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.

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

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.

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.

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.

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.

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.

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.

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?
KT