Lesson from 1 Cheshvan 5767

[Rabbi Michael Abraham] We’ll try to more or less connect the additional topics together—meaning Jewish law and reality, and changes in Jewish law, something like that. I don’t even remember exactly how I defined it. Since these things are cousins, I’m basically going to turn them into one series that deals in general with the relationship between Jewish law and reality, and the development of Jewish law in light of reality. And really there are two kinds of things here: one is how certain laws develop in light of reality, and the second is laws regarding issues that arise—current issues that come up in these years, in these generations. These things touch on a more general question at their core: changes in Jewish law—how, in general, and whether at all, it’s possible to make changes in Jewish law; which changes are legitimate and which are not legitimate; how Jewish law can respond to reality at all. So of course these things will come up too. The list of topics was hanging outside. I didn’t bring pages here with the list, but if anyone wants, maybe next time I’ll bring it. It’s not that each of these topics will be one session; at least some of them, I assume, will take more than one session. And we’re starting with the first topic, which is basically an introduction. It’ll take us more than one time. This introduction is needed for a kind of series of broad issues in preparation for the more specific discussions that will come afterward. So as an introduction it’s very important to address a few points that form the principled foundation for thinking about the relationship between Jewish law and reality. I’ll lay out those points in a bit more detail in a moment, after I give a shorter general introduction to the matter.

Well, in practice, the foundational basis of Jewish law is the Torah given at Sinai, written Torah and oral Torah. Those are the data. At most, in this context, we can be interpreters. We can’t add something beyond what is in the Torah. We can interpret the Torah using tools, some of which were also given to us at Sinai—the thirteen hermeneutic principles by which the Torah is expounded. Others are tools of reasoning or understanding of our own that were not necessarily given at Sinai. But generally speaking, this is interpretation. An addition to what was given to us at Sinai—let’s call it legislation, perhaps, as opposed to interpretation—is also possible. The Sages can also legislate. But the status of the laws they legislate is a lower status, and that’s what is called rabbinic law. Meaning, the Sages function as interpreters, and the product of interpretation is Torah-level law. They interpret what exists in the written and oral Torah, and the product of that interpretation is, from our standpoint, what is written in the Torah. It’s a kind of decoding of what is written in the Torah, and therefore the law that emerges from the interpretation is Torah-level law.

By contrast, a law that is added beyond what we received at Sinai—some enactment, decree, safeguard, whatever the Sages see fit to institute beyond that—that is rabbinic law. So basically there is also some possibility of legislating, contrary to what I said earlier, that the Torah was given at Sinai and basically there’s nothing for us to do except interpret it. That’s not entirely precise. At the Torah level, there’s nothing for us to do except interpret the written and oral Torah. But there is also the possibility of adding laws, adding rulings—except that those laws will have a lower status, the status of rabbinic law. Jurists might call it subordinate legislation, perhaps. And that is the possibility for the Sages to legislate and not only interpret.

Another important remark in this context: there is no necessary connection between the division between Torah-level laws and rabbinic laws and chronology. Meaning, if a certain law came into being today and did not exist until this very day, that still doesn’t mean it is rabbinic law. It could definitely be Torah-level law. The question is how it came into being. If it came into being through interpretive processes, then it is Torah-level law. If it came into being through legislative processes, then it is rabbinic law.

For example, a few years ago this issue of opening bottle caps on the Sabbath started coming up. Pamphlets came out about it, and there were arguments among halakhic decisors. Torah prohibition, in other words. This law was actually born—I don’t know—15 years ago, 20 years ago; I don’t know exactly when the discussion began. I still remember some pamphlet by the Admor of Zutshka. Today, I assume, he’s no longer alive—an elderly Jew from Bnei Brak. A whole pamphlet about opening bottle caps, and he argued that it was a Torah prohibition and that one would be liable for a sin-offering for it, and so on, with sources. He discussed it there, and I think that was more or less the beginning of the discussion. I assume we’re talking about something like 15 years, something in that range.

What is that law? The arguments he made there were not legislative arguments. Meaning, no authorized panel sat and established a new law that from now on it is forbidden to open bottle caps on the Sabbath. No. Assuming he is right—it doesn’t matter right now, there is a dispute among halakhic decisors—but that doesn’t matter right now; for me this issue is just an example. He made arguments there that were interpretive arguments. Meaning, he brought proofs from Talmudic texts, from the Torah, from primary categories of labor, derivatives, and so on, from medieval authorities (Rishonim) and later authorities (Acharonim), and at root the arguments were interpretive arguments. Until the days of—let’s say—the Admor of Zutshka who opened this up, I have no idea, but the discussion started around that period—until the days of those who raised the issue, say 15 or 20 years ago, everyone opened bottles quietly. So what does that mean? Is this rabbinic law? Again, assuming they’re right—is this rabbinic law? No. Rabbinic law has to be an enactment. Meaning, a religious court sits and enacts that from now on it is forbidden to open bottles on the Sabbath—fine, then it’s forbidden to open bottles on the Sabbath, and that would be a new rabbinic law that originated in that panel which enacted a decree that it is forbidden to open bottles on the Sabbath.

But that was not the situation there. The situation there was that the claim was an interpretive claim. Meaning, people argued that there was, I don’t know what, striking the final blow, building with utensils—it doesn’t matter right now—various considerations that derive the prohibition of opening bottles on the Sabbath from primary and derivative categories of labor that are Torah prohibitions. Assuming it really is similar to building with utensils or striking the final blow, assuming that argument is a correct argument, then the Torah already forbids striking the final blow; it’s one of the primary categories of labor on the Sabbath. So if that argument is correct, then there is actually a Torah prohibition here even though it was only born today. It wasn’t there before, and nobody even thought it was forbidden before. So chronology is not what determines whether this is Torah-level law or rabbinic law.

Very often all kinds of questions arise about the accumulation of stringencies over the generations. Some are justified and some less so. Over the years, many, many, many laws accumulate, and everyone asks themselves, wait a second, where were our ancestors in all this? Why didn’t they think of this whole thing? So it depends. Some things are indeed enactments, and enactments exist only from the moment they were enacted; before that they obligated no one. Some things are interpretation, and interpretation too can innovate laws. There’s no problem at all. There are examples in abundance throughout history where interpretation created laws. Why didn’t previous generations think of it? Because they didn’t think that was the case, or because they didn’t think of it at all, for one reason or another. That’s not important. I do think that’s the case, or the authorized sages of the generation do think that’s the case, and since they think that’s the case, then from my standpoint opening a bottle on the Sabbath is a prohibition of striking the final blow, and it’s a Torah prohibition even though it was born only in the 20th century.

So that’s just a parenthetical remark, and I assume we’ll return to it quite a bit. The connection between chronology and halakhic status is a pretty dubious one; one has to be careful with it, even though quite a few people stumble into identifying the two, as if anything born at any point in history looks like some kind of rabbinic law. Detractors will say it’s an invention, or things of that sort. Not necessarily. Sometimes it’s an interpretive process, and then the law will be Torah-level law.

So at this point we’ve distinguished between two kinds of activity by the Sages: interpretation and legislation. Interpretation creates Torah-level laws because it basically just decodes what exists in the sources we received at Sinai, and legislation creates new laws, and those are rabbinic laws. Where can reality influence this picture? I’m trying to sketch the basic outline of this problem of the relationship between Jewish law and reality before we go into more detail. So where, in general, can reality influence this whole thing? Seemingly, only in legislation, right? Interpretation—we need to understand what is written in our sources. How would reality affect that? If a certain reality happens to arise that causes me very, very much to want—I don’t know what—to forbid opening bottles on the Sabbath, then what? That’s not supposed to influence things in any way. If I’m an intellectually honest interpreter, then I have to maintain interpretive integrity. I have to ask: does this really follow from the category of striking the final blow, or does it not follow from that category? If I have all kinds of surrounding motivations that I want it to follow, that’s a problem with the motivations. I’m supposed to preserve honesty when I interpret the sources, and therefore, seemingly, interpretation should not be influenced by reality. Interpretation is supposed to be faithful to the sources being interpreted, and that’s it.

[Speaker B] And Torah-level law—that doesn’t mean it’s interpretation of Scripture?

[Rabbi Michael Abraham] It’s basically—after all—laws—

[Speaker B] Sabbath laws are really hanging by a hair.

[Rabbi Michael Abraham] Fine, it doesn’t matter—oral Torah. I’m not distinguishing right now. The distinction between written Torah and oral Torah—many people connect that too with Torah-level law and rabbinic law—and that too is a mistake. Written Torah and oral Torah are both subcategories of Torah-level law. And I’m speaking about both of those branches.

[Speaker B] I just want to say for a moment that maybe it’s related to the very fact that reality brings up discussion of new things that didn’t exist.

[Rabbi Michael Abraham] That could be; I’ll get to that in a moment.

[Speaker B] That reality raises a problem that didn’t exist?

[Rabbi Michael Abraham] That’s true; I’ll get to that in a moment. Right now I’m just laying out the map.

[Speaker B] There weren’t bottles with this kind of plastic cap.

[Rabbi Michael Abraham] No, but there were bottles. The discussion arose after there were such bottles. There was a period when people opened them without even thinking about it.

[Speaker B] So in your opinion is that customary law, or interpretation, or “according to what they instruct you”? No, no.

[Rabbi Michael Abraham] “According to what they instruct you” is a source for why one needs to obey enactments. But the halakhic status of enactments is rabbinic law. There is only a Torah source for their authority. Why on earth is there such a thing as rabbinic law at all? If the Sages say something, why do we need to obey them? Fine, it’s rabbinic law, but rabbinic law too must be observed. Why do I have to obey the Sages? So Maimonides says—and we’ll get to this later—Maimonides says it comes from the verse “do not deviate.” Fine, but the verse “do not deviate” is only the source of the authority of the Sages to do this. But what is the halakhic status of the law? Rabbinic law. Okay?

So seemingly, if I now examine the very schematic map I just drew that divides between interpretation and legislation, then in the realm of interpretation there seems to be no room for reality to affect Jewish law. Interpretation is supposed to be somehow faithful to the sources, and whatever I understand from the sources is the binding law. All the surrounding reality is not supposed to influence it, because on the contrary, if someone brings the influence of reality in through such channels, I think it is correct to regard that as a lack of intellectual honesty. You are essentially interpreting tendentiously. You want to reach some result that is important to you, or convenient for you, or even for very nice and good reasons—that you think it would be very good if this were forbidden today, or permitted today, for excellent reasons, not necessarily selfish reasons or reasons of convenience, but even idealistic reasons. It doesn’t matter. Interpretation is supposed to be as faithful as possible. What you want is all very nice. The question is what is in the sources. Do the sources say it or not?

Meaning, if I now see that people are breaching the category of striking the final blow, and I would very much like to forbid opening bottles on the Sabbath in order to fence off that breach, I cannot do that by interpretive means. You can’t. What I can do is legislate. Meaning, if I’m an authorized body, I can establish a rabbinic enactment not to open bottles. That I can do. But I cannot decide that the category of striking the final blow includes opening bottles on the Sabbath when the interpretive truth is that it does not include it, just because I want, in order to repair the generation, for it to be forbidden. So the goal may be very worthy, but that doesn’t matter. Interpretation has to stand the test of interpretive tools. And if it doesn’t—

[Speaker B] Your interpretation also comes out of what exists.

[Rabbi Michael Abraham] That too—I’ll add that to what Miki said earlier—I’ll get to all these things later. Right now I’m just putting the pieces on the board. I agree.

So seemingly, interpretation is not supposed to be a conduit through which reality affects Jewish law at all. Legislation, by its very essence, is exactly that. Legislation was born precisely for that. Meaning, the whole point of rabbinic legislation is some kind of response to reality. If there is something that Jewish law, at the level of basic Torah law, does not handle properly, exactly for that purpose the Sages have authority to create additional legislation, subordinate legislation or—

[Speaker B] Doesn’t handle it properly? Are you undermining Torah-level law?

[Rabbi Michael Abraham] I’m not undermining anything. But there are gaps. If—

[Speaker B] But if there are gaps, maybe that was the intention?

[Rabbi Michael Abraham] What do you mean, that was the intention? For example, the Sages established not to eat poultry with milk. Why did they establish that? At the Torah level there’s no problem eating poultry with milk. Why did the Sages establish it? Appearance? They saw something, that if we left the Torah-level law as it stands, some breach would emerge here. We have to add something in order to fence off that breach. Or why did they establish Hallel on Hanukkah and the reading of the Megillah on Purim? What, Torah laws aren’t enough, we also need rabbinic enactments? Yes. There are situations—

[Speaker B] Events that happened after the Torah? What? Those are events that happened after the Torah.

[Rabbi Michael Abraham] Fine, but if it’s only events that happened after the Torah, then it should have been a Torah law. Right? We may perhaps get to that. There is a Torah-level law that says to thank the Holy One, blessed be He, for miracles. The miracle, of course, happens whenever it happens, but you are supposed to apply, in those circumstances, the Torah-level law of thanking for miracles. But someone who says that this law is rabbinic law apparently thinks it is not merely an application of a Torah principle; it’s a new invention. So if that’s the case, then where is the Torah law? If the Torah doesn’t command it, what, are you more righteous than the Holy One, blessed be He? Yes. The Holy One, blessed be He, writes in the Torah that I need—that the Sages need—to do this. It’s not that the Sages jump up and seize for themselves some authority that was not given to them. The Torah itself tells them: “make a safeguard for My safeguard,” “do not deviate,” and so on.

So enactments, or rabbinic legislation, are in essence the tool designed to deal with reality. Meaning, whenever there are practical problems that Torah-level law does not handle in one way or another—sometimes Torah-level law even creates them—the Sages come and intervene. They enact. But again, they enact from a lower plane; these will be laws that are rabbinic laws.

Of course, now all the qualifications come in. There are still some influences of reality even on the activity of the Sages as interpreters, not only as legislators. But the influences are usually indirect. One influence, for example, is if reality is what raises the question. Until now the question wasn’t there, and now I need to discuss it. Or for example, if a situation comes about—the question perhaps could have been raised earlier, but it wasn’t raised for one reason or another—and suddenly something happens, some circumstances occur, that cause the Sages to sit down and work through the question, even though maybe they could have done it earlier too. But reality is what causes the Sages to sit and work through the issue.

So that is one influence, admittedly a mild one, just an influence that serves as a catalyst to deal with the issue; it doesn’t shape the conclusions of that discussion. But you know, like with opening bottles: as long as they didn’t deal with the issue, it was permitted to open bottles. So in the end reality also affected the content of the law. True, if they had dealt with the issue earlier, maybe there also would have been people earlier who forbade it. It just didn’t occur to them; nobody thought there was any problem with opening a bottle cap. And at some point somebody woke up for one reason or another, and then they began discussing the problem. So beforehand the law was one way, and afterward it may be different. So here, in a certain sense, reality did enter into the law—not that reality determined the form of interpretation, but reality caused me to sit down and work through it, and as a result I discovered something that maybe I could also have discovered earlier, but it didn’t happen.

But there is a more direct form—in which it’s still indirect, but it already touches content—where reality intervenes in the interpretive process. It’s not only making the sages sit down and work through it, but also what Moshe said earlier. A person really does live within an environment. A person is shaped by the landscape of his birthplace, so of course he is influenced by the modes of thought in his environment. The sages too are influenced, in my humble opinion, by the environment in which they operate, by all kinds of things in that environment. And since that is so, when they now come to interpret the sources, that interpretation will be done through their own lenses. And those lenses are, among other things, shaped by the reality around them, the values around them, the reality around them, all kinds of things connected to the environment in which they live. And therefore, in some indirect way, reality will enter and influence even the content of the halakhic decision.

A sage in one generation—a certain halakhic decision will seem unreasonable to him. Why? Because through his lenses it looks unreasonable. But in another place or another time, another sage may come, and through his lenses it will seem very reasonable. Why the difference between them? It is entirely possible that the difference between them, or at least some component of it, is a product of the different environments in which they operated. So what comes out? That indirectly the environment does affect the determination of Jewish law.

And still, one has to pay close attention—it still seems to me to remain valid: when this is done consciously and tendentiously, that is probably not possible. Meaning, to go to the laws of striking the final blow and say: look, in straightforward interpretation opening bottles does not follow from the laws of striking the final blow; it is not a derivative of striking the final blow. But I know that today there is a huge breach, and I would very much like to close that breach. I have no authority to enact decrees; today there is no supreme rabbinic institution that can enact, and therefore I’ll do it interpretively. So I’ll decide that it is a derivative of striking the final blow and forbid it. If the truth, using purely interpretive tools, without all the agendas and beautiful ideas around it, is that it does not follow from striking the final blow, then you can’t do such a thing—not leniently and not stringently. What follows from striking the final blow follows; what does not follow, does not follow.

There are many cases like this that sit on a very fine borderline. A topic like stealing intellectual property. That’s a topic that in essence existed forever, but on the scale it exists today it is something entirely new. Even in the legal world it is a relatively new topic, and certainly in the world of Jewish law it is a relatively new topic. And one of the problems that a great many halakhic decisors struggle with is that today we do not have central authority that can enact a decree that it is forbidden to steal intellectual property. Today there simply is no Sanhedrin, no authority that everyone recognizes as an authority that can enact decrees. So one decisor or another can say, in my opinion it’s not right, but an authority that sits and enacts a new decree—we don’t have that today. Almost no one feels authorized to do that.

[Speaker B] But “you shall not steal”? What? Stealing is “you shall not steal,” no?

[Rabbi Michael Abraham] It’s not so simple that it follows from “you shall not steal.” I don’t want to get into that topic; maybe we’ll touch on it one of the next times. It’s very problematic to derive it from “you shall not steal.” I think it does follow from “you shall not steal”—I wrote an article about it too—but that requires justification; it’s not simple.

[Speaker B] Downloading songs from the internet? What?

[Rabbi Michael Abraham] Yes, things of that sort. Copying disks, things of that sort. It’s a very non-simple matter. Now, the motives are very pure motives. Meaning, all of us are perfectly aware that it’s not moral to copy—at least I hope you are too. It’s obvious that it’s not moral to do such a thing. It’s not right to do such a thing; it’s obvious that it’s wrong. What do we do now with this wrongness? If we had an authority that could legislate new laws, rabbinic legislation, fine: a religious court would sit and say there is an enactment—from now on it is forbidden to copy disks, a rabbinic prohibition. Perfectly fine, no problem at all. In fact, among other things, that is what the Sages are there for. The role of the Sages is to close breaches of that sort.

We don’t have such authority today. So all kinds of people come and try to derive it by interpretive means. Meaning, they try to see whether I can extract the prohibition of intellectual-property theft from Torah-level or rabbinic laws that were already enacted by authorized institutions. And then there are many suggestions—suggestions, suggestions, suggestions—there are a great many suggestions from all kinds of directions for how to derive the prohibition of intellectual-property theft from the valid halakhic sources, whether Torah-level or rabbinic.

Now here the boundary is very fine, because sometimes that derivation is unconvincing, artificial. And the feeling is that it’s so important that this should exist, and so right to forbid it, that we are prepared to accept arguments that are not fully smooth—meaning, they would not stand up to the normal test of criticism—but since this is a value that really is important to protect, and we don’t today have the means to deal with it because there is no halakhic authority to enact a decree, so sometimes there is a kind of feeling: okay, let’s call it “you shall not rob,” even though it’s not exactly “you shall not rob”; let’s make it half-enactment, half-interpretation, and let it be clear that it is forbidden.

That is a very problematic thing, because I think an interpreter has to be honest. If it does not follow from “you shall not rob,” then there is no “you shall not rob” here. If you want to enact a decree and you can’t, then go and declare under every leafy tree that it’s immoral. But you can’t insert into “you shall not rob” what isn’t there. And if it isn’t there, then it isn’t there. And the intentions are very good. A person is not doing this to pull the wool over our eyes; he is not doing it מתוך negligence of some sort. On the contrary, he is doing it for very good reasons. And still, interpretation has to be honest. Meaning, reality cannot directly influence the content of interpretation—that’s what I want to say. That still remains true despite the qualifications I mentioned.

It can influence interpretation indirectly. For example, a sage may come and say: through the lenses we have today, where we are, after all, nourished by an environment in which virtual products are almost like durable goods today—today we are very, very used to such a thing—so a decisor may come and say, wait a second, this really is “you shall not rob,” it’s exactly the same thing. So through his lenses this seems like a credible interpretation. It’s not tendentious insertion; he genuinely thinks so. If that’s the case, then that’s perfectly fine. Meaning, if he genuinely thinks so, then from his standpoint it really is “you shall not rob.” But if a decisor says: look, the truth is I know it has nothing to do with “you shall not rob.” But it’s very important to me to establish this in order to close this breach—that you cannot do. Meaning, that is actually Reform. Reform—sometimes Reform is also toward stringency, not only toward leniency. There are things in which the Reformers are more stringent than the Orthodox. That may run against the stereotype, but that’s how it is. We innovate all kinds of things out of very good tendencies, but there is no such thing. Meaning, what follows from Jewish law has to follow by means of interpretive honesty. Or by enactments. Enactments can be enacted—whatever the Sages see fit.

Okay, these are just examples. Of course, this is only an introduction to what we’ll do later, so I’ll suffice here with a brief look at these examples. One last mechanism I’ll mention in this context is the king’s law, or a religious court that lashes and punishes not according to the formal law. A religious court has—and again this is a question of authority, what kind of court and so on—if there is a king then the king also has it, or the community leaders sometimes as well; here too people derive their authority from the authority of a king. There is authority to punish not according to the law. He perhaps cannot enact a decree in some formally halakhic binding sense; it won’t enter the Shulchan Arukh. But as long as he exists—the king, or the court that decided it—from our standpoint it’s like law. The king, or the community leaders, or an authorized court, can come and say: anyone who copies a disk—there is no prohibition, not rabbinic, not Torah-level, nothing—but anyone who copies a disk, we’ll cut off both his hands. Such a thing can be done. They enact a decree; they lash and punish not according to the formal law. This mechanism too can sometimes be used to close breaches of this kind, and this mechanism can exist perhaps even where there is no court that can enact decrees.

And about that too we’ll talk later—both religious courts and community leaders, king and all the more governmental concepts and not just legal ones. There are governmental concepts and legal concepts here that get mixed together, and in fact they fulfill a very similar function. And that is one of the topics we’ll deal with later when we talk about community institutions and all those things, the status of state law and so on.

Okay, that was the introduction from the Torah side, the different Torah-based mechanisms that can in general be influenced, or serve as channels of influence, of reality on Jewish law. Let’s now reverse the lenses for a moment and look from the other side of the equation, and let’s examine the side of reality. Yes, this equation between Jewish law and reality has two sides. Until now I tried to sketch, in broad terms, the relevant halakhic channels. On the other side stands the channel of reality. What can happen, what can arise in reality, in a way that affects Jewish law? Legitimately or not legitimately—we’ll see that later—but first of all, what in general can there be?

So it seems to me there can be three types of changes. One kind of change is a change in circumstances. Meaning, reality is different from what it once was. This is the easy case on the theological level; theoretically it’s an easy case. It’s easy because no authority is needed here. In the end, if I apply the original laws to different circumstances, it’s pretty clear that the halakhic result will be different. Yes, in a case where—I don’t know—let’s say, the question of the status of legumes, though that’s actually a bad example. But legumes were a custom, or an enactment according to some, although it’s strange to call it an enactment, but it stemmed from certain concerns that once existed. Someone may come and say: today those concerns don’t exist, and therefore I am not strict about legumes—certainly not things derived from legumes, legume oil and things like that, which is an excessive stringency. So how do we relate to that kind of argument?

Here there really is no halakhic change. I haven’t changed any of the halakhic principles. All the halakhic principles are in force; I haven’t touched the Shulchan Arukh by so much as the peel of a garlic clove. But what has happened? In different circumstances, those very same principles apply differently. In circumstances where there is such a problem, the principles say the law is such-and-such. In other circumstances, the law is different. Meaning, if reality changes, clearly the halakhic ruling will be different, but it will be different not because the law changed, but because reality changed. That is not called change. Sometimes there is an instinctive resistance to such things as though they were a change, but on the theoretical level such a thing is not a change.

For example, another example: if someone comes and says that today’s women are more educated than women once were, more engaged in life, and therefore one should abolish the disqualification of women from giving testimony and judging. Such an argument could be made; people raise such arguments. What is that argument? Is it an argument that seeks to change Jewish law? No, not at all. It is an argument saying that because the circumstances changed, then those same principles themselves—I’m not touching the halakhic principles—but under the new circumstances that have arisen, the halakhic conclusion will be different. Because what was once called “a woman” and what is called “a woman” today is something different. So when a woman was disqualified from judging, fine—even today a woman who is uneducated and not engaged and not familiar with life and so on would be disqualified from testifying and judging. But there are women today who are not like that, so what about them? About them, the Sages never spoke at all.

So such a thing is not a change in Jewish law. Such a thing is an application of existing halakhic principles to a different reality. But here there is a very important warning. Seemingly there is no theological problem here at all. But on the practical level there are difficult problems here. What is the practical problem in this first category? The practical problem is identifying the parameter of change.

Let’s take the example of women. When someone says that I want to permit women to testify and judge because women today are educated, he is implicitly assuming something that has to be brought to the table for discussion.

[Speaker B] That the reason—

[Rabbi Michael Abraham] —for the disqualification of women was lack of education. Who said so? One has to check the topics, the sources, and see whether I can really show that the disqualification of women from testifying and judging stems from the fact that they lacked education. If I succeed in showing that, then today, when they have more education, there is no change here. It is a completely legitimate halakhic argument—indeed, not only legitimate but required.

[Speaker B] It could also be the attitude from the other side.

[Rabbi Michael Abraham] Fine, but if in general we’re speaking in terms of broad characterizations—what? It’s not sweeping? It could be. Then that would be one of the considerations that might indeed lead one to say that this is not the reason, because otherwise they should not have divided between women and men but between educated and uneducated. Fine, but someone may come and say: okay, but as a generalization it was still true that the men were more engaged in life, and “all the glory of the king’s daughter is inward,” and so on. It doesn’t matter right now. Here too this is just an example for me. I only want to illustrate the basic mechanisms.

[Speaker B] The point, you would say, might be that because women were mothers, and they wanted to give them certain rights or obligations not to testify, and you’re saying today they’re mothers but mothers of another kind. Different mothers.

[Rabbi Michael Abraham] Okay, fine, so that too is the same thing—

[Speaker B] A similar kind of argument.

[Rabbi Michael Abraham] So that argument too would lead us to the conclusion that today one can permit women to testify and judge, and it would not be a halakhic change; it would only be a change in circumstances—assuming that we really succeeded in proving that the disqualification of women from testifying and judging did indeed stem from lack of education, or from whatever the relevant parameter of change is. Therefore I say: what is important here is to identify—there is a halakhic layer in this argument, even though superficially it’s only a change in circumstances and we aren’t touching the principles of Jewish law. But implicitly there is a halakhic principle here that we need to clarify, and that halakhic principle is the question of the reason for the disqualification of women. That has to be checked before we raise this argument.

And very often, in an uncareful way, arguments of this sort are raised today by the dozens and the hundreds, in a way that seems self-evident, and people don’t understand what this resistance to change means. Sometimes I don’t understand it either. But it’s not automatic. Meaning, one has to be careful with the automatic move. There are cases where yes and cases where no. The claim that because women today are something other than what they once were, therefore we should change these and those laws about women—that is not automatic. Meaning, one has to check what the reason was then for disqualifying women, and then see whether it really changed. If so, then fine.

So indeed, on the theological level, a change of circumstances is not problematic at all. There is no problem. It’s not a change in Jewish law, it’s nothing of the sort. It is permitted to do it—one should do it, not only is it permitted. Every time you need to apply the law to the correct reality. There is no point in applying Jewish law to a reality that no longer exists today. That is simply an incorrect application of Jewish law. It is wrong to do such a thing—not only is it permitted, one should do such a thing. Assuming, of course, that we really have clarified the practical elements, meaning whether the parameter that changed is in fact the relevant parameter for the prohibition.

That is one point. A second point actually arises on the rabbinic plane—still, I’m saying, within this first category of change in circumstances. So in change of circumstances we said there is no theological problem, but you have to clarify what the relevant parameter is. Maybe I’ll bring one or two more examples just to sharpen it before moving on.

A change in attitude toward a gentile, or attitude toward a Jew who does not observe the commandments. Here too, very similar arguments are raised: all in all, the circumstances have changed, things are not what they once were, and therefore the attitude should be different. And here too those arguments are entirely legitimate, fully Orthodox arguments—glatt kosher, if you like. If they are correct, then one must act that way, not only is one permitted to act that way. On one condition: that the laws we want to change really do stem from the change in reality that took place, or from the previous reality before the change. Meaning, that the change really occurred in the parameter relevant to the law under discussion.

Meaning, if people tell me: listen, today gentiles are more enlightened, they are not idol worshipers, and therefore many of the laws concerning attitudes toward gentiles can be canceled—this is a completely legitimate argument, provided that we check that indeed the attitude the Sages had toward gentiles stemmed from that very thing that no longer exists today, say from the fact that they practiced idolatry. And today most gentiles, or at least a large part of them, do not practice idolatry. So that has to be checked. But assuming it is true, there is no problem at all. Meiri carried out this sort of revolution; that is well known, and we’ll talk about that too. The washing of the hands at the end of a meal, things like that, all kinds of dangers that the Sages say—

[Speaker B] The argument that what’s written in the Talmud is not the only reason, so—

[Rabbi Michael Abraham] I’ll get to that in a moment. Here it arises mainly on the rabbinic plane, though it’s also somewhat true on the Torah plane.

[Speaker B] Regarding Sodomite salt and that, but they say, okay, that wasn’t the only reason; they had something else too.

[Rabbi Michael Abraham] And the decree makes arguments like that.

There is still, within this category of changing circumstances, an additional problem that comes up specifically with rabbinic enactments. At the Torah level, in practice there isn’t much of a problem changing this. If we really become convinced that the reason women were disqualified was lack of education—just for the sake of the example—and today women are more educated, there is no problem at all in permitting women today for testimony and judicial roles. There is no obstacle to doing that, except for that automatic recoil from anything that smells of innovation.

But if we are dealing with a rabbinic enactment, then precisely there—where it should seemingly be easier—it is more problematic. Because the rule regarding changes to rabbinic enactments is that when the reason is nullified, the enactment is not nullified. Meaning, even if the reason ceased to exist, the enactment still remains. Why is that? The Sages strengthened their words more than Torah law. Sometimes precisely because the status of rabbinic laws is lower, the Sages reinforce them more strongly. And therefore sometimes changing rabbinic law is harder than changing Torah-level law. So in rabbinic law, even if there has been a change in circumstances, it may be—at least in the case of an enactment—that we won’t be able to budge the enactment from its place. There are quite a few examples where they did budge them from their place.

[Speaker B] Rabbenu Gershom’s enactment? Yes—what was it? The claim that they were ten years—it had a ten-year limit.