What If You Eliminate the Truth?

First, we can sometimes dismiss as impossible that which is actually true. As we then deal with “whatever is left,” we will already have lost that which we sought most.  The problem in giving examples of this is that readers may still reject them as “impossible,” and would dispute my assessment that we are struggling to find our way when we have already dismissed the truth.

Perhaps the following example is theoretical enough to allow me to make the point without raising any hackles: In my book, Murderer in the Mikdash, I portrayed a post-Messianic society in which not all problems had yet been solved, not all Jews were fully observant (or fully virtuous) and yet which was much closer to an ideal Jewish society than we have today.

Many, many readers were intensely uncomfortable—even distressed—by the portrayal; some even characterized it as a dystopia, as a sardonic suggestion that we would never find the perfect society.  Even as readers agreed it would be better to have a Beit haMikdash, a Temple, than not, better to have a State of Israel that runs to some extent according to Jewish law than not, they still held that a not-fully-perfect Messianic society was “impossible.”

When they spoke to me, I would push them on the point, asking whether they would prefer a society that was imperfect but getting slowly better, or wait an extra two hundred years for a miraculous, immediately perfect Messiah.  Almost all chose the latter.  I was particularly struck by the realization that that was exactly the choice Orthodox Jews made in the early days of Zionism, rejecting the imperfection of working with those who had a vastly different view of Judaism in favor of waiting for a more perfect advent of renewed Jewish life in the Land of Israel.  Hearkening back further, it was also what happened at the beginning of the Second Temple, when so few Jews returned to Eretz Yisrael at Cyrus’ call.

The Lost Opportunity of Such Thinking

I would have thought we would have learned the lesson, since our hesitance back then led to a State significantly less attuned to religiosity than it might have been.  Imagine how different Israel would look today if hordes of Orthodox Jews had joined early, draining the swamps, risking malaria, and the other hardships the early settlers went through: what kind of State would have come into being in 1948?

One danger of eliminating the impossible, then, is rejecting as “impossible,” options and opportunities that are merely difficult or unlikely.  But I want to spend my time here on those ideas or phenomena we make impossible, not because they are inherently so. 

For a small example, I recall a conversation in which I once suggested to a Jewish Day School principal that all graduating 8^th graders should have read all of Chumash with Rashi.  It was the response I found so memorable, “It can’t be done.”

What the principal meant, I assume, is that, given the various commitments and concerns we have for our students, accomplishing that task has become impossible.  The fact that Jewish students throughout history have easily achieved such textual proficiency by that age suggests that were “we,” whether as schools or communities, to develop other commitments or views of how to educate children, that particular impossibility—and others—could be conquered.

Impossibilities We Create

Our decisions in life can also create more intractable impossibilities; we think about them as an exercise in self-understanding, not seeking practical change.  For the example I most want to take up here, it is, I agree and admit, impossible to have Jewish students attend public schools and get their Jewish education in supplemental programs.  If I thought otherwise, I would not raise it here, because Text and Texture is not a policy forum; I raise the idea not to advocate it, but because examining that impossibility will teach us a great deal about what we lose in allowing certain ideas to become impossible.

In this case, one of the prime and obvious losses in rejecting public schooling is money and all it can bring.  At least since the recent economic downturn, but even before that, the crushing cost of Jewish education was obviously unsustainable.  The cost affects family size, creates pressures to earn a level of livelihood that creates conflict with other significant Torah values (the easiest example being how much Torah an adult Jew needs to learn daily), and eats into the funds available for other worthy Jewish causes.  There are certainly other aspects of the problem, but most pressingly, were we only able to take advantage of public resources, we could save nearly half the cost of Jewish education.

I will come to the reasons we cannot do so—good, strong, solid reasons— but let me stay with the cost of that fact for a bit more.  We already pay for public schooling; that fact leads some of us to lobby for some kind of voucher program, so that our failing to partake of public institutions leaves money on the table and puts us at policy odds with those striving to protect the public schools. 

Along the same lines, Orthodox participation in public schools would deepen and improve our relationship with the community around us.  Since many of these students come from homes that care about and value education, with parents who readily involve themselves in helping out their children’s schools, they would likely be a boon for those schools as well, which we would hope would generate increased goodwill for the Jewish community.  That is not a reason to do it, but another advantage to note. 

Yet It Is, Clearly, Impossible

What, then, are the downsides that make such an idea impossible?  One which I suspect looms large for many Orthodox parents is the fear of the influences in such an environment.  While the social problems we see in the society at large certainly exist within our own community as well, I suspect that many parents feel that the self-selection of those who send their children not only to private school but to an Orthodox Jewish one offers some insulation.  Perhaps to a lesser extent but still relevant, we might worry about the values of the broader society to which our students would be exposed, many in opposition to those set by the Torah.

Both worries are valid, and yet appear odd in the following sense: at least in the Modern Orthodox community, but even to some extent in the Centrist one, these concerns intrude elsewhere only relatively minimally.  These same parents will have no problem with their children participating in extracurricular activities with the same kinds of children they would meet in public school—Little League, dance, drama, whatever—and will censor their children’s exposure to the outside culture’s music, TV, movies, and books only minimally.  Most of these same parents will expect and want their children to attend secular colleges, and then make their professional way in that society and culture as well. 

I am not criticizing those choices, but rather am pointing out how they seem to run counter to this aspect of the concern that leads us to insist on separate Jewish schools even for the General Studies side of the educational day.  I recognize and am sympathetic to the response that at younger ages we need to insulate our students from the full exposure they will get later in life; I am only noting here that the cost of that insulation runs into the millions of dollars and comes at the expense of other worthy causes, such as helping the poor or advancing medical research, conditions that have no other options than struggling forward at great cost.

And Your Torah, What Will Be Of It?

I suspect, though, that the worries about mixing with those around us are not the central ones keeping Orthodox Jews from utilizing society’s resources for a General Studies education.  The experience of the Jewish community of the mid-40s and 50s, where Talmud Torah education proved wholly inadequate to transmit even the basic grounding in Torah, mitsvot, and Jewish thought seemed to highlight the necessity of a Jewish education that covered the whole school day, in which the environment of the school was one of Jewish values and ideals throughout the day.

Again, I do not write to disagree with that assessment, I write to note the cost of that reality.  First, what was true back then would not necessarily have to be true today.  Talmud Torahs may have failed for many reasons no longer relevant to our discussion. Most importantly, it seems to me, Talmud Torahs were not given nearly enough time to be successful.

The issue of time sits at the center of why any public school use plan could not work.  If Jewish students were going to be in public schools for seven hours a day five days a week, it would leave too little time for meaningful Torah education.  But much of that is because we are not willing or able to insist that our students use the tracts of free time left to them for their Torah education.

Students who finish school at 3pm—as the public schools do—could, at least at older ages, take up to an hour break, and still have three full hours for Torah study.  This would mean their day ended at 7pm, I understand, which may be too rigorous a schedule for us to contemplate.  It would certainly cut into the amount of time these students had for piano, art, ballet, and sports.  Of course, in more “right-wing” Jewish communities, the school day ends at 7 and is focused even more fully on Torah studies. 

And, to offer a fully meaningful Jewish education, that would not be the end of the story.  We would need to insist that our students also spend at least two hours on Shabbatot and another 3-4 on Sundays.  Such a schedule, I note, would still only give them 17-20 hours a week of Torah study, as compared to the thirty or more they would be getting on the General Studies side.  Over the course of a 38-week school year, that is a deficit of some 380 hours just to reach parity.

Here, the structure of public education offers us another untapped opportunity.  Whereas many Modern and Centrist parents accept the necessity of a ten-week summer vacation, we might alter that expectation, and sandwich a summer school (for Torah studies only) around two two-week vacations. The middle six weeks could have a full four to five hours of Torah studies a day, six days a week, with camp-like activities for the rest of those days, at the very least cutting into the deficit that our school year created.

I don’t offer these numbers or ideas with any sense that they could be seen as practical; I offer them to show an example of what we reject as impossible and the consequences thereof.  The system I outlined, impractical as it is, would cost the Jewish community significantly less than Jewish education does now, and would, if we tallied it all up, likely give our students close to the amount of Torah studies they get now, and perhaps more (in many schools, students get a maximum of three hours a day for the 180 official school days of the year).

I imagine other benefits of such a system, but there is little point in elaborating on them, since there is no way it would be implemented.  Let me close, then, by considering out loud why there is no way.  Well, first and foremost, parents and students would bristle at the rigors of the program—so much learning? Kids having to be in school until 7 every night? Having to spend their summers with a full half-day of Torah learning? Having to spend significant parts of Sunday morning studying Torah rather than playing ball, taking dance, or learning an instrument?  Rushing off on Shabbat to learn rather than hang out with friends and family?

The impossible is impossible, I agree; but using it as a mirror lets us see ourselves as we otherwise might not, lets us recognize our most basic commitments, the goals most important to us, and those that we will let slip by the wayside if circumstances dictate.  Whatever is left, then, is not necessarily the truth, it’s the percentage of the truth we are able to tolerate.

1. a quality I personally seek, as in my Mission of Orthodoxy posts, at blog.webyeshiva.org

I would like to commend my colleagues and friends, Rabbis Brody, Klapper (here and here) and Rothstein (here and here) for their stimulating and substantive posts in the last few weeks, partially in reaction to my original post on two halakhic issues that have been raised regarding the issue of expanding women’s roles in communal and spiritual leadership in the Modern-Orthodox community. They are a model of how these issues should be discussed, i.e with sober reflection, dignity and respectful interaction.

Below are some comments on their postings.

1. R. Rothstein begins the process of sharing with the public his attempt to tease out some conception of the nature of “traditional Jewish womanhood” as “constructed internally from the sources”.  As R. Rothstein notes at the end of his piece he does not leave us with a finished product and clear outline of what “womanhood” looks like. He does feel, if I am reading correctly, that he has delineated key areas in traditional sources both from the Torah, Biblical law as explicated in the Oral law, and purely rabbinic law as codified in the halakha, which must be central to the discussion. And if I read him correctly, he points us in a specific direction that leans heavily toward a more traditional conception of women’s role in Judaism. He offers some tentative thoughts on what these sources imply but leaves us with a recognition that much more work needs to be done.
2. R. Rothstein at the beginning of his essay argues that some of his interlocutors reject the notion of taamei hamitzvot or that halakha has a telos in which the mitzvot attempt to direct us to behave and act in certain ways, become certain kinds of people and adopt certain ways of viewing the world. I cannot speak for others, but I certainly am a devotee of these exact notions and often have bemoaned that in much of the Orthodox community (both to the right and to the left) the halakhic system is perceived as a type of obstacle course that one must “get through” in life. I fully subscribe to the notion of the halakha as having meaning and purpose and telelogical goals that God is trying to convey to us. Indeed, these are some of the fundamental lessons I learned directly and from the writings of my teachers, shul rabbis, and colleagues such as the Rav zt”l, Prof. Eliezer Berkovits z”l, and yebadel lechaim tovim vearulim, Dr. Norman Lamm, R. Shlom Riskin, R. Saul Berman, R. Avi Weiss, and mori verabi, Rav Yehuda Amital and mori verabi, Rav Aharon Lichtenstein. The question is not therefore whether one accepts the notion of telos and goals but a) if one can always figure out the “unequivocal” nature of that message and goal or b) if there are sometimes conflicting messages and goals in one area itself that express itself in dialectical tension and nuance.
3. R. Rothstein surprised me by beginning his attempt to tease out the nature of “traditional Jewish womanhood” by immediately jumping to the distinction between men and women that emerges from the rabbinic exemption from certain time bound commandments. I believe that any discussion of womanhood must begin at the beginning and that is that each person, both male and female, was created in the image of God (Gen. 1) and that each person stands before God as a metzuveh  (Gen 2). That is, every human being, male or female, is endowed with the whole range of talents and abilities that come under the rubric of tzelem elokim including the capacity to think, to reason, to create, to conquer (in the best sense of the word) to achieve and to follow in God’s ways.

Secondly, every human being stands as a commanded being before the Almighty where avodat Hashem has to be central to their very being and purpose in life. This all has to come at the beginning before any discussion of distinctions, role differentiations or differences. R. Rothstein makes passing reference to Nehama Leibowitz zt”l. One of Nehama’s favorite comments in all of parshanut (she would come back to it over and over in her sheets and in classes) was the profound words of R. Isaac Arama commenting on Rachel’s complaint to Jacob that she was barren and Jacob’s rebuke to her, that women have two names in the Bible: Isha (derived from Ish) and Eve indicating the primary purpose which is to stress that “like man you may understand and advance in the intellectual and moral realm” while the role aspect of the woman as childbearer and nurturer of the family is the “secondary purpose”. Before we speak of distinctions we need to begin at square one.

4. R. Rothstein rightly notes many of the halakhic areas where men and women are distinct, including the area of marriage law: “while women are required by the Torah to make a commitment to one man…a man could marry several women”. R. Rothstein continues to speak about the reality that according to Torah law only men can initiate divorce. He then goes on to consider other aspects of the stark differences in halakah between men’s ability to play certain ritual and political roles from which women are excluded such as the priesthood and the monarchy.

 R. Rothstein, however, leaves out any discussion of the halakhic reality and sources that indicate that in some areas of ritual, marriage, and inheritance law, biblical and especially rabbinic norms (which R. Rothstein has included in his discussions as indicative of the meta-values of the system) clearly moved in the direction of narrowing some of the gaps between men and women. These include the Biblical recording of the bnot tzlofchad episode indicating God’s recognition of the need to tweak the inheritance laws; the various statements and takanot of Hazal in they which they spoke of “shakdu hakhamim al takanot bnot Yisrael”, “mishum igun akilu bei rabbanan”; the halakha that they permitted women to do semichat hakorban in the Temple-laasot nachat ruah lanashim; the limitations on polygamy and unilateral divorce by men codified by Rabbeinu Gershon etc… Hazal and the Rishonim seem to have been balancing certain clear distinctions that are inherent in the Torah legislation with other Torah values and principles that needed to be brought to the fore.  These Torah values appear to include the desire to protect the dignity of the woman, kevod haberiyot, the view that the ideal marriage relationship is one of “vehayu lebasar echod” and other meta-halakhic values.

        It is interesting to note that on the very topic of marriage and the fact that men can marry several women, R. Nachum Rabinovitch, the Rosh Yeshiva of Yeshivat Birkat Moshe in Maaleh Adumim (who R. Rothstein cites in a different part of his essay) has written that the sharp distinctions that are evidenced in Torah law such as that men can marry more than one wife are actually not the Torah ideal. The Torah ideal is reflected in the original Torah value of “they shall become like one flesh”m (Gen. 2) which bespeaks a more equal relationship. The various laws of the Torah that permit divorce and polygamy, etc.., are reflective of the realities and the slow evolution of transforming the nature of human reality and society in a more positive way. In R. Rabinovits reading, the rabbinic legislation of Rabbeinu Gershom eliminating polygamy and restricting the man’s ability to unilaterally initiate divorce in most instances:

 advanced the values already determined in Scripture [of a permanent covenant between husband and wife]. In the biblical era, however, the time was not yet ripe, and people were not yet ready, for the full realization for the full realization of that vision. Only over time, as a result of a life of training in the life of the Torah, were people’s hearts made ready and did it become possible to draw closer to the goal established by the Torah (Darkah Shel Torah, (Hebrew), Edah Journal 3:1, pg.8).

 This approach is consistent with much of the thought of Rav Kook zt”l in some of his writings on war and ethics, the writings of Prof, Eliezer Berkovits, and the recently published essay by Dr. Norman Lamm where he speaks of the reality of an “developing halakhic morality.”  In that essay, R. Lamm presents a nuanced theory about a developing morality that is based on rediscovering Biblical and halakhic values

that were always there in the inner folds of the Bilbical texts and halakhic traditions… That is whereas we cannot create a new morality to oppose the Biblical one, we most certainly are free to exercise our judgment and experience in searching out authority in Biblical and rabbinic traditions to identify elements in Judaism that support a limitation of or alternative to the original doctrine…we are free, indeed compelled to use our creative moral and halakhic reasoning to reveal the latent moral judgments of the Torah that may contradict what we have previously accepted as the only doctrine of the Torah. For instance, in the case of slavery, the opposing principle of ki avadei heim, that all humans are the servants of the Creator, and hence we must discourage slavery…The choice before us , in such cases, is the tension between the Torah’s explicit legislation versus the Torah’s implicit value system” (War and Peace in the Jewish Tradition, pg. 226-227).

In our context, while the Torah and halakha clearly rejects a total egalitarian ethos, the tensile balance between explicit distinctions and the ethos of recognition of the spiritual desires, needs, and personhood of women as halakhic and Torah values are part of how the system works through competing religious desirata in various eras. Thus the notion that we have clear, unequivocal guidance on any specific current hot-button issue is far from clear to me. The reality is that in evaluating any “innovation” or move, especially when we are not dealing with strict halakha, the pulls and tugs of the various meta-values inherent in the system, e.g. gender and role distinctions and “mesorah” versus desire to enhance people’s avodat Hashem, human dignity and tzelem elokim, nahat rua, etc…, will need to be carefully weighed and considered, with the real possibility that people of good will emerge with differing conclusions. (And that is before one even gets to the sociological and political dimension of any question, which may effect any decision as well.) 

5. Given these remarks, while I was fascinated by R. Klapper’s analysis of my original essay, I do not concur with his assessment of my view of the halakhot that contain distinctions between men and women as hukkim.  I believe that there are many competing meta-values and societal goals that the Torah and halakha wanted to achieve, some eternal, some societally conditioned, but ones that contain dialectical elements and competing values that need to be taken into account in any full-fledged evaluation of any of these critical issues.[1]  

Chukim and Mishpatim in Halakha and Hashkafa

             A core concept in popular Orthodox thought is the distinction between חוקים and משפטים as presented by Rashi.  In this view, mitzvot are classified by whether they do or do not have a humanly intelligible purpose.  This position is hashkafically alien to the Spanish philosophical tradition, and exegetically rejected by most traditional commentators, but it nonetheless is a powerful cultural influence with significant intuitive appeal.

            This apparently hashkafic position has roots and branches within Halakhah.  One branch is what the Bavli sometimes presents as a dispute between R.Yehudah and R. Shim’on as to whether דרשינן טעמא דקרא, whether one can use the rationales for mitzvoth as the basis for deciding halakhic issues within those mitzvoth – obviously doing so requires the claim that such rationales exist, and refusing to do so works better if one denies they exist.  One root is the tension between the בנין אב and the חידוש in Midrash Halakhah.  Some legal details can have their scope expanded, become paradigms – these are the ones that conform to our intuition; whereas others are חידושים or גזירות הכתוב, counterintuitive, and therefore אין לך בם אלא חידושם – they should be applied as narrowly as plausible, regarded as exceptions.

            On what basis do we choose to classify something as a חידוש?  Bava Metzia 11a seem to suggest that the rule אין שכחה בעיר is classified as a גזירת הכתוב if and only if an extra feature of the Biblical verse can be found to decree it; on Bekhorot 5b R. Eliezer declares that the limitation of פטר to donkeys is a גזירת הכתוב, but then goes on to offer a rationale as well; and on Sanhedrin 70a R. Shimon says that one should derive the law of the rebellious daughter by kal vachomer from that of the rebellious son, but that the Torah prevents this by saying “son”, an argument that could certainly be evaded if desired.  It seems that these are categories of degree rather than absolutes, and mutable rather than fixed. 

Can Halakhot Change Categories?

              The question then is whether halakhot can legitimately move from one category to another over time.  Thus laws regarding Canaanite slaves may once have seemed intuitive, but it is now popular to regard them as concessions to pre-Torah feudal morality.  This is a quasirationale, but a dangerous one – cannot all mitzvot be seen as concessions to past moral systems, if they seem out of place to contemporaries?   Nonetheless, I hope and pray that no one today would take the laws of Canaanite slavery as models for the treatment of minorities in Israel.  Practically, historicization has the same effect as declaring those laws to be chukim. 

            Another striking example is the mitzvah of erasing Amalek.  While the argument that anyone who allegorizes the mitzvah is expressing moral discomfort with it seems false to me – one allegorizes mitzvoth that one cannot fulfill, even if one wishes with all one’s heart to fulfill them – Rav Lichtenstein, and before him the Chofetz Chayyim, argue that mechiyyat Amalek is the quintessential chok, such that it may only be performed by someone who denies that it has a humanly discoverable purpose.  In this interpretation, Shaul loses the monarchy not for his failure to kill Agag, but rather because his failure to kill Agag revealed that he had interpreted Shmuel’s instructions in accordance with what he understood to be their purpose.  But to think that genocide has a humanly discoverable purpose is evil, madness, or both, and so Shaul lost his monarchy not for failure to kill, but rather for killing the rest of Amalek.  Yet none of the rishonim puts in a special requirement of kavvanah lishmoh with regard to Amalek.

            Categorizing a mitzvah-detail, mitzvah, or complex of mitzvoth as chok rather than mishpat has the effect of quarantining it from normal halakhic conversation, and indeed, it has the effect of stigmatizing anyone seeking to reintroduce it as lacking proper religious intuition.  Conversely, categorizing a halakhah as mishpat rather than chok effectively accuses those who quarantine it of closing themselves off to the full implications of G-d’s word. 

Framing the “Jewish Womanhood” and Rabbah Debate

             My contention is that the fraught but respectful dialogue between my friends Rabbis Helfgot and Rothstein (here and here) regarding the ordination of women is fundamentally about whether we view the set of halakhot differentiating men from women in terms of ritual obligation as chukim, or rather as mishpatim.  Rabbi Rothstein argues that they are mishpatim, and so the rationales that motivate them must be extended to cases they do not specifically cover.  My impression is that this is a religious tendency that also drives him to find rationales for Amalek, inter alia.  Whereas Rabbi Helfgot is comfortable viewing those laws as chukim, fully authoritative as Halakhah, but providing no guidance – perhaps quite the contrary – on matters they don’t directly cover.  I think much the same phenomenon can be found in many contemporary Orthodox discussions of homosexuality.

            In this frame, it is precisely issues that cannot be easily treated by formal halakhah that take center stage, because they expose the underlying presumptions best.

            It should also be clear that mishpat-advocates are right to be worried about slippery slopes, as each concession on their part makes the halakhah less reflective of their rationales and therefore more susceptible to “chokification”. 

            I have more to say on this subject, both about the specific question of women’s ordination and about the general question of how one decides which halakhic details are paradigms and which exceptions, and hope to write on those subjects soon.  But it seemed to me valuable to first create this fairly neutral frame. 

            I will say by way of self-disclosure that I do believe that the option of declaring something a chok is legitimate, and therefore disagree with Rabbi Rothstein to the extent that I think there is room for some non-conversation within the same halakhic community.  At the same time, I fully agree that this technique is highly susceptible to abuse through deception, including self-deception, and should be used only with great caution.  Finally, there may perhaps be some room for mishpat advocates to admit that we often shouldn’t have enough confidence in our rationales to impose their implications on others, and for chok advocates to admit that quarantining devar Hashem is a bold move that should be undertaken only as a last resort.        

You know that moment in a conversation where you begin to suspect that the two of you see the world so differently, it might not even be possible to have an intelligible exchange? I do, very well; I once, years ago, deeply offended a congregant and friend when, in the middle of a discussion of some faith issue, said, “Well, you can say that if you want, but then we can’t talk.”

Months later, I found out he thought I meant I would refuse to speak with him if he said that, when I only meant that there would be little for us to say, since I was operating from premises so radically differently from his that we could not bridge that gap.

Worryingly, I have recently had a similar feeling about comments I’ve made regarding how we conceive of opportunities for Orthodox Jewish women. In a post in this space, I argued that any assertions about the future of women in Orthodox Judaism should be based on a picture of womanhood constructed internally, built up from the guidance given us by God in the Torah and as elaborated by halachah. 

I was somewhat surprised to see how confidently and vigorously people opposed that idea in theory, saying that it could not be done, that any resulting suggestions would be “arbitrary and impressionistic,” and that we were better off adhering to each halachah we encounter, but not suggesting that those halachot build anything as guiding as a sense of what ideal Jewish womanhood (or manhood) would look like.

Part of my surprise stems from my sense that my premise is largely unchallenged in the Orthodox world, so that finding Orthodox people who are ready to reject it out of hand is both surprising and distressing.  Since at least the time of Rambam, virtually all rabbinic and halachic thinkers have accepted the premise that there are reasons for mitsvot, that mitsvot carry a meaning and message beyond the rote act itself. While someone who eats matsah on Pesach simply because the Torah said so has technically observed the mitzvah, the failure to consider the message that mitzvah is sending ineluctably means that the observance is significantly lacking.  As Rambam put it, the person who does so is turning mitsvot into exactly what the Prophet Yeshayahu bemoaned, a מצוות אנשים מלומדה, a rote, meaningless practice, not the vehicle to Godliness and God-relatedness God intended when giving them to us.

That means that halachot that show men how they must act, ideally ought to act, are discouraged from acting, and prohibited from acting, shape not only those specific actions but give guidance on areas not as explicitly codified by halachah.  The same would seem obviously true for Jewish women, except that many now bristle at the idea of an external force, even God, telling us what type of people we should be.

To form a systemically faithful view of where Jewish women go from here, I therefore repeat, would  have to involve building such a picture from within the sources of tradition, seeing where tradition makes unequivocal statements about what the role of women has to include, and seeing where we go from there.  By recalling the areas of halachah where God differentiated men from women, and without offering a personal view as to how to weave those together (since that will seem arbitrary and impressionistic), I hope to remind us that there the Torah provides a latent view (or, range of views) of womanhood that is not based on sociology or outmoded notions of what women are. The areas I note here are those that are universally and timelessly a part of Jewish law and practice, and in that very fact are meant to shape our view of the different roles the members of the two genders occupy in an ideal Jewish society.

A First Difference: Time-Related Obligations

Perhaps the most commonly referenced differentiation between men and women is women’s exemption from מצוות עשה שהזמן גרמא, obligations that have a time element to them.  There have been many explanations for this exemption (I have offered some thoughts on this issue as well, most recently at blog.webyeshiva.org, in post 17), but there are pieces to the puzzle I wish to highlight.

First, at least for these mitsvot, the Torah does not exclude women, it exempts them from obligation.  Women are welcome to wave a lulav, hear a shofar being blown, or perform almost any of the other of these commandments, and will clearly become closer to God by so doing; they just cannot manufacture an obligation to do so.  That lack of obligation has halachic ramifications, since it means at least that they cannot perform these acts in a way that will help someone obligated fulfill that obligation.

This distinction between obligated or not can be exaggerated or minimized, and advocates of improving women’s spiritual opportunities within Orthodoxy have done both.  The exaggeration would be to find oneself deeply offended by this distinction since, after all, women can perform these mitsvot.

The too-minimal approach would be to fail to realize that the Torah is sending a message here about how it views men and women.  What that message is would require an in-depth discussion of those mitsvot to try to understand why the Torah articulated this distinction.  One promising area of inquiry is the source the Gemara adduces for how it knows of that exemption.

The Source: Women’s Exemption From Talmud Torah

Although it is rarely remarked in discussions of why women are exempt from these mitsvot, bKiddushin 34a-b sources it in a comparison between tefillin, taken as a paradigmatic example of such mitsvot, and the obligation to study Torah.  The discussion gets somewhat convoluted, but the Gemara seems to see that as the general position of how we know that women are exempt from these kinds of mitsvot.  If so, any proper explanation of the exemption would have to base itself not only on perceived characteristics of those mitsvot, but also on how that connects to women’s being relieved of the obligation to study Torah.

That exemption, too, is often explained in distressingly sociological ways (e.g., in the Torah’s time, women were uneducated, so it would have been unfair, etc.).  I call those distressing because they seem to lose sight of the fact that we have a God-given Torah, articulating values and obligations that apply throughout history; had God wanted women to study Torah, I cannot imagine He (pardon the pronoun) would have refrained out of fear of the sociological difficulties, especially since God did obligate women in plenty of mitsvot that were also beyond the ordinary expectations of the time.

Without offering my own view, I would note that some of this is based on the partially erroneous assumption that the mitzvah of Talmud Torah refers just to the act of studying Torah. As I have noted elsewhere (Journal of Halachah and Contemporary Society, Spring, 2004), the mitzvah is actually an obligation to know, not just study, the entirety of at least the Five Books of the Torah, and possibly Scripture in general.

A proper explanation of the distinction between men and women in these areas of mitsvot, then, has to give some systemically plausible reason for why God would decide to exempt women from attaining this kind of knowledge (they are, after all, required to know how to be proper servants of God, however they gain access to that knowledge), and why that exemption should expand to include time-related obligations.

The Public Community

A second prominent distinction between men and women is that only the former are required to take part in the public community of the Jewish people. While this is more commonly known from women’s not being counted in a minyan, or being able to serve as שליח ציבור, the leader of certain congregational prayers, it comes up in simpler halachot as well, such as women’s exemption from giving the מחצית השקל, the half-shekel poll-tax used to finance the yearly public sacrifices. Women are allowed to give that tax, but not obligated to, a distinction that, as we saw above, has its own halachic ramifications.

Once again, the question is not only these halachot’s exact parameters, and what ways we might find to circumvent them, but what messages they send. I stress again that it is insufficient to say that in the Torah’s time women were not part of the public community, for at least three reasons. First, God can and did demand whatever was deemed important enough of women; second, God can make different obligations apply in different circumstances, and, finally, the Torah did require women to participate in wars when necessary.  The decision to exempt women from this role in the public community, then, is a set of choices God made, whose import we need to understand before we can properly apply them contemporarily.

Entry and Exit From Marriage

Another aspect of Jewish womanhood, and one that currently rankles because of the abuse of the system, is that women are required by the Torah to make a commitment to only one man, whereas, by Torah law, a man could marry several women.  I again fear that a sociological/historical reason springs to people’s lips, and would remind them that God made these laws for all times. This has numerous halachic ramifications, such as the fact that adultery in halachah involves a married woman; the man’s marital state is irrelevant.

A flip side of this issue is that the Torah does not allow women to initiate divorce. This, too, is often assumed to be a sign of the Torah’s distrust of women’s capabilities, a position belied by a simple comment Rambam makes in Hilchot Melachim 9;8. When defining adultery for non-Jews (also a capital crime), Rambam notes that non-Jewish divorce (by Torah law) can be initiated unilaterally by either the man or the woman. Unless we believe God and the Torah trusted Jewish women less than non-Jewish women, some other explanation is required to understand the message the Torah is sending.

Tzniut: A Lost and Misunderstood Value

Once we raise issues of public participation and marriage, the question of modesty necessarily arises.  Today, we often connect modesty to a form of dress, particularly women’s.  bMakkot 24a reminds us that that is a mistake, noting that despite these events generally occurring with great fanfare, the Prophet Michah tells us that God wants us to conduct ourselves with modesty.  The kal va-chomer, that all the more so should we conduct ourselves modestly in venues where it is generally assumed, is explicit in the Gemara.

That means that any properly traditional Jewish society must also articulate a sense of how that modesty expresses itself.  One such area, but by no means the only one, is sexuality and Judaism’s unceasing (and, in our world at least, seemingly quixotic) effort to restrict it to the only venue where it is relevant, the relationship between husband and wife.  One way was to largely segregate them, such as in the traditions that Avraham converted men to monotheism while Sarah did the same for women; or the Torah’s testimony that Miriam led women in a separate Song after the Splitting of the Sea. 

That is not the only way, but as I noted in my recent post about Purim, all versions of Jewish society, wherever they fall out on the mixed/segregated continuum, still have to account for safeguarding the Orthodox interest in a proper and appropriate sexuality.  This certainly can be done for many different versions of society, but it must be done in order to qualify as a plausible one.

Monarchy, Priesthood, and Marriage

Two more issues that I think would be necessary to address in articulating a vision of Jewish womanhood that could be both flexible in application and faithful to God’s wishes are the question of women’s exclusion from monarchy and the Temple aspects of the priesthood.  It is well-known, and perhaps overemphasized, that Rambam saw the Torah’s excluding women from monarchy much more broadly, as ruling out all positions of serarah, of coercive power.  Even if we do not adopt Rambam’s position, it is still true that the Torah excluded women from monarchy itself. 

Lest we dismiss that as irrelevant in our non-kingly times, or restricted to that one unique role in Jewish society, the Torah also excluded women from the Temple-related aspects of the priesthood.  I phrase it that way because many people assume that the Torah excluded women from all aspects of the priesthood.  As Rambam codifies it in הלכות בכורים, Laws of Bikkurim (and Other Gifts to Priests) 1;11, several of the gifts given to priests can be given to females of the clan as well (whom the Rambam terms כוהנות, female priests). Strikingly, at least two of those gifts, according to Rambam, can be given to a woman-priest even if she is married to a non-priest which, for other purposes, takes her out of the clan.

Incidentally, this last fact suggests another area for consideration, the makeup of the marital home and its character. For a long time, it was assumed that men set the tone for the home at least in religious aspects, such as which customs to follow. The process of marriage was seen as a woman leaving her parental home and joining her husband’s home (hence the יחוד ceremony at the wedding, the husband symbolically taking his wife into his home).  With changes in society, this is no longer as clearly true, and important poskim, such as R. Nachum Rabinovitch of Maaleh Adumim, are increasingly comfortable with a wife maintaining some of her own customs.

The question will be in what ways the Torah insisted on unity of custom in the home, and in what ways we are comfortable with recognizing and accepting continuing differences. In terumah terms, the woman who has joined a non-priestly household has left her parental home; for זרוע לחיים and קיבה purposes, she has not.  Defining which are which and why would seem to be an important part of understanding what the Torah saw as necessary and ineluctable aspects of creating a properly unified marital home.

There is probably more to be considered and said on these issues, but this seems a worthy start.  Finding the maximum possible room for spiritual development, for men and women, is a clear desideratum of Judaism or any religion; the question for Orthodox Jews is what counts as proper spiritual development and what as a mistaken adoption of ideas and ideals not consonant with the religion. 

And to understand that, much preliminary work needs to be done, as I hope I have laid out here.  I do not fool myself into thinking that the way I would understand those issues would be the same as those to the left or to the right of me, but success here, for me, would mean that we are at least back to having the same conversation, that we all recognize the questions we need to ask and answer, and move forward from a common base to find the most productive answers for all of Jewish society.

I personally have no gripes with polemics playing a role in socio-legal discourse within the Jewish community.  I think it is inevitable, given the sociological reality of Jewish history, and occasionally it is appropriate, given larger religious goals. ¹ I do believe, however, that one has to be very careful with the terminology used, and to also make sure that the halakhic arguments garnered toward one’s position does not come to later haunt you (or your followers).

Metzitzah Ba-Peh

Take, for example, the 19^th century polemics regarding metzitzah ba-peh.  [I wrote a basic summary of the halakhic debate on this issue for this JPost Ask the Rabbi column.  See here for one of the many detailed articles written on the topic.]  Let us recall that the requirement to perform metzitzah is explicitly noted by the gemara as stemming from medicinal purposes.  Yet in the famous rebuttals of Reform attempts to abolish it (and milah altogether), Rabbi Yehuda Asad, the Maharam Shik, and others claimed, with tremendous polemical rhetoric, that not only the requirement for metzitzah ba-peh reflects a halakha le-Moshe mi-Sinai requirement, thereby making it an essential component of milah.

שו”ת יהודה יעלה חלק א – יו”ד סימן רנח

ע”ד המציצה במצות מילה אשר בעו”ה קצת רועים רעים קשר רשעים רצו לבטל ולהפר ברית המציצה באמרם שאינו מגוף המצוה כ”א משום סכנה וזה באקלים החם אבל במדינת אלו אין שום סכנה במניעותה ואני בעניי בקנאי קנאת ד’ צבאות כתבתי מאז באגרת הקנאות יום י”ב טבת תר”ה לפ”ק שנדפס באמש”ד נגד האספסף שהרעימו סוד וזה לשוני. לנצח יאבדו מבלי משים כי הנה המציצה מפרק הדם והיא אב מלאכה ודוחה לשבת החמורה וליוה”כ. ואי לאו דמעכב המציצה לגוף המצוה לא היה דוחה שבת ויוה”כ ויו”ט. אלא ודאי כך ניתנה הלכה למשה מסיני מלבד טעם הסכנה כנאמר בגמרא.                                          

Fast forward to the beginning of the 21^st century.  A group of Orthodox rabbis and doctors raise flags that those elements of the community that have not adopted alternative methods for metzitzah (pipette, sponge) – such as those suggested by the Hatam Sofer, the Maharatz Chajes, Rabbi Tzvi Pesach Frank, and others – might be, unintentionally and tragically, endangering new born baby boys.  Yet those who were trained on the notion that metzitzah ba-peh was halakha le-Moshe me-Sinai could not emerge out of this mindset, thereby pegging themselves within a halakhic position that was truly not necessary.  This is despite the fact that Rav Moshe Feinstein himself (Igrot Moshe YD 1:223) asserted that the claim that metzitzah represents an essential part of milah was entirely incorrect.

חושב אני שהוא רק פליטת הקולמוס שפשוט שמציצה אינו עכוב בהמצוה דהוא רק משום רפואה   

Why Did Poskim Oppose Microphones?

With the polemics over the micropone controversy now over, I think that one has to be extremely careful with the arguments that one adopts as the reason for a prohibitive position. To a certain extent, the community of scholars chooses which argumentation becomes the lasting legacy of the proscriptive opinion.  The consequence of this decision has great implications, and therefore we should contemplate it carefully.²

Why did poskim oppose microphones?  While the statements previously quoted here indicate a clear influence of polemical factors, I think it is overly simplistic to state that poskim simply stated that a microphone was assur because they feared that it would look like a Reform invention or lead to Reform-like activity.  It is very clear from various teshuvot that 4 perfectly legitimate factors were also at play here, two quite explicitly, and the other two more implicitly:

1)       Concern that adjusting the electricity (i.e. raising or lowering the current) itself was an issur.³

2)       Independent of larger concerns with technology and electricity on Shabbat, there were specific problems caused by microphones, like hashma’at kol.

3)       Concern that such technologies would irrevocably harm the atmosphere of Shabbat.

4)       Concern that this would lead to confusion and other issurim.

(I briefly summarized the major positions on this issue in this JPost Ask the Rabbi column.)

Regarding #1:  It is very clear from Rav Moshe’s teshuvot on both microphones (Siman 84) and hearing aids (Siman 85) that he is concerned that there is an issur involved, although he fully admits that he doesn’t know what the issur is!  As Rav Moshe states, he thinks that this concern is enough to be machmir on microphones, but is inclined (at least initially, but not in his conclusion) to be mekil on hearing aids for this reason. 

שו”ת אגרות משה אורח חיים חלק ד סימן פד

ואבאר בקיצור את הטעמים שהם שנים שיש בהם חשש איסור מדאורייתא ושנים שהם איסורים ודאים מדרבנן, (א) דיש לידע שקול הנשמע מהמייקראפאן איננו קול האדם עצמו אלא כשמדבר נעשה רושם של הברותיו שם ומה שנשמע הוא קול ההברה, וזהו חשש איסור דאורייתא במה שבדבורו נעשה רושם באיזה מקום בהמייקראפאן, ואף שאין זה כתיבה שאינם אותיות יש עכ”פ איזה חשש מלאכה מאחר שנתחדש איזה דבר שעי”ז נשמע קול רם ומרחוק אולי מכה בפטיש ואולי בונה, וצריך לעיין בברור איזו מלאכה, עכ”פ טעם זה הוא לחוש לאיסור דאורייתא, אף שלא ברור האיסור.

(ב) שלפי מדת הקול נגדל הוצאת כח העלעקטרי /החשמלי/ ונמצא שבדבורו הוא מגדיל ומקטין את העלעקטרי, ורואין זה בחוש כשמחברין עוד מכונה בחשמל המודדת הדבור בהמייקראפאן למי שרוצה להשוות את קולו, שלכן אף כשלא מחברין מכונה כזו יודעין אנחנו שמשתמש בדבורו בהעלעקטרי יותר ממה שהמייקראפאן בחבורו משתמש בעצמו בלא דבורו, וכשמדבר בקול רם משתמש בעוד יותר, והשתמשות בכחות העלעקטרי יש חשש איסור דאורייתא אף בלא הבערה ויש לעיין בזה טובא למעשה.

… ולכן ברור שהמייקראפאן אסור להשתמש בו בשבת ויו”ט ואין להקל אף לצורך גדול ולכן אסור למע”כ לקבל משרה כזו שיצטרך לדבר ע”י מייקראפאן בשבת ויו”ט. ידידו, משה פיינשטיין.

 שו”ת אגרות משה אורח חיים חלק ד סימן פה

… והחששות שהם מענין מלאכה שהאחד הוא בזה שקול הנשמע מהמייקראפאן אינו קול האדם המדבר עצמו אלא שנעשה שם רושם של הברותיו ומה שנשמע הוא קול ההברה שנעשה שם, הנה אף אם נימא שגם במכונת שמיעה זו נעשה כן, הא מכיון שלא ברור לן האיסור בזה דלאיזו מלאכה נדמה זה שלכן אין בידנו לאסור לחולה ולצורך גדול כזה מאחר שלא ברור לן האיסור, ובפרט שלכאורה במכונה זו לא מסתבר שהוא קול אחר הנעשה שם דהא לא נעשה הקול יותר רם מכפי שנשמע מהאדם ומה שנשמע להחרש ע”י זה הוא משום משיכת הקול לתוך האזן ממש וליכא הפסק בינתים או שמגדיל כח שמיעתו שיש לו מעט, ואין לידע דבר ברור גם מהמומחים בזה, ונמצא שיתוסף עוד ספק בזה.

וחשש השני שמשתמש בכח העלעקטרי בדבורו /כדחזינן/ כדחזנין מהא שאיכא חלוק בין מדבר בקול רם למדבר בקול נמוך שאיכא אולי חשש מלאכה בהשתמשות בכחות העלעקטרי אף בלא הבערה, נמי אינו איסור ברור ואף לא ספק ברור, וכמדומני שבמכונה ליכא חלוק בהדבורים וממילא ליכא חשש זה כלל, ולכן גם בשביל חשש זה שאינו ברור אין לאסור לחולה ולצורך גדול כזה כדלעיל.

 Others were concerned that sparks and other clearer violations of melachot occurred with microphones.  Here, again, technology changes, but it is clear that even in those times, many types of microphones did not produce sparks, fire, or anything of that nature (as Rabbi Simcha Levy documented in his follow-up teshuva, cited previously).

 In contrast, Rav Shlomo Zalman Auerbach (Kovetz Ma’amarim Be-Inyanei Chashmal Be-Shabbat, p. 35-38, and Minhat Shlomo 1:9) and his intellectual followers were very thorough in their research and determined:  a) there are many microphones in which there is concern for sparks other melachot, and b) more significantly, there is no issur for increasing or decreasing current.

Here is one formulation of Rav Shlomo Zalman, written in 5706:⁴

These prohibitions apply only to creating or breaking a circuit in a fan, refrigerator, etc…  However, when one speaks into the microphone of a radio, no sparks are created… Thus when one speaks into a [broadcast] microphone on Shabbat, he does no cause an act of lighting or extinguishing [a flame], or any other forbidden melacha.  Rather, the speaker merely causes a change in current which affects the radio waves being broadcast, such that the membrane of the radio receiver vibrates in accordance with the sound waves of the speaker. It would therefore seem that there is no need whatsoever to be concerned with the problems of makeh b’patish, tikkun mana, or molid, since his speech does not cause any Shabbat prohibition to be violated.  

Concern #2:  Technical concerns specific to microphones –

Ultimately, Rav Shlomo Zalman, Rav Eliezer Waldenburg, and others prohibited microphones because of particular concerns with this appliance.  Mashmia Kol, avsha de-milta, uvdin de-chol, and general denigration of Shabbat were cited by numberous poskim as factors in prohibiting the microphone.  That is to say, the mechanics were not a problem – but the resulting impact of the technology led to problems relating to, broadly speaking, the laws dictating the proper atmosphere of Shabbat.

These points were countered by Rav Shaul Yisraeli, which led him to develop with Tzomet a halakhic “Shabbat microphone.”

Regarding Concern #3:  Fear of technology and automation and its potentially deleterious impact on Shabbat was great (see Rav Moshe’s teshuva regarding Shabbat clocks, for example).  Time has shown that automation has been allowed for many circumstances (although not without dispute), but without destroying the sanctity of the day.  Each case and technology was handled differently, but in short, things were deemed as tremendously necessary on an individual (lights, refrigerators) or communal (milking cows on Shabbat, metal detectors at the Kotel) have been allowed, while things not deemed as urgent were not allowed.  Microphones seemingly fell into the latter category, with the implicit argument being that since we have survived until just fine without microphones, we can continue to do so (as, indeed, history has proven).⁵ 

Concern #4:  Concern that a lenient ruling might lead to other mistakes in the realm of electricity and halakha. 

In a related context, Rav Shlomo Zalman expressed concern for this factor.

 שו”ת מנחת שלמה חלק א סימן ט

… נתבאר לפי זה דלענ”ד נראה דבכה”ג דלא עשה כלל שום הדלקה או כיבוי כי אם מחבר רק את הטלפון עם הזרם אין לאסור בשבת ויו”ט לא משום מכה בפטיש ולא משום מוליד. (אך חושבני שהמון העם אינו יודע כלל להבחין בכך ויכול לטעות ע”י זה לומר שמותר גם להדליק ולכבות את החשמל בשבת, ולכן אף לדידן אין להתיר דבר זה כי אם במקום צורך גדול…

 Generally speaking, this concern that the masses will misunderstand is perfectly reasonable.  For example, the difference between opening and shutting a circuit, as opposed to altering or adjusting the strength of an open circuit, can easily lead to confusion and misunderstanding.  Nonetheless, as Rav Shlomo Zalman argued, this should not prevent us from being mekil in situations where there is a pressing need or larger communal good.

 The Legacy We Choose to Inherit:  Taking a Stand

Which of these factors ultimately came to underscore the Orthodox prohibition of microphones?

One approach adopts the position that any use of electricity – including the altering of an open electric current – is assur, for one or all of the above stated concerns.

This approach was ultimately adopted in Rav Moshe’s machmir stance regarding speaking to someone wearing hearing aids – as emphasized and ruled in the 39 Melachos - and was apparently adopted by Rav Elyashiv, at least as reported in Sefer Orchot Shabbat, Vol 3, the hottest new Israeli halakhic handwork on the laws of Shabbat.   In this work, the author simply reports that Rav Elyashiv believes that speech increases the electric current and is therefore assur to speak alone to some wearing a hearing aide – although the book does not give any reasoning for why increasing the current should be forbidden!  (Add this as an additional example of the phenomenon I documented in my earlier post about halakhic handbooks and hearing aids).

A different approach, however, recognizes that the use of electricity (at least in terms of increasing or decreasing a current) can be permitted on Shabbat, when there is some form of need.  This, of course, was the approach of Rav Shlomo Zalman, as cited above.

I think that it is essential to adopt Rav Shlomo Zalman’s argument, for the following reasons:

1)        It is intellectual compelling.  It is difficult to understand, on a theoretical level, what is the definitive issur of using electricity on Shabbat, and certainly in terms of altering a current. ⁶  Rav Shlomo Zalman’s basic approach adopts the general position of poskim, as observed by the minhag ha-olam, to be machmir, but recognizes the fact there is perfectly good reason, on an intellectual level, to believe that we can be mekil, especially when there is a compelling ethical/sociological/halakhic reason to do so. 

2)       Significantly, Rav Shlomo Zalman’s writings on the topic are not tinged by polemical considerations.  It is very clear that over the decades in which he wrote about this topic, he was determined to understand the mechanics and the relevant halakha, independent of other considerations.  Perhaps this was because as an Israeli scholar, beginning his research in the early 20^th century, he did not feel the polemical threat of non-Orthodox movements.  Be that as it may, generally speaking, once we have emerged out of a polemical context, it behooves us to examine the sources afresh, and to begin that examination through the eyes of those who did not examine the issue from a polemical standpoint.

3)        Rav Shlomo Zalman was clearly very sensitive to the implications of his rulings on an ethical level.  This was evidenced by his disbelief that the mere alteration of a current might constitute an issur, thereby making it assur to speak to someone wearing a hearing aid. 

שו”ת מנחת שלמה חלק א סימן ט

… אך א”כ לא ידעתי בעניי שום טעם לכך. כי נלענ”ד דמה שהוא סובר שם שיש איסור מוליד אינו אלא תחלת ההתקשרות שהוא עושה מעגל חשמלי ומוליד זרם, אבל לא מה שמדברים אח”כ לאחר שהמעגל נשלם וכבר יש ביניהם קשר), ומיהו אם ננקוט כדבריו שאסור משום השמעת קול, נמצא שאסור לדבר בשבת עם אלה אשר אזנם כבדה משמוע ומשתמשים במכשיר שמיעה, כיון שהמדבר אליו מכוין להשמיע קול בשבת ע”י המכשיר, ויהא אסור לפי”ז לקרוא לאנשים כאלה לעלות לתורה בשבת ויו”ט מפני שהקורא בתורה ודאי מכוין להשמיע קול קריאתו לאזני העולה, ואף הוא עצמו כשמברך או קורא ק”ש בשבת צריך לכוין לא להשמיע את קולו לאזניו ע”י המכשיר, והוא פלאי.

Rav Aharon Lichtenstein, in a eulogy for Rav Shlomo Zalman, tells a story that makes the point more poignantly. 

Once I visited Rav Shlomo Zalman and I asked him about the issue of wearing a hearing aid on Shabbat. He permitted it. At the same time he told me, “You know – I can’t believe it. Someone sent me a letter from the States, saying that Rav Kotler zt”l was careful not to talk to a person wearing a hearing aid on Shabbat for fear of speaking into the hearing aid and thereby performing a melakhah.” He told me that he didn’t believe this. He said, “Imagine – as if it’s not enough that this person has been punished by Heaven in that he’s deaf! The Gemara states that if someone is wounded in such a way that he becomes deaf, he is paid full damages, as though he has ceased to function altogether, as if he has died. This punishment isn’t sufficient,” he said. “Imagine – you meet him in the street, and instead of greeting him, you say m..m..m..”. For him this was completely out of place. He couldn’t bring himself to believe that this is what the situation required.

 4)       Rav Shlomo Zalman’s position – intellectually sound as it is, and coming from the great gadlut that he represents – also allows for dealing with other pressing cases related to Shabbat and electricity.   His understanding is the basic premise for much of the technology that allows for use of close-circuit television cameras, Shabbat wheelchairs, and many other important technologies. (See here for a relevant article by Rav Yisrael Rozen regarding the recent technological developments, many of which were based on the rulings of Rav Shlomo Zalman and his students like Rav Yehoshua Neuwirth).  Moreover, it allows us to deal with the many challenges that an increasingly electronic world present to the observant Jew.  This goes well beyond issues of convenience, like opening a hotel room door with a swipe card.  We are speaking of basic issues of security, health care, and economics.  Using the more machmir position – which is less intellectually compelling and partly inspired by polemics – will haunt us for many years to come. 

Concluding Thoughts

 Whenever challenged by a new cultural development – in this case electricity and Shabbat – one must first examine the sources to understand, on a theoretical level, the halakhic perspective on this new phenomenon.  Then, and only then, must considerations of psak policy (confusion to the masses, non-Orthodox movements, ethical considerations, pragmatic concerns) come into play.

 In the mid 20^th century, it is clear that a conflation of the factors mentioned above – halakhic speculations, questions of the atmosphere of Shabbat, polemical considerations, and concerns that fine distinctions might cause confusion amongst the masses – led to a generally prohibitive approach regarding electricity and Shabbat.  This might have been the appropriate approach in terms of psak for that time period – it is not my place to judge – yet we must be very careful that this approach does not shackle us to a position which is neither intellectual compelling or sociologically beneficial.    

I have already documented how this generally prohibitive attitude has led to contemporary halakhic handbooks (which easily lend themselves to concise, non-nuanced prohibitive stances) to forbade speaking to people wearing aids on Shabbat, despite the fact that this goes against the vast majority of poskim.  I continue to remain concerned that unless we re-examine the halakhic sources on this issue from a non-polemical perspective, we will end up with other forms of deleterious psak halakha.  We have the basis to act wisely on this issue in the writings of Rav Shlomo Zalman Auerbach, zt”l, one of the greatest poskim of the 20^th century, who spent decades writing on this topic.  If we act wisely – and in a non-polemical manner – we will succeed in dealing with the growing challenges of electricity and Shabbat.

Afterward:  Polemics over the Maharat/Rabbah Ordination

 Given the recent brouhaha over ordination of women rabbis, allow me to make one comment on the importance of keeping polemics out of the Orthodox dialogue on this issue.

I have heard a lot of calls for a teshuvot to be written on this issue, in particularly from those who condemn the recent “rabbah” ordination.  This, I presume, will also be seen as a response to the short responsa written in favor of the Maharat confirmation. 

As the rhetoric heats up, we run the risk of entering into polemical dialogue, which runs the risk of causing considerable long-term damage.

Two simple examples: 

1)       In a teshuva against the Maharat ordination, one might cite the problem of “serara.”  This is an issue which defenders of the ordination must properly address, but opponents should be careful that in their promotion of this issue, they don’t overly exaggerate the issue to the point of a) distorting the historical practice on an issue, and b) harming other people restricted by “serara” issues, such as gerim.  Has the halakhic consensus really emerged over the centuries that gerim cannot be rabbis?  Does any rabbinic organization prohibit gerim from membership?  When one group, in an attempt to ban female shul presidents, also banned gerim for that position, was that the intellectually compelling position or ethically correct approach? See here for an interesting historical example of a ger who served a major communal role in Amsterdam.

2)                   I have seen articles that have simply stated that since one cannot find a halakhic issur to women being rabbis, it must therefore be mutar.  Leaving aside whether or not the technical halakhic claim is true:  Is this the precedent that we want to set for halakhic process – that we do not take into consideration values or policy issues, especially on controversial matters?  Don’t values matter to us?  For a community that celebrates the Ramban’s classic statement about naval be-reshut ha-Torah and kedoshim tehiyu, it seems that values should impact our behavior and psak.   And don’t we have a responsibility to think beyond a specific issue to larger issues of the halakhic process?  Do we really believe that since some talmid chocham can write an article defending a certain position, we therefore should act upon it, without the haskamah of any gadol and rabbinic organization?

I am not taking a side,⁷ and whether or not one agrees with these specific examples, I hope that we can see how polemics can drive people to positions which a) are not defendable, or b) cause unintended long-term damage.

Looking to the examples of metzitzah be-peh and electricity, we should learn the lessons of history and be careful about the arguments we make.  The most responsible approach is to write an essay which documents the arguments of both sides, taking into consideration different perspectives, and then taking a stand.  Polemics might at times be legitimate, but especially with regard to intra-Orthodox battles, they do little service to the community, halakha, or Torah.        

1. We have always had sectarian fights:  Tzedukim, Karaites, Sabbateans, Reform, to name just a few example. For more on this phenomenon, see, for example, Rabbinic Culture and Its Critics, ed. Daniel Frank and Matt Goldish.
2. This post ends what has turned out to be a series of posts relating to the issues of microphones, hearing aids, and psak halakha.  See here – hearing aids and halakhic handbooks – , here – the microphone debate in Tradition- , and here – polemics in Orthodox writings on microphones.  I will make passing referrence to these earlier posts, but one should be able to understand the piece without having read the earlier articles.
3. Let’s be perfectly clear:  We are not dealing with here the questions of opening or shutting a current.  We are dealing with a microphone that is already on, and therefore this is a question of increasing or decreasing the current.  Of course, one might state that this whole distinction is too difficult for the masses to accurately follow, but that is a practical consideration – a question of judicial policy.
4. as translated in an article by Rav Yisrael Rozen that appeared in Crossroads Volume 5, p. 13
5. I suspect that the part of the push for microphones in shuls stemmed from a desire for décor, decorum, and certain pride in the use of modern technology in the synagogue.
6. See, for example, the thorough article on this topic by Rabbis Michael Broyde and Howard Jachter.
7. I happen to be opposed to the recent ordination, but that is besides the point

I.

During the last half century the movement towards greater public, educational, economic, and political roles for women in general society has slowly  affected the reality of Jewish and more specifically, for our purposes, Orthodox society. This has created a sea change in the role of women in the Orthodox and especially Modern-Orthodox society. The universal access to growing levels of Torah education, the desire to play a more prominent role in synagogue life-both organizationally and spiritually, the quest for deeper connections to God and his service-avodat Hashem, the rise of feminism and a whole host of sociological factors have changed the landscape from anything our grandmothers and great grandmothers would have recognized as normative.

Together with many of these developments (which I, and I would guess most readers of this blog, believe have been extremely positive), vigorous debates (some more contentious, others less so) over this or that innovation or evolution have been part of the discussion both in rabbinic and lay circles. If we just made a random list of issues under this rubric that have emerged in the last 50 years we might include:

Advanced Institutional Talmud study for women beyond high school; bat mitzvot for girls both inside and outside the shul; women saying kaddish in shul; women’s hakafot on Simchat Torah; women speaking at a family simcha in public; taking the sefer Torah into the women’s section for the processional after hotza’at sefer Torah; women’s tefillah groups; women writing and publishing hiddushei Torah in Torah journals; women reading megillat Esther for other women; women reading megillat Esther for a mixed gender group; women speaking under the huppah at a wedding; women reading the ketubah at a wedding; including the  names of the matriarchs in the preamble to the text of the mi-shebeirakh for sick people on Shabbat, To’anot rabbaniyot in religious court proceedings, women serving on boards of shuls, yoetzot halakha in areas of Hilkhot Niddah, women serving a presidents of shuls, women receiving aliyot and reading the Torah in a mehitza minyan with 10 men, women serving on religious councils in Israel, women teaching Talmud in a co-ed school and the list goes on.

The latest round in this broader canvas of debates about the approach of modern Orthodoxy to the role of women in its ritual, educational, spiritual and communal life has focused on the issues of learned Orthodox women receiving some form of rabbinic ordination. This has been coupled with teasing out the appropriate parameters of women serving as spiritual leaders in synagogues, in some way equivalent to male rabbis (without that actual title being used).  Those in favor of pushing the frontiers forward on substance and titles have made it clear that they accept the limitations of the restrictions of normative halakha, such as women as not being able to lead the congregation in hazarat hashatz or serving as a witness for a kiddushin at a marriage ceremony.

However, beyond those restrictions, the question at the center is: Can Orthodox women serve as spiritual leaders of congregations and fulfill the pastoral, educational, organizational, moreh Horaah, and communal leadership roles that are the major part of the job description of the average Modern-Orthodox rabbi?

II. 

The purpose of this essay is to briefly examine two of the major halakhic issues that have been raised in opposition to such a move and their cogency. As in all matters of substance, before one can discuss any other factors to be examined, the committed Jew must explore the halakhic dimension of the issue.

  But first two caveats so that my viewpoint on this is crystal clear.

1. It is clear to me that many scholars and lay-people have strongly held views on the analysis of the halakhic material examined that runs counter to my general direction below. (See for example a more elaborate discussion of those views in R. J. David Bleich, Contemporary Halakhic Problems, Vol. 2, pgs. 254 and on [Ed Note:  See also this link.]). My point below is simply to outline the legitimacy of certain perspective, not to argue that it is accepted by all.

2. As I hope to demonstrate, I do not believe the major issue here is ultimately halakhic.  It rather touches more on very emotional, sociological and political self-definitions relating to what have been perceived for 30-40 years as “boundary” issues between Orthodoxy and non-Orthodox movements within Judaism.¹

 3.In addition, it touches on sensitive policy questions of how best to achieve legitimate evolutions within the halakhic body politic that will be sustained and widely accepted without causing undue divisiveness. My own view, which I have expressed elsewhere, is that taking into account the practical sociological-communal realities, a move perceived at ordaining women at the present moment is premature. It probably should wait for more learned women to take up para-clergy roles in shuls, schools and the community. This will eventually create a communal context for a richer, calmer discussion in future years. As time passes there will be more receptivity to opening up more to areas of spiritual leadership for women.

 4. At the same time, it is clear to me that other people of good will, sincerity, and great devotion to the Jewish people and Torah values can have differing views from mine. They sincerely contend that if there is no substantive halakhic problem that the time is now to forge ahead. My view is that such positions certainly do not render one “outside” of Orthodoxy or halakha, though I would disagree with the shikul haddat and decision in that direction.

III.

1. The most substantive halakhic argument generally put forward against women receiving some form of rabbinic ordination and serving as spiritual leaders in synagogues is the import of Maimonides’ famous ruling on serarah.  Maimonides, in Hilkhot Melakhim 1:5 maintains that not only are women excluded from serving as king in a halakhic state, but all positions of serarah-communal authority are barred to women. Many commentators have noted is that it is difficult to find an explicit source in our standard texts of midrashei halakha and Talmud for this far reaching position.[1] Indeed, as many halakhic scholars of the past and present (e.g. Rabbi Moshe Feinstein, Igrot Moshe, YD II:44) have noted, Maimonides’ position seems to be rejected by a good number of rishonim and is not cited as normative halakha in subsequent halakhic codes such as the Shulhan Arukh.

2. If one were still to desire to be cognizant and careful to work within the parameters of Maimonides, it is still incumbent upon us to clarify what exactly is included under the rubric of serarah. Should it be understood broadly to refer to almost any communal position of authority or status, whether it involves an appointment by fiat or an elected position, as well as whether it involves coercive power or not? Many rabbinic scholars, especially amongst some of the aharonim have taken that expansive point of view. They, therefore, would feel that almost any appointment of communal authority should be barred to women. In this paradigm a woman serving as president of a shul or as a rabbi of a synagogue would raise halakhic problems.[2]

      Other rabbinic scholars, however, have taken a much more limited reading of the Rambam and maintain that the definition of communal serarah (and thus the subsequent restriction) should be limited to those communal positions of authority that truly mimic the kingship model. In this paradigm only positions that are imposed on the populace with some absolute powers would fall under the Rambam’s categories of serarah. In this paradigm a rabbi of a synagogue who is hired by an election, and fired at the will of the congregation and board would clearly not fall into the category of some inappropriate position of authority even according to Maimonides. Other rabbinic scholars of note have also pointed to the concept of kaballah, of communal acceptance of a woman as obviating the restriction of the Rambam in the view of a number of rishonim. Many significant Modern-Orthodox poskim (though not all) have certainly taken that position over the last century on issues such as permitting women’s suffrage and election to serve in high office or as the president of a shul or a member of a religious council.  Indeed, to my knowledge, over the last decades a number of women have served in the position of president of their synagogues (a number affiliated with the Orthodox Union) without any formal objection.

       Mori verabi, Rav Aharon Lichtenstein, in a conversation with former students currently serving in the rabbinate and Jewish education, recently (December, 2009) discussed this halakhic issue. He pointedly noted that it is clear that the Dati-Leumi/Modern-Orthodox community and its rabbinic elite² have clearly come down in favor of a more narrow reading of the Rambam’s restriction. He pointed to the fact that for the last two decades religious women have run as candidates of Dati-Leumi religious parties across the board, for Knesset, and some have served as members of parliament. In addition, a few have served as ministers in the coalition governments with the approval (despite an occasional rumble here and there) of the rabbinic leadership of those parties. These have included scholars such as R. Avraham Shapira zt”l, R. Mordechai Eliyahu (may he have a refuah shelimah), Rav Yaakov Ariel and others.³

       R. Lichtenstein stated that clearly a member of parliament and certainly a government minister is often involved in coercive legislation or votes on budgets involving tens of millions of shekels or issues of war and peace. This position is clearly more of a serarah than any shul rabbi or president.  He thus felt that certainly in Israel, the Modern-Orthodox community has taken the position that the expansive reading of the Rambam, limiting women’s roles, is not the normative ruling.

IV.

 In this context, I would also add a question of halakhic methodology and consistency that needs to be examined in this (and many other halakhic) issue. There are many communal voices who despite the existence of opinions against the Rambam’s view or severely restricting its contemporary application take the position that we should be mahmir for the shitat ha-Rambam.

Here it has always struck me as odd why on this specific issue is the “Rambam’s position” the only one that should be entertained communally?

 There are many other opinions of the Rambam, some of them quite central to his world-view that much of the Orthodox community seems to have no problem in neutralizing or ignoring because other views exist.  In many cases the sociological realities pressed us to be lenient and to consider other countervailing factors and values.

For example:

A) Many of the communal rabbis or activists who authoritatively cite the Rambam on serarah do not hesitate to allow their communities to use the standard communal eruvin, both in their local neighborhoods and all over the world.  According to shitat ha-Rambam almost all our eruvin are not kosher as they have more than a ten amot gap between eruv posts.  This communal practice, approved by the rabbis, involves weekly instances of thousands upon thousands of acts of hillul Shabbat (albeit rabbinic in nature in most instances).

 B) Rambam maintains that receiving money for learning Torah is a violation of Hillul Hashem (the worst sin possible in the Rambam’s hierarchy of sin in Hilkhot Teshuvah).

Yet the Hareidi, Modern-Orthodox, Dati-Leumi, and Hardal worlds not only neutralize the binding nature of this Rambam, but trumpet the existence of various kollelim as the pinnacle of their educational infrastructure!

C) Rambam maintains that praying to angels or intermediaries is a violation of one of the thirteen  Principles of Faith for which one loses his or her portion in the World to Come and is defined as a heretic. Yet many communities in the Orthodox world, both Hareidi and Modern, continue to incorporate numerous passages in the liturgy of the synagogue that Rambam would say borders, if not outright violates, that principle. We are speaking here of a safeik de-oraita on a violation of a principle of faith-an ikkar of emunah. Yet, despite the gravity of the issue at stake there is no sense of being mahmir for the Rambam!.

There are myriads of more halakhic issues that one can cite but the point is clear.

In all these instances, of course, there are other rishonim who take issue with Rambam, or there are aharonim who limit the Rambam and attempt to show even he would agree in this or that situation (sometimes more convincingly, sometimes much less so). In many instances, aharonim attempt to show that because of pressing need or another countervailing Torah value we need to be lenient and not only look to Rambam as dispositive. In a word, through the give and take of halakha and the analysis of the social realities and religious needs of the community, this or that Rambam does not become the final word in the living, practicing reality of the committed community. Thus, the simple statement that “we should be mahmir for shitat ha-Rambam” is far from simple. The question has to be evaluated on a much broader canvas of the potential countervailing  legitimate Torah needs, halakhic values and spiritual directions (e.g la’asot nahat ruah lenashim, greater increase in avodat Hashem, enhancement of Orthodoxy and kevod shyamayim,) that may point us to look to other views besides the restrictive reading of a Rambam.

(I would like to make it clear that this “halakhic inconsistency’ is not limited to those of a more “conservative” –with a small c – bent. The same occurs in the more “liberal” parts of the community who on occasion cite this or that view of a Hareidi posek without being consistent to his viewpoints in other areas. This is not always out of bounds. My point is simply that the idea that we simply need to follow “the Rambam” in this or any case requires a lot more honest discussion.)

IV.

The second halakhic issue that has been raised in some quarters is the notion of hikkuey haminim-imitating, confirming, or somehow strengthening the heterodox movements in their convictions and practices. This position maintains that in parallel to the explicit Biblical prohibition of imitating gentile practices (upon which there exists great halakhic debate as to its parameters) there exists a similar type of prohibition in imitating practices that originate in Jewish communities who are heretical in nature. In its simplest form it has been formulated by one Israeli rabbi as the prohibition to engage in action that are “domeh lareformim,” appear to mimic the practices of the reformers.  

I will treat the issue here briefly, as there is much less discussion of it in halakhic literature in comparison to the issue we discussed above.

  The concept of hikkuy haminim does not explicitly appear as a full blown halakhic category until the writings of the poskim in the 19^th and 20^th century. As some of them confronted the innovations of the Reform and Conservative movements and attempted to guide the Orthodox community[3], this issue was raised. One finds that mention of this category appears, often as one amongst a slew of reasons to oppose certain innovations in the Orthodox synagogue (it is rarely used alone), in the responsa of the Hatam Sofer, R. David Tzvi Hoffman, R. Yitzhak Herzog, and R. Yehiel Yaacov Weinberg, as well as in the more polemical writings of other rabbinical scholars.

1. First, it is far from clear if all rabbinic scholars even subscribe to the existence of this as a full fledged halakhic category. In many controversies surrounding various innovations throughout the last hundred years it is often not cited.
2. Secondly and more substantively, the problem with the use of this category (as has been candidly noted by some of its contemporary proponents) is the amorphous nature of the concept. It does not have clear–cut guidelines and parameters. If one examines the literature one discovers that this notion has been raised in the last two hundred years to forbid such phenomenon as rabbis speaking in the vernacular, bat mizvah ceremonies, use of organs in shuls during the weekdays, rabbis wearing canonical robes, male choirs in shuls and women’s tefillah groups. It is interesting to note that almost all of these innovations (excepting the organ) became quite accepted in Modern-Orthodox circles. They certainly have not caused synagogues and communities to be labeled non-Orthodox. And thus the use of this concept as a clear-cut halakhic proscription on women’s spiritual leadership is certainly open to question.

 Moreover, the notion of a formal “prohibition” in engaging in actions that confirm or support the heterodox in their innovations can easily yield differing conclusions entirely. For example, Rav Ovadyah Yosef in his famous responsum on the legitimacy of the Bat Mitzvah ceremony (Yabia Omer Vol. 6:29), does not cite the argument of hikkuy haminim directly to refute it. Instead he makes the following fascinating comment:

  “And in truth, preventing girls from celebrating bat mitzvah ceremonies, strengthens the hand of the sinners to complain against the scholars of Israel (hakhmei yisrael), (to say) that they oppress the daughters of Israel, and discriminate between boys and girls.”

 This argument actually serves as a counter weight to the notion that we are supporting the heterodox by imitating their practices.  In Rav Ovadyah’s analysis, in areas where the halakha does not prevent us from having equality of some type between the sexes, refusing to adopt that practice will be viewed as confirming the worst stereotypes about halakhic Judaism. One could easily see an argument in that direction for adopting semicha for women and women rabbis[4]  being proffered.  This is an issue where one constantly hears that if in fact there is no other substantive halakhic proscription against the move, it seems to discriminate unfairly against women. It very quickly can move to a confirmation of the heterodox attack on Judaism and bring people closer to those camps. (This is similar to the argument that Rav Aharon Soloveitchik zt”l proffered in relation to his advocacy of women saying kaddish.)[5]

As in so many of these other cases in which halakha, sociology, communal norms and comfort level mesh together, the issues will probably be decided on the ground by the committed community and its rabbinic leadership. It will not be decided by an ex-cathedra call to impose a highly amorphous category that has polemical weight and resonance but not the substantive halakhic force.                                                  

[2] According to this line of thinking, converts also would be excluded from many positions of communal authority and the rabbinate as the same derasha Maimonides’ cites in relation to women appears in relation to converts. This logic has radical implications and does not seem to have ever been adopted in Jewish practice. Many communal rabbis and leaders over the centuries have been converts without any opposition.

It is interesting to note that the Young Israel movement, in a move two years ago, has startlingly taken the explicit position, in writing, that converts may not serve as rabbis of its constituent synagogues! If one adopts that position, one may also question the practice of rabbinical schools and yeshivot throughout the world to grant semicha-rabbinic ordination to converts who may not serve in the capacity of communal rabbi, one of the main occupations (certainly in Modern-Orthodox circles) for those who receive semicha. If one argues that despite converts not being able to serve as rabbis they still should be allowed to receive ordination, that logic should hold true for those who argue that women should not receive ordination because a number of the functions of the rabbi, such as serving on a beit din are closed to them.

[3] A discussion far beyond the scope of this short essay is whether the entire terminology and halakhic categorization of minim in relation to contemporary heterodox movements is accepted by the entire swath of the Orthodox community and halakhic decisors.

[4] If one was convinced that there were no other halakhic impediments. It seems obvious to me that Rav Ovadyah would not allow for the violation of a real halakhic prohibition for achieving this goal.

[5] Just so that there is no misunderstanding:  I do not claim that this would be the position of Rav Ovadyah on women’s ordination. I simply have used his argument to show how someone might analyze the issue in that light.

1. This, I have found is especially true on a visceral level for people who grew up in Conservative homes and shuls and moved to Orthodoxy, in part, in reaction to the growing egalitarianism in that movement in the 1970-1990’s.
2. I would of course, included him in this category, though his modesty precluded him from mentioning himself in that vein
3. As a footnote, it should be noted that R. Lichtenstein’s own wife, Dr. Tovah Lichtenstein, ran for Knesset in 1988 as a candidate for the Meimad party headed then by Rav Yehdua Amital.

 Although this is not a venue for making political comments about issues of our day, the recent Chanukah holiday set me on a trajectory of thought that led me to questions I think are productive for all of us to ask, and I therefore wish to share them with you.

To begin with a moment of the Chanukah story: Matityahu is in Modiin, and a representative of the Seleucid (thank you, Ari, for reminding me of that term in commenting on my last post) empire came to insist that the Jews worship their pagan god or gods.  One hapless Jew comes forward to do so, and Matityahu, apparently in a rage, kills him and the Seleucid, shouts “מי לה’ אלי, who is for God, to me?,” flees to the hills, and the rest is history.

Here are my first, historical, questions.  What led Matityahu to choose that moment as the one to spark the rebellion? Was it the first time he was personally confronted with Hellenizing Jews? It is hard to imagine, as the historical record suggests that there were many, perhaps even a majority of Jews, who had Hellenized to some degree or other.  His historical precedent was Moshe Rabbenu, but he had been faced with the Golden Calf when he took his radical action.  Could it be that Matityahu’s line was seeing Jews participate in idol worship, as had been Moshe Rabbenu’s?

I do not know the answer to that question, but it leads me to others, in our own lives.  What would be the circumstances that would lead us to break the bounds of politeness in the name of some more important ideal? This is obviously a sliding-scale question, as there are different bounds of politeness called for in different situations, with, concomitantly, different levels of attachment to those.

As I ask the question, it should be obvious that whatever recommendations we come up with will have to take into account that people on the other side of the issue will ask themselves the same question, so that any time we decide that our feelings require us to break the bounds of social mores to protest something, we are fraying the bonds of society in general.

That means, then, that if I decide that some social ill is so evil that it must be combated vigorously, and those who see the other side called out as wrongdoers, I need to be aware that they will do the same should they get the chance.  Nevertheless, in some cases, I might feel I need to take that risk.  In the US, the issue of civil rights for blacks and other minorities was one such example—proponents of those civil rights felt that the issue was so important they had to ram it down the throats of those who opposed it.  I believe most people today assume they were right for so doing, but it is not nearly as clear that that was the right way to handle different issues that have arisen since.

To stick with a Jewish context, though, suppose that a Jew, today, was actually worshiping an idol; would that be a cause for you to break the bonds of civility? (I don’t even contemplate violence, since that is, at the very least, an issue of דינא דמלכותא, of following the laws of the land)  Suppose they did it in your shul—would you feel comfortable saying “Hey, you can’t do that here?” and see to it they were escorted out?

Another version of the question: What could people say, at your Shabbat table or from the pulpit of your shul, that would force you to stop them and ask them to speak about something else?  Years ago, I was in South Africa, and a very nice fellow, my age, referred to a black with a term that was extraordinarily derogatory.  I was almost literally stunned, as I had not imagined people still thought and spoke in such ways.  I asked what he had said, to make sure I had heard him right, and he repeated it.  I asked him, with some heat in my voice, not to say that around me again.  The most important part of the incident to me was his shock that I should feel so strongly about it, since that was simply what he and everyone he knew did.

And there’s the conundrum: it will almost always be true that when someone else acts in an unacceptable way—whether by being too conservative or too liberal— that person will see his or her actions as perfectly appropriate, as will many of the people around.  Others will agree that the action or words are not right, but not worth making a fuss about.  My point is that there must be some point where a fuss is necessary, and sometimes that fuss should be significant. Do we know which is which?

To leave you with a few examples: What kinds of anti-Jewish laws would a Western country have to pass before you, personally, felt you could no longer live there, but had to flee? (I am not saying it has or will happened, but it is a question worth asking) A British court recently ruled against a local Jewish school for having excluded a child who was not halachically Jewish. Is that enough, that a court declares, as a matter of British law, that following halachic procedures to determine who is Jewish is an example of racism? France has prohibited head coverings in certain venues, regardless of religious necessity. Is that enough, that Jews are not allowed to publicly show their religion?  What would it take in the US?

Moving from society to a shul or Jewish setting: What Jewishly wrong acts would you witness and feel the need to oppose, verbally or by force?  If people are talking in shul, common practice shows that we do not think that is enough; what if they were reading pornography or atheists’ defense of atheism during services? What if the shul hosted a speaker presenting a point of view completely at odds with that shul’s declared religious allegiances? Would it be enough to speak to the rabbi, behind the scenes, or would it be worth a public fuss? When?

I remember a Dry Bones from 1975, when the UN passed its infamous “Zionism Is Racism” resolution.  The speaker in the strip is an American Zionist, who mentions the resolution in a fury over the UN’s perfidy, and says something to the effect of, “Everybody, up, out of your seats!” Someone in the audience responds, “Why, we’re moving to Israel?” and the speaker says, “Well, no, I thought we’d wave some Israeli flags and march in the streets.”

In a more tragic context, there is the famous poem attributed to Father Martin Neimoller about his and others’ failure to protest the Nazis early enough.  In the version he preferred (at least according to Wikipedia), he said,

“First they came for the communists, and I did not speak out—

            because I was not a communist;
Then they came for the trade unionists, and I did not speak out—

            because I was not a trade unionist;
Then they came for the Jews, and I did not speak out—

            because I was not a Jew;
Then they came for me—

            and there was no one left to speak out for me.

I can hope and pray that we are never again faced with a danger that great to still recognize that the questions arise much earlier. They start with attitudes expressed at a friendly dinner, they move to public conduct that is not opposed or objected to, and then they become part of the ordinary version of that society.  In my lifetime, I have seen the assumptions of society at large, and trickling down into Orthodox Jewry, change, in ways that are unequivocally problematic from a Jewish perspective, and those who protest are dismissed.  When and how do we stand in favor of standards that are not meant to be open to social ebbs and flows, but that are determined by a tradition that speaks, in certain areas, unequivocally and forcefully?

I do not pretend these are easy questions, or the answers obvious.  I assert only that the questions are necessary, and that unless we prepare ourselves with our own answers, we will end up failing to protest when we ought to, and thus be complicit with some wrong or other, a wrong we might have had a share in stopping, had we only known when to speak up.

In the featured article from our archives (8:4 – Winter 1966), Rabbi Shubert Spero breaks down the logic behind this claim and questions whether it remains compelling.   The article was in part inspired by the famous psak of the Igud Ha-Rabbonim, including Rabbi Moshe Feinstein and Rabbi Aharon Kotler, prohibiting participation in the Synagogue Council of America and the New York Board of Rabbis.  The heated politics around this issue prevented Rav Soloveitchik, on behalf of the RCA’s Halakha Commission, from issuing a formal statement on this matter.

For more information, see Chapter 5 of Rabbi Louis Bernstein, Challenge and Mission, 1982, as well as Rabbi Joseph Soloveitchik, Community, Covenant, and Commitment, ed. Nathaniel Helfgot, p. 151-156. 

For a 1986 article by Rabbi Walter Wurzburger on a similar theme, see here.

- Shlomo Brody

* Thanks to Prof. David Shatz for referring me to Rabbi Spero’s article. 

by Erica Brown

             Reflecting on Yom Kippur just days ago, it strikes me that the language of our al chet list can seem alien, foreign, stiff and archaic. We wonder what it means that we have removed a yoke from us or scoffed or hardened our hearts. We all contemporize and make the language meaningful in our own prayers, but this always takes a stretch of the imagination, as does all “translation” of ancient words into a modern idiom. It is hard work. It is simply easier to beat the chest quickly.

Consequently, this year, I tried a little experiment. Through the Partnership for Jewish Life and Learning and inspired by the subculture of Post Secrets (ha-mavin yavin), we created a “Repent It Forward” project. We gave people an internet space – on www.pjll.org –  to write their own al chets anonymously, forward the opportunity to a friend and then read what is posted. And the list – which any of you are welcome to add to until Hoshanah Rabba – did not disappoint. People who wrote described it as meaningful and cathartic. Naturally, there were the sins involving electronic devices that have never appeared in traditional machzorim. These all appear on the website:

• For the sin of texting while driving.
• For the sin of not answering the phone sometimes when I see on the caller-I.D. that it’s my mom.
• For the sin of playing games on my blackberry while pretending to be on an important call.
• For the sin of shopping online while I’m at work.
• For the sin of e-mailing too much.

No doubt, there are apologies that need to be rendered for each of these. And the list goes on. There were the sins of contemporary life like: “For the sin of wearing beautiful shoes that hurt,” or “For the sin of putting junk into my body.” And then, of course, were the list of interpersonal offenses: “For the sin of gossiping about my co-workers.” “For the sin of not listening to my mother, again.” ‘For the sin of not wanting to do homework with my children.”

            Everyday our list grew, and we realized that the project was giving us something more than a funny or meaningful read; we realized that our language of prayer is simply not comprehensive enough at times, to cover the sins of modern humanity, to encompass the complexity of all that it means to be alive in the 21^st century. This poses an acute problem for traditional Jews who are wed to the language of the siddur.

Historical Background 

Where does our ancient prayer language on Yom Kippur come from? We have an unusual expression that sums up and repeats itself in our al chet list. We punctuate our silent list of grievances with a group recitation of “ve’alkulam Elo-ha selichot, slah lanu, machal lanu, kaper lanu.” “For all these, O God of forgiveness, forgive us, pardon us, grant us atonement.” Section by section we interrupt our catalog of wrongs with this song, as if we need to relieve ourselves of the weight of so many sins at once. We break it up with a little refrain, a humble tune. Where does the expression Elo-ha Selichot come from?

In the 9^th chapter of the book of Nehemiah, the people cry over the mitzvot that they did not keep in exile and the Torah that they did not read. Ezra and Nehemiah tell the people that the day is holy – it is Rosh Hashana – and that they must not cry. Slowly, in the days ahead, these scribes and leaders recount the history of the Jewish people; and they describe our wilderness years and how much we complained.  In a conciliatory fashion, Ezra and Nehemiah assured the people that redemption was possible said, “God is an Elo-ha Selichot.” Later in the chapter, the people take responsibility for their wrongs together, and they say more words that also surface in our Yamim Noraim tefilot: “Ve-ata tzadik al kol haba alenu ki emet asita ve’anachnu hirshanu.” “Surely, You are in the right with respect to all that has come upon us, for You have acted faithfully, yet we have been wicked.”

Collective Responsibility 

What Ezra and Nehemiah succeeded in doing is capturing a group problem, not the individual expression of wrongdoing, but the collective language of guilt and responsibility. This year, perhaps more than others past, must we challenge ourselves to understand the plurality of sin. Too often, our reflections, our guilt, our anger is personal, individual. We have only ourselves to blame, or we can blame a spouse or a child. But even those others who cross our minds are people we can see with the mind’s eye, those within our immediate ambit. They are not us but enough us that we absorb them into the sphere of our personal wrongdoings and rightdoings. We do not include in our personal list of transgressions the sins of a Jew living in Italy or in Australia or all of the Jews of another city. They are not us. The us is a limited entity. The peoplehood equation gets lost in the personal shuffle.

And yet, the al chet list is written in the plural: “For the sin that we have sinned.”  We read the “we” as a royal we, really read as as “I”. We review particular incidents that involve disrespecting our own parents, our own lashon ha-ra or what we have done accidently or intentionally by hurting someone. We cannot know nor are willing to ask God’s forgiveness for the Italian Jew or the Australian Jew or the collective entity called the Jewish people. Isn’t it enough to bear your own soul, to be responsible for the one?

Yet that is not what our prayers say, no matter what our minds think.  And prayer is not the only plural of Yom Kippur. The karban hatat – the sin offering -that was once brought by the cohen gadol, the high priest, and the avoda that we read about was brought on behalf of us all. It was a korban meant to exculpate us as a group, if it was indeed accepted. We worry about the cohen. During mussaf, we feel anxiety for him lest the string around his ankle not turn white. He may pay the price with his life. We all sing “Marei Cohen” in jubilation because the cohen comes out alive, and we celebrate the fact that he has been forgiven in song. But what we celebrate is not really his new white string. We feel selfish happiness. We have made it another year. We are alive. We have been forgiven.

But before we get too excited, have we – not the cohen of ancient Jewish life in the mikdash – really asked for collective forgiveness? Have we assumed collective responsibility for the past year of transgressions?

What We Saw, How We Responded 

In 30 days this past summer, we saw rabbis – Syrian and Ashkenazi – and other Orthodox Jews on the front page of newspapers across the country in a perp walk, cut in half in pictures by a yellow police tape “Do Not cross this Line” – and it was somehow symbolic because we had crossed too many lines. And in that same summer of 2009, only two months ago, newspapers across the country recorded that a couple from Monsey were found guilty of Medicare fraud, a rabbi from Chicago was arrested in Israel for tax fraud, an Orthodox woman from the Upper West Side with a day school education was condemned for a financial diversion scheme and asked a judge not to give her an electronic ankle monitor because she does not wear pants and did not want the “bracelet” to give her away.

And that was only this summer. This past winter brought us the biggest scandal of all, the mother of white collar crimes, a Ponzi scheme perpetrated by someone whose name will forever be associated with bringing shame to the Jewish people, who defrauded Jewish charities among others, of millions. But we don’t have to look at only one type of crime. The Jewish agri-processing scandal a year earlier involved mistreatment of cattle, the harboring of illegal aliens, and the breaking of child labor laws – all this to bring us a cheaper cut of kosher meat. And who in this room does not know of at least one rabbi or Jewish educator guilty of a sex-related crime? Who are we?

Perhaps you are thinking, “These are not my Jews, my neighbors.” We have lots of different reasons why these Jews never come up in our al chets. We wouldn’t even let them touch our daled amot of spiritual space on Yom Kippur because they are not us…But they are us. Because the non-Jews in our offices and law firms and college campuses have no idea of the nuances that distance us from them, the Modern Orthodox from the Ultra-Orthodox, one Hasidic sect from another. To others outside of our narrow, categorizing mind-set, we are all just Jews, and what is wrong with Jews today? They are in the paper for all the wrong reasons.

But it’s more than that, much more than that. It’s the searching for a loophole, the kvetching a heter, the intellectual casuistry, the placing of the mind before the heart, the failure to become what we learn. When I visualize the cohen gadol who brought this year’s collective korban on behalf of all of am Yisrael, only one image comes to mind: how very, very heavy that karbon is because you simply cannot buy a sacrifice large enough to hold this year’s collective sins. And they do not belong to someone else. They belong to us. When it comes to the reputation of the Jewish people, we are all stakeholders. Every one of us. No matter how old you are. No matter how young you are. No matter what you do for a living.

Redeeming Hillul Hashem

            The gemera in Yoma tells us and then the Rambam reiterates in Hilchot Teshuva that Hillul Hashem is the one aveira that we cannot do teshuva for in this lifetime. What is a person who has committed a hillul Hashem supposed to do? Rav Moshe Feinstein (Igrot Moshe Yoreh De’ah II:#129) was asked this very question by an elderly woman who had an opportunity to give up her life al Kiddush Hashem during Nazi Germany but refused. She converted instead. She carried the guilt with her long after the war, and although she went back to her Jewish ways, she never forgave herself for the act of Hillul Hashem that is not keeping the mitzvah of Kiddush Hashem, giving up her life for her religion. Rav Moshe answered with his characteristic sensitivity. Although she cannot do anything about the past, she can do something about her future. He tells her children to fast on the day she made that fateful decision, and he tells her that just as Hillul Hashem is not only about refusing to give up one’s life for God, it is also about the ordinary way in which we belittle people and cheat them, that she must do a living version of Kiddush Hashem and educate her children accordingly. She must make each day an opportunity for sanctifying God’s name, and perhaps three is no better time for us to do the same.

Maybe, just maybe, even Rav Moshe’s words don’t reach us. Maybe we don’t think in the plural about sin not only because we don’t want to take responsibility for someone else’s problems but because we don’t really believe that as a collective we have the capacity to change, that this organism, this entity, called the Jewish people has the ability to transform itself. This is where our textual lives must play a role in shaping thought and behavior.

Discovering Redemption 

A midrash on the first story of redemption, that of Cain, bears special significance. In Genesis 4, Cain, after understanding the enormity of what he has done wrong says to God: “Gadol avoni m’niso,” My sin is too great to bear. Cain cannot live with himself. God, in his compassion for Cain and as a reward for this self-understanding, gives him a sign on the forehead to protect him for 7 generations. As the narrative concludes, it says: “Cain left the presence of the Lord and settled in the land of Nod, east of Eden.” What, the ancient sages, wanted to know, was Cain thinking and feeling as he left God’s presence? Genesis Rabba 22:12 records an unbelievable conversation, between Adam and Cain, a dialogue we do not have in the text.

Rabbi Hanina ben Isaac said: “He went forth rejoicing.” …Adam met Cain and asked, “What was done in punishment of you?” Cain replied, “I vowed repentance and was granted clemency.” Upon hearing this, Adam in self-reproach began to beat his face as he said, “Such is the power of repentance, and I knew it not.” Then and there Adam exclaimed: “It is a good thing to confess to the Lord” (Psalms 92:1).

There was teshuva but Adam never knew about it. Adam had the capacity to change, but no one ever told him. No one ever told Cain, either. He figured it out for himself. He discovered the gift of transformation. The man who was told he would be a wanderer as his punishment for killing a brother reverses his punishment. He gets married. He has a child. He builds a city, and he names the city after his child. That is not the work of a wanderer. It is the work of a repentant man. A person who understands that to live with sin is to rebuild a new life where sin does not constantly get in the way of all that a person can become.

A Variation on the Theme 

Al chets are translated as “for the sin of” rather than “for our acts of sin.” The standard translation may be more lyrical but it gets in the way of collective expression, the root of peoplehood. Perhaps a few modern day collective al chets can prompt us to think about the enormous challenges facing each one of us, particularly as Orthodox Jews, in this coming year:

• For our sin of thinking that ethics is someone else’s issue.
• For our sin of not bringing the word “God” into our conversations.
• For our sin of believing that we can wrong others without corroding our own souls.
• For our sin of reading texts and not becoming them.
• For our sin of thinking that holiness is more about the synagogue than about our behavior in an office elevator.
• For our sin of not being polite to strangers when wearing a kippah or a magen David.
• For our sin of cheating on a test because we thought that a grade was more important than our integrity.
• For our sin of taking home office supplies and telling ourselves that we did nothing wrong.
• For our sin of thinking that day school education is not about values education more than it’s about anything else.
• For our sin of making Jewish affluence a bigger priority than Jewish goodness.
• For our sin of betraying a Hebrew National commercial that told us that we answer to a higher authority.
• For our sin of not working harder to improve the reputation of our people in the world.
• For our sin of not being makadesh Shaim Shamayim every day of our lives.

We can change each of these confessions into a challenge. As the philosopher James Wilson’s work on character states, we can care more about self-control than about self-expression. We can tell ourselves that this year, Jewish goodness will be more important than Jewish affluence, that we do indeed answer to a higher authority, that we do carry Judaism with us into every elevator and every interaction, that our warmth and friendliness in the world enhances our reputation everywhere that we go. That we are indeed mekadesh Shem Shamayim every day of our lives because the reputation of Am Yisrael desperately needs it right now.

A few weeks ago, the following letter was sent to the membership of the Rabbinical Council of America (RCA) by the executive leadership of the RCA, the Orthodox Union, and Yeshiva University.  I reproduce below, with permission from the RCA (and I believe for the first time to the wider public), the most central parts of that text.  While the letter speaks for itself, I continue afterward to note a couple of salient points from the letter.

  - – - – - – - – - – - -  

Dear Rabbonim Chashuvim,

We know that, like us, you were sickened and embarrassed by the recent scenes of religious Jews being led off in handcuffs, charged with corruption, money laundering, and even organ trafficking.  What makes things worse is that this is only the latest of innumerable such scandals involving illegal and unethical behavior in our community. The words of hatarat nedarim ring depressingly true: iy efshar l’fortam ki rabim hem.

The distortion of Jewish values, the reinforcement of negative Jewish stereotypes, and the massive hilul Hashem call for equally massive efforts at Kiddush Hashem.  No doubt each of us has been addressing this issue in his own way among his own kehillah… We must all affirm that:  

•  Stealing, whether from Jew or Non-Jew, individual or corporation or government, is a Torah prohibition.  Stealing includes not charging or paying taxes that one is legally obligated to charge or pay.

• Dina d’malkhuta dina-the secular law of the land is binding on the Jew.

• We gratefully acknowledge the beneficence and justice of American courts and laws which allow our community to prosper here both materially and spiritually.

• Jews must sacrifice financially rather than enter situations that have the potential to result in hilul Hashem.

• Jews must lead in efforts to promote and honest and law-abiding society; that is the true ethic of the Torah as well as the Prophetic charge of being an “ohr la-goyim.”

• To use the phrase coined by Rabbi Joseph Breuer, zt’l:  A Jew must not only be Glatt Kosher – He must be Glatt Yoshor.
   

… This is not a time for splitting hairs over possible dissenting views in poskim on this or that point.  It is an et la’asot la-Shem, when we must make the ethical demands of the Torah and the day clear in the most public of ways.  We strongly urge you to join with us and loudly declare, to our own communities and to the world, that we, representing Torah, will not tolerate any but the highest standards of ethics.

We do not mean to imply that this problem is new, or even necessarily suddenly more prevalent in our communities.  It has always been there, more than we cared to admit, testimony to the frailty of human nature.  This most recent public manifestation, however, gives us an opportunity to make a real tikkun in an important area, and is the sort of opportunity we look for during the Yamim Noraim season…

May our efforts be blessed from above by Hashem, and may they restore some fraction of the luster of the Shekhina  so tarnished by recent events.

Wishing you a ketiva va-hatima tova,

Rabbi Moshe Kletenik

President

Rabbinical Council of America

Rabbi Basil Herring

Executive Vice President

Rabbinical Council of America

Richard M. Joel

President, Yeshiva University and RIETS

Rabbi Kenneth Brander

The David Mitzner Dean

Yeshiva University Center for the Jewish Future

Rabbi Steven Weil

Executive Vice President

Orthodox Union

Rabbi Tzvi Hersh Weinreb

Executive Vice President Emeritus

Orthodox Union

- – - – - – - –

Beyond the significance of the public statement in its own right, there are a few important points to note:

1)  “Jews must sacrifice financially rather than enter situations that have the potential to result in hilul Hashem.”  In other words, Jews must pro-actively steer away from potentially unethical situations.  There is no excuse to state, “I knew their might be a problem, or that this was a borderline case, but I thought that it would end up being ok.” 

2)  “This is not a time for splitting hairs over possible dissenting views in poskim on this or that point.”  To my mind, this is the most significant statement in the letter.  There are many Talmudic and post-Talmudic texts that forbid all forms of stealing and fraud against all people, Jew and non-Jew alike.  But as anyone who has learned the 10th perek of Bava Kamma (or various other texts), the textual arguments sometimes go in different directions – a point which Rabbi Rothstein (and the commentors) has been addressing in his posts, and we hope other posts will continue to address in the near future. 

With regard to other issues, one can leave matters as a makhloket, or decide one way or another.  But in this case, the implications are far greater, as it reflects our entire relationship with non-Jews.  Stands must be taken in one direction or another – you cannot sit on the fence in such a case. 

Unfortunately, discussion of these issues in our community frequently gets caught up in the nitty-gritty of the sugyot.  That is an important and essential academic exercise, but it cannot obfuscate our community’s agenda in practice.  Hence why it is important for these leaders to state in unequivocal terms that all forms of stealing are forbidden against all victims.

This sentiment reminds me of an important text which I came across several years ago when I first learned the sugya of gezel and aveidat goy. 

The author is Rabbi Moshe of Coucy, whose work Sefer Mitzvot Gadol includes many of the drashot he gave as a travelling preacher throughout Europe.  After citing the mitzvah of returning lost objects, and the Talmudic prohibition of affording the same privilege to ovdei avodah zarah and others, he then lists a series of Talmudic statements that stress the importance of treating equally the property of Jews and non-Jews alike, especially with the threat of a chilul Hashem.  He then concludes with a powerful exhortation that after many years in exile, it is time for Jews to distance themselves

“from the frivolities of the world and grasp the seal of God, which is Truth, and not lie to Jew or to non-Jews, nor to deceive them in any matter, and to sanctify ourselves even in that which is permissible to us, as it says, “The remnant of Israel will not commit foul deeds nor speak falsehoods, nor will there be found in their mouths treacherous tongues” (Tzefania 3:13).  And then, when God comes to redeem us, the non-Jews will say that He is just in doing so, for we are men of truth and Torat Emet is in our mouths”

ספר מצוות גדול עשין סימן עד

מצות עשה להשיב אבידה לישראל שנאמר השב תשיבם לאחיך (ע”פ רמב”ם גזלה ואבידה פי”א ה”א). ודרשינן במסכת ע”ז פ”ב (כו, ב) לכל אבידת אחיך לרבות [את] המשומד הילכך, אפילו היהא הבעל אבידה רשע ואוכל נבילות לתיאבון וכיוצא בו מצוה להשיב \לו\ אבידתו, אבל אוכל נבילות להכעיס הרי הוא מין והמינין והאפיקורסין ועובדי עבודה זרה ומחללי שבתות בפרהסיא אסור להחזיר להם אבידה (רמב”ם ה”ב ע”ש).

ובפרק הגוזל בתרא (ב”ק קיג, ב) תניא רבי פנחס בן יאיר אומר במקום שיש חילולב השם חייב להחזיר אבידת גוי עובדי עבודה זרה כאבידת ישראל. ובירושלמי דפרק הניזקין (גיטין דף לג, א) אמרינן שבכל מקום מכניסין כליהם מפני הגנבים ככלי ישראל מפני דרכי שלום (לשון רמב”ם ה”ג). וכן מסיק רב כהנא בפרק הגוזל אחרון (שם) שטעות גוי עובד עבודה זרה מותר והוא שטעה מעצמו כיצד כגון שעשה הגוי חשבון וטעה וצריך שיאמר לו ישראל ראה שעל חשבונך אני סומך ואיני יודע אלא מה שאתה אומר [לי] אני נותן לך אבל להטעותו אסור שמא נתכוון הגוי לבודקו ונמצא שם שמים מתחלל (עי’ רמב”ם הל’ ד, ה ובלח”מ). ובמעשה דרב אשי (שם ותד”ה הכי) שאמר לשמש שלו להביא ענבים בולטין חוץ לגדר אם הם של גוי שמע גוי אחד אמר אם של גוי הם וכי מותר הוא אמר ליה גוי לוקח הדמים ישראל אינו לוקח הדמים פירש רבינו יצחקג שאמר לו האמת ולא לדחותו.

כבר דרשתי לגלות ירושלים אשר בספרד ולשאר גלויות אדום כי עתה שהאריך הגלות יותר מדאי יש לישראל להבדיל מהבלי העולם ולאחוז בחותמו של הקב”ה שהוא אמת ושלא לשקר לא לישראל ולא לגוים ולא להטעותם בשום עניין ולקדש עצמם אף במותר להם שנאמר (צפניה ג, יג) שארית ישראל לא יעשו עולה ולא ידברו כזב ולא ימצא בפיהם לשון תרמית וכשיבא הקב”ה להושיעם יאמרו הגוים בדין עשה כי הם אנשי אמת ותורת אמת בפיהם אבל אם יתנהגו עם הגוים ברמאות יאמרו ראו מה עשה הקב”ה שבחר לחלקו גנבים ורמאים ועוד כתוב (הושע ב, כה) וזרעתיה לי בארץ כלום זורע אדם כור אחד אלא למצוא כמה כורים כך זורע הקב”ה [את] ישראל בארצות כדי שיתוספו עליהם גרים (פסחים פז, ב) וכל זמן שהם מתנהגים בהן ברמאות מי ידבק בהם. והרי הקפיד הקב”ה על גזל הרשעים שנאמר (בראשית ו, יא) ותמלא הארץ חמס. עוד אני מביא ראיה מירושלמי דפרק אלו מציאות (ב”מ דף ח, א) שאומר שם רבנין סבייאי זבנין חד כרי דחטין ואשכחן ביה צררא דזוזי והחזירום להם ואמרו הגוים בריך הוא א – לההון דיהודאי, וכיוצא בזה מספר שם מעשים הרבה מאבדת הגוים שהחזירום מפני קידוש השם:

3)  One point which I think ought to be emphasized is the necessity of such a position in building proper Jewish character.  One cannot expect people to act morally and properly to certain people, while allowing them to act improperly to others.  Character development simply does not work this way.

This point is cogently made by R. Tzvi Hirsch Ashkenazi (d. 1718), in his Teshuvot Chacham Tzvi (Siman 26).  When the Maharshal questioned the Rambam’s ruling forbidding stealing from a non-Jew, based on the fact that the Torah’s laws were only given to Jews, the Chacham Tzvi shot back that there are many laws which dictate that Jews act properly to people not bound by the Torah’s strictures.  Other laws, moreover, restrict our behavior toward animals and plants, which clearly do not fall into the category of covenental members.  Nonetheless, he asserts, the Torah prohibits these actions as they are central to building proper traits and virtues.¹

שו”ת חכם צבי סימן כו

 פריסטיץ למחותני ה”ה מהר”ר מאיר נר”ו אב”ד שם

ראיתי מ”ש מעכ”ת בשם ה”ה מחותני מהר”א ברודא מפראג על קושית מהרש”ל על הרמב”ם דס”ל (לפי דעת מהרש”ל לאפוקי לפי דעת הכ”מ) שגזילת וגניבת הגוי אסורה בלאו כמו של ישראל ודבר תימה הוא בעיני כי התורה בכללה ובפרטה לישראל ניתנה עכ”ל מהרש”ל וכתב עליו הרב הנ”ל שהיא קושיא חזקה ולי דברי מהרש”ל תמוהין מאוד ומה ענין דהתורה לישראל ניתנה ולא לנכרים שהביא מהרש”ל ומה זו קושיא להרמב”ם אטו משום לתא דידהו הוא וכי הרמב”ם סבור שהנכרי נצטווה שלא יניח לישראל לגזלו או לגנוב ממנו והלא אנחנו נצטוינו שלא לעשות מעשים מכוערי’ ולא יהא אלא גונב ע”מ למיקט או ע”מ לשלם תשלומי כפל אף שאינו מתכוין לגנוב ולא עוד אלא שמתכוין לטובת הנגנב עכ”ז נצטוינו אנחנו שלא להרגיל עצמינו לגנוב

 וכבר מצינו שני לאוין מפורשים בגוים לא תתעמר בה ומכור לא תמכרנה בכסף וכשצרין על ערי הנכרי’ נצטוינו להניח רוח אחת מבלי מצור לכל מי שירצה להמלט על נפשו כמ”ש הרמב”ם ז”ל בה’ מלכים פ”ו דין ז’ וכן כי תקרב אל עיר להלחם עליה וקראת אליה לשלום ואף בבע”ח בלתי מדברים נצטווינו על צערם מדאורייתא למ”ד ואותו ואת בנו לא תשחטו ביום אחד ומצות שלוח הקן יש בה עשה ול”ת ואף בצמחים נצטוינו לא תשחית את עצה וכל זה אינו בעבור הפעול אלא בעבורינו אנחנו הפועלים לקנות בנפשנו דעות אמיתיות ומדות טובות וישרות לזכותנו לטוב לנו וז”ב מאוד ולטעמיה דמהרש”ל תיקשי לנפשי’ הא איהו גופיה ס”ל דאפשר דהנהו דרשות דואכלת את כל העמים בזמן שהם מסורים בידך וכן וחשב עם קונהו שלא ימשכנו ויצא דרשות גמורות נינהו וכן הוא האמת לדעתי ותקשי למהרש”ל והאיך נצטווינו במצות עשה שלא לגוזלם דמה לי מ”ע או ל”ת דכשם שהאזהרות והמניעות שבתור’ אינן אלא לישראל ולא לאומות כך החיובים והעשין אינן אלא לנו ואדרבא החיובים יותר נראה שאינן אלא לישראל כי כן לא מצינו במצות בני נח אלא אזהרות ומניעות לבד מאברהם שיצא מהם באהבת ה’ יתברך אותו ציוהו במצות המילה אלא עכ”ח אין זה ענין לזה שהאומות לא נצטוו להיות פועלים ועושים מצות התורה אבל אנחנו נצטוינו עליהם בהרבה מצות ואף מ”ד גזל הנכרי מותר נמי הוי תיובתיה דמהרש”ל דהא איצטריך לדידיה רעך למישרי גזל הנכרי ואי כסברת מהרש”ל דלא ניתנה תורה אלא לישראל וכו’ רעיך למה לי הא ממילא ידעינן ליה אלא וודאי אין זו סברא ודו”ק:

In the coming days, we hope to publish Dr. Erica Brown’s post-Yom Kippur reflections on vidui in a year of mass chilul Hashem

 Shlomo Brody-

1. This emphasis on agent-morality was a favorite theme of longtime Tradition editor Rabbi Walter Wurzburger.  See, for example, his Ethics of Responsibility, Chapter 5, and his related article “Darkhei Shalom” in his Covenantal Imperatives, where he argues that the concept of darkhei shalom reflects a larger ethical religious norm that dictates our interaction with non-Jews