Q&A: The Scope of the Halakhic Authority of the Sages in Defining Things in Reality, and Further on Sexuality and Gender in Jewish Law
The Scope of the Halakhic Authority of the Sages in Defining Things in Reality, and Further on Sexuality and Gender in Jewish Law
Question
Honorable Rabbi Michael, hello and have a wonderful week!
I wanted to ask further: I wonder, under whose authority is the definition of things / objects / entities / people who are entities / my own self, to which Jewish law applies? And I am speaking about our time, when there is no power to enact new laws. Or perhaps specifically in this matter there is power?
I, as someone who deals in philosophy and sees himself as obligated to pass on good and correct views as my primary role, am very tormented in conscience by the suffering that the Torah I hold to sometimes causes people, and this brings me to special engagement with this question. In my view there is natural morality and “you shall do what is right and good,” which obligate us to think also in halakhic tools toward solving personal problems.
If Jewish law requires taking an etrog without a blemish, and I think it has no blemish, but all the sages of the generation think it does have a blemish—when I take the etrog and recite the blessing, have I fulfilled the commandment, or have I recited a blessing in vain?
And let us assume this is not literally a case of “they tell you that left is right.”
I read an article saying that there are homosexuals whose brains are more similar to those of a woman. I am skeptical about that. But I am interested in whether that is worth investigating for purposes of Jewish law.
Suppose I desire to sleep with a homosexual whose brain resembles that of a woman (personally I have no such attraction to men, but suppose I were homosexual). And suppose that philosophically it seems to me that what is more relevant in determining a person’s maleness is brain structure. (I even found a nice linguistic sharpening: “male” from the language of memory, and “female” from the language of specifying out of memory; male corresponding to the sefirah of wisdom, and female corresponding to the sefirah of understanding. The male also has the commandment of tefillin as a remembrance, which the female does not, and he is mainly responsible for transmitting the memory of tradition in the traditional role, while women more need to learn the details of finalized laws in the traditional role. And let us say that the right brain, which is responsible for holistic perception like remembering, is more developed in men, and the left brain, which is responsible for specifying details out of memory, is more developed in women. By the way, a tumtum is one who has neither wisdom nor understanding, and both sex organs are covered, and from here: “blocked up” in wisdom and understanding.) After all, “one woman to her sister” is said about the rings of the Tabernacle, and it is hard to distinguish between female and woman; the rings are like “women rubbing against one another.” More than that, regarding an androgynos it was not clear to the Sages that it is a creature unto itself, despite the physical sexual difference from both male and female together. And if that is not convincing—one can ask the question also about a person who underwent sex reassignment and literally has an “opening” below.
But the main question is: if I define the person before me as a woman, do the sages have halakhic authority to define that person for me differently?
If I want to sleep with a “feminine” person who has male genitalia, and I define that person as “female,” based on my philosophical considerations, am I legally required to listen to the sages of my generation, who say that he is considered male?
And beyond that, if there is a commandment to marry, as some halakhic decisors write, am I obligated to marry the one I define as female, while rabbis today define that person as male, if otherwise I would not marry at all?
Who determines how death is defined—according to the heart or the brain—scientists or the Sages? And do I need to listen to the sages of my generation if I think differently in scientific understanding?
Again, I have no evidence at all that the brains of certain homosexuals resemble those of a woman, or that there are clear lines for “feminine” behavior. But is that relevant to a private individual’s decisions, assuming rabbis rule otherwise?
And further—if I think of myself as male, am I allowed to “cause someone else to stumble” who thinks of me as female? Or is that his commandments? Is it forbidden for me to be active and help someone who holds a different view than mine? Is it permissible for me to donate food with Rabbinate kosher certification to the poor if I am strict only to eat Badatz certification?
Thank you very much, and more power to you for your work!,
Ofir
Answer
None of today’s rabbis, nor any halakhic decisor after the Talmud, has any authority on any issue. If you are convinced of your definition, and you think it would also stand the test of the Talmudic sources (which do have authority), then you may act accordingly.
One can discuss this from the standpoint of custom or accepted practice, but certainly in a case of great distress that is not enough to obligate acting contrary to what I am convinced of.
Discussion on Answer
That is why I brought up the issue of brain death and cardiac death. I am not expert in the topic and nowhere near being one, but it seems to me that there was a basic motivation to discuss the subject from a halakhic perspective only because the definition of the essential properties of the noun “death” changed scientifically. In the end, did they rely on the Talmud alone? Without the development of science, would they have arrived at the conclusion of brain death (those who did arrive at it)?
*the definition of the essential properties
By whatever interpretive tool seems to you to lead to the correct definition.
As an aside, regarding the definition of death—to the best of my knowledge, the definition in the Talmud is according to breathing, and since brain death causes cessation of breathing (immediately), that is the plain meaning in the Talmud. (I do not know the reasoning of the halakhic decisors who require specifically cardiac death.)
You wrote: “the test of the Talmudic sources.”
It is still not clear, and I would be glad to understand the reasoning behind your answer, with a certain sharpening:
Do I need to bring proof only from within the framework of the Talmudic sources? Or does an analysis of Talmudic language, together with my own metaphysical and scientific thoughts that were not stated at all in the Talmud, but in addition to them involve knowledge that exists only in my own era and on whose basis I do renewed thinking—such as essential and accidental definitions of the being called in language “male”—do these have validity for defining the entities the Talmud speaks of in light of our renewed understanding?
How can one know the answer to this question?
Seemingly, I have no alternative but to understand the entities that language speaks about according to the understanding of my own time.