What Is Modern Orthodoxy: A Preliminary Analysis (Column 475)
ִWith God’s help
In column 448 I discussed the prohibition of resorting to civil courts (*arkhaot*), and used it to illustrate the *passt nisht* considerations that I presented in the preceding column (regarding the obligation to destroy idolatry). This approach to dealing with the prohibition of civil courts in our day first occurred to me in a lecture I delivered at the founding conference (which apparently also served as the burial ceremony) of the Orthodox Forum in Israel. That conference attempted to import to Israel an American phenomenon, known among the People of Israel (not the State of Israel) as “Modern Orthodoxy.” It never truly took root here, though attempts to define the phenomenon and import it continue (in recent years this has been pursued mainly by Rabbi Ido Pachter).[1] In this column I will present a conceptual analysis on the basis of which, in the next column, I will examine the question of Modern Orthodoxy.
Modern Orthodoxy in a Nutshell
In Israel, the entire non-Haredi religious public is labeled “Religious-Zionist” (or the “national-religious” public), and people mistakenly identify that ideology with Modern Orthodoxy, although there is in fact no essential connection between them. Not for nothing is the latter also called here by its American name, “modern orthodox,” for it was conceived and born there and generally remains there. This idea has not managed to take root in Israel, and to this day there is almost no public that self-identifies as such (even if in practice it indeed is). The root of it all is a lack of understanding of this idea, and in particular confusion between it and Religious Zionism on the one hand, and Reform or Conservative Judaism on the other.
Briefly put, on the other side (the *sitra achra*) of the equation stands Haredism. The term “Haredism” serves as a header for two almost independent ideas: 1) opposition to Zionism;[2] 2) opposition to modern interpretations of Halakhah (from Reform down to heretics like me). One can discern within the Haredi world groups that emphasize the opposition to Zionism and others that stress conservatism and opposition to modernity; yet, overall, the Haredi idea comprises both features together. Consequently, those who are not Haredi can oppose Haredism either because of its anti-Zionism or because of its anti-modernity, or both. The former are Religious-Zionists; the latter are Modern Orthodox; and there is also a group that is both Modern Orthodox and Zionist (that is the majority of Modern Orthodoxy, but conceptually the two are not identical).
Accordingly, we can distinguish three ideologies within the non-Haredi world: A) Those who oppose anti-Zionism but not conservatism. Sociologically this is the *Hardal* public (Haredi-national). This group is conservative regarding Halakhah like the Haredim, but fervently Zionist. B) Those who oppose conservatism but not anti-Zionism. These hold non-Zionist or even anti-Zionist views, yet decidedly espouse modern values and more flexible interpretations of Halakhah. Sociologically this includes part of the “Torah im Derekh Eretz” public and certain Haredi groups (usually unorganized and without a recognized leadership). One can add here a few individuals who drifted leftwards out of Religious Zionism (disillusioned leftist Zionists) who maintain a liberal and modern stance toward Halakhah. C) Those who oppose both. These are the Modern Religious-Zionists. Sociologically they are not identified in Israel as a distinct group (though such people do exist here), and their organized activity and leadership are found mainly in the U.S. I will not enter here into the “lite” groups and traditionalist attitudes (which nowadays some are trying to anchor conceptually as a sort of ideology). In my view they are not truly on the ideological map, but rather a collection of phenomena that lie somewhere between convenience and folklore.
Needless to say, the Haredim see all these as Reform. The *Hardal* public views the other two non-Haredi groups as Reform or “lite” (whereas toward the Haredim they feel a deep sense of inferiority).[3] To differentiate themselves from the Haredim they are far more opposed to people and groups that harm their Zionist vision than to secular Jews.[4] The attitude of Modern Orthodoxy toward the other groups is unclear. The American phenomenon is very conservative regarding Halakhah and its sources (apart from certain modern elements, they are not essentially different from the Haredim. Even general education, for many of them, is a means of livelihood and not an independent value), and it certainly does not level sharp criticism at the Haredim (though R. Joseph B. Soloveitchik did criticize Haredi opposition to Zionism in his Five Addresses). In Israel, by contrast, the few who incline toward Modern Orthodoxy do indeed criticize Haredi and *Hardal* ossification and conservatism.
An Important Methodological Note: Sociology vs. Essence
The description in the previous section was phrased in a way that appears sociological. I referred to religious groups, and naturally the divisions between them are primarily sociological. But my goal here is not sociological; it is essential. My intent is to discuss religious conceptions rather than religious groups, even though there is, of course, a link between the two planes. When I speak of a “modern” or “Haredi” stance, I intend to refer to different types of argument, not to people or groups. Distinguishing between arguments is far more important than distinguishing between people.
To sharpen this: people and groups are complex beings and not always consistent or systematic. Thus, in many cases a Reform-style or modern argument can be voiced by someone sociologically classified as Haredi, just as a conservative argument can be voiced by someone classified as Reform, Heaven forfend. The sociological labeling of people prevents us from addressing the substance of the argument, and instead we suffice with addressing the arguer (“This person is Reform/conservative, and therefore his words are not worth engaging”). Beyond the damage, it is simply true that discussion of a person’s nature is unimportant. What do I care whether So-and-so is conservative, Reform, modern, and so on? What matters is whether his arguments are correct or not, and what I can adopt or reject from them. That is truly what should concern me. Judging the person is better left to the Judge of all the earth. Therefore, when I speak here of “Reform,” “modern,” “Religious-Zionist,” “Haredi,” “Hardal,” and the like, I am distinguishing between types of arguments and modes of thinking, not between types of people and groups.
So much for the general preface touching on the broad features of Modern Orthodoxy. I now return to begin a preliminary conceptual analysis; I will return to the question of Modern Orthodoxy in the next column.
The “Swimsuit Parable”
In columns 350 and 448 I briefly mentioned the example of swimsuits, which is very dear to me, and here I will flesh it out a little for the sake of the subsequent discussion (for a fuller analysis, see my essay “Conservatism and Innovation”).[5] Imagine a group of people who, together with their fathers and their fathers’ fathers (but, of course, not their mothers), walked in the desert wearing swimsuits. At some point they arrive in a cold region and debate whether to change clothing. One group says it will not deviate from the tradition of the fathers and therefore continues to wear swimsuits despite the cold. These are certainly conservatives. A second group declares that it will switch to warm clothing. Here things are more complex, since their characterization depends on the reasoning they rely on. If they switch to warm clothing simply because they are cold, then they are deniers. But there could be a different rationale. The group that favors warm clothing can claim that the tradition to be preserved is walking with attire suited to the weather. Their fathers wore swimsuits because they lived in a hot region, but they themselves, in a cold region, should wear warm clothing. In their view, that—and only that—is how one preserves the tradition of the fathers. Clearly, the group that bases itself on such a rationale is also conservative, only the principle it preserves is different. Here I will focus on the relationship between the two conservative groups.
The first group preserves the instruction as it is, literally: one must wear swimsuits. I therefore call its approach “literal conservatism.” The second group also preserves the tradition and its directives, but it interprets those directives midrashically. It proposes to interpret the directive to wear a swimsuit through a *midrash* (I mean a rational interpretation, not *midrash* in the sense of a formal halakhic *derashah*): the intent is to wear clothing appropriate to the weather. A swimsuit was merely one application of the more general directive for a particular climate. I call this approach “midrashic conservatism.” Since this is a hypothetical example (in which the directive is not necessarily a matter of value), I ask that we ignore the fact that the midrashic conservatives’ proposal is also more convenient. That is incidental, and in the real halakhic and ethical world there are situations where midrashic conservatism yields greater stringency rather than leniency. Sometimes changed circumstances dictate stringency compared to the previous state, and still that is midrashic conservatism. Many of the halakhic stringencies that are periodically innovated are the result of innovation grounded in conservative *midrash*. Here I focus only on the logic of the argument.
Between a Midrashic Conservative and a Heretic
What distinguishes the midrashic conservative from the heretic is the existence of the conservative *midrash*. The midrashic conservative does not merely propose change. He relies on a *midrash* whose aim is to show that this change is not a change at all but an authentic continuation of the tradition under new circumstances. The heretic, by contrast, does not seek to align his position with the tradition at all, because he is not committed to it. In the essay cited above I also addressed another stance—Reform—which advocates a less than full commitment, but I will not enter that here.
There is a tendency to think that the literal conservative surely continues the tradition, whereas the midrashic conservative holds a speculative position (who says his *midrash* is correct?! Hence he is sometimes suspected of hiding convenience and interest behind his midrashic argument). But one must understand that the picture is entirely symmetric. From the standpoint of the midrashic conservative, it is the literal conservative who deviates from the tradition, for the tradition says one must wear clothing suited to the weather—and he does not do so. I once called this “criminal conservatism.”
The Conservative *Midrash*
We thus learn that the crux of the discussion is the conservative *midrash*. How does it function? We have a directive to do X. We know that the circumstances in the past were A, and now they have changed to B. We assume that the change of circumstances is relevant to the interpretation of the directive, and therefore we conclude that the directive should now be changed to Y. For example, one might argue that nowadays women should be eligible to testify (Y). Although the Sages of the Talmud disqualified them (X), the circumstances then (A) were such that women were not involved in commerce and the world at large and did not acquire general education, as they stayed at home and engaged in domestic crafts. Today the circumstances have changed (B), since women participate in all realms of life. Therefore they should now be eligible to testify (Y). This is the archetype of an argument proposing a change in Halakhah or in any normative system.
Set out systematically, this pattern of argument looks like this:
Premise A (normative): There exists a directive X that was formulated in the past.
Premise B (factual): The circumstances that prevailed in the past were A.
Premise C (factual): The circumstances today are B.
Conclusion: The directive should now be changed to Y.
Such an argument is not valid. One can easily see this by examining its structure. All its premises are factual while the conclusion is normative. An argument of this form cannot be valid, for it derives an “ought” from an “is” (what is often called “the naturalistic fallacy”). Note that although Premise A appears normative, its normative aspect is irrelevant to the argument—that is, the derivation of the conclusion does not hinge on it. To see this, we can present the same argument slightly differently:
Premise A (factual): The circumstances that prevailed in the past were A.
Premise B (factual): The circumstances today are B.
Conclusion: The directive should be changed from X to Y.
Here the premises are purely factual. What is missing? Any argument that suffers from the naturalistic fallacy can be completed by adding a bridge-premise—that is, a premise that connects the factual plane to the normative plane. In our case we can add the following premise:
Premise C: The directive X derives from the circumstances A (that is, in circumstances B it is not relevant).
In the example above, the missing premise is that women’s disqualification as witnesses stemmed from their lack of familiarity with commerce and society. This is the claim of a midrashic conservative, for he is proposing a change in the system of directives that rests on a *midrash*, namely a different interpretation of the directives. In our example the midrashic conservative suggests that the Sages did not disqualify women as such, but rather disqualified groups that are not involved in the life of society and commerce. A change in the application of the directive in our day therefore follows.
The literal conservative, of course, rejects this out of hand. In his view the directive must be observed as it stands without subjecting it to *midrashim*. This does not mean he thinks there is no rationale behind the directive. On the contrary, most conservatives accept that halakhic directives have logic and reason at their base, but in their view one must not take that into account when interpreting and observing the directives.
This leads us to understand why the bridge-premise is so crucial in this discussion, and why ignoring it empties the discussion of content. In most cases the debate about change revolves precisely around it. I assume that most of us would agree that there has in fact been a change of circumstances regarding women’s status and occupations between antiquity and our day. And yet a sober literal conservative—one who accepts the two factual premises—disputes the conclusion. How so? He simply does not accept the bridge-premise. In his view there is no reason to assume that the disqualification of women results from lack of acquaintance with society or lack of education. In minimal terms: the burden of proof that this is so lies on the midrashic conservative. There is also a broader formulation that views the commandments as directives disconnected from reason (having no rational basis), but that is a very odd position (especially when dealing with the Sages’ learning of a *midrash* or an interpretation of a verse, which clearly rests on their reason), and therefore I will not address it here.
Note that in the minimalist formulation the literal conservative concedes something. He too agrees that if I bring proof for this change, the directive should be altered. But, he claims, one must bring proof, and in the absence of proof the accepted interpretation remains in place, akin to a presumption based on the prior state (*chazakah de-me’ikara*) or the rule that doubt does not override certainty. I will return to this point below.
An Example: The Presumption “A Person Does Not Repay Before Its Time”[6]
To sharpen further the structure of the midrashic argument and the assumptions it makes about Halakhah, I will discuss a neutral halakhic topic (one that does not arouse overly strong conservative emotions): “There is a presumption that a person does not repay before its time.” The Talmud (Bava Batra 5a) establishes a presumption that a person does not repay a debt before the final due date. He prefers to hold onto the money as long as he can. Hence the rule: if Reuven sues Shimon to pay a debt, and the suit is filed a week after the loan, and Shimon claims he already repaid—he is not believed. The loan was given for thirty days, and it is unlikely he repaid within a week. Of course, if he brings evidence he will be believed, but by default the burden of proof rests on him. Note that the one holding the money is Shimon, the borrower (the lender wants him to pay), i.e., this rule runs counter to the general rule that “the burden of proof lies with the extractor.” Perhaps one can say that this very presumption constitutes the plaintiff’s evidence that extracts the money from the borrower.
Let us now suppose the reality has changed, and for one reason or another people do repay before the due date. Does this sugya become a dead letter? Can we erase it from the Talmud? Certainly not. This sugya was not written to teach about people’s customs and psychology. Those are factual questions, and as such one must form positions about them by observing reality, not by studying the Talmud and its commentators. The Talmud comes to teach norms; in this case it teaches that if there is a presumption, it can shift the balance of power between plaintiff and possessor and transfer the burden of proof. Which presumption exists in reality is a factual question that can also change over time, across places and circumstances. The lesson of this sugya is to teach the normative principle, not the facts. For our purposes, the sugya’s conclusion is not, as the literal conservative understands, that a person is not believed to claim repayment before the due date. The sugya’s conclusion is the result of a *midrash*: a person is not believed to claim something that runs counter to a presumption. What is the presumption? That is a factual question about circumstances.
What Is Halakhah?
In fact, the conclusion from this analysis is much broader. Factual determinations are never Torah. More than that: Halakhah is not even simple normative determinations such as “a person is not believed to claim repayment before the due date.” Halakhah is a set of bridge-principles that deal with aligning facts and the norms derived from them. In this case: if there is a presumption X, then a defendant who claims “not-X” bears the burden of proof (despite being the possessor). This is exactly parallel to the determination that one must wear clothing suited to the weather, rather than “one must wear a swimsuit.” The practical outcome—what to do in practice—is the application of the bridge-principle to the current circumstances (and not to those that prevailed once upon a time).
We can describe it thus: generally speaking, Halakhah concerns itself with attaching a normative directive to given factual circumstances. This attachment rests on bridge-principles that carry me from the circumstances to the directive. But Halakhah is not the directive, and certainly not the circumstances themselves. Halakhah is the principle that carries me from the one to the other. One can liken this to logic. When we infer a conclusion from premises, logic does not concern itself with the premises or the conclusion. It concerns itself with the derivation of the conclusion from the premises, which is precisely analogous to the bridge-principles. Let me illustrate with a hackneyed example. Consider an argument that assumes that all humans are mortal and that Socrates is a human, and derives from these that Socrates is mortal. Which element is the province of logic? Neither the premises nor the conclusion. Logic concerns itself with the bridge-rule that carries us from the premises to the conclusion: if all X are Y and a is X, then a is Y. Logic deals with the structure of the argument, not its content.
In the same measure, Halakhah concerns itself with the structure of thought—not with the circumstances and not with the halakhic bottom line (the normative outcomes). Thus, for example, according to the conservative *midrash*, Halakhah does not disqualify women as witnesses; rather, it says that if there is a group lacking familiarity with the world and with various fields of knowledge, that group is disqualified from testimony. Which group is that, and how do we identify it? That is answered by observing reality, not by studying the Talmud. That is not Halakhah’s concern. The determination that disqualifies women is not Halakhah, nor are the factual determinations (about the nature of women). Halakhah focuses solely on the bridge-principle. Consequently, the principle of the eternity of Halakhah pertains only to the bridge-principles, not to the facts and not to the normative conclusion.
Up to this point the analysis seems sound and reasonable. The presumption that one does not repay before the due date is comprehensible, and any sensible halakhist will supply it with an appropriate conservative *midrash*. I find it hard to imagine a court that would obligate someone who claims to have repaid early in circumstances where people customarily do repay early. But with other examples, like qualifying women for testimony, I assume that some readers feel uneasy. Likewise, regarding presumptions such as “ṭav le-meitav tan du” (that a woman prefers to be married rather than single), which have far-reaching implications for women in rabbinic courts—most decisors will not operate with midrashic conservatism. I see no essential difference between the cases, for the logic in all of them is that of a conservative *midrash*. It is true that in the presumption about not repaying early, the *midrash* lies more on the surface and seems self-evident. But that is purely technical. Even in “ṭav le-meitav” the *midrash* lies on the surface: there is a factual claim that women want partnership at any price. One can simply check whether that is indeed today’s reality. Although the *midrash* here is entirely obvious and legitimate, most decisors oppose using it. Here one can no longer claim that the *midrash* is not self-evident. The problem is more sociological (fear of liberals who espouse women’s equality: the envoys of the New Israel Fund, the LGBTQ community, and the Elders of the International Left).
This brings me to the question of where and how to apply the conservative *midrash*, and what to do when we lack such a *midrash*.
More on the Conservative *Midrash*
Let us return to the example of women’s disqualification as witnesses. We saw that the focal point is the bridge-principle, and the midrashic proposal is that Halakhah does not disqualify women but rather groups lacking familiarity with the world and various fields of knowledge. The literal conservative, of course, objects. He can base his objection on several kinds of counter-arguments: 1) Denying the facts: the Sages and the Torah knew women’s nature well, and therefore it clearly has not changed (“You are living under factual brainwashing”). 2) Rejecting the possibility of value-based change: “This Torah shall not be exchanged.” The rule does not depend on women’s nature; changing their status undermines the principle of the eternity of the Torah (“You are brainwashed by liberalism”). 3) *Ta‘ama de-kra*: even if that rationale is correct, in Halakhah we do not interpret laws by their reasons (especially purposive interpretation). 4) Limited midrashic conservatism: the burden of proof is on you. You have not proven that the disqualification of women is grounded in lack of education/acquaintance with the world. The last argument acknowledges the possibility of conservative *midrashim* but demands that their proponent furnish evidence that they are correct.
In the discussion here I will ignore denial of the facts, since that is simply ignoring reality. I will also ignore the claim that laws have no reasons, if only because this law is the result of a *derashah* and not something explicitly written in the Torah. A *midrash* by definition rests on the reason of the *darshan*. For the same reason I will not relate to the claim about the eternity of the Torah, for eternity pertains to the bridge-principles and not to the bottom lines. I will also ignore here the claim that this is *ta‘ama de-kra*. The rule that we do not interpret laws by their reasons was said only about laws written explicitly, not about laws derived from *derashot*, since there, as noted, the rationale is always in the background.
We are left with the last problem: such conservative *midrashim* can be proposed by the dozen, and there is no way to critique them. All of Halakhah could thus be emptied of content, since one could always offer an ungrounded conservative *midrash* and change it. Shabbat was instituted for those who worked hard, and today people do not work hard. The prohibition of pork came from Jebusite influence and today its rationale no longer applies, and so forth. It is important to distinguish here between the “slippery slope” claim—that is, the fear of baseless *midrashim* that will uproot Halakhah—and the substantive claim that raises the slippery slope only as an indicator (see column 429 on the types of slippery-slope arguments). The former is, in my view, irrelevant. I am dealing with whether the midrashic interpretation is correct. Fears about where it will lead are legitimate considerations, but second-order ones (and we also have no authority to reject a correct interpretation on the basis of such considerations. That would be legislation, and we have no Sanhedrin empowered to legislate). In general, I will only say that for my part there is no limit to such considerations. Even if the entire Halakhah were to change and our slope became a skating rink—if that is truly the correct interpretation, then indeed everything should change. There is no need to fear changes if they are correct. Despite the understandable fears, I am unwilling to set an a priori limit on the use of conservative *midrash*. I am willing to accept local ordinances or decrees that arise from a specific concern, but that too is possible only if done by a competent body (a Sanhedrin, or perhaps the consensus of all the sages of the generation).
Having rejected most of the literal conservative’s counter-arguments and the slippery-slope claim, I will address here only the last claim in its second, substantive form: that without foundation and evidence from the sources one cannot assume the proposed *midrash* is correct. Seemingly such a *midrash* is mere speculation. Before I answer, note that this claim means that in order to confront the literal conservative’s objection, the midrashic conservative must clear two hurdles and in fact present two levels of *midrash*: at the first level he must propose a midrashic interpretation of the directive at hand (one must wear clothing suited to the weather; disqualification from testimony applies to a group lacking familiarity/education, etc.). At the second level he must offer support for the first-level *midrash*. He must bring evidence from halakhic/traditional sources that women’s disqualification indeed stems from lack of familiarity/education, or that the directive to wear swimsuits is indeed due to climate-appropriateness.
My answer to this objection (the second level) is rather brief. Even in the absence of grounding in the sources, I accept a conservative *midrash* by virtue of its internal logic. If we consider the proposal to qualify women for testimony, and suppose for the sake of discussion that we did not find authoritative sources that would decide whether the disqualification stems from deficiencies in women or whether it is a law grounded in some unknown rationale—still we face two possibilities: A) assume we have before us a law with an unknown rationale; B) assume we have a comprehensible law grounded in female characteristics. Even without proof and source that ground it, option B is the more rational. There is no reason to reject a reasonable interpretation on the claim that perhaps there is some unknown alternative that we do not recognize. This is simple sevara, and of course one can bolster it with halakhic principles (which themselves emerged from common sense, not from verses): a judge has only what his eyes see; doubt does not override certainty. Nowhere have I seen a proposal for a reasonable explanation of some law rejected merely because perhaps there is some other unknown explanation—without the rejector adducing any proof for his words. There is no logic in that.[7]
Note, too, that even the Meiri, in his proposal to change our attitude toward gentiles (because in our day they are “bound by the civilized norms of nations,” i.e., behave in a reasonably humane way—see about this here), brought no sources that support his conservative *midrash*. And indeed he (and essentially I, who follow him—see the beginning of column 74) stokes the anger of literal conservatives precisely because a conservative *midrash* is being proposed here without foundation in the sources. My answer to them is that while it would be good if such a foundation could be found, in its absence the very logic gives this proposal the edge, and the burden of proof lies on the literal conservatives. One can, of course, debate the facts and claim that gentiles today are exactly as they once were—and there are not a few who do so (ignoring or denying reality are common tactics among our literal conservative cousins)—but there is no room for the claim against the very method of conservative *midrash*.
I will go further. There is a very intuitive sense that the burden of proof should fall on the midrashic conservative, since he is the one proposing to change the status quo. I accept this in principle, but once he proposes a reasonable interpretation and the literal conservative does not point to a flaw nor offer an alternative explanation, in my view the burden has been met. Now the burden shifts to him. If we return to the swimsuit example, we can present this more sharply: from the perspective of the midrashic conservative, it is the literal conservative who comes to change the past practice (for our forefathers walked wearing clothing suited to the weather, and he proposes to change that). On that view, the presumption favors the midrashic conservative and not the literal conservative. So too with qualifying women to testify and other topics. Thus, for each side, the picture of the presumption looks different, and the feeling that the burden lies on the midrashic conservative because there is a presumption favoring the literal conservative is incorrect: it tacitly assumes the literal conservative’s approach. From another angle, one can say that it is reality that has changed compared to the past (women’s nature, or the climate), not Halakhah. And indeed, regarding reality one can certainly say that we are overturning a presumption—but regarding reality there is no dispute that it has in fact changed. The dispute concerns only the halakhic implications of that change, and regarding those there is no agreed presumption.
One more remark. The common feeling is that literal preservation is the safe route and comes at no cost. Hence the midrashic conservative is at a disadvantage and the burden should be imposed on him. But this is a mistake. One must understand that literal conservatism also has a heavy price. If there is a murder or theft case for which we have only female witnesses, and we disqualify them because of literal conservatism, the price is a miscarriage of justice and sometimes danger to the public. I have already noted that from the standpoint of the midrashic conservative, the literal conservative is a criminal (“criminal conservatism”), for he acts against Halakhah. Here we see that this conservative crime carries a very heavy cost—no less, and perhaps greater, than the price of midrashic conservatism in the literal conservative’s eyes. In short, there is full symmetry between the two approaches, and the sense of asymmetry stems from (sometimes unconscious) adoption of literal conservatism. This, by the way, is one of many examples of the harm caused by conservatism, which I discussed in the past (see column 249 and, in response, column 444).[8]
In short, my claim is that a conservative *midrash* should be evaluated by its internal logic. It is easiest to reject all *midrashim* out of hand and without argument—merely by claiming they lack foundation and that accepting them enables turning all of Halakhah on its head and emptying it of content—or by invoking presumptions (*chazakah de-me’ikara*, “the status quo”). But that is unjustified hysteria. The logic underlying the *midrash* about women’s disqualification from testimony is entirely reasonable (even if not as compelling as in the presumption about not repaying early). It is not a detached proposal. Detached proposals do not pass the test at the first level, since they lack a midrashic interpretation, even before the question of proof and foundation. A midrashic interpretation, by definition, passes the first level; therefore the discussion should be only about the second level (what evidence supports it).
In the next columns we will see further examples that will clarify and sharpen the matter.
Sociological Identification
I wrote that I am not dealing here with the sociological identification and characterization of the various groups but with a classification of types of argument. Still, to sharpen the meaning of these characterizations, I must resort a bit to sociology. Literal conservatism characterizes the Haredi ethos. A Haredi person lives with the consciousness that what he does was given to Moses at Sinai and that so it has been practiced through all generations. The foundational principle of Haredism is the prohibition to deviate from the customs of our forefathers (who, as is known, did not change their language, dress, etc.; as is well known, Moses spoke Yiddish and wore a frock coat and gartel). Sober Haredim, of course, know that things developed (including Halakhah, not only customs). Still, the ethos that shapes them is literal conservatism: everything, absolutely everything, was given to Moses at Sinai. My uncle used to say that Abaye and Rava studied in Yiddish (for they knew how to learn, and they were not *Mizrachi-niks*. Whoever knows how to learn surely learns in Yiddish). He of course knows that this is not literally how it was, but his relation to that ethos is entirely serious.
I do not know how such a sober literal conservative reconciles the facts with the ethos. Perhaps he means that if they were alive today, they would study in Yiddish. But he will in all seriousness repeat the dicta of the Sages that everything a veteran student is destined to innovate was given to Moses at Sinai; its generalities and particulars are from Sinai; and so forth—together with solid familiarity with sugyot in which laws were innovated on the Sages’ own reasoning, or in which opinions dispute various laws, and so on.[9] Moreover, we saw above that in many important cases literal conservatives do engage in conservative *midrash*, as in the presumption about not repaying early. The battles rage over contentious topics tied to modern values, such as the status of women and of the gentile (such as the “ṭav le-meitav” presumption), and not always because of the weakness of the conservative *midrash*.[10]
We are approaching our subject. I will only note that the midrashic conservative is the Modern Orthodox Jew. He preserves the tradition but interprets it in accordance with the circumstances. The fundamentalist literal conservative is unaware that his own Torah has undergone changes and adaptations. He denies that there were any changes and truly lives with the feeling that Moses and Abraham wore black frock coats and prayed the Amidah. True, we saw that the sober literal conservative does accept conservative *midrashim* (as in the presumption about not repaying early). The difference between him and the midrashic conservative lies mainly in the ethos, not in actual conduct. There are differences of degree, of course, but in principle both views accept the legitimacy of conservative *midrashim*. Most types of literal conservatives, when reacting to a conservative *midrash*, treat it as Reform and accuse it of deviating from the directives. They ostensibly do not recognize, in principle, the legitimacy of conservative *midrashim*. The literal conservative—even the sober one—truly lives the ethos, and in his view every such change is an injury to the Torah given at Sinai. Naturally, he usually does not give himself an accounting of the changes that the Halakhah he upholds has undergone (though some are aware of them), and certainly does not set criteria that would distinguish between legitimate and illegitimate changes (in the sixth part of my book Between the Standing I propose a map of the theory of halakhic change, and in my view it is entirely legitimate from the standpoint of the traditional conception of Halakhah, though perhaps not from the standpoint of the Orthodox conception of Halakhah).[11]
Up to here I have presented the conceptual system and principles. We must now bring them down to earth and use them to examine the ideas of Modern Orthodoxy and the disputes surrounding it.
[1] See, for example, a review here of his book Judaism on a Spectrum.
[2] On this point I will remain vague, because in my view support for or opposition to Zionism are empty ideas. They have no practical meaning apart from a single blessing on one day of the year. For me, Zionism and anti-Zionism are sentiment, not a conception. But for the sake of the discussion I cleave here to the way people define themselves. My chief concern in this column is with the second component (modernity), not with Zionism.
[3] And justifiably so, from their perspective, since the Haredim are better than they are: more insular, more conservative, more proficient in Shas and its commentators, more devoted to pure study, and more abstinent from secular studies.
[4] For the *Hardal* public, being a religious leftist or liberal is far worse than being a right-winger who devours non-kosher meat and violates the laws of family purity (or a “Zionist,” in their narrow understanding of that term). All these, as is known, are the agents of the New Israel Fund, the LGBTQ community, and the European Union—those responsible for the protocols of the Council of Elders of the Left. A contemporary example: see the report here that Yeshivat Mercaz HaRav would not invite Prime Minister Bennett that year to the Jerusalem Day celebrations, even though they used to invite every secular prime minister before him, and of course also presidents of the state and chiefs of staff across the generations (all of whom are, as is well known, pious men). I presume that, in their eyes, a religious prime minister who cooperates with leftists (and also opposes *Hardal* dictates) is worse than the leftists themselves. That item reminded me of a decision by the journal Tzohar. While editing one of my articles I was astonished to discover that they decided to write “Prof. L.” instead of “Prof. Leibowitz,” no less. When I asked, they explained that this was the instruction of R. Tzvi Yehuda: do not mention the wicked by name. I asked why they did not change Ben-Gurion (who also appeared in that article)—a champion pursuer of religion and religious Jews—to “B.G.”, and they explained to me, quite reasonably, that “L.” was much worse than “B.G.” Happy are you, Israel—the “national” ones and the “general” ones who grasp the mantle of “generality,” while shrinking it to those made in their own image, holding by the trait of “general-particular-general.” They appear to me similar to those liberals who are very open and tolerant toward the whole range of opinions—so long as they are their own opinions.
[5] And more comprehensively in the lecture series available here.
[6] For a detailed discussion of the example and of the structure of the conservative argument and its assumptions generally, see my lecture here.
[7] True, in several places we find: “Shall we act merely because we are imagining?” But since, in my view, that stance is irrational, we must interpret all those places as ones where there was good reason to doubt the proposed interpretation, or where it is reasonable that the relevant reality did not change; and if the existing law differs, then the burden of proof lies on whoever comes to change it.
[8] Innovation also has downsides, of course, but people find those self-evident (conservatives point to them constantly). Hence I focused here on the other side. Note, however, that here too there is no symmetry: when an innovator proposes an idea that has advantages, if the conservative raises only the claim that this deviates from the accepted (the wisdom of the generations, etc.), the conservative is at a disadvantage. The innovator points to advantages in his proposal while the conservative suffices with raising a doubt—precisely as I argued above.
[9] A nice example is the tradition that one does not derive a *gezerah shavah* on one’s own unless received from one’s teacher. The Ramban and his students already noted that this cannot be correct, for we often find disputes about *gezerot shavot* (see the *Encyclopedia Talmudit* under “Gezerah Shavah”).
[10] Regarding the attitude toward the gentile, see my essay “A Gentile Whom Halakhah Did Not Recognize”, my essay “Is There Enlightened Idolatry? On Attitudes Toward Gentiles”, and in greater detail chapter 36 of my book Between the Standing.
[11] As is known, Orthodoxy is a kind of ideology, and as such it is in essence a modern phenomenon.
Discussion
R. Shlomo Zalman Auerbach stood in the beit midrash and declared with pathos:
Moshiach vet kumen (the Messiah will come)
and the very first thing he will do is accept women's testimony.
There were study partners sitting there; I knew two of them.
They grew into great Torah scholars and today hold important Torah positions.
One of them became a liberal Torah scholar (God save us)
and the second became a hardline zealot Torah scholar…
The liberal Torah scholar told me what the two of them had heard from R. Shlomo Zalman.
I enjoyed it.
I approached the zealot Torah scholar and asked him whether the story was true.
(He couldn't deny it, either because he has integrity, or because he knew that I knew.) And he immediately answered me, shouting (as is his way): I heard there, 'not now.'
I assume that R. Sh. Z. Auerbach meant: when a Sanhedrin is established.
And not specifically that the Messiah will come. (And only this tanna is from the Jerusalem Talmud and was not precise in his wording.)
For what authority would he have, without a Sanhedrin, to change the halakhah?
And why would a Sanhedrin need the Messiah in order to legislate halakhot and change them?
(Unless perhaps he thought that this would probably happen at the same time?)
It seems to me similar to what I heard in the name of one of the greatest halakhic decisors of our day: that the first thing a Sanhedrin would do is abolish the seven clean days.
(Of course, some say there is no need specifically for a Sanhedrin, and any rabbi nowadays who sees great need can rule to waive the seven clean days for a specific couple for some period of time; go out and see what the people are actually doing.)
And it seems to me that on this he disagrees with R. Shlomo Zalman as to what the first thing the Sanhedrin would do is.
A footnote: in the past I saw that the Meiri does indeed provide grounding for his conservative midrash about gentiles bounded by religion. The Gemara says, “He saw and released the nations”—He saw that they did not keep the seven Noahide commandments, so He arose and permitted their property to Israel. And the Meiri says: if they do keep them, then their property is not permitted.
With God's help, 16 Iyar 5782
Assertions that certain details in halakhah change because reality has changed, since the principle underlying the halakhah requires opposite conduct due to the change in reality, also exist in Haredi halakhic rulings.
Thus, for example, the Hazon Ish ruled that in our times the law of “we lower them and do not raise them” is not practiced, both because in our day there is a strong element of inadvertence among nonbelievers—“captured infants”—and because today harming them would only strengthen unbelief. And similarly, R. Yosef Shalom Elyashiv ruled that in our times there is no “pressing circumstance” on which some of the leading rabbis in the early settlement relied in order to apply the “sale permit.”
The question is always whether there is truly a real change in reality, and whether it creates a change in halakhah. These discussions have accompanied the halakhic world since the beginning of the modern period. In some of them the conclusion was affirmative, and in others it was determined that there is no room for change; and these discussions are not unique to “Modern Orthodoxy” in the United States or to its counterpart, “Religious Zionism,” in the Land of Israel.
R. Joseph B. Soloveitchik and R. Moshe Feinstein discussed this in the United States, and R. Abraham Isaac Kook, R. Ben-Zion Meir Uziel, R. Isaac Herzog, R. Ovadia Yosef, R. Shlomo Goren, R. Shaul Yisraeli, R. Yosef Shalom Elyashiv, and R. Shlomo Zalman Auerbach discussed it in the Land of Israel—and the discussion is first and foremost halakhic, and not necessarily dependent on one's attitude toward Zionism and modernity.
The concept “Modern Orthodoxy” is connected to Yeshiva University, the OU organization, and the Rabbinical Council of America (RCA), alongside which in recent years there arose a stream calling itself “Open Orthodoxy,” organized in the IRF, founded by Rabbis Avi Weiss and Marc Angel, who are lenient in several matters such as ordaining women as rabbis and the like. If Ramda and the like wish to call themselves by a name, it would be preferable for them to choose the title “Open Orthodoxy.”
Regards, Yaron Fishel Ordner
Many thanks. Here you are repeating my points with examples. There are of course many more. As for the label, I have no interest whatsoever in nicknames and labels or handles.
As I explained in my article, the gentiles in his time also did not keep the seven commandments. They violated at least idolatry, since they were Catholics. The Meiri usually follows Maimonides, who regarded them as idolaters, and therefore I argued there that he probably agrees with this as well. His claim is that despite this, one should change one's attitude toward them. And in this his attitude toward their ritual objects is well explained.
A fine column, apparently—wondrous indeed, beautiful and fitting, grapes of the vine worthy of the vine.
It's just that it seems to me that some complementary components could be added here, which might give a broader picture.
Note that by and large the Hardal and the Haredi passionately and devoutly support (and very often with madness in their eyes, and sometimes even the honest ones among them will knowingly lie) leadership of bribery, fraud, and breach of trust over the people who are supposed to be a light unto the nations.
This encompasses almost 100% of them, really.
And the more liberal side is willing to listen on the issue; some of them will still support bribery, fraud, and breach of trust, but some will be ashamed, and some will agree that it is depravity.
Why is the divide like this?
How is it connected?
It seems to me this could help complete the picture.
An interesting topic.
Does the rabbi define himself as Orthodox?
I want to argue that you are not Orthodox, and I see this as praise, not criticism.
Without getting into the specific content of one Orthodoxy or another, the very assumption that there is a “correct way” stands in contradiction to science and modernity, which are willing to reexamine assumptions in light of empirical findings. The rabbi is systematically faithful to the scientific method and seeks to follow the truth, and has even changed his views over the years.
In my humble opinion, attempts to unify modernity and Orthodoxy are doomed to failure, on the conceptual plane as well, and in the end probably on the practical plane too.
Orthodoxy of course also exists de facto in the secular-left wing; that is how we got the postmodernists, or by their current name: woke…
A nice article.
Even though, without any contradiction to the article, I see things somewhat differently. In this article you presented, by way of example, the conservative midrash and the plain-sense midrash: the fact that the dispute in these matters is about what reality is, and not necessarily about what the right values are, the correct interpretation, or the will of God. That is, one can definitely say that even a Torah scholar who is Haredi or national-Haredi, conservative or whatever else we call it—scrupulous in observing every minor and major commandment, careful to draw all his ways of life from Jewish halakhah and at most also from Jewish thought—may reach the conclusion that historically, for example, the Sages did not intend to impose sanctions on the heretic as we know him today; on the gentile as we know him today—they did not; they did not prohibit teaching Torah to women as we know them today—he should have no problem, even from a completely conservative and completely religious starting point, changing his attitude to these issues. Just as he would have no problem reading English literature from time to time as recreation for the soul on the basis of some permissive ruling that meets the rules of halakhic decision-making, or consuming healthy, proper nutrition and keeping fit specifically according to the instructions of modern medicine, which is not “Hazalic.”
Rather, I think that the line dividing the Haredim and national-Haredim from the modern Orthodox of all types, sects, and degrees is how much a person allows himself to draw values, ideas, and modes of thought that stem not necessarily from Torah, but perhaps from general culture, perhaps from feelings and intuitions imprinted in us as people living as modern human beings, who have adapted to a “modern mindset.”
And perhaps I will go even further and say that the argument does not even begin with what attitude we take toward the modern mindset and our modern feelings, or how much weight we give our common sense when examining all sorts of statements, essays, and halakhic rulings—but rather with a prior argument over what the essence of Torah is, what the essence of the commandments is, what the purpose of halakhah is, of observing the commandments. For those who see mainly the service of the religious person in halakhah and nothing more—like you, for example—who do not believe in the concept of Jewish morality, Jewish thought, or a Jewish mindset, it is actually easy to be modern and religious at the same time. As I recall, you once wrote that in your view halakhah and morality are two separate categories. They need not conflict with one another, and there need not be opposition between them. Even if many times, like Abraham our father, we subordinate ourselves in favor of halakhah—the conservative Hardal, Haredi, Torani, or whatever you want to call him, often sees the opposition, the uncompromising struggle, the war, the blood-spilling with the modern world, as the very essence of the Torah, which comes to elevate us and raise us to new levels of holiness that have no connection to the lowly and impure world of most human beings, who are captive to falsehood. I am presenting things caricaturedly and quite deliberately. It is worth emphasizing a point I have often noticed—for example in sermons by outreach rabbis. From my point of view, people whose intelligence and understanding may indeed be poor, like Yossi Mizrachi for example—you can see that what they absorbed from the Haredi world when they entered it was this motif: that there is a vast and unbridgeable gap between the world of halakhah, the world of Torah, the holy and exalted Jewish spiritual world—and the lowly, impure, and contemptible earthly world—and that the entire purpose of the Jew in our world is to withstand this test and, in addition to observing halakhah, to develop contempt and hatred for everything outside holiness. Concepts that elevated the Jew to a level of holiness many times higher than the gentile probably also play a role in this worldview—if from the outset I see the Jew as a holy and exalted creature whose antithesis is the gentile, it is very easy to reach from such a thought-pattern the conclusion that most of the cultural world, most “normal” modes of thought, are impurity, because they are ways of thinking and values that come from the human being who is the antithesis of my essence as a Jew. Even though one can also be a lover of humanity and hold such a separatist approach—it does not necessarily overlap with one another. But in my opinion there is an affinity. (In fact, not only does it not necessarily overlap with one another—it may not overlap at all. After all, one can see Rabbi Kook's students, who believe in the concept of the unique spiritual quality of Israel as a central tenet of faith, and at the same time preach the clarification of sparks from every culture, sanctifying this world, and apparently instead of withdrawal—warfare or repairing the modern world and elevating it too into holiness. The best definition I can give for this sort of thinking is simply modern Orthodox fundamentalists.)
In contrast to this approach, there is the approach that the Renaissance rabbis tried to present: there is holy Torah—and alongside it there is secular culture. The attitude to secular culture is neither good nor bad—when secular culture and the outside world are good, there is no problem adopting certain parts from them so long as they do not conflict with Judaism, because the goal of the Jew is simply observance of the commandments and service of the Holy One, blessed be He. In their view there need not be any overlap between that and warfare, and they did not see the secular and the sacred, the Jew and the gentile, primarily as something akin to a war of the sons of light against the sons of darkness.
It seems to me that this point has pretty much been exhausted. You repeat it in every message, in every context.
This is already a semantic question. You can of course define Orthodoxy that way, but I do not share that definition. In any case, I am really not interested in defining whether I am Orthodox or not. One should discuss whether I am right or not.
I partially agree. I'll get to that later.
Apparently, qualifying women for judging and testimony is essential for permitting the removal of the “stringency of seven clean days,” for its basis is that “the daughters of Israel took a stringency upon themselves”—and it will not be possible to abolish it except in a court in which “daughters of Israel” sit 🙂
In practice, regarding women's testimony, rabbinical courts do accept their testimony when it is impossible without it, relying on the enactment of the early authorities cited by the Rema to accept a woman's testimony where no men are available (an enactment that has a basis in the Gemara regarding a midwife's credibility about the identity of the newborn). The practical difference is that one cannot make such an enactment for testimony in kiddushin and gittin, where validity depends on testimony that is biblically valid.
The stringency of “seven clean days” originated in the loss of the ability to distinguish between a red appearance that is pure and blood that imparts impurity, because of which we do not know how to tell whether the woman is in her “days of niddah” or in her “days of zivah.” When the Temple is rebuilt, that ability of distinction will have to be renewed, for every woman will need to know exactly whether she is in her “days of zivah,” which obligate a sacrifice, or in her days of niddah, which do not obligate a sacrifice.
Regards, Yifaur
The reasoning that women do not testify because, since they are not usually involved in business acquisitions, they are not precise, was stated in Sefer Ha-Chinukh (and on that basis R. Ben-Zion Meir Uziel relied to allow women's testimony nowadays); but Tosafot explain that the disqualification of women from testifying is a “decree of Scripture,” since a woman is believed even regarding the severe prohibition of niddah, and therefore the decisors prefer the direction of an “enactment.”
Paragraph 2, line 4
…where validity depends on testimony that is biblically valid.
Paragraph 4, line 1
…because they are not usually involved in business matters…
Actually, it does seem to me connected.
There are those who care about reality and truth and try to weave their lives into them, as well as halakhah, which is part of their lives.
He will listen to reasoning, to logic, and to facts about changing reality; he will feel uncomfortable, and certainly not Jewish, supporting bribery, fraud, and breach of trust.
But there are those who decide to ignore reality and truth; that is how they will conduct themselves both in their moral-political choices and in halakhah.
He has no problem with falsehood or an imagined reality in place of the truth.
Thus he has paved for himself the way to support the depravity of bribery, fraud, and breach of trust.
Is there anyone here who can rhyme life more beautifully than Rabbi Michi?
It also seems to me that getting up early and/or praying immediately upon waking.
Once this was at sunrise, because people also went to sleep not long after sunset.
Today, when there is a lot of ? and there is electricity, the enhancement is to pray immediately upon waking at 8, or at least to pray right after getting up.
And there is no enhancement in sunrise prayer.
Suitable?
The first source in the Meiri cited in the article there is Bava Kamma 37b, and in the article you summarized it as follows: “In the sugya in Bava Kamma 37b he proves from the midrash appearing in the Gemara (there, 38a) that the prohibition of robbery was permitted only because the gentiles did not accept upon themselves the seven Noahide commandments, from which it follows that this does not reflect an essential attitude toward every gentile. From here he apparently concludes that the law regarding those who are bounded by religion and manners is different.” [The Meiri’s wording: “And according to what is said in the Gemara, this applies specifically to nations that are not bounded by religion and manners, as the Gemara said regarding them: He saw that the sons of Noah had accepted the seven commandments but did not keep them, so He arose and permitted their property whenever the law obligates them in this way. But anyone who keeps the seven commandments is judged by us as we are judged by them, and we show no favoritism in judgment to ourselves. And therefore it goes without saying that this is so regarding nations bounded by religion and manners.”]. If so, it is explicit in the Meiri that he does indeed provide grounding for his conservative midrash. Maybe the matter of idolatry is a difficulty (and should be resolved), but the Meiri's words are clear. No?
And by the way, it is not clear to me why you assume there that idolatry is especially connected to the permission regarding their property. If the point is that it is one of the seven Noahide commandments and one transgression is enough to permit their property, that is not necessary; perhaps one permits the property only of those who nullify all or most of the seven commandments, but if they keep six commandments and worship idols, one does not permit their property.
This is a second-order conservative midrash. The Gemara ties it to the seven commandments, and the Meiri expands it to groups that behave with reasonable morality. Violating idolatry (not sporadically—living a religious life of idolatry) cannot be considered keeping the seven commandments. That is absurd.
I just saw that this evening there is a launch for the book of my friend Rabbi Yehuda Brandes:
https://www.ynet.co.il/judaism/article/b1ydvx1v5
The article contains an attempt to bridge over the sociological boundaries. The problem is that the bridging itself is sociological. It seems that there (in the article; I have not read the book) there is a conflation of Religious Zionism and Modern Orthodoxy.
Who said one has to keep all seven commandments? The Gemara only says this regarding someone who does not keep all seven commandments. (This can be interpreted as meaning that he does not “keep all the commandments,” and nullifying even one of them is enough to permit his property. Or it can be interpreted as meaning that he does not “keep” all seven commandments, and one would need the nullification of all or most of them to permit his property.)
Possible, but very unlikely—both intrinsically and because I assume that throughout history there were many who kept part of the seven.
And the question that arises regarding a “conservative midrash” is: is the interpreter fully committed to the Torah and the Sages, convinced that his interpretation will validate the outlook of the Torah and the Sages, or is his world of faith and values an “ellipse,” of which the Torah is only one of the centers, while conceptions external to the Torah also hold central status, to which the Torah must be “adapted”?
Regards, Yifaur
The first path too can assume that values emphasized in the modern conception have long existed within the Torah's conception, but with the proper limitations and proper proportions, and in accordance with grounding those values in Torah sources. Thus, for example, the value of equality is anchored in the determination that “the law of the kingdom is law” is valid only in legislation that applies equally to everyone, as Maimonides writes in Hilkhot Gezelah chapter 11; but on the other hand, the value of equality is limited by all the distinctions the Torah made between Israel and the nations, between men and women, and between priests and the rest of the people.
With all due respect to the nations of the world today, among some of the “religious people” of our generation there are phenomena of murderous zealotry, and cruel oppression also exists outside a religious context (see China and North Korea). Billions are literal idol worshipers, and even in the West there are many who are “idol worshipers in partnership” or atheists; and in the realm of sexual immorality, modernity has brought about a major drift in things that were once “out of bounds.”
What perhaps should be strengthened in our day are forms of conduct that the Sages also recommended regarding even the idol worshipers of their time: behaving with decency and honesty, in ways that sanctify the Divine Name and promote “ways of peace.” And especially in our generation, when Christianity's influence has weakened and interest in Judaism and willingness to draw near to it as “Noahides” is growing—even if most of us are not supposed to engage in bringing them closer—we are still not exempt from following the Sages and the wise men of the generations in treating gentiles with decency and honesty.
Regards, Yifaur
I read Rabbi Brandes's book and also participated last night in the evening held in his honor. The book does not conflate; it creates distinctions. The purpose of the book is to abolish the hyphen and argue that there is an ellipse—that is, something more stable, organic, connecting poles in a way that is not conflictual but necessary, existential, and calm. And that this is the core of Religious Zionism, and that it also contains a message for the whole world, including the non-Jewish world. It was an interesting evening, most of it woven with agreements and talk about Religious Zionism, until at a certain moment Rabbi Yehoshua Shapira stood up (admitting that he had not read the book) and attacked the modern-Orthodox by means of data from the Central Bureau of Statistics, according to which only a minority of religious dropout occurs in the Haredi and Hardal worlds (I do not remember the numbers), while most of it occurs in modern Orthodoxy—especially among the “light” crowd. He used this as an argument for why one should be Hardal. He argued that one has to set boundaries, otherwise we will be left with nothing, and he brought as an example the trend toward abolishing the seven clean days, which has begun to spread in certain circles of the liberal religious public.
With God's help, 32nd day of the Omer 82
An “ellipse” assumes the existence of two different centers around which life revolves—the “religious” and the “modern”—centers that are essentially separate, except that one makes a “compromise” between them.
By contrast, the “hyphen” in the expression “religious-national” assumes that there are not separate poles here but a complete fusion. The “national” is an adjectival modifier of the “religious”: religious in a way that emphasizes the values of nationalism, which are an inseparable part of Torah values.
Regards, Akiva Yosef Halevi Radetzky
Incidentally, the Lag BaOmer celebrations in Meron were revived in the 1950s by Religious Zionist figures—Rabbi Neria, founder of the Bnei Akiva yeshivot, and members of the military rabbinate, who held an annual gathering for IDF soldiers in Meron on Lag BaOmer, so that they could recharge and be inspired by the spirit of Rashbi, who united in his personality greatness in Torah with refusal to accept subjugation to foreign rule. Let us hope that entrusting the hilula to a Religious-Zionist “project manager” will mark the restoration of the crown of the “connecting hyphen” to its former glory 🙂
Separate—yes; compromise—no. The ellipse includes and contains both within one reality. The hyphen is a rather weak connection, a kind of simple conjunction. It stands alongside it, but does not really connect.
I didn't really understand the comment about the Hardalim. Whom do you mean by that term?
Also the claim that “for the Haredim are better than they are by their own lights: they are more closed, more conservative, more in command of Shas and the commentators than they are, more devoted to pure learning, and more abstinent from secular studies”
is unclear. Why can't one say that one should be more closed, conservative, etc. than the “religious mainstream,” but that one need not be dragged to the Haredi extreme and can combine Torah with practical life? Why is that not a view that could be correct?
Unless we are talking about marginal groups, there is no connection at all between the Hardalim and the Haredi conception. The Hardalim simply claim that one has to be more cautious about openness than the average religious person, but they do not reject it completely; they just place the line in a different place (just as the average religious person also would not send his children to watch the pride parade in order to “learn about the values of the Western world and try to learn from it”).
A very powerful column, well done.
I think that when the claim is only to cast doubt that perhaps there is another reason, it really doesn't hold water. The problem begins when there are several reasons or midrashic interpretations for a law; then a discussion begins as to which of the interpretations is more plausible, and there is not really any way to prove one side right. For example, one can say that women were forbidden to study Torah because then they were uneducated and bad things would come out of it, unlike today when there is no difference. Or one can say that the Torah did not want women to study Torah because it wanted them occupied with raising children or something like that (just an example…). From the sources we have it is hard to decide what the intention was. In such a case, should we prefer interpretive conservatism or plain-sense conservatism?
With God's help, 32nd day of the Omer 82
To Duda—greetings,
“Teaching Torah to women” is an example showing that Rishonim and Acharonim discussed the reasons for Rabbi Eliezer's statement, “Whoever teaches his daughter Torah is as though he taught her tiflut,” and from this found various modes of permission.
In explaining the concern of “tiflut,” Rashi on Sotah 21 explains that the concern is that teaching Torah to daughters may involve forbidden relationships between the female student and her teachers or partners in Torah discourse. This concern was very weighty in a reality where Torah was entirely oral and required long hours of men and women sitting together, but even in our reality there is no lack of problems of inappropriate relationships between teacher and female student. Even so, it seems that Rashi did not see this as a sweeping prohibition, for he himself taught Torah to his daughters.
By contrast, Maimonides (Hil. Talmud Torah ch. 4) explains that the concern is “because most women do not have minds directed toward learning,” and there is concern that “they will turn words of Torah into trivial matters.” In other words: the concern is distorted understanding of Torah due to the learner's lack of patience to descend into the depth of things (“mind directed” meaning “ability to concentrate,” as explained by Maimonides in Hil. Tefillah).
In his words, Maimonides opened two avenues of leniency: one, in saying “most women do not have minds directed,” it is implied that there is a minority whose minds are directed, and they may be taught; as explained by the author of the Perishah (YD 246), Rabbi Eliezer specifically said “his daughter,” who is still young and there is not yet any indication testifying to her seriousness and ability to delve into study—and by implication, when the learner appears serious, she may be taught. (And indeed, throughout the generations there were known women who studied Torah, such as the mother of the Perishah and the mother of Rabbi Akiva Eiger and many others.)
The second opening that Maimonides created is study that lacks depth and whose content is clear and obvious. Thus Maimonides writes in Hil. Talmud Torah (there) that one who teaches his daughter Written Torah is not like one who teaches her tiflut. And thus Maimonides writes at the end of chapter 4 of Hilkhot Yesodei HaTorah that explanations of the Torah's commandments and laws are precisely what guide a person toward life in the world to come, and these are matters that can be known by “small and great, man and woman, one with broad understanding and one with narrow understanding”—this is an explicit invitation to women to study the laws in the Mishneh Torah. Similarly, the glosses to the Semak wrote that women need to learn the laws relevant to them, and for that reason the Beit Yosef ruled (OH 46:9) that women recite the blessing over Torah study.
Hundreds of years later, another step was taken—the establishment of Torah schools for girls. Since girls were not obligated in Torah study, there was no problem for parents to send their daughters to general schools. A situation developed in which the general education the girls acquired led to their distancing from Jewish tradition. And then an awakening began to establish schools for girls so that their Torah education would not lag behind their general education. Rabbi Hirsch and Rabbi Hildesheimer began this in Germany, and from them Sarah Schenirer learned and founded Beit Yaakov in Eastern Europe, encouraged by the Gerrer Rebbe and the Chafetz Chaim, who explained in Likkutei Halakhot to tractate Sotah that in a situation where girls learn in school all the “tiflut” of Western culture, it is vital that they study Scripture and the fundamentals of faith and halakhah in a systematic way.
From here the way was paved for encouraging deeper and deeper study. The Lubavitcher Rebbe instructed that part of learning the “necessary laws” is the study of Chasidut in the depth needed for strengthening faith. R. Joseph B. Soloveitchik introduced in-depth Gemara study for female students interested in it, and R. Y. Cooperman established the “College for Women” in which the girls study Bible and Oral Torah at a very high level.
It seems that despite a noisy feminist minority of women “who turn words of Torah into nonsense and tiflut,” most women “have minds directed toward learning,” and their learning brings them to strengthening in fear of Heaven and observance of the commandments.
Regards, Eliam Fishel Vorkheimer
For further material, see the article by Dr. Yael Levin, “Rabbi Yitzhak Nissim's Responsum on Women and Torah Study”
He is indeed conflating them (according to the description in the article), because the connections are made on a sociological basis and not on an essential one. He is also speaking about Religious Zionism while meaning Modern Orthodoxy. These are two utterly different things. Rabbi Yehoshua Shapira and his confusions are well known.
It is no less extreme than the Haredim. They are simply less successful because, unfortunately for them, they did not manage to separate themselves entirely from the dati-leumi environment from which they grew. There is a very deep connection. The Hardalim are Haredi in every essential sense. There is not the slightest difference between them (as long as we are speaking in generalizations), except that the Hardalim are more ideological and less practical.
One cannot set a general rule. Each case and question must be considered on its own merits. But as a rule, one should adopt the most plausible interpretation.
With God's help, 32nd day of the Omer 82
If I cannot accept the concept of the ellipse as creating in a person's world two foci that seem of equal value—“Torah” and “life”—then, as a classmate of Rabbi Brandes in the mathematics-physics track at Netiv Meir, I was reminded that there is also elliptical motion around a single focus, namely the earth's movement around the sun, which takes place in an elliptical orbit and creates the alternation of the seasons.
So too in the movement of a person's life in relation to his God and His Torah, there is a “run and return” of feeling ascent and descent, closeness and distance. There are times when a person feels “lights,” and there are times when a person feels himself “stuck” in gray and boring routine. A person must understand that the alternation of the seasons is necessary. There must be periods saturated with impressive energetic action, just as there must be periods of inwardness saturated with thought and self-criticism (reflection, in the foreign tongue). These and those complement and fertilize one another.
That same Rashbi who exalts total devotion to uninterrupted Torah study also knows how to find merit in one who recites Shema in the morning and thereby fulfills “you shall meditate on it day and night.” The main thing is that in all states a person not loosen his hold on Torah as the flashlight and compass of his life.
Regards, Ben-Zion Yohanan Kapler-Radetzky
I am reading the article, but something is missing for me in the description of the conservative argument. The entire argument sets logic against the current state, but pushes it to absurdity—the logic is solid and absolute, and all that sustains the current state is absurd inertia.
For example:
“Even in the absence of grounding in the sources, I accept a conservative midrash by virtue of its internal logic… there is no reason to reject a logical interpretation on the claim that perhaps there is another hidden explanation unknown to us.”
But there are two things here that should carry greater weight.
On the first level, there is the conservative stance. The very fact that the overwhelming majority who surveyed the matter hold a certain position should intuitively give us to understand that this is not a contentless position.
But on the more significant level, doubt should be cast on our own logic.
After all, you too have changed your mind over the years on a number of matters, as you yourself write.
So why should we rush to change something on the basis of that same clear and sharp logic, only to change it back when we discover the mistake?
In other words, the conservative claim is that the logic of the conservative midrash must also stand the test of the masses and of time. It is not that we are simply waiting for some other hidden explanation—we are giving time and room to see whether our interpretation is stable.
This is not an argument against change but an argument about the proper way to carry out changes, and the pace at which they should be carried out. True, this way we will implement good changes more slowly, but we will also avoid many changes that might have been harmful.
And as a side note—I work at a pharmaceutical company, and there is a difference between the conduct of research-and-development departments, which is sometimes more chaotic and academic, and the meticulous quality-assurance requirements in manufacturing departments.
Your column long ago about the differences in definitions of quality made me think that in halakhah too there will be those who seek quality through the eyes of research and development, and those who seek quality through the eyes of a manufacturing department.
And in my opinion this is a significant root of disputes on such issues.
In my opinion, the interpretive conservative is indeed at a certain disadvantage and should bring better proof for his claim:
What you call interpretive conservatism is basically an ukimta-type answer that is weaker than a regular answer. In practice, the interpretive conservative assumes that there exists an additional hidden factor—the reason—which is really the main point of the ruling, and the main point in the tradition we received is missing from the book, since there is no evidence for the distinction's existence in the tradition itself.
If we speak about the swimsuit analogy—if we know of no ancestor who wore a sweater, despite knowing that our ancestors also reached cold places, that weakens the ukimta.
Likewise regarding women's testimony—even despite women like Beruriah, Hazal did not permit women's testimony for wise women or women involved in worldly matters (there were even queens in the time of Hazal).
Clearly there are places where interpretive conservatism is more correct, but it needs actually to have an advantage in order for us to accept it over plain-sense conservatism.
What about a change in values? Both regarding whether to allow a change in values, and regarding whether to take a change in values into account when determining halakhah.
Should one allow a change in values when the environment changes, or do values, once we have defined them well, remain stable over time, and on questions of values too we should practice plain-sense conservatism?
And if we do allow a change in values, would a change in values (for example—we see value in Torah study for women; Maimonides did not see value in this, at least for the sake of the example) justify a change in halakhah (and we would permit more than Maimonides permitted)? Or would only a change in reality justify a change in halakhah?
I don't understand these questions, mainly because most or all of them were answered in the column.
First, I did not speak about the pace of changes. That is a policy question that I did not address. Second, conservatism and innovation are both invalid approaches in my view, and I referred to columns in which I explained why. One must make decisions according to their logic, not according to ideologies. If some proposal for change seems correct to me, then the fact that it is not conservative is irrelevant. Moreover, that also does not mean that there are many who disagree with it. Those many operated in a different environment—that is the whole essence of the argument. Those who oppose today do so not because they object to the argument, but because they reject such arguments categorically. If objections are raised to the argument itself, I completely agree that they should be considered and then a position formed.
Casting doubt on our logic is always good. But one certainly ought to cast doubt on a proposal that presents no logic at all (“perhaps there is another explanation”). That is far more dubious.
The fact that I changed my mind in the past is entirely true. So what? So I should not accept what I think? And if I think I should be conservative, that I should accept? In other words, if not my own logic, then what tools should I rely on? Even taking other opinions into account is my own decision.
The comparison to what happens in your company is incorrect. After all, when you compare strict quality control to conservatism, that itself is the mistake. The innovator argues that conservatism is criminal and will lead to a bad and harmful product.
But I explained all this well in the column.
Absolutely not. I wrote that my assumption (which is agreed to by most plain-sense conservatives) is that there is some logic underlying the ruling. If so, then the dispute is only about what that logic is. Therefore continuing with the swimsuit also assumes that there is some other underlying logic that is entirely unknown, meaning it assumes some interpretation. That is certainly no better.
The fact that they did not permit testimony by women is because halakhah operates by the majority, as Maimonides says. Today the majority has changed.
This topic will be discussed in the next column. By the way, Maimonides' values are really not important to the discussion. Just as he assumed his own values, I can assume my own. The question is what are the values of the Holy One, blessed be He, or of the Torah.
First of all, regarding gezerah shavah, I heard an explanation of the matter from Rabbi Cherki (and I assume this is also what Ramban's students meant). The statement “a person may not derive a gezerah shavah on his own unless he received it from his teacher” seemingly contains an internal contradiction (for if he himself derives the gezerah shavah, then he did not receive it from his teacher; and if he received it from his teacher, then he did not derive it. It is hard to say that everyone who learns a gezerah shavah from his teacher is considered to have derived a gezerah shavah, because then everyone who studies Gemara is in fact deriving a gezerah shavah). Rather, the plain meaning is that a person may not derive a gezerah shavah on his own unless he received from his teacher how to derive a gezerah shavah. That is, he did not receive that specific gezerah shavah which he himself derived, but rather learned how to derive gezerah shavah in general. (It may be that these things are well known; I just wanted to note this in response to your having written that Ramban's students said the Gemara says something incorrect, and it seems to me this is a way to resolve your comment while the Gemara remains correct.)
Second, regarding the issue of women's testimony: even the plain-sense conservative finds solutions to the situation. For example, although a woman's testimony is not considered testimony, the judge certainly takes it into account (for by judicial discretion a judge may rule as he wishes). Thus we have found a way to circumvent the problem you described.
Third,
Do you agree with what Rabbi Ido Fechter writes?? The man effectively abolishes the authority of halakhah and claims that this is basically a continuum of practices that one is not required to keep in full. How can you agree to such a thing?
Now, practically speaking, to the essence of the column.
First, I am not sure that Modern Orthodoxy is the interpretive conservative. (See R. Joseph B. Soloveitchik's words on the presumption that a person prefers the best quality, which you constantly criticize.) But of course that depends on whom you include in the definition of Modern Orthodoxy.
Second,
Don't you think there is an essential difference between a law in which I explain the reasoning and a law in which the Gemara writes the reasoning? Tirgitz proved that the Meiri also brought a source from the Gemara and did not just invent a reason on his own. (Another example of a similar case is the Raaviah on reclining at the seder night, where his opinion too can be grounded in the Gemara.) Your claim was: “Nowhere have I seen a proposal of a plausible explanation for some halakhah rejected just because perhaps there is another hidden explanation.” The question is not whether the explanation was rejected, but whether the explanation created a practical difference, no?
If we are talking about women's testimony, I could claim that the reason a woman is disqualified (isn't this learned from a verse at all? If so, what does this whole discussion have to do with anything?) is because women talk more than men, and therefore it is harder to rely on their word. Or that women are more emotional, and therefore will tend to interpret situations differently. (Sorry for the chauvinism and essentialism.) Why did you decide that your explanation is the most plausible?
You yourself wrote: “Indeed, in several places we find, ‘Shall we act merely because we are drawing analogies?!’ But since in my opinion this is not a logical approach, one must explain that in all these places there was a good reason to cast doubt on the proposed interpretation.” That is exactly what happens in the changes you are trying to make in halakhah: the conservatives have a good reason to cast doubt on the proposed interpretation. It strongly smells of an attempt to push liberal values into halakhah—that is how it feels when one reads these explanations.
A few difficulties to conclude.
First difficulty: the question of how to relate to a reality in which Hazal claim the opposite of reality and derive halakhah from it was discussed by the halakhic decisors regarding the permissibility of killing lice on Shabbat. I am astonished, Your Honor, that you did not mention this discussion at all.
Second difficulty: how did Your Honor not mention the concepts of cause or sign? Surely these are very important concepts for such a discussion.
Third difficulty: Nadav Shragai has an article arguing exactly like you, that basically the question that will bring order to many disputes is how to relate to reality and to changes in facts, and I don't understand how Your Honor did not mention this article (it may be that I slightly distorted his claims, but broadly it was similar to what you said, I think).
It is not only to assume that there is logic, but to assume that the logic has consequences that change the law in other cases—a change that was not observed before. Someone who claims that our ancestors wore swimsuits because it was beautiful is, in my opinion, in a superior position when there is no evidence whatsoever for a change in the custom.
As for testimony—not in every case do we make a “no distinctions” rule. There are cases where there is a different treatment for different women, for example reclining, or the capacity to sell property. There are places in the Gemara that distinguish between different women in different places (“our women”) or an important woman. The gates of answers are not locked, and one can argue that testimony is different and that here there is no room to distinguish between women—but every such assumption, as stated, weakens the argument that there exists a reason that has practical ramifications which we are seeing for the first time only now.
Second-to-last line: “that it has,” not “that it not.”
All these questions were answered in the column, and for some reason you choose to ignore that.
This explanation of Rabbi Cherki is nice, but of course if it answers the issue. The intent is that a person truly does not derive a gezerah shavah on his own, but merely transmits it from his teacher. Therefore that inference is not sufficient to establish such a thesis. Ramban and his students relied on proofs from the Talmud, as I mentioned.
They of course did not say that the Gemara wrote something incorrect. They explained the Gemara. Where did you see otherwise in my words?!
I am not looking for solutions but for the truth. If the truth is that a woman is fit, then she should be validated—not as a workaround. I was merely noting that conservatism has costs exactly like innovation, and perhaps more.
Since I have not read what he writes, I cannot agree or disagree. But even without reading, I am sure he did not write what you describe. That is the kind of demagogic conservative slander.
I explained that Modern Orthodoxy is a mode of thought, not this or that person. R. Soloveitchik's absurd remarks are an excellent example. I also noted that American Modern Orthodoxy is very conservative.
I already answered Tirgitz on his question. If the Gemara gives the reasoning, the discussion usually does not arise. We are dealing with a case where there is no explanation.
Absurd proposals neither add nor detract. You can also explain that women were disqualified because they have long hair. I have already answered slippery-slope arguments.
As for the astonishing astonishments you raised at the end:
I did not mention many other discussions. In fact I mentioned no discussion at all, since this is an introduction to conceptual analysis. Killing lice is indeed a good example.
I choose my own terminology for my own reasons. If in your opinion something is less successful or lacking, write that, and do not be astonished by what I did or did not mention.
My column does not include a literature review, certainly not of literature I have not read. Do not submit it as a master's thesis.
This is just obstinacy. Every explanation has consequences, including the hidden explanation (the consequence being that one should continue to wear a swimsuit). So we are back to the question of presumption (a change that changes the law and a change that leaves it as it is), and as I explained, in my opinion there is no presumption here because both explanations change the law. According to the interpretive conservative, the plain-sense conservative is changing the law of wearing clothes suitable to the weather.
The question of when one applies “no distinctions” and when not is hard to formulate criteria for. But the fact that they did not act this way for wise women is certainly no difficulty. And the advantage of a logical explanation over a hidden perhaps still remains.
One of the reasons to doubt the sincerity of claims about the need to “adapt halakhah to reality” stems from the fact that all the “adaptations” are only leniencies. We have never heard of anyone proposing to become more stringent in halakhah because reality requires “fencing the matter” 🙂
Regards, Yifaur
This is typical conservative demagoguery. Conservatives always choose irrelevant arguments, and when they have no answer they resort to arguments against the person rather than the issue. The sincerity of the claims is not the matter here. Even if the claims are insincere, one must still discuss them on their merits. If they are true, then they are true, even if I merely want an easy life.
But if you insist, here are a few examples: for example, in my opinion one should be stringent and prohibit killing lice on Shabbat. One should be stringent and accept women as witnesses (a stringency in the prohibition of theft that results from not accepting them), obligate them in Torah study, be stringent in preventing aginut, be stringent about receiving state stipends without need, be stringent in requiring general education and professional training, and more. But since in this column I am not entering into specific discussions but only conceptual analysis, this is not the place.
In a similar vein, Rabbi Kook raised the idea that when a Sanhedrin is established, it would institute a decree regarding automobiles, which can cause traffic accidents, and the frequency of these dangers is greater than “once in seven years” 🙂
Regards, Feivish Lipa Sosnovitzki-Dahari
On the matter of interpretive conservatism, it is worth reading the approach of “A Haredi in His World” on the way decisors expand and contract halakhot:
https://bshch.blogspot.com/2022/03/blog-post_2418.html
(in general he is worth following)
As for criminal conservatism, by the same token one can also say criminal anti-Zionism. The anti-Zionists are heretics because they deny the good and do not recite Hallel on Independence Day. Most of those who hold an a-Zionist or anti-Zionist position do not think they are the criminals. In their opinion, the criminals are the Zionists. Therefore when I call them heretics, usually around Independence Day, they become enormously embarrassed.
And how is that different from videos brought here that you do not have time to look at?
And regarding the “parable of the savage tribe”—these “savages” left behind an extensive literature in which the “wise men of the tribe” over the generations clarified the reasons and parameters of their “strange customs.” This literature is full of discussions on the definition of a “garment.” And by virtue of the changes the “tribe” underwent, wandering between lands, periods, and different cultures, these discussions were numerous. The “tribe” has also been exposed to “modernity” for some two hundred years now, and the books of the “chief-rabbis” are full of such discussions. So either way, if there is a substantive rationale for change, the wise men of the tribe have already discussed it in recent generations and decided whether to accept it or reject it, and there is no point in recycling what “was considered and rejected.”
Regards, the noble savage, Abu Shmil
And returning to the parable's analogue: can you present, from the discussions that fill those books, what you found to be the lost rationale of plain-sense conservatism for disqualifying women as witnesses?
No. I think the literature is really not full of this (though I do not work in that literature). The reasons are usually found in works of thought, not halakhic texts. Shatz"l can surely gather them as one gathers sheaves to the threshing floor. He already mentioned that the Sefer Ha-Chinukh says as I do. Some relied on “their minds are light” (what does that mean?), and others on “the honor of the king's daughter is inward.” Fears of mingling with men. And others treat it as a decree of Scripture without a reason.
Who appointed Rabbi Y. Sh. as a spokesman—does he know how to learn, aside from talking hashkafah??
In the Haredi public he would have been a fourth-rate preacher.
Indeed, there he would have been a preacher, but first-rate. Haredi preaching and outlook at kindergarten level.
So true and disturbing.
Well done. Two comments:
1. Do you really see in Modern Orthodoxy a significant implementation of interpretive conservatism?
My impression is that not really; what one mostly sees there is perhaps a kind of interpretive conservatism disguised as plain-sense conservatism. That is, we have some interpretive conclusion, and now we will try to squeeze plain halakhah in order to reach a state close to what we would like to see if indeed we were behaving according to a conservative midrash. Broad implementation of the interpretive kind exists mainly, to the best of my impression, among the right wing of the Conservatives.
2. I would be glad if you would elaborate on your rejection of the assumption that one should treat the Sages' derashot as halakhah without a reason.
If they derive from verses, even if it is clear that the derashah was made from a certain perspective (incidentally, which is not always clear)—the Talmud has authority; what difference does it make that the derashot were determined from a perspective? The Gemara treats them as entirely dry derashot and they received their authority as such, and thus apparently that is how we should treat them (after all, the tannaitic literature, where they are indeed derashot, was not accepted separately from the Talmud).
1. This will be discussed later. There is some justice in what you say, but I explained that I am dealing with arguments, not sociology.
2. I have explained several times that there is no midrash without reasoning. The exegetical hooks are only a textual trigger, but they do not determine the content of the derashah. For example, “You shall fear the Lord your God”—to include Torah scholars. The hermeneutic rule is that the word “et” comes to include. The interpreter now has to decide what to include: Torah scholars, chairs, pigeons, ideas, and so on. That decision is based on reasoning. Therefore the rule that one does not derive halakhah from the rationale of a verse is irrelevant to laws that emerge from derashot; it applies only to laws that are explicit in the text.
3. See the previous section regarding what you called “perspective.” But your question is unclear. I do not deny the authority of those halakhot. I interpret/expound them.
With God's help, 34th day of the Omer 82
To T"G—happy and delightful “Motsa'ei Lag” [the night after Lag BaOmer],
Shatz"l did indeed gather “as one gathers sheaves to the threshing floor” material regarding women's testimony, the reasons proposed for refraining from accepting women's testimony, and the situations in which women's testimony is accepted because of essential need.
See briefly in his comment “Ha Beha Talya” (above), in the final paragraph. And in detail in his response from 8 Elul 5773, to Eli Hadad's article “Going Out into the Open Spaces,” and in his response “The Maharal's Explanation” (Friday night, Mishpatim 5772, there). Since then more has been added, and God willing I will note it.
As I recall, people speak about the embarrassment caused to a woman by standing under “cross-examination” by the judges and the litigants, or about the severe discomfort a compassionate woman feels when a person is punished or branded a liar and made liable for money on the basis of her testimony. Therefore the Torah prevented bringing them to testify (unless it is impossible without their testimony, in which case there is room for an enactment obligating them to testify).
Regards, Alush Abu Shmil, the noble savage
The rationale “women's minds are light” I did not find in the sources in the context of women's testimony. And I will surprise you if I say that Hazal have no such expression at all. In accurate versions it appears as “women's minds are light upon them,” which according to Rashi means “flexibility,” the opposite of what today is called “opinionatedness”; and according to Maimonides, it means “emotionality.”
In Pesachim 88 the Gemara says that one who deviated from the sender's intention and offered a lamb instead of a goat (or vice versa)—his agency is void, except in the case of a king and queen, “whose minds are light upon them.” Rashi explained there that a king and queen rely on the choice of their servants and therefore are not particular. By contrast, Maimonides wrote in his Commentary on the Mishnah that in the case of a king and queen there is concern that they may grow angry and severely punish the agent who changed things, and therefore the court stipulates that the sacrifice will be valid despite the change from the sender's intention.
We find two parallel approaches in explaining the concern that a man may be secluded with several women. Rashi explained that the concern is that he will seduce both of them, a phenomenon that unfortunately is familiar even today, when charismatic men seduce and mislead innocent women into believing there is “a great commandment” in the transgression. And the Meiri explained that the concern is that a woman, out of compassion, will cover for the sinners.
In that response from 8 Elul, the view was brought that this is a decree of Scripture, and the Chinukh was explained as meaning that women are liable to err. I was asking in relation to the criticism below of the savage-tribe parable, and it seemed you said that it is unlike the halakhic situation in every respect. If there is a derashah categorized as a decree of Scripture, then that is exactly the sort of matter to which the savage-tribe parable applies, because there is a law and its reason exists but is unknown (for derashot have reasons, as was written in the column). So what exactly is your criticism of the relation between the parable and its analogue?
The reasons of embarrassment and discomfort are weak, of course, and if they are not found in the words of the decisors, I have no interest in dealing with them.
By the way, maybe “their minds are light” is like frivolity? Some support for this, since “a heavy mind” does not sound familiar, and why should there not be an opposite to “their minds are light”? And if the opposite is seriousness, then it works out well.
With God's help, 34th day of the Omer 82
To T"G—greetings,
You explained the analogue well when you said that you do not relate to reasons not stated by the decisors. That is exactly what I claim: one cannot make distinctions in halakhah on the basis of gut feelings pulled out of thin air; rather, one must discuss only reasoning that has an anchor in the sources.
Regarding women's testimony—it seems that the majority of the Rishonim hold that this is a “decree of Scripture,” for a woman is trusted regarding kashrut and purity even in severe prohibitions punishable by karet, and it is not understood why her testimony about money would not be accepted. There are quite a few things in the Torah that are in the category of a “statute” whose reason was not revealed to human beings.
What is entrusted to us, however, is to enact regulations where there is need and to “fence the matter,” and therefore the Gemara mentioned the credibility of a midwife to testify to the identity of the newborn; and therefore the early authorities enacted that a woman's testimony be accepted where she has vital information, and thus the rabbinical courts in practice conduct themselves, for there is no doubt about a woman's trustworthiness.
Standing before judges and being interrogated in cross-examination by litigants trying to undermine the witness's reliability is a traumatic experience even for a man (see Moshe Dachner, of blessed memory, whose heart failed him and he died in the middle of his testimony), and for that reason the Sages exempted Torah scholars from testifying in court; all the more so “a woman, whose hurt is near and whose tears are readily found,” feels very bad when people try to undermine her credibility and present her as a liar.
The Sages said that one does not impose an oath on a widow or divorcee claiming her ketubbah in court, because “a man does not want his wife to be disgraced in court,” so to afflict a woman with a ruthless cross-examination carried out by the litigant or his attorney—therefore it makes very good sense to me that the Torah and the Sages acted “paternalistically” and spared women this dubious “honor.”
And as for “their minds are light”—that is said nowhere. A woman by her nature is the complete opposite of frivolity. “A woman takes things to heart and takes them hard,” even if outwardly she does not show it.
“Their minds are light upon them,” as said in Pesachim 88 regarding a king and queen, means flexibility, yielding, and readiness to rely on the judgment of others (according to Rashi), or a sharp emotional reaction (according to Maimonides). And when there are explanations made explicit by the Rishonim—they suffice for us.
Regards, Alush Abu Shmil.
Paragraph 2, line 2
…for a woman is trusted regarding kashrut…
What I meant to say is this:
Even if the derashah was produced through reasoning, it is formally fixed by the exegesis of the scriptural words. Unlike the midrashim themselves (which create derashot), where it is clearer to me that there is room to address the reasoning—the Gemara accepted these midrashim as a finished product. And we accepted the Gemara, not the literature of midrash. Therefore it makes sense to say that we must accept the derashot as halakhah without a reason, even though they were generated out of reasoning. Just as the Gemara (so far as I know) does not apply interpretive midrashim to the derashot of the tannaim.
I cannot understand the argument. First, the midrashim are not made in the literature of midrash but in the Gemara itself. Second, we accepted the final halakhah, but we did not undertake not to interpret it.
Once I saw—I no longer remember in what context—that they bring a Gemara in Bekhorot 58a, and it stuck in my memory.
It was taught: Ben Azzai said, since these say this and these say that—the Elul-born tithe separately.
But let him see whose reasoning is more plausible? And if you say he could not get to the bottom of their reasoning—but wasn't it taught: Ben Azzai said, all the sages of Israel are to me like a garlic peel, except for this bald one [Rashi: meaning that Ben Azzai was a great sage and knew how to distinguish which reasoning was better, and so too he could have discerned here which reasoning was more plausible].
R. Yohanan said: they said it from tradition, from Haggai, Zechariah, and Malachi [Rashi: and therefore Ben Azzai did not want to rely on his own reasoning and establish halakhah by his own decision].
That is, Ben Azzai can decide by his own reasoning between the reasonings of his fellow tannaim, but he cannot decide by his own reasoning between traditions, even though clearly only one of them is correct. And Tosafot there prove at the end of their remarks that Haggai, Zechariah, and Malachi (on another matter) did not say it by prophecy, but as derashot from tradition, and therefore Ben Azzai could not determine which of them was primary. That is, reasons cannot decide even between derashot. What is the explanation for this?
It can be explained in several ways. A person may choose not to decide. That does not mean one is forbidden to choose otherwise. Further, perhaps he did not trust himself against Haggai, Zechariah, and Malachi, for fear that he was mistaken. But if he had been certain he was right, he would have ruled against anyone. And it is also possible to connect this to the process of transition from traditionalism to a Torah of give-and-take. Perhaps there we are speaking of an early stage in the process, before the autonomous conception crystallized in the rebellion at Yavneh. See my article here:
https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%9B%D7%9C-%D7%94%D7%99%D7%9B%D7%90-%D7%93%D7%90%D7%9E%D7%A8%D7%99%D7%A0%D7%9F-%D7%91%D7%95-%D7%91%D7%99%D7%95%D7%9D-%D7%94%D7%94%D7%95%D7%90-%D7%99%D7%95%D7%9E%D7%90-%D7%94%D7%95%D7%94-%D7%99
The Gemara distinguishes between deciding between tannaitic reasonings and deciding between traditions. How do the possibilities that a person chooses not to decide, or that perhaps he errs, or Torah as give-and-take (that is, whether Ben Azzai held by traditionalism or by give-and-take) explain this distinction the Gemara is making?
[By the way, I remembered where I saw this Gemara recently, though not the first time. בעקבות one of the recent columns I leafed through the pamphlet on ordination by Maharalbach that you mentioned in the column (and as the responsa progress, the refinements of honorifics and the insults decrease, and the actual content for which they assembled increases, like waters covering the sea). There Maharalbach quotes R. Yaakov Berab praising himself (and R. Yaakov Berab explains that he spoke the truth because it was the truth, not out of arrogance), and Maharalbach mocks him sharply. In the course of his words he brings Ben Azzai's statement, which sounds arrogant, and explains it in his own way.]
I don't think the issue is traditions. Even if it came from Haggai, Zechariah, and Malachi, it is still an argument of sages, just earlier sages. So it is only a difference in degree of wisdom, and in his fear of disputing and deciding between the mountains.
So Ben Azzai's relation to the ancients is different from that of a Torah scholar in our generation to the Gemara?
I assume you mean that Ben Azzai saw a plausible argument both ways and therefore did not want to decide between the towering mountains (but between ordinary mountains he would decide) what is more plausible. But if he had seen no plausible reason at all for one of the positions, then he would have decided between the towering mountains and chosen the reasoning or derashah that seemed plausible to him. Is that correct?
[Maybe I wrote nonsense. Later I will look there more, because at first glance it seems to come out there that in halakhah without a known reason, when there is doubt about what is correct, one does not resolve it by reasoning, even though it is clear that there is some reason.]
Arguments not relevant to the matter. Why not obligate terumot and ma'asrot on industrial products, since that is the principal human advantage today?
Interesting what your opinion is regarding the approach that the prohibition of homosexual intercourse was stated only in the context of its connection to idolatrous cults of that time, but not when done for pleasure.
I assume that if he had seen no reason, he would probably have understood that something was unclear to him. But I was not speaking about such a situation. I only claim that there is a difference between the level of the disputing sages, and it is possible that he allows himself to decide between tannaim but not between prophets.
Do you mean the main human production? Certainly possible, although according to your view it is unclear why these are commandments dependent on the Land. It nevertheless seems that there is some connection to the ground.
My opinion is that this proposal is far from clear. I would not build anything on it. More plausible in my eyes is the proposal that male homosexual intercourse was prohibited because of desire and not because of nature. But that too is a proposal I am not fully at peace with.
I don't really understand. A. This is not a decision between two prophets, but a decision about what the correct tradition from the prophets is. B. In your view, is this at all similar to the subject of the column (Ben Azzai's weakness relative to the ancients being like our generation's weakness relative to the Gemara), or is there no connection?
You can bring a good example from Ezra's enactment about laundering clothes: that one should not wash on Friday so as to be free to deal with Sabbath needs. But what is the law today when there is a washing machine? Is it permitted to wash on Friday, since this will not interfere with preparing for Shabbat?
Many decisors permit it, even plain-sense conservatives, but the author of Mishneh Halakhot outdid them all by writing that it is forbidden to change. And why? Because there is a midrash or Gemara that says that besides the stated reason, Hazal had another thousand reasons, and since we do not know all the reasons, it is forbidden to change anything.
Scary, scary, scary.
And about this Rabbi Dov Lando, one of the heads of the Slabodka yeshivah, said [at least that is what is reported in the yeshivah] that the title Mishneh Halakhot is not from the root meaning “repeats,” but from the root meaning “changes” [for his own reasons].
What will the rabbi do with those who say that the Meiri wrote this out of fear of the gentiles?
The tradition split over what those prophets said. Ben Azzai does not want to decide because the words of the prophets are beyond him, and he is not sure he understands their reasoning. But this is indeed difficult, because the two camps of disputing tannaim did form a position regarding the tradition. Perhaps they held the tradition not because it seemed right to them, but because that is what they had received. A mistake occurred here in the tradition. And indeed this is precise in the language of the Gemara: since this one says thus and that one says thus—that is, they hang the doubt on the very fact that there are two statements, and not on the reasonings of the sides. And this resolves what could be asked of the Gemara: even if Ben Azzai was a great sage, could it not be that he had doubt in some law? Rather, here the language shows that it is not because of his doubt, but because this one says thus and that one says thus. To this they asked that he decide according to his own reasoning, and they answered.
The column is not dealing with weakness relative to someone, not even relative to the Gemara. I also do not think there is weakness. We accepted upon ourselves not to dispute it.
Indeed, a good example of the fact that Haredim too are interpretive conservatives. Though here too we are dealing with a rather trivial midrash (like the presumption that a person does not repay within the term). See the next column.
What am I supposed to do with them? Put them in a sack and throw them into the sea.
And more seriously, why am I obliged to say something to everyone who says something? As for the claim itself, I explained very well in my article why it is not plausible.
With your permission, I would like to present the question together with the sugya there in more detail, because I have not yet been satisfied by the answers. Is it okay if I ask it as a new comment below? (There is already not enough room here.)
Regarding the quip about Mishneh-Meshaneh, it is known that the Ramah used it (Kitab al-Rasa'il Abulafia) with respect to the Mishneh Torah. He sent the people of Lunel and others criticism of the Yad Ha-Chazakah, and there wrote: “It is the book called Mishneh Torah, and I do not know whether the tradition is the mother, or the reading is the mother.” On all his words, and on this בראשם, R. Aharon of Lunel cried out against him with a voice growing stronger and stronger like a shofar blast, until the whole book there became like a blazing fire.
Incidentally, the first of Ramah's criticisms is that Maimonides did not believe in the resurrection of the dead (in the body, in the world to come), and then he attached to this many halakhic difficulties. Dunash did something similar before him in his critiques of Menachem, beginning with a theological objection (he suspected Menachem of saying that the Holy One Himself also directs evil in the world, without free choice), and only afterward proceeding to grammatical and exegetical objections. Except that with Ramah it seems the professional criticism is a vehicle for the criticism in outlook (for some reason this reminds me of Shalom Dov Wolpo of Chabad, who set out to undermine Rav Shach by way of lomdut because he fought against his rebbe), while with Dunash one gets the feeling that the criticism in outlook is a vehicle for the professional criticism.
Physically crowded? In my opinion there is no need to move it. As long as the system allows it, it is preferable to continue here so that the order is preserved.
[The inner lines are too narrow for a long question. As it says: “Hurry and call the wailing women that they may come…” and “let them hasten and raise a wail over us.”]
I ask, please, to present in detail the sugya (Bekhorot 58a) and Tosafot's words, and to ask on the basis of the column (because for me this is not superfluous; in any case, so that I may understand). And if in your opinion the answers are already sufficient, then at the very least please let me know that you think so, and I will be silent.
The presentation of the sugya is in sections A-B, and the question in section C.
A. There is a dispute in the Mishnah as to when the new year for the animal tithe is—1 Elul or 1 Tishrei. New and old animals are not tithed from one for the other (at first glance this seems biblical; and if he has fewer than 10 old animals, he is exempt from tithing them). Therefore animals born in Elul depend on the dispute: do they join the new animals born after Tishrei (if the new year is in Elul), or the old ones born before Elul (if the new year is in Tishrei)? And Ben Azzai says, “The Elul-born are tithed by themselves,” to avoid the doubt. (Incidentally, the decisors did in fact rule.)
B. The Gemara asks why Ben Azzai, who was a great sage, is stringent because of doubt and does not decide according to the opinion that seems more plausible to him, and R. Yohanan answers: because the disputants here “said it from tradition, from Haggai, Zechariah, and Malachi.” Tosafot explain that Haggai, Zechariah, and Malachi did not transmit prophecy, since a prophet may not innovate anything from now on, but rather transmitted halakhah.
In tractate Rosh Hashanah, Rabbah explains the positions of the disputants (and R. Yohanan himself explains there, in another way): there is an analogy from animal tithe to grain tithe, and they disagreed what is compared—R. Meir held: just as grain tithe is tithed close to its completion, so too animal tithe is tithed close to its completion; therefore the new year for animal tithe is 1 Elul. And R. אלעזר and R. Shimon held: just as the new year for grain tithe is Tishrei, so too the new year for animal tithe is Tishrei. (Seemingly this is a dispute whether one makes an interpretive analogy or a plain-sense analogy. Smiley.)
Tosafot ask from this against R. Yohanan's statement in Bekhorot that the dispute is from tradition, for here we have derashot before us, and they answer: “And one can say that even so, since these derashot were from the tradition of Haggai, Zechariah, and Malachi, he could not determine which was primary.”
C. If so, as I understand it, this is exactly the topic of the column in the context of interpretive conservatism. There is a derashah comparing animal tithe to grain tithe, and a dispute has arisen in the tradition as to its definition: whether one compares the date itself, or the principle that it is tithed close to its completion.
Then comes Ben Azzai, who is a great sage and is capable of forming an opinion on the matter as to what is more plausible to derive, but he refrains from doing so. That is, one can assume that Ben Azzai had a formed opinion on the matter as to what is more plausible, and nevertheless he did not rely on it in order to conclude what the correct definition of the derashah is (which Haggai, Zechariah, and Malachi presumably transmitted), and this only because the originators of the derashah had authority—substantive and/or formal—stronger than his.
And by analogy to us: a very great Torah scholar in our generation has a formed opinion on the matter of what is more plausible to derive, or what is the more plausible definition of the derashah that was derived in the past, but he cannot rely on that where the originators of the derashah have greater authority (formal, and in matters of derashot apparently also substantive) than his.
That is, interpretive conservatism is limited—and not as you wrote (very logically in itself), that even in the absence of grounding in the sources you accept a conservative midrash by virtue of its internal logic. Ben Azzai, apparently, stands exactly at this crossroads you describe in the column, and he decided to be stringent out of doubt. [And from the continuation of the Gemara it seems clear to me that Ben Azzai held that this is a complete doubt, and even for leniency it is a doubt (because a definite tenth is a tenth, but a doubtful tenth is not). If there is any practical difference here, I will explain.]
One can always distinguish according to the force of plausibility, but what is unique here is that the Gemara establishes that Ben Azzai could quite easily have reached a solid conclusion of his own and ruled like one of the positions, were it not for the fact that they disputed within the tradition. It seems to me that this means that even if he has a conclusion with a high degree of plausibility, that is not enough to determine that this is indeed the correct derashah.
Even in testimony for kiddushin (constitutive witnesses), is there inquiry and cross-examination?
If there is an alternative of a decree of Scripture with no reason or with a reason, it seems logical, as the column says, to go with the reason, especially in derashot. Rabbi Michi also has an article on conspiring witnesses, and there, if I remember correctly, he argues rightly that even a decree of Scripture has a reason (at least as a default assumption).
When I said “their minds are light” is like frivolity, I meant that it says laughter and frivolity accustom a person to sexual immorality; seemingly the light-minded person will occupy himself with a woman. Your words make sense, and I was only raising a weak conjecture.
The rabbi brought proof from the Meiri, and about the proof from the Meiri I asked whether the rabbi has an answer to the claim of those who object.
But the rabbi's very idea is quite convincing, only it is difficult if it has absolutely no precedent, even in the Meiri.
[Incidentally, what I said was that weak reasons in my eyes, not found in the words of the decisors, do not interest me. If they were not weak in my eyes, or if they were indeed brought in the Gemara and the decisors, then I would be interested in dealing with them. Gut feelings and things pulled out of thin air are exactly what I am looking for, if they seem right to me.]
When you stand before great sages like Haggai, Zechariah, and Malachi, you have to decide two things: 1. What your own opinion is regarding the analogy. 2. Whether you understand their opinions and know how to decide. Even if you have an opinion of your own, you may fear that you did not understand their opinion, and therefore refrain from deciding.
I do not see any connection to the question of interpretive conservatism, because it deals with a situation in which I have a position and do not see why not to accept it. Here there is no other sage saying otherwise, but only someone who recoils from the very change.
If anything, this touches on the question of authority and autonomy, not on interpretive conservatism. In my view, even if you are not correct, you are permitted and obligated to decide according to your own opinion. A sort of proof of this is R. Meir, whose colleagues did not penetrate the depth of his view, and therefore did not (!) rule like him. Against that one could object from this Ben Azzai. To that I said that perhaps Ben Azzai acted according to the traditionalism that prevailed before the revolution of Yavneh.
Now I would add that the answer in the first paragraph (that there are two layers to decide about) also answers this. A person is called to act autonomously if he understands the opinion of the dissenter and disagrees with him, even if the latter is greater than he is. But if he fears that he did not understand the dissenter's opinion, then he is entitled to rely on him. This is of course contradicted by the above Gemara regarding R. Meir, but if one accepts that, then in any case there is no question.
Those objectors did not raise a difficulty; they merely expressed their opinion. Why am I supposed to address the unreasoned opinion of someone else? Beyond that, I wrote that in the article I prove that they are mistaken.
But Tosafot bring from Rabbah the very reasons for the dispute (whether one makes an interpretive analogy or a plain-sense analogy); that is why I brought the whole lengthy discussion. Are you saying that those reasons too have reasons beneath them all the way down? If these really are the reasons, then Ben Azzai presumably knows the reasons of the disputants and also has an opinion of his own (as the Gemara assumes he can “see whose reasoning is more plausible”), and nevertheless he does not assume that the derashah that seems best to him is the very derashah that Haggai, Zechariah, and Malachi in fact expounded. It is explicitly written in the Gemara that Ben Azzai too has a position, and he need not disagree with any of the predecessors, but only interpret them and sift out what the original true meaning was. Therefore this is indeed exactly similar to interpretive conservatism, and my hands are on my loins like a woman in labor; I hiss and pant together.
Indeed, if there is a dispute, it also has reasons. Why choose an interpretive analogy or a plain-sense analogy? Especially since this seems to be a broad and fundamental dispute, not a local one (what kinds of analogies one makes).
Okay, thank you.
Though ostensibly, if one can set it up as a local dispute, that is preferable to setting it up as a fundamental one. Because a fundamental dispute means that in every place where there is an analogy and two avenues are open—interpretive or plain-sense—those tannaim will disagree (and then one must search carefully throughout the Gemara whether each is consistent with his own view, and whether the Gemara and the Rishonim made proofs from that about what each tanna would think, etc.), and especially when they disagree from tradition, then if there are dependencies between different laws one must say that a corruption fell into the tradition in all those laws in parallel.
It seems to me more plausible that the “tradition” dealt with the specific derashah and the specific law, and not that the ancient tradition dealt explicitly with the categories of hermeneutic rules, because as you wrote in several places, the conceptualization developed later. Therefore it seems more plausible to me (even though this is not an argument) that the reasons given here (he compares “close to its completion,” or he compares “1 Tishrei”) are the last-level reasons, and only on them does the mind sway this way and that.
Also, search engines stand at Israel's service, and by searching for the word “compares” I saw the adjacent sugya there in Rosh Hashanah 4b: R. Meir says, from where do we know that Shavuot has makeup days all seven days? He compares the Festival of Weeks to the Festival of Unleavened Bread: just as the Festival of Unleavened Bread has makeup days all seven days, so too the Festival of Weeks has makeup days all seven days.
That looks like a plain-sense analogy and not an interpretive one, because seemingly an interpretive analogy would say: just as the Festival of Unleavened Bread has makeup days for the entire duration of the festival, which is seven days, so too the Festival of Weeks has makeup days for the entire duration of its festival, which is one day (and the analogy would then be unnecessary, and one would find something else to derive it from. The trick that if a kal va-chomer can be refuted then suddenly one does not say dayyo always seemed odd to me).
Yet R. Meir regarding animal tithe makes an interpretive analogy and says grain tithe is on 1 Tishrei and animal tithe on 1 Elul, because in both one tithes close to completion; while regarding makeup days for Shavuot he makes a plain-sense analogy. So on the surface, at a quick glance, it appears that there is no broad and fundamental dispute here about the methods of analogy (and perhaps gezerah shavah too), but that in each place it depends on where the interpreter's reasoning leans, as seems more fitting to the matter at hand. [Needless to say, this has nothing to do with the dispute of derive from it and from it, or place it in its own context.]
Even if there is a principled dispute about analogy, that does not mean there will not be different situations in which they make a different analogy. There are other considerations besides this fundamental one, and they can have an effect. Thus, for example, even if someone thinks that in principle one should make a plain-sense analogy and not an interpretive one, it may be that in a particular case he will nevertheless make an interpretive analogy because of some additional consideration. Precisely those considerations may be what is disputed, and Ben Azzai does not want to enter into deciding them.
Understood and accepted, thank you.
[I am on a roll, and this little word “compares” is turning out to be useful. In general, appearances of different ways of comparing seem, as stated, to be good examples of the general idea in the column that every conservatism (that is, every analogy from the future to the past) rests on some sort of midrash.
Strictly speaking, one ought to go through all the analogies and gezerot shavot in the Gemara and think hard about each one, but that is a task only for mighty knights of intellect like R. Yosef Engel and the members of his circle. So I searched only for disputes in matters one can survey quickly, and so far I found two more (and one that still needs checking).
1. Berakhot 4b: a dispute of amoraim whether in the evening prayer the Shema comes before the Amidah or after the Amidah. And the Gemara says: if you like, say that both derived it from one verse, as it is written “when you lie down and when you rise.” R. Yohanan held: he compares lying down to rising—just as at rising one says Shema and afterward prayer, so too at lying down one says Shema and afterward prayer. R. Yehoshua ben Levi held: he compares lying down to rising—just as at rising one says Shema close to getting out of bed, so too at lying down one says Shema close to bedtime.
2. Yoma 31b: “He shall remove, wash, and put on.” R. Meir held: he compares removal to putting on—just as when putting on he dresses and afterward sanctifies, so too when removing he removes and afterward sanctifies. And the Rabbis held: he compares removal to putting on—just as when putting on he sanctifies while dressed, so too when removing he sanctifies while dressed.
3. [Nedarim 87b—I have not yet managed to understand it at the moment, but perhaps it is related.]
Well done on the column.
A few comments:
1) From the very fact that in most halakhot Hazal did not give the bridging principle (or the reason), can one not infer that the halakhah is final and not subject to change? It would have been more reasonable for them to give us the bridging principle clearly, as in the examples brought (the presumption that a person does not repay within the term, etc.), rather than that we should live in perpetual uncertainty about the principle behind their reason.
2) Exemption of women from positive time-bound commandments—even if I do not know exactly what the bridging principle or reason for this halakhah is, it seems very likely to assume that the reason lies in the condition of women in the past,
and therefore today, when their condition has changed, the halakhah ought to change.
Can one change the halakhah even if I do not have a sufficiently clear bridging principle?
3) From the very fact that with most halakhot we are unable to give them a clear reason, like the laws of purity and the like, can one not infer from this that halakhah is not meant to change according to the principle of their reason?
1. I do not see any necessity for that. And since logic says to interpret and change, the burden of proof that this is what they intended is on you. Beyond that, even if that was their intention, so long as they did not actually forbid changing, there is no impediment to doing so. One is not obligated to the intentions of Hazal, only to their rulings.
2. In order to propose a change, you must present a concrete midrash. One cannot discuss this in such general terms. If you have such a midrash and it is persuasive, then yes indeed. The reason of Abudarham is highly dubious.
3. Not at all. One can only infer that we do not understand most halakhot. And even that is assuming you are really right.
(2. To add that here, toward the end, you answered “possible” regarding a similar proposal in relation to a future Sanhedrin. I have a feeling that the distinction between a Sanhedrin and other Torah scholars is reasonable, but I do not know how to justify it. https://mikyab.net/%D7%A9%D7%95%D7%AA/%D7%9E%D7%A1%D7%9B%D7%AA-%D7%97%D7%92%D7%99%D7%92%D7%94
)
Comment 7
The wording itself shows that your claim is correct.
Because we are 'drawing an analogy,' we take action.
'Drawing an analogy' means thinking, but being uncertain whether the direction is right.
That is of course very different from a formulation like: And just because he persuaded us, shall we act?
The difference in wording is clear.
More power to you; this time the column is fine.