Renewal of Halakha or the Destruction of Halakha – Part II – Ne’emanei Torah Va’Avodah

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[Speaker A] My teachers, colleagues, and ladies, first of all I’m very happy to meet good friends here, and also family members, so it’s a good opportunity to come here. And second, I have excellent news for all of you: this evening will end much faster than you thought. I can make do with four words: I agree with everything that was said. I was invited here, and the esteemed moderator also called me—granted, a bit late, but still she called me—and asked me not only to polemicize with my predecessors, not only to argue and so on and so forth. That can also come in on the margins, but fundamentally to express an approach, to express something of my own, and so on and so forth. Moreover, the organizer of the evening, Maoz, also sent me two articles by my friend—I can even say my colleague, we were practically soul-to-soul not long ago at a conference—he sent me two articles by Rabbi Dr. Michael Abraham in order to sharpen, intensify, and debate, and so on and so forth. And unfortunately, you didn’t say a thing, not half a thing, from those matters, so apparently there’s a difference between the Written Torah and the Oral Torah, or maybe it’s the D after A, B, and C that you didn’t get to. I don’t know. But in any case, to the matter itself.

In any event, on the substance of things, I have to say that what was said here is almost—I’d say—agreed upon in general, aside from some small detail here, some small detail there; you can always comment, but that’s really secondary and lacking in importance. So as I said, I open by saying that with the main points, and with the overwhelming majority of what was said, I agree. And perhaps to some extent I’ll relate to Rabbi Dr. Michael Abraham’s remarks as an opening to what I want to say, so I’ll be D. I’ll perhaps relate a bit more to details, and maybe from that also to distinctions and to more specific kinds of categories, because my two predecessors really spoke on more elevated planes, up in the heights of theoretical Olympus, and I think we also need to come down to the practical level.

Since it seems to me that there is one point, as a point of departure, that wasn’t so clearly mentioned, although it was hinted at a bit in the moderator’s remarks. It seems to me that the starting point for this conversation, this discussion, this evening, is a feeling of discomfort. The feeling is—whether justified or not justified—but there is a feeling of lack of renewal in Jewish law. There are statements about a lack of renewal in Jewish law, there is writing about a lack of renewal in Jewish law, and so on and so forth. And whether that testifies to distress, or stems from distress, or generates distress, in the end it seems to me that this feeling is the basis for the discussion and for gathering here tonight. The reason for this celebration is, admittedly, the book by Dr. Meir Roth, but in essence that is the central pretext.

Rabbi Dr. Michael Abraham was certainly, certainly right when he analyzed the title, and I’ll already follow in his footsteps: without a doubt, the absence of renewal in Jewish law is the destruction of Jewish law. This follows—not only is it not an innovation of our day, it’s also not an innovation of the past. It’s an old, ancient, elderly statement. Right? Rabbi Natan of Rome, the author of the book Arukh, when he defined the concept of halakha, said that it derives from the root of walking, because halakha goes and goes and goes and goes. You don’t always notice it, because you live within one generation and you don’t always have the perspective of what came before you and what will come after you. Sometimes you’re focused on the angle of your own present. But Jewish law is constantly going and moving, going and moving, and so on and so forth. That is its very essence. So it goes and goes and goes. You need some kind of viewpoint, maybe a little external, a little from outer space, in order to examine things, but that’s the fact.

Except that within this movement you have to distinguish between stages, processes, and results. Deliberately, I don’t want to speak about more theoretical aspects but rather more practical ones, so I’ll skip, for example, a very extreme statement of Rabbi Kook, whom I think, in a simplistic view, we would place among the conservative camp, whereas in truth he is in very innovative places. But he has a fairly extreme statement that appears in one of the books published recently, Perplexed of the Generation. Yes, published, not published—although the day before yesterday I already saw it in Steimatzky and in Yediot Aharonot, so that’s already publication enough. A statement that one can even innovate within the very theoretics of religion itself, according to the spirit of the generation, according to the spirit of humanity, and so on and so forth. That is a very, very extreme statement. But even before those things were published in Perplexed of the Generation, he had already expressed statements to the effect that the spirit of the people and so on and so forth can very much influence Jewish law, and even create daring that borders on breakthrough—a groundbreaking breach. He also brought many examples from time to time on this subject. Meaning, yes, the spirit of the people and the actions of the people have not infrequently—but many, many times—influenced halakhic decisors to reexamine matters, and so on and so forth.

True, this is done within certain restraints, certain limitations, some more distinct and some less distinct. I do want to mention a concept that I’m used to using a lot, even though it is not a halakhic concept, it is not a common concept, it’s not even, I think, an accepted sociological concept—but I think it is a very, very useful concept, and that is halakhic disability. Disability in the sense of limitation. We are in a state of halakhic disability. I have no doubt that if there were a Sanhedrin in our time, they would make many very significant changes, and I would even say dramatic ones, in Jewish law. Let’s take one example that was mentioned earlier, regarding the second festival day of the Diaspora. As far as I’m concerned, there is not the slightest shadow of a doubt that they would abolish the second festival day of the Diaspora. I have no doubt about it. There is no real substantive reason regarding this issue of the second festival day of the Diaspora. But we have the halakhic framework that makes it difficult for us to make these changes—whether it makes it difficult or whether it simply does not allow it—but in any case, bottom line, we observe the second festival day of the Diaspora even though we are in a situation where, seemingly, this should have been changed.

So assuming we get through the paragraph before “Restore our judges as at first, and our counselors as at the beginning,” then tomorrow morning you’ll have better intention when saying that prayer, and then we’ll have a Sanhedrin, and yes, it will change. But it’s not that the matter is impossible—it is possible. We are just in a certain status in which, unfortunately, we have halakhic disability. The absence of the Sanhedrin is one example, but there are also other examples that impose additional restraints on us.

Perhaps one should also mention, as a principled matter, that Jewish law—whether, by distinction or not by distinction, like law, or I would even say like constitutional law—it is neither desirable nor correct for it to change every other day. In the laws of the State of Israel, there still isn’t a constitution, but there are Basic Laws: Basic Law: Human Dignity and Liberty, and so on; the judiciary law, and so on. There are several Basic Laws. Within every Basic Law there is a clause, and a significant clause, which states briefly that this law may not be moved around every other day. You can’t alter it without such-and-such a forum, a special majority, and so on and so forth. Why? Because that is the nature of law. Law cannot change every other day based on the whim of three-and-a-half members of Knesset. And here too, if we can draw an analogy to the matter of Jewish law, it is not right for Jewish law to change every other day. And yes, it is right for Jewish law to be dynamic, as we said—halakha from the language of walking.

I’ll give one example, perhaps to sharpen three approaches to the issue of the state’s eruption into the world of Jewish law after two thousand years of exile. That is a fact. The fact is that for two thousand years of exile we did not deal with issues of sovereignty and their implications. And that has many implications, some small questions and some very large ones. With the establishment of the State of Israel, of course this issue came to the table of kings, whether among philosophers of Jewish law or among rabbis. And for our purposes, let us mention very briefly three approaches.

One approach—which for our purposes, and in a really very simplistic way, we’ll mark with Yeshayahu Leibowitz as its flagship: Professor Yeshayahu Leibowitz, as someone who was, among other things, a philosopher of Jewish law—came and said that the practiced halakha, for our purposes the halakha of Rabbi Yosef Karo, is irrelevant. Rabbi Yosef Karo did not understand, did not know, and could not have known what sovereignty is, and certainly not sovereignty in the modern sense of the word. Therefore, his whole legislative system in the Shulchan Arukh—and of course I’m using that term stereotypically—is irrelevant. Irrelevant. And now the time has come to make a very clear cut between what was and what is, and to begin things from the infrastructure, from the foundations, from the most basic principles. And practically speaking—to put it in extreme terms—not to take into account things connected to sovereignty and statehood and the like in the Shulchan Arukh, because we need to start everything anew. I’m not talking about the laws of blessings, and I’m not talking about laws of that kind, of course, or the laws of tefillin; but things that concern sovereignty and the state. That is a fundamental and very, very principled claim.

Against that claim, Rabbi Moshe Tzvi Neria of blessed memory strongly objected in an article in three parts. He later received broad rabbinic backing—both along the way and afterward—and the leading writer and supporter was Rabbi Herzog, who greatly reinforced his statement in his capacity as Chief Rabbi of Israel, and so on and so forth. He said that everything is there—not necessarily specifically in the Shulchan Arukh, but everything is there in the Shulchan Arukh and its predecessors, and certainly in Maimonides, and before him in the Babylonian Talmud and the Jerusalem Talmud, and so on and so forth. Meaning, as a theoretical, philosophical basic premise, and in practical implementation by way of—let us mention one of the most common and accepted tools in Jewish law—by way of analogy, comparing one matter to another. By means of analogy, we will be able to find a solution for every issue and every question that arises. And now let us examine these things in practice.

So on the issue of electricity in the state—not private electricity—we’ll find a solution. And the army—we’ll find a solution. And the Foreign Ministry—we’ll find a solution, and also the Ministry of Agriculture—we’ll find a solution. I’m even taking definitions that are complicated and complex, like the Foreign Ministry; we won’t go into that issue now, which has barely been discussed. But yes, Rabbi Neria claims, yes, we can also ground the laws of the Foreign Ministry on analogy from one matter to another. It’s complex, it’s complicated. This break of two thousand years of exile challenges us tremendously. How can we bridge the gap between the Hebrew Bible (Tanakh), or the period of Solomon, and our own day? The sovereignty of then is not the sovereignty of today. These are very, very tangled questions and issues. Professor Yitzhak Cohen here touched on some of these matters in relation to the army. Yes, these are indeed tangled and complex issues—how one can take the wars of David and project them into practical Jewish law in our day. But Rabbi Neria argues that this is possible through analogy from one matter to another.

So we have here two approaches. Two approaches, distinct in their difference, and of course they have many implications. In practical terms, we all know that the prevailing halakha among us, for our purposes—in quotation marks or without quotation marks—the ruling has gone like the second model, and we see these things in practice. Indeed, halakhic decisors in our day try to follow this model of analogy from one matter to another. This model requires innovation. It does not permit conservatism. It itself is a conservative model, but as a method—and therefore also in implementation—it requires innovation. It obligates you to provide answers again and again to various issues which, as mentioned, your forefathers never imagined in this aspect, in the modern sense of the term.

Following on from what was said earlier, I think that halakhic innovation can be classified—again, in a very schematic but easy way—into three categories. The first category is things that are possible and desirable as innovation. The second category is things that are possible as innovation but not desirable as innovation. And the third category is things that are not possible as innovation.

We have many, many things that have been done in recent decades—not to mention recent centuries—but for our purposes let’s focus on the last few decades, and they are possible as innovation and desirable as innovation. That doesn’t mean they are agreed upon. Obviously not. By their nature they cannot be agreed upon, because things are processes, and therefore something that is by nature innovative is not agreed upon and not accepted overnight, and that is self-evident. But we have very, very many examples of things that are possible as innovation and desirable as innovation—at least desirable in my own eyes, in the eye of the beholder. Of course one can disagree with that.

You kindly mentioned earlier the issue of things in which women challenge the halakhic decisors, so let’s take as an example Torah study for women. That is certainly one of the great innovations made over the past decades, and slowly it is becoming almost a convention—at least in a certain public, in a certain population, it is becoming more and more of an accepted norm, and it is highly likely that these things will be expanded more and more. This is definitely a major innovation. It definitely rests, for our purposes, on the foundations of analogy from one matter to another. It is not a breach in Jewish law, even though one could portray it that way. But it can also be grounded, and it is spreading more and more and more. So it is possible as innovation; on the foundations of traditional development one can attach it to traditional development, one can anchor it in traditional development, although of course there is innovation here. If you take the perspective of one hundred years—not to mention two hundred or three hundred years—then clearly from such a perspective this is indeed innovation, innovation of a kind we would almost say your forefathers never imagined, and yet they did imagine it, and so on.

Prenuptial agreements, which are now being discussed extensively as part of the Tzohar Rabbinical Council—I was a bit involved in those matters—are certainly on the table right now. So today it appears more—perhaps it is like women’s Torah study twenty years earlier—something becoming more and more relevant, and in another twenty years it will be in the hands of the public; it will be self-evident. The deaf person, which was mentioned earlier—I also mentioned it in the book. So again, there were halakhic decisors who clung to certain categories, categories that in effect made things unusable. I actually had the privilege, about two weeks ago, to visit the Museum of the Deaf in Holon, which is fascinating, and I recommend that each and every one of you go there, because you see the sociological and cultural transformation and so on and so forth, and the practical halakhic implications of that as reflected by halakhic decisors—not only from the last decade, but already twenty and thirty and even forty years back. A responsum of Rabbi Weinberg is very, very important on this matter, not only because of its bottom line, but also because of the method he adopts in order to attach these things, as stated, to analogy from one matter to another and to make this possible. And so on and so forth. Those are three examples; one could give not thirty but three hundred, perhaps even three thousand.

Possible as innovation but not desirable—that is, of course, in the eye of the beholder. Three days ago my son sent me some article published on the internet or somewhere of that sort, that now in the United States, in an Orthodox school or Modern Orthodox—which is still Orthodox—SAR, for those who know, know, the principal permitted women to put on tefillin, to wear tefillin during prayer. Yes, one can find Talmudic precedents for this. One can—and they exist—in the Talmud and also in the literature of the medieval authorities (Rishonim), and afterward as well. Is this desirable? I won’t go into the whole controversy over this issue right now. In my opinion, it is not desirable. Is it possible? Yes. Desirable? No.

A uniform prayer rite, which was mentioned earlier—yes, one can arrive at it, one can anchor the uniform rite in traditional halakhic literature and so on and so forth. Rabbi Goren was very, very inclined in that direction. One can anchor the uniform rite in traditional decisional literature and so on and so forth. In my humble opinion—and here I continue things that Rabbi Kook said in his time; he said it regarding the rite, he said it regarding pronunciation—no, it is very, very undesirable. On the contrary, very, very desirable—at least at the current stage, until—we spoke about halakhic disability—let the righteous messiah come and then we’ll talk differently, but for now, as things stand, no. I see no reason whatsoever to do that, even if it is possible. I think it is undesirable, and I would even say the opposite: it is very desirable not to change the different rites and the different pronunciations and so forth. In my humble opinion, there is no reason to do that, even though it is possible.

And there are things, as stated, that are not possible to innovate—at least at the stage where we currently are. We spoke about the second festival day in the Diaspora. One could speak about other examples of this sort. The whole story of indirect causation in damages, which the religious courts have a very hard time dealing with when they adhere to Jewish law—I’m not talking right now about arbitration, I’m not talking right now about ways around Jewish law, not with an aleph, Heaven forbid, but with an ayin—ways around Jewish law. That’s just my pronunciation, nothing more. Ways around Jewish law. Yes, one can cope, but if you take the bull by the horns, it is very hard for the religious courts to deal with that. This is done and applied and so on, but here there is really a pressure that is on the edge of the impossible if you really take the bull by the horns.

Or for example muktzeh. Quite a few of the laws of muktzeh on the Sabbath go back to what we said about the second festival day of the Diaspora. In my humble opinion, if there were a Sanhedrin today, they would change things here in a way that I would even say was extremely dramatic. By the way, some toward leniency but also some toward stringency. They would bring quite a few things into prohibition just as they would take quite a few things out into permission. I won’t go into details, but there are many examples of this type. Yes, this matter is on the borderline of the impossible under the halakhic premises we discussed.

Therefore, when we speak of innovation in Jewish law—not necessarily innovation in the buzzword sense, but innovation in Jewish law—and we go with the central prevailing model in the strategy of halakhic ruling, that of analogy from one matter to another, then these categories are activated. Sometimes they lean to the right, sometimes to the left, and naturally, of course, personalities and approaches are very much at work within this playing field.

I completely agree with what Dr. Michael Abraham said—I say this over and over again—that the concept of the stringent and the lenient in Jewish law is a very secondary concept, very formulaic, and also very, very imprecise. Following, against the backdrop of the passing of Rabbi Ovadia Yosef of blessed memory, I wrote an article because it irritated me so much that journalists—who by nature are the main writers on these matters—the main thing they talked about, or not the main thing but one of the main things in Jewish law, was the principle that the power of leniency is preferable, Rabbi Ovadia’s power of leniency, which is true, no doubt. But one has to get the perspective right. And then I brought a collection of cases in which Rabbi Ovadia was stringent. I brought maybe five or six or seven examples. Believe me, there are twenty and thirty as well, and of course each one needs to be checked on its own merits. Because there is no doubt that the power of leniency is preferable was a significant principle in Rabbi Ovadia’s halakhic rulings; no one disputes that. He himself said it, he expressed it in writing, in responsa, he expressed it orally, and so on and so forth. But even so, despite everything, one cannot turn him into some formulaic figure who always follows the lenient position and says yes to everything asked of him. No. On certain matters he said no and was stringent. And I’ll say more than that: in certain places he was stringent where one could have been lenient. And there are quite a few examples of that, for particular reasons, each case on its own terms, but the thing exists.

Therefore, this whole matter of the stringent decisor and the lenient decisor—that is a stereotypical statement, although like every stereotypical statement it also contains a shade of truth. One certainly can come and say and point to certain halakhic decisors who have a significant weight toward stringency, a significant weight toward leniency, particularly when they themselves say these things openly. That doesn’t always happen. It doesn’t always happen. I said I’d add a few more words, so fine.

So when they themselves say such a thing, certainly that is part of what is significant. One point, and perhaps with this we’ll conclude, regarding a concept that in the academic Talmudic world it is customary to speak about, namely, narrative closure. This is actually something Rabbi Dr. Michael Abraham wrote about in an article, and I thought—I hoped—that this is what he would address, because that would have given me something to talk about. But he didn’t give me something to talk about, so I had to talk about other things. Narrative closure.