On the New Critique of the Talmud: Dov Elbaum (Column 675)
In the previous column I offered a general introduction to discussing critical arguments about the Torah and the Talmud, and now I wish to get more deeply into specific critical claims. I presented there a list of perspectives and modes of thought that characterize the difficulties and the ways to respond to them; the common denominator of most of them relates to conservative and rigid thinking. In what follows I will refer to that list and note which item I am addressing.
As noted there, I decided to focus mainly on the arguments of Dov Elbaum and of Yitzhak Isakov, because they are very typical. Isakov, in his lecture, raises a series of arguments about a collection of various Talmudic sugyot, and I will leave that for the next column. In this column I will present a critique of Dov Elbaum’s article. In that piece you will find various general criticisms of the Talmud and its students, but there is a specific critique there focused mainly on one Talmudic sugya—a “close-up shot” that, in Elbaum’s words, is indicative of the whole—and so I will begin with that. Afterwards I will move to a critical look at Elbaum’s more general claims.
“Sexual relations with a toddler are not rape. Yes, that’s what’s taught in the yeshivot”: the difficulty
The title of this section is the headline chosen by Haaretz’s editors for Elbaum’s piece. If the article has an agenda, the headline all the more so. And if the article is full of misunderstanding, so is that headline.
In the middle of the article Elbaum begins to describe the study method common in Lithuanian yeshivot, and he writes as follows:
“The study approach of Volozhin, known as the ‘Brisker method,’ shaped the mode of study in Haredi yeshivot to this day. It emphasized intensive, in-depth study of the Talmud (in some yeshivot from this stream they sometimes devoted many months to only five folio pages), with an emphasis on analytical thinking and the ability to study independently.”
Let us set aside the superficial identification he makes between the method of study in Volozhin and the “Brisker method” accepted in yeshivot today. That is merely a historical inaccuracy (the Netziv’s method is almost an antithesis to the Brisker method, and the same goes for his colleague, the author of Beit HaLevi, despite being the father of R. Chaim of Brisk). But there is an accurate point here: the focus that crystallized in Volozhin at the end of its days (by R. Chaim of Brisk) and continues to our time emphasizes analytical, in-depth study of sugyot, and less breadth (the Netziv certainly emphasized breadth, along with Scripture and other subjects far removed from the Lithuanian yeshivot that followed him).
My emphasis here is not only on “in-depth study” (ʿiyun) but also on “analytical.” What distinguishes the Brisker method is not necessarily depth, which exists elsewhere too (the Noda BiYehuda and R. Akiva Eiger were great deep thinkers, even though they preceded the founding of the Brisker school and studied in a very different manner). What characterizes them is the analyticity, i.e., the analysis (breaking down) of concepts and principles, and then the syntheses that lead to different possibilities of understanding within the sugyot. I stress this in order to point out later that in his critique Elbaum missed precisely the point he himself deemed fit to sharpen in his introduction.
Here are the relevant passages of his on this matter:
“Below is a list of ten Talmudic sugyot from Tractate Ketubot, with an emphasis on those that may raise very difficult ethical questions:
- “‘A father’s rights over his daughter’ (folio 46b)—discusses a father’s rights over his minor daughter. 2. ‘One who has intercourse with a minor’ (folio 11b)—deals with the laws of rape of a minor. 3. ‘One who vows his wife’ (folio 70a)—discusses a husband who forbids his wife from benefiting from his property. 4. ‘These leave without a ketubah’ (folio 72a)—details cases in which a woman forfeits her ketubah. 5. ‘Even though they said’ (folio 57b)—discusses the husband’s obligations toward his wife. 6. ‘A naʿarah who was seduced’ (folio 40a)—deals with the laws of seduction of a young woman. 7. ‘A woman who was widowed’ (folio 95b)—discusses the rights of a widow. 8. ‘What a woman finds’ (folio 65b)—deals with ownership over items a woman finds. 9. ‘One who writes to his wife “I have no claim in your property”’ (folio 83a)—discusses property relations between spouses. 10. ‘A widow is supported’ (folio 97b)—deals with a widow’s rights to maintenance.”
Thus far, a list of sugyot from the tractate to give a general impression. Some of them can indeed raise ethical questions, though in my view certainly not all. But Elbaum chooses to focus (when a yeshiva student calls this “to dive,” it’s frankly insulting) on the second:
“To fully understand what this list represents, I would like to dive into item no. 2 on the list: ‘One who has intercourse with a minor.’ This is perhaps one of the most difficult examples of a yawning chasm between universal moral values and the content taught in yeshivot. The Gemara cites a baraita: ‘A girl of three years and one day can be betrothed through intercourse… younger than this, it is like putting a finger in the eye.’ The Amora Rava adds and says: ‘An adult who has intercourse with a minor girl—it is as nothing, for younger than this it is like putting a finger in the eye.’ Up to here the words of the Gemara itself, and Rashi comments on the page: ‘Just as a tear that comes out due to a finger—another comes in its place, so too the hymen of one younger than this—another returns in its place.’”
“Most yeshiva students will also invest time in splitting hairs and delving into the sugya and will even check how this is ruled in practice. They will approach the library shelves in the beit midrash and open Maimonides’ great halachic work, the Mishneh Torah, which is the basis for contemporary halachic ruling. There they will be able to study his following ruling: ‘If she was younger than this (than three years old), both are exempt, for her intercourse is not considered intercourse. And likewise, a grown woman upon whom a minor had intercourse—if he was nine years and one day and up, she is liable to karet or death or lashes, and he is exempt. But if he was nine years old and below—both are exempt’ (Mishneh Torah, Laws of Forbidden Intercourse, ch. 1, halachot 13–14). And Maimonides, thank God, also has dozens of accompanying commentators, and thus they can continue to split hairs with them as well.”
“I will now explain in plain Hebrew what is being said here, for those who still need clarification: A person who has sexual relations with a girl younger than three is exempt from punishment or from paying compensation for damage to the girl. Likewise, a woman who has sexual relations with a male under nine is exempt from punishment even if she did so with her son. Also male–male sex with a minor under nine is exempt from punishment.”
“Few topics in the world of halachic interpretation cause a burning stomachache like this sugya, which opens a Pandora’s box of dark ethical abysses. The Gemara essentially determines that penetration by an adult into the body of a girl under three doesn’t harm her and is ‘like putting a finger in the eye’—a metaphor which, were we to hear it from someone in this context, would surely make us call the police immediately.”
“In a bold attempt to grapple with this challenging legacy, classic Talmudic commentators marshaled all their imaginative power. Some, in a blaze of scientific creativity, propose fascinating theories about accelerated biological development in the ancient world, which in their view explains why sexual assault of one younger than three does her no harm since ‘her hymen returns.’ Others navigate cautiously between the raindrops, noting the severity of the matter in our time, as if trying to say: ‘Yes, but it’s not really permitted—certainly not in our day.’”
Indeed, a burning stomachache, and not for nothing. This is the type of question often raised regarding such Talmudic sugyot (as I wrote in the previous column, their source is usually Aharon/Yaron Yadan. In this sugya as well, he was the one who raised it to public awareness). Elbaum is even correct in his description of the embarrassing excuses offered by today’s apologists (“Yes, but it’s not really permitted—certainly not in our day.” “Yes, but there is a rabbinic penalty (makot mardut),” and the like. See, for example, my column 15 regarding the “beautiful captive woman,” and there is much more of this sort. I remind you again of the video in which Yaron Yadan interviews Rabbi Aviner, mentioned in the previous column, where you can also see embarrassing answers (see another example here, one of many). Unfortunately there is a misunderstanding here—not only by Elbaum but also by the various apologists who ostensibly disagree with him—as I explained in the previous column under item no. 3 on that list: the relationship between ethics (morality) and halacha.
“Sexual relations with a toddler are not rape. Yes, that’s what’s taught in the yeshivot”: the explanation
It seems that on both sides of the divide, both Elbaum and his disputants, there is a misunderstanding about the relationship between morality and halacha. They all assume that halacha reflects the Torah’s morality, but from that they draw opposite conclusions: Yaron Yadan and Elbaum criticize the halacha, whereas their opponents twist themselves into knots and sometimes disqualify morality. I have explained more than once why this is a mistake, and I will not repeat it all here. I will only say that morality and halacha are two independent categories, and therefore it is not correct to examine a halachic determination through a moral prism (see elaboration in column 541).
When the Gemara and Maimonides rule that intercourse with a girl younger than three is not considered intercourse, their intention is to define the halachic concept of bi’ah (intercourse) and to derive the halachic determinations that follow from it. As is known, there are prohibited acts of intercourse in halacha, such as intercourse with close relatives, male–male intercourse, and so on. Prohibited acts of intercourse in halacha are offenses that entail punishment. Sometimes, when it is done by coercion, there is a fine that the rapist must pay, and the ground for payment is the damage to the hymen. The Talmud’s assumption was that with one under three—even if penetration occurred—the hymen regenerates; that is, there is no irreversible bodily injury to the child, and therefore this is not considered “intercourse,” both regarding the definition of the offense and its punishment, and regarding liability for fines.
Do all these determinations have a moral dimension? Absolutely not. Halacha does not deal with the question of whether the intercourse is moral or not, but whether a halachic offense was committed. The moral question must be discussed separately, and it is not the concern of halacha. Moreover, from a moral standpoint, norms may change over the generations, and therefore the moral attitude of the sages may change accordingly. Furthermore, there is no impediment to criticizing the morality of ancient sages, even if it fit the norms prevalent in their environment. But that is criticism of the sages, not of halacha or the Torah.
This may sound apologetic to you, but anyone familiar with halachic sources knows this well and can see it easily. The first indication is the placement of this law. The laws of Forbidden Intercourse in Maimonides do not deal with morality. Intercourse with a married woman (eshet ish) when both spouses and the paramour agree is a full prohibition and entails punishment, even though I see no moral problem here. The same goes for homosexual relations. There is a tendency to think that halacha and the Torah view these acts as morally flawed, but that is a mistake. It is a halachic offense. Regarding morality, perhaps some—including decisors—have thought (or think) it is immoral, but that is not connected to halacha; it is their moral opinion. Conversely, a husband’s relations with an unmarried woman who is not his wife may present a moral problem, yet halachically there is no punishment for it. Thus there is independence in both directions between halacha and morality.
The Gemara also determines that a minor girl (under three) cannot be betrothed through intercourse, but this is clearly a purely formal determination. After all, she can be betrothed with money. The problem is that if betrothal is effected through intercourse, then the act must count as intercourse; but intercourse with a minor girl is not considered intercourse. Is there a moral determination here? I do not see any. It is a formal determination regarding the validity of betrothal that depends on the halachic definition of the term “intercourse.”
Note that Elbaum himself adds (which does not appear in the Gemara and Maimonides he cited) that even if a father has intercourse with his daughter under three, there is no “intercourse” here. By contrast, when he does so with his daughter over three it is a forbidden intercourse (and he is liable to death). Is there a moral difference between these two acts? It is hard to see one. The difference is formal—whether there was halachic “intercourse” or not. Therefore, the determination that a father who had intercourse with his small daughter did not transgress the halachic offense of Forbidden Intercourse has no moral meaning whatsoever. It is a strictly halachic determination. Is such an act moral? Certainly not. The sages would even flog him with disciplinary lashes (makot mardut) for it (see here), and they would certainly prevent it if they could.
Let me sharpen again: moral judgment is entirely disconnected from halacha, and when discussing a halachic question we suspend the moral approach to the case and the acts under discussion. Just as, when students in a physiology class learn what would happen to such a girl physically, no one expects them to discuss it in moral categories (see an amusing example in this spirit regarding the engineering design of a blood conduit, in columns 89 and 467).
To sharpen this distinction further, I will bring here a similar example that arose in my debate with Yaron Yadan (back to the source; as noted, Elbaum’s example was likely taken from him as well).
“A man may do anything with his wife”
The moderator cited this law in Maimonides within the first minute, but in fact this is Yaron Yadan’s own challenge. I returned to address it near the end of the debate (starting at 1:23 in the video).
Maimonides, Laws of Forbidden Intercourse 21:9, writes:
“A man’s wife is permitted to him; therefore, anything a man wishes to do with his wife, he may do. He may have intercourse whenever he wishes and may kiss any part of her he wishes [and come upon her in the natural way or in the unnatural way], provided he does not waste seed. Nevertheless, it is an attribute of piety that a person not treat this matter frivolously, and that he sanctify himself during intercourse, as we explained in the Laws of Character Traits; and he should not deviate from the way of the world and its practice, for this matter is only in order to be fruitful and multiply.”
Sounds appalling, no? The woman is presented as the husband’s passive object, and he may do with her as he pleases without asking her. No wonder many quote this law as moral criticism of halacha and its attitude toward women. There are areas where I can certainly see room for justified criticisms of halacha in this regard, but this law is not one of them. It is a complete misunderstanding—and surprising, given that we are speaking of someone who once headed a kollel.
The opening line of the law says it all: “A man’s wife is permitted to him.” That is, the discussion here is not about a man’s rights over his wife (what he may impose upon her against her will and what he may not), but about halachic prohibition and permission. For example, halacha sometimes forbids two consenting adults from having sexual relations—for instance, a brother and sister. That is a halachic prohibition (and in my view has no moral problem, but that is another matter). The same applies to relations between a husband and wife when she is a niddah. This prohibition is not about protecting the woman’s rights, for she may well want it. The prohibition is imposed by halacha upon both spouses, even if they both desire it. All the Laws of Forbidden Intercourse deal with prohibitions of this sort—i.e., prohibitions imposed by halacha. “Forbidden intercourse” (issurei bi’ah) are prohibitions the Torah imposes on both parties, and they do not depend on whether both want it or one coerces the other. What is stated here in Maimonides is that any form of sexual relations between husband and wife is permitted—there is no halachic prohibition. It does not speak in any way, even by hint, of a situation where the wife does not wish it and the husband seeks to force it upon her.
It must be understood that the spouses’ mutual rights are not discussed at all in the Laws of Forbidden Intercourse but rather in the Laws of Marriage. There, the rights that each spouse has vis-à-vis the other are described. If Maimonides had written this very formulation in the Laws of Marriage, it could indeed have been interpreted that way—for then we would have had to understand that the husband has such rights over his wife. But here that is not what is being said. Note well: this is not an apologetic excuse, and it does not even depend on the distinction I drew between halacha and morality. It is simply basic reading comprehension of a halachic text. There can be—and is—no dispute about this.
I stress that this distinction is not related to item 3 of the list in the previous column (the relationship between halacha and morality) but to item 6 (distinguishing different aspects within halacha: “two dinim”). My claim is that even if halacha were identical to morality, Maimonides’ words here would not be morally problematic, for here he addresses the aspect of prohibition/permission of the two spouses vis-à-vis the Almighty, and not the aspect of their mutual rights vis-à-vis one another. These are, in fact, “two dinim” of the relationship between a husband and his wife, and this is precisely the division between the Laws of Marriage and the Laws of Forbidden Intercourse. Of course, this is an additional indication of my earlier claim that the Laws of Forbidden Intercourse do not deal with morality but with halacha. If this law had appeared in the Laws of Marriage, then one could examine it in light of the relationship between halacha and morality (item 3).
If I return to the difficulty Elbaum described regarding intercourse with a minor under three, there—as we saw—there is a distinction between the halachic aspect and the moral aspect. One can claim this is a special case of the “two dinim” analysis we saw here. There it is a split between a halachic aspect and a moral (extra-halachic) aspect, whereas here it is a split between two halachic aspects (prohibition/permission vs. mutual rights of the spouses). After Elbaum’s introduction about the analytical nature of yeshiva study, it is strange that he does not apply analytical methods to the very question he is discussing. This is elementary.
Aviad Markovitz, in his critique of Elbaum, deals with a specific aspect of the sugya “one who has intercourse with a minor,” regarding a “mukat etz” and the amount of the ketubah a woman receives when her husband does not find her hymen (that is the context of the sugya in Ketubot that Elbaum dealt with). He says things similar to mine in that specific context. However, his phrasing is, in my view, imprecise, for he distinguishes between values and facts; perhaps he means my distinction between law and morality.
Reservation: two types of critique
Elbaum uses this example and others like it to raise two different types of critiques: (1) A moral critique of the content. How can it be that halacha (=which, in his assumption, is identical with Jewish morality) does not view intercourse with a minor girl as rape in every respect, and perhaps even more severe than rape of an adult? (2) An educational critique. What will be the character of someone who, during his formative years, is nourished by the study of such sugyot? He claims that one who studies such sugyot necessarily emerges with a dulled moral sense. I have answered the first critique above. It must be admitted that the second critique raises a real difficulty.
As I have already noted, the view that identifies halacha with morality is shared by most of those who defend the halachic tradition against criticisms like Elbaum’s and Yadan’s. Therefore it is very likely that when they teach their students in yeshiva, they do not explain to them that this is a halachic discussion but that morally the act is patently wrong—for in their view it is the same discussion. Personally, I tend to think that intuitively both teachers and students do understand this, yet it turns out that at least when the question is placed on the table they are unwilling to admit the distinction between halacha and morality. Thus, implicitly, one can indeed understand from the study of such sugyot that the Torah does not view this act as morally severe. In that sense there is substance to Elbaum’s second critique—the critique of what such an educational system produces—but that is precisely because the learners and teachers share his conception of the relationship between halacha and morality. This is a critique that may be justified, but it targets the learners and teachers in the yeshivot, not halacha or the Talmud themselves.
Yet I very much doubt how justified even this critique is. There is another implicit assumption in the second critique: that if one studies such sugyot in a cold manner, this influences the student’s soul and dulls his moral sensitivity. I am not at all sure of this. Even if one studies these sugyot without distinguishing morality from halacha, I still do not think this necessarily dulls moral sensitivity. The fact is that the yeshiva student typically disconnects the material studied from his daily life and feelings. One can criticize such study, but it is hard to deny that this is the reality in yeshivot. I can say from my experience that when I taught in-depth Talmud to women—who, by their nature, had not undergone yeshiva education—I had to work very hard to create in them a separation between moral revulsion at the act or situation and the legal-halachic analysis thereof. Regardless of the relationship between morality and halacha, that separation greatly benefits the quality of legal-halachic analysis. Many women tend to think that precisely invoking moral sensitivity contributes to a better understanding and to more correct conclusions from the sugya (and perhaps also to preventing the loss of moral sensitivity). I disagree. On this, see again my remarks in the columns cited above on the question of the blood conduit.
An educational note
Even so, in my impression there is indeed notable moral dullness among yeshiva graduates, mainly Haredi (though not only). One can see this in the detached arguments raised by Haredi yeshiva graduates to justify their distorted moral conduct (for example, regarding the draft, or when they justify other Haredi conduct. See examples in columns 629, 609, 655, and more). In the past I attributed this to partisanship and cognitive dissonance (the familiar human need to justify at all costs the choices we have made), but I now think it also stems from the yeshiva’s cold, detached analytical study style. When you get used to analyzing every situation in a cold manner, you may come to see in such an analysis a moral justification as well. I stress again: I do not think we should mix halacha and morality, since these really are independent categories. But it is important that alongside the cold, juristic study of the sugya we also note that there is another aspect—moral—and discuss it as well. This is usually not done (apparently because of the assumption that halacha and morality are identical), and it is likely what produces the moral dullness of yeshiva students. Here you have a direct harm from the prevailing conflation of halacha and morality (whose aim is ostensibly positive—to defend the morality of halacha—but in practice it is not only wrong but also very harmful). It turns out that the approach I proposed—namely, to separate morality from halacha—is not only correct and not only resolves in the most convincing way the tension between them, but it is also the only approach that allows us, educationally, to cope with the consequences of the habit of relating to such sugyot in a cold, analytical way. We must not forgo the important and correct habit of bracketing emotion when studying, but it is still important to mention the moral dimension separately and not leave it unaddressed.
Thus, when studying the section about the “beautiful captive woman,” the case of intercourse with a minor, or the relations between husband and wife, it is important to analyze them in a cold manner and not to mix in emotional and moral considerations. But at the same time it is important to state that all this is a halachic analysis, and to note in parallel that from a moral perspective these are patently wrong acts. It is important to clarify that halachic permission says nothing about our moral attitude to such acts. To say that this is indeed “halachic morality,” or to say that today none of this is relevant, or to use a set of other unconvincing excuses common in our circles—this is not only wrong but also harmful.
I now turn to Elbaum’s other criticisms, and will do so briefly.
Additional moral criticisms
Elbaum brings a list of several sugyot that contain moral distortions:
a. Misogynistic attitude: the woman is seen as the property of her father before marriage and the property of her husband afterwards. b. Attitude toward non-Jews: they are not included in the definition of “person.” There is no need to try to save their lives, to return their lost property, and according to some sages it is even permitted to rob them of their property. c. Corporal punishment: capital punishment for anyone who transgresses the Torah’s laws. d. Ostracism and negation of any phenomenon of homosexuality, gender and sexual variance.
Some of these criticisms are correct and others are not. In brief, I will put it this way.
a. The determinations regarding a father’s authority over his daughter are legal determinations, not moral ones. The woman is not her husband’s property, but because he is obligated to support her and thus responsible for her, he may also determine various matters for her. There is logic in granting him this authority, as he is the one who must ensure that his daughter can subsist. One must remember that in the past women’s ability to earn a livelihood was very limited, and therefore there is logic in enabling the father to marry off his daughter or even sell her as a maidservant in extreme cases. By the way, when the father oversteps morality, the court will compel him not to do so, for there is no statement here that such steps are moral. Today, when that is not the case, there is no reason at all to preserve these rules, and I assume the court will not allow the father to do so. The Torah responded here to an ancient reality and did not set binding moral lines. Over the generations until today, sages, decisors, and courts have emptied these rules of their substance. In any case, these are legal, not moral, determinations. There is no impediment to holding the view that all these steps are immoral, and the commitment to halacha does not dictate otherwise.
b. Regarding the attitude toward non-Jews, see my article “Is There an ‘Enlightened’ Idolatry?”. Similarly with regard to the status of the convert, see my article “The Personal Status of a Convert—Inferiority or Social Status?”.
c. There is nothing wrong with this, as long as there are witnesses and prior warning, and the person knows what he is facing and the consequences of his actions, and he also understands that he himself sinned. Clearly, if that person does not believe in halacha and acts from a different worldview, he is considered coerced and is not liable to punishment. See my article on causing a secular person to transgress, here, the columns on “coercion” regarding beliefs (657, 490), and much more.
d. Regarding homosexuality, the Torah indeed forbids it, but this should not be seen as a moral determination. It is a halachic prohibition. See columns 25–26, and especially columns 16 and 92, and more.
Again I must say: in all these issues, conservatives who identify halacha with morality will indeed need embarrassing answers—but only because they share Elbaum’s and Yadan’s mistaken assumptions.
Absurd conceptions of the natural world
Under this heading Elbaum mentions Talmudic sugyot that deal with mistaken and anachronistic conceptions of nature that in our day have been shown to be incorrect: the earth is the center of the universe; a snake’s gestation is seven years. Here I must invoke items 1, 4, and 5 from the previous column. I showed there is no reason to assume the sages had any superlative knowledge, and certainly there are not a few scientific mistakes in the Talmud (see also here).
On the margins I will add that here Elbaum falls into a mistake common among many atheist critics who think that Copernicus’s determination—that the earth revolves around the sun and not the other way round, or that the earth is not the center of the universe—is a scientific discovery, and therefore whoever thinks otherwise is wrong and not up to date with scientific knowledge. That is a mistake. Copernicus at most proposed a different coordinate system within which it is easier to describe the paths of the stars in our galaxy. There is nothing more “true” in his words than in those of his predecessors. The claim that the sun revolves around the earth is kinematically equivalent to the claim that the earth revolves around the sun; it is merely a question of convenience. On this, see my article here.
Torah magena u-matzla (Torah protects and saves)
His critique of the claim that this study protects the State of Israel and the Jewish people—supposedly spreading a mystical Iron Dome over them—does not depend on his moral critique of the law about intercourse with a minor. He uses that as a demagogic argument when he writes that yeshivot believe that studying the sugya of intercourse with a minor spreads an Iron Dome over us. But in fact his claim is about all Talmudic study (and not specifically about sugyot that are morally problematic).
To that I can only say that he is attacking the childish Haredi claim that is being heard even more in these days, but in this there is certainly no attack on halacha or its study. As for the inventions of Haredi articles of faith—I certainly have no interest in defending them. I have stated my view about them many times.
I must add that in my view this study does indeed protect us—but not in a mystical sense. One who thinks that mere continued existence is our goal in effect assumes we have no purpose. That is apparently Elbaum’s view as a secular person. But he cannot criticize, on that basis, the views of believers who think we do have a purpose here. In my book HaMetzui HaRishon (The Prime Existent), in the fifth conversation, I explained that the assumption that the world and we have some purpose requires that it be something beyond the smooth functioning of life and hence beyond morality (if the purpose were the functioning of life, it cannot serve as an explanation for our creation; it would have been better not to create us, and then there would be no need for that “purpose”). This study preserves our identity and constitutes a purpose for our existence here. This is what we are here for; there is therefore no need to seek purposes that it helps promote. The study is not a means but an end in itself (see column 479 and elsewhere).
For some reason, a secular person like Elbaum will enthusiastically join the claims now being heard that art and culture protect us, or that sport is a guarantee of our existence. These claims arise whenever there is a threat to cut state budgets for these purposes. Then all the secularists pop up and discover the wonders of mysticism. They fervently claim that all these pursuits and aims have supreme value and therefore their budgets must not be cut. Such claims are voiced enthusiastically under every fresh media tree, with no one objecting. A play about events in Venice in the tenth century, a comedy set on a kibbutz, a historical or other film, a singer’s performance, or any other nonsense—these surely protect us as a mighty Iron Dome. Yet at the same time they do not hesitate to assert that the claim that Torah study protects us is downright absurd. A topsy-turvy world I have seen.
Sex education
Toward the end of the article Elbaum brings data (some of which contradict themselves) about the percentage of sexual assaults among Haredim and religious people (for example, in the settlements), which is significantly higher than their proportion in the population. These are horrifying data that indeed deserve attention and must be taken into account (the religious and Haredi public lives in denial about them). Yet he explains these data on the basis of reliance on sugyot such as “one who has intercourse with a minor,” and the like. No wonder, he argues, that they emerge as rapists and harassers, and so on.
Here there is a simple logical error. Elbaum ignores many other parameters that can cause these phenomena: for example, gender separation customary in these communities; the prohibition on sexual relations and on self-relief; the taboo on dealing with these topics; the lack of sex education; and much more. All these do not depend on the character of the Talmudic sugyot and their influence. In short, this is a critique of the religious and Haredi society and perhaps also of halacha, but it has no connection to the nature of the Talmudic sugyot that are the subject of his article. Above I already mentioned a possible way to address these problems. There is no need to stop studying the relevant sugyot nor to change the method of study. One can append to them a parallel moral discussion, even if it is not mixed into the sugya’s analysis itself.
Discussion
There is no connection at all. First, because I did not write that Hazal thought this was not immoral. What I wrote is that the halakhic determination has absolutely nothing to do with morality. Therefore the proof from Maimonides is no proof. Second, even there in the Gemara the entire context is prohibition and permission, not a person’s rights over his wife.
The story comes after the Gemara states this in order to exclude the view of R. Yohanan ben Dehavvai, who claims that there is a prohibition here (not because of coercion, but because of the act itself), and here they came to say that there is no prohibition:
“But the Sages said: the halakhah is not in accordance with Yohanan ben Dehavvai; rather, whatever a man wants to do with his wife, he may do.” Clearly there is no discussion here of rape, but of the act itself.
Now that same woman who came before Rabbi complained, and Rabbi did not intervene. This can be interpreted in two ways:
1. Rabbi made a halakhic statement to her, not a moral one. Alternatively, he thought this was moral as well, but I do not agree with him. In any case, that is not halakhah but morality.
2. What is more plausible is that the woman came before Rabbi to complain about the transgression (she held like R. Yohanan ben Dehavvai), not about rape, and he said that there is no transgression here. Perhaps it is not proper, but there is no transgression, and therefore he does not intervene.
It seems to me that it is more correct (or at least more understandable) to view these sugyot as dealing with ex post facto cases. That is, a case of a man who had intercourse with a minor girl “arrived” at the study hall of the Sages, and now they have to discuss his halakhic status. In other words, the problem is that there were such cases in the past (and there are such cases today as well), which required the Sages to address the subject. (A sad anecdote – most sexual assault cases happen within the family; that is what I heard during my law degree.)
This distinction reminds me of a division in the contract law of Jewish law (I forgot which decisor it was) regarding an illegal contract. That decisor explains that one must separate the contractual aspect from the criminal aspect: the criminal part should be applied to the offender, while the contractual part should be discussed separately. For example, a man who slept with a prostitute and refuses to pay her. In such a case, we would obligate him to pay by virtue of contract law, but also impose upon him the penal sanction for that offense.
1. In the sugya about a man’s wife you wrote, “This does not speak in any way, not even by hint, about a situation in which the woman does not want this and the husband wants to force it on her.” So what is meant by “[and he had intercourse with her in the usual manner and in an unusual manner]”?
2. Is it possible to say that in the distant past (the Middle Ages, the Second Temple period, or earlier) there actually was an identity between morality and halakhah? In general it seems that this is the environment in which most Jewish thought developed. So the distinction between morality and halakhah looks like a late invention.
3. From my limited acquaintance with the Gemara, there are times when arguments are brought from what is commonly found in reality. Do such arguments rely on the assumption that what is commonly found is moral or halakhic?
Of course. That is the hire of a prostitute and the price of a dog.
1. I didn’t understand the question. “In the usual manner” means from the front, and “in an unusual manner” means from the back. What does that have to do with her consent?
2. Absolutely not. See my arguments in column 541 and you will see that this is built into halakhah.
3. Each argument has to be judged on its own merits. In most cases they bring a commonly used expression, not an actual practice.
Although I like the conceptual distinction you made here and also in the discussion with Yaron Yadan between halakhah and morality, I think it should be questioned:
1. Does it actually fit the self-understanding of halakhah/the Torah, or is this distinction itself an apologetic move – even if a more convincing and sophisticated one?
Let us take one of the examples you brought – male homosexual intercourse. As you say, you claim that this is not a moral prohibition but a religious one, but the language of the biblical text itself is: “You shall not lie with a male as one lies with a woman; it is an abomination.” From here there remain two possibilities, and in my opinion both are equally apologetic. The first is that the problem is linguistic, and that the word to'evah in biblical Hebrew has a different semantic meaning. The traditional commentators do not understand it that way. Ralbag says, “for this matter is abhorrent in itself,” and Ibn Ezra says, “and it says ‘it is an abomination’ – for it is a thing abhorrent to a holy soul.” Of course here too one can say that even for them this is not the modern meaning, but there is no end to that. The second option is to insert this too into your conceptual system and argue that to'evah is not a moral category but a halakhic one. But then why was there any need to say it? The first part of the verse would have sufficed. Of course in the rest of the section on forbidden sexual relations, the author also does not refrain from moral condemnations. In fact, I think that on a careful reading there is no shortage of examples in which the Bible explicitly mixes these categories. In other words, the command-and-law argument is very convenient when there is a separate halakhic code, like Maimonides, and even then I doubt whether it is faithful to the intent of the original authors. Does this Brisker mode of thought really reflect the text?
2. Even if it is not faithful to the source – does that matter?
At first glance, to me this is the difference between apologetics and truth. One can of course disagree and say that the starting point is that the Torah and halakhah develop, and therefore interpretive moves like the ones you proposed are faithful to Judaism even if they completely change its theological conception. To me that is taking the easy way out. If I drop that assumption, then the ideal religious aspiration should be to get as close as possible to the “source” as expressed in the Bible, and every theological (and also halakhic) escape in fact distances it from the divine command. I am of course contradicting the whole accepted Orthodox conception here, but that does not bother me and I assume it does not bother you either. In other words, does your interpretation not create a new religion? And if so, in what way is it more justified than the Orthodox conception (or the Reform, Conservative, or any other interpretation) other than the fact that it is more sophisticated? Each of you has forced Judaism to fit as much as possible his own conceptual system and basic assumptions.
Shabbat shalom.
The Babylonian Talmud, Sanhedrin 77a: Rava said: If he bound him and he died of hunger – he is exempt. Further there: And Rava said: If he bound him before a lion – he is exempt. And further: It was stated: If he overturned a vat over him and spread a layer of plaster over it, Rava and Rabbi Zeira – one said: liable, and one said: exempt. And there on 77b: Rav Pappa said: If someone bound his fellow and diverted a stream of water onto him – it is considered his direct arrows, and he is liable. This applies only with the first force, but with the second force it is merely indirect causation. So there is an entire sugya with detailed distinctions; see there. These passages of Gemara, which are taught in yeshivas, teach ways in which a murderer is exempt from execution, provided he kills in the correct Torah-approved manner! Is there a greater immorality than this? Not for nothing is the percentage of murderers in the Haredi public many times higher than in the secular public (the Haredim deny this, but anyone familiar with police and prosecution data knows it); they study such things and still expect them to behave morally?
And seriously: your words are very correct, though trivial. And all of Elboim’s cheap demagoguery about what yeshiva boys study is simply nonsense. After all, one who rapes an adult woman (and not a נערה, young girl) is also not liable to a fine, and it may be assumed that humiliation and depreciation apply even to one younger than three years old (I haven’t had time to check), so it is clear that the only difference is a halakhic one concerning acts of intercourse, not a moral difference. (The reason Elboim focused on a minor and not on an adult is that it served his purpose; after all, cruelty toward adults is more moral than toward minors, isn’t it?) Is there anyone who studied Talmud and understood that the distinction between a grown woman and a young girl is moral?
As for the second example, of “whatever a man does with his wife,” the matter is so simple that if this is the level of the new criticism of the Talmud (new??? If only Judah Leib Gordon could rise from the dust! And why go to poor Yadan? Yalag’s demagoguery in On the Tip of the Yod is far more successful, and stirs up intense feelings against the fanatical Talmud!) I do not know what to think (but no! דווקא the Haredim are the idiots). You continue to take Yaron Yadan seriously, and you don’t understand how there can be so much prior misunderstanding, including by former insiders?! For that reason I wrote in a talkback to the previous column what I wrote, so that you would understand that there is no misunderstanding here at all, but malicious bias, from a corrupt person.
(As a side note: your method is excellent. We will continue with the “the God you don’t believe in, I don’t believe in either” approach… meaning: this is not Judaism’s approach, but the stupid/parasitic/evil/infantile Haredi one is? Yes, and I tell you: the Haredi world you attack, I attack too, but you are constructing an entire model of Haredim that is a straw man! These are not the conceptions of the Haredim (that I know)! Every learner of thirteen years and one day (and even a child younger than nine…) understands on his own this distinction between morality and halakhah. I know you will answer: not true, these are indeed the Haredi conceptions. Well, well – in the previous talkback I asked you for sources for what you wrote about the prevalent view concerning scientific knowledge in the Talmud, and you did not answer me. And by the way, not everything Haredim tell the media is what they really think; they definitely uphold esotericism – unjustifiably, because it does not help – and the drafting of yeshiva students is a good example. No sensible Haredi – if there are any such… – thinks that the Torah they study spreads an Iron Dome over the state; the real answer for why they think they should not go to the army is something else entirely, and I am not saying they are right.)
Shavua tov
Why did the Torah write laws that are halakhically permitted if in any case they are morally forbidden and we have no practical implication from this permission (is it only in order to “magnify Torah and glorify it,” like the wayward and rebellious son)?
What is the source that if the father exceeds the bounds of morality, the court compels him not to do so? (It makes sense, but I would be glad for a source.)
Do you think it is true that sexual abuse in the religious and Haredi public is significantly greater than in the general public? Naively, I thought that faith and religion only strengthen morality and goodness (but perhaps that is just naïveté)?
This question has come up here more than once. I explained that the term “abomination” is not used דווקא in a moral sense. See Nedarim 50. It appears in the Torah in several places not in a moral sense. When the Torah says that male intercourse is an abomination, it means a religious abomination, not a moral one. Also on the moral plane, not every transgression is an abomination. There is a difference between saying that something is forbidden and saying that it is an abomination, both on the moral plane and on the religious plane.
It wrote it so that we would know there is also a halakhic prohibition here and not only a moral one. You can call that “magnifying Torah and glorifying it.” But it is more than that, since a halakhic prohibition carries a punishment, whereas a moral prohibition does not.
This is not a matter of a source, since it is not a halakhic principle. It is what happened and happens in practice. Even in the Shulchan Arukh there are many places where they compel something that is not a halakhic obligation, and “they compel against the trait of Sodom” in Bava Batra is the whole sugya.
Rabbi Aviner’s answer to Yadan is not embarrassing.
He explained to Yadan that his understanding and way of presenting the halakhah is superficial, because in practice we do not generally see Jews murdering gentiles (it almost never exists).
So admittedly that is not an explanation like yours, but one could say that your explanation (theory) plus Rabbi Aviner’s explanation complement one another.
You wrote that there can be other factors behind these phenomena, such as the prohibition on sexual relations and self-release, separation, etc. Is there a halakhically permitted solution to this, or is there no counsel and no wisdom against the Lord (or in other words, a religious value versus a moral value)?
I do not know of a solution.
But I would say that this is not exactly a religious value versus a moral value. There is no moral value in permissiveness. It has some positive consequences (and also negative ones).
It is like after Rabin’s murder, when they accused religiosity of murderousness (someone who believes may come to murder). There too it is not a clash between values, but a clash between a value and a possible problematic consequence of it.
Even according to halakhah, a man may not rape his wife. At most he can divorce her.
“Whatever the husband wants to do, he does” … but… but
Thus Maimonides wrote (Laws of Character Traits 5:4):
“And he should not force her when she does not want [it], but only with the will of both of them and with their joy.”
It is not enough that both want it (“until he says, I want”?) but rather “with their joy.”
If Yadan really was a rosh kollel, it is impossible that he did not know the above words of Maimonides.
And it is impossible that he did not understand that there is no contradiction at all between the two halakhot.
But when people engage in propaganda, they are not meticulous about the truth.
As for Dov Elboim, he too knows and recognizes the figure that yeshiva education aims to produce.
One may assume that he also read the books of Haim Grade.
A very nice column! But still, sometimes the sugya really is strange, and what is written in the column cannot answer it. See for example here (a very short video from Da’at Emet) – https://www.youtube.com/watch?v=G40g-Kjf6Ig
I don’t see anything there that has not been answered.
Could you please sharpen the point: in your opinion, does halakhah include the whole Torah and have no connection to moral values, or are halakhic discussions as a professional field separate from morality? Is the Torah of God also meant to teach us morality and values, or does it focus only on a system of religious law?
The Torah is composed of halakhah and non-halakhic parts. In the non-halakhic part there are moral elements, but nobody learns morality from them. A person’s morality is what his conscience tells him, and afterward he “finds” it in the Torah. Moreover, morality by definition is universal (there is no Jewish morality), and gentiles are supposed to understand it on their own without the Torah.
Hello Rabbi,
First of all, more power to you for the enlightening article.
Two questions, with your permission:
1. Regarding the distinction between halakhah and morality: I can accept this distinction when dealing with a Talmudic sugya whose purpose is to define the law, such as what counts as intercourse and the like, and therefore many theoretical cases are found that the Gemara discusses in order to sharpen the legal parameters for halakhah but not for practice. However, when it comes to verses in the Torah, such as the rape of the beautiful captive woman in war, it is apparently difficult to accept this. The Torah’s purpose is not to discuss the legal parameters in theory but to instruct what is permitted and forbidden in practice; accordingly, a permission that the Torah writes would seemingly speak on all levels – halakhic and moral. It is simply permitted in practice. It is not clear to me why you refrain here from accepting the common answer that indeed in the Torah’s time the rape of women during war was a moral thing, especially if it helped the soldiers continue fighting, and therefore the Torah permits it with certain restrictions that soften the treatment of the woman, and with guidance for the future that one should avoid it if possible (“The Torah spoke only against the evil inclination,” and “whoever marries a beautiful captive woman will end up having a wayward and rebellious son”). After all, you yourself used this answer (that there is a difference between our time and theirs) regarding the husband’s/father’s rights over his wife/daughter: “One must remember that women once had very limited ability to support themselves, and therefore it makes sense to give the husband the possibility of marrying off his daughter or even selling her as a maidservant in extreme cases.” If so, what is the difference?
2. Regarding the claim that Torah protects and saves: even if we set aside the Gemarot (in Sotah and elsewhere) which can be explained differently, I did not understand how the rabbi explains the explicit verses in the Torah that if we go in God’s way, God will bestow good upon us (including that we will not have to reach a state of war, “and no sword shall pass through your land,” and also success and victory in wars that do occur: “and your enemies shall fall before you by the sword”), and if not then the opposite (“How could one chase a thousand,” etc.). Does Torah and mitzvah observance (including study) not protect in this sense, in the rabbi’s opinion?
Thank you
1. You are saying what I am saying in different words. The Torah indeed gives practical permission, but it is halakhic permission. Morally, every person and every generation and in every circumstance makes moral decisions.
I used that only as an auxiliary point for the view of those who do not accept my distinction between halakhah and morality, but there is no real need for it.
2. First, where there is a common danger, it does not help. But beyond that, I have already written that God’s involvement in the world as described in the Torah diminishes over the generations. Search here on the site for divine involvement in the world.
God’s overt involvement has diminished, but behind the scenes He certainly acts in ways that can be explained as nature.
The debates are very necessary, both to raise the low morale in the hearts of many halakhah-observant rationalists who sometimes feel they are breaking from it and either cut out entirely or remain but inwardly are already cut off,
and also truly to show that believing and keeping halakhah is rational.
So take encouragement in continuing this holy work.
I have no idea why my comment appears under the name spooky9bbe460711; this time the site didn’t ask me who I am.
Yedai
Honorable Rabbi Michi,
Thank you for the enlightening post.
You wrote: “There is no reason in the world to preserve these rules, and I assume that the court would not allow the husband to do this. The Torah was responding here to an ancient reality and did not establish binding moral lines. Throughout the generations up to our own day, sages, decisors, and courts emptied these rules of their content. One way or another, these are not moral determinations but legal ones.”
This is only one example; I have heard you several times say that Hazal are the greatest reformists of all, which is probably a correct fact that is given an apologetic interpretation from the ‘traditional/Haredi’ side.
But to the substance of the matter: there is no doubt that some of the laws of the Torah are not relevant nowadays (some were listed above in your article), and especially according to your approach, that halakhah contains no morality – what, then, is contained in these commandments?
I would be glad if you could expand a little (or refer me to an article you wrote) regarding the attitude toward Torah and halakhah as an eternal book:
1. Is the Torah eternal at all? If so, why are so many of the commandments not relevant and in need of reform or far-reaching interpretation in order to adapt them to later times?
2. If we already accept one reform or another, where is the boundary? Are the modern Reform movements acting correctly in adapting religion to the comfort zone?
3. Regarding those halakhot that underwent reform or far-reaching interpretation, according to your view would it be preferable to say that these parts (at least) were written by man and are not from Heaven, since they fit the period in which they were written and are not universal and eternal?
Thank you very much!
Lavi
It is worth presenting examples; otherwise the discussion is general and cannot really be conducted.
A Torah law that I do not understand cannot be non-relevant today. Either the claim is that one cannot run a practical society that way and therefore it should be revised, or we are dealing with laws whose purpose is clear.
In general, I would say that the question of the boundary does not bother me in the least. The boundary is at infinity. What is correct is correct, and that is that. Questions of a slippery slope are unimportant in my eyes in most cases.
I have discussed the definition of Reform in several places. See, for example, the series of columns on Modern Orthodoxy 475–480.
Thank you. I read the posts you mentioned and understood your approach regarding reform.
Since according to your approach, interpretive conservatism is not reform, perhaps I will focus on the words of the Torah itself and not on halakhot derived from the Torah or rabbinic law brought in the Talmud, many examples of which you raised in those posts.
I will begin with the example you raised in this post, the sale of a minor daughter as a maidservant or marriage against her will by her father (even to a man afflicted with boils). You wrote that the Torah apparently answered an ancient need and that no court exists that would permit this today. In your opinion, does this prove that the Torah, or more precisely this specific law, is not eternal, and if so, is it likely that it was written by man in another time and culture?
And perhaps I will go further with another example in order to understand whether there are any limits at all to interpretation. Is it not preferable, similarly to the rabbinic interpretation – with which you certainly agree – that ‘an eye for an eye’ means monetary payment, to assume that this verse was written by man in a period when they cut off the hands of thieves and gouged out the eyes of one who blinded his fellow? ‘As he has inflicted a blemish upon a person, so shall it be inflicted upon him’ – these are clear enough words, yet here Hazal take the value of tort law and monetary law (I am careful not to use the word morality) and place it upon this ‘cruel’ law in order to interpret the verse in a way that is more sensible, while taking it out of its simple and plain meaning.
Would it not be much more reasonable to ‘erase the verse’ by claiming that it is probably not authentic and was inserted into the text by man?
And if I continue further, what prevents me from interpreting laws that are consensus matters in an updated way – like Hazal? If an eye for an eye = money, then ‘the lyings of a woman’ = pink bedding.
Sexual relations between two males were never mentioned and forbidden at all, just as inflicting a blemish on the one who inflicted a blemish was never commanded.
I could even argue that the common understanding of the verse ‘You shall not lie with a male as the lyings of a woman’ as a prohibition on relations between two males is far-fetched and mistaken, since one cannot lie with a male in the lyings of a woman because physically he has no vaginal organ, only in anal intercourse (and since such an act applies to both sexes, it cannot be defined as ‘the lyings of a woman’). Why should the Torah ‘be cruel’ to those who prefer to have a relationship with members of their own sex (just as the Torah is not cruel to one who blinded his fellow by blinding him)?
Of course there are many more examples, but I will stop here for now.
I would appreciate your response.
There are laws that on their face do not appear essential, such as a father’s right over his daughter. Therefore it is reasonable to interpret them as coming to answer a need.
The derashah on “an eye for an eye” is not a plain-sense interpretation but an exposition by gezerah shavah. Expositions are not supposed to stand the tests of the plain meaning, but it is not that Hazal did whatever they wanted. There are rules for derashot as well.
Therefore the question of the boundary is not relevant. One expounds when it is correct.
If in your opinion “the lyings of a woman” does not refer to homosexuals, then permit it. In my opinion, that is a very weak argument.
Beyond all this, there is also significance to tradition, which also transmits to us the meaning of the verses. You need to be very convinced before going against it. All the more so since the Sanhedrin and the Talmud have formal authority.
Bottom line: strong arguments are required in order to decide that something is a later human addition, and I did not find such arguments here. Moreover, the claim that this is a human addition contradicts the claim that it can be interpreted differently. If you interpret it differently, then there is no difficulty that would require you to conclude that it is a human addition.
A. Because of the lack of any essential need for the Torah’s law concerning the father’s property right over his minor daughter, the question arises whether the verse is authentic at all. And even more than that, the father’s right over his daughter is not merely ‘non-essential’; it is contrary to basic values in the modern conception and probably already in the time of Hazal and the Rishonim. Is it reasonable that God commanded something temporary that after a while would no longer be relevant (of course, you could argue that in the future it will be relevant again, like the commandments for priests and sacrifices).
But is it not more reasonable/correct to say that this is not a divine command at all, but rather a law written by man, than to say that it was meant to answer a temporary need?
B. Assuming that the argument I presented regarding male intercourse were stronger and, in your view, correct, would that be enough to permit homosexual relations and forbid males to lie on pink bedding?
For to strengthen the claim, I could, for example, expound a gezerah shavah: ‘You shall not lie’ ‘You shall not lie’ (regarding the pledge of a poor person) – just as there the verse speaks of nighttime covering (of the poor person), so too here regarding a male the verse speaks of nighttime covering (women’s bedding). And if I insist further, perhaps I could even find a few more derashot and arguments on behalf of the LGBT community.
The Talmudic rules themselves, such as the gezerah shavah you mentioned (and the rest of the hermeneutical principles by which the Torah is expounded), were not written in the Torah (whether a halakhah le-Moshe mi-Sinai or not), and we have no proof that they are not the creation of those who wanted to use them according to their own understanding.
Is it because apparently the Sanhedrin did not disagree with the Orthodox/rabbinic interpretation that there is no possibility of ever changing this (or until a Sanhedrin greater in wisdom or number appears in the Chamber of Hewn Stone)?
And to ask the reverse: if the culture of harvesting organs as punishment again became accepted, would you insist on maintaining the gezerah shavah that ‘an eye for an eye’ = money?
I am simply trying to understand when we have authority (if at all) to make reform in the words of the Torah – as Hazal did. As for the arguments and derashot, with a little patience, imagination, and talent, we will already find or invent them.
I will note again that your arguments contradict one another. If you interpret everything as you wish, then there is no difficulty and no need to reach the conclusion that this is a human addition.
A. The verse is entirely authentic, and its applications change over the generations. I do not see what problem there is with that. The eradication of Amalek has also changed, and so has ‘lo titgodedu’ (today no one forbids two courts or two synagogues in one city).
B. Assuming the argument were strong, I would accept it. That sounds to me almost like a tautology.
C. When we become familiar with the ways of derash and you persuade me, there is no problem. I will accept it.
D. You have no proof of anything. The tradition is that the hermeneutical principles are a halakhah le-Moshe mi-Sinai. If you have clear evidence otherwise, there is room to consider it. I am not aware of such evidence.
E. Indeed, a Sanhedrin can change anything established by a previous Sanhedrin.
F. When I know the secret of gezerah shavot, we can discuss it. There is no point engaging in such hypothetical questions. When we live in some actual state of affairs, we can discuss it.
G. We can do anything Hazal did, so long as it is done seriously and מתוך understanding of the tools (the hermeneutical principles). Of course, if one is going against Hazal, that requires an appropriate court (or the agreement of all the sages of the generation).
Just to emphasize, I am not interpreting as I wish, only referring to practical halakhah that at best ignores, or in the more severe case contradicts, the law of the Torah.
A. I do not know where the eradication of Amalek has changed, only that we cannot fulfill it today for various reasons (like offering sacrifices). Regarding lo titgodedu, is that not about a certain act of mourning? The additional interpretation is already Talmudic.
B. You answered that under C, so I will skip the logic with your permission.
C. I understood the point, only it is not clear from your words whether this is a matter of knowledge or authority.
D. The tradition of the hermeneutical principles came in parts, not as a clear message. As proof: even among Hazal there are a number of statements and methods regarding the list of principles and their use, which could lead to the conclusion that these are not halakhah le-Moshe mi-Sinai (at least according to the views claiming that no dispute can arise regarding a halakhah le-Moshe mi-Sinai).
E. Clearly, but is that the only way?
F. What do you mean by ‘their secret’? Was it hidden away together with the jar of manna and the flask of anointing oil, to be revealed with the coming of our righteous messiah?
G. It seems to me that here you summed up and sealed everything: all that was written earlier is irrelevant; according to you, this is only a question of authority. If so, we need to understand how halakhot were nullified after the Sanhedrin ceased, what is an appropriate court, what is the agreement of all the sages, and who are the sages – is the Council of Torah Sages enough?
If I jump to the next stage, does conservative interpretation also require authority, and if so, the same level of authority?
Thank you for your patience!
You are completely making things up as you wish. You are not even sticking to the plain meaning, contrary to what you wrote here.
A. The eradication of Amalek is no longer relevant, and this is a change of application without changing the obligation itself. The same is true regarding a father and his daughter, where the situation changed and therefore now the law is not relevant, and certainly with lo titgodedu. Of course this is a Talmudic interpretation. So what? If you are a Karaite, then there is no point in this discussion.
C. First of all, it is a matter of knowledge, and that is what I dealt with here. Of course there is also a problem of authority.
D. The fact that there are disputes says nothing at all. And the ‘views’ that claim no dispute can arise (Maimonides) are unfounded, as the Havot Ya’ir showed in sec. 192.
E. For change, yes. There is also the possibility of applying differently, and the like. This is not the place to elaborate. I wrote about it in the third book of the trilogy and also in the article on changing enactments in our time.
F. Indeed, the skill of using the hermeneutical principles has disappeared from us. It has been forgotten.
G. Well, this is just nonsense. I wrote that there is also a problem of authority, and that does not contradict other problems and statements. The question of what counts as consensus has no clear answer.
It seems to me we have completely exhausted this.
Two final points, with your permission:
1. I am not a Karaite, but I asked to focus on examples from Scripture and on Hazal’s interpretation of them (as opposed to, for example, reasoning in monetary law such as “a person does not repay a debt before its time”), in order to clarify where Hazal’s interpretation overrides an alternative interpretation. In the end, if I understood your words correctly, this is mainly subject to the question of authority, at least regarding the interpretation of Scripture itself.
2. You wrote that the skill in using derashot has disappeared, and therefore we have no basis to derive new derashot or argue against Hazal’s derashot (although this is a claim of lack of knowledge or ‘skill,’ in your words, effectively it is a lack of authority because we have no way to attain that knowledge today).
On the other hand, you advocate a method in which conservative criticism is permitted and even necessary in many cases. Is there no place here to doubt our skill in criticizing the words of Hazal?
I generally agree with the principles you wrote, but I disagree regarding the example of “whatever a man wants to do with his wife, he may do.” The source of this halakhah in Maimonides is the Gemara in Nedarim 20b, and there it is explained that Hazal also saw no moral problem in the matter. A woman complains before Rabbi about her husband who acted this way, and Rabbi answers her, “My daughter, the Torah permitted you to him; what can I do for you?” Thank God, today I don’t think there is any serious rabbi who would answer like that.