Authority and Change in Halakha, Lesson 12

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[Rabbi Michael Abraham] Someone abandoned his mother’s teaching, and ever since then we’re forbidden to abandon the one who abandoned it. Meaning, a custom is always—almost always—a deviation from what had been accepted until that point, and once it gets accepted, now you’re not allowed to deviate from it. It’s not always like that. Sometimes a custom is not a deviation from what existed before, but rather something that simply wasn’t relevant before and suddenly became relevant. But on the principled level, when this happens—and it happens a lot. I think I once mentioned, I can’t hold myself back anymore about this, that all the most conservative groups are usually very innovative groups. Always. Almost always that’s how it is. Take the Briskers, for example—a very conservative group. It preserves something that was a radical innovation. Same thing with the Chazon Ish people: they’re very careful not to deviate from the rulings of the Chazon Ish, all of which were very innovative rulings. Okay? Same thing with the students of Rabbi Kook. Every conservative group—almost every conservative group you can think of, Satmar, whatever group you pick—it started with someone who was a great revolutionary, introduced a major innovation, and ever since then his students are unwilling to deviate by a hair’s breadth. They are of course convinced that Moses received the Torah at Sinai and handed it down to the Rebbe of Satmar. Meaning, or to Rabbi Kook, or to the Chazon Ish, or to Rabbi Chaim of Brisk. It doesn’t matter, each one with his own version—but they sincerely see it that way. That’s the ethos on which they were educated and with which they educate. But usually it starts with some radical innovation, and from then on anyone who disagrees with it is treated as though he were an outsider, as though he had no place among the house of Israel. As if marauders came and profaned it. As if hooligans came and profaned it. But it always starts from some innovation. All these streams you see here—the real central mainstream is actually the classic mainstream that just goes on as it always did; it doesn’t get excited because someone is a little different this way or a little different that way. All those who are so strict about “whoever breaches a fence will be bitten by a snake”—those are usually the greatest fence-breakers. The second generation after the fence-breaker—that’s always how it is. Every conservative group starts from a great revolutionary. I mean, that’s… almost. Really, it’s almost always like that.

And it’s so strange. There was a memorial volume that came out for Rabbi Hevron—Hevron—the nephew of Rabbi Kook. So I saw the book; you know how memorial volumes always have “ancient treasures” and all kinds of articles or Torah insights by great sages of earlier generations that were never published, a chance to bring them to public awareness. Very common in Torah memorial volumes. And what were the “ancient treasures” there? An article by Rabbi Charlap, an article by Rabbi Tzvi Yehuda, an article by this one… I mean, it was so obvious that the “ancients” there were a very, very closed and narrow milieu, from Rabbi Kook onward. Those are the most ancient ones there are. Who else is there besides them? Moses our teacher maybe, at best. That’s it. The Maharal, the Kuzari—fine—but there aren’t Torah novellae there, meaning Jewish law systems. And there probably also weren’t unpublished things there that they found; there was nothing to print. Fine. In the end Rabbi Tau published other things, Emunah II, page 189. Anyway, these examples really reflect this paradox of custom.

All right, back to our topic. So that’s one point we discussed. After that I spoke about what Shmuel mentioned earlier, the requirement that it spread among the public, which is a necessary condition for the validity of Jewish law. And what remains here is one more Jewish law. In Jewish law 8, Maimonides writes: “Any court that permitted two things should not hasten to permit a third thing.” The continuation there in the laws, etc.—that is basically a policy guideline for a court. How should we relate to that kind of statement? I think it’s important, even though it seems marginal, because sometimes these marginal things are more important than the hard-core Jewish law. Because the halakhic, traditional instinct really is that. They say you have to be careful; the lenient decisor is at a disadvantage, the one who changes is at a disadvantage, especially when he changes in a lenient direction. When he changes in a stringent direction it’s easier, actually. And that’s true, and it’s not some new invention; it’s the tradition. I think that’s the mainstream of the tradition.

But on the other hand, you have to understand that this thing is ultimately just a policy guideline; it’s not a law. True, it appears in chapter 2, Jewish law 8 of the Laws of Rebels, but from the wording it’s clear that this is not a law. It’s some general guidance. Notice that when you permit things, that has consequences. A court that starts permitting things has consequences, because the public starts thinking—and by the way we see this today—that the public starts thinking, on the stringent side no less than on the lenient side, that basically I can do whatever I want. After all, you rabbis can always do whatever you want. Decide this way, you’ll find a reason to forbid; decide that way, you’ll find a reason to permit. And basically the public loses trust in the judgment of the court. And that in itself is an important argument that has to be taken into account. But it has to be taken into account not only regarding leniency, but also regarding stringency. In exactly the same way. And I think today it manifests itself in both directions equally. For some reason it has been tilted more in the direction of leniency than in the direction of stringency, and in fact that’s also how it appears in Maimonides. But since we’re talking about a policy consideration, a policy consideration has no authority. A policy consideration is something that has to be examined in light of gains and losses, according to the circumstances. And if in today’s circumstances that consideration doesn’t exist, or it cuts toward stringency as well and not only leniency, then it has to be taken into account accordingly.

And therefore this statement of Maimonides has, in my view, very limited significance. All it does is draw your attention to another aspect that you need to examine when you come to permit or forbid, when you come to make a change in general. Know that if you do this too much, it can undermine public trust in the court. So weigh that. Okay, I’ll weigh it. But if I weighed it and decided nevertheless to do it, there is no impediment to doing it. And more than that: my feeling today is that in a certain sense, public trust is actually undermined sometimes precisely because decisors or a court—let’s put it generally—do not make use of their ability to change and to reexamine certain laws. Because today people have access to sources of information in a way they didn’t in the past. People know there are different possibilities and different opinions, etc. And once you don’t present your reasoning transparently, people lose trust in you.

I’ve often brought that example of Rashi on Eve and the serpent. Rashi cites the midrash of the sages there that Eve decided to be more stringent in speaking to the serpent and said that the Holy One forbade even touching the fruit of the tree of knowledge. Then the serpent pushed her against the tree and said: look, you touched it and nothing happened, and then she ate. And from there she ended up eating too. Because in the original command, only eating was forbidden; touching was not forbidden. And in my view that’s a symptom of many processes we see today as well. Many times decisors are not careful about transparency. And when you’re not careful about transparency, in the past it worked. It worked because the sources weren’t accessible and most of the public didn’t really know how the whole thing worked. So you could keep your cards close to your chest and say: this is forbidden. The public said, fine, if the rabbi said it’s forbidden, then it’s forbidden. But today, after the rabbi says it’s forbidden, they go online and find ten rabbis who say it’s permitted, or halakhic sources that say it’s permitted, whatever. Okay? Then what? They come back to the rabbi and say, listen, there are sources saying it’s permitted. True—but I think, based on the sources that say it’s forbidden, or in my opinion it’s not appropriate, whatever, for various reasons. Once you don’t present things transparently, you lose the public’s trust.

So in my opinion, what should happen today, instead of keeping the cards close to the chest and not permitting things that really are permitted because of these concerns of Maimonides—put it on the table. Say: there are opinions that permit, there are opinions that forbid. In my opinion it may even be proper to permit, but I think it’s not right. Not right to do it for such-and-such reasons. Even say the reasons. For such-and-such reasons, in my opinion this can lead to these and those problematic things. Now it’s true that you’re taking a risk here, because then people say, so basically he thinks it’s permitted, so we’ll do it—why should I care what he’s worried about? Bottom line, he says it’s permitted. That’s one side. But on the other hand, at least you haven’t lost people’s trust in you, and your recommendation to people—listen, it’s still proper to be stringent because it’s risky—they can hear that, and they may accept it or they may not, but they hear it as a recommendation. The problem is when you present it as forbidden and then they discover that it’s not really forbidden—you’ve lost them completely. Next time they won’t even come ask.

And therefore I think that specifically in today’s reality, where everything is open and everything is accessible and the opinions are known and you can very quickly find all the possibilities—and the sources are known too; there’s the responsa database and the internet, and you can get to the sources even if no one shows them to you—if there’s no halakhic problem, put them on the table. I think this policy needs to change across the board. I think it’s a mistake to continue with the accepted directions. And again, those directions really are the accepted directions in the tradition; this is not an invention. I’m only claiming that it is not right to continue with them, despite the fact that they are well rooted in the tradition. I think it’s more correct today to make it transparent. To say: friends, what you’re saying is possible. There are halakhic opinions that permit it. In my opinion it’s not advisable. And that’s it. Let him take the risk whether he does it or not, but you haven’t lost his trust. Then next time he comes to ask you something and you say it’s forbidden because it really is forbidden, he’ll believe you that it’s forbidden. Because what happens today is that when you say “forbidden” about something that isn’t really forbidden, then next time when you say “forbidden” about something that really is forbidden, they won’t obey you, they won’t listen to you, they won’t believe you. They’ll simply lose trust and won’t even come to ask you anymore. That’s basically what happens today.

So what I want to say on the principled level is that policy questions always have to be examined in light of gains and losses. It’s not like halakhic determinations. In halakhic determinations there are rules: how you change and don’t change, who has authority to change, when he can change, Torah-level, rabbinic, greater in wisdom and number or not greater in wisdom and number, suspension or no suspension. Those are all the rules we learned. But all of that is for halakhic determinations, halakhic determinations established by an authorized court. But policy rules require none of those rules of change. Policy rules need to be examined on their own merits: does it help or does it not help? Policy must be examined because policy is meant to achieve certain goals. And if it doesn’t achieve those goals, what’s the point of adopting it? Just because that’s always how it used to be?

Today, for example, people think that “in a time when people are scattering, gather; and in a time when people are gathering, scatter”—yes, what they read in the will of Rabbi Shach, that phrase they quoted in his name—means that we need to raise the walls, because today there are breaches in the walls and a kind of decline, so we need to raise the walls. He’s right that this is what the tradition says; he is not right that this is the correct way to behave today. The way to behave today is to lower the walls. Lower the walls and leave only the walls around what is really forbidden. Don’t raise them beyond what is actually forbidden; it won’t help you—you’ll shatter also what is genuinely forbidden. Instead, lower the walls to the necessary minimum. Say: this is forbidden. From that point on, build a fence, not a wall. Say: from here on, it’s not forbidden; I recommend not doing it. Precisely because there are breaches in the fences, it is very important not to turn fences into walls—let them break through the fences, but not the walls. And in that sense it seems to me that policy rules require case-by-case examination: does it work or not?

All right. So up to here, that’s basically the framework within which the whole thing operates. Now I want to leave that for a moment—we’ll come back to it—but for now let’s leave it and talk about what the change itself looks like. So basically, when does the question of change arise at all? First, the first source can be when a court today thinks the previous court made a mistake, either in interpreting the Torah or in some enactment, some decree, or in establishing something of that sort. A second possibility: changed circumstances. Changed circumstances—or maybe both. “Mistake” meaning a mistake either in the facts or in… in value judgment. Or both. Sometimes it’s a mistake in the facts. For my purposes that changes what can be done with it, but the circumstances in which the question of change arises are when the earlier court erred in the facts or in values, or in interpreting the Torah, or in assessing reality. The second possibility or second case is when circumstances change. The original court didn’t make a mistake, but today circumstances are different and one needs to act differently.

Here, as I said before, if we have authority we can disagree with the earlier one. That is, in Torah law when there will be a Sanhedrin, and in rabbinic law when we are greater in wisdom and number. If we think it is harmful, we can also suspend it. Fine. Those are two possibilities. There’s a case where the change is not factual but value-based. That’s a very difficult case. There is a case like the status of women. The status of women can be treated as a factual change: women in the past were not educated and today they are educated. That’s a factual change; it has nothing to do with values. But there is also a value-based change in the status of women: today gender equality—indeed equality generally, including gender equality—is perceived as a very fundamental value in society. Now the question is whether a consideration of that kind is a legitimate consideration in Jewish law.

The sages reflect a position that says a woman is not equal. Putting aside changed circumstances for the moment—I’m talking about an educated woman then and an uneducated woman today, and I’m intentionally ignoring the factual change that occurred. I’m speaking only about the value change. Today, in our society, in the society in which we live, people think differently. They think a woman should be equal to a man. Okay? In such a situation, once again a tension arises and the question of change comes up. But here—not only are there opposing voices; I think nearly all halakhic approaches oppose change—because here this is not merely responding to a factual change that occurred, a change in circumstances, and saying that the old enactment is not relevant today or something like that. Rather, this is basically a frontal disagreement with what the earlier court established. And the question is whether that doesn’t contradict the eternity of the Torah. Does the Torah want a man to be equal to a woman or not? What does the Torah want? So apparently—indeed, there are very strong antibodies against this kind of claim of change. And that basically means that this is drawing from external values and somehow importing them into the Torah.

I want to argue, in light of what I said earlier, that there is nothing here essentially different from what there was before. This is a completely legitimate change. Why? Because when the sages, for example, interpreted some Torah law or established an enactment, whatever it may be, out of a non-egalitarian perception between the sexes—where did that non-egalitarian perception come from? If it came from the Torah itself, then I agree. If it came from the Torah itself, I cannot disagree with it. But the question is whether that’s really where it came from, or whether the sages lived in a certain society and internalized its values, and it was obvious that a woman was not equal to a man for all sorts of reasons—but that wasn’t unique to Torah, it was true throughout the world. So naturally they too interpreted the Torah that way and enacted such ordinances. But those were the norms within which they operated. Those norms have no holiness. They were not handed down at Sinai; they were simply the norms prevailing when the sages interpreted the Torah or established their enactments. Today other norms prevail. So if I, as a court, identify with those norms—if I truly think that is the proper way to act—why shouldn’t I interpret the Torah differently or establish different enactments, within the limits of authority? Authority is a separate matter, but on the principled level it shouldn’t be essentially different.

Let’s try a concrete example. Suppose we’re talking about qualifying women as witnesses. I already mentioned this example. The sages derive it from “And the two men between whom the dispute is shall stand before the Lord,” in the Talmud in Shevuot: “men and not women.” This is a strange derivation, even aside from whatever values it reflects or whatever values today oppose it. It’s a strange derivation. Usually when it says “men,” it means people, including women—“Scripture equated woman to man regarding all punishments in the Torah,” a well-known Talmudic rule. Where suddenly does this thing of “men and not women” come from? More than that: who are “the two men between whom the dispute is”? Those are the litigants, not the witnesses. “The two men between whom the dispute is” means the litigants. And suddenly the sages derive from here that these are witnesses, “men and not women,” women are invalid for testimony. This whole derivation is very strange, very problematic. It doesn’t seem far-fetched to me—perhaps one should add, in terms of the dynamic—it doesn’t seem far-fetched that the sages basically decided to disqualify women from testimony because of value considerations, and anchored it in a derivation of this kind. You can perhaps say “the men” is superfluous, and if it is not needed for the litigants, apply it to witnesses. I’m not getting into that now. I do not think the sages were dishonest. But I am claiming that the sages here used a midrashic tool in order to advance a value-based conception. But that value-based conception does not necessarily emerge from the Torah.

[Speaker D] Doesn’t that make it Torah law?

[Rabbi Michael Abraham] What? It is Torah law. Why? Of course it’s Torah law. Why not?

[Speaker D] Because they derived it from the Torah.

[Rabbi Michael Abraham] What do you mean? Interpreting the Torah is Torah law. I explained that Torah law was not necessarily given to Moses at Sinai. Anything that I interpret out of the verses, from my perspective, is Torah law. But if a later court interprets the verses differently—Maimonides himself says there is power for a greater…

[Speaker D] …in number, another later, greater court…

[Rabbi Michael Abraham] …to interpret the Torah differently. So from its perspective, that is the Torah law. I’m saying, within the limits of authority—there are requirements as to what authority, who has authority to do this—but assuming that we meet the requirements of authority, there is no principled impediment to doing it. And “Torah law” does not prove anything. Torah law can be the product of values that I bring with me when I interpret the Torah. And that is certainly true with rabbinic enactments and rabbinic decrees. So if now there are different values that I, as the court of this generation, identify with and think are correct values—and that in itself is legitimate—and that’s why I want to put this on the table, because there are people who would stop me already here. What do you mean, “you identify with them”? Who are you? We serve the Holy One, not you. So I say: let’s not be naive. We serve the Holy One through human interpretation. And human interpretation always depends on the interpreter’s values. It was that way for the sages too. What, the sages weren’t human beings? Of course they were human beings. So we are really talking about interpretation of the Torah performed by human beings, and a human being is the sum total of the landscape of his birthplace—including the values within which he grew up.

And that is the Chazon Ish’s fifth section of the Shulchan Arukh—the fifth part of the Shulchan Arukh: what decisors understand is “it just isn’t done.” It’s not fitting to do such a thing. What do you mean it’s not fitting? Where does that come from? That’s their value-based conception. Does that value-based conception emerge only from verses of the Torah? Then how do different decisors arrive at different values, and how are there value disputes among decisors? Among Yemenites there is polygamy; among Ashkenazim there is no polygamy; and among Sephardim today there is no polygamy either. The ban of Rabbeinu Gershom. A clear value-based conception. Where does that come from? It’s not some technical enactment. Clearly there is a value conception here. Certainly. One of equality, among other things. A conception of equality—the ban of Rabbeinu Gershom. Where does it come from? From the Torah? Did he read numerical values in the Torah and the Yemenites somehow missed it? No, the Yemenites didn’t miss it. They just didn’t think that was correct, while Rabbeinu Gershom did. That’s a different value conception, and one can debate who is right. I’m not entering now into the question of who is right; I’m only trying to show that value conceptions play a role in shaping Jewish law, both in interpretation and in enactments.

So now I ask: if today—and for the moment I’m speaking as though there were a Sanhedrin, leave the question of authority aside for now—and the Sanhedrin today lives in the world we live in and comes to the conclusion that equality is an important, correct, and proper value, gender equality—would it really be absurd for them now to derive the Torah differently? “And the two men between whom the dispute is shall stand before the Lord”—men and not an androgynous person, men and not minors. I don’t know, any derivation you want—but not witnesses and not testimony. Why? Why specifically that? I can suggest several other derivations. Many times it is logic that will determine which derivation I choose. Logic, values, and so on. I gave the example of Rabbi Akiva in tractate Shabbat page 64, who says that earlier generations practiced that a woman should not adorn herself or put on makeup during the days of her menstruation, until Rabbi Akiva came and said: she would thereby become repulsive to her husband. How can such a thing be? Therefore he derived differently from the verse, “and she shall remain in her menstrual impurity until she comes into the water,” meaning he made a different derivation from the verse. And he permitted adornment and makeup during the days of menstruation. And in the straightforward sense we’re talking about Torah law, because otherwise you wouldn’t need a verse-based derivation to do such a thing. More than that: if it had been rabbinic law it would have been harder to change. But according to the simple sense of the Talmud, at least, it is presented as Torah law. The question of how exactly it is Torah law is not simple, but never mind—that’s how it seems from the Talmud.

What does that mean? Rabbi Akiva raises a value argument: she thereby becomes repulsive to her husband. What do you want? The Torah says that adornment makes her repulsive to her husband during the days when she is forbidden to him. What’s the problem with that? To Rabbi Akiva it seemed that this just wasn’t fitting. It can’t be. And on the basis of that value consideration he makes a different derivation. Why? Because a value consideration is a legitimate tool in interpreting the Torah. The sages interpret the Torah many times on the basis of value considerations. And it is naive to think that these value considerations emerge from the Torah. Many of these values we bring with us when we come to the Torah, and we also read them into the Torah, because we are already saturated with that value-world. The trouble with our generation is that we are already aware of this. It may be that sages of earlier generations, at least in some cases, were not aware of it. They were sure they were reading it out of the Torah, that this is what the Torah says. Today we have a more developed reflexivity. So today we are aware that we bring with us quite a few values when we come to interpret the Torah.

And then—and probably rightly—that makes us a bit uneasy, because then how much are we really inserting ourselves, instead of serving God? In the end it’s like Winnie-the-Pooh again, where Piglet follows tracks through the forest until he discovers they’re his own tracks. Meaning that in the end you think you are serving God, but in fact you are serving those very values that you think are correct, rather than what the Holy One dictated to you. So it is a bit unsettling; I understand the discomfort that results from our having reflexivity. But on the other hand, if you understand that there is no interpretation without values, then why do interpreters who are unaware have an advantage over interpreters who are aware? They too inserted their values; they just weren’t aware of it. So I am still not serving the Holy One; I’m serving Abaye and Rava. So what is the advantage of the values that prevailed in Babylonia 1,500 years ago over the values prevailing in Israel—or in Europe, or in Morocco—today? Why is that preferable? Again, I’m speaking now apart from the question of authority. We have no authority to disagree with the Talmud. But let’s assume the authority problem has been solved. I’m asking on the principled level: in principle, can there be value change? My answer is absolutely yes. And there have been value changes—not only is it possible, it has happened. I often say that when people say “it’s unthinkable,” whenever they say something is unthinkable, it’s always something entirely thinkable, because someone said it—so it is already thinkable.

[Speaker C] And you answer him: it’s unthinkable.

[Rabbi Michael Abraham] What is unthinkable? Here it is, it’s thinkable. I’m telling you: it’s possible. What do you mean “unthinkable”? So here too, same thing. “It’s unthinkable that there could be value change.” There were value changes, and there were—and still are. There were and there are.

[Speaker C] But are there values that really do come from the Torah?

[Rabbi Michael Abraham] Truthfully, that’s a difficult question that I have dealt with quite a bit in the past. I’m not sure. I’m not sure. I say: one should try to preserve honesty and not force things into the Torah that it doesn’t mean. But even within the bounds of honesty there are quite a few interpretive possibilities, and quite a few Torah passages where you can see that they contradict one another. So then which one do you follow? If I can insert it into this passage, even though in that other passage it comes out differently—that’s already less simple. And I can be honest and say: true, in this passage it doesn’t fit.

[Speaker C] But there’s still a dilemma here.

[Rabbi Michael Abraham] I have fairly limited confidence in the ability to derive values from the Torah. In the end, in my opinion, people derive from the Torah the values they already believe in. That’s why all these obsessive searches we see today—what is the Torah’s socio-economic system? Whole institutes deal with this. Some say it’s socialism and others say it’s capitalism. And don’t be surprised to discover that the people who say it’s socialism are people whose worldview is socialist, and the people who say it’s capitalism are people whose worldview is capitalist. I’m among the latter, and therefore as far as I’m concerned the Torah… By the way, capitalists have an advantage. If the Torah says nothing, then it’s capitalist, according to your assumption. No—because socialism demands that you do something. You need to take resources and distribute them. By default, the default is that each person does what he wants. That’s the default. Whatever is not forbidden is permitted.

[Speaker E] You could say it differently: capitalism also requires you not to take people’s property. “Do not steal” is capitalist. Why is that not “do not steal”? “Do not steal” belongs to the protection of the legal system.

[Rabbi Michael Abraham] What? “Do not steal”—what does that have to do with capitalism?

[Speaker E] Of course it has to do with it.

[Rabbi Michael Abraham] I think the matter is obvious. I’m saying okay, you can argue, but in the simple sense it is clear that the obligation of charity is socialist. The capitalist simply says: leave me alone and let me realize myself. That’s all. What are you doing? I’m doing what I want, and that’s it. You want to take my money and distribute it to the poor? I’ll decide if I want to distribute it to the poor. I belong to the other party. But my principled claim is that I think it’s quite clear that it is very hard to derive values from the Torah in any very amorphous way. Once you get to application, I can clip the wings in such a way that it will leave nothing of the value…

[Speaker C] …that you derived from the Torah.

[Rabbi Michael Abraham] And therefore I’m very skeptical.

[Speaker C] “Love your neighbor as yourself”—isn’t that a value? Yes, it’s a value. So what does it mean now?

[Rabbi Michael Abraham] Now start breaking it down into small change. Does “Love your neighbor as yourself” mean being capitalist—leaving everyone to do what they want? Does “Love your neighbor as yourself” mean being socialist—loving the poor and sharing my property with them? What does “Love your neighbor as yourself” mean? I don’t know. It depends how you understand that commandment. By the way, “Love your neighbor as yourself” can also work the other way: if the capitalist says the economy flourishes more under a capitalist system, that too could be a consideration under “Love your neighbor as yourself”—everyone benefits from capitalism, maybe. I don’t know. I’m saying: once you get down to small practical details, it dissolves. There are value statements in the Torah, certainly. But come on—we all agree with them. But when you come to translate them into practice, in the end it is very hard to derive from the Torah a decision in these disputes, I think. So it’s really pointless to look for it at all. And by the way, when people do that, they usually end up with the Bach and the Beit Yosef and a fine point in Rabbi Akiva Eiger.

[Speaker D] Fine, so you proved…

[Rabbi Michael Abraham] …to me that Rabbi Akiva Eiger was socialist and I’m capitalist—so what? Just as he interpreted the Torah through socialist values, I will interpret it through capitalist values. Now the question is who is right. So if there is a determination by the Sanhedrin, then again there is a question of authority. But if you ask me who is right—fine, that’s a question of values. And values are also a function of the society in which you live; that has an impact, and many things have an impact. And of course factual circumstances affect it too. It’s obvious that it isn’t totally disconnected. The change in women’s education, which ostensibly is a factual change, is not disconnected from the value change that sees value in equality, for example. Each one feeds the other. The value of equality created the factual change, and the factual change exposes us more to the value of equality. It’s easier to believe in equality when you see that a woman can do what a man can do. When you didn’t allow her, as a matter of fact, to do it, it was easier also to think that she couldn’t do it and also to think that she didn’t have the same rights, or that she should obey her husband and keep quiet. These two things are not totally disconnected, even though one is fact and the other is value. It’s clear there is feedback between those two planes.

All right. So now I want to get into the mechanism itself. How is a demand for halakhic change built? A consideration for halakhic change? Let’s go back to qualifying women as witnesses—that’s the example I gave earlier. Many times when an argument for halakhic change is raised, people say: women are invalid as witnesses—I cited the Talmud in Shevuot earlier—but that was when women were not educated, were in the home, “the dignity of the king’s daughter is inward,” they didn’t know society, the economy, what happened in the marketplaces, and therefore their testimony really had limited value. But women today are factually different. Women today… and it’s hard to argue that factually there has not been a change. And because of that, women should be qualified as witnesses. Meaning: reality has changed.

Now once again let’s leave aside the question of authority. It doesn’t matter whether there is authority. It’s a rule in the Talmud, and a Talmudic rule needs a Sanhedrin to change it—that’s another question. I’m now talking about the real question. Suppose there is a Sanhedrin. They seated the Sanhedrin now, and now the question is what do we do with such a thing? Is this a legitimate argument or not a legitimate argument? Why am I saying this? I’ll jump ahead, because this is often what frightens people, of course, and that is also my motivation for why it’s still important to deal with this. Because it has practical implications too, even though it’s a Talmudic rule and today we don’t have a Sanhedrin. As I said earlier, if I become convinced that this is right, and my only problem is authority, then if this thing is also harmful, I’ll suspend it. Do you understand? There’s importance… This is what all the conservatives are afraid of. I say to them: leave it, let’s discuss a hypothetical question. There is no Sanhedrin, I agree, we have no authority, we cannot touch things from the Talmud. I only want to ask a principled question. Suppose we were sitting today in a Sanhedrin: in your opinion, is there room for this kind of argument? A person can say to me: listen, there’s room for the argument, but we have no authority, we can’t do it. Usually you won’t hear that. Most of the time they’ll tell you: no, no, this is a value change; value change—we have the eternity of the Torah, we can’t go against the values of the Torah, this is borrowing from Western values, secular values, new winds blowing through the study hall, Reform, and all sorts of things like that.

Why do they say that? Psychologically I understand why—because they’re afraid of change. But what’s the problem? If we agree—if I tell them, we agree, there’s no authority, everything’s fine. It doesn’t work that way. Because if I understand that something is right, then even if there’s no authority, I can often find ways to do it in practice. One way, for example, is what I described earlier as suspension. And suspension has no limitations. But of course suspension has built-in limitations. Not limitations of authority—that you need a court greater in wisdom and number, or ordained judges, or a Sanhedrin, or anything like that—but limitations in the sense that it’s not enough for me just to disagree with what people thought in the past; I also have to conclude that preserving the old rule is harmful. If I conclude that preserving the old rule is harmful, then there is room to adopt suspension. And therefore this discussion is not merely hypothetical. It can have—at least it can have—practical implications, assuming I’m convinced that this really is right and that preserving the old rule is harmful.

[Speaker E] Yes, but for that, if you’re convinced it’s harmful, then you also don’t have to be convinced that this is right. Even if it really was right that women shouldn’t participate in court or in the judicial system for one reason or another—but today it’s harmful.

[Rabbi Michael Abraham] You’re right in principle, but it’s not exactly like that, because what does “harmful” mean? Obviously, even keeping the Sabbath is harmful if it doesn’t allow me to go study Torah in a study hall and hear a lecture given in another city, or if people look at me as backward and that creates a desecration of God’s name because I keep the Sabbath. Obviously the fact that something is also not right lowers the threshold of harm very significantly. In other words, if that is the right thing, then “there is neither counsel nor wisdom against the Lord.” And I’ll strip in the public domain, as the Talmud in Berakhot says, because I’m wearing forbidden mixed fibers. There is neither counsel nor wisdom against the Lord, because mixed fibers are forbidden. But if I reach the conclusion that the prohibition of mixed fibers today doesn’t really mean that—rather, it’s an authority issue, pragmatic, that’s what the Talmud established, but the truth is that if the sages were alive today they wouldn’t do this—then if I have a way not to strip in the public domain, I won’t strip. In other words, many times the consideration of what is right and the consideration of what is harmful cannot be sharply separated.

More than that: if it’s right, then even if it’s harmful in the sense of desecration of God’s name—not in the sense of some other harm, but in the sense of desecration of God’s name—still there is neither counsel nor wisdom against the Lord. It’s right, and that’s it. Let everyone who thinks otherwise swallow hard. Therefore I think that if I reach the conclusion that in truth it is not right today to disqualify women from testimony—but the issue is authority—and now suddenly I see that this is also very harmful, why is it harmful? For many reasons: first, desecration of God’s name, and the value of equality, and you end up acquitting criminals because the testimony against them is only women’s testimony, and women are invalid as witnesses. But if the truth is that women really ought to be valid as witnesses, then you understand that I will make the harm calculation much more readily.

[Speaker D] Today women aren’t accepted as witnesses in religious court? What? Today women aren’t accepted as witnesses in religious court?

[Rabbi Michael Abraham] Today there are no courts except in monetary law. And in monetary law, a court can do practically anything, either strict law or compromise, so it can do whatever it wants.

[Speaker D] As a kind of suspension—how do you suspend? But really that too is a kind of suspension.

[Rabbi Michael Abraham] Exactly. And I’m saying: in a place where they would judge capital law or… once we have authority. Today we rely on the fact that others pull these chestnuts out of the fire for us. If there were today a court that actually had to judge a criminal case, do you really think they would not accept women as witnesses? Of course they would accept them. Today we can all be purists and say in the study hall: what are you talking about, this is Reform, women are invalid as witnesses, and we’ll go with that all the way. We’ll go with it all the way as long as we’re not the judges. The responsibility isn’t on us. The civil court will already protect us from murderers, protect us from robbers, the police will protect us from whoever needs to be guarded against.

[Speaker E] But criminal law is anyway public policy, harmfulness—meaning on the assumption that it’s in the public domain.

[Rabbi Michael Abraham] True, true. And therefore this letter—this letter in Jewish law—is a dead letter.

[Speaker E] If, say, they renew the Sanhedrin and kill one person once in seventy years, then maybe they can live with that one time in seventy years. They won’t do it based on women’s testimony.

[Rabbi Michael Abraham] I’m not sure they’ll kill once in seventy years.

[Speaker E] Suppose. I’m saying even if they kill once in seventy years and administer lashes once a month to one offender. Okay, then that ceremonial display…

[Rabbi Michael Abraham] Obviously, but I…

[Speaker E] …mean, the regular system will continue to function as it does today, or differently, but basically, exactly.

[Rabbi Michael Abraham] So in the end, de facto, you are suspending it. So the Derashot HaRan itself is a mechanism of suspension. Derashot HaRan itself is a mechanism of suspension. What he says—that the king has authority to judge not according to the strict law, to punish not according to the strict law, to judge not according to the strict law—that itself is suspension.

[Speaker E] Can I say something else? The suspension Maimonides talks about is not the suspension of…

[Rabbi Michael Abraham] Yes, we discussed this once. In the end, today we don’t have a king. The parallel authority is also in the hands of the court. Therefore the court has to arrive at suspensions. In the past, when there was a king, the court didn’t have to reach suspensions; the king is the big refrigerator. The king—the whole institution of kingship—is one big mechanism of suspension.

[Speaker E] Can I say something else? The king—I can say that according to the views that the state today fills that role, from the outset his authority is to impose punishments without any need for the punishments of Torah law, without there having to be Torah law on that punishment. That’s suspension. But no—I think what Maimonides is talking about is something else: if we have some emergency situation where there is no way to manage otherwise, then you can bypass Torah law.

[Rabbi Michael Abraham] That’s exactly what the king does. The king, by the way—Maimonides himself describes this. The king can kill someone where it’s necessary even though, formally, he doesn’t have to. I’m talking about making a fence around Torah law, not someone committing a civil offense or some secular offense. Rather, someone who commits a religious offense, but the religious law doesn’t provide a solution for it—the king will kill him in order to close the breaches in religion and strengthen the walls of religion in their place, something like that; that’s a phrase along those lines. Now what happened is that we’ve already gotten used to a situation in which all authority has been concentrated in the religious court. The king’s authority has now been translated into the authority of the religious court to punish outside the formal law, which from Maimonides’ perspective is an example of suspension. Right, Maimonides brings this authority to punish outside the formal law as an example of suspension. The whole need for suspension arose only because the parallel track disappeared for us. So within the main track we need to create suspensions; if that parallel track existed, we wouldn’t need this. So basically you’re absolutely right: the law of the king—once that returns, once the secular authority…

[Speaker E] What do you mean, returns? That’s what exists today.

[Rabbi Michael Abraham] Exactly, right, I spoke about that, I spoke about that.

[Speaker E] What do you mean, returns?

[Rabbi Michael Abraham] It exists. No, I’m saying it exists without people recognizing it as such, only de facto. So I’m saying exactly—right, right—that’s precisely the point. And that is the mechanism of suspension itself. Now the question is: how far do you go with that? Because nobody would say that the law of the kingdom can permit the prohibition of pork. Could there be such a law? There’s no such law. Right. In a time of need, you can also act outside the formal law, even through positive action. I brought medieval authorities (Rishonim) who say that the Sages can uproot something from the Torah even through positive action when the time requires it. I brought the example of killing an informer. Killing—that’s positive action, and not only positive action, it’s murder, the prohibition of murder. And this was something that was not established by the Sanhedrin; it was established already in a period when there was no Sanhedrin. But this is not included in the law of the kingdom, because the law of the kingdom of non-Jews certainly would not include this. Now the question is what happens with a Jewish king. Where does that fit in relation to the mechanism of suspension.