Innovation, Conservatism, and Tradition – Lesson 12

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[Rabbi Michael Abraham] Good, a point I’ve already made several times: there are various Jewish laws about which “one does not issue rulings that way” that appear in Maimonides and in the Talmud. So if it appears in Maimonides and in the Talmud, then they did issue rulings that way. Meaning, there was some assumption on the part of the Sages and the medieval authorities (Rishonim) that when you write something in the Talmud or in Maimonides, it is still a law about which one does not issue rulings that way, because after all, who opens Maimonides and the Talmud? People who study Torah. People who study Torah—it’s perfectly fine for them too to know this. But people who just hear things, all kinds of people—yes, there are all kinds of questions on the site that can be good examples of this point—people who pick up various ideas from here and there and might also act on them. Those people generally don’t open Maimonides and don’t open the Talmud. That’s perfectly fine, so to them we did not teach this law. That was apparently the case, at least in the days of the Sages and of Maimonides, because otherwise it’s hard to understand how they wrote it.

Anyway, for our purposes, the claim is that being in conflict is actually the feature that distinguishes the conservative person from the Reform one, let’s call him that—not the actual behavior. Preferring morality over Jewish law can appear with a conservative person too, also with what is called Orthodox, let’s say in sociological language.

Now… I want now really to get a bit more into what Zemer says. So I already said—I think—that this book is, in some respects, exceptional. Again, I’m not expert enough and I’m speaking from impression here, I’m not completely sure I’m right, but it seems to me that this is true. There is Conservative Jewish law literature; they have their responsa, their answers, and all kinds of such things; there is the Conservative law committee. They have various halakhic discussions with sources and everything. I already said that in the end everyone owes it all to David Golinkin, but in principle there is halakhic engagement there and halakhic discussions. In the Reform world, it seems to me that a book like Zemer’s belongs to earlier generations of Reform Judaism. Those are generations in which Jewish law was still in the background; they still stood opposite Jewish law and had to give it an accounting. They had to explain why they obeyed this, why they did not obey that. My feeling is that today this no longer really happens. For them, it is some kind of source of inspiration at most; they choose and gather things that suit them, but nobody bothers to explain how his conduct fits with the sources of Jewish law, even according to a Reform interpretation, doesn’t matter. I think in most cases they won’t bother explaining it at all. It’s not something they feel they owe an accounting to, and therefore Reform Judaism is basically not a halakhic Judaism. Even though sometimes one can get the impression that there is some kind of halakhic appearance to the matter, and Moshe Zemer’s book is actually a good example of this, because ostensibly he conducts halakhic discussions, brings sources, Talmudic passages and medieval authorities (Rishonim) and responsa, meaning he is ostensibly dealing with halakhic sources—and that is unusual and rare in Reform literature, at least again in this generation.

And therefore, when I began reading it—again, I began and said that I began in a very hostile way, and it was clear to me that this was an ignoramus who knew nothing, but I just had to read the book in order to catch him. At some point I said to myself that this is not a fair approach, to approach and examine other views or positions or arguments that way. Read him and see; decide whether he’s an ignoramus afterward, not beforehand. Meaning, check what he says and then see whether it makes sense to you. And it turns out that… I mean, I started reading and somehow at some point he managed to confuse me. That is, at some stage it wasn’t clear that there was something here that was different, that didn’t fit the framework, but it looked very similar. I mean, it was clear to me that in the dosage he uses, he has a very light trigger finger—meaning he cancels things very easily, which Orthodox decisors do not do—but I didn’t see some essential difference; a difference of dosage, a difference of scope, but not an essential difference apparently. He discusses sources, offers interpretations, chooses one approach or another, but on the face of it it looked quite similar to Orthodox discussions, aside from the dosage and the scope and so on. And that really shook me, because I had to give myself some accounting—wait, what is going on here? Because the feeling was that still, there was something different here. So over the years I already developed everything I’m saying in this series.

Good, so now let’s try to look at what he says, and I’ll use everything I’ve spoken about up to now in order to point to the points, and I think this will make much more tangible the points I’ve spoken about—both the defining feature of Reform and also why the very flexible and liberal Orthodoxy that I presented in previous sessions, why it too has boundaries, what will not fit into it. Okay?

So let’s start with the first section of the book, the book called A Sane Jewish Law, as I said. One more sentence: I also said that another purpose of my dealing with his arguments in this book is to show you that indeed some of the arguments can enter an Orthodox halakhic framework. Meaning, the fact that he is Reform should not necessarily disqualify all his arguments out of hand. The man is Reform, but the arguments can be non-Reform arguments, and therefore it’s also important to see that, because it can at least teach us to give arguments their proper respectful treatment—I don’t know what to call it—to examine them on their own merits and not according to the person who raises them, not according to the claimant but according to the claim. Okay.

Now, the first section in Moshe Zemer’s book is devoted to the foundations—the foundations of the halakhic approach he proposes in the book—and there he basically surveys the halakhic tools that he is supposed to use in the following sections. The following sections deal with various topics that he addresses and in which he tries to formulate a Reform position regarding those laws: levirate marriage, the Sabbatical year, all kinds of things of that sort. But in the first section he develops the tools.

Now, the first chapter in the first section is titled: “Jewish law as a developing moral system.” Yes, you can already understand the connotation, but there are two emphases in this title: first, that it is a moral system; and second, that it is a developing system. Those are two different and in a certain sense independent claims; there is some dependence between them. And I accept the… that is, usually when you say this to an Orthodox person and ask him which of the two claims he agrees with, he’ll say: I agree that it is a moral system, I don’t agree that it develops—at least in the ethos, yes? After all, we all know that it does develop. But Reform is rooted in the conception of Jewish law as a developing system, not in the conception of it as a moral system. The conception of it as a moral system also appears in Rabbi Kook and in all kinds of Orthodox thinkers—rabbis, decisors, people of thought, doesn’t matter—Orthodox thinkers who also say that Jewish law is a moral system. I personally do not agree with that at all; in a moment we’ll talk about it. But that is what they claim; they only claim that it does not develop in the sense to which the Reform refer when they say this. In other words, the opposition is opposition to the second part.

And I, the humble one, claim exactly the opposite. Jewish law is certainly a developing system, and that’s what we’ve been talking about the whole time—the conservative midrash with the swimsuits and all that. Jewish law is certainly a developing system, and in that Zemer is completely right. Jewish law is not a moral system. I want to claim that his first claim is the problematic one.

Now this is a very important point, because the attempt to distinguish between my view and Reform will lead us—in a moment you’ll see—to a conclusion exactly opposite from this starting point. I claim that there is no difference between Rabbi Kook and Reform; I differ from Reform essentially, and there is no difference between Rabbi Kook and Reform—that is my claim on the essential level, again not on the level of dosage and scope. So let me try to explain this a bit.

Basically, Zemer’s claim is that Jewish law is a moral system. Now, when one says that Jewish law is a moral system, one can mean several things, but throughout this whole chapter and also later in the book, it is clear that he means what we may call the more radical sense. What does that mean? That Jewish law is nothing but a moral system. Meaning, the whole purpose of Jewish law is solely to bring us to be people—or a society—that is morally better, that’s all. That is the purpose of Jewish law.

Now I say again, one can find statements in Rabbi Kook that are completely identical. I’m not an expert in his teachings, but I went through certain things; unequivocally it is exactly the same thing. And now notice the implication: the implication is that in a place where I discover a halakhic instruction that is immoral—or you know what, more than that, an amoral halakhic instruction, not immoral, a halakhic instruction that is indifferent to morality—for example, the prohibition against eating pork. Fine. The prohibition against eating pork does not seem connected to morality; it neither contradicts morality nor supports morality; it is indifferent. It is not a law from the moral category, okay?

Now if Jewish law is a moral system in the radical sense I described earlier, then why is it forbidden to eat pork? I’m not even speaking about things that contradict moral principles, contradict ostensibly or really contradict, but simply things that just do not touch morality. If Jewish law is a moral system… if I understand Jewish law as a system whose entire purpose is to bring the person and society to the optimal moral state, the most moral state, then a large part of the laws are simply unintelligible. In my view almost all of them, but everyone will agree that a large part of the laws are certainly unintelligible.

Now Rabbi Kook, in Perplexed of the Generation, Rabbi Kook tries to explain all those laws too on a moral basis. Weak explanations like Maimonides in Guide for the Perplexed, but never mind.

[Speaker E] The Rabbi says he has difficulty understanding the explanation for supposedly heard-but-not-understood commandments, or things like meat and milk and wool-linen mixtures and so on, and the explanations of Rabbi Kook and others are strange. So in order to get rid of this difficulty of not understanding, the Rabbi goes and creates the idea that all of Jewish law, all of Jewish law, all 613 commandments, come to solve some kind of “eternity-within-splendor,” some thing of which we have not even the slightest minimal understanding—and then he feels at ease? I don’t really understand that. Instead of solving a relatively small problem of difficulty in understanding, which Rabbi Kook grappled with and Hermann Cohen grappled with and others grappled with, and also Eliezer… Rabbi Eliezer Berkovits… after all, this is a known problem and people can solve it. So they turn the whole Torah into one big question mark, where we have no idea why we practice Jewish law if it’s not on a moral basis.

[Rabbi Michael Abraham] Okay, just to correct one word. It is not true that they grappled with it. What is true is that they tried to grapple with it but failed. That is the big difference. Because in the end, the fact that many people grapple with something says nothing; the question is whether they succeeded. And since I claim they failed—not only failed, they failed spectacularly and shamefully, I would say—it just doesn’t even begin. It’s not that I have some argument here or there. It doesn’t begin. It is simply nonsense as a full explanation. There can be ideas here and there, amazing ideas.

[Speaker E] So let’s say we don’t know. Okay, let’s say they failed and we don’t know.

[Rabbi Michael Abraham] So instead of being satisfied with the point that we don’t know—

[Speaker E] —then they turn the whole—

[Rabbi Michael Abraham] —Torah, the whole Torah, into something we don’t know? I heard the question. I’ll answer, but let me answer; I heard the question. What I want to say—I answered this at length in the series on Jewish law and morality. Here I’ll say it briefly. My claim is that where it is clear that there are things that contradict morality, or are indifferent to morality, or are amoral, or anti-moral, apparently those things have another purpose. If you call that speculation, I don’t know what is not speculation. That is the most obvious, most banal, simplest, and most self-evident conclusion I can imagine. That’s it.

Once you paint this as “eternity-within-splendor” or whatever, you are painting it with words, concepts I use as metaphors. I don’t care right now whether there is “eternity-within-splendor” or there isn’t. What interests me is that there are other purposes here. I called them religious purposes, not moral purposes. And this is not only not speculation; it is an empirical observation about Jewish law. It is an empirical fact. There is not even a trace of speculation here. What those purposes are—that is very speculative, and I myself do not know. And when I say that it comes to rectify “eternity-within-splendor,” I’m saying exactly what you said. Don’t ask me to engage in those speculations because I don’t know, so what is the point of engaging in them? What do I know? That there are purposes here beyond morality. That I know. It is an empirical fact. That’s all. The thinnest thing and the least speculative thing I can imagine.

All kinds of people who try to explain to me all sorts of twisted and strange moral explanations that contradict my moral logic, but say there is some deep and elevated morality there—that is speculation. To call that grappling with the issue—that is a shameful failure of grappling with it. And the fact that for two thousand years they have been trying to grapple with it and no one succeeds—what is that if not a good basis for understanding that this whole story of grappling with it failed from the outset? And there is no need to grapple with it.

Now… the problem is deeper, Rabbi.

[Rabbi Michael Abraham] After all… wait, wait, one second, one second. Again, you’re just repeating the questions. Let me finish. The additional point you made—that afterward I expanded this further and turned the whole Torah into this, including the parts that do align with morality or seem moral—that is a question I won’t touch here because it does not concern us. I explained it at length in the series on Torah and morality, and that’s not our topic here. Therefore I won’t get into it here. If you want, we can talk about it separately, but it is all there both in writing and in oral remarks.

Okay, now—does anything remain to ask?

[Speaker E] The world is so full of evil and suffering. It’s not that you… if we sit and say that we are going to give up half our lives, let’s say—if we say that the Rabbi says there are moral values and there are halakhic-religious values, then one comes at the expense of the other. That means that we make our whole Torah world at the expense of not investing in the fight against evil and against the unimaginable suffering that exists in the world. And that is a price we pay every day and every hour—in our learning, in our thought, in our action, in our prayer. And this is not some esoteric thing where here and there I keep some commandment of tefillin or mezuzah or lulav. This is the whole Torah, this is the whole religious life.

[Rabbi Michael Abraham] I’m asking—you asked if you had a question. So far you’ve only described reality. I completely agree, I sign my name to every word you said. Now, is there also a question? Right, we devote much of our lives to upholding religious values, and sometimes that comes at the expense of the fight against evil and morality and all that. Completely true. Except that you ended with an exclamation point—sorry, with a question mark—so explain to me why, because I didn’t hear a question here.

[Speaker E] The question is how one can live a life of—this is not a local conflict where from time to time we run into some Binding of Isaac, what do we do with the Binding of Isaac. Rather, this is our whole life, this is the Binding of Isaac in every commandment-moment, where we know there is a bit of the Binding of Isaac here and we are constantly doing it at the expense of that poor Isaac.

[Rabbi Michael Abraham] First of all, you are getting completely carried away. It is not true that our whole life is the Binding of Isaac; these are sporadic cases. How much of our activity contradicts morality? Or if you weren’t studying Torah, would you go out and wage war against evil in Tanzania? Fine, okay, here and there, true—but emphasis.

[Speaker E] I don’t mean morality in the local sense, Rabbi. I mean morality in the broadest sense of the word, all the time.

[Rabbi Michael Abraham] So in the broadest sense of the word, most of the actions I do in the halakhic sense do not harm morality in any broad sense whatsoever, however broad it may be. Sorry, I don’t see it—not for me. I don’t know, maybe for others yes. For me, no. And second, even if it did harm it, and even if it did harm it, I still don’t hear a question. Right, it would harm it; all my life I trample morality—so what? Where is the question? I claim there are moral values—

[Speaker E] But Rabbi, on the contrary, the Rabbi sanctifies Heaven’s name and does kindness every hour and every minute in everything he does from A to Z. I don’t feel that the Rabbi is in conflict, that the Rabbi realizes morality in the broadest sense of the word.

[Rabbi Michael Abraham] And I’m saying, again, I’m saying there are moral values and religious values. I claim that is an empirical fact. Now what are you asking? Why do I invest in fulfilling religious values? Because the religious values demand it of me, just as the moral values do. So what is the question? You assume that importance lies only in moral values, so naturally you say to me, wait, but if you devote yourself to religious values, it comes at the expense of morality. But that is my claim: that it is not true that the main thing is the moral values, and certainly not that they are the only thing. That’s all.

[Speaker E] It is such an innovative structure to come and say that the whole Torah is—

[Rabbi Michael Abraham] —based on religious values and not on—

[Speaker E] —some kind of really “eternity in eternal life”—

[Rabbi Michael Abraham] It’s marvelous, it’s strange.

[Speaker E] We’re repeating ourselves.

[Rabbi Michael Abraham] I explained this structure very well in the series on Torah and morality. It sounds to me so un-innovative. All the failed pilpulim of Rabbi Kook and all the people through the generations are the most innovative things I can imagine. They are so innovative that they don’t hold water. So that is the alternative; if that is the alternative, that is the best proof for what I’m saying.

Okay, but this really is a subject we already dealt with extensively; here it isn’t the focal point. I want to move on. So one has to notice well: if the purpose—if we take it as an assumption that the purpose of Jewish law is nothing but arriving at a morally better state of society and of the person—then it is natural to be Reform. Because where you see that this does not advance morality, or even sets it back, then it is natural to change Jewish law. Since if the whole purpose of Jewish law is to achieve morality, then ostensibly the Reform conclusion follows naturally.

Therefore I claim that the focus of the Reform conception is precisely in the first claim, not in the second: in the claim that sees Jewish law as something whose purpose is solely morality. The fact that it changes is a derivative. And I’ll say more than that: not only is it a derivative, I also think it changes as an Orthodox person. Therefore that is not the focus of Reform at all. The focus of Reform is the first point. And that is a point that, in my opinion, many people miss. And not by accident they miss it. They miss it because if this is the focus of Reform, then Rabbi Kook is also Reform. On the essential level he is Reform. He is Reform because he basically grasps that Jewish law comes solely to achieve moral purposes.

I say: in the places I have read, there are many passages in him—and of course many contradictions, so I’m not committing myself now to some overall claim—in the places I read, there are places where he writes this very clearly and explicitly. And therefore in the end—now, why in practice, as you said, is Reform more about motives than conduct? Why in practice was Rabbi Kook not Reform? Because in practice he did not draw the conclusions from what he himself said. He was simply less straightforward than Moishe Zemer. Moishe Zemer was straightforward. He says: if Jewish law comes to achieve moral purposes, then where the moral purposes are not achieved, or are achieved backward, yes, then you need to change the law or cancel it—or yes, then it does not exist.

What does Rabbi Kook say? Or his like-minded colleagues, doesn’t matter at the moment. Either they explain to me with some strange explanation that there is some higher morality that none of us understands, which is actually advanced by eating pork or I don’t know exactly what. And of course that is not speculative—just a note apropos of what was said earlier. Or another thing they say: no, we do not have authority to change, even though perhaps it would be proper to change; there is no Sanhedrin, no authority, or whatever it may be. But that is only a technical explanation. Because on the essential level they basically agree with the Reform, and then it becomes a technical dispute whether we have authority to change or not. But everyone agrees that basically it should have been changed.

[Speaker F] Rabbi Kook does not claim that all of Jewish law is only morality.

[Rabbi Michael Abraham] Rabbi Kook writes this in quite a few places. To say “Rabbi Kook claims X” is, in my opinion, an oxymoron before you even tell me what X is. There are so many passages in him and so many things that contradict each other, that he says everything and its opposite. But there are quite a few places where he says these things very clearly—not as some passing remark, an incidental comment—he says them very, very clearly. And also look at the explanations he offers, the explanations he offers for commandments—in Ein Ayah; I just remember because it’s a work we went through, we had a class on it one year. There everything is explained as if morally, explanations that do not hold water in any way.

So I say again, I’m speaking about those statements without committing myself to what Rabbi Kook says in general; I cannot say that. In any case, for our purposes, between the two claims of Zemer—the two… it’s not really two claims but a title, yet two focal points in the title, that Jewish law is moral and that Jewish law changes—in my eyes the focus is that it is moral, the Reform focus. Not that it changes. That it changes is obvious. And I claim that if you hold by the identity of Jewish law and morality, and you are intellectually straightforward, the natural conclusion is to be Reform.

[Speaker G] Rabbi, I didn’t understand how that fits with the definition you gave earlier of Reform. Meaning, why is this not classic conservative midrashic interpretation—if Jewish law contradicts the realization of morality, then it sounds as though everything is still within Jewish law even if some compromises are made?

[Rabbi Michael Abraham] That is ostensibly, ostensibly, indeed conservative midrash. Because you are basically saying: Jewish law said something, let’s say maybe then it was moral, today the situation has changed, and therefore Jewish law should be changed. But later we’ll see how Zemer translates this into examples, and there you’ll see that it doesn’t work that way. Okay? So let’s wait a moment; I’ll show it through the examples.

[Speaker B] So why does he need to say “a developing moral Jewish law”?

[Rabbi Michael Abraham] I can’t hear?

[Speaker G] Rabbi, and it also sounds a bit from your wording—this bothered me a little—that it contradicts the definition of Reform you gave earlier.

[Rabbi Michael Abraham] No, I don’t think it contradicts it. It is only a more concrete expression of what I said earlier. He is basically saying: I am committed to Jewish law, but not completely. I explained last time what “not completely” means: when there are prices that I do not think should be paid. Again, not that I am not willing to pay them, or that I fail because I cannot live up to it. No. They should not be paid. And that is a principled conception.

And now what are those prices? Those prices can of course be interests—that’s the price in its lower sense, let’s call it that—but it can also be a moral price. And his claim is that where Jewish law demands of us a certain moral price, it simply does not exist. Not that it is overridden; he is not in conflict. It does not exist. So de facto you are right that philosophically one can quibble whether to call that partial commitment or full commitment to some of the laws, those that identify with morality. But that is hair-splitting, because in the end he is committed to morality, not to Jewish law.

[Speaker B] So he is not doing what Rabbi Kook does. He doesn’t take the laws that appear supposedly immoral and translate them as if they are moral.

[Rabbi Michael Abraham] He simply changes them. So that—

[Speaker B] —kind of contradicts what he says, doesn’t it? If Jewish law is morality and there’s something immoral—

[Rabbi Michael Abraham] No, you are taking it as a definition: Jewish law is morality by definition. So whatever Jewish law says automatically is also the moral thing.

[Speaker B] Not the reverse? Maybe morality is Jewish law, yes.

[Rabbi Michael Abraham] For him, for him, this is a claim, not a definition. The claim is that the purpose of Jewish law is to achieve morality. So if Jewish law does not achieve morality, apparently that is not the law, or it need not be observed.

[Speaker B] Or apparently that is not its purpose.

[Rabbi Michael Abraham] No, fine, but his assumption is that this is its purpose. I think that really is not its purpose, and that is exactly my proof. But he too, and in that sense Rabbi Kook as well, say: this is its purpose. This is indeed its purpose. Only their bottom line is different.

And as you’ll understand—understand what follows from this analysis, because this is an important point. In practical behavior, Rabbi Kook is as non-Reform as could be. He was thoroughly conservative in his halakhic approach. And in practical behavior, I am very similar to a Reform person, certainly much more than Rabbi Kook is similar to him. And nevertheless I claim that I am exactly the pole opposite to Reform, and Rabbi Kook is with Reform—in conception. Why? Because the judgment or comparison to Reform should not be made on the behavioral plane, on the bottom line, what you actually do, but on the question of the reasoning, or on the question of the conceptions. I keep repeating this so that you understand that this analysis leads to conclusions opposite to what people usually reach.

If you ask a person about some conduct, he will immediately judge whether it is Reform or not Reform according to the behavior. He won’t listen to the question of how someone justifies that behavior. As far as he is concerned, if you don’t behave like—I don’t know—those conservatives, then you are Reform, regardless of the reasoning. And I claim that the behavior is not relevant. Even if you behave conservatively but on the essential level you think like a Reform person, then you are basically Reform. And even if you behave like a Reform person but you have a conservative midrash that justifies it, then you are not Reform. In both places I am proposing a picture opposite to the accepted picture. Because the accepted picture goes by the question of how you behave. And this… here I’m closing the circle, for example, with the swimsuit case. Because in the swimsuit example I tried precisely to show this: that there can be two people who both support wearing a coat when they arrive in a cold region, and one of them will be Reform and one not. Why? Because the reasons they offer for what they do are different. Meaning, what determines matters here is more the reasoning than what you actually do.

Okay, so now let’s see how this business is translated in his examples. Or maybe one more remark: one has to understand that if the purposes of Jewish law are only morality, then you understand that there is no difference between a Jew and a non-Jew. Because a non-Jew too is required to be moral. There is nowhere any indication that the demands on the human-moral level from a non-Jew are different from the demands from a Jew. Everything that a Jew has that does not obligate a non-Jew is what is connected to specific laws that apply to Jews and not to a non-Jew, beyond their seven commandments. That is the level unique to Jews.

But if there is no unique level—if even that level is actually intended in order to achieve moral goals—then why should there be a difference between a Jew and a non-Jew? Or to be more concrete: one of the seven Noahide commandments is the commandment of laws—the commandment that the descendants of Noah must establish for themselves a legal system. That there should be justice, fairness, integrity, yes, that there should be a proper society. But it is clear—at least to me it is clear; there are medieval and later authorities who want to claim otherwise, but it is complete absurdity. There are those who want to claim that the nations are obligated in all of Choshen Mishpat with the Taz and the Shakh and the Sma—that is, they are obligated in the legal code, the system of law as defined in Jewish law. That of course is completely inconceivable.

And the more accepted conception in Jewish law is that indeed, for the nations one does not define for them what the content of the legal system must be. Do whatever seems fair and just to you. That’s all. As long as you preserve a proper society, everything is fine. Now I ask: if the Shakh, the Taz, and the Sma are exactly the way to arrive at morality, then indeed it would have made sense that the nations should have to take exams for rabbinical judgeship. Why… And alternatively, if the system the nations create for themselves is good enough in the eyes of the Holy One, blessed be He, to count as a proper society, then why do we need Choshen Mishpat? Then we too can make for ourselves some fair, upright, just legal system as much as possible, and everything is fine. That’s it. We will be a proper, moral society, everything is fine.

Therefore my claim is: this is another indication that there must be something in Jewish law that is beyond morality. In my opinion everything is beyond morality, but at least something that is not only morality. It cannot be that it is only morality. If it were only morality, then there should not be a difference between us and a non-Jew. Or we should have had to be like a non-Jew…

[Speaker E] But Rabbi, why can’t we accept that we are supposed to be the avant-garde of morality and lead it—which by the way is what happened—that we are supposed to lead these things, also today, and we don’t do it? And besides, Rabbi, according to what the Rabbi says, that these are indeed two categorically separate fields of values—halakhic values—then why do Isaiah and Hosea say “I did not desire all your sacrifices” and all that, because you are criminals on the moral level? What does that have to do with it? Okay, on the moral plane we have a problem, but we keep Jewish law exactly; we are rectifying “eternity-within-splendor” perfectly. Why do you invalidate one because of the other? Why does Hosea do that? Why does Isaiah do that? Why do all the prophets do that?

[Rabbi Michael Abraham] I’ll explain it again briefly, I’ll explain it briefly. When they say, “Why do I need all your many sacrifices,” that’s basically just a way of rebuking the Jewish people. And what that formulation means is that there is a foundation, which is a morally decent society, and on top of that there is room for level two, which is the religious level. Level one is universal, human in general, binding on all human beings, all peoples and all societies. Level two is particularistic. Now, there were people there who thought, just as there are people today who also think this, that the religious world is alien to morality, that it intends to detach itself from morality, that morality is irrelevant to it. I need to be righteous in the ritual sense, yes, the religious sense. And to that the prophets say: mistake! “Why do I need all your many sacrifices” means that if you are not conducting yourselves morally, then leave Me alone with your level two as well. Without level one, level two has nothing to stand on. But that doesn’t mean that level two is level one. It’s simply a way of rebuking conceptions that exist even today, which say that if it doesn’t appear in the Shulchan Arukh, then it doesn’t matter. Morality is an atheistic category, as Leibowitz would say. Morality is an atheistic category. And therefore a God-fearing person should be careful about Jewish law, about the Shulchan Arukh; morality is unrelated. And it is against that that the prophets come out. And they say this not because they identify Jewish law with morality. Absolutely not; I see no reason at all to say that. Rather, because they say that it is not true that I as a Jew can give up morality. “There is no case in which something is forbidden to the descendants of Noah and permitted to Israel.” The Talmud says, “There is no such thing,” yes, the Talmud in tractate Sanhedrin. Why? Because every Jew is also a little descendant of Noah. Besides being a Jew as well—that’s his level two—level one also addresses him. He is not built only out of level two. So these are the rebukes of the prophets. Fine, let’s get back to our subject. So the claim actually… yes, so that was another indication of why I think there must be something in Jewish law that goes beyond morality. Now, the Marasham brings in his first gate that the halakhic authorities tried in very many cases to align Jewish law with morality. And from this he brings proof for his own position. But again, the proof is not a proof. Because the fact that they try to align Jewish law with morality—that can also be done according to my own view. What do I mean? If I basically say that from the standpoint of Jewish law there are two interpretive possibilities, okay? One of them fits morality and the other doesn’t. I also agree that I will try to find a halakhic way that does not contradict morality. Not because the goal of Jewish law is morality. Rather, because I prefer a way that won’t carry a moral price over a way that will carry a moral price. But not because that way is the more correct halakhic way. I think I spoke about this in the past; I would say that this is a decision rule, not an interpretive rule. What does that mean? I’m not claiming, say, that there is way A and way B, and both are possible within the interpretive categories of Jewish law. And way B is moral and way A is immoral. Fine? Let’s say that for the sake of discussion. Now I choose to conduct myself according to way B. That choice is not because way B is more halakhically correct. No. My conclusion that A and B are both possibilities means I am in doubt between them, okay? And the moral interpretation cannot serve as an indication of which halakhic way is more correct, because in my view Jewish law does not strive for moral values. But where I have two possible halakhic paths, one of which carries a moral price and the other does not, then I can—and should—choose the second path so that there won’t be a moral price. Not because that is the more correct halakhic path—it isn’t. Okay, therefore the fact that the sages try to solve conflicts and find ways to align Jewish law with morality is also not proof that the purpose of Jewish law is solely to achieve moral goals. Even according to the picture I’m describing, I too would try to do that, and the sages did try to do that, because why go by a halakhic path that has a moral price if I have a halakhic path that is no less good and has no moral price? But again, not because that path—not because the moral principle is an interpretive rule within Jewish law by which I decide that way B is the correct interpretation because it is moral. There are people who will say that; I don’t accept it. I argue that morality is not playing on the halakhic field. But I do absolutely accept the decision itself, and I try to find such a decision. So that’s another point that comes up in his remarks.

Now, the next point—beyond identifying Jewish law with morality—there is another very important point here that can already be identified in his first gate. In the continuation of that same gate, Zemer brings all kinds of examples from the halakhic toolbox in order to show the flexibility he wants to use in the later chapters. And most of the tools he brings, almost all of them I think, do not really help his purposes. Here, in my view, it’s really a misunderstanding. And in most cases the basis of the misunderstanding, or what he misses, is the same thing. Let’s take a first example that he brings. The first example he brings is “interpreting ordinary language,” a Talmud in Bava Metzia 104. The Talmud says that in Alexandria women would become betrothed, and until they got married—that is, let’s say there were twelve months between betrothal and marriage—during those twelve months they would get married to somebody else, become betrothed and married to somebody else. Now of course illegitimate children were created, because a betrothed woman is a married woman in every respect, yes? So illegitimate children were created. Hillel wanted to declare the illegitimate children valid. What did he do? He interpreted ordinary language. In the marriage contracts there in Alexandria it was written: “When you enter the wedding canopy, be my wife,” meaning, when you enter the canopy, you shall be my wife. Hillel says: you can see here that their betrothal was actually conditional betrothal. They did the betrothal today, and the marriage, the canopy, would be a year later or twelve months later, okay? And basically he says: when will the betrothal take effect? When will you be my wife? When you enter the canopy. Meaning that the betrothal performed today is actually conditional betrothal, betrothal for a future time, or conditional betrothal—you can interpret it either way. And therefore he says that the moment the woman married somebody else, it was clarified retroactively that she had not been betrothed to the first one. Consequently, her children from the second man are not illegitimate. And this is what the Talmud calls “interpreting ordinary language.” What does that mean? We are used to interpreting the language of the Torah; there is midrash where we interpret the language of the Torah. Here, this is language written in a marriage contract, the language of ordinary people. Can one apply interpretive tools to ordinary language and not only to the language of the Torah? So the Talmud discusses this there, and one of the examples it brings is this example—that Hillel interpreted ordinary language. What does that mean? In the marriage contract it said, “When you enter the wedding canopy, be my wife,” and he interpreted this to mean that we are dealing here with conditional betrothal. So Moshe Zemer says: here is an example where a person is basically looking to permit the illegitimate children, or to permit this married woman, and therefore he basically performs an action—let’s say some kind of maneuver, a halakhic trick—and this is the example of the first tool in the toolbox that he proposes there in the gate, the foundational gate, which he wants to use also in the topics that concern him.

But let’s look for a moment at what happened here. Hillel interpreted language that was written in the marriage contract. In the marriage contract it says, “When you enter the wedding canopy, be my wife.” Okay? And therefore Hillel basically said: in the canopy itself there appears language of condition. So the betrothal there was conditional betrothal. Now, I assume that the people who wrote this, perhaps they were not aware that this amounts to making a conditional betrothal. And therefore it was indeed perceived by the sages or by the Talmud as some kind of maneuver. But the truth is that it has an anchor in the language written there, and they simply betrothed her that way. When I say, “Behold, you are betrothed to me according to the law of Moses and Israel,” most bridegrooms who say that do not know what “the law of Moses and Israel” means. Certainly not all the details. You need to be a very accomplished scholar to know exactly all the details of the obligations and implications of the husband-wife betrothal. But if you say “according to the law of Moses and Israel,” then what you are basically saying is: whatever the law of Moses and Israel determines, on that understanding I am betrothing her. Whatever the law of Moses and Israel may be—I’m not supposed to know all of it, and it’s not important. We’ll ask someone who knows, and when he tells me, on that understanding I betrothed her. Same thing here. True, perhaps they did not understand that this wording in the marriage contract was actually conditional language. But in the end they did make a condition; that’s what was there. That was the legal-halakhic procedure operating there. And since that is so, this condition is in fact—Hillel says—it is a valid condition. And once the betrothal is conditional, if the condition is not fulfilled, then the betrothal never took effect. And therefore the woman is not a married woman, and the children are not illegitimate, and so on.

I’ll ask a question as an indication, I’ll ask Moshe Zemer: if the marriage contract had been worded differently, if it did not have this conditional wording, would Hillel still have permitted all these betrothals? Presumably not, because the Talmud explicitly ties it to interpreting ordinary language. That means Hillel…

[Speaker B] According to Moshe Zemer, yes.

[Rabbi Michael Abraham] What? According to Moshe Zemer, yes.

[Speaker B] Yes, right, and that’s why I’m asking.

[Rabbi Michael Abraham] Meaning, he wants to bring proof for his position from this Talmudic passage. And according to his position, this mechanism basically—it’s as if it doesn’t really hold water; there isn’t really any halakhic interpretation here that holds water. He’s doing tricks, but his motivation to permit the illegitimate children is really the true reason. Now, if that were so, then really—do I need tricks for that? If these tricks don’t hold water halakhically, then even in a place where I have no possibility of doing such a trick, I would permit this married woman. What, should we just leave the illegitimate children? But from the Talmud itself it is clear that this is not so. You need—and there is even a dispute whether one interprets ordinary language or does not interpret ordinary language. Meaning, it’s a halakhic dispute: whether language formulated by an ordinary person—not that an ordinary person necessarily wrote the marriage contract, but a human formulation, not Scripture, yes? That’s what “ordinary” means in this context. It means not sacred text, but ordinary as opposed to sacred, not ordinary as opposed to scholar. So the halakhic question is whether one interprets ordinary language or not. And Hillel argued that yes, one does. Now if one interprets ordinary language, then that is a valid halakhic argument on the basis of which people were permitted. If he had not had this argument, he would not have permitted them. I think that is the plain meaning of the Talmud; to say otherwise is strange. So how can one bring proof from here for the opposite of what he says? We see that in Hillel’s case, despite the fact that the motivation to permit the illegitimate children obviously existed even if such wording had not been in the marriage contract, he would not have permitted them had he not found a mechanism. In other words, precisely from Hillel this is actually the proof that he does not accept Zemer’s conception. He does not accept the idea that if I have a moral motivation, that alone is enough to change Jewish law. No. There has to be an action that holds water at the halakhic level, or call it conservative interpretation. Without conservative interpretation, simply making a change—that’s Reform. With conservative interpretation, when you make the same change, practically Hillel the Elder acted the way Moshe Zemer would have acted. So all those who go by bottom lines—according to them Hillel the Elder was Reform, and that’s what Moshe Zemer claims, that Hillel the Elder was basically Reform; he brings proof from him for his conceptions. And I say, not true. I do not look at the bottom line; I look at the reasoning. Not at what he did. And Hillel’s reasoning was halakhic reasoning.

Or in other words, if I broaden it a bit more—and with this I’ll state the principle that basically runs through all my criticisms of everything Zemer writes here, all the examples he brings—it is that he mixes up the question of motivation with the question of halakhic justification. That is, clearly—I fully agree with this, and it is a very clear subtext of the Talmud—that Hillel was very troubled by the situation of illegitimacy and of a married woman, and he had a clear motivation to permit the illegitimate children and to remove this prohibition of the married woman. That is obvious. But from Moshe Zemer’s point of view, once we have shown there is motivation, then that proves what needed to be proved. Well then, I have proved what needed to be proved, because I too have moral motivations and therefore I will change Jewish law. But he ignores the fact that Hillel did not suffice with motivation; motivation by itself is not enough. He had to find a halakhic mechanism that would carry out his goals, his motivations. Therefore the distinction between motivation and the halakhic tool I use is very important. Because Moshe Zemer’s motivation is a blessed motivation; I have it too, and little me has it, and Hillel the Elder had it too. True. But that does not make him Reform. What makes him Reform is if he takes the motivation and is satisfied with motivation alone, that’s it. If I have a moral motivation to change Jewish law, then Jewish law is canceled. But that is exactly what we see in the Talmud is not the case, because Hillel the Elder, despite having the motivation, did not settle for the motivation but needed to find a halakhic interpretive tool to permit these people. And this is the conservative interpretation that Hillel used, yes, by analogy to conservative interpretation. Without conservative interpretation, making change is Reform; but with conservative interpretation it is not Reform, even though the bottom line is the same.

This distinction between motivation and the tools I use basically parallels a well-known distinction—I’ve mentioned it more than once—in philosophy of science, between the context of discovery and the context of justification. In philosophy of science they distinguish between how the scientist got the idea, the new theory he proposes—that’s called the context of discovery, how he discovered the idea—and the question of what justifies the idea. Does the idea actually explain experiments? Does it stand up to empirical testing? That’s called the context of justification. And the accepted approach in the world, in philosophy of science—which I also agree with—is that the context of discovery is irrelevant to the scientific discussion. That’s a question for psychologists. If a person discovered a theory because his grandmother appeared to him in a dream and told him that there are quantum corrections to Newtonian gravity, fine? Now, should I throw out his theory because his grandmother appeared to him in a dream? That is a matter for hospitalization, not for publishing an article in physics. The answer is no. Because if the theory is justified in the laboratory, then why should I care that it came from his grandmother? The fact that it came from his grandmother is the context of discovery, how he discovered the theory. But what matters scientifically is the context of justification. That is, how the theory works. Does it have justification? Is it confirmed by experiments? If yes, then why should I care whether its source was his grandmother or Elijah the Prophet? And if not, then even if the source was Albert Einstein himself, if it doesn’t work then it isn’t right. Therefore the claim is that the context of discovery neither adds nor subtracts; only the context of justification matters.

Now you understand that this basically parallels the distinction I am making here. True, Hillel the Elder perhaps would not have sat and worked over the matter if he had not had the moral motivation. He wanted to permit these people and these illegitimate children, to rescue them from their situation. Obviously, that is true. Let’s say that is the parallel to the context of discovery. It gave him the motivation to sit and search. But the fact that my grandmother appeared to me in a dream does not make the theory valid. At most, if I trust her, it gives me motivation to confirm it in the lab and to design experiments to confirm it in the lab. Only after it is verified in the lab will I adopt it. Here too, same thing. Hillel the Elder has motivation—moral, human, something else, it doesn’t matter. But clearly motivation by itself does not do the work; it is only a reason to sit and work on the matter. But after he sits and works on it, he has to find a mechanism that will do the work. That is what is called the context of justification. Can he justify this ruling? Not explain what the motivation was for this justification because he loves his grandmother—that’s the motivation. Excellent; that doesn’t disqualify the theory, but it also doesn’t validate it. Let’s see whether it works. Exactly the same here.

Now what happens with Moshe Zemer is that he judges theories in terms of the context of discovery and not in terms of the context of justification. Meaning, from his perspective, if he has a moral motivation, then that is what should be done regardless of the question whether I have a halakhic tool that can also confirm or justify it. Because the context of justification doesn’t interest him; only the context of discovery. And that is exactly the point where I think Hillel the Elder proves that Zemer is wrong. Not only is there no proof from Hillel the Elder for what Zemer says, there is actually proof from Hillel the Elder against what Zemer says. And this is an excellent example of the distinction between the thinking of an interpretive conservative—interpretive, but conservative—and a Reform approach. An interpretive conservative can certainly come with this or that motivation, including external values, and we also spoke about that: external value-based motivations are legitimate from his point of view, at least the modern Orthodox one among the interpretive conservatives. But if he is not Reform, that won’t be enough. That is, he has to show me that within Jewish law there is some halakhic way that can also implement this or justify this. You’ll see, for example, later examples—I see I’m not going to get to them, maybe we’ll continue next time—examples later where he says: look, this law is clearly no longer relevant today because today it is not moral, and that’s that, therefore it needs to be abolished. Throughout, over and over again, he returns to using motivation as a halakhic tool. And that is a Reform characteristic. Because motivation is not a halakhic tool—and not because it is invalid. Motivation is not invalid. An agenda is not an invalid thing. Using an agenda instead of halakhic tools is invalid. Yes, Ruth Gavison had an agenda, as Aharon Barak said. An agenda is not invalid. The whole question is whether in the end you succeed in implementing that agenda through valid legal tools; if so, that is perfectly fine. But if the agenda determines the result, that really is not okay. Okay? So in Jewish law it is the same, and I think this sharpens exactly the difference between Reform and interpretive conservatism, even the most radical version of all the possibilities I sketched out on the charts in previous sessions.

So basically, to summarize toward next time, the claim is that in Zemer’s foundational gate, first, he sees all of Jewish law as something that comes to achieve moral goals, and therefore he also changes it in a situation where it no longer fits morality. Okay? And this leads me to the second conclusion, because from his point of view, once it does not fit morality, then one need not look for a halakhic mechanism in order to cancel or change the law. It is canceled on its own. Once it is immoral, then it is nullified on its own. Therefore he doesn’t need these tools. Why did Hillel need these tools? If the purpose of Jewish law is to do good for people or to bring about a moral state, then the moment it does not bring about a moral state, Hillel should have canceled it. No—he did not cancel it until he found wording in the marriage contract. The wording in the marriage contract does not change the moral result. The moral result is that the illegitimate children will be miserable and the woman will violate the prohibition of being a married woman. That is true in both cases. So what difference does it make whether he found such wording in the marriage contract or not? Because here it holds water halakhically and there it doesn’t. Meaning, justification is not a halakhic tool—sorry, motivation is not a halakhic tool. Motivation is motivation. The motivation will lead me to look for a halakhic tool, but if I did not find a halakhic tool, all the motivations in the world won’t help. Motivations cannot replace the use of tools. And with Zemer, they do replace them. Okay, we’ll continue in future sessions, next time. Questions?

[Speaker B] Yes. So basically he says—the justification he gives is that Jewish law promotes motives, strives for morality, so to speak. Does he give that a justification from within Jewish law, or does he simply say it?

[Rabbi Michael Abraham] No, no, it’s simply an assumption for him. By the way, Rabbi Kook also does not give a justification for this. In my opinion, the justification for it is a philosophical mistake. And it’s a mistake I’ve written about in many places because I really feel that a lot of people make this mistake: they identify the concept of value with the moral category. They are unwilling to accept that there can be a different category of values, not moral values but values of other kinds. Now Jewish law, of course, strives to realize values—that is a simple assumption. So obviously it should bring us to a better moral situation. And they do not take into account the possibility that there can be values that are not moral values but other values. Values of holiness, religious values, I don’t know, whatever you want to call it. That doesn’t matter right now. And this mistake is present in so many people that I also speak with, all kinds of difficulties about Jewish law and so on, because everyone assumes that Jewish law must lead to moral results. And no—it doesn’t have to.

[Speaker B] I think that’s an assumption that is kind of unavoidable. After all, you can’t uphold something, you can’t believe in something, if it isn’t moral; it contradicts all…

[Rabbi Michael Abraham] Not true. What do you mean? If there are other values that are no less important to realize, but realizing them involves violating moral values, then what can you do? I am obligated both to moral values and to those values. And I can’t fulfill both. Even in a moral dilemma, when you fulfill value A and violate value B, so what does that mean? So what should one do? Value B is binding, but what can you do—value A overrides it; you can’t fulfill them both.

[Speaker B] So Zemer doesn’t sanctify the bottom line, he sanctifies the motivation. What? I said Zemer doesn’t sanctify the bottom line, he sanctifies the motivation.

[Rabbi Michael Abraham] I wasn’t talking about Zemer in the context of the bottom line. I said that people generally, when they judge whether something is Reform or not Reform, look at the bottom line and not at the reasoning. Okay? It’s not about Zemer himself. As for Zemer himself, I don’t know about sanctifying the bottom line or not; he has certain justifications, and those justifications are justifications of motivation and not justifications by halakhic tools. Okay. I mentioned in the past that also in Gilat’s book—which, by the way, Zemer makes much use of, making the same mistake—I mentioned that with Gilat, for example, the Sabbatical year in our time is of rabbinic status. So Gilat—in Chapters in the Development of Jewish Law, that’s the name of the book—he writes there that once there was destruction and economic distress was created, the sages sat and worked over the matter and came to the conclusion that the Sabbatical year in our time is rabbinic. Now all of Gilat’s Orthodox critics, all his critics from the right, explain that he is Reform. Why is he Reform? Because he is basically saying that the sages do whatever they want in Jewish law, which is what the Reform do, yes? Exactly what I described before. Zemer learned Gilat the same way; he relies heavily on Gilat. He also interpreted him like his critics from the right, except that of course he himself is on the left, and he says: right, Gilat is Reform, excellent, and therefore I too rely on him. His critics say Gilat is Reform, therefore he is no good; Zemer says you are right, Gilat is Reform, and therefore I rely on him. And both are wrong. Gilat was not Reform. Because what he said there is that the economic distress caused the sages to sit and work over the matter and look for a halakhic mechanism that holds water. And when they reached the conclusion—never mind now exactly how—that the Sabbatical year in our time is rabbinic, they breathed a sigh of relief because this allowed them to implement their agenda, their motivation. But if they had not found a halakhic interpretation that says that the Sabbatical year in our time is rabbinic, they would not have done it. Therefore Gilat is in fact entirely an interpretive conservative; he is not Reform. His critics on the right are mistaken, and his admirers on the left are mistaken, and they make the same mistake. Because he did not mix things up; he was careful, by the way—I read him closely. He was careful not to mix motivation with halakhic tools. He explained the motivations all the time, and then said that therefore they sat and worked over the matter and found a halakhic principle that would ground it. He is careful about this distinction. Okay.

[Speaker B] It feels as though if the sages want, they can find in every way…

[Rabbi Michael Abraham] A halakhic tool.

[Speaker B] No, that’s exactly it!

[Rabbi Michael Abraham] With Gilat, here—

[Speaker B] That’s why there’s a mixing between the motivation and the halakhic tools.

[Rabbi Michael Abraham] Not true. Those who say that are making that same mistake. They ignore the fact that the sages do not suffice with motivations but always look for tools. And when, for example, the sages very much want to permit illegitimate children—I’m sure all of them did; the illegitimate children are not to blame for what their parents did, even if their parents did it intentionally—and still they did not permit the illegitimate children. Here and there they look to cancel a betrothal perhaps, or something of that sort, if they succeed; and if they don’t succeed, then the child remains illegitimate. Why? If the sages can do whatever they want, all that matters is that they have motivation, then they should do whatever they want. No, they won’t do whatever they want! There are many things we have motivation to do, but we do not find the halakhic tool and therefore we do not do them. I have a lot of motivation to permit homosexuality, yes? Those people seem deeply unfortunate to me. We impose on them unbearable lives, impossible lives. Fine—but what can I do? I haven’t found a halakhic mechanism that can do it. Okay. Anyone else?

[Speaker E] Thank you very much, Sabbath peace.

[Rabbi Michael Abraham] Sabbath peace, goodbye.