Introduction

As mentioned previously (and obvious to many readers), Orthodox Judaism is considered to be religious, traditional, and/or authentic, but there are several gradations and sub-categories within Orthodoxy. There are countless customs, world views, and interpretations such that adequately defining what Orthodox Jews do or believe is nearly impossible.

Of course, this never stopped people from trying.

So in today’s installment of the “Personal Hashkafa” series, I’d like to present my take on the worlds of Orthodox Judaism, with a theory I believe accounts for most if not all phenomenon found in Orthodoxy. Let me just restate that this is my thinking and how it plays into my overall hashkafa. This is not an academic paper – though it could be a fun one if/when I’d ever have the opportunity.

The Essential Question
I have found in my experiences that defining principle of all Orthodox Judaisms¹ is a commitment to the laws and beliefs written in the Torah. While the sub-groups may bicker as to what that means and/or who is more correct, each recognizes the religious obligations to follow whatever they consider to be Torah because they ultimately represent the divine will. Furthermore, all Orthodox Jews – and even most non-Orthodox – recognize the significance of the torah shebichtav – the Bible, and the torah she’be’al peh – Rabbinic sources minimally spanning from the time of the Mishna through the Babylonian Talmud.

Despite this underlying assumption Orthodox Judaisms frequently finds itself at odds with the Talmud. Space does not permit me to go into a detailed analysis of any particular issue,² but conceptually, most Orthodox Rabbis and laity agree with this reality, frequently saying “we don’t pasken (rule) from the gemara.” This does not only mean that what the Talmud prohibits Orthodox Judaisms permit, but Orthodox Judaisms also prohibit what the Talmud explicitly permits.³ These incongruities also extend to the realm of theology where uncomfortable or inconvenient statements are ignored, suppressed, or “reinterpreted.”

In fact, most of the deviations from the Talmud are based on some reinterpretation of either the immediate issue or of the halakhic process in general. One could even argue that most if not all of the conflicts within Orthodox Judaisms are based in differing perspectives of interpretation. There are disputes over which interpretations are legitimate, which opinions are authoritative, the rules for making such determinations, and who has the authority to make all of the above decisions. The positions one takes on these issues ultimately define an Orthodox Jew’s hashkafa (outlook) in halakha (law) or mahshava (thought), and when it is passed down from generations, it is called “Tradition.”

This relativism, however, presents what I consider to be the critical dilemma for Orthodox Judaisms. By allowing for varying interpretations, even those which may contradict Talmudic law, Orthodox Judaisms tacitly acknowledge that their foundational principle is ultimately subjective. However, when confronted with conflicting opinions – frequently from outsiders, they will automatically revert to the fundamentalist rhetoric. But on the other hand, if Torah is somehow objective, such that there are definitive measures for defining what is and is not legitimate, then not only would these rules must be defined, but they must be followed by all Jews – including highly respected rabbis or sages.

Meaning, if there is an objective standard to Torah and its interpretations, then all Jews must be held accountable to this universal criteria, including Rishonim (Medieval scholars) and Achronim (Modern / contemporary scholars) – but few Orthodox Judaisms are willing to critically evaluate their canonical sages. But if Torah is subjective, then why would their deviations be acceptable, but others – such as those of the Conservative movement or competing Orthodoxies – be rejected? What then is the true determining factor for Orthodox Jews? What is it that makes the Orthodox, Orthodox?

Texts, Tradition, and the Sacred Society

The key to understanding Orthodox Judaisms, I believe, is to correctly identify the relationship between texts and tradition. I do not mean that the two are exclusive of each other, as the understanding of any text is subject to some degree of interpretation. Rather, in the Orthodox system, which of the two takes precedence over the other?

I suggest that while texts are important to Orthodox Jews, the superior authority of most (i.e. not all) Orthodox Judaisms is not any text, but rather on one’s personal or communal tradition. This is not an entirely new suggestion; scholars of Medieval Judaism identified the trend of Rabbis who reinterpret halakha to coincide with popular practice.⁴ This does not mean that traditional texts were unimportant, but that when there would be a conflict between texts and tradition, texts – or at least their meaning – are more likely to change to fit the practice or accepted ideals than the other way around. This of course creates a religious problem in that practice determines the religion as opposed to the religion mandating practice.

The most effective and innovative solution to this difficulty was to claim that tradition itself was sacred. Just as the Rabbinic tradition was the sacred and authentic interpretation of the Torah, so are the current traditions. This idea was formulated by several Medieval sages who asserted minhag yisrael torah hi (Ramban Pesachim 7b, Mahzor Vitry 503, many other places) or minhag avoteinu torah hi (Rosh R.H. 4:14, Tos. Menahot 20b) – the custom of Israel or our fathers is itself Torah. By equating Torah with tradition, these sages effectively reify their culture, making Judaism an intrinsically sacred society.⁵

The Sacred Society in Practice

Today’s Orthodox Judaisms perpetuate this idea to varying degrees. Some schools of thought do so explicitly by automatically disregarding and deligitimizing any idea which is in opposition or simply foreign to their own culture or to their appointed leaders. If the idea is not part of the communal cannon, it is outside of Judaism. One who challenges the status quo of the community is as much of a heretic as one who challenges the authenticity of the Torah itself, for in their minds, they are one and the same.

For example, Orthodoxy has long struggled in defining the halakhic role of women in Judaism, and frequently resorts to social answers to maintain the social status quo. Ruling against to the Talmud (Hullin 2b, M. Zevachim 12:4), the Shach prohibits women from acting as shohatot (slaughterers) simply because he hadn’t seen it done before (Y.D. 1:1, see Maharik 172). Women’s prayer groups are not prohibited by the Talmud, but they represent a change in the Orthodox world. Rabbi Yuval Cherlow a head of a hesder yeshiva said in his opposition to ordaining women rabbis:

the bottom line is that the Halacha will be formulated by the people who keep Halacha and this is the main power of the Orthodox – keeping strict, constant ritual. Halacha is not ideology, principles or even rabbis, but the public.

Beyond this specific instance, the assumption of Orthodoxy as a sacred society is implicit in the general halakhic and hashkafic systems. If one were to pick up any popular book on Jewish Law or Jewish thought – Hebrew or English – and look at the footnotes, or if one listens carefully to a Rabbi’s sermon or lecture, one will typically find an eclectic citation of sources. One law may be based on the Shluhan Aruch, another on Ramo, and a third on Mishnah Berurah. One theological idea may be from Rambam, another from R. Yehuda Halevi, and a third from Ramban. Depedning on the proficiency of the author or rabbi, there can be any number of sources cited for any number of different situations.

If these selected sources are not arbitrary, then there ought to be a reason – or preferable a system – for why different sources are cited in different cases. Meaning, if R. Moshe Feinstein is enough of a legitmate halakhic authority for one law, why is his opinion disregarded for another? When I have asked other rabbis this question, I have rarely received a rational response.⁶ The most common answer I hear is, “because that’s what we do” or “because that’s what other people said.” In a textual tradition, these answeres would be sidestepping the question. Instead of giving a legal answer demonstrating why one interpretation is rationally superior to the other, most Rabbis will give cultural or social arguments.

It should be noted that left-wing elements of Orthodoxy are equally susceptible to selectively citing sources to further an agenda. In the case of women reading the megillah, they will cite the Talmud’s statement that women are equally obligated as men (B. Megillah 4a), and follow this source over the objections of the Tosafot. However, this is not because they believe the Talmud is the superior authority. According to the Talmud, one may only make the blessing asher kiddishanu bemitzvotav when there is at least a rabbinic obligation (B. Shabbat 23a). However, most women say this blessing when performing time bound commandments for which they have no obligation (M. Kiddushin 1:7), based on the dispensation of the Tosafot that asher kiddishanu bemitzvotav may even be said over a practice accepted as a custom (Brachot 14a s.v. Yamim Shehahayid). Even on the left, sources will be cited and relied upon where the conclusions suit the disposition of the community.⁷

In reality there is no singular text or authority which Orthodox Jews will follow consistently.⁸ Although sources will always be cited as authorities, as in “this is the law because X said so,” their halakhic status is fickle at best. In my opinion, these sources of Jewish law and Jewish thought are not cited authoritatively as but rhetorically, usually to reach or justify an a priori conclusion. Thus way Judaism may be given the illusion of being a text based rational/legal religion, while preserving whatever accepted culture has accepted.⁹

Evaluating Orthodoxy

As one can expect, there are advantages and disadvantages to the Orthodox system. Orthodoxy has been able to sustain itself for centuries despite countless external and internal challenges. For the most part, Orthodox Jews still keep kosher, still observe Shabbat, and still follow the precepts of the Torah to a greater degree than the other denominations. Even if Orthodox Jews are inconsistent, they still believe that God gave the Torah and Jews are obligated to fulfill the will of God and as understood by the Rabbinic Sages.¹⁰ This belief, when combined with communal reinforcement curtails the relativistic tendencies as it affirms that there are permanent absolutes in Judaism.

However, Orthodox Judaisms are not without their problems. On a theoretical level, the widely held reasoning that “the Halacha will be formulated by the people who keep Halacha” is hopelessly circular. Jews are observant only their practices follow halakha, but halakha is determined by the practices of the people themselves. According to this logic, whatever an “accepted” Jewish community does is automatically legitimate Q.E.D.
Furthermore, when the rhetoric of being a textutal religion does not necessarilly match with the reality, people become confused and rebel. Jews are told that the Talmud is the source of Jewish Law, but are then told that the Talmud doesn’t mean what it says. What the Talmud prohibits may be permitted, and what it allows is prohibited. It is heretical to assert, “where there is a rabbinic will there is a halakhic way,” but it is equally heretical to demonstrate where a practice violates Talmudic law.

Finally, and most importantly, the notion of the sacred society contradicts the very Torah to which it supposedly adheres. Where many assume that their community is infallible, the Bible writes that it is indeed possible for a community (Deut. 13:16) or even the entire nation (Num. 15:26) to err. And as we have seen previously, the Talmud mandates that Jewish practice must have to conform to Torah, not the other way around.

With all these problems in these Orthodox systems, is there a better alternative? Maybe. Next post I’ll wrap up this series by finally outlining what I believe and why it makes sense to me as well some of the major difficulties and questions I have faced.

1. By which I mean the entire spectrum of people who identify as Orthodox – from the left of “Modern Orthodox Judaism” through the various “ultra-Orthodox” camps.
2. Off the top of my head, accepted Orthodox practice contradicts the gemara on such issues as mayim achronim, saying hallel with a bracha on Rosh Hodesh, hakafot on simhat torah, Eiruvin, and many others.
3. Including several women’s issues, secular learning, and many others. I am only referring here to where actions are inherently prohibited as opposed to a custom.
4. Read the collected works of Jacob Katz, and Urbach’s Ba’alei Tosafot
5. This phenomenon also appears regarding the authority of individual Rabbis. In the dogma of “Da’as Torah,” the Rabbis are divinely inspired and can intuit the will of God is a simliar phenomenon. Thus, their opinions are not from human understanding and thus subject to critical evaluation, but are of divine themselves and so must be as unquestioned as the Torah itself. While I do have a nice piece written about Da’as Torah, I’m probably in too much trouble as it is so it will have to wait right now.
6. For example, an opinion could resonably be disregarded if the meziut (reality) on which one source was based was inapplicable.
7. I also have another good example from when I was a Rabbinic Intern. At the time we were discussing the issue of women’s hakafot on simhat torah and how to accomodate as many people as possible while offending as few as we could. One woman indignantly asked me, “where does the gemara say it’s assur for a woman to dance with a Torah?” I pointed her to B. Beitza 30a which prohibits all dancing on Shabbat or Yom Tov. Her response? “Oh, but we don’t pasken like that.” Indeed.
8. Even the Hassidim, or smaller communities who do follow one appointed Rabbi do so primarilly for social reasons rather than objective halakhic reasons. As we covered earlier, the appointment of a Rabbi is determined by the society. Furthermore, regardless of the laity’s appointments, the Rabbi himself will selectively choose which sources he would consider authoritative.
9. Note the differences between my formulation and that of Hayyim Soloveitchik. In his article “Rupture and Reconstriction” Dr. Soloveitchik distinguishes between “textual” traditions and “mimetic” culture and laments the prevailing trend in contemporary Orthodoxy of people looking to texts to determine Jewish practice as opposed to first following the inhereted culture. For Dr. Soloveitchik, the choice of texts and tradition are a dichotomy – one or the other. I would argue that textual inquiry may not be mimetic in the way that Soloveitchik would like, it is still primaraly cultural – the accepted culture will determine which texts to read, how to read them, and how to apply them.
10. Regarding Conservative Judaism, although Zecharias Frankel and Solomon Schechter both advocated sustaining Jewish ritual, they did so not as religious obligations, but for cultural preservation. The “official” Conservative movement struggled with this for most of its history and in 1948 the Rabbinic Assembly voted down a resolution obligating the Committe of Law and Standards to rule in accordance with halkha. See the Proceedings of the Rabbinic Assembly from 1948. Reconstructionism is an extreme formulation of this principle, and Reform never claimed to be halkhic.