Kaddish Yatoma and Pesika from the First and Second Order (Shabbat Supplement Makor Rishon – 2013)

With God’s help

First- and Second-Order Halacha: Another Look at the "Neo-Reform" Polemic

Michael Avraham (Higher Torah Institute, Bar-Ilan University)

In last week's issue (P. Matot-Masei), Dov Lieberman responded to the ruling of Beit Hillel regarding Kaddish for an orphan. He claimed that they deviated from halakhic tradition, and that they subordinated the halakhic to their ideological agenda. He further claimed that the poskim object, and that the precedents they themselves cited only say this regarding a small orphan, and stipulated it with more "smooth" adjustments to the custom (combining the recitation with men, whispering, etc.).

I will also say in advance that for some reason, in many disputes, whether in halakhic or otherwise, I find myself disagreeing with both sides. As I will show below, this case joins them, and in my opinion these things have a broader significance, much more than the debate over the Kaddish of the Orphan. Disagreement with both sides is usually based on identifying presuppositions that both agree with, and sometimes do not even notice.

In our case, both sides agree that a proper basis for such a ruling is to cite precedents, and "conformity with the halakhic tradition," in a very specific sense (reliance on precedents). Furthermore, I am convinced that quite a few responses will come to the system explaining why this approach is indeed compatible with the halakhic tradition (and there is some truth in them). But such responses will not fundamentally change the picture, since they still submit to the rules of the game as defined by the conservatives (who are, of course, the ones who define the "halakhic tradition"). As far as I understand, the discussion should be conducted on these implicit assumptions, and not on their specific implications, one way or another.

The discussion in my words is divided into two parts (a division that Lieberman did not adhere to, and it joins several additional methodological errors in his words, which I will not discuss): Halacha and custom.

A. Halacha. In general, poskim can be divided into two types: poskim of the first order, that is, those who rely on primary sources (the Talmud, and to a certain extent the great Rishonim), and draw the halakhic conclusion from their interpretation of the Talmud and the Rishonim. The use of the latter by such poskim is mainly as an illustration to support and strengthen their principled view, or to show its feasibility. In contrast, there are second-order poskim, those who rely in their decisions on precedents from the Responsorial Psalms and the later ones. Poskim of the second type, even if they deal with Talmud and Rishonim in their responses, will do so only to provide a general background to the issue. The decision itself is based primarily on precedents from poskim who came before them (or on their side, the "greatest of the generation"). Something that has no precedent will not be ruled halakhically by them, even if in their opinion it is the most plausible interpretation of the issue and its most correct application to the reality of their time. In order to avoid unnecessary pitfalls (there will be several of these later), I will not go into personal identification here, who is a first-order poskim and who is a second-order poskim. I am just saying that the division does not necessarily indicate greatness in Torah, but no less a method of ruling.

A distinction can be made between first-order and second-order sources. First-order sources are the Talmud and the Rishonim, which are accepted by us as sources of authority (at various levels, of course), and various achronim, and certainly the achronim of our time, which are nothing more than sources of inspiration and learning, which can provide support, but are not sources of authority. The arbiter in his place and time is not obliged to rely on them or rely on them. A first-order discussion deals mainly with first-order sources, while a second-order discussion, at least in the decision-making stage, relies mainly on second-order sources. A final conceptual note: conservative arbiter usually resort to second-order rulings and rely on second-order sources. Arbiter who rule in the first order are usually bolder and more original, and are not afraid of changes or disagreements with their predecessors or colleagues.

Things become much more acute when dealing with questions that are time-sensitive, that is, questions in which the relevant reality and the cultural and social assumptions underlying the discussion are very different from those that were at the basis of the various sources (from both orders). In such a situation, on the one hand, relying on sources is even more problematic, since their words were spoken with completely different factual and cultural assumptions, and on the other hand, in these cases, everyone feels a strong need to rely on second-order sources so as not to be suspected of reforming the R"L.

Let us take as an example the question of reading books with problematic passages, or watching films and plays. These certainly depend on cultural assumptions that in our day are fundamentally different from what was accepted in previous generations (without going into the question of judging who is better than whom). The same is true for more prosaic questions, such as opening bottles or electricity on Shabbat. But it certainly applies to questions such as the inclusion of women in the synagogue, or public questions such as training women to testify and the attitude towards non-Jews (see my articles "Is there 'enlightened' idolatry?", Akademut 19, 2008). In all these questions there will be poskim who will decide them in light of the words of the poskim of our time and the responsa of the latter, and others will decide this from the primary sources of halakhic law, with their own interpretation.

The question of the orphaned Kaddish is even more (or less) problematic, since there are no relevant first-order sources for it. One could, of course, go back and delve into the sources regarding the voice in a woman, but this is an artificial distilling of Talmudic issues and the Rishonim. Kaddish is speech, not poetry, and in practice very few of us (at least those of us who live outside of seventeenth-century Poland, twenty-first-century Brooklyn, or the Po'a Institute) are careful not to hear a woman speak, even in public. Furthermore, several poskim have already written that in the context of something sacred, the fear of breaching boundaries is lower, and even if they did not write this, it can be said from the explanation (first order), without resorting to precedents (second order). Even the owner of the farm Yair who "forbids" (one of Lieberman's main sources), says that there is no halakhic prohibition in this. And Rabbi Moshe Feinstein in his rebuttal writes this as a matter of course, as the Messiah according to his perfection. But as mentioned, they are not needed for this. What is not forbidden is permitted.

If I had to write a halachic response to the Yatoma Kaddish (or the recitation of Torah verses by women in the synagogue), it would be very short. Here it is:

Answer. There is no halakhic or other prohibition in this, and therefore there is no obstacle for a woman to say Kaddish for her relatives. In our socio-cultural situation today, women appear (certainly verbally) before men in all kinds of contexts, whether we like it or not, and I do not see why the recitation of Kaddish (especially by women), which is fundamentally speech and not singing, could raise any problem. Gaon Michi, Chofk of Lod and the Galilee.

Readers will have noticed that no primary sources are mentioned here at all. The reason for this is entirely prosaic, and has already been explained above: there are no relevant sources for this issue (unless one really insists on relying on such sources even though there is no need for them).

I am also convinced that those intelligent readers must have noticed that no reply by Rabbi Moshe Feinstein, Rabbi Ovadia, or the famous scholar in Judah is mentioned here. In other words, there are no sources from the second seder here either. Some of those readers must already be running to the keyboard to write the following criticism of the Responsa Sms, and of the Rabbahalach, who listen to extensive interpretations of the Kersem without referring to the sources and without discussing them in the manner of the Torah, and thus "deviating", of course, "from the halachic tradition."

The reason for the lack of sources is that there is no need for precedents to permit something that is permitted. The one who prohibits is the one who must provide references and evidence for his statement. In halacha, everything that is not prohibited is permitted. Or, in my language: there is no need for a second-order ruling, and certainly the words are true when the first order is already empty of content. And the words are even more true regarding what seems to a rabbi to be the correct and clear way in relation to the appropriate application of halakhic law in the reality prevailing in his own community. Is an egalitarian community in which a woman is a tax collector, and in her free time she lectures at the university and at various conferences, or is a lawyer, supposed to act according to precedents written in Poland or Casablanca in the seventeenth century? In my opinion, even precedents practiced in Har Nof or in twenty-first century Brooklyn are not really relevant.

Now you will probably ask, why do the people of Beit Hillel also use precedents when they come to permit? Why do they discuss the historical questions of who opposed and who permitted and why? The first possibility is that they also agree with the implicit assumption in Lieberman's words that the ruling should proceed in the second order. This may perhaps emerge from the way their ruling is presented (although there is room to see the second-order sources as an illustration). If so, then, as mentioned, I disagree with both sides. But allow me to delve a little into the realms of psychology. Since I know (and also cherish and appreciate, and am in contact with) some of the active individuals, it is quite clear to me that they do this to present continuity in the jurisprudence, meaning so that they are not accused of "neo-reformism" of the R"L, and so that their words will be accepted by the public as well-founded halakhic statements. But if we are looking for continuity, that is, if we are indeed dealing with second-order jurisprudence, then Lieberman is right in his criticism. Their words do not constitute a natural continuation of the jurisprudence of previous jurists, nor of the approach of the most prominent jurists of our time.

So why the need to play this game? Is it really useful? Let's assume that to this day there has not been any poske who has written a reply that permits the recitation of Kaddish by a widow. Is there a problem with me being the first to do so? After all, in every permission (as well as prohibition) there is the first to permit it, right? Is there a halakhic rule that the first to permit in every halakhic law must live in Brooklyn or Har Nof? Or live before the eighteenth century? Why do we even need a permission for something that is not forbidden?

In other words, the people of Beit Hillel are mistaken in trying to present their ruling in the form of a second order. This is a first order ruling. And if they do want to play in the conservative second order field, then Lieberman is certainly right in his criticism of them. It is time for judges to feel free to decide according to their best understanding of the issues and the situation in which they and their communities operate, without artificially resorting to precedents that neither raise nor lower.

By the way, these things are meant both to the point and to the point. In my article "More on the Renewed Conversion Polemic," Akademot 22, 2006, I showed why relying on precedents for the point in conversions is incorrect and inappropriate for the reality of our time. There too, we can see the same phenomenon of second-order ruling (which, due to the lack of similarity between the realities, violates the halakha and interpretive truth), when in my opinion the truth in the first order is completely clear, except that in this case it goes to the point.

To summarize this section, the issue of orphaned Kaddish in the halakhic realm is simply a non-issue. There is no question at all that needs to be discussed. All the talk about who "forbids" and who "permits" is simply delusional (much like who "forbids" or "permits" legumes on Passover, or the recitation of Torah by women in the synagogue). Some have recommended it and some have not, and each according to his place and time, and according to his honor and virtue. And even if everyone in the past had recommended forbidding it, there is little prohibition and permission here. This is a smear of sand in the eyes, and it is a shame to cooperate with it.

Even on issues that do require halakhic discussion, the discussion should be conducted primarily in the first order. And certainly when the first order is empty, resorting to the second order is nothing more than a substitute aimed at putting artificial flesh around the (rightly) thin skeleton of the discussion. But it is unnecessary. If you have nothing to say and there is no need to say it – then don’t say it. The permission of a halakhic prohibition requires sources and precedents. The absence of a prohibition does not require this. As stated, everything that is not forbidden is obviously permitted, and the burden of proof is on the one who prohibits.

B. Custom. The conclusion so far is that there is nothing to talk about the permission or prohibition of an orphan saying Kaddish. The question of whether there was a rabbi who "permitted" this is simply a conceptual error. But Lieberman's words also raise the question of the deviation from custom. He claims that until now it has not been customary anywhere for an orphan (at least an adult) to say Kaddish. This is probably a correct claim on a factual level. In any case, I will assume this for the purposes of the discussion here.

First, it is important to distinguish this question from the previous one (what he did not do in his words). The halakhic question and the question of custom are two different questions. It is true that there are customs that deal with rulings, such as the custom of reciting a verse as a composer, as the Rambam, or as the Rambam. But the custom in question here is a non-halakhic custom, that is, a social custom (since, as stated, there is no halakhic prohibition against reciting Kaddish for an orphan). There is no doubt that it is based on social norms that were practiced in previous generations. Without going into the question of which norms are more appropriate, there is no reason to apply norm-dependent customs to a society in which the norms are different.

Is Lieberman suggesting that we go back to wearing what previous generations used to wear? Some in a kaftan (=top coat) and some in a hat (=second covering). Incidentally, these two are mentioned in the poskim (sometimes in complete halakhic language), and any second-order ruling or customary conservatism will immediately lead to the conclusion that we were forbidden to change our clothing, and that we should go back to wearing the same clothes. Not to mention the accent and pronunciation of the name of God (and Rav Kook's opinion on this is well known. See his agreement with the legal commentary of Uziel and others). In these three issues, these norms are preserved in their form in Har Nof and Brooklyn to this day, and for the same reasons (second-order conservatism). Not to mention the study of Torah for women, the status of women in society (the dignity of a royal daughter, etc.). Indeed, there are poskim who criticize this in a manner similar to Lieberman's criticism of Beit Hillel, but this criticism suffers from the same error of simplistic second-order ruling. The error of all of them is even more serious, because they do so on issues that are primarily a matter of custom and social norm and not on halakhic issues. Even if there are laws of modesty, most of them (I will not go into the question of whether they are all) are based on accepted norms, and therefore it is not correct to treat them as halakhic questions that should be abstracted from the usual sources of halakhic law alone. If we return to the examples from above regarding an upper coat and a veil Second (the emphasis is even more severe), these are also perceived by some rabbis as halakhah, except that the halakhah here is a derivative of custom. If this is the respectable attire in that place, there is a halakhah to wear it during prayer. But the question of whether this is respectable attire or not is fundamentally a socio-cultural question, and not a halakhic question.

So, the fact that until today it was not customary for an adult woman to say Kaddish is mainly because the question did not arise, and also because the socio-cultural norm did not allow it. The question was not asked, and even if it was asked sometimes it was not granted permission. What does this mean for us? In my opinion, nothing. Just as most of the precedents that permitted accepting converts without receiving mitzvot relied on the fact that in the situation that prevailed in their place and time, the convert assumed with certainty that he would receive the burden of mitzvot, whether he wanted to or not. This is not true today, and therefore the value of the precedents in this matter is limited.

Until today, they did not speak Hebrew, women did not lecture in public or go out to work with men. Until today, they did not fly in airplanes or talk on mobile phones. Our forefather Abraham probably also lived in a tent and herded sheep. The issue of customs, precisely because no one can define what is a binding custom and what is just an accepted norm, has become a monster that paralyzes any possibility of acting normally. Everything they did in the old days has become a binding custom in our days that cannot be deviated from. And whoever breaks a fence, as we know, will be bitten by a snake.

Another word for the keyboard whizzes mentioned above. I knew, I knew, that my words evoked a sense of reform. In the beit midrash where Lieberman studied (it was mentioned in the newspaper that he is a graduate of the Ramat Gan Yeshiva), they might call it, with their known moderation, "neo-reform." I am not afraid of this title. If what I think is right according to God's will and according to the teachings of the halakhah is "neo-reform," then I am a neo-reform. And if someone prefers, instead of dealing with the arguments (which are completely legitimate and correct in the halakhic field), to do so on the level of slogans and labels, then good for them. I am not sure that there are enough snakes in God's world to bite all the "neo-reformers" like me, so my chances of being harmed by them are, in any case, quite slim.

And finally, to the attention of my friends, the rabbis of Beit Hillel. You too should not be afraid of this. Do not try to cover yourself with a second-order itzlata that does not really cover you, just to escape these political labels. If you think it is permissible – then allow it like adults, that is, with first-order considerations. There is no need to write impressive halachic pamphlets when it comes to a clear non-issue like the Kaddish of an orphan. This is shooting yourself in the foot, playing into the hands of the conservatives. If this is the correct halachic command for our time and place, then whoever does not do it is violating the halachic law. And if so, then let him provide reasons for his words. It is assumed that these will be only second-order reasons, which are usually irrelevant to these questions. It is generally not worth letting the bar of the halakha set the rules of the game for you as well.