The Path of Halakha: On Conservatism and Change in Torah and Jewish Law — What Is Reform? — Lecture 5

Table of Contents

• [0:00] Introduction to changes in Jewish law
• [1:30] Sociological introduction – the swimsuit group
• [2:38] Three patterns of conservatism in response to changing circumstances
• [4:18] The midrashic conservative – midrash and outlook
• [5:39] The innovator – where to place Reform
• [6:43] Arguments, not arguers – the principle of the discussion
• [12:16] Passive omission – halakhic meaning
• [20:39] The Reform argument – an additional value
• [25:33] Logical proofs and arguments
• [27:01] The swimsuit and an explanation of women’s disqualification from testimony
• [28:53] Defining “the reason of the verse” and the questions around it
• [31:53] When the reason is written in the Torah – what Maimonides determines
• [33:53] Meiri and the attitude toward gentiles – introduction
• [35:33] Tosafot on selling large animals to gentiles
• [41:20] Meiri: a systematic leniency for all the prohibitions
• [42:50] Meiri and moral flaws as opposed to idolatry
• [48:12] The need for proof in changing Jewish law
• [51:27] Plain-sense conservatism versus midrashic conservatism

Summary

General Overview

The text presents two introductions to the question of how one argues for change in Jewish law: not only is a factual claim needed about changed circumstances, but also a normative assumption explaining that the original law was based on those circumstances; and in addition, a sociological distinction is needed between different ways of being faithful to tradition when reality changes. It develops models of simplistic conservatism, midrashic conservatism, and heresy, and adds a fourth pattern: the Reform position, which recognizes the value of tradition but sets it aside in favor of values external to the Torah, while insisting that the discussion focus on the arguments themselves rather than on the motives of those making them. Later, the example of Meiri regarding gentiles is brought in to show that midrashic conservatism can rely on interpretive reasoning without an explicit anchor in the texts, and that this is where the real argument with the simplistic conservative takes place.

Two Introductions to Changing Jewish Law

The text states that in order to argue for a change in Jewish law, it is not enough to show that the facts have changed—for example, that women were once uneducated and today they are educated. One must explicitly raise the normative assumption that women’s disqualification from testimony stems from their lack of education, because without such an assumption the argument for change is not valid.

The Parable of Those Walking in the Desert and the Basic Types

The text describes a group walking in the desert wearing swimsuits, and when they reach a cold area some put on parkas while others remain in swimsuits. It presents three patterns: a simplistic conservative who clings literally to the actions of the ancestors; a midrashic conservative who interprets the ancestors’ goal as having been a deeper principle, such as adapting to the weather, and therefore changes the action in order to preserve the principle; and a heretic, who changes simply because he feels like it, without explaining any commitment to a principle. It defines the disagreement between the simplistic conservative and the midrashic conservative as being about what exactly is being preserved: the garment itself, or the principle behind it.

Suspicion of Motives and Preference for Discussing Arguments

The text explains that the tendency to see the simplistic conservative as the “real” conservative comes from the fact that he has no obvious interest and therefore seems less suspect, whereas with the midrashic conservative it is easy to suspect that he is using midrash as a fig leaf. It states that the author wants to discuss arguments and not the arguers, and therefore the speaker’s motives are irrelevant to the question of whether the argument is valid, even if they may be relevant to questions of trust in public debate. He argues that even if one could suspect him personally, that is no reason not to examine his approach, because otherwise no decision could ever be reached.

Passive Omission Is Preferable? And the Costs of Non-Decision

The text rejects the assumption that passive omission is always “the safe route,” because in many situations there are costs on both sides. It presents the point that when disqualifying women from testimony leaves stolen money in the hands of a thief, or prevents punishment or justice in serious cases, then refraining from a decision also carries a cost. It distinguishes between the halakhic use of the concept of passive omission and a value-based use in which one prefers that a harmful act not be done actively by one’s own hands but rather occur through inaction, when the doubt is balanced and harms exist on both sides.

The Place of the Innovator and the Reformer, and a Fourth Pattern of Argument

The text wonders where to place the “innovator” and accepts the suggestion that there is no fourth pattern, but in the end raises a fourth pattern in which the Reformer is committed to tradition, though not in a total way. It presents the Reform view as seeing the preservation of the ancestors’ practices as a great value, but one that is overridden by stronger conflicting values, especially values outside the Torah, such as equality for women. It emphasizes that the Reform argument is not an attempt to show that the Torah intended change, but rather a decision that it is preferable to be enlightened even if the Torah does not require it, and it distinguishes between extra-halakhic values that originate in the will of God and extra-Torah values that come “from completely outside.”

Essential Divisions Versus Sociological Divisions

The text argues that the essential categories are four: heretic, Reformer, midrashic conservative, and simplistic conservative, whereas the distinctions between Modern Orthodox, Conservative, and Reform are mainly sociological distinctions of degree. It states that Reform thinkers can also use conservative arguments, such as sources from the sages and Tosafot that validate a woman for judgeship, but the essential Reform argument is the one that decides in favor of an external value such as equality for women.

Midrashic Conservatism, Historical Error, and Speculation

The text identifies within midrashic conservatism a further claim: that our ancestors acted based on what they knew, and if they had known that reality was different they would have ruled differently; this is defined as midrashic conservatism in the strictest sense. It presents a difficulty: there is no certainty as to what the real reason for a law was, and logical proofs can be valid while the premises and conclusions are false, or invalid while the statements themselves are true. It emphasizes that clinging to the plain sense is also a kind of guess about the meaning of the practice, and therefore the question is what is more reasonable when there is no evidence to the contrary: to accept the plausible logic, or to reject it because of the possibility of some hidden reason.

Maimonides on the Reasons for the Commandments and “the reason of the verse”

Maimonides, in the Guide, is presented as arguing that anyone who says the commandments have no reasons diminishes the Holy One, blessed be He, because he portrays Him as acting without logic, whereas human beings act with logic. The text asks how far one goes in deriving law from “the reason of the verse” and brings an example from Rif at the beginning of Bava Kamma regarding the exemption of tooth and foot damage in the public domain, which is connected to the reason that there is permission to walk there, and compares this to the question of how one extends the law from an “ox” to a dog that bites. It presents “the illusion of Brisk,” according to which it is impossible to ask “what” without also asking “why,” and proposes in the name of Maimonides an interpretation according to which one does not derive law from “the reason of the verse” because when one follows the legal definition, the result will in any case fit the reason; and if the reason leads to a different result, that is a sign that the reason has been misunderstood. It brings the dispute in tractate Sanhedrin over “he shall not multiply wives for himself, lest his heart turn away,” and argues that according to Maimonides there is an anonymous first opinion according to which one does not derive law from “the reason of the verse” even when the reason is written explicitly, and Nachmanides does not understand Maimonides’ ruling.

Tosafot on Selling Large Animals, Interest, and Adapting to Circumstances

Tosafot in Avodah Zarah 15a are presented as justifying the custom of selling large animals to a gentile despite the Mishnah’s prohibition, on the assumption that if people practiced this custom, there must be some basis for it, and one must clarify how it accords with the law. Tosafot explain that in the past the Jewish people were concentrated in one place, so it was possible to make a living through trade with Jews alone; but after dispersion into small communities within a gentile environment, not selling to gentiles could lead to starvation, and so the sages did not enact their decree for a situation in which survival was impossible. The text notes that Tosafot repeat a similar move regarding interest to gentiles as well, and mentions a book by Haym Soloveitchik, Jewish Law, Economy, and Self-Image, which describes the development of laws as a response to circumstances, and adds that in the Shulchan Arukh no trace remains of that halakhic history—only of the laws that remained eternal. As an example, it mentions the question of applying the prohibition nowadays when one can “manage somehow,” and compares this to discussion of the Rema concerning sleeping in the sukkah as a simplistic-conservative claim that continues “in his path” even when circumstances have changed.

Meiri on Gentiles “Bound by the Norms of the Nations”

Meiri, Rabbi Menachem Meiri, is presented as holding a systematic thesis according to which harsh laws stated regarding gentiles do not apply to the Christians and gentiles of his time, because they are “bound by the norms of the nations.” The text emphasizes that Meiri applies this not only to rabbinic law but even to Torah-level law, and sees this as a serious position rather than an excuse for censorship, while mentioning an article in Sefunot I by Avner Hai-Am that argues otherwise. It rejects the common interpretation that Meiri thought Christians were not idolaters, and brings proof that he prohibits Christian ritual objects and does not declare that he disputes Maimonides, who considers Christians idolaters; therefore, Meiri is speaking about enlightened idolaters, where the central problem among the ancients was also the moral corruption that accompanied idolatry.

The Absence of Explicit “Midrash” and the Novelty About the Nature of Midrashic Conservatism

The text returns to the logical introduction and argues that in order to justify change, one must show that the prohibitions regarding gentiles stemmed from moral disgrace and not from the mere fact of idolatry itself; but Meiri does not bring explicit proof for this, nor does he provide “midrash” in the sense of a written textual anchor. It concludes that the dispute between the simplistic conservative and the midrashic conservative takes place דווקא precisely where there is no explicit hint, because if there were a clear anchor, even the simplistic conservative would agree. It defines the midrashic conservative as allowing himself to interpret on the basis of reasoning, to derive “the reason of the verse” from logic where there is no evidence to the contrary, and to draw practical conclusions from that, while emphasizing that this is different from the Reformer, who admits that the law stands but sets it aside in favor of an external value.

Okay. Last time we talked a bit about changes in Jewish law, and what we basically saw there—I haven’t finished that topic yet—we basically noted two introductions there. One was a logical introduction, which says that in order to make an argument for changing Jewish law, it’s not enough to bring the factual premises—that once women were uneducated and today they are educated, and therefore, say, women should now be validated as witnesses. That’s not enough. We also have to bring out into the open the normative premise that says that the disqualification of women as witnesses was because they were uneducated, or because of the fact that they were uneducated. Without that, the argument for changing Jewish law won’t be valid. That was the first introduction. The second introduction was a sociological one, where we talked about those people walking in the desert in swimsuits, and we talked about the fact that there are really several—I already don’t remember how far we got and exactly what we did there, so I’ll just briefly repeat it.

A group is walking in the desert in swimsuits, and their ancestors also walked in swimsuits. Little by little they start getting into a colder region. Some put on parkas and some stay in swimsuits. Those who stay in swimsuits claim the crown of conservatism. They say: we’re conservatives, preserving the tradition of our ancestors. Just as our ancestors walked in swimsuits, so do we. The second group puts on parkas and says one of two things: either, with all due respect to our ancestors, we’re cold—that’s one argument. The second claim, made by another subgroup, is: no, we are the true conservatives, because just as our ancestors wore clothing suited to the weather, so do we wear clothing suited to the weather. In fact there are three patterns here for relating to changing circumstances. We called them the simplistic conservative—we already called them that, right? The simplistic conservative, the midrashic conservative, and the heretic.

Now, the simplistic conservative is the one who takes it literally. They walked in swimsuits—without interpretations. They walked in swimsuits, so I walk in swimsuits. Women were disqualified as witnesses; they’re women; therefore women today are also disqualified as witnesses. Yes, that’s conservatism in the simple sense—not the simple sense of Jewish law, but the simple sense of the concept of conservatism. The second model—or actually the third in the previous description—those who put on parkas in order to continue the tradition of their ancestors, are midrashic conservatives. Meaning, they too claim they are conservatives; they are not heretics. They are committed to the tradition of their ancestors. Only what? They claim that true preservation of the ancestral tradition can happen only if I adapt myself to the weather, just as my ancestors adapted themselves to the weather. What does that mean? That they are just as conservative as the first group; the dispute between them is over the question of what exactly is being preserved. Is the principle being preserved that you must walk in a swimsuit, or is the principle being preserved that you must wear clothing suited to the weather?

Now, the fact that they walked in swimsuits is a fact; that’s the plain meaning. That’s what is explicitly written. That’s why I call someone who interprets the tradition that way a simplistic conservative. The midrashic conservative makes an interpretation. He says: true, they walked in swimsuits, and I ask myself why they walked in swimsuits. Apparently because they wanted to wear clothing suited to the weather. So if that’s the case, then in fact there is no principle that one must walk in swimsuits; there is a principle that one must wear clothing suited to the weather, and that is what I preserve with great strictness. So I am a midrashic conservative, and the difference between me and the simplistic conservative is that the principle I preserve emerges through interpretation. I need to understand a rationale, by way of interpretation, that explains why I am changing the behavior in its plain sense. Yes, after all I am switching out of the swimsuit—it’s positive action, not passive omission. So why am I putting on a parka and not continuing in a swimsuit? I bring an interpretation to explain it.

By contrast, the heretic doesn’t need to bring any interpretation. He simply says: I’m changing it because I feel like changing it. So in that sense he resembles the midrashic conservative, but he doesn’t resemble him in the ideology behind the behavior. He resembles him in behavior, but not in the ideology behind the behavior, because he doesn’t bother to bring an interpretation that justifies his behavior. He does not feel committed at all to principles to which he has to explain the fit of his behavior. He doesn’t need to explain anything. So those are three initial models.

When I thought about these models, I was really thinking about them in the context of the reformist—or Reform—the innovator. Where would we place the innovator? Which model fits the innovator? We haven’t talked about that yet, or did we already talk about that too? I don’t remember anymore. Where would we place the innovator? What do you say?

I’ll formulate it—actually, let me formulate, let’s start with one more sentence first. Why is the initial tendency really to see the simple conservative as the true conservative, and not the midrashic conservative? What? Because he has no interest. Yes, we talked about that, right? Because he has no interest. Meaning, it’s pretty clear that he’s doing something on the altar of commitment to principles and not because it’s convenient for him. The second one may claim he is faithful to principles, but really it could be that he is simply using that as a fig leaf to do what he feels like doing. Therefore we always have some suspicion toward the midrashic conservative that he isn’t really conservative; he’s only using a conservative cloak, but really he’s a heretic.

But here I think I already said that I want to discuss arguments, not arguers. Meaning, without suspicions—let’s discuss the arguments themselves. The argument of the midrashic conservative is a thoroughly conservative argument. That’s clear. Whether the person making it is making it seriously or not—well, maybe I suspect the person making it. But that’s not important, because I’m not here to judge him. I’m here to ask myself whether the argument he is making is correct or not. So as far as I’m concerned, I need to examine the argument. What do I care about the motives of the person making it? There’s no point relating to the person; I want to relate to what he is claiming. That can be relevant in determining one’s stance toward such arguments—meaning, how much one can rely on them. I could say that one can even suspect oneself when making such an argument, for that reason. You can suspect—so what does that mean? Fine, suspect. No, so that can be relevant not to the theoretical argument but to the discussion. I’m saying: as far as I’m concerned, when I want to examine my own path—for I will never say: I’m not examining my own path because I suspect myself that maybe I’ll make a mistake. Maybe I’m mistaken in deciding not to examine my own path? You’ll never get out of that. In the end, whatever you do is some decision that you made. So first you have to decide, and afterward ask yourself whether there is room to suspect this decision-making process, whether it was reliable or not. So I’m talking about the first stage: let’s see how I decide. After that we’ll talk about whether I should suspect myself. Okay?

Good. So we are really talking about the arguments, not the arguers. And if that’s so, motives don’t matter. We are talking about patterns of argument. Okay? So after sharpening that point, let’s say, for example, that someone comes and makes a claim of this sort about validating women as witnesses. The instinct says: that’s Reform. Why does the instinct say that it’s Reform? Seemingly, if he is making the argument I presented before, then this is a thoroughly conservative argument. He’s not Reform, he’s not a heretic, he’s nothing of the sort. It’s a thoroughly conservative argument. So part of the issue really is some suspicion regarding the person making the claim, not the claim itself. The claim has to be checked; I don’t know. But why are you making this claim? I have a suspicion that you’re making it because you’re looking for ways that are more convenient for you, for one reason or another. But again—that’s relating to the person making the claim. But when I ask myself whether I agree or disagree with this argument, that is irrelevant, because I need to ask myself whether this argument is correct or not, and in principle it can be valid according to Jewish law. You have to check whether it’s right or not.

Now, one has to remember very well that this kind of argument—there is often a tendency to think that passive omission is preferable. Meaning, if we don’t know—and I think we talked a bit about this, right?—that passive omission is preferable. That if we don’t know anything, then fine, it’s better to leave the situation as it is. That’s called playing it safe. But that really is not playing it safe. This is a problem in which there are costs on both sides. There is no path without costs. Sometimes there are situations where passive omission is preferable—namely when passive omission has no cost; you only lose a benefit. But there’s no cost. Fine, at most I lost a benefit, but at least I didn’t fail. But in dilemmas where both sides have costs—not only am I losing benefit—the solution of passive omission is not preferable.

What happens here? Beyond the question of equality for women—fine, so maybe… okay, so maybe the women can restrain themselves. There’s no benefit here, but maybe that’s also not called damage. Could be. But what about my money? Two women come and testify that so-and-so stole money from me. To disqualify them as witnesses means leaving the stolen money in his hands and leaving me without my money. Right? That’s what it means to disqualify them as witnesses. And what about relatives? Relatives, yes, same thing. We talked about conspiring witnesses and relatives, right? Maybe there really is a reason women cannot testify. Maybe the money really wasn’t stolen. No, but I’m only saying that if that reason is not correct. The question is whether to go and examine the matter, or say passive omission is preferable. What does it mean, passive omission is preferable? If there really is a reason for the matter, then certainly fine, no problem. My problem is what happens if the disqualification of women today is not correct. Then there is a cost. You are leaving stolen money in the hands of that person, you are not executing a murderer, or I don’t know, you are executing conspirators—all the examples you can bring. There are very heavy costs here. You can’t say there is one side without costs and one side with costs, so passive omission is preferable. Yes.

I think there’s also something else that wasn’t mentioned—another reason why apparently it is easier to think that the literal conservative is conservative, and not only because of the issue of interest. It’s also because it’s more speculative. Meaning, the thing visible to the eye, in the practical world, is ultimately a fact. Why? I don’t know why the Torah disqualified it, but I know that it did disqualify—that women should not testify. But here, the interpreter bears the burden of proof. Meaning, that’s the claim. Yes, it’s something more speculative. That’s one thing. And another thing: even the statement that passive omission is preferable—I don’t think it’s necessarily because when you refrain from acting there will be less damage. That’s not always so. I think, on the contrary, when the doubt is perfectly balanced, and on each side there is damage and there is benefit, people say it is preferable that the damage happen through omission rather than through action.

You have to distinguish here between the concept of passive omission is preferable in its halakhic meaning, and the concept of passive omission is preferable in value-based decisions. But I think in the halakhic sense it could be that—only in the halakhic sense. In the halakhic sense you’re right. Today, in the sense in which people use it in this context—why would someone tell me, look, passive omission is preferable; you don’t know, passive omission is preferable? He says passive omission is preferable because he is probably assuming: okay, at worst we disqualified women as witnesses, but to do something against the Torah? What is worse, Heaven forbid—to kill someone, or not to prevent someone from being killed? From a halakhic perspective. From a value perspective. Obviously to kill. I performed an act. Unless by leaving him alive—the one you didn’t kill—you leave him as a potential murderer, and then in potential you killed many others. Not exactly like that, because here the doubt is not balanced, since it’s one against many. I’m talking about a case where the doubt is perfectly balanced. No, it doesn’t matter. I’m saying even if the doubt is balanced—but even if you leave him alive he might kill, or maybe even probably will kill. So what? That would happen through my omission, not through my action.

All right, but still, you know, it’s like killing indirectly. Meaning, if possible, then don’t kill indirectly. What could happen? If you sell the knife to a non-Jew. That’s not killing indirectly; that’s failing to prevent. Now, I’m not saying that failing to prevent killing is a good thing—obviously it’s a very bad thing—but when there is a fifty percent chance that I will prevent a killing and a fifty percent chance that I will kill with my own hands, versus a fifty percent chance that I won’t succeed in preventing it but in any case I won’t kill with my own hands, and it’s exactly fifty-fifty—clearly, even from a value standpoint, I think everyone, and this is not a halakhic statement at all, it’s a simple value statement for any rational person—could be. I’m willing to accept that at least in some cases that’s so. I’m talking about passive omission in the second sense, in short. The passive omission that says: yes, at most we’ll lose a gain, but we won’t bring about damage. That’s a somewhat different meaning of passive omission than the standard meaning. And what about the condition of testimony? Isn’t that similar to what you said about preventing a murder? That’s why I’m saying, and there I’m talking about passive omission in that sense.

Okay. So we were at the question: where do we place the reformist? The innovator. Is there some intermediate model, or maybe it’s one of these three models? Whom would you call an innovator? Let’s go back to the High Court for simplicity’s sake. What are the three—an innovator, what kind? Reform, what we would call today in common language—what would he say in this case? A fourth model. What? Freedom. He says, gentlemen intended that even if we put on swimsuits because it’s not—he says an interpretation, he says the Torah intended. So that’s the heretic. What? That’s the heretic. I’m talking about the reformist. He doesn’t say what the rabbis said, he says the rabbis intended that whoever did what I’m doing is correct. Fine, so he’s a midrashic conservative. He claims he’s a midrashic conservative; in practice he’s a heretic. It doesn’t matter. No—again, I’m talking about arguments. I’m talking about arguments, not arguers. Let’s take this one by one. What a person does. An explanation at the personal level, an explanation at the level of whoever did it. I’m talking about the arguments, the pattern of argument right now. Yes, what is the pattern of argument? He doesn’t say the rabbis went with what was comfortable for them and therefore there is Torah and here is the real Torah because what’s comfortable for me. Rather? He says the rabbis didn’t mean—the Torah doesn’t mean exactly what it says; it evolves. It’s not that it evolves; what it said is actually what it said. So that is still a midrashic conservative. What? So that is still a midrashic conservative because he claims that he is doing what the Torah intended. It doesn’t matter right now—there can be many kinds of interpreters—but bottom line he brings some kind of interpretation. He says the Torah told us it is forbidden to use wine, and now we want people to use wine, so we’ll tweak the Torah a little so that it fits what we want. And you’re not claiming you are continuing the Torah, so how is that different from the heretic? The Torah didn’t tell us to continue—that’s what I said. So we’re back to before—so, midrashic conservative.

The question is whether there is—look, the feeling, in short… logically there can’t be a fourth category. No, there is, someone with a different stance. Meaning, logically there can’t be a fourth category. That’s what you’re saying. All right. No, that’s what follows from your claims. Maybe—we’ll see in a moment. Yes. The reformist is more accurately claiming that there is an additional value that outweighs this one. Ah. There’s a logical fourth example. Meaning, because this really bothered me for a long time. First of all, before getting into the map of Orthodox, Reform, heretics, and so on, we need to define the basic patterns of argument and leave all suspicions aside. Let’s see what principled approaches there can be. Afterward we can bring in fortune-tellers who will explain to us which approach each person really holds—not what he says, but what he really means. But first let’s talk about the arguments themselves. What patterns of argument are there at all?

After all, the Reform type is something strange. On the one hand, he has commitment to the system; he is not a heretic. He does in some sense feel committed to the system; in some sense he is religious. Again, I’m not talking about the sociological Reform type, but the principled, essential Reform type. On the other hand, the fact is that he allows himself, apparently, not to behave entirely according to the system. In that sense he is not conservative, and probably not even a midrashic conservative, because otherwise we’ve reduced Reform to modern Orthodoxy. Sometimes maybe that’s true—but again, about arguers, not arguments. At the level of patterns of argument, that’s not true.

So the question is: where does a fourth type of argument sit, one that does not fall into either this or that, but is something in between? And here it seems to me that really the only possible answer is what he said before. The Reform position claims that this is suspended, not permitted. The Reform person says the following: there is value in preserving what our ancestors did. That is very important; it has great value; I try very hard to do that. But there are situations in which there are conflicting values that override that value and displace it. Therefore, although I am committed—and so if there were not at least a sufficiently strong value to displace it, I would go with you conservatives and continue it, and maybe even like the simplistic conservative, because otherwise why would he need a Reform argument? He could wear a parka based on the argument of the midrashic conservative.

Meaning, absurd as it sounds, his interpretation of the deeds of his ancestors is actually the interpretation of the simplistic conservative. Right? He is basically claiming that if you want to be conservative, you should not wear a parka. He just says: I am not conservative. Why? Because I think there are other values besides the value of commitment to the deeds of my ancestors, and they can override that commitment. I do have that commitment to some extent, but it is not total. It is not total; it has a certain strength, and it is displaced by other commitments. The simplistic conservative also has values that override. Within the system, but not outside it. They themselves are part of that same commitment. I’m talking, you know, in—does the Torah recognize those other values or not? No, it doesn’t recognize them; it says them. It doesn’t recognize them; it… they’re part of it too. Fine, but everyone agrees that saving life overrides. Fine, that’s not Reform; there are just a few more things. That’s all. That’s why I say this is not Reform. I’m talking about a situation in which you take values that are outside the system. There is no equality of women in the Torah. There is no value of equality of women. But I, as a cultured person living in our environment, believe that a woman ought to be equal to a man. Okay? Now I also feel committed to the deeds of my ancestors—I’m not a heretic, I think… it’s important to me to continue the deeds of my ancestors. So I’m in conflict. Since I’m in conflict, I resolve it sometimes one way, sometimes the other, depending on the strength of each side. Sometimes it will happen that the external value overcomes the internal value, and therefore I will change it. Not because the Torah wants that from me, but because in this case it is more important to me to be enlightened than to be aligned with the Torah.

Rabbi, wouldn’t the Reform people say that this is a value of the Torah? Again, you’re talking to me about sociological Reform people—they’ll give you every argument in the book. And Orthodox people too, by the way, will give you every argument in the book. But I’m talking about Reform arguments, not Reform arguers. What is an argument that I would call a Reform argument? When a Reform person comes and tells me, listen, we need to validate women as witnesses—you can already see it in the texts—they have all sorts of arguments. Some of the arguments are arguments of midrashic conservatism. Some are that they bring examples from the Sages themselves who validated it, and they rule like them even though later Jewish law developed otherwise. But they rule like them. There are examples of that too. At least for serving as a judge—after all, Tosafot validates a woman for serving as a judge. Those are conservative arguments. They are not Reform arguments. But they bring them. In books by Reform writers you can also find those arguments.

And then there is an argument that says: okay, fine, but equality for women is very important. As far as I’m concerned, only that argument is a Reform argument. They themselves admit that. It doesn’t matter right now; I’m not talking about the people at all, I’m talking about the arguments. So is all this only at the substantive level, or also at the level of Jewish law? Meaning, every such claim is only at the level of Jewish law, saying: within the framework of the Torah, as I understand the Torah, I will remain conservative in that sense. Meaning, I understand that the Torah will not obligate me in the halakhic system right now. The halakhic system obligates me in A. But I think the value of being enlightened, as against the halakhic system, is greater, and that is how I understand the Torah. Meaning, I do remain conservative with respect to the Torah, but the Reformist… Here you are distinguishing between two types of values, and we’ll get to that later—I don’t know when, we’ll see. There is a value that is extra-halakhic, and there is a value that is extra-Torah, completely outside the Torah. Outside the will of God, let’s put it that way. There is a value that comes from the will of God, but is extra-halakhic; it belongs to the fifth section of the Shulchan Arukh. Here there is another place to discuss that, and that is not the question I’m addressing right now. I’m talking about values that come entirely from outside. This is not the will of God, but I feel committed to it too.

Rabbi, are the arguments we are presenting as Reform arguments not really Conservative arguments? And the Reform arguments are more in the style of: I don’t really honor the source of this thing… it matters less to me. There are Reformists you could place entirely in modern Orthodoxy. And there are Conservatives… these divisions are sociological; they are not… the substantive divisions are four categories. That seems to me to be all there is; I can’t think of another category. There is the heretic, the Reformist, the midrashic conservative, and the simplistic conservative. That’s it.

Now, in the sociological categories, it’s simply a matter of dosage. The modern Orthodox person has many more arguments of midrashic conservatism than the non-modern Orthodox person. Okay? By contrast, the Reform person has not only that; he also has arguments of a midrashic conservative, but he also has Reform arguments. The modern Orthodox person is not supposed to have Reform arguments. Okay? The Conservative Jew is somewhere in the middle—more of this, less of that. But that is merely a sociological division and not a substantive division. Isn’t the Reform argument really a heretical argument? Like, I still want to hold on to some of the arguments or some of the deeds of my ancestors… You can call it that. It doesn’t matter. In the eyes of the conservative, of course that is called heresy. To believe that there is something outside the Torah is a kind of heresy in the eyes of the conservative. But still, you can’t say that he doesn’t accept the Torah, that he is not loyal to the Holy One, blessed be He. All that is true—just not completely. He also has other things, and they can perhaps override those loyalties. In that sense he is not like the heretic. Obviously, whoever disqualifies him puts him in the same basket as the heretic. Fine. Because everyone who is not me is not me. Just as every country is the Diaspora, but that doesn’t mean Belgium is Holland.

Rabbi, I feel there may be another argument within midrashic conservatism. It says not that our ancestors made a mistake, but that our ancestors acted according to what they knew, for example. If they had known that reality had changed here or there, they themselves would have acted differently. A thoroughly conservative argument. What’s the problem with that? Yes, I’m just saying it’s not against our ancestors… It’s the same thing, but why is it different? It’s an argument of midrashic conservatism. Midrashic conservatism says: they did this in light of that reality… if the reality had been different they would have done… Right. I say this in terms of error, but what difference does it make? It’s still midrashic conservatism. They did it because in their circumstances they thought the earth was square, but really it is round, and therefore the Jewish law has to be changed. And indeed that is what should be done.

So suppose it’s not Torah-level, but how can we decide something, interpret something, and determine that the whole prohibition was for this reason and that reason, and today we recognize that it no longer applies? Who said that’s so? And who said it’s not? On the other hand, many times you know there are dazzling logical proofs. But purifying the creeping thing always means that you know what is right and what is not. The fact that you have a proof still doesn’t mean it’s true. Sometimes there is an excellent logical proof for things that are not true. And anyone can recognize in a logical proof whatever he wants. There is a valid logical proof all of whose premises and conclusions are false. And there is an invalid logical proof all of whose premises and conclusions are true. All frogs are red. This table is a frog, therefore this table is red. That is a valid argument, though none of the sentences involved in it is true—not the premises and not the conclusion. Okay?

There is also the case of an invalid argument whose premises are true and whose conclusion is also true, but there is no connection. All tables are used for—I don’t know what—on top of them and not underneath them. This thing is a table, therefore it is permitted to write on this thing, or possible to write on it. Everything is true, but it doesn’t follow from the premises. The argument is invalid, but the statements are true. So then who says what the real reason was that holiness had in this? You don’t know. You can try to understand, and only if you try will you be able to. Right? But we are all guessing. Even if you don’t do that, you’re still only guessing. What am I guessing? What am I guessing? Because you are guessing that they walk in swimsuits with no connection to the weather. How do you know? Maybe it is because of the weather? That I maybe believe in them that they were smarter than they were. They were very smart, so they walked in a way suited to the weather. So they were connected to their reality, and wore clothing suited to the weather. What, is it forbidden to do something comfortable, pleasant, and nice? And it’s not a decree. They said one should wear this kind of clothing because in this weather one should wear this kind of clothing. It’s not a decree—you could get sick from wearing a parka in hot weather. But the example is of a swimsuit and hot weather. Obviously in the internal issue we are talking, say, about disqualifying women as witnesses. But there were also women who were wise. So maybe, and perhaps indeed there was room to validate those women, but the Torah spoke in general terms and not about every single case. And can’t you say that Deborah could testify? No, because they didn’t want distinctions. Maybe the Torah adopts a no-distinctions rule at the Torah level. No, the Torah speaks generally. But today the general case has changed, not the individual case. Just as a side point.

Maimonides writes—I brought this Maimonides in the Guide; you surely know it better than I do, I don’t know the Guide—Maimonides writes there that there are those who say that commandments have no reasons, and they think that by that they greatly magnify the Holy One, blessed be He, because they say the commandments have no reasons. But what they are really doing is making Him smaller than human beings. Human beings act with logic, and the Holy One, blessed be He, acts without logic. So they diminish Him, right? In fact what are we saying? Our ancestors disqualified women. Why? Or walked in swimsuits. Why? Just because they were idiots. Fine, so we too will continue being idiots because our ancestors were also idiots. That is the more literalist interpretation. The more innovative interpretation is to say that our ancestors were normal people who acted according to reason, and if they disqualified a woman it was apparently because she really was disqualified and her testimony was not reliable. Therefore if today the testimony is reliable, why leave stolen money in the hands of the oppressor?

Rabbi, but there is a third possibility. One could claim that our ancestors disqualified women because there is a hidden reason. Fine, obviously I’m presenting it in absurd terms. I’m only saying that one cannot say that it is automatically clear that this interpretation—that this reason—is incorrect. After all, if there is a reason that I understand, and you have no evidence that the reason is not correct—you just don’t know that it is correct—then what is more likely between you? To say that it derives from the same reason that we all understand it derives from, or to say no, not at all—you only imagine that it is for that reason. The truth is that it is because of an entirely different reason. So how do we interpret the reason of the verse? What? Ah, that’s a good question. That’s a good question. I don’t know how to answer it right now—not now and also not later. But no one knows how to answer it for me. We do this all the time, and the question is always asked: so what do we do with the reason of the verse?

There is the well-known Maharsha on the Rif at the beginning of tractate Bava Kamma—exemption for damage by tooth and foot in the public domain. Right? The Rif says there—and everyone follows him—that it is because everyone has permission to walk there. That’s the reason of the verse. And from that they infer some conclusion as well, that if you enter a courtyard that you have permission to enter, perhaps you will also be exempt—a courtyard shared by the damager and the damaged party—you will also be exempt. That’s the reason of the verse. The Torah wrote “public domain.” How do you derive that? What do you mean? If I see that this is the logic of the matter. The Torah says, “If a man’s ox gores his neighbor’s ox,” he has to pay. And what about a dog that bites his neighbor’s ox? He also has to pay. I don’t know, I don’t interpret the reason of the verse. The Torah said ox; I don’t know anything. I assume that the basic things I understand are probably what the Torah means, unless there is evidence otherwise. And if I have evidence otherwise, fine. I am not enslaved to my logic. But I don’t want to dismiss my logic out of hand if it seems reasonable to me and there is no evidence against it.

Now the question of how far to go with this is a question for which I have no answer. I have no answer to it. Where is the line between the definition and the reason? That is really the hard question. Meaning, why don’t we interpret the reason of the verse, but we do follow the textual definition? After all, there is no definition without a reason. There’s no such thing; it’s an illusion. The Brisker illusion that we only ask the “what” and not the “why.” You can’t ask the “what” without the “why.” How do you know how to answer the “what” if you don’t understand why? After all, it says, “If a man’s ox gores his neighbor’s ox.” I’m only asking the “what.” Okay, what? Who—who counts as an ox? What has to happen for me to have to pay? Yes, that is the Brisker question. Okay, and what is the Brisker answer? An ox that gored the other ox. And a dog that bites the other ox? I don’t know. I’m asking the “what,” I don’t know anything. I don’t know why, I don’t know anything—I’m asking the “what.” How can you ask the “what”? You need to understand the idea written in the Torah, and what is written is that one has to pay because you are responsible for your property, so because of that it’s obvious that with a dog too it will be the same. Brisk, of course, calls that asking the “what,” not the “why.” They too agree that if a dog bites you have to pay. Right, but that’s the “what,” not the “why.” Why? Then they’ll immediately give you the automatic yeshiva answer: that’s a definition, not a reason. And what is a definition and not a reason? But it is based on understanding what the Torah means. Isn’t a definition called a reason? So what is? Where is the line? What is reason and what is not reason? It isn’t clear.

Maimonides, by the way, has a simple solution to this, and maybe this is one of the—I don’t know whether this is among the next topics we are supposed to discuss—reasons for commandments, reason of the verse; there is something like that on the list. It seems to me that Maimonides says that we do not interpret the reason of the verse because we do not need to. We don’t need to interpret the reason of the verse, because it always comes out the same as the plain meaning; that’s why we don’t interpret the reason of the verse. And then that solves everything, and there is evidence that this is indeed what Maimonides says. Where is the evidence? Fine, we’ll continue that later.

What happens where the reason is written in the Torah itself? “He shall not have too many wives, lest his heart turn away,” okay, regarding a king. So then what? Do we interpret the reason of the verse or not? Maimonides rules that we do not. It’s a dispute in the Mishnah in tractate Sanhedrin, a dispute between Rabbi Yehuda and Rabbi Shimon, who of course reverse the directions there because the reason is explicitly written there. But Maimonides has a very interesting innovation. There isn’t only Rabbi Yehuda and Rabbi Shimon there; there is also an anonymous first opinion. And not only is there an anonymous first opinion there—he rules like it. Nachmanides doesn’t see any anonymous first opinion there at all; he doesn’t understand what Maimonides wants. It is neither like Rabbi Yehuda nor like Rabbi Shimon. But Maimonides rules like the anonymous first opinion. And that anonymous first opinion says that we do not interpret the reason of the verse even when it is written explicitly. Why? If it is written explicitly, what is the concern about error? Maimonides says that we do not interpret the reason of the verse because, simply, it does not come out right; therefore we don’t interpret the reason of the verse. Because in the end, if you follow the definition, it will also fit the reason. And if the reason gives you a different result, then you made a mistake about the reason. That’s why we don’t interpret the reason of the verse. Meaning, if the Torah’s reason contradicts the defined contour of the commandment, then clearly you made a mistake about the reason. Fine, okay, we won’t overanalyze that too much.

In short, if you bring in the reason of the verse, one can object to the rule and say this is a decree not based on reason. That’s in decrees; it’s not connected to Torah-level law. Also with decrees there is a dispute about this—Maimonides and the Raavad and so on. Fine. So those are the four types. Now I just—I see I won’t get through much more—I just want to finish this point. What I want to do now is look at the position of Meiri regarding gentiles—the attitude toward gentiles—which is an example of change in Jewish law, and through that to see another point that perhaps until now we haven’t noticed, or I haven’t drawn your attention to, and I think it’s a very important point.

The discussion I’m going to do now in the next ten minutes is a discussion that concerns the first three types, not the Reform one. Meaning, the relationship between simplistic conservatism, midrashic conservatism, and heresy. The issue of Reform and commitment to values outside the will of God and outside the Torah—we’ll talk about that next time. I probably won’t have time to get to that today.

All right. So the famous Meiri, Rabbi Menachem Meiri, has a very famous thesis about the attitude toward gentiles. Usually we know the attitude toward idolaters as a harsh one—let’s put it that way, as an understatement. Usually there is also some contempt toward them. It is seen as something morally corrupt, and therefore the Sages greatly denounced them and also imposed on us—not only the Sages, the Torah too imposed on us—all sorts of obligations or prohibitions regarding gentiles. You may not return their lost objects. According to Maimonides at least, it is a commandment to lend to them with interest. Seizing repayment of their loan is not forbidden. In short, you can do almost whatever you want to them. Kill them only if no one sees.

Meiri systematically claims that for the Christians, for the gentiles who lived in his time and around him, these laws do not apply. Now we also find examples like this among other medieval authorities. For example, there is Tosafot in tractate Avodah Zarah on page 15. Tosafot discuss selling large livestock to a gentile. That sale is forbidden according to the Mishnah at the beginning of Avodah Zarah. But Tosafot say: yet in our time, after all, people do sell to gentiles. So what do we do? How does that fit with the Mishnah? Now once upon a time—well, not once upon a time, today if something like that happened immediately broadsides would come out against all the sinners who sell large livestock to Christians or gentiles. But Tosafot said: no, if people are doing it, then apparently there is some basis. And if there is some basis, then we have to check how it fits with the Mishnah’s law.

So Tosafot there give a very interesting argument, actually connected to what Yoni said before, to midrashic conservatism of the second type. Tosafot basically say that today it is impossible to live by this. It is impossible to make a living. What is the point? Tosafot repeat this in the chapter “Which Is Interest” as well, the same thing regarding interest taken from gentiles. Tosafot say that in the past, when the Sages were acting, it was either in the Land of Israel or in Babylonia. In both of those periods, the Jewish people were still concentrated in one place. Even when they were exiled in Babylonia, still the whole people more or less was in one place, with some governmental authority, with judicial autonomy, the Exilarch and so on—even not only judicial but to some degree political as well. Therefore they still functioned as a people functioning as one society. What happens in that kind of situation? You have the option of trading only with Jews. You can make a living, so it is forbidden to sell to gentiles, only to Jews. So we’ll sell to Jews—what’s the problem? Everyone is here; we live among Jews.

What happened in the time of Tosafot, and not long before them? Something beginning, say, around the period of the Rif, or a bit before the Rif—Babylonia disperses to the four corners of the earth with that story of the four captives. And then the Jewish people are dispersed, and communities begin to form. There are some very interesting testimonies in responsa literature—I once talked about this in some course I gave here at the institute. What happens then is that communities arise of ten Jews or five Jews or three Jews, or Moshe the Jew sitting there alone in the tavern and everyone around him is gentile. If he doesn’t sell to gentiles, he’ll die of hunger. There’s no one else to sell to; there are no more Jews around us, or at least in many places that’s the situation. If all my livestock has to be sold to Jews—and as is well known, Jewish involvement in agriculture was probably not among the broadest—even if there were a few Jews around, they were surely yeshiva students. So selling them livestock—maybe for the Sabbath, slaughtered and baked in the oven, that would help—but selling them livestock, they won’t have much to do with it. Therefore there is no choice; one cannot live otherwise. So what? Apparently what the Sages forbade was aimed at a period when it was also possible to manage otherwise, but today it isn’t. So the Sages simply never decreed with such a case in mind. An amazing novelty.

Meaning, in a situation—this is a medieval authorities’ answer? That’s what Tosafot say, as far as I know. And is Meiri an alternative to that answer? Yes, an alternative but more sweeping. Meaning, Tosafot say this only in a case where there really is some—right, according to this, the Mishnah’s law was not repealed. Rather, in places where it’s impossible, it’s impossible. The Sages never intended to decree in a situation where one could not live; after all, I would simply end up as a beggar. You have to understand: selling livestock is not—we today also, as is known, generally are not occupied in selling livestock, so this looks simple to us, some issue affecting three Jews. But those three Jews will die of hunger because of this issue. Meaning, this is not a simple matter; it is truly real distress. So who said the Sages ever decreed with such a case in mind? That is an argument that certainly sounds reasonable, not far-fetched.

The same goes for lending with interest. And there is a book by Haym Soloveitchik that traces the development of the prohibition of interest to gentiles throughout the generations, and he shows something amazing there. It’s a fascinating book—about Jewish law and economics—no, “Jewish Law, Economics, and Self-Image.” That’s the title. It was republished some time ago in what is apparently a somewhat more accessible edition. In any case, he argues there that everything developed through responses of decisors to circumstances, very much responses to circumstances. And what’s very interesting is that this whole history leaves no trace in the Shulchan Arukh. What remains in the Shulchan Arukh are only the laws that are truly eternal. All the things that the medieval authorities wrote in responsa, debated, phrased this way and that, permitted here and permitted there—all fine, and that is how most of the world acted—none of that entered the Shulchan Arukh. That’s a very interesting point.

Fine, I don’t remember right now regarding selling large livestock to gentiles what happens in the Shulchan Arukh; one would have to check. So it wouldn’t surprise me if it doesn’t appear there. By “doesn’t appear there” I mean the permission, not the prohibition. In our time according to this, the prohibition applies. If one can manage, then according to this the prohibition applies. Like the comment by the Rema that righteous people say that since they were afraid to sleep in a sukkah, they did not sleep in a sukkah, so today too one who goes with a high hand can of course sleep in his house. Because we continue in the path of the Rema; we are simplistic conservatives. We continue in the path of the Rema and sleep at home. Fine, not exactly; the Rema was talking about what he was talking about. But the earlier example we didn’t mention there, that when they returned to the desert there were people who stayed in the desert. I said: that is the best example to show you that suspicions are not always justified. We always suspect them because it goes in the direction of convenience, but sometimes midrashic conservatism is very inconvenient, and still you think that’s the truth. And if you think that’s the truth, then you’ll make the change. There no one will raise an eyebrow; there everything will be fine, because there they simply don’t suspect you. But the argument is the same argument—either it is correct or it is not correct.

Fine. In short, among the medieval authorities we find in various contexts that when the Jewish people come into distress, different ways are found to permit some of these prohibitions—to lend to a gentile, to sell him large livestock, to rent him a house, all sorts of things of that kind. What is special about Meiri is that his is a systematic permission. In almost dozens of places where such a prohibition is written, Meiri finds it necessary to note that there is no need for all the permissions written by the medieval authorities; it is simply unnecessary. Those permissions—that is, those prohibitions—were not said with respect to the gentiles of our time, because the gentiles of our time are constrained by the norms of civilized nations. Therefore these prohibitions were never said about them at all—even Torah-level prohibitions, not only rabbinic ones. Even Torah-level prohibitions. What? Certainly yes. If he changes the definition of the person, then obviously everything follows from his side. You could say: fine, but I still worry about the other opinion, so at the Torah level I won’t permit it. Many times we find things like that in decisors—one more consideration added to many other considerations. But with Meiri, what I want to show is that this is categorical. This is truly what he thought. And therefore he applied it to rabbinic prohibitions, to Torah prohibitions. These are not excuses for the censor and not all that nonsense that various apologists find it necessary to produce.

There is an article in Sefunot 1 where someone proves with signs and wonders—signs and wonders, Avner Hai-Am—whoever sees the evidence there, he proves that Meiri only means this as something against the censor so they won’t hang him, but really he doesn’t mean it seriously. Meiri means it seriously; there is no doubt about it. There are many indications of that.

Now the question is how to classify such an argument. This argument is seemingly a classic argument of the midrashic conservative. Right? What is Meiri saying? Just like now with women as witnesses. He says all these prohibitions were said regarding the gentiles of their time, who were not constrained by the norms of civilized nations. But the gentiles of our time, who are constrained by the norms of civilized nations—all these prohibitions were never said about them in the first place. I am not changing; this is really what the Torah expects of me. At least it is permitted—not that I am obligated—but there is certainly no prohibition.

I’ll just note parenthetically that usually people learn Meiri to mean that Meiri thinks Christians are not idolaters, and therefore these prohibitions are void regarding them. That cannot be right. It cannot be right for many reasons. One of the reasons is in an article by Yaakov Katz where he wrote about this at length, and he remains unresolved at the end regarding Meiri: why doesn’t Meiri permit Christian ritual objects? Seemingly, if they are not idolaters, then what is the problem? More than that: Meiri forbids Christian ritual objects, and about that he cannot say it refers to the ancient gentiles of distant times—these are ritual objects of Christians, not of others. Wait, what do you mean? Only of Christians. It is clearly drawn from the situation around him. These are ritual objects used by the Christians of his time, not by the idolaters of the ancient Near East.

More than that: Meiri nowhere says that he departs from the path of Maimonides. Maimonides, after all, treats Christians as idolaters. Meiri is famously Maimonidean. Why doesn’t he say at least that he disagrees with Maimonides here? Maimonides said such-and-such, and I disagree. Meiri in all these places gives reasons. What reasons does he give? They are constrained by the norms of civilized nations. So what does my grandmother care whether they are constrained by the norms of civilized nations? They are idolaters who are constrained by civilized norms—so what? They are still idolaters. What is the connection? The question whether they worship idols in their church determines whether they are idolaters, not whether they return lost objects. So why are those reasons relevant to the matter at all? Therefore it is clear that Meiri never dreamed of saying they are not idolaters. Of course they are idolaters according to Meiri—he is talking about the Catholics of his time; today that is an entirely different story. So what then? They are enlightened idolaters. What does that mean? In the time of the Sages, idolaters—idolatry also came with moral corruption. All the biblical and rabbinic descriptions—we know them. When they condemn idolaters, it is not only for worshipping a statue; it is for bloodshed, sexual immorality, adultery, and every other evil thing imaginable, every sort of moral corruption imaginable. Meaning, the problem with idolatry is not only the formal sin of idolatry, that they worship another god. That too—that is of course a problem. But no less serious in the eyes of the Bible and the Sages is the moral corruption that accompanies it.

Meiri says: that moral corruption no longer exists today; they are constrained by the norms of civilized nations. Fine. So reality has changed. But that is not enough, as we said before. We now have to think: why were these prohibitions said regarding gentiles? Was it because of their sin of idolatry, in which case they still apply today because they are still idolaters—in Meiri’s time—or was it because of their moral vileness, which is no longer true today? Now we are waiting for an interpretation. So Meiri provides an interpretation and says it is because of their moral vileness. And therefore today it is void, because today there is no moral vileness. By the way, he follows Maimonides exactly. Maimonides of course does not draw this conclusion, because Maimonides still relates to them as vile, but Maimonides too grounds these transgressions, these prohibitions, in moral vileness, not in the sin of idolatry alone. There is a Mishnah in Bava Kamma and elsewhere.

All right, so now what do we expect from a dear Jew like Meiri, who certainly was not Reform, and not suspect of being Reform? After all, he was one of our own. So what do we expect from him? That he bring an interpretation, right? That he bring us evidence. After all, the argument by itself is not valid. That was the logical introduction. The argument by itself is not valid. The gentiles then were wicked, the gentiles today are righteous, therefore all the prohibitions said regarding the gentiles of then do not exist regarding our gentiles. I’m not talking, of course, about prohibitions of marriage. These are prohibitions that are a sanction for their being idolaters. It is forbidden to marry them even according to Meiri. He makes that clear in more than one place. That is obvious; it needn’t even be said. But the prohibitions that exist only to create some kind of sanction toward them derive from moral vileness, says Meiri.

That is an invalid argument. What needs to be added in order for the argument to be valid? You need to add the normative premise, the proof that all these prohibitions were said regarding gentiles because of their moral vileness, not because they are idolaters. That appears nowhere in Meiri. There is no proof of this anywhere. True, I also don’t know of another proof for it. Meiri is not going against some proof, at least none that I know of, and presumably Meiri didn’t know one either, which is better evidence than me. But Meiri does not bother to bring any proof. Where is the interpretation? What, is he Reform? Maybe, I don’t know. A hint to Reform from the Torah—yes, there is.

Now notice something very carefully. Let’s say Meiri had had evidence from the Torah that these prohibitions were said only regarding idolaters not because of moral vileness, but because of idolatry. Would there have been any conservative in the world who would have argued with him? Let’s say clear evidence, not the kind where there are disputes over the evidence. He brought evidence; there is a verse. The verse says it is because of idolatry, not because of moral vileness. He brought proof, interpreted a verse, no matter by which tools of interpretation. Could be yes, just as with the livestock there are those who said one can rely on the permission that existed… Well, I hope that is only some crazy disease of our generation. I very much hope there were no such lunatics among the medieval authorities. And if there were, then they are not medieval authorities; only historically are they medieval authorities. In terms of thought they are not medieval authorities. Fine. In any case, my claim is the following, and this is what I did not include when I drew the simplistic model.

If this interpretation that I now bring—that they walked in swimsuits only because it suited the weather—really had a significant anchor in the behavior of our ancestors, then even the simplistic conservative would agree. The dispute between the simplistic conservative and the midrashic conservative exists, notice carefully, only where there is no interpretation. I do the interpretation myself. This is not interpretation in the usual sense in which we talk about interpretation. I simply find a hint for it in the text. If I found a hint for it in the text, everyone would agree—or else they would argue over the hint. But assuming that this hint is a correct hint, what conservative would not accept it? Then everyone would understand that when the Torah says to walk in a swimsuit, it is because of the heat, and every conservative would also accept that. When will a dispute arise between the simplistic conservative and the midrashic conservative? When there is no hint to this in the Torah.

So now it is open. If there were evidence against it, and it were clear that the disqualification is not because of that, then there is nothing to discuss. Any conservative would have finished the discussion. But if there is no hint—if there is no hint in the Torah, but there is also no evidence against it—then it remains open. So what now? Now the argument begins. The simplistic conservative says: fine, if there is no proof, passive omission is preferable. I preserve according to the plain meaning. They wore clothes, I too wear clothes. The midrashic conservative says: I too go according to the plain meaning. The plain meaning is that they acted rationally. And since they acted rationally, and I see logic in this, then apparently it is because of that logic. But notice—he is not bringing an interpretation in the sense I usually mean when I say interpretation. He is not bringing proof from verses or from midrashim. That is not the point. He is doing the interpretation himself, from his own reasoning. He simply says: ah, it sounds reasonable to me that it is because of this. And if it is because of this, then it can be changed.

How is that different from the Reform person? It is not that the Reform person gives an interpretation without proof. The Reform person does not give an interpretation. The Reform person says: you’re right, the Torah says women are disqualified, but morality says they are not, or the norms accepted today say they are not, and therefore I set aside the Torah in favor of morality. The midrashic conservative says: I make an interpretation from my own reasoning, not because I find some extra letter in the Torah. And if there is an extra letter, why would I need to hang it on that? It is all my own reasoning. So what? And I am still called conservative.

Meaning, Meiri definitely was not a simplistic conservative, but he also was not Reform. What was he? He was a midrashic conservative. And the novelty that emerges from here is that a midrashic conservative does not need to bring an interpretation in the sense we have been discussing until now. He sees a law and says: by my reasoning, it seems to me this is because of that. Do you have different evidence? If you have different evidence, I retract, because I am conservative, I am loyal to what is written in the Torah. You have no different evidence? So what do you want? I think this is how it works. If I don’t know and I have a line of reasoning, why not follow it? What’s the problem? That is thoroughly conservative. Midrashic conservatism.

So the midrashic conservative does not bring an interpretation the way I described before—some support that the simplistic conservative too would accept. The midrashic conservative is the person who allows himself to interpret the matter on his own, or derive it on his own, and draw conclusions from that—to interpret the reason of the verse, let’s say in the earlier terminology.