The High-Rise Sukkah Proposal (Column 508)

A few days ago, Rabbi Ido Pachter published a post in which he proposes changing the laws of Sukkah to fit the reality many of us live in—high-rise apartment buildings where it is not practically possible to erect a kosher sukkah (see a description of his remarks with several responses here). He argued that in such places one should build a sukkah under a roof in order to preserve the holiday experience. I was asked for my view on the matter, and I replied that to the best of my judgment, on the halakhic plane the proposal has no basis (I later found that this had already come up five years ago here on the site). I did not see that the discussion that erupted on Facebook and online in the wake of his post raised new points, and the topic seemed to me trivial and not really worth a column (especially in light of the fact that in my series of columns on innovations in halakhah, 475–478, particularly the last one, I defined the relevant concepts and mechanisms). But given the surrounding commotion, I gathered that the confusion is great and the discussion isn’t really moving forward. Therefore I thought it worthwhile to bring some order to the matter.

Two claims that are similar yet very different

We must distinguish here between two claims that may seem similar but in essence are very different. One claim is that because of differences between the current situation and the situation in the time of Ḥazal, the laws of Sukkah should be changed to permit a sukkah under a roof. The other claim is that in a place where it is impossible to erect a kosher sukkah, it is preferable at least to erect a non-kosher sukkah under a roof, in order to preserve the holiday experience. The first is a halakhic claim; the second is a folkloric-cultural-educational claim. I think that in reading his words these two claims become somewhat entangled, and it would have been better had he distinguished between them and clarified to which of the two he intends. On the face of it—both.

The cultural claim does not interest me. On the experiential plane, everyone may do as they please. This has no halakhic consequence, and my view regarding the value of “experiences” is known; but whoever disagrees with me—good for them. The halakhic claim was attacked as reformist, not committed to halakhah, as a renewal and refreshing of halakhah not in accordance with halakhah, a capitulation to the spirit of the times, contradicting the sources, and so forth. I fully agree with the critiques of the first (halakhic) claim, but it is important to clarify why.

The critiques of the halakhic claim: methodological preliminaries

Let me preface that statements such as “Rabbi Pachter is reformist,” “a heretic,” or “not committed to halakhah” make no impression on me. Labels are not the issue here. The question is not what is called “Orthodox” or “Reform,” but whether the argument holds water within a halakhic discussion. Nor do I find a discussion of whether Rabbi Pachter is reformist interesting or relevant. I don’t care how you define him. The discussion should focus on his argument, not on the person. In my series of columns I explained that a person may advance different types of arguments, sometimes without awareness, sometimes he simply errs, sometimes he doesn’t articulate his intent precisely; therefore there is neither point nor logic in classifying and labeling people. We must deal with arguments. In those columns I proposed a classification of arguments (not of people), wherein a conservative argument (in its two types: midrashic and peshat-based) is one that operates within halakhah (some would call this “Orthodox”). Other arguments do not (and some would call some of them “reformist”). If so, we must now move from the arguer to the argument.

The fact that the bottom line he proposes contradicts the accepted halakhah also does not impress me much. And of course it has nothing whatsoever to do with reformism. In that series I explained why halakhic changes have been made and are made continually even within discussions fully committed to halakhah. Arguments that ground such changes I called “midrashic conservatism.” I explained there that for any argument in favor of a change in halakhah to hold water within a halakhic discussion, it must be based on “conservative midrash,” meaning an argument that explains what has changed between the time of Ḥazal and our day, and why the halakhah in question depends on a parameter that has changed. If we have shown that—or at least raised such a possibility—we remain within the legitimate halakhic domain. Now one can debate, agree, or disagree, but the argument itself is entirely legitimate, and indeed there have been and are many such in the halakhic literature.

For example, an argument to qualify women as witnesses on the grounds that once they lacked education and were confined to the home, while today the situation has changed, is entirely legitimate—provided we add the assumption that their invalidation as witnesses was due to the lack of education and public involvement. These are two legitimate interpretive assumptions, which of course one may accept or reject, but the debate over them is conducted on the halakhic plane. Moreover, I argued there that even if I have no proof for the conservative midrash—that is, that the disqualification of women indeed stemmed from their lack of education and engagement—still the argument has standing. I explained that the burden of proof lies on one who rejects a reasonable explanation without offering an alternative. Therefore, responses to such an argument that it is “reformist” are not substantive. Even if you call it that, it is a legitimate halakhic argument (in my opinion it is also far from reformist—but more on that below).

Take another example. Recently, proposals have surfaced to change the laws of Shemitah in our day. Instead of speaking about letting fields lie fallow, one should translate this into contemporary terms when people have no fields and the vast majority work in other areas. This is quite a revolutionary proposal, and the versions I have encountered did not persuade me, but it still lies within the legitimate halakhic sphere. This is essentially a demand for ta‘ama dikra (reason for the commandment): on the (mistaken, in my view) assumption that the aim of Shemitah is certain social values, their realization in our times requires a revision from the agricultural domain to the areas in which most of us are now engaged. Although as a rule we do not derive law from reasons (le-halakhah lo darshinan ta‘ama dikra), that rule has quite a few limitations, and throughout halakhic history we have found more than a few such reason-based derivations. A salient example is the Rosh’s claim regarding the commandment to write a Sefer Torah (see Shulchan Aruch, Yoreh De‘ah §270). He argues that in our day the commandment is fulfilled also by purchasing Talmudic and commentarial works, and it seems plainly that in his view there is no obligation today to write a kosher Sefer Torah. This is a halakhic revolution resulting from a change in circumstances, based on the assumption that the aim of the commandment is the increase of Torah study. That is an exemplary ta‘ama dikra derivation, and perhaps it rests on the Rosh’s own words in his glosses to Bava Metzia 90, where he writes that when the reason is clear we do indeed rely on it.

All these are proposals for revolutionary changes in halakhah, yet they are grounded in conservative midrash and therefore belong to legitimate halakhic debate. We have learned, then, that the criterion for examining whether a given proposal belongs to a legitimate halakhic discussion (or is “reformist”) is the existence of a conservative midrash. Again, there is no need to agree to that midrash. Its very existence means the proposal is legitimate, even if it is incorrect in my view or yours. This is a dispute like any other in halakhah.

Back to Rabbi Pachter’s halakhic claim

If you look in Rabbi Pachter’s remarks, you will not find a conservative midrash. He relies on the fact that for today’s tower-dwellers it is difficult to fulfill the commandment as required. But difficulty is not a conservative midrash. He does not explain why the aim of the commandment applied once and no longer applies today. If he had advanced an argument of the sort: once we remembered the Exodus by sitting in a sukkah, and now that this cannot be done, remembrance of the Exodus must be realized in another way (for example, by studying the sugyot of the Passover sacrifice that was brought as a shelamim: whether it discharged the owners’ obligation), that would have been a legitimate argument. I, for my part, do not think it is correct, since even then it was not the perfect way to remember the Exodus, and therefore it is reasonable that this is not the fundamental aim of the commandment. But this is a legitimate interpretive debate, and the proposal could enter the beit midrash and the halakhic field. Yet his words contain no such claim. He points to hardships but does not offer a midrash that explains the change he proposes.

In column 478 I noted that this is the hallmark of reformist proposals for changes in halakhah. A reformist argument is one rooted in hardship and need, without an accompanying conservative midrash. And in our matter: if there is hardship in observing sukkah today, then the laws of sukkah must be changed. A conservative-midrashic argument must be based on a midrash of the type I presented above. The difference is that such a midrash explains why the previous mode of fulfillment is not correct in today’s reality and there is another, more correct fulfillment—and it does not appeal to hardship. Hardship can of course serve as a trigger for the search; that is, it can motivate us to look for a different interpretation, a conservative midrash, that would allow us to sit under a roof. But so long as we have not found such a midrash, hardship in itself is not an argument that can change halakhah. This is the crux of the difference between a halakhic proposal and one outside the bounds of halakhah.

We may formulate it thus: a halakhic change is not meant to placate, to solve hardships, to curry favor, or even to enable someone to fulfill halakhah. The foundation of a conservative (as opposed to reformist) halakhic change is truth. If the truth is that in our day halakhah must be fulfilled differently, then a halakhic change should be made. Incidentally, in such a case we should change halakhah even if it makes observance harder for us, or is displeasing, or does not increase love for Torah in the eyes of the many. These are wholly irrelevant considerations, and it seems to me that Rabbi Pachter relies on them in a problematic measure (not only here). In my series I explained that this is the difference between the halakhic innovation I propose and his. I do not seek sanctification of the Name, alleviation of hardships, or the drawing close of our erring—or correct—brethren. None of this interests me. I seek the truth. Thus, for example, in the Shemitah case mentioned above—if I were convinced by the argument, it would certainly burden me (today it is very easy for me to keep Shemitah). And still, if I reached the conclusion that this is the truth, then that is what I must do.

This is my fundamental problem with Rabbi Pachter’s halakhic claim. It is not that he deviates from the accepted view or proposes a revolutionary change. On the contrary—that would be to his credit. My problem is that I do not find in his words a conservative midrash that would ground his proposed change.

One could of course argue that such a midrash is latent in his words, even if he did not put it on the table. The hardship was merely the trigger to seek such a midrash, but the change he proposes is based on a midrash and not on hardship as such. He claims that in our day this is a better way to remember the Exodus. As noted, if this is the claim, then perhaps it lies within the legitimate sphere, even though I do not agree. By the same token, one could say that instead of tzitzit—which the Torah itself says that gazing upon them will remind us of all the commandments of the Lord (the tekhelet resembles the sea, which resembles the sky, which resembles the Throne of Glory)—I will write on an ox’s horn to remember these commandments. That is a much more effective means. Therefore my attitude to rationales for commandments is quite reserved, though I can understand one who thinks otherwise. This is a legitimate interpretive-halakhic debate. I doubt that this was his intent, since according to him the sukkah under a roof is a sub-optimal means. Perhaps he means that the aim of the commandment (see the well-known Bach at the beginning of Hilkhot Sukkah) is to remember the sukkot God made for us (whether clouds or actual huts—a tannaitic dispute), and then one could understand why he insists specifically on building sukkot under a roof, because that reminds us of those sukkot. But again, in my opinion there are better means to remember that, and it is very hard to accept that all the detailed laws of Sukkah are meant to recall God’s Clouds of Glory. And even if so, why should the detail that a sukkah may not be under a roof be any different? To me this argument is not convincing, though still within the legitimate bounds.

Hardship in halakhah

Many noted that hardship has standing within halakhic discourse as well. There are things that were permitted in cases of great need, in situations of financial loss, in times of danger (lighting Ḥanukkah candles indoors), in human predicaments (permitting agunot), out of human dignity, and more. No doubt. But this does not seem related to our discussion. First, the hardship here is not so severe as to nullify a positive commandment from the Torah. As many suggested, choose housing with consideration for a sukkah (or move to the periphery, and other suggestions described here). In what way is this consideration worse than any other consideration people have when buying an apartment?! Moreover, hardship is a reason to defer the halakhah or to exempt a person from it—not to change it. In the laws of Sukkah in particular there is a rule that one who is distressed is exempt from the sukkah (mitzta‘er patur min ha-sukkah), since Ḥazal expounded “teshvu—like you dwell.” So if Rabbi Pachter had proposed to exempt tower residents from sukkah on account of hardship, there would be room for discussion (even that is not entirely simple). The Rema exempts us in certain cases from sleeping in the sukkah for such a reason. But Rabbi Pachter proposes to change the halakhah, not to exempt due to mitzta‘er. Indeed, if one interprets his proposal in the first manner—namely, that he exempts these residents from the mitzvah of sukkah due to hardship, and merely offers them a cultural-educational-experiential alternative—I would be silent. But a proposal to change the laws of Sukkah on that basis does not belong to the category of leniencies due to hardship or exigency.

A note about “courage”

Whenever someone (for some reason this is often women) writes to me that my words are “courageous,” I begin to worry. In most cases it is someone who has no grasp of halakhah and cannot evaluate an argument on the halakhic plane. They feed on the hardship and the search for a solution, and the moment someone offers a solution that contradicts halakhah or accepted views, he becomes “courageous.” I immediately start looking for where I erred (and unfortunately I usually don’t find it).

My advice to respondents—especially those who do not know how to learn—is to spare us the superlatives about courage. Both because they attest more about you than about the matter itself, and because tactically they harm the endeavor. The moment someone is labeled “courageous,” his halakhic milieu understands (and usually rightly so) that this is a step lacking halakhic basis that is receiving fervent support from ignoramuses. Sometimes the recipients of the public medal of courage are “ratings-brave,” meaning those who prefer popularity with the general public over esteem among the beit midrash. I never understood why that counts as more courage.

To be clear, I do not mean here to say anything about Rabbi Pachter, and I am quite convinced that he genuinely believes this and honestly expresses his position. My words are directed at some of the expressions of support he received (and that I receive). I suggest evaluating such arguments on their merits, and not evaluating the arguer—neither on his courage nor on his originality or wisdom. None of these are relevant to the halakhic discussion. In general, it is fitting that ignoramuses be honored and remain outside these debates. I would say to them what Rabbi Yehoshua said to the walls of the beit midrash that supported R. Eliezer’s view (there too it happened when he lacked arguments persuasive to his colleagues in the beit midrash):

Rabbi Yehoshua rebuked them and said: If Torah scholars defeat one another in halakhah, what business do you have…

People who do not understand the halakhic field should raise hardships, request solutions, and plead before the beit midrash. They have no place opining on the halakhic validity of the solutions themselves.

Rabbi Pachter’s concluding notes

I now saw that Rabbi Pachter published several concluding comments following the discussion. I saw there a few hints at a conservative midrash—for example, a proposal to build balconies at intervals of twenty cubits (to my mind this has no real halakhic basis), or viewing the balcony as an extra-territorial space, which would distinguish it from an apartment or a house (this too is highly problematic, since the Gemara itself brings such cases and sees them as houses for all intents and purposes). Beyond that, one sees that his fundamental consideration is making halakhah accessible and user-friendly to the broader public—something I do not regard as a relevant halakhic consideration (and not even a value at all). From my perspective, halakhah addresses those who are committed to it, and there is no reason whatsoever to change a syllable of it to bring it closer to those who are not really interested in it. Folklore is not halakhah. Moreover, one who observes halakhah as folklore has never fulfilled a mitzvah in his life. I did not see in his words a discussion about the question of truth, but mainly a search for a solution to hardship. That is entirely legitimate, of course, but even when there is hardship, the solution must hold halakhically—and in my view that is not the case here.

In short, even in these concluding comments I did not see a sharpening of the relation between the two claims. He continues to present them in a blended fashion, and it seems to me that this is one of the consequences of the lack of clarity in the entire discussion. If he had separated these two discussions, I think both he and the discussion would have benefited. It is possible we would have succeeded in reaching conclusions and perhaps even agreeing—or at least clarifying the points of dispute.