Last week was Edah’s 4th International Conference. The stated theme of this year’s conference focused on Modern Orthodoxy’s challenges and opportunities. No stranger to controversy, Edah had listed as a session, “The Legal Philosophy of Rabbi Hershel Schachter and Its Challenge to Orthodox Moderns.”
Most of the pre-conference buzz was devoted to guessing what this session would be like. The initial schedule did not list the presenters, so there were several theoretical possiblities. Most of the people I spoke with before the conference were concerned that this would simply be a “hatchet job” on Rav Schachter. Certainly Edah would have the motive to “bash Rav Schachter”, considering his positions on Edah and his recent controversial comments. Consequently, the opinions I had seen ranged from skepticism to outright pessimism.
By now, most of you will know that the lecture was given by my father, Rabbi Alan J. Yuter, and it was upon his request I didn’t enter into the pre-conference fray,1 and as such I had some insider information. First, the title of the session was not his, and it was eventually changed to the more neutral “The Legal Thought of Rabbi Hershel Schachter.” Second, I knew it wasn’t going to be the hatchet job people were expecting. Those who have heard and/or read my father’s academic presentations know that he doesn’t resort to personal attacks and any statement he makes will be supported.
As it turned out, after the conference, people were disappointed that my father didn’t take the shots at Rav Schachter that they were expecting. It appears that some just wanted to see someone give Rav Schachter his comeuppance or perhaps exact a measure of ideological revenge. For one example, when my father began by saying Rav Schachter is neither a fanatic nor a sexist, one friend of mine admitted tuning him out. What I find interesting is that this mentality justifies the skepticism levied upon the conference. Many didn’t give Edah the credit to present a critical analysis of Rav Schachter because of emotional reactions or personal biases. If some attendies had their way, the critics would have been right.
In truth, the nature of the presentation really speaks more to the skill of my father. There were criticisms of Rav Schachter in the session2, but it was done such that only those interested in first understanding Rav Schachter would notice. Those that were interested in a verbal smackdown left empty handed – no catchy sound bytes and no critical comprehension of what they had just heard.
For those who missed the session – either literally or figuratively – worry not. The presentation was a condensed version of a comprehensive fully footnoted article which is nearing completion.
1. My father’s position was that Edah would eventually publish the speaker’s list. He was more focused on preparing the actual session than dealing with the rampant online speculation.
2. Although I wasn’t there, I’ve discussed the topic with him enough to know approximately what he said.
Last week was Edah’s 4th International Conference. The stated theme of this year’s conference focused on Modern Orthodoxy’s challenges and opportunities. No stranger to controversy, Edah had listed as a session, “The Legal Philosophy of Rabbi Hershel Schachter and Its Challenge to Orthodox Moderns.”
I was at the session, so I’ll give a little rundown. It was quite an experience, but not for the reasons you might think.
The structure of the shiur followed the infamous “monkeys and parrots” article, and Rabbi Yuter Sr. (RAY) skimmed through it, making comments as he went. He did begin, as Josh said, stating that R’ Schachter (RHS) is not a fanatic, due to his use of horaat shaa. He also toned down his usual rhetoric, though someone who has heard him before would notice his intended meaning in phrases like, “the saintly Rav Moshe Soloveichik.” He stayed away from the more confrontational namings like the Shaygetz Aryeh.
However, I would say that the presentation focused very little on RHS himself, and was basically an intro to Yuterian Judaism, which due to a former rommate I am quite familiar with. I had earlier that day been to a session on autonomy in halacha given by Rabbis Linzer and Klapper, and the contrast was significant. If you hold like Rabbi(s) Yuter that all development of halacha ended with the sealing of the Bavli, then you’ll have serious issues with any contemporary Ashkenazi Orthodox rabbi, whether it is RHS, Rav Moshe, Rav Elyashiv, or R’ Avi Weiss, not to mention the baalei tosafot, the Rema, etc. He mentioned that RHS says things are assur that aren’t, and uses pesukim to support it. True, but so does everyone else. RHS probably tells women to say brachot on lulav; so does the Rema. No chiddush here regarding RHS.
The general contention that halacha stopped changing after the Gemara is contrasted with R’s Linzer and Klapper, who took the approach that halacha is at least in part formed by collective descisions of klal yisrael. At the end of RAY’s talk, I asked why we follow the Bavli instead of the Yerushalmi, and he said that is because they were the greatest scholars at the time, and “Ravina & Rav Ashei sof horaa.” Borrowing from an old joke, I asked, “Who said that, Ravina and Rav Ashei?” In fact, they did (or perhaps, RAY suggested, members of the next generation.)
This is where it got interesting. For reasons unclear to me, the lecture attracted some high-profile guests, including Rabbi Barry Levy (RBL) and Rabbi Shlomo Riskin (RSR). After my question, RSR proceded to give shiur for about 10 minutes (forgetting to phrase it in the form of a question), mentioning among other things that Rav Kook says that in the future we will follow the Yerushalmi, and that the Bavli was chosen mainly because it was easier to understand, and more complete. In other words, an accident of history. He also mentioned that the shulchan aruch was chosen because somehow it got to the printing press first.
After RSR’s mini-shiur and some back and forth with RAY, RBL began giving another shiur (also not really in the form of a question), which was spoken very quickly and lasted about 15 minutes. I can’t say I followed the whole thing, but clearly he was attacking a lot of premises of the presentation. Two things I caught were: 1) RAY mentioned that, contrary to RHS’s claim, women have in the past held women’s prayer services. RLB countered that this was because menstruants were not permitted in shul. Also, RAY had mentioned that the bracha of she’asani kirtzono is post-talmudic and therefore should not be said. RBL mentioned that baruch she’amar is also post-talmudic. RAY surprisingly responded that this was true, but that at some point everyone was saying it.
A couple of later questioners tried top tie things back to RHS, but I think everyone was exhausted from the previous two “questions.”
Summary: RHS is an Ashkenazi rabbi and therefore regularly paskens against the Gemara.
I would add: If you are planning to go to the women’s tfilla next Shabbat based on RAY’s shiur, you probably shouldn’t carry a siddur.
PS to Josh – he also quoted you as giving R’ Tendler a hard time about baal tosif.
PPS to Josh – he mentioned several times that RHS has been rejected by KAJ. I asked him afterwards if he had a source, and said that it was in his footnotes, but had to run out and didn’t have time to show me. If you can find out the source, I would be greatly appreciative. RHS certainly makes efforts to be accepted by that community, so it would be interesting if they are not taking him seriously.
Ben – Thanks for the summary. When thesis gets closer to draft status I’m planning on writing out what you have dubbed “Yuterian Judaism” – or at least my take on it and I’ll address some of the issues you’re raising here. I’ll try to get the footnote on KAJ.
Again I can’t comment on the lecture itself because I wwasn’t there. I have spoken with him about the article and there’s more going on that RHS being an ashkenazi Rabbi, specifically how he deals with the nature of authority and tradition, as well as reconciling with Rav Soloveitchik’s thought.
Certainly, RHS is following in longstanding Ashkenazi traditions, and if one rejects those traditions, one would obviously reject most of RHS. The question is, what makes RHS RHS, what is his system, and what if anything makes it unique in the Ashkenazi system which may explain differences. E.g. RHS vs. R. Tendler.
It’s quite possible none of this got across, but then again, it was only a limited session. As such I’m not going to make too much of a big deal of what he said there
Based on Schachter’s citation in the Jewish Week article, am I to understand his main complaint against the “feminist agenda” in “modern” circles as:
1) it opposes the “will of the God of the Jews,” as He created the sexes with differences, and “his tradition” maintains this same differences, such as not “allowing” women to read from the Tora (only in “his tradition” is their a need to have someone read for another, THAT is an embarassement),
2) “his tradition” allows for women to participate more, but he is “stringent” in these matters since he wishes to restore God’s initial sexism, something “his tradition” does not do,
3) he, and “his tradition,” have a negative view of women.
I would like to suggest that rather than attempting to determine what the “God of the Jews” (I am sure he did not mean this statement to reflect a European Jewish-chauvinistic view, but alas, it does nonetheless) had “intended” in His Tora, as well as the Rabbinic establishment that defined it, we simply follow the Law, without any emotional attachment. If `aliyoth are permitted for women, so be it. If there is no need for a mehisa, so be it. Where did God, or the Sages, forbid these things?
Bottom line, he refuses to relinquish his European wissenschaft (which purportedly protects the Law), which does not represent the Law, while has no problem abrogating the Law itself, and ruling against the Talmud (`erubhin, yashan, etc…). The standard argument that if you allow women to do things the Law permits them, it will lead to them breaking the Law, is a mere symptom of an emotional view of Judaism, as is his “fences” around the Law. Modesty is defined in the Law. Beyond that, everything is fair game. If we were to view the sources objectively, then it would never lead to this terrible situation he forsees; subjegation to the Law is what is required, nothing more and nothing less.
Daniel…I’d liek to comment on what you said
But before I do I’m am going to prefice this by saying the following:
I’m studying in israel for the year in a midrasha that is known to be left-wing.
I am a femenist, but a moderate one (and I just got yelled at for being one too by a friend :( )
I study social psychology/sociology for fun (or at least I did when I was at home…those where the days)
Mesorah changes really slowly. This is considered a good thing. If every new public policy idea was adopted the halachic system as a whole would fall apart. However, when social cirucmstances do change, it takes a very long time for halacha to catch up. This conservative effect (not the Conservative movement) right now IMO seems to be detrimental to most greater MO hlachic movements,becuase sicne the industrial revolution/haskala, social and techonological change grows at an ever increasing speed. This means controversial issues, like femenism, suddnely become very controversial, becuase they cause radical changes quickly rather than moderate changes slowly. They may occur in one or two gneration, sometimes even a half, not four or five.
That being said, the conservative effect of halaca might also be a good thing. Both my femenist side and my sociologist side see the damages caused by radical femenism as well as the benefits caused by moderate femenism. Stam halacha being postivist and conservative help take up only those effects that seem to be benefitial to the community at large, not those that seem to be damaging. Even in the case of the more radical groups that are grounded in halacha, they are still far more conservative than those which are not, becuase ultimately teh emphasis on community structure and family within the body of halacha seems to provide some sort of mitigating effect. The defence of Women at the Wall for the davening in the women’s section of the Kotel plaza on rosh chodesh for example..a group that I would classify as more radical…is that they want to emphasize the communal benefits of davening hallel together, especially A) at the kotel B) with a gorup C) especially with women(..especially when the mechizah there is so bad, you barely if at all can join a minyan.) Thier defence was one of community not one of th individual.
Probably the best explination as for sourcework of why women are thinking this way is as following:
????? ????? ?? ???? ????? ???? ????? ??? ???? ??? ????? ??? ????
God [thus] created man with His image. In the image of God, He created him, male and female He created them. Genesis 1:27
????? ? ?? ??? ???? ???? ???? ???? ?? ??? ?????
God said, ‘It is not good for man to be alone. I will make a compatible helper for him.’ Genesis 2:18
Anyways the reading continues on with how none of the animals where sutiable so he makes woman,, called ??? not ???? for the second narrative.
The orthodox femenist interpretation of this is that A) as according to the sage..
a) Adam 1 and 2 are two diffrenet aspects of Man
B) both of which need to be fufilled in order to be a fully actualized Jew
(A and be are really short paraphrasals of halachic man and lonely man of faith)
C)Hence same would be with women and the concept of our actualization.
The one contested point.
The end of the narrative points to the home as a punishment, something confirmed by the current sociological logical narriate (i’ve actually read an article with terms like reluctant motherhood inovolving happily married couples)
This part of the narriate seems to be the one contested right now, becuase radical femenism identifies and feels a need to actively reject these notions that we even need these structures. However I don’t think they see the post-scripts.
With community being the center of jeiwsh life, and with defenite femeinst messages that do support communal structures, I personally beleive that if selective mssage, the commnual are actively taken as banner cause within the orthodox framework, a bargain will be worked out
and a model will be striked for the rest of the world that actually might work (somethign along the lines of umm shared home duties, childcare..which already has basis in halacha for men as well). these messages need to be strenthened in order mitigate the harsh critisms of the more publics spheres, since that is not where the work lies.
Ok i need to go to bed now..its late for me
And I need to study tommorrow morning.
It is my understanding, as well as the Maimonidean view, that halakha does not change without the Great Court. So, societal changes, in a time where there is no legal authority, bear no effect with the way the halakha was determinded when the Nation had a court. Changes in society cannot change the halakha, only a Court can. Granted, societal changes effect the way the Court legislates (eg, like changing the original lex talionis to refer to monetary compensation), but it is not society that is legislating, it is the Court, subjectively. My point was that if it were the aim of the people to follow the Law (= Judaism), then external issues should not play a role in this. If X is permitted, so be it, and if not, then not.
Remember two things about the Rambam’s openings to his commentary on the Mishna and the Yad
He doesn’t use it in a consistent fashion (but he does use it most of the time)
He created it so that when he does use it, he is justified in his behavior.
Remember…he’s codifying law (again), somethign which he techincally not allowed to do according to your definition of what is jewish law?
His opening allows him the out of the two pronged approached of relying both on the concept of it comes from the text of the torah itself as well as relying on the concept of concensus of the courts, something that does need societal backing.
In a Kelsenian (did I spell that right?) he basically gave himself the power by saying that although the redaction of the talmud did end, and therefore the formal power to change laws has ended, the informal power to change laws within your community has not…it would be very hard to explain the presence of the yad, the tur, the mishnh bruah, etc, which can disagree with each other and with the bavli.
To say that the law making process has ended is a nieve approach. I probably will not practice the same judaism in my old age that I do now, and nor will I want to. Nor would I want to practice Judaism straight out of the talmud’s era, transplanted to now. It would be too complicated.
New Techonoligcal, Socilogical, and just plain old Hrad cases have arisen..and frankly I don’t want to deal.
And frankly I would say a close reading of the rambam- agrees thought thinks its a negative thing that this is happening, which is why he thinks the ultimate pwoer should really refer to ye olden courts (you are right about that…)
the ramban-neutral, it happen, deal
and the rashbi shantz- he’s is actually happy with it
Would say that the law does not stay stable..
I would like to thank Rav David Bigman for this one…I’m trying to paraphrase him
I realise I am not doing as nearly a good job as he is mostly becuase he took weeks to do all of this and let us argue with him until we got it
Rambam codified what he thought the halakha was. He did not innovate, did not the change the halakha as found in the original sources (at least, in theory, as he is only human, and can err). When he feels he is making a comment not based on a legal source, he will state that the source is Geonic (and hence, not authoritative).
Therefore, the presence of “halakhic works” that you cited has no problem with what I said. Of course we must explain the Law as codified in the Talmudic sources, as well as *apply* them to new cases which arise, but not *interpret* them, nor *alter* them in any way, shape, or form, such as the Franco-German schools did, and continue to do today. And the fact that these works contradict Talmudic Law is not a proof that Law *has* not changed, objectively, it means one of two things: either they do not care about Talmudic Law (misapplying “lo thasur” to non-courts), or, they thought their explanation actually fits the Talmudic Law. Maimonides and the Spanish School, viewing Judaism as Law, fits into the latter category, the others, the first.
To summerize, there is no “close” reading of the Rambam. There is only one Rambam. People will use terms as that one, to pilpulize their own understanding of Judaism unto his. He tried to *summerize* and *reflect* talmudic law, that is permitted, of course. But he did not view his work *authoritative*, eg, can rule against the Talmud. He wrote it for those who could not study the Talmud properly, recommended that people should study Talmud, though. And from his responsa we see his view of Talmud study, when not done so, to know the Law. So, he either allowed Talmud study, after his Code, so people can merely study a tradition, for intellectual purposes (something he writes against), for communal reasons – so people do not actually know his true thoughts – that talmud study is no longer needed, or, because *the law should be derived from it!*. He also maintains that halakhah kebhathre only applies when the Court functions, and wrote in the Hibbur, that one follows an earlier gaon, for instance, if his *explanation* of the talmud does not jive with the text. He did not view himself with more authrority then the geonim!
Hence, his work is there as a Guide (no pun intended) only, and is not the Final decision on law. Look how many times he changed his mind in the Hibbur, after he had either found a new girsa, or people asked him questions! One does not do with with a formal code of law.
Just to bring this back to the original topic, I’ll mention that Rabbi Yuter stated that, as mora d’atra of his community, he made the decision that the time was not right for women to read the ketuba at a wedding. Of course, he wouldn’t say it’s assur, but that the time is not right. This would imply that, at some time in the future, the time could be right. Thus, that practice of Judaism can change without changing the law.
Generally speaking, it’s wise to at least read a person’s work, and not simply a Jewish Week article about that person’s work, before making negative generalization’s regarding that person’s positions. (I’m thinking specifically of your #3, which was neither explicit nor implicit in R’ Schachter’s piece.)
“Modesty is defined in the Law. Beyond that, everything is fair game.”
Honest question, to which I truly don’t know the answer – is there a halakhah in the Talmud that prohibits a man from walking down the street entirely unclothed?
It appears we are talking past each other in the endless debate about what halacha (and general law btw) actually is
We are never really going to decide. Each concept has its pluses and its minuses.
Truth is I do agree with you on certain points (though which you will never know…I have to keep my mystery about me somehow ;) ) However I don’t think your schema solves the how do we transfer to the real world of practice.
(that does not sound right….I’ve been hanging in the sticks far too long) My schema dos, but doesn’t really answer so well a lot of the theoretical questions about law.
We really need an inbetween approach, but I have yet to hear of one that exists. (in either law or halacha..closest for law is kelsen, but I have never really read his work only summaries so cannot personally vouch.)
Any suggestions would be nice from anyone in the blogsphere???
I had stated that laws cannot be changed without the Court. If X is permitted, it may be done. If his community accepted not do to an activity which is permissible based on his word, then that’s ok, as the activity is not required, either. But, to actually forbid the permitted, as I see it, may not be done. If there were an individual in his community who wanted a woman to read it, I do not see how he can prohibit such a thing. I respect R. Yuter, but I may disagree with him, if this is indeed the case. I do not know what “right” and “wrong” is, beyond the parameters of the Law. As Jews, we are bound by the Law, and not anything else (as opposed to Nahmanides’ position, “nabhal birshuth hattora”). Law is binary. If it’s not asur, then what is it? I also have doubts regarding the authority of a “mare de’athera”…
If the citation was correct, there was an implicit comparison between women and monkeys. I do not actually believe he feels this way, of course, but the mere fact that he is able to utter such things, seems to indicate his esteem of women. Of course I do not know exactly how he feels about women, nor how his European tradition does, but I am making conjecture. As I view him as speaking for this tradition, I lump the two together. Sticking women in a cage at the synagogue, forbidding them to study talmud (which I know, he does NOT forbid, because Rabbi Soloveitchik was for, thank God), not giving them `aliyoth when the Tosephta quite clearly permits it, indicate a view that is negative of women. Am I crazy? Rationalizing away these things in dogmatic terms such as “the God of the Jews” ordained such and such does not indicate a love of women; it only enforces my point.
Regarding nudity, I am unare of any such prohition, but making benedictions at that time would be prohibited. That is not to say I suggest doing running out without clothing. I would not stand on my head all day, either. But, if there is no Talmudic source, halakha would permit both. When Judaism is viewed as a legal system, “values” do not play a part in the decision making process. The Courts may generate laws based on their values, but those laws are followed not because of the values behind them (the *spitit of the law* in Pauline terminology), but rather, because that is the law. Hazal certainly had some values which in today’s society would be frowned upon, so deriving “true” or “good” values from the halakha, IMHO, is a fruitless activity. The Court, in fact, does not need a reason to legislate, and may do so at their leisure (except for the limitations as set forth by the system, in Horayyoth, and `Eduyoth, for example). Sometimes they attached Law to verses, sometimes not. And I am not referring to the distinction between “asmakhta” which refers to purely rabbinic laws, and “derasha” which can refer to “Dinim Mufla’im,” essentially a hybrid, but rather, to the form of rhetoric used to package the law – the midrashic vs the mishnaic, as is called in academic circles. Both may refer to the same type of law, yet the only difference is in the packaging, *not* the “derivation”, as laws are generated, not derived.
One more thing:
Mashal le-ma haddabhar dome: One may wear a talleth colored with any color (as M notes, that is why the non-tekheleth strings are called “labhan”, since they need not be colored). Indeed, people have worn different colored tallithoth. Is this to say that the practice of Judaism changed without changing the law? Not really, IMHO, as the “practice of judaism” is (or should be) merely an actualization of the Law. The law allows for colors in a talleth. The definition of the miswa has not changed without a Court, hence, the “practice” has not. Color is not an essential feature, except for the tekheleth, so the fact that the colors change, isnt all to relevant. Much like eating any kind of food, as long as it is kosher; we do not eat the same kinds of foods the rabbis ate, but this does not touch my theory, as foods not required by law are not related to it. I used the example of Talleth, as this is a ritual, yet the Law allows for various practices. But this is in the Law, itself, and not external to it. For someone to come and require we all wear a white talleth, or a red one, would then be legislating against the Law. The term “minhag” in the Talmud does not mean what it means today, so that “practice” does not mean “what people do” or “custom,” but rather, an act authorized by an authoritative position, defining a law. So, practice, in a legal sense, does not really change until the law changes, as they are nearly one and the same. I hope you see my point.
Rather than repeat what I’ve already written elsewhere…
For my take on Minhag Ashkenaz vs. Talmud Bavli, see http://tinyurl.com/55bbj
While there are definitely other Ashkenazim who have adopted what I called “approach #2” le-chumra, “Yuterian Judaism,” I suppose, is applying it consistently. Personally, I can think of another reason for adopting approach #2 even though I may not share R’ Yuter’s understanding of the scope of “Ravina ve-Rav Ashi sof hora’ah.” But not for now…
My discomfort with the way that many women’s tefilah groups are conducted stems from their trying as hard as possible (within the constraints of halakhah) to imitate the particular actions that, when performed by men in a minyan, fulfill certain takanot de-rabanan, even though they recognize that there is no such kiyum in their actions. If a group of women wants to get together to daven, I think that’s fine, but I don’t see the need (for example) to have one woman stand quietly while everybody else davens shmoneh esrei, and then to say her own “personal” shmoneh esrei out loud. I believe that this was the source of R’ Soloveichik’s discomfort as well, as well as that of R’ Schachter (although he went further by calling it “asur”).
I could actually imagine a “Yuterian” being sympathetic to such logic, since persumably, any minhag that is not a kiyum in something in the halakhic toolbox (which is now locked) ought to be worthless. While I would not expect R’ Yuter to call WTGs “asur,” does he support groups that operate in the way I described above?
For my take on halakhah as values vs. rules:
Daniel, if you don’t mind my asking, what community are you from? I saw in one of your posts to kashrut.org that you wrote that “most of us” try to wear tefilin shel yad atll day. Based on your philosophy of halakhah and your Yemenite transliteration, my guess is that you’re a “Mechon Mamre” person. (If so, I love the Web site! Keep up the good work!) I’m curious — does your community, in fact, call up women to the Torah?
Regarding Kashrut.org, there is another “Daniel” who has similar views to me, and transliterates hebrew accordingly. I do not know this man. I always sign with my family name.
Regarding minhag, Maimonideans, such as myself, do not see any real value in it. Minhag in the Talmud is any behavior having an authorized *legal* source; this is not the same way this term is used now. “Minhag mevaTTel halakha” means either that a proposed legislation cannot trup the current legal practice (much like a Court cannot legislate a decree if most of the sibbur would not be able to keep it), or means that the chosen, *legal* practice dictates what the actual law is, but not that any “custom” is either holy, authoritative, or the like.
As Prof. Faur has noted, Ashkenazim view “Minhag” as holy because of their assimilation to Christian jurists, in Franco-Germany. They reinterpreted Roman Canon Law to fit their current practice, so did the Ashkenazim. Agus’ theory that Ashkenazim had a separate “mesoyro” has no evidence. Where do they follow Tannaitic, Palestinain sources, against the Babheli? If you say they had a very old “mesoyro” which predates the Mishna, what is the evidence for this, and why are there no records?
The main issue is of idolatry, and the unwillingness to recognize that one’s own traditions may be faulty. Traditions and customs are raised to a holy level, and beyond reproach. If the Great Sanhedrin can err (Horayyoth), so too can these “rabbis”. Since when is Judaism defined as “custom” and NOT Law? Law is decided by the Great Court. That is Judaism. Not what my “zeidey” did. Not what some rabbi in brooklyn says. Those are not legal statements.
Maimonides’ buys into the whole “rabhena and rabh ashe” thing, while historically, it is innacurate. However, his main thesis stands, that Judaism is a legal system, and only the Great Court can legislate halakha. His problem is he extends this to late Babylonian ‘Emora’im. I would limit authority to those with Semikha, so Tannaitic literate, and some Palestinian ‘Emora’im, contra. R. Yuter. To me, this seems obvious.
If women are exempt from an activity, the halakha may not allow them to make a benediction on that activity, lulabh, for instance. I would never say they should. But they are permitted, and must, pray, so saying a prayer together is fine. What is wrong with this? The halakha does not have an issue with it.
Discomfort, etc are all emotional, subjective reasons. Even if they were objective, its irrelevant, since he has no authority. Soloveitchik cannot ban anything. He has no authority. Neither does Rambam. The difference is, Rambam tried his best to stick to talmudic law, and not to legislate against it, via cute brisker spin. Either think Judaism is about mesoyro and gedoylim worship, or accept the Law of God (and rabbinic law, authorized by God), or do not. But, you cannot attempt to follow the Rabbinic system, and not accept how the system works (Horayyoth, Sanhedrin, etc…). Citing minhag ashkenaz is irrelevant. This is not about “lehumra” either. This is about law. when there is a real safeq, then in Biblical laws you follow the stringent view. otherwise, lets limit this word from usage. law, not emotions.
From your posting on values, it seems you are under the impression that God gave the Jews values at sinai, and the exact definitions were not. IMHO, and Maimonides, as I see it, what was articulated to Moses (via prophetic visions) was not “values” but rather Law. Most biblical laws were left undefined for the Court to define, and this is why there is so much controversy. This is Maimonides’ view, as he makes it *explicit* in numerous places – “din mufla”, category III in the kitabh is-siraj. People like to invent this idea that God has a will, and gave it to the Jews, and contains truths and values. Only those, IMHO, confronted by christianity have done this. You need to justify why you keep God’s Law. It must be “valueble” or you would not keep it, rather then keeping it because, as sepharedim have called it, judaism is a Berith, not a philosophical, logical, system. especially not a religion. Rather than abandon the Law completely as Christians did, some argue they must really have a “spirit” behind them, that everyone agrees on, but that the exact parameters change. I havent seen any sepharedi say such things. So they keep parts of the Law, but over time, will come to abrogate even Biblical law, such as yashan. the final mishna in `orla is pretty clear, and so is the Tora. This is what occurs when Judaism is viewed as anything but a legal system, and non-legal sources are used to determine law.of course, perhaps i am wrong and judaism is a “way” or “philosophy” or “mesoyro” or the like…but why would you want to keep it?
I was born ashkenaz, and I do not follow anyone in particular, yet the Faurian school, as well as Baladi Yemenite Judaism would be closest to me. This is truly maimonidean though, as even he did not think he was the final say in Law, and would change his Hibbur when questions arose. Halakha kebhathrei, to him, is while the Court is around. So, I try to follow the rulings of the Great Court, but not really how M qualifies it. Same idea, though.
I have read the many comments with great interest. Unfortunately, most of them have veered off the original topic. What Rabbi Yuter’s lecture, as well as the comments, fail to acknowledge is Rav Herschel Schacter’s incredible sensitivity to women when paskening Halachik questions. One such example that comes to mind is his citation of the position that a young divorced women may stop covering her hair if it will fascilitate her ability find a Shidduch. In addition, he has cited the position of Rav Aurebach that three women who eat together with less than three men could make a Zimmun. Further, and most importantly, Rav Schachter has devoted more time than any of the Rabbis or speakers at the Edah conference to the Shidduch problem and the fact that so many singles are not married. I remember once attending a singles shiur on the Upper West Side, sponsored by the YU Alumni Association and YU Women’s Organization (amazingly, none of the EDAH speakers have ever participated in programs like this), at which Rav Schachter spoke. At the conclusion of the shiur, Rav Schacter stated that learing Torah is important but so is meeting the right person and, therefore, everyone should stay, socialize and make the most out of the evening.
Although I did not attend Rabbi Yuter’s lecture, I am sure Rabbi Yuter did not highlight these components of “The Legal Thought of Rabbi Hershel Schachter.”
P.S. Many of the comments have stated that “Rabbi Schachter has been rejected by KAJ” What is this referring to and who is KAJ?
Although “permitting” a woman who is divorced to walk in public with her hair not “paruwa`” is an act of compassion, as was known with M. Feinstein in his pesaqim, if halakha forbids the act, which I would imagine it does [as the Law requires all women to cover the hair, not just married ones] then, it is forbidden. No rabbi living today has the authority to undue this law. To have a compassionate Sanhedrin is one thing; his is not about my Rabbi vs. yours, or my Rishon vs. Yours, it’s about Law. If the act is permitted, then, it is simply permitted, and the Rabbi would not be “permitting” it, nor would he be compassionate, but rather, would be truthful.
This again, comes from a Pauline notion of Judaism, where Law is not regulated, but completely up to the Rabbi to decide. Nor really is there any Law to begin with, but actions are governed by emotions, such as “compassion”. This was not the view of the Maimonidean school, which in many ways represented the Geonim, who passed on Talmudic tradition…
BTW, IMHO, it is probably this same “compassion” that allows him to permit, and encourage the building of “`erubhin” that are completely forbidden according to the Law. Yet he complains about the Reform movement and how they denigrate the Tora. It’s the reverse. They, at least, are honest. Those who say they care about halakha, and permit the prohibited, or prohibit the permitted, are the ones referred to in the verse, “eth devar YHWH, bizza”. That’s IMHO. :)
You write that “..Rav Schachter has devoted more time than any of the Rabbis or speakers at the Edah conference to the Shidduch problem and the fact that so many singles are not married. I remember once attending a singles shiur on the Upper West Side, sponsored by the YU Alumni Association and YU Women’s Organization (amazingly, none of the EDAH speakers have ever participated in programs like this)”
These are pretty blanket statements. Do you mind if I ask how you know these things?
I never once, once, heard of a Rabbi associated with EDAH who spent the time to speak at a singles event. Further, I never once, once, saw that the Shidduch problem was a topic at an EDAH conference. It is obvious that HaRav Schachter has spent more time on this issue than any EDAH affiliated individual.
Further, as to Mr. Borsuk’s comments, the compassion that I speak about, is a compassion that is part in parcel of the Halachik process. Often times, the Halacha tells us to be compassionate when deciphering laws. There is nothing dishonest about that.
“Honest question, to which I truly don’t know the answer – is there a halakhah in the Talmud that prohibits a man from walking down the street entirely unclothed?”
There may be other sources – but the halacha that when a person is walking in the shuk, and finds shatnez in his clothes, he must remove them immediately because “ein eitzah v’ein tevunah k’neged Hashem”. I believe this implies that generally oen should not remove one’s clothes in the middle of the shuk.
The “halakhic process” that is authentic is the one describe in the Sources, such as Horayyoth. Is there a Beth Din Haggadhol today? No. Anyone with semikha granting hora’a from that body? No. So the only things Rabbis may do is repeat the Law as found in the *legal* sources, eg, the sources that record the Court’s rulings. These rulings, although created in a subjective way (with “compassion” as of on many determining factors, which are irrelevant anyways, as the power comes from the Legislature, not from their methodology), are objective. Acts are either permitted, or prohibited, and it is the job of the Rabbi to tell his people this Law, and not his opinion on the matter, as it has no authoritative value. The halakha is *fixed* (Saul Lieberman notes that the term itself probably derives etymologically from a word with that meaning), or “hudud mustaqasa’at fi-l-‘ilim” (= “have exact known definitions”) in Judah Hallewi’s terminology. I see “halakhic process” as a statement which is used out of its proper legal context in order to deauthorize the Law, much like “lo bashshamayim” is used, to show modern-day rabbinic authority. Both are incorrect usages.
As for Rabh’s statement in Berakhoth 19b: Citing a case which requires one to remove one’s clothes, in what way implies that generally, one is *forbidden* to do so? Rabh’s point was that kebhodh habberiyyoth does not apply in such a case (and the Talmud understands this to refer to isurei thora). You would have to show that rather than kebhodh habberiyyoth implying a general mode of human conduct which can allow for leniencies, implies also *prohibitions*, so that rather then *allowing* a person to keep his clothes on for, lets say, kil’ayim midderabbanan, *forbids* him to remove them, even if he wanted to, and even if he has no problem with his nudity in public. I am not so certain that this implies any prohition at all, it only implies that generally people do not like to walk around naked in public, and hence is not “kabhodh”.
Edah has devoted a number of sessions at previous conferences to the singles problem and in fact recently did an entire series of events at the JCC in Manhattan for singles.
Many of the speakers at Edah’s conferences are academicians, and thus probably haven’t had professional involvement in the singles issue. But of the large number of shul rabbis who are involved it seems extremely safe to assume that a great many have organized and participated in singles events. It would seem rather difficult to affirm otherwise unless one keeps pretty close tabs on all these people, wouldn’t it? These people are rabbis of mainstream Orthodox shuls in communities where the singles problem is a real ongoing concern.
You say that, “When Judaism is viewed as a legal system, ‘values’ do not play a part in the decision making process.” Yet you admit that, “The Courts may generate laws based on their values.” Well then weren’t the members of that court making a decision based on their values? They decided, based on their values, that something should be prohibited, and they acted on that inclination to actually prohibit that something. We may not have the ability to change the law and create issurim, but shouldn’t we still act based on our values, and encourage others to do so as well?
Let’s look at an example. The act of eating human flesh is assur only d’rabbanan. (Rambam tried to come up with an issur aseih d’oraiyta, but it is found nowhere in the talmud, and most disagree.) That means that at some point, it was completely permitted, from a halachic perspective, to eat human flesh, and then beit din decided to prohibit it.
Imagine that five minutes before beit din took that formal step of creating the prohibition “based on their values,” someone came over to a member of beit din who intended to vote in favor of the measure, and offered him a bite of a McPeople Burger. Presumably, that judge would decline. (Tell me if/where you start to disagree with my chain of logic.) Now that person, noting the judge’s seeming disapproval, asks the judge, “Do you think it’s OK for me to eat it?” Now, the judge may not say, “Absolutely not! It’s assur!” (since it isn’t, technically, yet). But presumably, he would say, “That runs counter to our values (of compassion) as Jewish people. I therefore think that you should not eat your burger made out of human flesh.” I have trouble imagining that he would say, “Sure! Enjoy it while you still can!”
OK, let’s look at another. I go over to my rabbi and say, “Gosh, it’s so hot outside, and my air conditioner is on the fritz. Is it OK if I go for a naked walk around the block?” Now, he may not say, “Absolutely not! It’s assur!” (since technically, it isn’t, at this point). But he may reasonably say, “That runs counter to our values (of tz’niy’ut) as Jewish people. I therefore think that you should not go for a naked walk around the block.” Again, I have trouble imagining that he would say, “Sure! But actually, why limit yourself? Central Park is beautiful this time of year.”
One final example. I go over to my rabbi and say, “I’d like to have a women take an unnecessarily public role at my wedding by reading the k’tubah.” Now, he may not say, “Absolutely not! It’s assur!” (since technically, it isn’t, at this point). But he may reasonably say, “That runs counter to our values (of tz’niy’ut) as Jewish people. I therefore think that a woman should not read your k’tubah at your wedding.” (Substitute “get an aliyah” for “read the k’tubah at my wedding” for a similar example.)
I’ll grant you that R’ Schachter did use the word “halachah” somewhat loosely, though he did not use the words “assur” or “prohibited.” And I’ll also grant you that his application of the value of tz’niyut (in my third example) is not as clear-cut as the applications of values in my first two examples. But I see no qualitative difference between my various examples. In all of them, equally, we have individuals who express their opinions that though something may be done (halachically), it still should not be done because it runs counter to what they believe are Judaism’s values. And I think all of them are valid (though, again, one [perhaps including myself] may agree with some of those opinions and not others).
Where do you think my logic is flawed?
Now, let’s get back to your statement that R’ Schachter has a negative view of women. You provide four examples:
1) The “comparison between women and monkeys” – that is inaccurate. R’ Schachter’s statement was a clear reference to the talmudic phrase, “ma’aseh kof,” an act that requires no intellectual intent. (This is supported by his inclusion of a “parrot,” which speaks mindlessly.) It was a poor choice of words, but it was comparing the act of the person to the act of a monkey; it was not comparing the person to a monkey.
2) “Sticking women in a cage at the synagogue” – R’ Schachter requires no such thing. Or did you mean m’chitzah? Not all m’chitzot are cages, and both you and R’ Schachter know that.
3) “Forbidding them to study talmud” – you yourself admit that R’ Schachter holds of no such prohibition, so I’m not sure why you even mentioned it.
4) “Not giving them `aliyoth when the Tosephta quite clearly permits it” – as I’ve discussed above, I think it’s entirely fair to say that not everything that may be done should be done. This is not a reflection of a negative view of women, but rather simply a different sense of tz’niy’ut.
I may disagree with your points, but you are clear, and present them in a logical fashion. So, here goes:
Regarding values and halakha, my point was halakha *was* decided, in the Court, using subjective means, one of them being “values”. Values are culture-based, and are changeable. Even if there are “immutable” values (which I doubt there are), the reason why halakha is binding is not because of the “reasoning”, or lack of it, behind the law, but rather, due to the Courts authority to rule. I was stating a fact that they used values, as it seems clear from certain derashoth (which are not *derivations* but rhetoric). The fact that they used values in legislating does not mean they should have, or should not have. It is neutral vis a vis the halakha. Their values may or may not be “valid”, “true”, “good”, etc etc as the Tora is not a “value system,” a “philosophical system,”, and the like, but a set of Laws. Granted, the ethical component is clear in the Tora, yet, “ethics” alone does not obligate a Jew in any way; only the Law (including the Courts definitions of those Laws, and their enactments). Hebrews do not know of this dichotomy, ethics vs ritual: the prescribed acts are defined in the Tora and by the Courts, and can fall into any one of these imposed-from-without, foreign, categories. Hazal did not accept the idea of Natural Law, and there is no way to “know the mind of God” nor what is objectively “good” or what not; this “religious”, emotional, subjective view of religion is described by Judah Hallewi in terms of “Ijtihad,” which is clearly represented by Nahmanides in his commentary to “Qedhoshim tih-yu”. [It is as if the Law is not good enough, and not the way to serve God]. Therefore, being that “values” is not really what *determines* Law, but the Law itself and the Legislature (no matter how they arrive at their rulings), no, we should not “act based on our values”. The halakha is the manner in which we are to behave, not “values”. Also, any attempt to derive values or philosophy from halakha is in my mind useless, as halakha is generally comprised of subjective opinios of the Court, beyond the fact that halakha is determined by majority, and *not* logic; it is a legal system and not a logical one. Majority does not indicate truth, besides the fact that their is no object of interpretation in legal derashoth (as they are rhetoric and not the source), so that there is no “right” or “wrong”.
Regarding the McPeople Burger (sounds yummy :o) ), I have not researched this subject, but, if Rambam indeed created this prohibition on his own based on his values (which seems to be the case from a cursory reading), I would also disagree with him. This is not to say I would personally eat the Burger, as I would not sleep on a bed of hot coals. Does halakha forbid this? No. Does it mean you must do this? No. You (as well as I) may find eating human flesh, walking around naked, to be odd or “wrong” for whatever reason, and if someone where to ask me if they should, I would suggest they do not, as I would be reflecting my opinions on to them. But, I do not refrain from these things because of “God’s will,” or I think it is just *technically permitted* or the like, its merely a subjective feeling, just as I do not like green clothing, so I do not wear green clothing. I do not say that anyone who does do these things are in any way doing anything wrong according to Judaism, nor do I say that God “really wants this” or that its the “right” thing to do, in any “religious” sense, as “seni`uth” implies. My point is, Judaism, IMHO, does not know of “should not’s”; individuals have preferences, and as long they do not infringe on the Law, they may based on those preferences, no matter what the basis for those preferences are. The “should not” cannot and may not be imposed on anyone else, nor should the person with this view, view it as serving God, just as your personal likes in clothing, I would imagine, are not viewed in that manner (I assume :) ). So, in my view, Judaism does *not* have values; it has laws, and how they are determined is not relevant; the Court needs not a logical reason. It seems to me that those who impose this view upon the Sages are in error, and impose a foreign system of thought (the Greek) upon the them; they were not philosophers, nor logicians. Halakha is not about “right” or “true,” but about Law. Anything else, while attributing it to Judaism in any form, rather then simply a personal preference, is in my view, what Yehudha Hallewi calls “Ijtihad,” basically religious zealousness and fervor not grounded in the Law but subjective feelings, even if the entire people feel the same way (as a society’s common behavior does not render a value any less subjective). So, the distinction of “should be” and “may be”, in the Andalusian, Maimonidean, view of Judaism is pretty much non-existant (there are exceptions, as everyone is human).
Do I think your logic is flawed? Not necessarily. If your axiom is that Judaism does have subjective “should not’s”, that can even be imposed on others (*minus* the Great Court, as they *define* the Law, and hence their rulings cease to be subjective, and based on values, and hence “Ijtihad”, but are objective, fixed, laws), then, it follows that the things you’ve mentioned (I do not agree with the kethubha-reading thing, though) should not be done. However, if you accept the axiom that Judaism contains fixed laws only, then no, from the perspective of Judaism, things not forbidden can and may be performed. That doesnt mean you *must*, of course, but it is completely neutral about it. I would say that the difference is summed up by the views of Maimonides vs Nahmanides vis a vis the Law. I do not follow M simply becuase he is M, but rather, I think he represents the Talmud/Geonic/Andalusian Tradition, while N does not, and Chritian ideas can *clearly* be seen in his works. If one thinks the Jew must behave according to values, and not according to the Berith at Sinai, the Law, *alone*, then your conclusions stand. Vague terms such as “love” required in the Tora are defined in the Oral Law, just as melakha on shabbath was determined by the Court. I realize that most will disagree.
With regard to Rabbi Schachter:
1) I know he did not mean it that way. Even without that Talmudic statement, it is common for people to use this type of analogy. I only made a conjecture that it *may* indicate something.
2) This was meant to RS individually- more to the Ashkenazic tradition, which created this idea of mehisa while there is no talmudic basis for it. Rabbi Soloveitchik maintains it is a Tora requirement. This, IMHO, is pure “Ijtihad”, if not an isur tora itself.
3) This again was aimed at the Ashkenazic tradition.
4) As I have stated, I think this is not appropriate. If a part of a community want to do a *permitted* act (which means, as I stated, *may* be done, with no guilt whatsoever), which apparently is the case as this would be a non-issue, a non-legal reason (kebhodh hassibur) should not be (no pun intended) used to deny them a *right*. Secondly, a sense of seniy`ut in no way implies a negative view of women; it may be precisely because of this negative view, that gets such views placed under this subjective cateogory anyways. Example, and its extreme, but you will get my point: Women are supposed to be quiet, private people. This is “seni`uth”. So, let us forbid them from getting an education, a job, and the like, as their purpose is in the home. It is a *negative* view to regard women in this light, and deny them *rights*. You do not deny people rights when you view them as equals; for someone to define what is proper for another, beyond the Court, is IMHO not correct. If a woman does not want an `aliya, then fine! But if she does, how can someone stop her with a “should not”. If hazal wanted to ban it, they would have. That means it *may* be done, it is the halakha, and *that* is what we are commanded to follow, and not values of a community. Using other values to determine activity, I think, is as Pauline as his “spirit of the law” idea. At Sinai, we were given a Berith. Otherwise, it is “ish kol hayyashar be`enaw” and not “hayyashar be`eney YHWH”. What causes people to invoke the “modesty” issue is generally, in my opinion, based on a primitive view of women which denies them basic rights, and even *duties* such as talmudh tora. Outside of a legal context, “values” have no power. BTW: I do *NOT* in any way suggest you feel this way; I know you, and you certainly do not. But, I think you get my point.
One more thing: with the Burger thing, I agree that the Judge, prior to the halakha forbidding it, would probably not tell the questioner “go ahead”, as he finds this act to be disgusting. He would probably not recommend eating sushi, as it’s pretty nasty as well. But that is a personal view, and has nothing to do with Judaism; only after it is enacted, does it cease to be a personal (or even communal) dislike, but a ban. The fact that he would not encourage the dude to eat it, tells you nothing about Judaism, but only about his personal views. I do not think there is such a category of “technially not asur”, implying any negative connotation. Law is binary, 0 or 1. Concepts such as “compassion of the Jewish people” is limited to the Law, and not external to it. That’s unless one maintans Judaism is more then Law, and that it is not the Berith which obligates us, but “moral/ethical values,” and the like. One cannot maintain both views simultaneously, as the Berith is a legal system, with do’s and don’ts, and not subjective “shoulds” and “should-nots”.
Enought talk about food :)
Thanks for your thorough response. I understand what you’re saying now, but still have two questions.
First, if, “values are culture-based, and are changeable;” if the aversion to eating human flesh is “merely a subjective feeling, just as I do not like green clothing;” if “Judaism, IMHO, does not know of ‘should not’s'” and “the ‘should not’ cannot and may not be imposed on anyone else, nor should the person with this view, view it as serving God;” and if the decision to not eat the McPeople Burger “is a personal view, and has nothing to do with Judaism;” why would the judge vote to turn his personal view into a religious prohibition to be imposed on the entire nation?
I understand that you will say he has a right to do whatever he wants, and we then must simply follow beit din’s ruling regardless of the initial reasoning. But it certainly seems as if the judges involved think their personal views have very much to do with Judaism; they are voting to connect them.
Second, if “outside of a legal context, ‘values’ have no power” and “concepts such as ‘compassion of the Jewish people’ is limited to the Law, and not external to it,” what is the significance of the statement, “mah hu chanun v’rachum, af attah heyeih chanun v’rachum?” That seems to speak of compassion and mercy without reference to any particular laws but rather as independent values.
1) That a judge thinks his view represents Judaism, or that Judaism should reflect such values, does not mean that it actually does; it may, or may not reflect “values” that the Tora contains, if it infact does have any. The Court may find, subjectively, that certain acts should not be committed, for whatever reason, such as morality, ethics, etc.. and, can legislate that (such which gezeroth and the like, for societal benefit, etc). But, without it actually being *law*, Judaism does not value it; perhaps these people do. Although they “speak on behalf of the Tora,” so to speak, that does not imply that their legislation is right. Ideally, I think, the Court should stay out of legislating based on foreign values, but that is impossible, as nobody is compltely objective. So, your question is really why would the Court make a ruling based on values if it has no intrinsic worth, as I maintain. Good question indeed. I think the answer is simply that they have the right to as long as they dont violate Tora law, to rule as they wish. It can be compeltely subjective, and even “wrong”. We still have racist, sexist, halakhoth around, unfortunately. We are stuck with them. It is only natural that the Court would want the people to behave in the way that *their value system* dictates; these people are not perfect. Perhaps they viewed some kind of underlying ethic within the Tora, and *thought* they can best represent that. That does not require one to follow ethics if not set in the Law, and if Judaism is a legal system, anything not comprised within the Law need not be followed. When they do it, it is fine, becuase they are the ones who speak for the Tora. That is not to say that those rulings represent God’s “will”, and that is precisely the point of Rabbinic Authority and creativity (with a Sanhedrin). Do I think necessarily, that they *should* do this? No. Can they? Yes. Does this mean that the Tora has values, becuase they say so? No, that is a philosophic question in itself, and they cannot rule on such matters. They believed in a lot of weird things, and personally, some of their beliefs which they later pinned to the Tora, I find to be of late origin, and not what the Tora meant. They may define whatever the feel is “right,” if they do feel the desire to do so. They do not have any more authority on values or truths then you or I. But, being that they did rule like that, I am stuck with it.
2) I will have to see if this is ever used in a legal context as a reason for a particular halakha, and in which context this memr’a originally appears. In fact, I think this was taken from an ealier midrashic statement, so perhaps this line is out of context. Redactors do these kinds of things, all the time, so it may not really belong in this sugheya. Anyways, all this shows in ‘Abba Sha’ul’s personal opinion, just as “Qol be’ishah `erwa” indicates their view that one should not spend much time with women (incidentally, it has no relation to a woman singing in the Talmud), and is not said in a legal context, but is mere derash, and gave advice, much like the Qol Isha thign, based on personal views, just as any other kind of advice one person gives to another; but, it does not speak on behalf of Judaism. Midreshe Halakha, likewise, are not binding. Hazal’s understanding of verses too, are not binding. Only Law can be binding. I dont know how some subjective feeling can be followed in any real way, anyhow, without legal definition. What does it mean to be “rahum”, how does one accomplish this, waht happens if you do not follow this? It is left for everyone to decide for himself? The Court took a vote, and said “One *MUST* act in a compassionate way?” And if not, why not? From a practical standpoint, it can lead to anarchy. Unless, there are actual legal rulings, based on this value of theirs. Then, it actually has some practical meaning.
Anyways, this is the opinion of the Geonim, Ibn Megas and the Maimonidean school, as I understand it, that the Tora has precise definitions, and that Law rules the people, and not people’s values or opinions. You cannot have a Law that is undefined, by its very nature of being Law. Perhaps this Law has an underlying message to some of its precepts, perhaps. (Hazal cant decide that). This all may sound circular, but unless things of this nature are defined, they do not have much value, in my opinion. You realize that their are plenty of non-legal statements in the Talmudim (besides for the midrash halakha). Of course, you may counter and say that it is precisely because they have value that they were included, but my understanding of Judaism would not allow for that explanation. I understand that you may disagree with my premises, as we come from “different schools” of thought. But, when a legal source *specifically* permits an act, even according to your view, I cannot accept that it should not be followed. “Lo dhai mashshe’asera `alekha hattora?” Why did hazal not prohibit women from reading the tora, when they easily could have?
Sorry about the multitude of responses, but I needed some time to do some research.
Regarding the “hanun, rahum…” statement, the original source seems to be Siphre to Deut. Pisqa 49, cited in Maimonides’ Book of Commandments, miswath `ase 8, and in H. De`oth, chap. 1, as the rabbinic *definition* of “wehalakhta bidhrakhaw” (“kakh lammedhu bephirush miswa zo”). Yet, note the difference between the version cited in the Talmud, and this one. The Siphre is more sensitive to anthropomorphisms, and M cites that version (whether for that reason, or perhaps becuase it is the original source), as he does similarly in H. Shebhu`oth 2:2. This appears to be halakha indeed, although not as “defined” as one would have expected. This is not a case of some people liking some idea which they view as “good” or “ethical” or “moral” and imposing it upon others, or maintaining that Judaism values it. Were it not for the fact that the Tora uses these qualities in refering to God’s ‘behavior’, we would not be able to define the commandment in such a way; we know only that we should behave in such a way because of the Tora, and not because of morality or ethics. [I do not suggest that hazal do not rule based on their ideas of right and wrong, but I refer to this case only]. For Maimonides, there is ‘truth and falsehood’, not ‘good and bad’; the former is determined by the developed mind, the latter, by the ignorant masses. Morality is not “natural” for man, and is not known by intuition. See Dalalat al-Hairin I:2.
Minor correction from my previous post:
“the former is known by the intellect, while the latter are popular things”
All your father did was quote from Bar Ilan software, and if he couldn’t find the source, then it didn’t exist. sorry, but that isnt the way that halakhists decide halakha. Didn’t Riskin and Woolf defend Schachter?
Regarding R. Hershel Schachter and KAJ (i.e. Breuer’s), there is a particular meshuganeh (who is banned from the YU premises after physically threatening one of the roshei yeshiva) who sent out letters full of lies about R. Schachter to the community that caused significant friction. Add to that his ardent Zionism, which does not go over too well in the community that founded Agudah in response to Mizrachi.
However, in my day (the early 90s) R. Schachter was a regular attendee at Breuer’s and his children all went to the community’s elementary school.
Here’s more out of the archives, addressed at the time to a hypothetical person such as yourself.
Was Maimonides really a “Maimonidean”?
I have more thoughts on ways in which your approach does not match that of the Rambam, but that will have to wait until I have more time to write.
Obviously, when hazal said “kol hammarbe, hare ze meshubbah”, it implied one was to embellish the story, using any means, adding songs, commentary, etc. He was not necessarily *against* custom. He writes in the Intro to the Hibbur that only that enacted by the Talmudic Court can be binding upon all of Israel, yet local customs, he implies, can be forced upon local communities by their courts. Nonetheless, they can never trump any halakha (=national law).
Maimondies does not have these brisker notions of “qiyyum” and the like. “Positive avenues of religious expression” is FOREIGN to M’s thought, as is “presumably because he maintained that there was some inherent
value”. I find it amazing that people will continue to speak for him, without knowing him nor his school of thought, pretending that he is either an Ashkenazic Rabbi, a Tosafist, a Brisker, or the like. Its got to end. Please stop putting words into his mouth. The Talmudic notion of Minhag is not what Asknezim call minhag. Their notion comes from their mental assimilation to Chritianity where custom was considered holy. This is not Maimonides! The case you cite with the Hagaddah is a terrible example. Hazal did not define this (beyond certain words), and is left for people to do as they wish (what does “marbe” mean, if not that?) And, so maybe he chose the things you mention becuase it was the practice? What’s your point? Is he specifially supposed to choose other texts? From here, you can of course derive that doing silly customs, as many people do, is Maimonidean. Please. It is quite similar to the liturgy before it was established. Certain ‘customs’ he does mention in the Hibbur, but cites them as such. This does not mean in any way, shape or form, that they are obligatory. They certainly do not overrule LAW. Minhag mevaTTel halakha does not mean what you think it means. Ashkenazim cannot and will not accept the Law, and hence this confusion.
He would also not accepted a lot of enactments by the Geonim, and it is clear why: he writes explicitely that only Talmudic Law is binding. Nor would he except a Gaon’s explanation of the Talmud if it ran counter to reason, as halakha kebhathere only appplies while there is a Court, obviously. This is explicit in the intro to the Hibbur. He did not view his code as “authoritative” in the same way as the Talmud is. Nor did he view himself more authoritative then the Geonim. So he encouraged those who can, to study the Talmud to derive the Law. He writes in his responsa that the purpose of Talmud study is not the intellectual games (like briskers) but to *know what the law is*. He felt that talmud study should continue even after he wrote the Hibbur. Clearly, the Hibbur is not the final word, and indeed, he changed it over his life when he found new manuscrips of the Talmud, as can be seen from R. Qafih’s edition.
This notion that Judaism is a subjective, gdoylim-based hierarchy is not Maimondean. Customs do not have intrinsic worth. Show me where he says they do. Not yeshivish spin, which tries to weave all possible opinions together. One must understand the difference between the school of Ibn Megas vs. Tosafoth.
The “positive avenues of religious expression” idea smacks of “Ijtihad”, in Yehuda Hallewi’s terminology. If you do not know what this means, you cannot speak for Maimonides. Knowing some Arabic might help in understanding a man who thought in that language and its culture and expressed himself to similar people. Judaism is not a religion either. This is a “goy word” you use to define it from outside.
Where, does he ever say that “minhag” is binding upon all of israel? Where does he say that “minhag” not prescribed by the Court (hinhighu minhag) fits in the Oral Law, and where does he say that it is a “religious avenue”, terms and concepts foreign to Arabic Jews. And where does he say that it overrides Law?
He wrote the Hibbur as a codification, as he saw it, for the Talmud, which is national law. so he *obviously* would not include personal “customs”, if he so had any. when he does include “customs” of lets say, spain, he writes that (such as nahaghu, etc). So your point that if its not in the “Yad” then he didnt value it, is not revelant, whatsoever. He may, or may not have, but that was not the point of the Hibbur, anyways. Not a personal, subjective, thing, but NATIONAL LAW (at least as he saw it).
And, when he writes that local courts can force their own to keep a “custom”, that does not mean that they have any value, as does halakha, being that it is the Oral Law, but rather, that the Courts can force the people do follow them (WHEN they dont break talmudic law). So, the ashkenazic raising of custom to a holy stature does not help much, as most of what they call “minhag ashkenaz” trumps halakha anyways (Tosafoth ring a bell).
I do not know of any Maimondean who views “religious expression” in Maimonidean thought as you do. Which Sepharedim (who actually passed down his thought, and didnt burn it), wrote such things. Where does he call Judaism a religion. I take it you also beleive that according to him, sacrifices will not be restored, like all those “academics” who feel this way?
Now, I am not purely maimonidean- I follow the Law from the Court, eg, from those who had semikha. So, a lot of the the Talmudh Babheli, I do not accept. That is not M’s point of view, that is mine. To follow him blindly, indeed, would *not* be a Maimonidean thing to do, anyways.
One more thing:
Yemenites have plenty of “customs”. Ask a Baladi Yemenite if they view them as being obligatory. It means merely that they can. Not the same idea that ashkenazim have that their customs are 1) holy 2) override the law. they consistently use this term, to justify their deauthorization of the law.
in case you cite the issue of the second day of yom tobh as being “obligatory custom”, its clear that this was obligatory not because of the “minhag abhoth” but because it was a full-fledged teqana of R. Yose and his court. Maimonides is quite clear, as is Hakham Yisrael Moshe Hazzan (in his Qonteris Qedhushath Yom Tobh).
so, the issue of minhag is rather irrelevant, as ive stated, its generally used to actually trump Law. This only occurs due to their “Ijtihad” type view of judaism. I wonder if the peoples in Teutonic lands’ similar behavior with Roman Law is in any way related…
Anyways, to say (and even place in M’s view) that some custom is a “qiyyum” of some obligation makes no sense, unless the obligation was left open for people to do as they feel. this is genereally not the case with halakha. the retelling of the exodus story, beyond the required things, as ive stated, does maintain one to say as he pleases, and views it as good to increase its retelling. this part and parcel of the Law. not some “brisker-chiddush”, and not something external. why must it be that a custom must be some form of “qiyyum”? i think that is precisely what Hallewi (and M) was against. its not forbidden to do, but to include it as a “religious” practice would be incorrect, as the commandments are defined. what does it mean that there is a “qiyyum” of a commandment that is external to the commandments’ defintion? sounds pretty Pauline to me. i wonder where M says this.
Also, since people are so concerned about their holy minhag, i would like to see how it is they are more concerned with that, then with say, clapping on shabbath, 18 minutes before sunset to light candles, yet carry outside wiht a fake “`erubh”, or even worse, eating Hadhash which is an isur tora (final mishna in `orla, as well as the tora, are quite clear). no pilpul, please. this only goes to show how disenginuous this whole idea of custom is. that is holy, and cannot be revoked, nor disobeyed, but the Law of God and the Sages, that doesnt really matter. anything we can do to get out of it, or make it more “machmir”, depending on how we feel (= Ijtihad, again), we will do.
Some honesty, please.
This has devolved into a pointless discussion.
Daniel Borsuk: He leaves himself open to critism becuase he mentions lower courts in the time of the roman period and the concept of the gaonim.
You have to ask yourself the essential question of what is he doing by mentioning lower courts and gaonim? Especialy since he mentions that the lower courts exisited outside of both Babylon and eretz yisrael.
Remember before Rashi..There was no rashi…but there were responsa from lower courts. What is it’s purpose?
However you are essentially correct in saying that all upper level decisions are universial halacha binding on everyone.
But does that mean that a lower court’s decision is any less binding, since he does mention their existence?
Could we posit that this is where Minhag ashkenaz is coming from?
How much of law is from the books and how much is mnemotic behavior?
I heard (will someone fact check this for me please) that for the laws of niddah, a females does not change her customs to her husbands. Why? Becuase they are taught by seeing, through her mother (well in theory), not through texts.
He also has two other really big holes.
A) Where is the rest of Anshei Knessent Hagadol?
Ezra, Nechmeia and his cohorts have to die eventually. There is a nice margin of time before You see the rise of greece and aristobulus.
Where is everyone else?
B)The nevi’im are never explicity said as judges, but rather as teachers. Shoftim and Kings are the only two groups I can difeinvely see from the tanach that have that power. Yermiyahu is arrested after all.
Why is that never discussed?
While they all passed on mesorah, no one said they were the ones to actually have powr to make deciosn rather than influence.
See the difference?
What is Rambam implying?
Many of you have stated that Rabbi Yuter claimed in his address that HaRav Schachter was rejected by KAJ. Would you please inform me as to what this is referring to, i.e., what was he rejected for and who is KAJ.
Firstly, a note to Josh — if you feel that this discussion is getting too far afield of the original post, let me know, and I would be glad to move it elsewhere. I’d like to respond to a few of Daniel’s different points, but I’ll just start with one here.
I’m not suggesting that the Rambam shares the Ashkenazi approach to custom. I’m well aware of the differences between their schools of thought. I even share your suspicion that the Ashkenazi veneration of custom is due to a Christian influence. My point here is not to defend the idea the Minhag Ashkenaz trumps the Talmud Bavli.
I am talking more about the vast majority of customs, which do not contradict the Talmud at all, but rather are simply additional pratcices or prohibitions.
You wrote that “local customs, [Maimonides] implies, can be forced upon local communities by their courts,” but that “that does not mean that they have any value.”
Why would a local court impose a custom that does not have any value?
You wrote, “From here, you can of course derive that doing silly customs, as many people do, is Maimonidean.”
No, I don’t think so at all. It may be that many Jews eat bagels and lox on Sunday mornings, but this is not what I am referring to as a minhag. A valid minhag, the way I understand it, is either a kiyum in some open-ended halakhah or a reflection of an aggadic concept. I find that the vast majority of the minhagim recorded in the early Ashkenazi sifrei ha-minhagim, at least, pass this test. That’s what I mean by a minhag being of “religious value,” not some abstract fuzzy feeling with no basis in our mesorah.
When I talk about a kiyum, I’m just referring to a particular way of fulfilling what you termed an “obligation [that] was left open for people to do as they feel.” As one example, we give a “machatzit ha-shekel” today as a kiyum in the halakhah of “avdinan zekher la-mikdash.”
As for minhagim that reflect aggadic concepts, if all of Judaism can be boiled down to “mutar vs. assur, patur vs. chayav,” as you suggest, what is the purpose of all of the non-halakhic portions of Tanakh? What is the point to all of the aggadeta in the Talmud?
These are the sorts of minhagim that I think the Rambam would support, despite their not being part of the core halakhah.
You write that many Ashkenazim…
You make it sound as though yours is obviously the only correct view of the halakhic system, and that Ashkenazim are deliberately violating the halakhah. I do not believe that this is the case.
Your case would be much better served if you would acknowledge that there are alternative internally consistent models of how the halakhic system works, which have been adopted by many talmidei chakhamim over the past millenium, and try to understand them, but then state why you believe such models to be flawed.
Don’t make us take a “leap of faith” that your model or the Maimonidean model is superior to the Ashkenazi model. Prove it by taking a complete look at both the strenghts and weaknesses of each model. You may have gotten off to a good start by mentioning the potential Christian influence on the Ashkenazi model.
It’s important to acknowledge, though, that the other models are real, and that those who construct and use metropolitan `eruvin do so based neither on ignorance of the Talmud nor on disloyalty to the halakhah.
Honestly I’ve been too busy to follow this in great depth. While most of you might be off the original topic, the discourse has been relatively polite so I’m going ot stay out of it.
What it has done however is prompt me to start writing out my own halakhic hashkafa and when done will be blogged incrementally.
It’s nice to know that we have among us a gadol such as DB who understands the nature of Torah & Halakha better than the entire 1000+ year span of Ashkenazi tradition. Maybe after 120 years you can explain to Rabeinu Gershom, Rashi, Rabeinu Tam and the BaH exactly where they went wrong.
Now is not the time to bitter.
My gut reaction is the following:
David Cohen of Chiddushim et al is handling the ashkenazi perspective on halacha as per what is the penumbrum and how was it created. This tends to be much more of a loose contrusctionist postion. The vacuum must be filled after all.
Daniel Borsuk is handleing the “Yemenite” (since I can’t verify this) and definitely the Rambam’s position. He is deifitvely a strict contructionist dealing with the courts and just the courts. In this model there is no vacuum.
Josh can’t moderate right now, he’s
I don’tthink he nessicarily realizes that this is starting to get a tad bitter, since this is cultural on some level (At points this can be construed to sound like it’s bad to be Asheknaz, and worse to study Mitnag, especially Brisker)
Watch how what you are saying sounds. I realize that at my worst I also sound high strugn and I apoligize for it. I relay should try for professional inquiry instead with boundary between me and mystrious rabbis who populate the blogsphere.
The one on topic post since this start of this conversation is a slight insult to Rav Yuter 1 and the father of this blog. One really should always try to think the best of any situation.
John Frischstien, I am personally amazed he spoke at all. What is he doing speaking? Not to rehash old history, but he is starting to enter the quieter years of his life. He grandkids already. Earlier this year his wife broke her hip and had knee surgery (in the smae month i believe). It’s not one of those times where you want to become one of those rabbi’s who want to change the world. Looking up every obscure source as you start the time of your life where you no longer have the engery nor the sources nor the ability to do so is a really big deal. Looking up een a lot of sources even becomes a major source of stress. He’s becomign other roles. I sure a lot of us are other roles too. Stop expecting him to be just the rabbi caricture
No bitterness was intended: I just meant to point out that saying that virtually all chachmei ashkenaz fundamentally misundertood the nature of their religion is a little hard to believe.