The Ideology of Shomer Torah

“The very powerful and very stupid have one thing in common. Instead of altering their views to fit the facts, they alter the facts to fit their views…which can be very uncomfortable if you happen to be one of the facts that needs altering.” –Doctor Who: Face of Evil

It should be obvious by now that my take on Judaism is a little bit different than most other people’s. Sometimes I appear to be mahmir (strict), other times meikil (lenient), and other times completely ambivalent. I’m inconsistent to some, mechanical to others. I’ve had people try to throw every possible label at me trying to peg me down into an ideology with which they could identify. Even when I give my typical short answer of read Rambam’s Introduction to Mishnah Torah, I typically get blank stares or people just don’t understand the point.

In truth, I’ve never tried try to fit into most of the religious boxes that people set. I suppose I would be considered “Modern Orthodox,” but there are so many opinions as to what that term means that I do not believe it is terribly useful. I would also avoid using the varying degrees of “frum,” as well as the currently fashionable qualifications of “orthopraxis” or “heterodox.” Rather than rely on the social categorizations of other people, I will try to explain as best as I can what I believe and why. You’re free to call it whatever you’d like.

Personally, I prefer simply, “Shomer Torah.”

What Does it Mean to be a Shomer Torah?
Before we get to the definition of “Shomer Torah,” I should first explain my basic assumptions. I believe that there is a God, that God gave the Torah, and that Jews must fulfill the commandments of God as written in the Torah which he gave. The Torah is complete and the Torah only exists as is, with nothing added or subtracted (Deut. 13:1). I also believe in the authority of the Torah Shebe’al Peh, the oral tradition of interpretation to which Jews are also biblically obligated to follow (Deut. 17:8-13). This oral tradition – encompasses everything from legal and homiletical exegesis to the process by which new laws may be enacted. Using the combination of the written and oral Torahs – or as Neusner puts it, the “dual Torah”, Jews are ultimately charged to fulfill the will of God.

Literally, a “Shomer Torah” is someone who protects or safeguards the Torah. If Jews are supposed to follow the will of God, and the will of God is defined by the dual Torah, then in theory being a Shomer Torah should be the ultimate goal of any Jew. Granted, these assumptions requite some a priori beliefs in God and the nature of the written and oral Torahs, and I am not going to defend these beliefs nor will I attempt to convince people who believe otherwise. However, for those who do claim to believe in the dual Torahs, safeguarding it should be of utmost importance.

Nothing radical here, but we still need to deal with the question of subjective interpretations. With a near infinite number of possible interpretations of Jewish texts, how do we prevent a near infinite number of Judaisms?
For a while I’ve been harping on the need of an objective system for determining halakha – something which can provide some form of definitive boundaries which can be used to evaluate what is and isn’t in the acceptable range of Torah. My not-so-novel approach is simply to look for such guidelines within the Torah itself. Meaning, the dual Torah is not just a list of laws, but it also defines a system for how Judaism is supposed to function.

Shomer Torah in Halakha
Like most legal codes, halakha has obligations (hiyyuvim) and prohibitions (issurim) and there are only two possible sources of authority – biblical (d’oraita) and rabbinic (d’rabbanan). For something to have a status of obligation – hiyyuv, it must be mandated either biblically or rabbinically. The same holds true for prohibitions or issurim. If an action is neither biblically nor rabbinically obligatory or prohibited, then it would fall under the category of reshut and it may be done at the discretion of the individual. Most of halakha is in determining if there are any issurim or hiyyuvim involved in a particular action.

According to the Talmud’s system of halakha, Rabbis and their courts have the authority to legislate over whatever their jurisdiction happens to include. A local court may legislate only for its community, whereas only the national court’s rulings are binding on all Jews. These national rulings are the only ones universally applicable to every Jew in every time. The only way a law can ever be universally obligatory is if the national court rules accordingly (B. Sanhedrin 2a-b, B. Horayot 2a-3b). Furthermore even the universally accepted court may not overturn its predecessor unless it is greater in number and wisdom (M. Eiduyot 1:5, B. Beitza 5a). Without getting into further details, this is the general mechanism the Torah defines for the development of halakha.

There is one obvious complication in that we do not have detailed organized records of court proceedings. As such, we cannot always say with certainty what was legislated through this court system. Though hardly a perfect record, the best source we have for such information is the Talmud. Not all disputes are resolved, but there are more than enough cases where the law is clear – or at least was at that time. For the most part, we can assume that the laws in the Talmud were decided at one point by a universally accepted court, and consequently no later source would have the authority to overturn Talmudic laws.

This is not to say that halakha ends with the Talmud. Rather, according to the system defined by the Talmud, there has not been a universally accepted authority in Judaism, such that its rulings would be binding on all Jews since the Talmud. (Although, it is likely that some of the Gaonic courts could have been as authoritative at least for enacting new laws, and I’m willing to grant some leeway). It also does not mean that everything in the Talmud was in fact legislated in a court. The Babylonian Talmud is replete with redactional material, often in the form of a dialectic or logical interpretations which may or may not have been part of the original law. They are also anachronisms in the Talmud. The oft-cited idiom, “R. Ashi and Ravina are the end of hora’ah” (literally teaching, in context authority) (B. Bava Metzia 86a) was most likely said after their time. But while there are legitimate ambiguities within the Talmud, it is still the best record we have of what was legislated by the Sages.

Therefore, if someone wants to claim that something is forbidden or something else is obligatory, for all Jews at all times, one must produce an explicit Talmudic source to that effect. Furthermore, no individual would be allowed to permit that which the Talmud prohibited or disregard Talmudic precepts. This does not preclude different opinions of how to read texts, but there are philological and legal restrictions as to which conclusions one may reach. It is not a matter of being a “rabbinic kara’ite,” but rather following the system of authority of the Torah itself.

In terms of how this system ought to work in practice, within the parameters of Talmudic law, there is still much left up to one’s discretion. Not everything that can be done halakhically ought to be done in a given social reality. Most often, it is the Rabbi who makes such decisions, which as we have discussed previously can be somewhat complicated. There is also a great deal of freedom for innovating or altering communal practices, within the necessary limits of Torah.

Even when the Talmud affirms pluralism, it also imposes important restrictions. Regarding the debates of Beit Hillel and Beit Shammai, the Talmud affirms both positions as “eilu va’eilu divrei elokim hayyim” (these and those are the words of the living God) (B. Eiruvin 13b). Many assume this to mean that both opinions are equally legitimate and therefore one may follow either opinion as one wishes. The Talmud however imposes some significant restrictions. Before the halakha was decided in favor of Beit Hillel, one who follows the stringencies of both is considered a fool whereas one who follows the leniences of both is considered wicked (B. Hullin 43b-44a). After the halakha was decided in favor of Beit Hillel, one is no longer allowed to follow Beit Shammai. When R. Tarfon put himself in danger to follow Beit Shammai, the Sages chastised him for violating the halakha (M. Brachot 1:3), with the Yerushalmi even adding that he was hayav mitah (worthy of death) (Y. Brachot 1:2 3b).

What is important about this system is that there is an objective criteria for determining which opinions are consistent with Torah. The Talmud itself recognizes the limits of rabbinic authority by acknowledging that courts (B. Sanhedrin 6a, 33a)- including the sanhedrin hagadol can make mistakes (B. Horayot 2a-b). The only way this could be possible is if there is an objective Torah to which all Jews are held accountable. Based on the rules established be the Sages, any opinion which contradicts Talmudic law – regardless of who says it or communal acceptance – ought to be rejected by a Shomer Torah.

This is the best I can describe the halakhic system in a blog post.

Shomer Torah in Mahshava
One of the most maddening experiences I’ve had in the Jewish world is listening to people of various backgrounds portray a theological source – in or out of context – as *the* final Jewish opinion. There is a pragmatic reason for doing this, beyond promoting a particular agenda. Simply put, It’s easier for Rabbis and laity to deal with disputes of halakha than on matters of mahshava. While conformity of thought may be stifling to some, there is a comfort to others to prepare and receive simple answers.

While this simplistic attitude is appropriate for many people, I hardly believe it is the ideal. The Torah is full of mutually exclusive opinions on major theological issues such as theodicy, many of which get suppressed. Even Rishonim philosophers cite the sources which best agree with their hashkafa, reinterpret contradictory passages, and ignore the rest.
My perspective is that to fully understand the Torah’s perspective on theological issues, one should try to find the widest possible range of opinions, and then try to formulate an understanding. This was the goal of my Mahshevet Hazal shiurim – to study as much as the Torah has to offer on a subject without ducking away from uncomfortable sources. R. Tendler would never skip aggadot in shiur, because in his words, if Hazal thought it was important enough to include, we should think it’s important enough to learn. To be a Shomer Torah means safeguarding the entire Torah, not just the parts with which you happen to approve.

The fact there exists so many theological opinions in the Torah is something which I personally find unique. The Sages had their own perspectives sometimes based on their life experiences. They also realized that there were some questions which they wouldn’t be able to answer. They did not pasken theology, and despite their doubts and the multiplicity of opinions, they were still fully observant Jews. Questions like God’s role in the world, or the importance of being Jewish, are in my opinion intentionally left unresolved. Not only is there the impossibility of truly knowing the divine plan, but people’s perspectives change over time as they (hopefully) mature. By not legislating theology, the Sages allow for personal growth and development within the Torah.

Common Criticisms
What I have just described is a rough explanation of what I believe and how I work. Before I wrap up the series I’d like to deal with some of the more common and serious critiques I’ve faced in the past few years – generally dealing with the issue of halakha.

The first group of critiques I’d call reactionary because being a Shomer Torah challenges the status quo. Since many Jewish practices and halakhic evolution developed independent and contradictory of Torah, following the Torah will inevitably put you at odds with the Jewish community. As I argued in the previous post, if you believe your community is intrinsically sacred, such challenges to the establishment are heretical.

The two most common questions along these lines are, “How can the community be wrong, and you be right?” and “Who are you to say that the gedolim (great rabbis) are wrong?” We have already addressed in greater detail the communal aspect. According to the Torah, the community has no inherent authority to determine Jewish law, and will hold the masses accountable when they are wrong.

The question of Rabbinic authority and individual greatness is a little more logical. If there is someone more knowledgeable than you, shouldn’t one assume that they are correct? For a common supporting analogy, just as someone with no medical training wouldn’t claim s/he knows more than a doctor, one shouldn’t assume they know more than the great rabbis?

The answer to these questions is in the Torah itself. We’ve briefly discussed limits on rabbinic authority in that they too are held to an objective standard of halakha. Certainly, if the sanhedrin hagadol can make mistakes, then any later rabbi can as well. And if in some cases one is liable for following the incorrect rulings of the sanhedrin, such as one is magi’ah le’hora’ah, then certainly one would be held responsible for following incorrect rulings of “gedolim.”

How can great rabbis be judged? By the same criteria as every other Jew – the Torah. Unless a rabbi invokes the rules of hora’at sha’ah (emergency dispensation), he may not overturn what the Talmud has perviously legislated since he lacks the halakhic authority. The argument “well, Rabbi X thought he could do it?” – which I have heard many times – is actually counter productive since halakhic authority is now a matter of personal hubris.

Furthermore, according to the Torah, you need a court that is greater in wisdom and number to overturn Talmudic rulings. If Rabbi X thinks he is greater in wisdom, that is between himself and God. If he thinks he is greater in number, then he solves the “greater in wisdom” question for us.

Finally, following what I argued last post, I’m inclined to believe that most of these arguments are rhetorical to maintain the status quo. Case in point, I’m following how I’ve been taught – i.e. my tradition. If tradition is supposed to be accepted as canon without question, then I should reject any criticisms out of hand. If it’s possible for one tradition to be incorrect, then it is possible for other traditions to be incorrect as well.

The same logic would apply to the test of knowledge. If the criteria for someone being correct is simply having more knowledge, then it should be impossible for someone with such knowledge to be incorrect. By this logic, certain elite members of other denominations ought to be more authoritative than a typical Orthodox Rabbis since (some of them) know more than most Rabbis or Roshei Yeshiva – and certainly more than the laity. For example, Conservative Judaism permits driving to synagogue on Shabbat. If halakha is really determined be community or by following one’s rabbinic leaders, then Conservative Jews who follow this pesak ought not be considered as being mehallel Shabbat. The fact that Orthodox Jews would deny Conservative Jews the right to follow their own rabbis and communal practices, leads me to believe that the Orthodox arguments of “tradition” are primarily rhetorical devices for maintaining their own perceived status quo.
This leaves us with the second category of critiques, the ones which deal with pragmatism. Here I will concede the weakest part of my hashkafa. Not only do I think that it cannot be implemented practically, but I have serious doubts as to if it should be. The existing establishment is quite entrenched, and I do not see this changing in the near future. Once people have been trained to think in a certain way believe certain things, it is difficult to change their minds – especially when it comes to religion.

Being a Shomer Torah requires intellectual honesty. It means not only changing your practices and beliefs as you learn, but it also means recognizing when you don’t know something and need to ask for help. Unfortunately, egos being the way they are, people with varying degrees of education will continue to selectively use whatever sources to promote their own personal agendas. Without internal guidelines or proper instruction, the end result will be “ish hayashar be’einav ya’aseh” – everyone will do as they please.

Conclusions and Personal Reflections
As I said way back in the beginning that this was a personal exercise. True, it probably took more effort than I had anticipated, but at least I have some point of reference in case people ask. Minimally I at least wanted to show what it is that I believe and why it makes sense to me. That I don’t reject conventions out of hand, but I realize the difference between custom and law. That I an not an iconoclast for the heck of it, but there is a purpose based in a firm belief and commitment to Torah. I don’t expect anyone to change because of any of this, but I hope at least it does make some degree of logical sense to people – at least enough to get people thinking.

  1. Bravo! Take a bow and give your head a rest.
    A)So What makes one later opinion better than another? I know you steered me toward Rambam’s intro (yes I remember that, and thank you, and no I did not looked blank faced ifyou remember) but I remember reading later in the hakdama of either the lechem mishneh or the kesef mishneh (could someone check for me i’m not in a place where I can go check) that he brought up the concept of what if I Lived soemhwere without close the contact of the gaonim etc, but I did have the talmud? Wpuld my understanding be inherently wrong….
    Josh once you start dealing weith the application of a text the fact that a word is of is something important. Why should i say that one group has a priori in a system without real courts has a priori influence over the meaning of the placement of that of?
    Furthermore, as you raised context of law also is an issue. (slippey slope argument here) exactly how far can I take that?
    Or even better, nebulously ruled issues which have hashkafic feedback (such as tzinut…It is as much a hashkafic issue fro wommen ans women”s roles when talking abotu clothign as it is about just covering..if it where about covering things I would be banning wifebeater tops on men)
    Where does practicaly on the ground This is what makrks nme as religious mean? It means That I will guard halacha but guarding halacha also means I have the right to argue with you over what that means (to some degree I do discuss with you over that) But still it means you cannot guarantee that I will perform as you say, or if you suddnely had all rabbis in the world syaing what you are saying as they are saying.
    In other words, why is x, legitamate after the talmud and y not?
    In the post talmudic age what do you use???
    Shana (and I’m doing better now in case yo are curious)

  2. A little anti-climatic if you ask me. You gave yourself plenty of rope and then proceeded NOT to hang yourself.
    I still think that statements like “since many Jewish practices and halakhic evolution developed independent and contradictory of Torah” require specific examples. But that is just me.
    Biggest surprise? NO FOOTNOTES! :)

  3. Yeah, after Danny’s comments last post I figured to keep the footnotes to a minimum and keep everything in the body. I didn’t cite examples here because it would have gotten me off track and it’s not like this isn’t long enough as it is.
    Don’t worrk, when I do deal with halakha like fasting, you’ll see the details.

  4. “For the most part, we can assume that the laws in the Talmud were decided at one point by a universally accepted court, and consequently no later source would have the authority to overturn Talmudic laws.”
    what? how can we assume that? what court? the most obvious question is the talmud yerushalmi:
    its existence alone is a problem for the theory of a universal talmuidic law. if you want to be more speculative, so is the historical hypothesis that many minhagei ashkenaz in particular, such as the one tosfos defend agains the bavli, have their roots in ancient erets yisraeli (ie non-bavli) practices.
    second, i am not at all convinced that an intellectually honest reading of the bavli yields a definitive ruling all (or even most?) of the time. (this is true within as well as between sugyot.)
    actually, these two points, especially the second, are probably where i disagree with you most fundamentally, though i do also subscribe to a slightly more complicated version of the “what about all those big rabbis?” question, which i may elaborate on later…
    anyhow, yashar koach, and happy tuesday.

  5. Miriam – 1. Bavli/Yerushalmi politics are an interesting study in their own right. See for example the sources in the Eretz Yisrael shiur. I am also aware of practices – especially regarding liturgy – which can be traced back to the Yerushalmi. However, it does seem that by the 2nd-3rd generation of Amoraim, the main source for Jewish law was in Bavel, in which case they would hold greater halakhic authority than those in Israel. Was it in its entirety? I don’t know, I wasn’t there. We do know that there were some fights between Eretz Yisrael and Bavil through the Gaonic times, so we may be able to assume they were there for generations earlier. Furthermore, there were quite a few sects floating around for centuries which didn’t accept the rabbinic rulings.
    At any rate, I did say it was an assumption. There are a lot of historical uncertainties involved, and I’m admitting my biases towards the Babylonian Talmud’s version of things.
    Actually, this question touched on another post which I have no time to write now.
    2. It most certainly can. While there may be some differences of opinions, things like philology and historical context can usually help out. I haven’t done a survey of all sugyot in shas on the matter.
    I think the problems come in with “lomdus” or “conceptual” reads which superimpose a priori assumptions on the text and allow for greater textual manipulation.

  6. josh, thanks for your time.
    1a- “greater halachic authority” is not the same as “universally accepted court.” specifically, the former does not support your argument but is the most one can say with reasonable certainty from “the soruces.” the latter suports your argument, and is assumed.
    not that our assumption is totally unreasonable, just that i suspect you have some other motive (like, perhaps, a preference, of the sort you criticize later, for simplicity/uni-dimensionality? or something else, whatever) for accepting it despite its flaws, which calls into question the whole prospect of “objectivity” once agan. (yes, that’s my other axe to grind.)
    2- the idea that within a sugya there is often no maskana is not one i think i am learned enough to defend, only a vagues sense that i often get that may or may not have to do with my own textual ineptitude.
    that sugyot often contradict each other with no easy solution is, i think, easier to show. i mean, the calssical story is that rashi interprets sugyot locally, and tosfos are the first who try to harmonize between different sugyot (following, admittedly, in the tradition of the gemara that tries to harmonize between different stated opinions of tanaaim and amoraim). here it’s the simple reading that yields indecision, and the “lomdus” that yields one coherent legislative picture.
    thanks. ciao. miriam

  7. Miriam – 1. My reading of the Bavli seems that “halakhic authority” – at least on a universal level requires the universally accepted court.
    2. The harmonization of sugyot is generally redactional and based on religious and intellectual assumptions as well.

  8. Miriam,
    It is my opinion indeed that the Palestinian Talmud does carry more weight than its Babylonian counterpart. Being that it was “redacted” earlier and had much less redactional/”sethamaic” work done to it, I think it is quite obvious that it generally preserves the rulings of the last Beth Din Haggadhol better than that of the Babheli. This of course is counter to Maimonides’ opinion of “…soph zeman horayya” but we are all aware that it is historically inacurate, as well as makes the assumption that the Babylonians had authority, when any Babylonian after the time of the Patriarchate (when Semikha ended) who did not actually receive “minnuy” in Palestine does not have real authority, *even* if he was a member of some Babylonian court. Of course the BT may say otherwise, or at least, imply it, but that is circular reasoning. I would suggest, as I think Maimonides’ hints in the Intro. to his Hibbur, that communal acceptance is not the only requirement for a court, but rather, “semikha” (= ‘ish mippi ‘ish). Being that semikha/minnuy was limited to ‘Eres Yisrael, the BT must be read carefully, and only accept, as authoritative, its statements originating from “ordained” judges.
    Having said this, the fact that the Babylonians misunderstood many Tanna’itic rulings (as can be seen quite easily) does not mean they intentionally overruled, but rather, they erred, for they viewed the Mishna as a code, generally speaking. They were keenly aware of their lack of authority with respect to the Tanna’im, hence the need for all those “teno rabbanan”‘s, etc. Even if they did overrule them with full knowledge, to say that there is no objective Law does not follow. They were wrong. So are the Reform Jews.
    With regard to ancient Palestinian Law being preserved by the ‘Ashkenazim (Agusian theories), do you have any textual sources? I have not seen any, beyond some piyyutTim. His (and your) belief that Tosaphoth rejected the Babheli *because* they had some EY practice makes no sense, as they rarely cite some Palestinian source. Rather, they cite their “custom”. In order to defend this, he and Soloveitchik like to push the idea there are no textual sources to cite, as their “Tora” was transmitted orally. Cute, but as opposed to Rashi who wrote that the Talmud was written only a few generations before his time, the Geonim, Maimonides, and various modern scholars maintain that the halakha was always recorded, but that it was not *published* until later. I suggest reading Y.M. Hazan’s supercommentary to the Geonic Responsa, “‘Iyye Hayyam.” So, rather than defend their practice with legal, textual precedent, they cite current practice. I don’t get it. To top it all off, they oftentimes overrule Tanna’itic Law. Where is their Mishna Hisona? The ‘Amora’im would never even do this! You cannot come out of nowhere in 12th century Franco-Germany, invent a tradition that has no evidence, and then claim it is valid. But I don’t think they did this, for they cite current “Rabbis” and practice. It is those who are apologetic for them, who do so. At least the Tosaphoth were somewhat honest about what they were doing. How is it that everyone else wrote down their Tora, but yet the “Sages” of their “tradition” (of whom we know nothing about) would not. Why? Quite convenient, I think. Is it possible that their view that custom has authority in Judaism allowed them to overrule the Law, and not that they had some secret law passed down from God’s mouth to Jacob Tam’s ears?

  9. I have a question regarding your comment on pragmatics. If as you say:
    “Not only do I think that it cannot be implemented practically, but I have serious doubts as to if it should be. The existing establishment is quite entrenched, and I do not see this changing in the near future. Once people have been trained to think in a certain way believe certain things, it is difficult to change their minds – especially when it comes to religion.”
    where does that leave us? Ought one to just throw up her/his hands in defeat and go with what there is as the next best thing? Is shmirat torah merely an intellectual excercise in what Judaism could be?

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  11. Josh, I find have found this post to be refreshing in its clear minded and honest appraisal of Orthodox Judaism. I find the attempt at intellectual consistency very compelling and I hope that you continue to write on this subject. Youve heard this before of course, but a book would be great.