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Our Writers Respond: Chukim, Mishpatim, and Womanhood by Aryeh Klapper (Part 1)

Posted By Aryeh Klapper On March 11, 2010 @ 12:21 pm In Jewish Culture,New Posts,Our Writers Respond | 9 Comments

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 [1] and Rothstein (here [2] and here [3]) 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.        

9 Comments (Open | Close)

9 Comments To "Our Writers Respond: Chukim, Mishpatim, and Womanhood by Aryeh Klapper (Part 1)"

#1 Comment By Gidon Rothstein On March 12, 2010 @ 4:10 am

I think Rabbi Klapper’s idea is insightful, with the following flaw: while Rashi might be taken to mean that Hukim have no reasons, Rambam was clear that hukim are those laws that are not initially intelligible (as Prof. Twersky, a”h, taught), but that, with proper study become so. The question then is whether Rashi would have agreed had he learned of that distinction. It is my claim, then, that all of Torah is, with proper thought, intelligible, at least eventually. And even if that is not true, I would argue that a topic of such centrality– the role of women– cannot be treated as a hok.

#2 Comment By lawrence kaplan On March 15, 2010 @ 2:19 pm

The burden of proof is on Rabbi Rothstein to show that Rashi would have agreed. I think it is highly doubtful. I hope to return to this later

#3 Comment By Moshe On March 15, 2010 @ 8:24 pm

This is a very insightful framework that Rabbi Klapper has offered, one which can help understand many issues within Judaism; but frankly, I think that applying this framework to women’s issues is untenable. Is it really so easy to dismiss ALL areas of distinction between men and women in halacha as arbitrary Chok? Women’s stance in halacha is not comparable to one isolated commandment, like mechiyat Amalek; gender distinction is a PATTERN that flows throughout so much of halacha, in so many different areas, as R. Rothstein outlines in his article. Can a widespread pattern be classified as Chok as easily as a single commandment can?

Furthermore, Chazal themselves indicate in many places that they assumed men and women to be fundamentally different. So we can say with confidence that Chazal and sages throughout history must have treated these issues as mishpat. Any attempt to now classify is as Chok is complete revisionism. R. Klapper shows that the understanding of mechiyat Amalek and slavery may have changed, but that is different. Since we lost the practical possibility of performing these mitzvot, R. Klapper himself admits it is more natural and appropriate to allegorize them. Women’s issues, on the other hand, still affect our halachik life even today on a constant basis, and so it seems to me less fitting to simply allegorize or “Chok-ify” them. Such a stance would simply never satisfy any intellectually honest woman struggling with these issues. (“You can’t count in a minyan, but don’t worry, it’s really just an arbitrary rule with no underlying value or meaning”).

Also, I thought that even Chok advocates of the Rashi school limit the category to obscure ritual laws like Para Aduma, which have no intuitive rationale. But does anyone apply the Chok idea to laws within the social sphere? Isn’t it obvious that in that sphere, the Law reflects certain underlying social assumptions? I’ve always learned that women’s exemption from certain mitzvot is to free them to have time to raise children. I think the vast majority of Orthodox sages both today and throughout history have treated women’s stance in halacha as reflecting some underlying value (such as the motherhood rationale), not as an arbitrary Chok. I wonder if R. Klapper can find a single traditional source which treats this issue as a Chok; many such sources can be found which assume it is Mishpat.

R. Klapper, I hope that you will soon tell us your own opinion on this. But once again, I think the attempt to simply wave one’s hand and conveniently brush away all women’s issues in halacha as being Chok is just not intellectually honest.

#4 Comment By Aryeh Klapper On March 15, 2010 @ 9:09 pm

Dear Moshe,

I appreciate the compliment in the first line. And I very much appreciate the highly reasonable critique in the remainder, with the proviso that its stridency seems a little out of place, as I tried my best in this post – as you note at the end – to not offer my own opinion on the specific question, or on the application of my framework to the specific question, and I set up general concerns about the chok position that mirror yours. On an issue that seems to generate so much heat, it would be wonderful if the general discourse on this site could match the dignified restraint of Rabbi Rothstein and Rabbi Helfgot.
But l’hagdil Torah ul’haadira – I do feel it appropriate to note that Amalek is not different in kind than the laws regarding the 7 nations, and that it seems to me that almost all ethnicity-based discrimination is regarded as a chok today within Modern Orthodoxy, or would be if it were ever considered for practical legislation. The laws of Canaanite slaves are just an example of a host of caste-based halakhot that, again, would be treated as chukim by all of at least Modern Orthodoxy. So it’s not offhand clear to me that the laws about women have a clearer pattern than d’oraita halakhah in those areas. Rather, the major difference I see, other than that the shift in sensibilities is contemporary and tentative, is that in those areas the halakhot are mefurash bikra, whereas with regard to women they are produced by midrash Halakhah. But the implications of that difference along the axis I set out are beyond the scope of a comment.

#5 Comment By Moshe On March 15, 2010 @ 9:39 pm

R. Klapper, thank you for your response. I apologize if my critique came off as too strident. It was not at all meant personally (actually, I have long admired your Torah from afar, having read some articles of yours and listened to some of your shiurim) but simply as an impassioned critique leshem shamayim. I await hearing your personal opinion on this matter.

#6 Comment By Moshe On March 16, 2010 @ 6:14 am

R. Klapper, chodesh tov. 3 more points:

1) I don’t think most Modern Orthodox (MO) Jews consider mehiyat amalek a Chok with no logic. I was always taught that the reason behind destroying Amalek is to eradicate evil from the world. Based on this sense of Mishpat/logic inherent in this mitzva, I think many MO Jews (especially religous Zionist ones) see fighting Hamas or al Qaeda as a kiyyum in destroying Amalek. R. JB Soloveitchik wrote that the Nazis had the status of Amalek.

2) Can you elaborate on how MO Jews view ethnic based laws as chukim? Do you mean laws which distinguish Jew from gentile? I think many MO Jews actually do infer that these laws teach the value of separation, just as Haredim do; the only difference is we don’t apply it as broadly as Haredim. But we still are more prone to support Israel over other foreign causes, to give our time and energy more to Jewish causes than non-Jewish ones, to fraternize mostly just with other observant Jews..

In general, my point is that not applying the logic of a mitzva so broadly does not necessarily imply that it’s a chok; it could just be a mishpat with limited broad application, but still with an underlying logic nonetheless.

3) While much of the halacha’s view of women is indeed derived from midrashei halacha, much of it is also mefurash be’krah. For example: only men are required to appear in the Temple on the 3 regalim, only male first born are redeemed, only men can have more than one spouse, only male descendants of Aharon are kohanim (for most purposes)..and there are many more examples. So even within the Torah text we can say there is a pattern of gender distinction in many different and unrelated areas which forces us to confront and articulate an underlying value and meaning in this phenomenon.

#7 Comment By Anonymous On March 16, 2010 @ 9:14 am

Dear Moshe,
Those are wonderful challenges, and I regret that I need to answer in haste – I’ll return to these subjects as well iyH in the future, but time is limited. So briefly, out of order, and not doing justice:
b) By “ethnicity nased” I meant halakhot that distinguish among gentiles on the basis of genetics, such as the ban on Moabite and Amonite male converts, or Egyptians to the tenth generation, as well as Amalek. I stand by my characterization of the MO attitude toward these.
a) Once aa mitzvah has been allegorized, it sometimes becomes safe to “mishpatify” again -thus Amalek as applied by the Rav to Nazis. But the Rav was careful not to apply the actual halakhah, i.e the obligation to slaughter women and children – that remainsa a chok. N.B. Because of the risk that people will apply the actual halakhah, I think that this application of Amalek should be avoided – in some other context I will try to explain why I think the diyyuk in HIlkhot Melakhim that generated this peculiar “din Amalek” is not intended to convey this at all.
c) If I can answer without tipping my hand, I personally do not think an “identitarian” conception of Halakhah is compatible with the text of Torah – I usually use the ineluctably different experiences of men and women with regard to Hilkhot Niddah to make this point. But the examples cited here do not generally cohere, so far as I can tell, around women having time to raise children – rather, three of them cohere around women’s relationship with the sacrificial ritual, and polygamy so far as I can tell is an outlier. With regard to the first, I venture no opinion as to attitudes about it; with regard to the second, the universal decision to follow Rabbeinu Gershom is instrutive.
Thank you again for the challenging and productive questions – I look forward to more.

#8 Comment By Elitzur On March 16, 2010 @ 11:34 am

This is pretty funny – I found myself making just this argument (namely that what is a chok and what is a mishpat can change with time) just a few weeks ago… I guess I learned a lot from you, R’ Klapper…
Another possible example is kashrus, which many even in the early to mid-20th century declared as health based but seem no longer to be.

#9 Comment By joel rich On March 16, 2010 @ 2:59 pm

Question: Would it be possible to do a study of where in the history of each halacha did “the reason” for a halacha get employed in the inevitable (granted debatable how much pure mesora from sinai there was) switch from revealed law to man made law? An example perhaps might be conversion for marriage where iiuc the Ritva’s agav donseih became a key point to debate for future generations?

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