A Female Mourner’s Kaddish and First- and Second-Order Rulings in Jewish Law (Makor Rishon Sabbath Supplement – 2013)

With God’s help

First-Order and Second-Order Rulings in Jewish Law: Another Look at the ‘Neo-Reform’ Controversy

Michael Abraham (The Institute for Advanced Torah Studies, Bar-Ilan University)

In last week’s issue (the Matot-Masei Torah portion), Dov Liberman responded to the Beit Hillel ruling regarding a female mourner reciting Kaddish. He argued that they had deviated from the tradition of Jewish law and had subordinated Jewish law to their ideological agenda. He further claimed that the legal authorities oppose this, and that even the precedents they themselves cited speak only about a minor orphan girl, and only on condition of more ‘seamless’ adaptations to custom (joining the recitation with men, saying it quietly, and the like).

Let me preface this by saying that, for some reason, in many disputes, whether in Jewish law or outside it, I often find myself disagreeing with both sides. As I shall show below, this case joins that list, and in my opinion these matters have significance far beyond the argument over a female mourner’s Kaddish. Disagreement with both sides is usually based on identifying underlying assumptions that both share, and sometimes do not even notice that they share.

In our case, both sides agree that the proper basis for such a ruling is the citation of precedents and ‘conformity to the Jewish legal tradition,’ in a very specific sense, namely reliance on precedents. Moreover, I am convinced that quite a few responses will reach the editors explaining why precisely this approach does indeed fit the Jewish legal tradition (and there is some truth in that). But such responses will not change the picture in any essential way, because they still surrender to the rules of the game as defined by the conservatives (who, of course, are the ones who define the ‘Jewish legal tradition’). As I understand the discussion, it should be conducted about these implicit assumptions, not about one or another specific implication of them.

My discussion is divided into two parts (a distinction Liberman did not observe, and which joins several other methodological errors in his remarks that I will not discuss here): Jewish law and custom.

A. Jewish law. In general, decisors may be divided into two types: first-order decisors, that is, those who rely on primary sources (the Talmud, and to some extent the leading medieval authorities), and derive the legal conclusion from their interpretation of the Talmud and the medieval authorities. The use such decisors make of later authorities is mainly as illustration, meant to support and reinforce their principled view, or to show that it is viable. By contrast, there are second-order decisors, those who rely in their decisions on precedents from responsa literature and the later authorities. Decisors of the second type, even if they deal in their responsa with the Talmud and the medieval authorities, do so only to provide the general background to the issue. The actual decision, for them, rests mainly on precedents from the authorities who preceded them (or their contemporaries, the ‘greats of the generation’). Anything for which there is no precedent will not be ruled as law by them, even if, in their opinion, it is the most reasonable interpretation of the issue and the most correct application of it to the reality of their own time. To avoid an unnecessary pitfall (there will be several such pitfalls later), I will not enter here into personal identifications—who is a first-order decisor and who is a second-order one. I will only say that this distinction does not necessarily indicate greater Torah scholarship, but no less a method of decision-making.

A corresponding distinction may be made between first-order sources and second-order sources. First-order sources are the Talmud and the medieval authorities, which we accept as sources of authority (at different levels, of course), as opposed to various later authorities, and certainly the later authorities of our own time, who are only sources of inspiration and learning. They can provide support, but they are not authoritative sources. A decisor in his own place and time is not obliged to resort to them or rely on them. A first-order discussion deals mainly with first-order sources, whereas a second-order discussion, at least at the stage of decision, relies mainly on second-order sources. One final conceptual note: conservative decisors generally adopt second-order ruling and reliance on second-order sources. Decisors who decide at the first order are usually bolder and more original, and are not afraid of change or of disagreeing with their predecessors or peers.

These points become much sharper when we deal with questions conditioned by their time—that is, questions in which the relevant reality, and the cultural and social assumptions underlying the discussion, are very different from those that underlay the various sources of both orders. In such a situation, on the one hand, resorting to the sources is far more problematic, since their statements were made on the basis of entirely different factual and cultural assumptions; and on the other hand, דווקא in these cases everyone feels a strong need to rely on second-order sources, so as not to be suspected of Reform, Heaven forfend.

Take, for example, the question of reading books with problematic passages, or watching films and plays. These certainly depend on cultural assumptions, and today it is taken for granted that they differ substantially from what was accepted in earlier generations (without entering the question of judgment as to which is better). The same is true of more prosaic questions, such as opening bottles or using electricity on the Sabbath. But certainly this applies to questions such as the integration of women in the synagogue, or public questions such as qualifying women as witnesses and the attitude toward gentiles (see my article, ‘Is There an “Enlightened” Idolatry?’, Akdamot 19, 2008). In all these questions there will be decisors who rule in light of the words of contemporary authorities and responsa of later authorities, and others who will rule from first-order sources of Jewish law, with their own interpretation.

The question of a female mourner reciting Kaddish is even more (or less) problematic, since there are no relevant first-order sources concerning it. One can, of course, go back and rehearse the sources regarding a woman’s singing voice, but this is an artificial resort to the Talmudic discussions and the medieval authorities. Kaddish is speech, not song, and in practice very few of us (at least those living outside seventeenth-century Poland, twenty-first-century Brooklyn, or the Puah Institute) are careful not to hear a woman speak, even in public. Moreover, several authorities have already written that in the context of sacred matters the concern over breaches of accepted boundaries is lower, and even if they had not written this, it can be said on grounds of reason itself (first order), without resorting to precedents (second order). Even the author of Havvot Yair, who ‘forbids’ it (one of Liberman’s main sources), says that there is no legal prohibition here. And Rabbi Moshe Feinstein too writes this in a responsum as something self-evident, merely in passing. But, as noted, we do not need them for this. What is not forbidden is permitted.

If I had to write a legal responsum about a female mourner’s Kaddish (or about women delivering Torah talks in the synagogue), it would be very short. Here it is:

Responsum. There is no legal prohibition or any other problem here, and therefore there is no impediment whatsoever to a woman reciting Kaddish for her relatives. In our current social-cultural situation, women appear before men in all kinds of contexts (certainly in speech), whether we like it or not, and I do not see why reciting Kaddish (especially from the women’s section), which is fundamentally speech and not song, could raise any problem at all. The great sage Mikhi, rabbi of the holy community of Lod and the surrounding districts.

Readers have no doubt noticed that no first-order sources are mentioned here at all. The reason is entirely prosaic, and has already been explained above: there are no relevant sources for this issue (unless one insists on resorting to such sources even though there is no need whatever to do so).

I am also convinced that those same intelligent readers have surely noticed that no responsum of Rabbi Moshe Feinstein, Rabbi Ovadia, or Noda B’Yehuda is mentioned here either. That is to say, there are no second-order sources here as well. Some of those readers are probably already running to their keyboards to write the following criticism about SMS responsa, and about the little rabbis who answer from the reasoning of their ample bellies, without relating to sources and without discussing them in the traditional scholarly manner, and thereby ‘deviate’—how could it be otherwise?—’from the Jewish legal tradition.’

The reason for the absence of sources is that there is no need for precedents in order to permit what is permitted. The one who forbids is the one who must bring supporting texts and proofs for his claim. In Jewish law, everything not forbidden is permitted. Or, in my own terms: there is no need for second-order ruling, and this is certainly true when the first order itself is empty of content. And this is all the more true with regard to what seems to the rabbi the correct and obvious way to apply Jewish law appropriately in the reality prevailing in his own community. Is an egalitarian community in which the woman serves as the synagogue administrator, and in her spare time lectures at the university and at various conferences, or works as a lawyer, supposed to conduct itself according to precedents written in Poland or Casablanca in the seventeenth century? In my view, even precedents current in Har Nof or in twenty-first-century Brooklyn are not really relevant.

Now you will surely ask: why do the people of Beit Hillel, when they come to permit it, also use precedents? Why do they discuss the historical questions of who objected and who permitted, and why? One possibility is that they too agree with the hidden assumption in Liberman’s remarks that legal ruling must be conducted at the second order. That may perhaps emerge from the way their ruling is presented (although there is room to see the second-order sources there as illustration). If so, then, as stated, I disagree with both sides. But allow me to stray a little into the realm of psychology. Since I know (and also respect and esteem, and am in contact with) some of the people involved, it is quite clear to me that they do this in order to present continuity in legal ruling—that is, so that they will not be accused of ‘neo-Reform,’ Heaven forfend, and so that their words will be accepted by the public as well-grounded words of Jewish law. But if continuity is what we are seeking—that is, if we are indeed engaged in second-order ruling—then Liberman is correct in his criticism. Their words do not constitute a natural continuation of the path of decision-making of earlier authorities, nor of the approach of the most prominent among the authorities of our own time.

So why the need to play this game? Does it really help? Suppose that until now no decisor had ever written a responsum permitting a female mourner’s Kaddish. Would there be any problem in my being the first to do so? After all, in every permission (just as in every prohibition) there is a first one who permits it, is there not? Is there some rule of Jewish law that the first person to permit anything in law must live in Brooklyn or Har Nof? Or live before the eighteenth century? Why does one need permission at all for something that is not forbidden?

In other words, the people of Beit Hillel err in trying to present their ruling in a second-order form. This is a first-order ruling. And if they do indeed want to play on the conservative field of the second order, then Liberman is entirely right in his criticism of them. It is time for decisors to feel free to decide according to their best understanding of the issues and of the situation in which they and their communities operate, without resorting artificially to precedents that add nothing and subtract nothing.

Incidentally, these remarks apply both toward leniency and toward stringency. In my article ‘More on the Renewed Conversion Controversy,’ Akdamot 22, 2009, I showed why reliance on lenient precedents in conversion is incorrect and unsuited to the reality of our time. There too one can see the same phenomenon of second-order ruling (which, because of the dissimilarity between the realities, sins against Jewish law and against interpretive truth), whereas in my opinion the first-order truth is completely clear, except that in this case it leads in the stringent direction.

To summarize this part: on the legal plane, the issue of a female mourner’s Kaddish is simply a non-issue. There is no question here that needs discussion at all. All the talk about who ‘forbids’ and who ‘permits’ is simply bizarre (roughly like people who ‘forbid’ or ‘permit’ legumes on Passover, or women delivering a Torah talk in the synagogue). Some recommended it and some did not, each according to his place and time, and according to the honor and standing involved. And even if everyone in the past had recommended forbidding it, take prohibition and permission out of the picture. This is throwing sand in people’s eyes, and it is a shame to cooperate with it.

Even in issues that do require legal discussion, the discussion should be conducted mainly at the first order. And certainly when the first order is empty, resorting to the second order is nothing more than a substitute whose purpose is to pile artificial flesh around the skinny skeleton of the discussion—which is skinny with good reason. But this is unnecessary. If you have nothing to say and there is no need to say anything—then do not say it. Permitting something that is legally forbidden requires sources and precedents. The absence of a prohibition does not require them. As stated, everything not forbidden is permitted of itself, and the burden of proof rests on the one who forbids.

B. Custom. The conclusion up to this point is that there is no point speaking of permitting or forbidding a female mourner to recite Kaddish. The question whether there has ever been a decisor who ‘permitted’ this is simply a conceptual mistake. But Liberman’s remarks also raise the question of deviation from custom. He claims that until now it has not been practiced anywhere for a daughter (at least an adult one) to recite Kaddish. That is probably correct on the factual level. In any event, I will assume that for the sake of this discussion.

First, it is important to distinguish this question from the previous one (which he did not do in his remarks). The legal question and the question of custom are two different questions. True, there are customs that concern legal ruling, such as the custom to rule like the Mechaber, like the Rema, or like Maimonides. But the custom at issue here is a non-legal custom, that is, a social custom (for, as stated, there is no legal impediment to a female mourner reciting Kaddish). There is no doubt that its basis lies in the social norms that prevailed in earlier generations. Without entering the question which norms are more worthy, there is no reason whatever to apply norm-dependent customs to a society whose norms are different.

Does Liberman suggest that we should go back to wearing what people wore in previous generations? Some in a caftan (= an outer coat), some in a hat (= a second head-covering). Incidentally, both of these are mentioned by the legal authorities (sometimes in fully legal language), and any second-order ruling or customary conservatism would immediately lead to the conclusion that we were forbidden to change our clothing and must return to wearing those same garments. Not to mention the accent and pronunciation of the divine name (Rabbi Kook’s view on this is well known; see his approbation to Mishpetei Uziel and elsewhere). In all three of these issues, these norms have been preserved in their original form in Har Nof and in Brooklyn down to our own day, and for precisely the same reasons (second-order conservatism). Not to mention women’s Torah study and the status of women in society (‘the dignity of the king’s daughter is inward,’ and the like). And indeed there are decisors who criticize this in a manner similar to Liberman’s criticism of Beit Hillel, but that criticism suffers from the same error of simplistic second-order ruling. The mistake of all these people is even more serious, because they do this in issues whose essence is custom and social norm, not legal issues. Even if there are laws of modesty, most of them (I am not entering the question whether this is true of all of them) are based on accepted norms, and therefore it is incorrect to treat them as legal questions that should be resolved solely from the usual sources of Jewish law. If we return to the examples above of the outer coat and second head-covering (the accent is even more severe), these too are perceived by some authorities as law, except that the law here is a derivative of custom. If that is the dignified dress in a given place, then there is a law to wear it at prayer. But the question whether it is dignified dress or not is fundamentally a social-cultural question, not a legal one.

If so, the fact that until our own time it was not customary for an adult woman to recite Kaddish is mainly because the question did not arise, and also because the social-cultural norm did not allow it. The question was not asked, and even if it was occasionally asked, it was not answered permissively. What does that say about us? In my opinion, nothing at all. Exactly as most, if not all, of the precedents that permitted accepting converts without acceptance of the commandments relied on the fact that in the situation prevailing in their place and time, the convert was certainly assumed to be accepting the yoke of commandments, whether he wished to or not. That is not true in our day, and therefore the value of those precedents in this matter is limited.

Until now people also did not speak Hebrew, women did not lecture in public and did not go out to work alongside men. Until now people also did not fly in airplanes or speak on mobile phones. Our father Abraham apparently 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 merely an accepted norm, has become a monster that paralyzes any possibility of behaving normally. Everything that people did in earlier days has become, in our own day, a binding custom from which one may not deviate. And whoever breaches a fence, as is well known, will be bitten by a snake.

One more word for the keyboard sharpeners mentioned above. I knew perfectly well that my words would arouse a sense of Reform. In the study hall where Liberman studied (the newspaper mentioned that he is a graduate of Yeshivat Ramat-Gan), they might, with their well-known moderation, call it ‘neo-Reform.’ I am not afraid of that label. If what I believe to be right as the will of God and as the instruction of Jewish law is ‘neo-Reform,’ then I am neo-Reform. And if someone prefers, instead of dealing with the arguments (which are completely legitimate and entirely correct within the legal arena), to operate on the level of slogans and labels, then good health to him. I am not sure 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 rather slim.

And in conclusion, a note to my friends, the rabbis of Beit Hillel. You too need not fear this. Do not try to cover yourselves with a second-order cloak that does not really cover you, merely in order to escape those political labels. If, in your opinion, this is permitted, then permit it forthrightly, that is, on first-order considerations. There is no need to write impressive legal pamphlets when dealing with such an unmistakable non-issue as a female mourner’s Kaddish. That is shooting yourselves in the foot, and it plays into the hands of the conservatives. If this is the correct dictate of Jewish law for our time and place, then whoever does not do it is violating the law. And if so, let him bring reasons for his position. Presumably those will be second-order reasons alone, which are generally not relevant to these questions. Usually it is not wise to let your disputant determine the rules of the game for you as well.