of what I write here I will only add that this can be done if you have a conservative midrash—that is, if you can show that these things are included in existing prohibitions, biblical or rabbinic. Incidentally, this is yet another example of a reformist argument from a conservative posek (except that this time it is a stringency—but I have already explained that that distinction is irrelevant to our discussion).

“Tinok Shenishba”

The Chazon Ish and many other poskim ruled that regarding today’s secular Jews the laws of heretics and the rule “let them go down and not be raised up” do not apply. Some relied on defining them as tinokot shenishbu (“captured infants”; a very expansive definition of the original concept), and others on the claim that in our generation no one knows how to rebuke (as if in their time they did). The sense is that implicitly these rulings also rest on a value consideration and not on a conservative midrash. The claim is that it is past nisht to throw a secular Jew into a pit—even if we have no conservative midrash to ground it. But that can only lead to deferring halakhah because of a moral principle, not to an intra-halakhic interpretive change.

Abolishing the Institution of Kiddushin

From time to time one hears protests about halakhah’s treatment of women. One of the central topics in these discussions is the bond between a woman and her husband. Claims are raised as if halakhah sees the woman as her husband’s property. The rabbinic advocate Rivka Lubitch infers from this that in our time the institution of kiddushin should be abolished and we should return to pre-Sinai marriage. I will not go into the details here (see further in my article here). My main claim was that this deviation from halakhah has no justification, and it is unreasonable to accept a demand for halakhic change without a conservative midrash. The Torah commands kiddushin, and even if we were to assume that its meaning was the husband’s acquisition of the wife—what does Lubitch propose: to refrain from fulfilling the Torah’s command? On what grounds? To abolish the laws of mamzerut? Or perhaps to perform kiddushin but cancel the proprietary meanings within it? Without a reasonable conservative midrash such proposals cannot be raised. She could, to be sure, claim that because of the conflict between halakhah and morality here, morality prevails as an extra-halakhic consideration. In principle that could be accepted—but there is no need. It is not true that the institution of kiddushin includes the husband’s ownership of his wife. Moreover, if one is to change, one can change the institution of kiddushin rather than abolish it—for example, to institute mutual kiddushin. I see no sense in abolishing a biblical law because of a moral consideration where there is no need.

In the next column we will, at long last, reach a definition of Modern Orthodoxy, and I will try to use the arsenal presented so far to lay it out.

[1] “The two men who have the dispute shall stand before the Lord”—men and not women. Many have already pointed out two very fundamental difficulties in this strange derashah: those who stand before the Lord are the litigants, not the witnesses. How then can women be disqualified from testimony by virtue of this verse? Beyond that, the hermeneutic rule in halakhah is that the Torah speaks equally to male and female (Scripture equates woman to man for all punishments in the Torah), except where it is explicitly clarified otherwise. Therefore, simply, when the Torah writes “men,” it means human beings in general, including women. And indeed the litigants, who are the plain sense of the verse, can certainly also be women.

[2] By way of example, I have heard more than once that murder for “family honor” is not part of Islamic tradition but the product of Arab culture (of the Arabian deserts). Over time it was absorbed, as it were, into Islamic law (at least among certain groups), for religious law digests cultural principles from its environment and makes them part of itself.

[3] There are, of course, many further examples. Some appear in the talkbacks to the previous column.

[4] One could argue that today I understand that from the outset the Torah did not mean that, except that in the past, because of the different (less developed) atmosphere and culture, people did not grasp this.

[5] One can, with difficulty, present it as a conservative midrash: the disqualification of women is not categorical, but only when men are available. This seems like unconvincing formalism.

[6] And according to their view it is unclear what to make of the poskim who prohibited infringing authors’ rights and did so via bans and enactments (among them R. Akiva Eiger, the Hatam Sofer, the Maharsham, and many others). See Emek HaMishpat §20, cited by Rabbi Wosner, who explained that their intent was only for books without creative innovation. This is a very forced reading of their words, as explained there.